[2000] 3 F.C. 253
IMM-2372-98
Parminder Singh Saini (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Saini v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Dubé J.—Toronto, February 8; Ottawa, February 17, 2000.
Citizenship and Immigration — Exclusion and removal — Inadmissible persons — Judicial review seeking declaration 1995 deportation order should not be executed — Applicant convicted in Pakistan of hijacking plane — Original death sentence commuted to life imprisonment — Later, applicant granted parole, ordered to leave Pakistan — President of Pakistan exercising powers under Art. 45 of Constitution of Islamic Republic of Pakistan, granting pardon in 1998 “on conviction/term of imprisonment already undergone” — Valid pardon in another country with similar justice system cannot be ignored — According to experts, President’s pardon means remission of all legal consequences of conviction — Pakistani judicial system somewhat similar to ours — Grave assault on Canadian sense of justice if Canadian immigration department deeming person convicted of offence if deemed not convicted in jurisdiction where offence allegedly committed — Applicant not exempted from deportation on other grounds — Questions certified: (1) absent evidence as to motivating considerations leading to grant of pardon by another jurisdiction, is Canadian court bound by pardon; (2) does pardon “on conviction/term of imprisonment already undergone” erase conviction and consequences; (3) does nature of offence of hijacking provide solid rationale to depart from principle pardon granted by another jurisdiction whose laws based on similar foundation as Canadian laws, recognized in Canada?
This was an application for judicial review seeking a declaration that the 1995 deportation order issued against the applicant should not be executed. The applicant is a citizen of India who was convicted in Pakistan of hijacking an airliner. He was originally sentenced to death, but his sentence was commuted to life imprisonment. He was granted parole in 1994 and ordered to leave Pakistan. In 1998 the President of Pakistan, exercising his powers under Article 45 of the Constitution of Islamic Republic of Pakistan, granted the applicant pardon “on conviction/term of imprisonment already undergone”.
Held, the application should be allowed.
According to Canadian case law, a pardon cleanses the individual of any stain that a conviction has caused. A valid pardon given in another country with a similar justice system cannot be ignored in Canada, and more specifically, by an immigration officer. The Minister’s expert’s opinion, that the pardon could not be treated as an acquittal and therefore the applicant’s conviction would remain, was based on a British decision which was not binding on Pakistan as the Pakistani Constitution was promulgated long before that decision. According to the opinion of the other two experts, the pardon meant remission of all legal consequences of the conviction. The Pakistani judicial system is somewhat similar to the Canadian judicial system and it would constitute “a grave assault on the Canadian sense of justice” if the Canadian immigration department were to deem a person convicted of an offence when that person is deemed not to be convicted of the same offence in the jurisdiction where the offence was allegedly committed. While hijacking a plane is a serious offence, the applicant had been cleansed of that conviction and he should not be deported on that ground. He is not, however, exempted from deportation on other grounds.
The following questions were certified: (1) in the absence of evidence as to the motivating considerations which led to the grant of a pardon by another jurisdiction, is a Canadian court bound by the pardon; (2) does a pardon “on conviction/term of imprisonment already undergone” erase the conviction and consequences; and (3) does the nature of the offence of hijacking provide a solid rationale to depart from the principle that a pardon granted by another jurisdiction, whose laws are based on a similar foundation as Canadian laws, should be recognized in Canada?
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Constitution of Islamic Republic of Pakistan, Art. 45.
Criminal Records Act, R.S.C., 1985, c. C-47.
Immigration Act, R.S.C., 1985, c. I-2, s. 19(1)(c.1)(i) (as am. by S.C. 1992, c. 49, s. 11).
Rehabilitation of Offenders Act 1974 (U.K.), 1974, c. 53.
CASES JUDICIALLY CONSIDERED
APPLIED:
Canada (Minister of Employment and Immigration) v. Burgon, [1991] 3 F.C. 44 (1991), 78 D.L.R. (4th) 103; 13 Imm. L.R. (2d) 102; 122 N.R. 228 (C.A.); Smith v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 144(T.D.); Lui v. Canada (Minister of Citizenship and Immigration) (1997), 134 F.T.R. 308; 39 Imm. L.R. (2d) 60 (F.C.T.D.); Barnett v. Canada (Minister of Citizenship and Immigration) (1996), 109 F.T.R. 154; 33 Imm. L.R. (2d) 1 (F.C.T.D.).
CONSIDERED:
R. v. Foster, [1984] 2 All ER 679 (C.A.); R. v. Cosgrove, [1949] Tas. S.R. 99; R. v. Secretary of State for the Home Dept., ex p. Bentley, [1993] 4 All ER 442 (Q.B.D.).
AUTHORS CITED
Halsbury’s Laws of England, vol. 8(2), 4th ed. (Reissue). London: Butterworths, 1996.
APPLICATION for judicial review seeking a declaration that the 1995 deportation order issued against the applicant should not be executed on the ground that the applicant was granted a pardon by the President of Pakistan in 1998. Application allowed.
COUNSEL:
Barbara L. Jackman for applicant.
David W. Tyndale for respondent.
SOLICITORS OF RECORD:
Jackman, Waldman & Associates, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
[1] Dubé J.: This application for judicial review seeks a declaration that the deportation order issued against the applicant on October 27, 1995, should not be executed on the ground that the applicant was granted a pardon by the President of Pakistan in 1998.
1. Facts
[2] The applicant is a citizen of India who was convicted in Pakistan of hijacking an airliner travelling from India to Pakistan. He was originally sentenced to death but his sentence was commuted to life imprisonment. He was granted parole in 1994 and ordered to leave Pakistan. In 1998, he was granted a pardon by the President of Pakistan.
2. The Pardon of the President
[3] The pardon in question reads as follows:
SUBJECT+ PARDON ON CONVICTION OF PARMINDER SINGH SAINI S/O ARJAN SINGH SAINI.
I am directed to refer to your appeal addressed to the President of Pakistan, requesting therein to grant pardon on the conviction/term of imprisonment already undergone by Mr. Parminder Singh Saini, awarded by Special Court at Lahore, on the charges of hijacking an Indian Airline’s plane from Srinagar to Pakistan.
2. The matter was considered by the Government of Pakistan and the President of Pakistan, in exercise of the powers vested in him under Article 45 of the Constitution of the Islamic Republic of Pakistan has been pleased to grant pardon on conviction/term of imprisonment already undergone by Parminder Singh Saini, S/O Arjan Singh Saini, awarded by the Special Court at Lahore, on the charges of hijacking of an Indian Airline’s plane from Srinagar to Pakistan.
Yours truly,
(Muhammad Zafeer Abbasi)
Deputy Secretary
3. Expert Opinions
[4] Three experts filed an opinion on the effect of the pardon. The first opinion obtained by the applicant is from Khwaja Law Associates. It consists of only one paragraph which reads as follows:
The President of Pakistan has granted Pardon on conviction to Mr. Parminder Singh Saini which means remission of all legal consequences of his conviction.
[5] A more substantial opinion in support of the applicant’s position was provided by S. M. Zafar, Senior Advocate, Supreme Court of Pakistan. Mr. Zafar states that the father of the applicant appealed from India to the President of Pakistan invoking his prerogative powers under Article 45 of the Constitution of Islamic Republic of Pakistan. On due consideration of the plea of pardon, the President of Pakistan granted “pardon on conviction/term of imprisonment already undergone”.
[6] Mr. Zafar also notes that the pardon “has come after Parminder Singh Saini had served his sentence and had been released from the prison”. The pardon of April 17, 1998, “indicates that the President of Pakistan proceeded to exercise his power under Article 45 to release Parminder Singh Saini “not from the prison but from the guilt”. Article 45 reads as follows:
45. The President shall have power to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any court, tribunal or other authority.
[7] Mr. Zafar goes on to state that the pardon “operates to remove the penalties as well as disability attached to a conviction. Pardon nullifies the same for all purposes”. According to learned jurists of his country “unconditional pardon wipes out the offence and rescinds the sentence as well as the conviction”. He concludes that “the pardon granted to the prisoner is full, absolute and unconditional in nature, therefore, it mitigates the guilt and absolves the prisoner from the penal consequences and is therefore entitled to restoration of his civil rights”.
[8] The Minister’s expert, Munawar Akhtar, Advocate Supreme Court of Pakistan, is not of the same view. Although he agrees with Mr. Zafar that the power of pardon, as interpreted by the courts in Pakistan, is in the nature of prerogative of the Sovereign and this jurisdiction is traceable to the exercise of such power by the Crown in Britain, he does not concur with his colleague’s conclusion. With reference to the English view point on this issue, he quotes Halsbury’s Laws of England, Vol. 8(2), 4th ed. (Reissue), paragraph 826:
Pardons may be free, conditional or in the form of a remission or partial remission of sentence. The effect of a free pardon is to clear the person from all consequences of the offence for which it is granted, and from all statutory or other disqualifications following upon conviction, but not to remove the conviction. [Emphasis added by the expert.]
[9] Mr. Akhtar then refers to the case of R. v. Foster[1] wherein the English Court of Appeal dealt with the effect of a pardon and of a judgment of the Supreme Court of Tasmania entitled R. v. Cosgrove[2] wherein it was held that a pardon granted was not the equivalent of an acquittal. The following relevant excerpt was reproduced:
… the effect of such pardon by the King, is to make the offender a new man; to acquit him of all corporal penalties and forfeitures annexed to that offence for which he obtains his pardon; and not so much to restore his former, as to give him a new, credit and capacity . … Accordingly, a pardon is in no sense equivalent to an acquittal.
[10] Mr. Akhtar goes on to say that “the English Court of Appeal agreed with the proposition that the Crown no longer has a prerogative of justice but only a prerogative of mercy: it cannot remove a conviction but only pardon its effects. The only body which can quash a conviction is the Court of Appeal, Criminal Division, and not the Crown”. In a subsequent case of the English High Court, reported as R. v. Secretary of State for the Home Dept., ex p. Bentley ,[3] the above-mentioned judgment of the English Court of Appeal was considered and the strength of the argument that a free pardon does not eliminate the conviction was acknowledged.
[11] Mr. Akhtar briefly reviewed the American jurisprudence in the matter and concluded that “the general trend of the U.S. courts appears to be that the power to pardon given to the President by the U.S. Constitution does not include power to wipe out guilt”. Mr. Akhtar concluded as follows:
It is accepted by the courts in Pakistan that the power to grant pardon is equivalent to the prerogative of the Crown as in England and is an act of grace. It is an executive function and is exercised by way of mercy. As stated earlier, there is no reported decision of the Pakistan courts on the issue involved. The courts in Pakistan would in our view follow the judgment of the Court of Appeal in R. v. Foster which is also quoted in Vol. 8(2) of Halsbury’s Laws of England. The effect of pardon granted to the convicted person is that while the unconditional pardon clears him of all the consequences of the offence of hijacking but pardon is not to be treated as an acquittal and therefore his conviction for the offence remains. As to what effect this will have in Canada may be seen in light of the applicable laws of Canada. [My emphasis.]
4. The Applicant’s Submission
[12] The applicant submits that the 1984 British decision in Foster, which forms the basis of Mr. Akhtar’s opinion, is not binding on Pakistan as it dates long after the Pakistani Constitution was promulgated. Article 45 of that Constitution stipulates clearly that the President has the power to grant pardon, reprieve and respite and to remit, suspend or commute any sentence passed by any court.
[13] As to the Canadian jurisprudence in the matter, the Federal Court of Appeal in Canada (Minister of Employment and Immigration) v. Burgon[4] held that once a pardon was granted in the United Kingdom or in any other country with a similar legal system to that of Canada, the effect of the pardon would be to eliminate the restrictions against admissibility to Canada. Linden J.A. wrote as follows, at pages 62-63:
Unless there is some valid basis for deciding otherwise, therefore, the legislation of countries similar to ours, especially when their aims are identical, ought to be accorded respect. While I certainly agree with Justice Bora Laskin that the law of another country cannot be “controlling in relation to an inquiry about criminal convictions to determine whether immigration to Canada should be permitted”, (See Minister of Manpower and Immigration v. Brooks, [1974] S.C.R. 850, at page 863) we should recognize the laws of other countries which are based on similar foundations to ours, unless there is a solid rationale for departing therefrom. In the words of the Appeal Division:
It would constitute a grave assault on the Canadian sense of justice if either the Canadian immigration department or the Canadian justice system would empower itself to deem a person convicted of an offence when the person is deemed not to be convicted of the same offence in the jurisdiction where the offence was allegedly committed.
While this Court is not required to go so far as to “attorn” to the law of all foreign jurisdictions, as argued by the respondent’s counsel, it is appropriate to do so in this case, because the laws and the legal system of the other country are similar to ours.
There being no “conviction” in the U.K., therefore, and there being no reason to refuse to grant recognition to the law of the U.K. which is similar to ours, Ms. Burgon was not “convicted” as that term is used in paragraph 19(1)(c) of the Immigration Act and she is not excluded.
[14] In Smith v. Canada (Minister of Citizenship and Immigration),[5] MacKay J. of this Court dealt with an applicant who was held to be inadmissible by an immigration officer because of previous convictions. He was ordered deported. The applicant was granted a pardon under the Criminal Records Act.[6] One of the issues raised was the effect of the pardon on the deportation order and the exclusion order. He concluded that, while the Act cannot be said to erase the conviction in the sense that conviction is deemed not to have existed, nevertheless the pardon issued must be given effect.
[15] One of the authorities on which MacKay J. relied for his decision was the decision of Mr. Justice Rothstein (then of this Court, now with the Court of Appeal) in Lui v. Canada (Minister of Citizenship and Immigration)[7] who said, at page 310, that “Unless there is some valid basis for deciding otherwise, therefore, the legislation of countries similar to ours, especially when their aims are identical, ought to be accorded respect”. The learned Judge interpreted the scope of the Criminal Records Act and assessed whether a similar Hong Kong law at issue in the case would be said to have the same effect and concluded as follows, at page 311:
While a pardon may be revoked if a person is subsequently convicted or for other reasons, it would appear that except for those few Criminal Code exceptions to which I have referred, the pardon, in the words of Linden, J.A., in Burgon, has the effect of cleansing the individual “of any stain that the conviction caused”.
[16] In Barnett v. Canada (Minister of Citizenship and Immigration),[8] Jerome A.C.J. of this Court (as he then was) applied the Burgon decision to the British Rehabilitation of Offenders Act 1974 [(U.K.), 1974, c. 53] with the result that the applicant Barnett was held not to be excluded under subparagraph 19(1)(c.1)(i) of the Immigration Act [R.S.C., 1985, c. I-2 (as am. by S.C. 1992, c. 49, s. 11)]. He said as follows, at page 158:
I cannot accept that argument. It is clear from the decision in Burgon that where another country, whose legal system is based on similar foundations and values as our own, has enacted legislation which reflects goals and objectives analogous to those encompassed within our own justice system, then that law should be accorded respect and recognized for the purposes of Canadian immigration law. The question is not whether Canada has identical legislation in place, but whether the underlying rationale of the foreign legislation is consistent with some fundamental principle of justice esteemed within our own society.
5. The Respondent’s Submission
[17] On the other hand, the respondent submits that this applicant’s case involves a conviction for hijacking in Pakistan and a pardon issued by the Government of Pakistan pursuant to Article 45 of the Constitution of that country. This is therefore clearly not a case of a pardon under the Canadian Criminal Records Act. There is no explicit statement in the Pakistani legislation to rely upon by the applicant (as there was in Burgon and Smith) to suggest that the pardon in Pakistan is intended to have effects beyond the particular criminal proceedings involved. The absence of this type of express statement in a legislation was also crucial to the reasoning of the Court in Lui.
[18] The process involved in granting a pardon to the applicant in this case involved the reliance on information that has not been disclosed to the applicant. No evidence has been adduced to this Court to show why the pardon was granted. Was it merely for the purpose of assisting the applicant faced with deportation? The laws of another country cannot control an inquiry made by a Canadian immigration officer about criminal convictions for the purpose of deciding whether immigration to Canada should be permitted in a case. In the Burgon decision, Mr. Justice Mahoney rendered a dissenting judgment and said as follows (at page 50):
Yet Parliament has made clear that it is the Canadian, not the foreign, standard of the seriousness of crimes, as measured in terms of potential length of sentence, that governs admissibility to Canada. The policy basis for exclusion under paragraph 19(1)(c) must surely be the perceived gravity, from a Canadian point of view, of the offence the person has been found to have committed and not the actual consequence of that finding as determined under foreign domestic law.
[19] This is specially so in the instant case where the applicant has been convicted of the very serious act of hijacking an airplane, an act of international terrorism, and, again, it is impossible to know what factors or reasons led to the decision of the President of Pakistan to grant him a pardon.
[20] As to the legal opinion of Mr. Zafar in support of the applicant’s case, it is worthy of note that Mr. Zafar is the applicant’s counsel who represented him at his hijacking trial in Pakistan. In contrast, Mr. Akhtar, the Minister’s expert, was not involved in the matter and his impartial opinion is to be treated with more deference.
6. Analysis
[21] In my view, the Canadian jurisprudence as expressed in Burgon, Smith, Lui and Barnett is to the effect that a pardon does clean the individual of any stain that a conviction has caused. A valid pardon given in another country with a similar justice system cannot be ignored in our country and, more specifically in this case, by an immigration officer. The validity of the pardon of the President of Pakistan is not at issue. According to Mr. Akhtar, the Minister’s expert, the President’s pardon cannot be treated as an acquittal and, therefore, the applicant’s conviction for the offence would remain. However, Mr. Akhtar’s opinion is largely based on the British decision in Foster which is not binding on Pakistan as the Pakistani Constitution was promulgated long before the Foster decision and not bound by it.
[22] According to the opinions of the other two experts, the President’s pardon “means remission of all legal consequences of his conviction” (the opinion of Khwaja Law Associates). According to Mr. Zafar, the President’s power to grant pardon emanates from Article 45 of the Constitution and it removes the penalties as well as the disability attached to a conviction: it is full, absolute and unconditional in nature. It is a prerogative of the President of that country to grant pardon. The Pakistani judicial system is somewhat similar to ours and as Linden J.A. said in Burgon it would constitute “a grave assault on the Canadian sense of justice” if the Canadian immigration department would deem a person convicted of an offence when the person is deemed not to be convicted of the same offence in the jurisdiction where the offence was allegedly committed.
[23] While I appreciate that hijacking a plane is a serious offence, the applicant has been cleansed of that conviction and he should not be deported on that ground. Of course, if he has committed other crimes in India or Pakistan for which he has not been pardoned or if he has committed crimes in Canada since his arrival here, then, he would have to face the consequences. And, obviously, he is not exempted from deportation on other grounds.
[24] It follows that the application for judicial review is granted and the deportation order is not to be executed.
[25] Counsel for the applicant has submitted three questions of general importance to be certified. Counsel for the respondent is content with the wording of the questions. I also agree. The three questions are as follows:
1. In the absence of evidence as to the motivating considerations which led to the grant of a pardon by another state jurisdiction, is a Canadian Court bound by the pardon?
2. Where a pardon is “on conviction/term of imprisonment already undergone”, is this considered to be a pardon which erases the conviction and consequences?
3. Does the nature of the offence of hijacking provide a solid rationale to depart from the principle that a pardon granted by another jurisdiction, whose laws are based on a similar foundation as in Canada, be recognized in Canada?