Saliby et al. v. Canada (Minister of Citizenship and Immigration), 2006 FC 906

• Judge: Harrington, J.
• Court: Federal Court (Canada)
• Case Date: July 12, 2006
• Jurisdiction: Canada (Federal)
• Citations: 2006 FC 906;(2006), 300 F.T.R. 22 (FC)

Saliby v. Can. (M.C.I.) (2006), 300 F.T.R. 22 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2006] F.T.R. TBEd. AU.023

Arlette Saliby et Joseph Jreij (partie demanderesse) v. Le Ministre de la Citoyenneté et de l'Immigration (partie défenderesse)

(IMM-48-06; 2006 CF 906; 2006 FC 906)

Indexed As: Saliby et al. v. Canada (Minister of Citizenship and Immigration)

Federal Court

Harrington, J.

July 20, 2006.

Summary:

Jreij was convicted in Lebanon of an offence of resisting security forces. The second secretary of the Canadian Embassy in Damascus informed Jreij's wife, Saliby, that she was inadmissible to Canada under s. 42(a) of the Immigration and Refugee Protection Act because her husband was inadmissible under s. 36(2)(b) of the Act, having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament. No visas were issued to Saliby and Jreij and they applied for judicial review of the second secretary's decision.

The Federal Court allowed the application.

Aliens - Topic 1744.1

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Persons committing acts constituting an offence in Canada - Jreij was convicted in Lebanon of an offence of resisting security forces - The second secretary of the Canadian Embassy in Damascus informed Jreij's wife, Saliby, that she was inadmissible to Canada under s. 42(a) of the Immigration and Refugee Protection Act because her husband was inadmissible under s. 36(2)(b) of the Act, having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence - The second secretary found that the offence of resisting security forces, if committed in Canada, would be punishable under s. 129 of the Criminal Code (resisting public officer or peace officer) and would be an indictable offence - No visas were issued to Saliby and Jreij and they applied for judicial review of the second secretary's decision - The Federal Court allowed the application - The second secretary erred in comparing the crime described in s. 129 of the Criminal Code to the one which Jreij was convicted of in Lebanon - In Lebanon, the offence of resistance to security forces could be active or passive - However, s. 129 of the Criminal Code required that the resistance not be merely passive - In light of the facts, it would be patently unreasonable to find that Jreij engaged in anything other than passive resistance to the security forces.

Cases Noticed:

Association des Crabiers Acadiens et al. v. Canada (Attorney General), [2006] F.T.R. Uned. 122; 2006 FC 222, refd to. [para. 13].

Hill v. Minister of Employment and Immigration (1987), 73 N.R. 315; 1 Imm. L.R.(2d) 1 (F.C.A.), refd to. [para. 17].

R. v. Whatcott (W.G.) (2005), 266 Sask.R. 262; 2005 SKQB 302, refd to. [para. 19].

R. v. Ahooja, [2004] J.Q. No. 4925 (M.C.), refd to. [para. 19].

R. v. Bouchard, [1999] R.J.Q. 2165 (M.C.), refd to. [para. 19].

R. v. Sortini (1978), 42 C.C.C.(2d) 214 (Ont. Prov. Ct.), refd to. [para. 19].

Khwaja v. Canada (Minister of Citizenship and Immigration), 2006 FC 522, refd to. [para. 20].

Isse v. Canada (Minister of Citizenship and Immigration) (1998), 155 F.T.R. 298 (T.D.), refd to. [para. 21].

R. v. Pittoors (M.P.) (2000), 279 A.R. 196; 2000 ABPC 190, refd to. [para. 23].

Counsel:

Annie Kenane, for the applicants;

François Joyal, for the respondent.

Solicitors of Record:

Étude Kenane, Montreal, Quebec, for the applicants;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on July 12, 2006, at Montreal, Quebec, before Harrington, J., of the Federal Court, who delivered the following decision on July 20, 2006.