When Canadian
immigration officers look at criminal allegations from another country, they
cannot simply say, “this looks bad” and stop there. They have to do the legal
work of showing how the foreign conduct matches a Canadian offence.
That is exactly
what the Federal Court dealt with in Cruz v Canada (Citizenship and
Immigration), 2020 FC 455.
This case is
important because it shows that even where there is a written admission and serious allegations from abroad, an immigration officer still has to carry
out a proper equivalency analysis before finding someone criminally
inadmissible to Canada.
What
happened in Cruz?
Christopher
Bacani Cruz was a Filipino national who came to Canada in 2008 as a temporary
worker. In 2013, he applied for permanent residence through the provincial
nominee class. He listed his wife and two children as non-accompanying
dependants.
His wife was
facing charges in the Philippines for “Estafa through Falsification of
Commercial Documents.” The allegation was that, while working at a rural
bank between 2004 and 2005, she accepted client deposits but did not remit them
to the bank. Instead, the money was allegedly used for her own personal
benefit. The total amount involved was approximately CDN $28,000.
The immigration
record included a handwritten document signed by Mr. Cruz’s wife in which she
acknowledged responsibility for the deposits, stated that the money was not
received by the bank, and admitted she used it for personal reasons.
A migration
officer concluded that these acts would be equivalent in Canada to misappropriation
of money held under direction under section 332(1) of the Criminal Code.
On that basis, the officer found Mr. Cruz’s wife criminally inadmissible under section
36(1)(c) of the Immigration and Refugee Protection Act, and because she was
inadmissible, Mr. Cruz was also found inadmissible under section 42(1)(a) as a family member of an inadmissible person.
What did the
officer decide?
The officer
treated the wife’s written admission as conclusive proof that she had committed
the offence. The GCMS notes show the officer took the position that even if the
Philippine charges were eventually settled, the fact remained that she had
committed the acts in question.
The officer
also concluded that the foreign conduct, if committed in Canada, would amount
to an offence punishable by up to ten years, which would place the matter under serious criminality.
What
arguments did Mr. Cruz make?
Mr. Cruz
challenged the refusal in Federal Court. He argued, among other things, that:
● the officer failed to do a proper equivalency
analysis between the Philippine offence and the Canadian offence;
● the officer should have considered humanitarian and
compassionate grounds;
● the officer should have considered criminal
rehabilitation; and
● the officer had fettered discretion.
In the end, the
Court focused mainly on whether the officer’s finding of inadmissibility was reasonable.
What the
Court accepted — and what it rejected
Justice
Strickland did not accept every argument raised by the applicant.
For example,
the Court held that the officer did not have to independently raise
humanitarian and compassionate relief where no proper request under section 25
of IRPA had been made. Mr. Cruz’s email asking for “a chance” and saying the
application was his family’s “bread and butter” was not enough to amount to a
formal H&C request.
The Court also
rejected the argument that the officer had to invite the wife to apply for
criminal rehabilitation. Because no rehabilitation application had actually
been made, and because the wife did not fall within the deemed rehabilitation
provisions, the officer was under no duty to consider rehabilitation on her
behalf.
So the case was not won on H&C or rehabilitation.
Where the
officer went wrong
The real
problem, according to the Court, was the equivalency analysis.
The Court
accepted that the officer had evidence to work with. This was not a case where
the officer relied only on rumours or bare police allegations. There was a
written admission, and there were supporting documents from the Philippine
proceedings.
But that still
was not enough.
The officer
said the Philippine offence was equivalent to section 332(1) of the Criminal
Code, but did not actually identify the essential elements of that
Canadian offence or explain how the wife’s admitted conduct met those elements.
That mattered
because section 36(1)(c) requires more than just a general sense that the
conduct was wrongful. The officer had to determine whether the act committed
outside Canada would, if committed in Canada, constitute a Canadian
offence punishable by a maximum term of at least ten years.
In other words,
the officer had to do more than name a Canadian offence. The officer had to
explain why the foreign conduct satisfied the legal ingredients of that
offence.
Justice
Strickland relied on earlier case law, including Pardhan, Singh,
and Nshogoza, to underline that officers must either:
● compare the wording of the foreign and Canadian
offences,
● examine the evidence to show the essential
ingredients of the Canadian offence were established,
● or use a combination of both approaches.
Here, the
officer did not do that work.
Why section
332(1) mattered
Section 332(1)
of the Criminal Code deals with a specific form of theft: where a person
receives money or valuable property with directions about how it is to be
applied or paid, and then fraudulently diverts it elsewhere.
The Court noted
that it may well have been open to the officer to conclude that the wife’s
conduct fit that Canadian provision. But the problem was that the officer never
actually explained the comparison.
The decision
simply jumped from the facts to the conclusion.
That was not
enough for the Court.
What was the
result?
The Federal
Court allowed the application for judicial review.
The decision
was sent back for redetermination by a different migration officer.
So the Court
did not say Mr. Cruz’s wife was admissible. It said the officer’s
reasoning was legally inadequate because the required equivalency analysis had
not been properly done.
Why this
case matters
Cruz is a useful reminder that foreign criminal
allegations and admissions can have serious immigration consequences, but
officers still have to follow the law carefully.
Three points
stand out:
First, a person
can be found inadmissible under section 36(1)(c) even without a foreign
conviction, if the officer concludes the person committed an act outside Canada
that would amount to a serious Canadian offence.
Second, a
written admission can be powerful evidence. In Cruz, the Court accepted
that the officer was entitled to rely on the wife’s signed statement as
evidence that she committed the acts.
Third, and most
importantly, evidence alone does not replace legal analysis. If the officer is
saying a foreign act is equivalent to a Canadian offence, the officer must
explain the comparison properly.
That is where
the decision in Cruz fell apart.
Cases like Cruz show how important it is to carefully review:
● the foreign offence or allegation,
● the wording of the foreign law,
● the possible Canadian equivalent,
● whether the legal elements actually match,
● and whether immigration officers have carried out the
right analysis.
At A&M
Canadian Immigration Law Corporation, we help clients deal with criminal
inadmissibility issues, including situations involving foreign charges, foreign
convictions, and equivalency analysis under Canadian immigration law. These
cases can become technical very quickly. A careful legal review can make a real
difference.
If you or a family member are dealing with criminal inadmissibility
based on a foreign offence, it may be worth reviewing the case carefully
before making further immigration decisions.
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