Operational Bulletins 036 – August 8, 2007

This section contains policy, procedures and guidance used by Immigration, Refugees and Citizenship Canada staff. It is posted on the Department’s website as a courtesy to stakeholders.

Determining equivalencies in the field – inland and overseas

Background

The Danger to the Public - Rehabilitation Unit of Case Review Division, Case Management Branch (CMB), at National Headquarters (NHQ), receives numerous requests concerning equivalencies. With the view that CMB will provide guidance on case specific issues dealing with criminal equivalencies, we remind officers that they should refer to ENF 14/OP 19 (section 13) for guidance on determining equivalencies. CMB and Legal Services Branch are of the view that officers need to conduct some preliminary research at the very minimum, or alternatively, be able to equate the offences independently and should only consult NHQ for guidance or confirmation of their determination, or to have NHQ seek legal guidance.

To assist officers further, CMB offers the following elaboration of the information found in OP 19 and ENF 14.

Determining equivalencies in the field – inland and overseas

The Federal Court of Appeal has suggested three methods for determining equivalencies:

  1. Compare the elements of the Canadian and foreign statutes to determine if both have the same essential requirements to substantiate the respective offence (the elements will generally include both mental and physical components); or
  2. Examine the facts to determine whether there was sufficient evidence before the court to substantiate each of the elements required for the Canadian offence; or
  3. Combination of the two methods above.

Canadian statute consideration

Considerations include the following:

  • The equivalent Canadian statute must be an Act of Parliament (Federal Statute), therefore municipal and provincial statutes are not applicable;
  • Contempt of court, based on common law, is not applicable;
  • The Canadian statute must be in force at the time that the criminal equivalency is carried out;
  • If the Canadian offence is broader than the foreign statute, examine the elements of the statutes to establish equivalency;
  • If the Canadian offence is narrower than the foreign statute, examine the circumstances and documents pertaining to the offence, including the arrest report, the charges, or the statement from the offender, to ensure that the facts of the particular incident would constitute an offence under Canadian law;
  • All Canadian equivalents should be used in support of the refusal when the foreign offence equates with more than one Canadian equivalent;
  • There is no legal requirement to find the equivalence that is the most similar and make a decision on that provision only.

Officers need to provide as many details as possible with respect to the charges and the offences. They must include at least the following:

  • Criminal record of conviction;
  • Statute and section number of conviction;
  • Translated copy of the section or the statute at issue;
  • Disposition: finding of guilt, conviction, acquittal, discharge, stay, pardon;
  • Where possible the factual background of the offence (court transcripts or police reports) and the sentence should also be included;
  • Objective confirmation of the facts should always be sought through court documents; reliance on the applicant's version is not advisable.

It is crucial that the officers carry out a thorough job of seeking the Canadian equivalence before referring the case to NHQ. Visa officers have easier access to foreign laws in the country where they are posted. Visa officers also have contacts with local authorities who can assist in obtaining the necessary documentation. NHQ should only receive the unusual equivalencies that may require the opinion or guidance of the legal branch.

Conversion of monetary values for criminal equivalence

  • Monetary values must be converted from foreign to Canadian currency so that criminal equivalence can be established. The Bank of Canada provides exchange rates that go back to 1990. The exchange rate in effect at the time of the commission of the offence should be used for conversion;
  • Statistics Canada provides exchange rates prior to 1990.

For additional information, please refer to ENF 14 / OP 19, section 14.

Comments or questions regarding this Operational Bulletin may be directed to OMC-Immigration@cic.gc.ca

Questions

Questions about this operational bulletin should be sent to OMC-Immigration@cic.gc.ca

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