Li v. Canada (Minister of Citizenship and Immigration), (1995) 95 F.T.R. 298 (TD)

• Judge: Cullen, J.
• Court: Federal Court (Canada)
• Case Date: April 07, 1995
• Jurisdiction: Canada (Federal)
• Citations: (1995), 95 F.T.R. 298 (TD)

Li v. Can. (M.C.I.) (1995), 95 F.T.R. 298 (TD)

MLB headnote and full text

Ronald Fook Shiu Li and Lo Hiu Iren Li (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-4210-94)

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

Federal Court of Canada

Trial Division

Cullen, J.

May 11, 1995.

Summary:

Li and his wife, residents of Hong Kong, sought to enter Canada as visitors. The Adjudication Division of the Immigration and Refugee Board held that Li and his wife were criminally inadmissible under s. 19(2)(a.1) of the Immigration Act. The adjudicator refused to exercise his discretion under s. 19(3) to allow Li into the country for one or two days so he could leave. Li and his wife applied for judicial review.

The Federal Court of Canada, Trial Division, dismissed the application. The court certified four questions.

Aliens - Topic 1348.2

Admission - Visitors - Ineligible persons - Criminal conviction - Li applied to be admitted as a visitor - His application was refused under s. 19(2)(a.1) of the Immigration Act because he had been convicted in Hong Kong under s. 9 of the Prevention of Bribery Ordinance - The adjudicator held that the essential elements of s. 9 were equivalent to s. 426(1) of the Criminal Code - The Federal Court of Canada, Trial Division, held that the essential elements of the offences were equivalent - The court held that the availability of defences was not an essential element of the equivalency test - The court held that a reverse onus in s. 9 did not offend the equivalency test - See paragraphs 19 to 30.

Aliens - Topic 1348.2

Admission - Visitors - Ineligible persons - Criminal conviction - Li's admission to Canada as a visitor was refused because he was convicted of a criminal offence in Hong Kong (s. 19(2)(a.1) of the Immigration Act) - The Federal Court of Canada, Trial Division, stated that "[t]here is no obligation placed upon an adjudicator [of the Adjudication Division of the Immigration and Refugee Board] to consider the constitutionality of foreign criminal law. The task before the adjudicator is simply to compare the laws and see if they are equivalent; ... The adjudicator had no obligation to consider the application of the Charter and, hence, no obligation to consider the factual matrix of the offences of which the applicant was convicted." - See paragraphs 26 to 29.

Civil Rights - Topic 8306

Canadian Charter of Rights and Freedoms - Application of - Territorial limits - [See second Aliens - Topic 1348.2 ].

Cases Noticed:

Brannson v. Minister of Employment and Immigration (1980), 34 N.R. 411 (F.C.A.), refd to. [para. 19].

Hill v. Minister of Employment and Immigration (1987), 73 N.R. 315 (F.C.A.), refd to. [para. 19].

Steward v. Minister of Employment and Immigration (No. 1) (1988), 84 N.R. 236 (F.C.A.), dist. [para. 22].

R. v. Kelly, [1992] 2 S.C.R. 170; 137 N.R. 161; 9 B.C.A.C. 161; 19 W.A.C. 161, refd to. [para. 23].

Halm v. Minister of Employment and Immigration (1995), 91 F.T.R. 106 (T.D.), refd to. [para. 26].

Schmidt v. Canada et al., [1987] 1 S.C.R. 500; 76 N.R. 12; 20 O.A.C. 161; 33 C.C.C.(2d) 193, refd to. [para. 27].

Manlangit v. Minister of Employment and Immigration (1987), 78 N.R. 1 (F.C.A.), refd to. [para. 32].

Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.), refd to. [para. 36].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 32 [para. 27].

Criminal Code, R.S.C. 1985, c. C-46, sect. 426(1) [para. 10].

Immigration Act, R.S.C. 1985, c. I-2, sect. 2 [para. 9]; sect. 9 [para. 8]; sect. 19(2)(a.1)(i), sect. 19(3) [para. 18]; sect. 20 [para. 3]; sect. 83(1) [para. 35].

Counsel:

Lorne Waldman, for the applicants;

Chico Korbee, for the respondent.

Solicitors of Record:

Lorne Waldman, Toronto, Ontario, for the applicants;

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

This application was heard in Toronto, Ontario, on April 7, 1995, by Cullen, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on May 11, 1995, in Ottawa, Ontario.