Lui v. Canada ( Minister of Citizenship and Immigration )
IMM-2783-95
Rothstein J.
27/9/97
9 pp.
Judicial review of deportation order issued based on conviction of assault occasioning actual bodily harm in 1976 in Hong Kong-Adjudicator determining applicant person described in Immigration Act, s. 19(1)(c.1)(i) i.e. person convicted outside Canada of offence that, if committed in Canada, would constitute offence punishable under any Act of Parliament by maximum term of imprisonment of ten years or more-Applicant producing Certificate of No Criminal Conviction from Commissioner of Police of Hong Kong stating 1976 conviction spent in Hong Kong by virtue of Rehabilitation of Offenders Ordinance, s. 2(1)-Application dismissed-Canada should "recognize" or "attorn" to law of foreign jurisdiction when: (1) laws, legal system of foreign jurisdiction similar to Canada's; (2) foreign law similar in (i) aim or purpose; (ii) content; (iii) effect, but not necessarily identical, to Canadian law: Canada (Minister of Employment and Immigration) v. Burgon, [1991] 3 F.C. 44 (C.A.)-Rehabilitation of Offenders Ordinance not similar in content, effect to Canadian law-Criminal Records Act, subject to very few exceptions pertaining to certain provisions of Criminal Code, vacating conviction if National Parole Board granting pardon; removing any disqualification to which, by reason of conviction, subject by virtue of provision of any Act of Parliament-While may be revoked if person subsequently convicted or for other reasons, except for few Criminal Code exceptions, pardon cleansing individual "of any stain conviction caused"-Hong Kong Rehabilitation of Offenders Ordinance subject to numerous exceptions-Scope of s. 2(1) narrower than Criminal Records Act, s. 5(b)-Applies only to less serious offences-Only has effect unless and until individual again convicted of offence in Hong Kong-Pardon in Canada not automatically revoked by commission of subsequent offence, but may be revoked by National Parole Board for that reason-Operation of s. 2(1) subject to numerous specified exceptions i.e. conviction not treated as spent with respect to operation of law providing for disqualification as result of conviction (s. 3(1)(c))-Quite different from Criminal Records Act, s. 5(b)-Hong Kong Rehabilitation of Offenders Ordinance cannot be recognized by Canada, but even if Canada should recognize or attorn to Hong Kong Ordinance, s. 3(1)(c) would have to be recognized-Requiring Adjudicator to treat applicant's 1976 conviction as not spent for purposes of any law subjecting applicant to any disqualification-S. 19(1)(c.1)(i) such law because disqualifying applicant from admission to Canada by reason of Hong Kong conviction-Adjudicator correctly not treating applicant's conviction as if vacated-Question certified: Is Rehabilitation of Offenders Ordinance of Hong Kong law Canada should recognize or to which should attorn, and if so, must adjudicator consider individual to which applies inadmissible to Canada under Immigration Act, s. 19(1)(c.1)(i) if offence punishable by term of imprisonment of 10 years or more?-Immigration Act, R.S.C., 1985, c. I-2, s. 19(1)(c.1)(i) (as enacted by S.C. 1992, c. 49, s. 11)-Criminal Records Act, R.S.C., 1985, c. C-47, ss. 5(b) (as am. by S.C. 1992, c. 22, s. 5; 1995, c. 42, s. 78), 7 (as am. by S.C. 1992, c. 22, s. 7)-Rehabilitation of Offenders Ordinance 1986, Ord. No. 55/86, ss. 2(1), 3(1).