Gervasoni v. Canada (Minister of Citizenship and Immigration), (1996) 110 F.T.R. 297 (TD)

• Judge: Muldoon, J.
• Court: Federal Court (Canada)
• Case Date: July 28, 1995
• Jurisdiction: Canada (Federal)
• Citations: (1996), 110 F.T.R. 297 (TD)

Gervasoni v. Can. (M.C.I.) (1996), 110 F.T.R. 297 (TD)

MLB headnote and full text

Gerald Gervasoni (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-4063-94)

Indexed As: Gervasoni v. Canada (Minister of Citizenship and Immigration)

Federal Court of Canada

Trial Division

Muldoon, J.

April 10, 1996.

Summary:

In 1986, Gervasoni, an American citizen, entered Canada and falsely acquired a Canadian's identity. In 1993 he was detected. It was then discovered that Gervasoni had been convicted of second degree murder in 1982 in New Jersey. Gervasoni had been sentenced to seven years' imprisonment. Gervasoni had also been convicted in Canada for breach of recognizance and harassing telephone calls. Charges of sexual assault and unlawful use of a firearm were stayed pending immigration and extradition proceedings. A warrant was issued by the State of New Jersey for serious and persistent violations of his parole conditions. Gervasoni was also wanted in Florida on an outstanding murder charge. At the June 1994 immigration hearing, Gervasoni made a refugee claim. The adjudicator ruled that Gervasoni was a member of an inadmissible class of persons pursuant to his second degree murder conviction (s. 19(1)(c.1)(i) of the Immigration Act). A conditional deportation order was issued and was conditional upon Gervasoni being found not to be a Convention refugee or being ineligible to make such a claim. Under s. 46.01(1)(e)(i) of the Immigration Act, an alien became ineligible to have his Convention refugee claim determined if (1) an adjudicator had ruled that the alien was a member of an inadmissible class of persons pursuant to s. 19(1)(c.1)(i) of the Act and (2) the Minister was of the opinion that the alien constituted a danger to the people of Canada. In August of 1994, the Minister formed the opinion that Gervasoni constituted a danger to the public in Canada. Therefore, pursuant to s. 46.01(1)(e)(i) of the Act, Gervasoni became ineligible to have his refugee claim determined. Gervasoni applied for judicial review of the adjudicator's decision.

In June of 1995, the Federal Court of Canada, Trial Division, in a decision reported 97 F.T.R. 307, granted judicial review for purely procedural reasons and remitted the matter for consideration by a different adjudicator. Therefore, the conditional deportation order was not yet in effect. Gervasoni then applied for judicial review to have the Minister's decision declared of no force and effect on the ground, inter alia, that s. 46.01(1)(e)(i) of the Immigration Act was contrary to s.7 of the Charter.

The Federal Court of Canada, Trial Division, declined to grant judicial review. However, the court did certify certain questions regarding s. 46.01(1)(e)(i) of the Act for determination by the Federal Court of Appeal.

Administrative Law - Topic 341

The hearing and decision - Nature or extent of hearing - General - Gervasoni, an American felon, arrived in Canada and assumed a Canadian's identity - An immigration adjudicator issued a conditional deportation order made conditional on Gervasoni not being eligible to make a Convention refugee claim - The Minister filed an opinion that Gervasoni constituted a danger to the Canadian public - By reason of the adjudicator's finding that Gervasoni was a member of an inadmissible class and the Minister's opinion, Gervasoni lost his right to have his Convention refugee claim determined (s. 46.01(1)(e)(i) of the Immigration Act) - Gervasoni applied to have the Minister's opinion quashed on the ground that he failed to grant a hearing - The Federal Court of Canada, Trial Division, declined to quash the Minister's opinion - See paragraph 11.

Administrative Law - Topic 2155

Natural justice - Administrative decisions or findings - Effect of failure of tribunal or official to give reasons for decisions - Gervasoni, an American felon, arrived in Canada and assumed a Canadian's identity - An immigration adjudicator issued a conditional deportation order made conditional on Gervasoni not being eligible to make a Convention refugee claim - The Minister filed an opinion that Gervasoni constituted a danger to the Canadian public - By reason of the adjudicator's finding and the Minister's opinion, Gervasoni lost his right to have his Convention refugee claim determined (s. 46.01(1)(e)(i) of the Immigration Act) - Gervasoni applied to have the Minister's opinion quashed on the ground that he failed to give reasons - The Federal Court of Canada, Trial Division, declined to quash the Minister's opinion - See paragraph 12.

Administrative Law - Topic 3218

Judicial review - General - Evidentiary rulings - Gervasoni, an American felon, arrived in Canada and assumed a Canadian's identity - An immigration adjudicator issued a conditional deportation order made conditional on Gervasoni not being eligible to make a Convention refugee claim - The Minister filed an opinion that Gervasoni constituted a danger to the Canadian public - By reason of the adjudicator's finding that Gervasoni was a member of an inadmissible class and the Minister's opinion, Gervasoni lost his right to have his Convention refugee claim determined (s. 46.01(1)(e)(i) of the Immigration Act) - Gervasoni applied to have the Minister's opinion quashed - The Minister applied for the exclusion of certain affidavit evidence submitted by Gervasoni on the grounds, inter alia, that Gervasoni had failed to place it before the Minister - The Federal Court of Canada, Trial Division, struck the affidavits - See paragraph 2.

Aliens - Topic 1326.2

Admission - Refugees - Refugee Division - Ineligibility for determination by - Gervasoni, an American felon, arrived in Canada and assumed a Canadian's identity - An immigration adjudicator issued a conditional deportation order made conditional on Gervasoni not being eligible to make a Convention refugee claim - The Minister filed an opinion that Gervasoni constituted a danger to the Canadian public - By reason of the adjudicator's finding that Gervasoni was a member of an inadmissible class and the Minister's opinion, Gervasoni lost his right to have his Convention refugee claim determined (s. 46.01(1)(e)(i) of the Immigration Act) - Gervasoni applied to have the Minister's opinion quashed on the ground that s. 46.01(1)(e)(i) contravened s. 7 of the Charter - The Federal Court of Canada, Trial Division, declined to quash the Minister's opinion - See paragraphs 16 to 20.

Aliens - Topic 1787

Exclusion and expulsion - Deportation of persons in Canada - Persons ineligible for Convention refugee status - Gervasoni, an American felon, arrived in Canada and assumed a Canadian's identity - An immigration adjudicator issued a conditional deportation order made conditional on Gervasoni not being eligible to make a Convention refugee claim - The Minister filed an opinion that Gervasoni constituted a danger to the Canadian public - By reason of the adjudicator's finding that Gervasoni was a member of an inadmissible class and the Minister's opinion, Gervasoni lost his right to have his Convention refugee claim determined (s. 46.01(1)(e)(i) of the Immigration Act) - The adjudicator's decision was quashed - Gervasoni applied to have the Minister's opinion quashed on the ground that, inter alia, it was conditional upon the adjudicator's finding - The Federal Court of Canada, Trial Division, declined to quash the Minister's opinion - See paragraphs 21 and 22.

Aliens - Topic 1796

Exclusion and expulsion - Deportation of persons in Canada - Deportation order - Validity of - [See Aliens - Topic 1787 ].

Civil Rights - Topic 3193

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Procedure not contrary to fundamental justice - Gervasoni, an American felon, arrived in Canada and assumed a Canadian's identity - An immigration adjudicator issued a conditional deportation order made conditional on Gervasoni not being eligible to make a Convention refugee claim - The Minister filed an opinion that Gervasoni constituted a danger to the Canadian public - By reason of the adjudicator's finding that Gervasoni was a member of an inadmissible class and the Minister's opinion, Gervasoni lost his right to have his Convention refugee claim determined - Gervasoni applied to have the Minister's opinion quashed on the ground that s. 7 of the Charter was contravened (i.e., a lack of fairness and no provision for court review) - The Federal Court of Canada, Trial Division, declined to quash the Minister's opinion - See paragraphs 16 to 20.

Extradition - Topic 3

General - Extradition - Defined - Gervasoni, an American felon, arrived in Canada and assumed a Canadian's identity - Gervasoni was wanted by New Jersey for parole violations and by Florida on a murder charge - An immigration adjudicator issued a conditional deportation order made conditional on Gervasoni not being eligible to make a Convention refugee claim - The Minister filed an opinion that Gervasoni constituted a danger to the Canadian public - By reason of the adjudicator's finding and the Minister's opinion, Gervasoni lost his right to have his Convention refugee claim determined (s. 46.01(1)(e)(i) of the Immigration Act) - Gervasoni applied to have the Minister's opinion quashed on the ground that the proceedings constituted disguised extradition - The Federal Court of Canada, Trial Division, declined to quash the Minister's opinion - See paragraphs 13 to 15.

Cases Noticed:

Lemiecha et al. v. Minister of Employment and Immigration (1993), 72 F.T.R. 49; 24 Imm. L.R.(2d) 95 (T.D.), refd to. [para. 2].

Franz v. Minister of Employment and Immigration (1994), 80 F.T.R. 79 (T.D.), refd to. [para. 2].

Quintero v. Canada (Minister of Citizenship and Immigration) (1995), 90 F.T.R. 251 (T.D.), refd to. [para. 2].

Kenbrent Holdings Ltd. et al. v. Atkey (1995), 94 F.T.R. 103 (T.D.), refd to. [para. 2].

Gervasoni v. Canada (Minister of Citizenship and Immigration) (1995), 97 F.T.R. 307 (T.D.), refd to. [para. 6].

Nguyen v. Minister of Employment and Immigration, [1993] 1 F.C. 696; 151 N.R. 69 (F.C.A.), appld. [para. 10].

Seyhoon v. Canada (Minister of Citizenship and Immigration) (1995), 28 Imm. L.R.(2d) 87 (F.C.T.D.), refd to. [para. 10].

Bahadori v. Canada (Minister of Citizenship and Immigration) (1995), 95 F.T.R. 75 (T.D.), refd to. [para. 10].

Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238 (F.C.A.), appld. [para. 12].

Bembenek v. Minister of Employment and Immigration (1991), 15 Imm. L.R.(2d) 229 (Ont. Gen. Div.), consd. [para. 14].

Moore v. Minister of Manpower and Immigration, [1968] S.C.R. 839, consd. [para. 14].

Kindler v. Minister of Employment and Immigration, [1987] 3 F.C. 34; 80 N.R. 388 (F.C.A.), refd to. [para. 14].

Mensinger v. Minister of Employment and Immigration, [1987] 1 F.C. 59; 5 F.T.R. 64 (T.D.), refd to. [para. 14].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1, sect. 7 [para. 4].

Immigration Act, R.S.C. 1985, c. I-2, sect. 19(1)(c.1)(i) [para. 6]; sect. 46.01(1) [para. 7].

Counsel:

Gary Botting, for the applicant;

Kathy Ring, for the respondent.

Solicitors of Record:

Gary Botting, Victoria, British Columbia, for the applicant;

George Thomson, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on July 28, 1995, at Vancouver, British Columbia, before Muldoon, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on April 10, 1996.