Halm v. Minister of Employment and Immigration, (1995) 91 F.T.R. 106 (TD)

• Judge: Reed, J.
• Court: Federal Court (Canada)
• Case Date: February 24, 1995
• Jurisdiction: Canada (Federal)
• Citations: (1995), 91 F.T.R. 106 (TD)

Halm v. MEI (1995), 91 F.T.R. 106 (TD)

MLB headnote and full text

Henry Halm (applicant) v. The Minister of Employment and Immigration (respondent)

(IMM-7073-93)

Indexed As: Halm v. Minister of Employment and Immigration

Federal Court of Canada

Trial Division

Reed, J.

February 24, 1995.

Summary:

Halm was ordered deported because he was neither a Canadian citizen nor a permanent resident and there were reasonable and probable grounds to believe that he was convicted of an offence outside Canada which, if committed in Canada, would constitute an offence punishable by a maximum term of imprisonment of ten years or more. Halm applied to set aside the conditional deportation order, arguing, inter alia, that there was no comparable offence in Canada because s. 159 of the Criminal Code (the equivalent offence) was unconstitutional.

The Federal Court of Canada, Trial Division, allowed the application and set aside the conditional deportation order.

Aliens - Topic 1781

Exclusion and expulsion - Deportation of persons in Canada - General - Halm was ordered deported because he was neither a Canadian citizen nor a permanent resident and he was convicted of an offence outside Canada which, if committed in Canada, would constitute an offence punishable by a maximum term of imprisonment of ten years or more - Halm applied to set aside the order - There was evidence that his arrest was triggered by United States bail bondspersons and that United States law enforcement officials decided against extradition proceedings while awaiting the result of the Canadian deportation process - Halm argued that proceeding by way of deportation rather than extradition was unfair because extradition provided added guarantees - The Federal Court of Canada, Trial Division, held that there was no unfairness - See paragraphs 74 to 79.

Aliens - Topic 1786

Exclusion and expulsion - Deportation of persons in Canada - Grounds - Halm was ordered deported because he was neither a Canadian citizen nor a permanent resident and there were reasonable and probable grounds to believe that he was convicted of an offence outside Canada which, if committed in Canada, would constitute an offence punishable by a maximum term of imprisonment of ten years or more - Halm applied to set aside the conditional deportation order, arguing, inter alia, that there was no comparable offence in Canada because s. 159 of the Criminal Code (the equivalent offence) was unconstitutional - The Federal Court of Canada, Trial Division, allowed the application.

Aliens - Topic 1786

Exclusion and expulsion - Deportation of persons in Canada - Grounds - Halm was ordered deported because of New York convictions for sodomy (oral and anal sex with someone less than 17 years old) - The offence was found to be equivalent to s. 159 of the Criminal Code (anal intercourse) - Halm argued that the offences were not equivalent because he "could have been convicted" of oral sex only - The Federal Court of Canada, Trial Division, held that it was reasonable for the case presenting officer to conclude that Halm was not contesting that he had been convicted of anal sex - There was no need to prove equivalency beyond a reasonable doubt - Only "reasonable grounds to believe" that he had been convicted outside of Canada of an equivalent offence were required - See paragraphs 23 to 27.

Aliens - Topic 4086

Practice - Hearings - Participation by legal counsel - Halm was ordered deported - He applied to set aside the order, arguing, inter alia, that his right to counsel was denied - The Federal Court of Canada, Trial Division, rejected the argument - The adjudicator adjourned five times to allow Halm to obtain some sort of firm commitment that counsel would be representing him - The court noted that if the adjudicator had had a more complete explanation and information available to him he might have agreed to yet a further adjournment - The court stated that "[t]o the extent that a reasonable length of time to retain and instruct counsel may depend on the particular personal circumstances of an individual, that individual is responsible for communicating them to the decision-maker" - See paragraphs 4 to 22.

Civil Rights - Topic 645

Liberty - Limitations on - Homosexuals - [See Civil Rights - Topic 1128 ].

Civil Rights - Topic 681

Liberty - Principles of fundamental justice - The Federal Court of Canada, Trial Division, discussed the concept "principles of fundamental justice" - The court referred to the broad definition contained in Reference Re Section 94(2) of the Motor Vehicle Act (B.C.) (S.C.C.) - The court opined that s. 7 seemed to have been expanded, becoming an omnivorous section eclipsing many other Charter provisions - The court stated that because most of the s. 7 arguments in the case before it were repeated for the purposes of s. 15, it preferred "to deal with them within the latter" - See paragraphs 39 to 51.

Civil Rights - Topic 721

Liberty - Charter of Rights and Freedoms - Section 159 of the Criminal Code established a different (higher) age of consent for anal intercourse than for other forms of sexual activity - The Federal Court of Canada, Trial Division, held that s. 159 engaged the "liberty or security of the person" because it could result in a ten year jail sentence - See paragraphs 34 to 38.

Civil Rights - Topic 953

Discrimination - Sexual orientation - Homosexuals - [See Civil Rights - Topic 1128 ].

Civil Rights - Topic 1128

Discrimination - Criminal and quasi-criminal law - On basis of age - The Federal Court of Canada, Trial Division, held that s. 159 of the Criminal Code was unconstitutional - Section 159 established a different (higher) age of consent for anal intercourse than for other forms of sexual activity - Thus it infringed s. 15 of the Charter on the ground of age - The Minister of Employment and Immigration submitted that the purposes of the section were to (1) reinforce moral precepts; (2) to inhibit homosexual youth from acknowledging their sexual orientation at an early age and (3) to protect young people from the increased risk of HIV transmission - The court held that the section could not be upheld under s. 1 - See paragraphs 28 to 73.

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice (Charter, s. 7) - [See Civil Rights - Topic 681 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 1128 ].

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - What constitutes a breach of s. 15 - [See Civil Rights - Topic 1128 ].

Criminal Law - Topic 704

Sexual offences - Anal intercourse - [See Civil Rights - Topic 1128 ].

Cases Noticed:

Espinoza v. Minister of Employment and Immigration (1992), 142 N.R. 158 (F.C.A.), refd to. [para. 20].

Jolly v. Minister of Manpower and Immigration, [1975] F.C. 216; 7 N.R. 271 (F.C.A.), refd to. [para. 27, footnote 2].

Canada (Attorney General) v. Jolly - see Jolly v. Minister of Manpower and Immigration.

Ramirez v. Minister of Employment and Immigration, [1992] 2 F.C. 306; 135 N.R. 390 (F.C.A.), refd to. [para. 27, footnote 2].

Chiarelli v. Minister of Employment and Immigration, [1990] 2 F.C. 299; 107 N.R. 107 (F.C.A.), revd., [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 30, footnote 4].

Hoang v. Minister of Employment and Immigration (1990), 120 N.R. 193; 13 Imm. L.R.(2d) 35 (F.C.A.), refd to. [para. 30].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1; 17 D.L.R.(4th) 422; 14 C.R.R. 13; 12 Admin. L.R. 137, refd to. [para. 31].

Grewal v. Minister of Employment and Immigration (1991), 135 N.R. 310; 85 D.L.R.(4th) 166 (F.C.A.), refd to. [para. 31].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161; [1985] 3 W.W.R. 481; 18 C.C.C.(3d) 385; 18 D.L.R.(4th) 321; 37 Alta. L.R.(2d) 97; 85 C.L.L.C. 14,023; 13 C.R.R. 64, refd to. [paras. 33, 58, 62].

R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1; 44 D.L.R.(4th) 385; 31 C.R.R. 1; 37 C.C.C.(3d) 449; 62 C.R.(3d) 1, refd to. [para. 37 et seq.].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1, refd to. [para. 37 et seq.].

Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; 109 N.R. 81; 68 Man.R.(2d) 1; 56 C.C.C.(3d) 65; 77 C.R.(3d) 1; [1990] 4 W.W.R. 481, refd to. [para. 37].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266; 48 C.R.(3d) 289; 23 C.C.C.(3d) 289; [1986] 1 W.W.R. 481, refd to. [para. 39 et seq.].

Duke v. R., [1972] S.C.R. 917, refd to. [para. 39].

R. v. Vaillancourt, [1987] 2 S.C.R. 636; 81 N.R. 115; 10 Q.A.C. 161; 68 Nfld. & P.E.I.R. 281; 209 A.P.R. 281; 39 C.C.C.(3d) 118; 60 C.R.(3d) 289, refd to. [para. 50, footnote 11].

R. v. Martineau, [1990] 2 S.C.R. 633; 112 N.R. 83; 109 A.R. 321; 58 C.C.C.(3d) 353; [1990] 6 W.W.R. 97; 79 C.R.(3d) 129; 76 Alta. L.R.(2d) 1; 50 C.R.R. 110, refd to. [para. 50, footnote 11].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81; 66 C.C.C.(3d) 321; 7 C.R.(4th) 117, refd to. [para. 50, footnote 13].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255; [1989] 2 W.W.R. 289; 56 D.L.R.(4th) 1; 34 B.C.L.R.(2d) 273; 36 C.R.R. 193; 25 C.C.E.L. 255, refd to. [para. 56, footnote 15].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321; 19 C.R.R. 308, refd to. [para. 57, footnote 16].

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239; 30 C.C.C.(3d) 385; 55 C.R.(3d) 193; 35 D.L.R.(4th) 1; 28 C.R.R. 1, refd to. [para. 57, footnote 16].

Edwards Books and Art Ltd. v. R. - see R. v. Videoflicks Ltd. et al.

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks Ltd. et al.

Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; 129 N.R. 81, refd to. [paras. 74, 79].

Kindler v. Minister of Employment and Immigration, [1987] 3 F.C. 34; 80 N.R. 388 (F.C.A.), refd to. [paras. 74, 79].

Kindler v. MacDonald - see Kindler v. Minister of Employment and Immigration.

Moore v. Canada (Minister of Manpower and Immigration), [1968] S.C.R. 839, refd to. [para. 75].

Shepherd v. Minister of Employment and Immigration (1989), 52 C.C.C.(3d) 388 (Ont. H.C.), affd. (1989), 52 C.C.C.(3d) 386 (C.A.), refd to. [para. 79].

Statutes Noticed:

Canadian Bill of Rights, R.S.C. 1985, Appendix III, sect. 2(e) [para. 39].

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 56]; sect. 7 [para. 34 et seq.]; sect. 15 [para. 52 et seq.].

Criminal Code, R.S.C. 1985, c. C-46, sect. 153 [para. 2]; sect. 159 [para. 2 et seq.]; sect. 159(1), sect. 159(2), sect. 159(3)(a) [para. 24]; sect. 253 [para. 72, footnote 39].

Criminal Law Amendment Act, S.C. 1985, c. 19, sect. 42 [para. 72, footnote 39].

Federal Court Act, R.S.C. 1985, c. F-7, sect. 18.1(4)(c) [para. 29, footnote 3].

Federal Court Immigration Rules - see Immigration Act Regulations (Can.).

Immigration Act, R.S.C. 1985, c. I-2, sect. 19 [para. 27]; sect. 19(1)(c.1)(i) [para. 7, footnote 1]; sect. 83(1) [para. 81].

Immigration Act Regulations (Can.), Federal Court Immigration Rules, generally [para. 20].

Authors and Works Noticed:

Badgley Report - see Canada, Committee on Sexual Offences Against Children and Youths, Sexual Offences Against Children.

Brown, D.S., The Genesis of the Criminal Code of 1892 (1989), generally [para. 60, footnote 20].

Canada, Committee on Sexual Offences Against Children and Youths, Sexual Offences Against Children (R.F. Badgley, Chair) (1984), generally [paras. 65, 72, footnotes 26, 40].

Canada, House of Commons Debates, 1st Sess., 28th Parliament, Second Reading of Bill C-150 (January 23, 24, 27 and February 11, 13 and 25, 1969), pp. 4723 [para. 60, footnotes 21, 23]; 4746, 4747, 4759, 4777 to 4792, 4861 to 4866, 5376 to 5391, 5410 to 5414, 5467 to 5508, 5916, 5944 to 5952 [para. 60, footnote 21].

Canada, House of Commons Debates, 1st Sess., 28th Parliament, Third Reading of Bill C-150 (April 16, 17, 18, 21 and May 12 and 13, 1969), pp. 7605 to 7619, 7630 to 7648, 7658 to 7675, 7690 to 7708, 7750 to 7773, 8606 to 8610, 8669 [para. 60, footnote 21].

Canada, House of Commons Debates, 2nd Sess., 33rd Parliament (November 4, 1986), pp. 1046 [para. 66, footnote 27]; 1063 [para. 66, footnote 28]; 1067 [para. 66, footnote 29].

Canada, House of Commons Debates, 2nd Sess., 33rd Parliament (June 23, 1987), p. 7504 [para. 71, footnote 37].

Canada, House of Commons, Minutes of the Proceedings and Evidence of the Legislative Committee on Bill C-15, An Act to Amend the Criminal Code and the Canada Evidence Act (December 11, 1986), pp. 3:17 [paras. 67, 68, footnotes 30, 31]; 3:36 to 3:37 [para. 68, footnote 32]; (December 12, 1986), p. 5:9 [para. 69, footnote 33]; (January 20, 1987), p. 7:77 [para. 69, footnote 34]; (February 2, 1987), p. 9:54 [para. 70, footnote 35]; p. 9:55 [para. 70, footnote 36]; (February 17, 1987), (March 17, 1987), p. 10:25 [para. 71, footnote 38].

Canada, House of Commons, Minutes of the Proceedings and Evidence of the Legislative Committee on Bill C-150 (March 4, 1969), p. 171 [para. 60, footnote 21].

Canada, Special Committee on Pornography and Prostitution, Pornography and Prostitution in Canada (P. Fraser, Chair) (1985), generally [paras. 65, 72, footnotes 25, 40].

de Smith, S.A., Judicial Review of Administrative Action (4th Ed. 1980), p. 157 [para. 39].

Fraser Report - see Canada, Special Committee on Pornography and Prostitution, Pornography and Prostitution in Canada.

Goodich, M., Sodomy in Medieval Secular Law (1976), 1 J. Homosexuality 295, generally [para. 60, footnote 19].

Hogg, Peter W., Constitutional Law of Canada (3rd Ed. 1992), pp. 1165, 1166 [para. 56, footnote 15].

Parker, G., The Origins of the Criminal Code, in Essays in the History of Canadian Law (D.H. Flaherty, Ed.) (1981), vol. 1, generally [para. 60, footnote 20].

United Kingdom, Report of the Committee on Homosexual Offences and Prostitution (Wolfenden Report) (1968), generally [paras. 60, 61, footnote 22].

Wolfenden Report - see United Kingdom, Report of the Committee on Homosexual Offences and Prostitution (Wolfenden Report).

Counsel:

Paul Slansky, for the applicant;

Donald MacIntosh and Anne Marie Waters, for the respondent.

Solicitors of Record:

Paul Slansky, Toronto, Ontario, for the applicant;

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

This application was heard at Toronto, Ontario, on February 6, 7, 8 and 9, 1995, by Reed, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on February 24, 1995.