Bertold v. Canada ( Minister of Citizenship and Immigration )
IMM-5228-98
Muldoon J.
29/9/99
30 pp.
Application for judicial review of IRB decision that deportation order issued November 5, 1996 valid and that discretionary relief pursuant to Act, s. 70(1)(b) not warranted-Applicant's application for permanent residence of November 1993 and sworn in February 1994 not truthful, complete or accurate in several areas-At Act, s. 27 inquiry, adjudicator concluded evidence did not establish equivalency between Texas conviction (theft in third degree in 1984, and sentence of 3 years' imprisonment) and Canadian offence, but held applicant's failure to disclose Texas conviction constituted misrepresentation, and issued deportation order pursuant to Act, s. 27(1)(e)-On appeal from deportation order IRB admitted seven documents in evidence, holding they were relevant in consideration of all circumstances of case-Documents pertaining to outstanding charges in Germany ruled admissible not as evidence of guilt, but rather of other proceedings involving applicant in another jurisdiction-IRB stated weight assigned to documents would be reflective of fact they were charges, not convictions-On substance of applicant's appeal, IRB dismissed applicant's argument under German law pertaining to registration of convictions, he had right to declare he had no convictions, including Texas conviction-IRB held no evidence Texas conviction had been entered into German registry and that, in any event, would have to be expunged in accordance with laws of Texas, not Germany-IRB concluded applicant had duty to disclose Texas conviction, and failure to do so amounted to misrepresentation-Issues (1) whether IRB erred in admitting evidence relating to outstanding charges against applicant in Germany; (2) whether IRB erred in not finding same evidence obtained in violation of Charter and should thereby be excluded; (3) whether IRB erred in considering evidence relating to country conditions in intended country of deportation; (4) whether IRB erred in assessing adjudicator's decision relating to Texas offence; (5) whether IRB erred in not finding applicant's reliance on German rehabilitation legislation in good faith; (6) whether IRB erred in characterizing applicant as lacking remorse; (7) whether IRB erred in application of case law in regard to effect of foreign rehabilitative legislation, and whether applicant entitled under German law to deny fact of all prior convictions, including foreign convictions, for purpose of applying for immigration to Canada-Application allowed-(1) Reference to charges against applicant in Germany inadmissible as, unresolved, they cannot impugn applicant's character or credibility-(2) IRB erred in not finding as outstanding charges inadmissible, obtained in violation of Charter-(3) IRB erred in considering country conditions in Germany, but impact of error may not have been important-(3) IRB did not err in referring to adjudicator's decision on Texas offence as appropriately did so for purpose of assessing seriousness of misrepresentation-(4) IRB's finding applicant's explanation (as to reliance on Germany's rehabilitation legislation) implausible and therefore unacceptable open to it based on evidence before panel-(6) As IRB in better position to make observations, assessments and determinations as to applicant's remorse, would be inappropriate for Court to step in and disturb findings-(7) IRB did have before it evidence German legislation allowing for registration and eventual erasure of foreign convictions of German nationals, but not satisfied applicant's U.S. convictions had been registered in first place-Nevertheless, case merits stated question whether enacted pardon from crime accorded by country of party's citizenship necessarily effective and to be disclosed in Canadian law when that party seeks permanent residence in Canada under Immigration Act, despite party's presumably fair conviction of offence in third country-Immigration Act, R.S.C., 1985, c. I-2, ss. 27(1)(e), 70 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18); S.C. 1995, c. 15, s. 13)-Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].