Equivalencing: Making Foreign Provisions Match Canadian Provisions

The issue of equivalency of foreign criminal convictions and offences to Canadian offences is important to understand, because it could be the case that an offence could be more severe under Canadian consideration.

Even though an offence may not appear to cause any issues while you are in a foreign country, it would be a vast waste of time and money to arrive at the Canadian Port of Entry, only to be denied because you did not previously research the equivalent offence under Canadian legislation.  

“Equivalencing” is the act of finding a Canadian offence that is the equivalent of the foreign offence committed outside Canada. The guidelines for the creation of the analytical steps originate in the context of foreign convictions and are set out in several leading decisions of the Federal Court of Appeal.

A person may be inadmissible to Canada on the grounds of serious criminality or criminality for two main reasons:

(1) A conviction for an offence committed outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament, or

(2) Committing an act that is an offence in the place where it was committed (outside of Canada), that, if committed in Canada, would constitute an offence under an Act of Parliament.

There are several provisions in the Immigration and Refugee Protection Act (IRPA) relating to criminality where the issue of equivalency of offences arise. Being found described in one of the equivalency provisions in subsection 36(1) for “serious criminality” or 36(2) for “criminality” will render an individual inadmissible to Canada, or could cause a removal order to be issued against that individual. It is important to note that even a permanent resident may be ordered removed from Canada if found described in subsection 36(1) of IRPA for “serious criminality.” IRPA provisions regarding Canadian offences include:

1. [IRPA, s. 36(1)(b)] “Serious criminality” – foreign conviction for an offence that, if committed in Canada, would constitute a federal offence punishable by a maximum term of imprisonment of 10 years or more
2. [IRPA, s. 26(1)(c)] “Serious criminality” – committed an act outside Canada that is an offence where it was committed and that, if committed in Canada, would constitute a federal offence punishable by a maximum term of imprisonment of 10 years or more
3. [IRPA, s. (36)(2)(b)] “Criminality” – foreign conviction for an offence that, if committed in Canada, would constitute a federal indictable offence (punishable by a maximum term of imprisonment of less than 10 years)
4. [IRPA, s. 36(2)(c)] “Criminality” – committed an act outside Canada that is an offence where it was committed and that, if committed in Canada, would constitute a federal indictable offence (punishable in Canada by a maximum term of imprisonment of less than 10 years)
5. [IRPA, s. 36(2)(b)] “Criminality” – foreign conviction for two offences not arising out of a single occurrence that, if committed in Canada, would constitute federal (summary conviction) offences

Below are the processes of obtaining equivalency.

Where Foreign Law is Available

Where Foreign Law is Not Available

Has the person been convicted of an offence outside of Canada? What are the essential elements or ingredients of the foreign offence? What are the essential elements or ingredients of the suggested Canadian equivalent offence? Are these same elements present in the Canadian offence as in the foreign offence? If the essential elements correspond in all relevant respects to those of the Canadian offence, there is equivalency. If the elements of the foreign and Canadian offences do not correspond: Is the Canadian offence broader than the foreign offence? If the elements of the foreign offence are contained within the scope of the Canadian offence, there is equivalency. Is the Canadian offence narrower than the foreign offence? For equivalency, there must be evidence of the particulars of the foreign offence such that the conduct for which the person was convicted falls within the scope of the Canadian offence. Are there any defences available in relation to either the foreign or Canadian offence? If the elements, including defences, of the foreign offence correspond to those of the Canadian offence, there is equivalency. If there are relevant defences available in the foreign jurisdiction that are not available under Canadian law, there is equivalency as the Canadian offence is broader than the foreign offence. If there are relevant defences under Canadian law that are not available in the foreign jurisdiction, there is no equivalency, unless there is evidence, based on the particular facts which gave rise to the foreign conviction, that the person would not have been able to raise the broader Canadian defence.

What conduct did the foreign court find that the person engaged in to support the conviction? Is that same conduct punishable under Canadian law?

An Example of Determining Equivalency

 

The South Africa Road Traffic Ordinance, subsection 135(1) provides that:

“The driver of a vehicle on a public road at the time when such vehicle is involved in or contributes to any accident in which any other person is killed or injured or suffers damage in respect of any property or animal

1. Shall immediately stop the vehicle;
2. Shall ascertain the nature and extend of any damage sustained.”

Section 252 of the Criminal Code stipulates that:

“(1) Every person commits an offence who has the care, charge, or control of a vehicle, vessel or aircraft that is involved in an accident with

1. Another person,
2. A vehicle, vessel or aircraft, or
3. In the case of a vehicle, cattle in the charge of a person,

and with intent to escape civil or criminal liability, fails to stop his vehicle, vessel or, if possible, aircraft, give his or her name and address and, where any person has been injured or appears to require assistance, offer assistance…

(2) In proceedings under subsection (1), evidence that an accused failed to stop his vehicle, vessel, or where possible, his aircraft, as the case may be, offer assistance where any person has been injured or appears to require assistance, and give his name and address is, in the absence of evidence to the contrary, proof of an intent to escape civil or criminal liability.”

To most clearly define which parts of each are to be considered “equivalent,” it’s easiest to place the language used side by side.

Foreign Provision	Canadian Provision	Comments
“The driver of a vehicle on a public road…”	“Every person who has the care, charge or control of a vehicle…”	The Canadian element is more broadly defined. A “driver” in the South African provision would be included under the Canadian provision. Also, the South African provision is only with regards to public roads, while the Canadian provision encompasses all roads.
“…At the time when such vehicle is involved in or contributes to any accident…”	“…That is involved in an accident…”	These appear to be equivalent, because both sentences describe a vehicle that is involved in an accident.
“…In which any other person suffers damage in respect of any property…”		“Damage,” in the South African provision, includes a penalty for failure to stop to ascertain damage. The concern in the Canadian provision is not with the damage done, but rather the intention to escape civil or criminal liability for said damage if the person leaves the scene of the accident.
“…Shall immediately stop the vehicle…”	“…Fails to stop his vehicle…”	Fairly equivalent sentences.
	“…With intent to escape civil or criminal liability.”	Intention to escape civil or criminal liability is not an element of the South African provision. The onus in the South African offence is to stop to ascertain the nature and extent of damage. The emphasis of the Canadian provision is the difference of intent between stopping the vehicle and fleeing the scene of the accident.