A-962-87
Charles Chadwick Steward (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: STEWARD V. CANADA (MINISTER OF EMPLOY
MENT AND IMMIGRATION)
Court of Appeal, Heald, Marceau and Lacombe
JJ.—Vancouver, April 11 and 15, 1988.
Immigration — Deportation — Application to review —
Applicant convicted of arson in Oklahoma — Deportation
ordered, as equivalent crime in Canada under Criminal Code s.
389(1) carries 10-year maximum sentence — Equivalency of
foreign law and s. 389(1), Criminal Code not established —
Oklahoma statute encompassed negligence, which would come
under Criminal Code s. 392 punishable by 5-year maximum
imprisonment — Application allowed.
This is a section 28 application to review and set aside a
deportation order. A subsection 27(2) report alleged that the
applicant was a member of an inadmissible class under para
graph 19(1)(c) of the Immigration Act, 1976, having been
convicted of an offence for which, if committed in Canada, a
maximum term of 10 years imprisonment may be imposed. The
applicant admitted to having been convicted of First Degree
Arson in Oklahoma. The Adjudicator determined that a provi
sion in an extract from the Oklahoma Statutes annotated, was
equivalent to subsection 389(1) of the Criminal Code.
Held, the application should be allowed.
The Adjudicator erred in finding that the applicant had
admitted to setting the fire. He also erred in not reading "and"
as "or" in subsection 386(2), whereby no offence is committed
under Code section 389 if a person proves that he acted with
legal justification or excuse and with colour of right. In addi
tion, the provision in the Oklahoma statute is wider in scope
than subsection 389(1) of the Criminal Code, as it encompasses
the burning of property through negligence or inadvertence,
which is covered by section 392 of the Criminal Code, for
which the maximum penalty is 5 years. On the meagre facts
established by the record, it was impossible to determine wheth
er the applicable section would be subsection 389(1) or section
392. Equivalency had not been established on the record, the
wording of the statutes did not reveal common essential
ingredients, nor had expert evidence been called to establish
equivalency.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Criminal Code, R.S.C. 1970, c. C-34, ss. 386(2),
389(1)(a), 392.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 19(1)(c),
27(2).
CASES JUDICIALLY CONSIDERED
APPLIED:
Regina v. Creaghan (1982), 1 C.C.C. (3d) 449 (Ont.
C.A.); Brannon v. Minister of Employment and Immi
gration, [1981] 2 F.C. 141; (1981), 34 N.R. 441 (C.A.);
Hill v. Minister of Employment and Immigration
(1987), 73 N.R. 315 (F.C.A.).
COUNSEL:
R. Glen Sherman for applicant
P. M. Willcock for respondent.
SOLICITORS:
John Taylor Associates, Vancouver, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered orally in English by
HEALD J.: This is a section 28 [Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10] application
to review and set aside a deportation order made
against the applicant on October 7, 1987, by
Adjudicator W. Osborne.
The applicant, who was born in the United
States of America, came to Canada on April 4,
1972. On April 21, 1971, he had been convicted
under the laws of Oklahoma, after trial, of the
crime of First Degree Arson. On October 4, 1978,
the applicant was made the subject of a subsection
27(2) report under the Immigration Act, 1976
[S.C. 1976-77, c. 52]. The report alleged that the
applicant was a person described in paragraph
27(2)(a) of the Immigration Act, 1976, in that if
he were applying for entry, he would not or might
not be granted entry by reason of being a member
of an inadmissible class, namely, the class
described in paragraph 19(1)(c) of the Act. That
paragraph reads:
19. (1) ...
(c) persons who have been convicted of an offence that, if
committed in Canada, constitutes or, if committed outside
Canada, would constitute an offence that may be punishable
under any Act of Parliament and for which a maximum term
of imprisonment of ten years or more may be imposed,
except persons who have satisfied the Governor in Council
that they have rehabilitated themselves and that at least five
years have elapsed since the termination of the sentence
imposed for the offence;
At the inquiry, the Case Presenting Officer
(C.P.O.) produced a certified copy of a Judgment
and Sentence upon Conviction under Oklahoma
criminal law of first degree arson against the
applicant. When giving evidence at the inquiry, the
applicant admitted the conviction and that he was
ordered to pay a fine of $2,500 as well as being
committed to the custody of the Department of
Corrections for a term of six months. It appears
that the applicant did not serve the six months'
sentence. The record does not provide any reason
for this circumstance. The only reference to the
factual situation surrounding the conviction on this
record is the following question and answer on
page 13 of the Case:
Q. And what was it that they said you were guilty of
committing arson to?
A. They alleged that I had set fire to a portion of the inside
of my apartment building, or my apartment that I lived
in.
To establish the equivalency required under
paragraph 19(1)(c), supra, the C.P.O., after prov
ing the conviction, then tendered as evidence of the
law of Oklahoma a two-page extract from the
Oklahoma Statutes, annotated, referring particu
larly to section 1401 thereof which provides:
Any person who willfully and maliciously sets fire to or burns
or by the use of any explosive device or substance, destroys in
whole or in part, or causes to be burned or destroyed, or aids,
counsels, or procures the burning or destruction of any building
or structure or contents thereof, inhabited or occupied by one
or more persons, whether the property of himself or another,
shall be guilty of arson in the first degree ....
Counsel for the applicant vigorously objected to
the tendering of this extract as evidence of
Oklahoma law. He asked to be given the opportu
nity to examine the C.P.O. on this evidence. His
request was granted. That cross-examination reads
as follows (Case, pages 18 and 19):
Counsel Mr. Greaves, the book you've showed the Adjudica
tor, what is that book?
CPO Well, I believe it to be a book of the statutes of the
State of Oklahoma, United States of America.
Q. On what do you base that belief?
A. By looking at it.
Q. Have you ever studied the laws of Oklahoma?
A. I have not.
Q. Do you know if that is an official report of the law of
Oklahoma?
A. I do not.
Q. How did the Commission obtain that book?
A. I requested through West Publishing in the United
States, the company that publishes statutes from
different states in the United States. I requested
statutes of foreign states.
Q. The excerpt that you have included is two pages, 426
and 427.
A. Yes.
Q. To your knowledge is that the all-inclusive section of
laws which deal with arson in Oklahoma?
A. It is not.
Q. There are other sections?
A. Yes. There is one other that I know of for sure is
arson in the second degree.
Q. Is there any statutory sections dealing with
defences?
A. I'm not sure.
Q. Is there sections in the Oklahoma statute dealing
with definitions as to what is done wilfully or
maliciously?
A. I don't know.
Q. Do you know if there is common law defences to the
charge listed?
A. I don't know.
Q. Do you know whether or not this charge would
include negligence, that Section 1401, negligently
causing a fire?
A. No, it's wilful and maliciously, according to the
wording of this statute.
Q. Do you know as a fact whether or not it includes
negligently causing?
A. I don't.
Thereafter, the Adjudicator accepted the said two-
page extract into evidence. He then proceeded to
consider the question as to whether a conviction of
first degree arson in Oklahoma, if committed in
Canada, would constitute an offence under para
graph 389(1)(a) of the Criminal Code [R.S.C.
1970, c. C-34] of Canada. Paragraph 389(1)(a)
reads:
389. (1) Every one who wilfully sets fire to
(a) a building or structure, whether completed or not,
is guilty of an indictable offence and is liable to imprisonment
for fourteen years.
He proceeded to answer that question affirmative
ly and as a result, decided that the applicant was a
member of the inadmissible class described in
paragraph 19(1)(c) of the Immigration Act, 1976.
With respect, I have reached the conclusion that
the Adjudicator erred in law in so deciding. Sub
section 386(2) of the Criminal Code provides:
386....
(2) No person shall be convicted of an offence under sections
387 to 402 where he proves that he acted with legal justifica
tion or excuse and with color of right.
In considering the relevance of subsection
386(2), the Adjudicator stated at page 28 of the
Case:
So, in order not to be convicted under 389(1) of the Criminal
Code, the defendant has both elements of legal justification or
excuse and color of right to overcome.
Then, also on the same page, he said:
It seems self-evident that a conviction of willfully [sic] and
maliciously setting a fire would negate any thrust that you had
legal justification or excuse. Therefore, regardless of any asser
tion of color of right, you could not prove the exception in
subsection 386(2) of the Criminal Code. Notwithstanding that,
I consider that your oral testimony that you set fire to a portion
of the apartment you were living in, that it was a one-bedroom
suite, over a two-car garage behind the house, would lead one
to a reasonable conclusion, that you did not have color of right.
Myself, I would be living in the house and renting the apart
ment, not the other way around.
In my view, there are a number of errors and
inaccuracies in the portions quoted supra from the
reasons of the Adjudicator. The applicant did not
state in his evidence that he set fire to a portion of
the apartment he was living in. As noted supra, he
said (page 13 Case) that it was alleged that he had
set fire to a portion of the apartment he was living
in. The Adjudicator was also in error when, in
interpreting subsection 386(2), he concluded that
the applicant had to overcome both elements speci
fied therein, namely legal justification or excuse
and colour of right.
This conclusion of law is contrary to the relevant
jurisprudence. The Ontario Court of Appeal decid
ed in Regina v. Creaghan (1982), 1 C.C.C. (3d)
449, that the word "and" in subsection (2) of
section 386 should be read as "or". Thus it is
sufficient if an accused establishes that he acted
either with legal justification or excuse or with a
colour of right. This does not complete, however,
the problems that I have with the Adjudicator's
finding of equivalency on the record before him.
As observed by counsel for the applicant, the
Oklahoma section 1401 is wider in scope than
subsection 389(1) of the Criminal Code. It encom
passes, in addition to malicious and intentional
burning of property, the burning of property
through negligence or inadvertence, while subsec
tion 389(1) is confined to intentional and wilful
arson. Section 392 of the Criminal Code deals
with negligent acts of arson whereby the accused
intentionally sets a fire which happens, inter alia,
to destroy property. Under subsection 389(1), as
noted supra, the maximum penalty is fourteen
years imprisonment. Under section 392, however,
the maximum penalty is five years imprisonment.
Thus a conviction under section 392 would take
the person concerned out of paragraph 19(1)(c)
altogether. I agree with counsel for the applicant
that on the very meagre facts established by this
record, it is impossible to determine whether the
applicable section would be subsection 389(1) or
section 392. This is a crucial circumstance. With
out further facts, it is impossible to conclude that
equivalency has been established.
In the case of Brannson v. Minister of Employ
ment and Immigration, [1981] 2 F.C. 141, at
pages 152-153; (1981), 34 N.R. 411 (C.A.), at
page 420, this Court articulated the procedure to
be followed when deciding the question of
equivalency:
Whatever the names given the offences or the words used in
defining them, one must determine the essential elements of
each and be satisfied that these essential elements correspond.
One must, of course, expect differences in the wording of
statutory offences in different countries.
For the reasons enunciated supra, it seems clear
to me that the essential elements of the Oklahoma
offence and the Canadian offence are not the
same. The reference to "colour of right" is absent
from the Oklahoma section. The Oklahoma sec
tion is also a much broader section. In the case of
Hill v. Minister of Employment and Immigration
(1987), 73 N.R. 315 (F.C.A.), at page 320, Mr.
Justice Urie of this Court said that equivalency
under paragraph 19(1)(c) can be determined in
three ways:
... first, by a comparison of the precise wording in each statute
both through documents and, if available, through the evidence
of an expert or experts in the foreign law and determining
therefrom the essential ingredients of the respective offences.
Two, by examining the evidence adduced before the adjudica
tor, both oral and documentary, to ascertain whether or not
that evidence was sufficient to establish that the essential
ingredients of the offence in Canada had been proven in the
foreign proceedings, whether precisely described in the initiat
ing documents or in the statutory provisions in the same words
or not. Third, by a combination of one and two.
Employing this approach, it seems abundantly
clear that, on this record, equivalency has not been
established. A comparison of the precise wording
in each statute does not reveal common essential
ingredients. No expert evidence was called. Conse
quently the Adjudicator had absolutely no evi
dence from which he could properly decide that
there was equivalency here. On this basis, the
deportation order cannot stand. Accordingly, I
would allow the section 28 application, set aside
the deportation order, and refer the matter back to
an adjudicator for redetermination on the basis
that, on the evidence presently on the record,
Adjudicator Osborne erred in finding that the
applicant herein was a member of the inadmissible
class described in paragraph 19(1)(c) of the
Immigration Act, 1976.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.