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Immigration - Inadmissibility (2). Canada (Public Safety and Emergency Preparedness) v. Wahab
In Canada (Public Safety and Emergency Preparedness) v. Wahab (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this from a successful JR of "a decision of the Immigration Division of the Immigration and Refugee Board of Canada (the ID) that found the respondent to be inadmissible to Canada pursuant to paragraph 35(1)(b) of the Immigration and Refugee Protection Act [SS: 'Human or international rights violations'] and section 16 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations), resulting in the issuance of a deportation order".
Here the court considers a 'refoulement' issue, this in light of the recent Mason and Weldemariam cases:[2] Paragraph 35(1)(b) of the Act provides that a permanent resident or a foreign national is inadmissible to Canada "“on grounds of violating human and international rights for [...] being a prescribed senior official in the service of a government that, in the opinion of the [responsible minister], engages or has engaged in terrorism, systemic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) or (5) of the ""Crimes Against Humanity and War Crimes Act.”" Section 16 of the Regulations defines what a "“prescribed senior official”" is.
[3] The Application Judge granted the respondent’s judicial review application on the grounds that the ID had failed to consider the principle of non-refoulement set out in Article 33 of the Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (the Refugee Convention), in interpreting paragraph 35(1)(b) of the Act and to apply it to the respondent’s circumstances. This outcome, she said, was predicated on jurisprudence post-dating the ID Decision, notably the Supreme Court of Canada decision in Mason v. Canada (Citizenship and Immigration), 2023 SCC 21 (Mason) and this Court’s decision in Canada (Public Safety and Emergency Preparedness) v. Weldemariam, 2024 FCA 69 (Weldemariam).
....
[28] It is not disputed that the ID did not consider the principle of non-refoulement embedded in the Refugee Convention when it interpreted and applied paragraph 35(1)(b) of the Act and section 16 of the Regulations to the respondent’s circumstances. As stated, the Minister contends that the ID was not so constrained and that Mason and Weldemariam are of no moment, being inapplicable to inadmissibility matters triggered by paragraph 35(1)(b) of the Act. The respondent, supported by the two interveners, claims that the ID had to consider that principle when it ruled on the respondent’s inadmissibility to Canada and ordered that he be deported.
[29] The key question to be determined here is whether the teachings of Mason and Weldemariam, which dealt with inadmissibility matters triggered by paragraph 34(1)(e) and paragraphs 34(1)(a) and (f) of the Act, respectively, also apply to paragraph 35(1)(b) matters. If they do, then this is the end of the analysis because, as was the case in these two matters, the ID did not consider these principles in the present matter. The unavoidable outcome would thus be that the ID Decision is unreasonable and that the Application Judge judgment must stand. At paras 40-60 the court considers the recent Mason and Weldemariam cases:C. Do the core takeaways from Mason and Weldemariam apply to the present matter and if so, to what extent?
[61] The main takeaway from Mason and Weldemariam is that the Refugee Convention, save a contrary intention on the part of Parliament, is determinative of how the Act is to be interpreted. It is a critical legal constraint on immigration adjudicators in construing and applying the Act, one that Parliament has expressly stated they must consider.
[62] Article 33 of the Refugee Convention enshrines the principle of non-refoulement as the "“cornerstone of the international refugee protection regime.”" It prohibits contracting states from removing a refugee to a territory where they run the risk of being subject to human rights violations (Mason at para. 108) and applies "“irrespective of whether the specific foreign national subject to deportation is a refugee claimant”" (Mason at para. 115).
[63] As indicated previously, the principle of non-refoulement is subject to only two exceptions. Both are set out in Article 33(2): removal to a country where a refugee runs the risk of being subject to human rights violations will not breach the Refugee Convention if the individual (i) poses a danger to the security of the country they are in, or (ii), having been convicted of a serious crime, constitutes a danger to the community of that country.
[64] Article 33 reads as follows:Article 33 - Prohibition of expulsion or return (“refoulement”)
1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country. [65] Another important feature of Mason and Weldemariam is that to the extent an inadmissibility finding may lead to deportation outside the scope of the exceptions set out in Article 33(2), it is a breach of the principle of non-refoulement. Hence, when there are two competing interpretations of the inadmissibility provision, one which would comply with the requirements of Article 33 and one which would not, the compliant interpretation should be preferred (Weldemariam at para. 63). And when an inadmissibility finding may lead to deportation outside the scope of the exceptions set out in Article 33(2), the Act’s so-called "“safety valves”" providing discretionary exemptions from the application of the general ineligibility rules under the Act, do not provide sufficient protection to cure the breach. At paras 68-116 the court further considers the issue in light of the Minister's submissions, concluding:[117] For all these reasons, I am satisfied that Mason and Weldemariam stand for the proposition that an interpretation consistent with the principle of non-refoulement is required wherever the inadmissibility at issue effectively sanctions refoulement in a manner contrary to Article 33(1) of the Refugee Convention. I am also satisfied that this interpretative principle applies when inadmissibility is considered under paragraph 35(1)(b) of the Act. . Canada (Public Safety and Emergency Preparedness) v. Wahab
In Canada (Public Safety and Emergency Preparedness) v. Wahab (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this from a successful JR of "a decision of the Immigration Division of the Immigration and Refugee Board of Canada (the ID) that found the respondent to be inadmissible to Canada pursuant to paragraph 35(1)(b) of the Immigration and Refugee Protection Act [SS: 'Human or international rights violations'] and section 16 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations), resulting in the issuance of a deportation order".
Here the court generally considers the IRPA 'inadmissibility' framework:A. The Act’s Inadmissibility Framework
[31] The Act’s inadmissibility framework is found in Division 4 of Part 1 of the Act (sections 33 to 43). Division 4 sets out various grounds of inadmissibility ranging from national security to public health and misrepresentations. In particular, sections 34 to 37 share the same broad objective, which is to "“facilitate the removal of [non-citizens] who constitute a risk to Canadian society on the basis of their conduct, whether it be criminality, organized criminality, human or international rights violations, or terrorism”" (Canada (Public Safety and Emergency Preparedness) v. Gaytan, 2021 FCA 163 at para. 36 (Gaytan), quoting Sittampalam v. Canada (MCI), 2006 FCA 326 at para. 21).
[32] Section 34 is more particularly concerned with conduct that engages the security of Canada, such as espionage against Canada or contrary to Canada’s interests (paragraph 34(1)(a)), subversion by force of any government (paragraph 34(1)(b)), terrorism (paragraph 34(1)(c)) or acts of violence that would or might endanger the lives or safety of persons in Canada (paragraph 34(1)(e)).
[33] As for section 35, it is concerned with conduct engaging human and international rights violations such as committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act, SC 2000, c. 24 (crimes against humanity, genocide and war crimes), or serving as a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act.
[34] As stated, paragraph 35(1)(b) must be read in conjunction with section 16 of the Regulations, which defines a "“prescribed senior official”" as being "“a person who, by virtue of the position they hold or held, is or was able to exert significant influence on the exercise of government power or is or was able to benefit from their position.”" According to that definition, "“senior members of the military”" are prescribed senior officials in the service of a government. However, a "“senior member of the military”" is not defined.
[35] Section 16 reads as follows:"16."" For the purposes of paragraph 35(1)(b) of the Act, a prescribed senior official is a person who, by virtue of the position they hold or held, is or was able to exert significant influence on the exercise of government power or is or was able to benefit from their position, and includes"
16. Pour l’application de l’alinéa 35(1)b) de la Loi, occupent un poste de rang supérieur les personnes qui, du fait de leurs fonctions — actuelles ou anciennes —, sont ou étaient en mesure d’influencer sensiblement l’exercice du pouvoir par leur gouvernement ou en tirent ou auraient pu en tirer certains avantages, notamment :
(a) heads of state or government;
a) le chef d’État ou le chef du gouvernement;
(b) members of the cabinet or governing council;
b) les membres du cabinet ou du conseil exécutif;
(c) senior advisors to persons described in paragraph (a) or (b);
c) les principaux conseillers des personnes visées aux alinéas a) et b);
(d) senior members of the public service;
d) les hauts fonctionnaires;
(e) senior members of the military and of the intelligence and internal security services;
e) les responsables des forces armées et des services de renseignement ou de sécurité intérieure;
(f) ambassadors and senior diplomatic officials; and
f) les ambassadeurs et les membres du service diplomatique de haut rang;
(g) members of the judiciary.
g) les juges. [36] As for sections 36 and 37, they are concerned with conduct, including that which results in a conviction, that amounts to serious criminality, criminality, transborder criminality and organized criminality, as defined in those provisions.
[37] Of note, membership-type inadmissibility provisions are found in sections 34, 35 and 37, paragraph 35(1)(b) being one of them, the other two being found at paragraphs 34(1)(f) and 37(1)(a). Hence, a non-citizen found to be a member of an organization (or a prescribed senior official in the service of a government, in the case of paragraph 35(1)(b)) that there are reasonable grounds to believe engages or has engaged in the acts described therein, is inadmissible.
[38] The process that may lead to an inadmissibility finding is the same irrespective of the ground of inadmissibility being invoked and is set out in sections 44 and 45 of the Act. It commences with a report from an immigration official to the responsible minister expressing the opinion that a non-citizen who is in Canada is inadmissible. If that minister is satisfied that the report is well founded, the matter is then usually referred to the ID for an admissibility hearing.
[39] Finally, section 42.1 of the Act provides that on application by a foreign national, the responsible minister may declare that matters referred to in section 34, paragraph 35(1)(b) and subsection 37(1) (organized criminality) do not constitute inadmissibility in respect of that individual if that Minister is satisfied that such a declaration would not be contrary to the national interest. . Rodriguez Anzola v. Canada (Citizenship and Immigration)
In Rodriguez Anzola v. Canada (Citizenship and Immigration) (Fed CA, 2026) the Federal Court of Appeal allowed an appeal, this brought against the dismissal of "the appellant’s application for judicial review of a decision of the Immigration Division (the ID) of the Immigration and Refugee Board of Canada (IRB)", this regarding an ID finding that the appellant was "inadmissible to Canada on grounds of serious criminality pursuant to paragraph 36(1)(b) of the Immigration and Refugee Protection Act, SC 2001, c. 27 (the Act) for having committed an offence in her country of origin (trafficking or carrying illegal drugs) which, if committed in Canada, would constitute an offence under an Act of Parliament – here the Controlled Drugs and Substances Act, SC 1996, c. 19 – punishable by a maximum term of imprisonment of at least 10 years".
Here the court considered whether the appellant could argue that a foreign criminal defence was not, by reason of extenuating circumstances, practically available to them for 'serious criminality' immigration inadmissibility purposes:[8] For the reasons set out below, I would grant the appeal and answer in the affirmative the following question, which I find to be more focused on the appellant’s circumstances than the question certified by the Application Judge:In determining whether an individual is inadmissible under paragraph 36(1)(b) of the Immigration and Refugee Protection Act, are the Immigration Division and Immigration Appeal Division of the Immigration and Refugee Board entitled to consider extenuating circumstances that caused the legal defence of duress not to be practically available to the claimant in the foreign jurisdiction? ....
(4) Duress is a relevant constraint when determining inadmissibility under paragraph 36(1)(b) of the Act
[49] There is no doubt, in my view, when one considers Gaytan as well as the particular nature and importance of the defence of duress in Canadian criminal law, that duress is a relevant constraint in determining inadmissibility under paragraph 36(1)(b) of the Act.
(a) Gaytan
[50] At the hearing of this appeal, the parties, at the invitation of the Court, spent some time discussing whether there was any principled basis not to apply Gaytan to the present matter. If Gaytan is applicable, then this panel is bound to it by virtue of the horizontal stare decisis principle, according to which the Court follows its prior decisions unless it can be shown that the prior decision sought to be followed is manifestly wrong (Miller v. Canada (Attorney General), 2002 FCA 370 at paras. 9-10; R. v. Sullivan, 2022 SCC 19 at paras. 74-79; Feeney v. Canada, 2022 FCA 190 at para. 16; Chen v. Canada, 2023 FCA 146 at paras. 10‑11; Patel v. Dermaspark Products Inc., 2025 FCA 145 at paras. 31‑32).
[51] Here, there were no serious attempts on the part of the respondent to show that Gaytan is manifestly wrong. The issue, then, becomes whether Gaytan serves as a basis – or a building block – for a positive response to the appeal’s first issue. As I indicated above, there is no doubt that it does.
[52] I have already pointed out the respondent’s position regarding Gaytan. It says that Gaytan concerns solely membership assessments under sections 34 and 37 of the Act and contains no indication that the Court intended its comments to extend to inadmissibility assessments under paragraph 36(1)(b). With respect, Gaytan goes further than that.
[53] In Gaytan, the certified question was indeed specific to paragraph 37(1)(a) of the Act and to whether the ID could consider the defence of duress in determining inadmissibility for being a member of a criminal organization. The appellant in that case, the Minister of Public Safety and Emergency Preparedness (the Minister), was of the view that duress could only be raised before him in the context of an application for ministerial relief under subsection 42.1(1) of the Act.
[54] The Minister raised several arguments in support of his position. One of them was that importing criminal law notions into the admissibility framework was inconsistent with the scheme of the Act because such notions have no direct application to that framework. While he recognized that the defence of duress was aimed at protecting persons charged with an offence from unconstitutional punishment, that is from punishment for morally involuntary actions, the Minister was claiming that inadmissibility was purely a finding that an individual falls within a class of persons defined in the Act, resulting in inadmissibility not being concerned with moral blameworthiness, with punishment for one’s actions, or with that person’s constitutional protections. According to the Minister, these were crucial distinctions that the Federal Court had failed to account for when dismissing his claim that the ID had no authority to consider the defence of duress when ministerial relief is otherwise available under subsection 42.1(1) of the Act (Gaytan at para. 28).
[55] I pause to note that at the time Gaytan was decided, ministerial relief was – and is still – not available in inadmissibility matters based on section 36 of the Act.
[56] This argument led the Court to examine the intersection between criminal law and the inadmissibility framework, and in particular sections 34 to 37, which, as indicated previously, have the common purpose of "“facilitat[ing] the removal of [non-citizens] who constitute a risk to Canadian society on the basis of their conduct, whether it be criminality, organized criminality, human or international rights violations, or terrorism”" (Gaytan at para. 36).
[57] This analysis is based on the Supreme Court’s directions in Vavilov regarding the role of binding precedents on the interpretation of statutory law or the common law, as constraints on how and what an administrative decision-maker can lawfully decide, and their relevance in assessing the reasonableness of administrative decisions. As stated by the Supreme Court, this includes decisions of an "“immigration tribunal”" called upon to determine what constitutes a criminal offence under Canadian criminal law for the purposes of "“sections 35 to 37 of the Act”" (Gaytan at para. 68, quoting Vavilov at para. 112).
[58] This means that Canadian criminal law and how it has been interpreted by the courts is a relevant constraint when those provisions of the Act, not just paragraph 37(1)(a), are being applied. The Court, in Gaytan, concluded that "“it would take much clearer language from Parliament to remove the availability of the consideration of duress from the ambit of matters the [ID] might consider in an admissibility proceeding”" (Gaytan at para. 74). This statement, responding to the Minister’s argument that importing criminal law notions into the admissibility framework generally was inconsistent with the scheme of the Act, was clearly not limited to inadmissibility proceedings grounded in paragraph 37(1)(a) of the Act.
[59] Interestingly, the Court "“pause[d] to stress that it [was] not disputed that duress may be raised before the [ID] in matters where inadmissibility is not subject to ministerial relief”" (Gaytan at para. 75, emphasis in original). As indicated, inadmissibility matters based on section 36 of the Act (serious criminality and criminality) are not subject to ministerial relief.
[60] There, the Court discussed a scenario where the Minister would have initiated inadmissibility proceedings against Mr. Gaytan for having committed a criminal offence overseas, as permitted by paragraph 36(1)(c) of the Act, instead of bringing the matter, as he had done, under paragraph 37(1)(a) of the Act, and said this:According to the Minister’s logic, this would have made duress a relevant consideration because inadmissibility proceedings for serious criminality are not subject to ministerial relief, even though these proceedings would have been based on the same set of facts as the one that led the Minister to raise subsection 37(1)(a) in the case at bar. I agree with the respondent that such an approach, if allow[ed] to stand, would lead to absurd results, as duress would then be available depending solely on which inadmissibility provision the Minister decides to proceed with. Such result cannot not have been intended by Parliament (Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, 154 DLR (4e) 193 at para. 27)
(Gaytan at para. 75) [61] Apart from the fact that the respondent is now taking an entirely different position in the present matter, this, in my view, is a clear indication that the Court, in Gaytan, considered criminal law, including duress, to be a relevant constraint beyond the confines of paragraph 37(1)(a).
[62] Therefore, the respondent’s contention that there are no indications in Gaytan that the Court intended its comments to extend to inadmissibility assessments under paragraph 36(1)(b), is incorrect.
[63] Besides, I do not read the ID Decision as saying that duress cannot be considered by the ID when applying the equivalency test in a paragraph 36(1)(b) matter. As was the case in Beltran, on which the ID relied heavily, Ms. Rodriguez Anzola’s claim of duress was dismissed only because the defence of duress, although legally available to her, was not raised in the course of her criminal proceedings in Colombia. There is also case law where other criminal law defences – self-defence for example – were held to be applicable in a paragraph 36(1)(b) matter in circumstances, which I will discuss in more detail below, somewhat similar to those of the present case (Zeine v. Canada (Citizenship and Immigration), 2023 FC 1370 (Zeine)).
[64] There is no doubt, therefore, based on Gaytan (and on what appears to be the ID’s own position on this point), that the defence of duress is a relevant constraint in a paragraph 36(1)(b) analysis. In Gaytan, the Court stressed that coerced membership could not reasonably have been intended to be captured by sections 34 and 37 of the Act (Gaytan at para. 80) and I see no principled reason to carve out the defence of duress from the operation of the inadmissibility framework when it comes to coerce criminal conduct resulting in a conviction abroad.
[65] That said, the issue here is whether the ID, when conducting an equivalency analysis, can go so far as to look into the circumstances that caused the legal defence of duress not be practically available.
....
[75] Again, in the immigration context, it stands to reason that in determining whether a crime committed outside Canada would have been punishable in Canada for the purposes of paragraph 36(1)(b) of the Act, duress is a relevant constraint given that, if it is established, the person convicted of that crime would be, in Canada, entitled "“to a complete and unqualified acquittal”". In other words, the acts underlying the conviction abroad would not be punishable here.
[76] Does that constraint extend to requiring the ID to look into the circumstances that led the individual concerned not to raise duress when it was otherwise legally available in the country where the conviction occurred? I believe it does because, ultimately, being deprived of the defence of duress due to some extraneous circumstances could amount to not having access to that defence at all.
[77] Therefore, the centrality of the defence of duress on the concept of criminal liability in Canadian law makes it incumbent on the ID to consider the circumstances that prevented the individual concerned from raising that defence in instances where it was otherwise legally available.
[78] In my opinion, this view does not overrule this Court’s previous jurisprudence on inadmissibility for serious criminality and is consistent with the text, context and purpose of paragraph 36(1)(b) of the Act.
(5) This Court’s jurisprudence on inadmissibility for serious criminality
[79] Although it precludes treating an inadmissibility proceeding as a retrial of the merits or validity of the foreign conviction, the jurisprudence of this Court on paragraph 36(1)(b) of the Act does not exclude factual considerations beyond the existence of a conviction in all cases, including the facts underlying the foreign conviction for the purposes of determining whether those facts would have led to a conviction in Canada. In fact, the Court cautioned against the equivalency test being reduced to a universal blanket, meaning that in some instances, there will necessarily need to be some consideration for unique circumstances.
[80] In Brannson, Urie J.A., in concurring reasons, expressly stated the need for additional facts "“at least in circumstances where the scope of the [Canadian] offence is narrower in compass than that of in the foreign jurisdiction”" and that, therefore, a blanket procedure should not be adopted for all instances where an immigration tribunal is called upon to determine whether the offence committed abroad would constitute an offence if committed in Canada (Brannson p. 145) (My emphasis).
[81] In Brannson, the Court found that it was inappropriate to prevent the applicant from testifying about the facts of his conviction in the United States (for having used the mail to promote a fraudulent scheme), the immigration tribunal in that case having ruled that such evidence was irrelevant. For Urie J.A., the issue in that case concerned the extent to which the immigration tribunal was "“entitled to flesh out the evidence relating to the United States offence by ascertaining how the offence was committed by the applicant in order to ascertain whether the offence committed would constitute an offence in Canada”" (Brannson p. 143). Urie J.A. concluded as follows:It is not sufficient [. . .] for the Adjudicator to simply look at the documentary evidence relating to a conviction for an offence under the foreign law. There must be some evidence to show firstly that the essential ingredients constituting the offence in Canada include the essential ingredients constituting the offence in the United States. Secondly, there should be evidence that the circumstances resulting in the charge, count, indictment or other document of a similar nature, used in initiating the criminal proceeding in the United States, had they arisen in Canada, would constitute an offence that might be punishable by way of indictment in Canada.
(Brannson p. 144) [82] Although it was not its role to inquire about the validity or merits of the conviction abroad, the immigration tribunal, according to Urie J.A., had, by contrast, "“the obligation to ensure that the conviction in issue arose from acts which were encompassed by the provisions [of the Canadian offence]”" (Brannson p. 145).
[83] Ryan J.A., with whom Kelly D.J. concurred, accepted that in instances where the definition of the foreign offence is broader than, but could contain, the definition of a Canadian offence "“it may well be open to lead evidence of the particulars of the offence of which the person under inquiry was convicted”" (Brannson p. 153). As we have seen, there are indications that Urie J.A. considered that the leading of such evidence would be relevant or required in other instances.
[84] In Hill v. Canada (Minister of Employment and Immigration), (FCA) (1987) 1987 CanLII 9881 (FCA), 1 Imm. L.R. (2d) 1 (Hill), the issue was whether the elements of the crime of theft in Texas were equivalent to those in the Criminal Code, particularly in light of the requirement, in the Canadian definition, that the taking of the property be "“without color of right”". The evidence upon which the immigration tribunal in that case had made its finding of inadmissibility was "“extremely sparse”" (Hill p. 4).
[85] Hugessen J.A. (MacGuigan J.A. concurring), identified two fatal flaws with this evidence. First, it was completely lacking as to what was meant in the Texas statute by "“theft”". Second, it did not allow to determine whether Mr. Hill might have asserted a colour of right to his taking of the alleged stolen property, and, therefore, to determine whether the offence of which he was convicted in Texas would necessarily, if committed in Canada, have constituted an offence to the Criminal Code provision being compared with (Hill p. 5-6).
[86] In concurring reasons, with which MacGuigan J.A. also concurred, Urie J.A., set out his views as to how to perform the equivalency analysis:[F]irst, 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 adjudicator, 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 initiating documents or in the statutory provisions in the same words or not; and three, by a combination of one and two.
(Hill p. 9) [87] That test was applied in Li, the Court noting that it had been approved in cases subsequent to Hill (Li at para. 13). The Court also noted that the second way of establishing equivalence, the one that permits adducing evidence as to the circumstances of the acts committed abroad, "“point[ed] up to the fundamental test of equivalence: would the acts committed abroad and punished there have been punishable here?”" (Li at para. 13). Li also clarified that a comparison of the "“essential elements”" of the foreign and Canadian offences "“requires a comparison of the definitions of those offences including defences particular to those offences or those classes of offences”" (Li at para. 19).
[88] According to the Court, it was "“obvious that persons could be convicted of the [foreign] offence in circumstances where they would not be guilty of an offence in Canada, given the defence available here [...]”" arising out of the narrower meaning of the Canadian offense (Li at para. 20). In the absence of any evidence pointing to the fact that what led to the foreign conviction would have constituted an offence within the narrower Canadian Criminal Code provisions, the Court concluded that there was no equivalency between the two offences (Li at para. 21).
[89] Some general threads can be pulled from this Court’s jurisprudence:a) A bare legal equivalence is not always sufficient to establish inadmissibility;
b) It is neither possible nor desirable to reduce the equivalency test to a universal blanket applicable in every case;
c) At a minimum, where a Canadian offence is more narrowly defined than a foreign offence, the decision-maker is entitled to inquire into the facts to determine whether the acts committed abroad fit into the elements of the Canadian offence;
d) Put differently, consideration of the facts underlying a foreign conviction is not precluded in all cases and is required in some;
e) It is the "“essential ingredients”" of the Canadian and foreign offences that must be compared, which include the legal availability of defences particular to the crime at issue; and
f) Challenging the validity or merits of the foreign conviction is no response to an inadmissibility proceeding. [90] Although it precludes treating an inadmissibility proceeding like an appeal of the foreign conviction, the jurisprudence on paragraph 36(1)(b) of the Act confirms that the equivalency test should be treated as flexible enough to account for factual circumstances. In other words, it allows enough space to give some consideration for the unique circumstances of each case in determining equivalency.
[91] Transposed to the present matter, the fundamental question, therefore, is whether, when one considers both the essential "“ingredients”" of the Colombian and Canadian offences, the acts committed by the appellant in Colombia and for which she was punished there, would have been punishable here, taking into account the facts underlying the Colombian conviction.
[92] As I said earlier, duress and moral involuntariness are centrally important to Canadian criminal law. One could say that they are "“essential ingredients”" to any criminal offence in Canada. Again, in Gaytan, this Court considered duress in the context of inadmissibility proceedings and found that "“Parliament did not intend membership to extend to those who were forcibly recruited by a terrorist or a criminal organization and performed acts consistent with the goals of such an organization while under duress”" (Gaytan at para. 79), and the respondent has failed to provide a principled reason not to apply this reasoning to the context of serious criminality where the issue is that the individual was under duress both during the commission of the crime and during the subsequent legal proceedings.
[93] Therefore, if its existence is proven in the circumstances of this case, duress would strike at the root of the Colombian conviction such that for all Canadian legal purposes, including immigration, it would have to be regarded as a nullity, even after the basic elements of the offence (actus reus and means rea) have been established.
[94] The jurisprudence of this Court on equivalence allows for such flexibility.
[95] The recent decision of the Federal Court in Zeine is consistent with that approach. In that case, although there was no evidence that self-defence was raised at trial in the foreign jurisdiction – or could not have been raised due to extraneous circumstances – the Federal Court held that the "“immigration tribunal”" – an immigration officer in that case – had failed to consider the potential defence of self-defence, vitiating thereby the reasonableness of the officer’s decision. The Federal Court judge stated that the issue of self-defence had sufficiently been raised in the material before the officer to require consideration such that the foreign offence would not, if committed in Canada, be punishable here (Zeine at paras. 29‑30). It concluded as follows:[33] Mr. Zeine could certainly have raised the issue of self-defence more clearly in his submissions. However, I conclude that the factual context of Mr. Zeine’s conviction and his explanation regarding that context were such that the officer had to consider self‑defence in assessing whether the facts that were proven in the Lebanese criminal case met the essential elements of section 267 of the Criminal Code: see Garcia v Canada (Citizenship and Immigration), 2021 FC 141 at paras 26–28. [96] The respondent insists that the equivalency analysis does not allow the ID to reconsider the validity or merits of the foreign conviction or to embark on "“finicky evaluations”" of the rules governing the legal process in the foreign jurisdiction, which, according to the respondent, is what Ms. Rodriguez Anzola is ultimately seeking.
[97] With respect, requiring the ID, for equivalency purposes, to consider whether the defence of duress was practically (or reasonably) available, does not amount to requiring the ID to reconsider the validity or merits of the foreign conviction or to proceed with "“finicky evaluations”" of the rules governing the legal process in the foreign jurisdiction. Again, the ID’s task is to determine whether the offence committed abroad would, if committed in Canada, be punishable under Canadian law. As we have seen in the case law, an offence may very well be punishable abroad, but not in Canada. Such a finding does not require reconsideration of the merits or validity of the conviction abroad, let alone reconsideration on the basis of the Canadian standards of procedure or evidence.
[98] Besides, the appellant is not suggesting that the ID be entitled to retry the foreign case. She rather claims, as I understand it, that the ID be permitted to consider evidence about duress both during the commission of the crime she was charged with and during the subsequent legal proceedings, in order to determine, even after the basic elements of the offence have been established, whether her circumstances were egregious enough to regard her conviction in Colombia as never having happened.
[99] As I have indicated, I believe the equivalency test, as it has been applied so far, allows for this type of inquiry given the critical criminal liability interests at stake. I believe as well that this view is consistent with the text, context and purpose of paragraph 36(1)(b) of the Act. At paras 100-118 the court conducts a statutory interpretation analysis of IRPA s.36(1)(b) ['Inadmissibility - Serious criminality'].
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