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La Commission de

Iimmigration
et du statut de rfugi

Immigration
Division

Section
de limmigration

0003-A4-00992
ADMISSIBILITY HEARING/ENQUTE
REASONS AND DECISION\ MOTIFS ET DCISION/
Between

Entre

Minister of Citizenship and Immigration\ Ministre de la Citoyennet et de lImmigration


-and\etS. H. M. B. NUR CHOWDHURY and Rashida KHANAM

Date(s) and place of hearing

20 August 2004

Date(s) et lieu de laudience

8 November 2004
14 June 2005

Date of decision

Member

For the person concerned

Ministers counsel

17 November 2006

Dennis Paxton

Date de la dcision

Commissaire

B. Jackman

Pour lintress(e)

C. Poulis

Conseil du ministre

S. Gold

You can obtain the translation of these reasons for decision in the other official
language by writing to the Editing and Translation Services Directorate of the
IRB, 344 Slater Street, 14th floor, Ottawa, Ontario, K1A 0K1 or by sending a
request to the following e-mail address: translation/traduction@irb.gc.ca or to
facsimile number (613) 947-3213.

Vous pouvez obtenir la traduction de ces motifs de dcision dans lautre langue
officielle dans les 72 heures en vous adressant par crit la Section de rvision et
de traduction de la CISR, 344, rue Slater, 14e tage, Ottawa (Ontario) K1A 0K1,
par courrier lectronique ladresse translation/traduction@cisr.gc.ca, ou par
tlcopieur, au (613) 947-3213.

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Immigration and
Refugee Board

2006 CanLII 52173 (CA IRB)

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IN THE MATTER OF the Immigration and Refugee Protection Act and an Admissibility

REASONS FOR DECISION

This is the record of reasons for a decision rendered under section 45 of the Immigration
and Refugee Protection Act (the Act) concerning Mr. S. H. M. B. Nur Chowdhury and
Ms. Rashida Khanam following conduct of an admissibility hearing convened under
subsection 44(2) of the Act.

On 14 May 2004, an immigration officer reported under subsection 44(1) of the Act that
Mr. Nur Chowdhury is inadmissible to Canada under paragraph 36(1)(b) of the Act by
virtue of his having been convicted of an offence outside Canada that, if committed in
Canada, would also constitute an offence under an Act of Parliament punishable by a
maximum term of imprisonment of at least ten years (Exhibit A). On 18 August 2004, the
report was referred under subsection 44(2) of the Act to the Immigration Division of the
Immigration and Refugee Board for an admissibility hearing (Exhibit A). On 28 June
2005, a further such report and referral invoking the same allegation were produced
(Exhibit G).

On 19 August 2004, an immigration officer reported under subsection 44(1) of the Act
that Ms. Khanam, by virtue of her marriage to Mr. Nur Chowdhury, is inadmissible to
Canada under paragraph 42(b) of the Act as his accompanying family member, and that
report was also referred to the Immigration Division for an admissibility hearing.

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Hearing concerning S. H. M. B. NUR CHOWDHURY and Rashida KHANAM;

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EVIDENCE

subjects of the hearing along with the following documentary material: Interpol
communications, warrants for arrest and orders to appear in court issued in Bangladesh,
and extracts from the Bangladesh Penal Code (Exhibit A); the texts of 2 decisions
rendered by the Canadian Federal Court in 2003 and a decision rendered by the Refugee
Protection Division of the Immigration and Refugee Board in 2002, all concerning the
subjects of the present hearing (Exhibit B); the text of a decision of the Supreme Court of
Bangladesh, High Court Division, on 30 April 2001 (Exhibit C); further extracts from the
Bangladesh Penal Code (Exhibit D); extracts from the Pakistan Penal Code and the text
of a decision of the Supreme Court of Bangladesh, High Court Division, on 14 December
2000 (Exhibit E); a copy of the subjects memorandum of fact filed in the Canadian
Federal Court (Exhibit F); and further extracts from the Bangladesh Penal Code (Exhibit
G).

Mr. Nur Chowdhury and Ms. Khanam are both citizens of Bangladesh by virtue of their
births in that country on 25 December 1950 and 12 January 1947 respectively (Exhibit F,
paragraph 1).

During the hearing on 14 June 2005 and in the text of legal submissions offered on their
behalf (Attachment 3, paragraph 2), the subjects conceded that they are neither citizens
nor permanent residents of Canada. They also conceded that they are married to each
other, as is reported at Exhibit F, paragraph 1.

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The substantive evidence at the hearing consisted of concessions of fact made by the

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By 1971, Mr. Nur Chowdhury was actively involved in the war leading to the
establishment of the independent state of Bangladesh in that year (viz., Exhibit G, page
6), and, according to his evidence, was honoured by the state for his service in that regard
(Exhibit F, page 1492).

Mr. Nur Chowdhury retired or was dismissed from the military in July 1974 with the rank
of lieutenant colonel (Exhibit A, pages 16, 17, 18, and 19; Exhibit E, page 10) or major
(Exhibit F, page 1492; Exhibit A, page 15).

During the very early hours of 15 August 1975, a coup dtat was effected during which
the President of the Republic of Bangladesh, Sheikh Mujibur Rahman, several members
of his immediate family, and several officials were killed at the presidential residence
(Exhibit C, page 5; Exhibit E, pages 31 to 33 and pages 171 to 173; Exhibit B, page 25;
Exhibit A, page 13).

In September 1975, the new government of Bangladesh gave Mr. Nur Chowdhury a
position in government service (Exhibit F, page 1493).

In November 1975, Mr. Chowdhury accepted a position in the Bangladesh diplomatic


corps, and commenced service in legations abroad (Exhibit B, page 25; Exhibit F, page
1492 and page 1494). Over the course of roughly twenty years of service, he occupied

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In 1969, Mr. Nur Chowdhury commenced service in the military (Exhibit F, page 1492).

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positions as ambassador, minister, director general and joint secretary (Exhibit F, page

On 14 June 1996, an election in Bangladesh resulted in the ascendance of Sheikh Hasina


Wazed, the daughter of the late former President Sheikh Mujibur Rahman, to the position
of Prime Minister (Exhibit B, page 26). Following the election, Mr. Nur Chowdhury was
recalled from his post abroad, but declined to return to Bangladesh (Exhibit F, page
1492).

On 5 July 1996, the subjects were granted status as visitors in Canada, where they
subsequently filed claims to be Convention refugees (Exhibit F, page 1492).

On 2 October 1996, following investigation in Bangladesh of the murder of President


Sheikh Mujibur Rahman and others, a police report was issued (Exhibit E, page 171),
and, ultimately, criminal charges in relation to the coup were filed and processed against
nineteen individuals (Exhibit E, page 171). A warrant was issued on 9 October 1996 for
the arrest of Mr. Nur Chowdhury as one of the nineteen (Exhibit A, page 16).

On 6 April 1997, trial commenced concerning the nineteen (Exhibit E, page 171), and, on
7 April 1997, the criminal charges were cited in court as being for conspiracy to commit
murder and for murder (Exhibit E, page 173).

On 3 August 1997, a further bench warrant was issued for the arrest of Mr. Nur
Chowdhury to face a charge of murder (Exhibit A, page 19). Of the nineteen accused, he

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1492).

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was one of fourteen who failed to attend and who were tried in absentia (Exhibit E, page

On 8 November 1998, fifteen of the accused, including Mr. Nur Chowdhury, were found
guilty and convicted for offences under sections 302 and 34 of the Penal Code of
Bangladesh as well as for an offence under section 120 of the Penal Code (Exhibit E,
pages 31 and 174; Exhibit C, page 3). Section 302 prescribes punishment for the offence
of murder (Exhibit A, page 44; Exhibit E, page 8), section 34 describes the liability of
parties to an offence (Exhibit A, page 23; Exhibit E, page 3), and section 120 describes
the offence of conspiracy (Exhibit A, pages 34 and 35; Exhibit E, page 4). Death
sentences were imposed in each case against the offenders for the convictions under
sections 302 and 34 (Exhibit E, page 174; Exhibit F, page 1495).

Under the law in Bangladesh, where a death sentence is imposed, a reference of the
sentence is automatically made under section 374 of the Penal Code to the Supreme
Court for review (viz., Exhibit A, page 14; Exhibit E, page 31; Exhibit C, page 4). In the
present case, four of the fifteen offenders filed appeals from their convictions to the
Supreme Court, and the other eleven cases, including that of Mr. Nur Chowdhury, were
referred under section 374 (Exhibit E).

On 14 December 2000, two justices of the Supreme Court of Bangladesh confirmed the
convictions and sentences of nine of the offenders, including those of Mr. Nur
Chowdhury (Exhibit E, pages 170 and 311; Exhibit C, page 4). Concerning six others,

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171).

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there were split judgments, whereupon a third justice was appointed to deal with those six

On 1 August 2002, the Refugee Division of the Immigration and Refugee Board
determined that the subjects are not Convention refugees (Exhibit B).

On 19 December 2003, the Federal Court dismissed an application to have the


determination of the Refugee Division set aside (Exhibit B).

As noted above, on 14 May 2004 and again on 28 June 2005, immigration officers
reported that Mr. Nur Chowdhury is inadmissible to Canada under paragraph 36(1)(b) of
the Act by virtue of his convictions (Exhibit A, page 3; Exhibit G, page 2). An officer
also reported on 19 August 2004 that Ms. Khanam is inadmissible under paragraph 42(b)
of the Act by virtue of being the accompanying family member of an inadmissible person
(Exhibit A, page 6).

ARGUMENTS
On the foregoing evidence, the Ministers counsel argue (Attachment 3) that the
Canadian equivalents to the offences for which Mr. Nur Chowdhury has been convicted
in Bangladesh are found in the provisions of the Canadian Criminal Code relating to the
offences of murder and of conspiracy.

The pertinent Canadian provisions to which reference is made concerning murder are
found in the Criminal Code as follows:

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cases only in order to break the deadlock in those matters (Exhibit C).

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229. Culpable homicide is murder

(i)

means to cause his death, or

(ii)

means to cause him bodily harm that he knows is likely to cause


his death, and is reckless whether death ensues or not;

(b) where a person, meaning to cause death to a human being or meaning to


cause him bodily harm that he knows is likely to cause his death, and being
reckless whether death ensues or not, by accident or mistake causes death to
another human being, notwithstanding that he does not mean to cause death
or bodily harm to that human being; or
(c) where a person, for an unlawful object, does anything that he knows or ought
to know is likely to cause death, and thereby causes death to a human being,
notwithstanding that he desires to effect his object without causing death or
bodily harm to any human being.
231(2). Murder is first degree murder when it is planned and deliberate.
235(1). Every one who commits first degree murder or second degree murder is
guilty of an indictable offence and shall be sentenced to imprisonment for life.

The Canadian provisions concerning conspiracy are found as follows in the Criminal
Code:

465(1)(a) Except where otherwise expressly provided by law, the following


provisions apply in respect of conspiracy: every one who conspires with any one
to commit murder or to cause another person to be murdered, whether in Canada
or not, is guilty of an indictable offence and liable to a maximum term of
imprisonment for life.

Given that there is liability to life imprisonment for both offences if committed in
Canada, they argue that Mr. Nur Chowdhury is inadmissible to Canada under paragraph
36(1)(b) of the Act on that account.

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(a) where the person who causes the death of a human being

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They argue further that, by virtue of being the spouse of Mr. Nur Chowdhury, a person

the Act.

Mr. Nur Chowdhurys counsel argues (Attachment 4) that no certificate or record has
been presented to confirm that a conviction was ever registered at all against Mr.
Chowdhury in Bangladesh, that the copies of the Bangladesh law as provided by the
Ministers counsel are deficient and fail properly to establish the text of the law that was
purportedly applied against Mr. Nur Chowdhury, and that no equivalent can be drawn
between Bangladesh and Canadian law in this matter because Mr. Nur Chowdhury was
tried in Bangladesh in absentia in circumstances under which no trial on such charges
under Canadian law could ever have proceeded at all.

ANALYSIS
On the basis of the concessions of fact offered by the subjects, I conclude that they are
neither citizens nor permanent residents of Canada. They are, therefore, foreign nationals,
as that term is defined in section 2 of the Act.

I am further satisfied from the evidence that Mr. Nur Chowdhury was convicted in
Bangladesh of murder and of conspiracy to commit murder. While his counsel invites a
conclusion that, in the absence of a record or certificate of conviction, no inference
should properly be drawn that any conviction was registered, the evidence is so clear,
even in the absence of such a record or certificate, that no inference need be drawn. As
noted above, at Exhibit E, pages 31 and 174 and at Exhibit C, page 3, references are

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inadmissible to Canada, Ms. Khanam is equally inadmissible under paragraph 42(b) of

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made by the Supreme Court of Bangladesh to the convictions rendered against Mr. Nur

confirmed those very convictions (Exhibit E, pages 170 and 311; Exhibit C, page 4). It is
clear from the evidence that a death sentence was imposed; it is difficult to imagine how
such a sentence could be rendered without a finding of guilt and the registration of a
conviction, especially given the evidence that the criminal legislation in Bangladesh is
adopted from British law (Exhibit G, page 6).

As noted above, it is equally clear that the convictions were registered for the crimes of
murder and of conspiring to commit murder. Ruhul Amin J. of the Supreme Court of
Bangladesh noted as follows (Exhibit E, page 31):

The learned Sessions Judge upon convicting 15 accused persons out of 19


accused persons, under section 120B and 302/34 of the Penal code sentenced all
of them to death under section 302/34 of the Penal Code by the judgement and
order dated 8-11-1998.

At the conclusion of his decision, he ruled as follows (Exhibit E, page 170):

The conviction of the aforesaid 9 (Nine) Condemned convicts under section


302/34 and 120B of the Penal Code is mentioned and their sentence under
section 302/34 and 120B of the Penal code passed by the learned Sessions Judge,
Dhaka in Sessions Case no. 319 of 1997 is upheld.

Equally, Khairul Haque J. of the Supreme Court of Bangladesh noted as follows (Exhibit
E, page 171):

The learned Sessions Judge, Dhaka, after a prolonged trial which commenced on
6.4.1997 and ended with the pronouncement of judgement on 8.11.1998,

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Chowdhury, among others. Further, the Supreme Court, according to the evidence,

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acquitted 4 (four) accused persons and found the rest 15 (fifteen) accused persons
code and they were all sentenced to death.

He concluded his judgment in the following terms (Exhibit E, page 311):

In view of the reasons set out above in this judgment, the conviction of the
offence under Section 302 read with Section 34 of the Penal code is confirmed as
against accused Lt. Col. Syed Faruque Rahman, Lt. Col. Sultan Shahriar Rashid
Kahan, Lt. Col. Mohiuddin Ahmed (Artillery), Lt. Col. Khondker Abdur Rashid,
Major Bazlul Huda, Lt. Col. Sharful Huq Dalim, Major Ahmed Sharful Hosssain
alias Shariful Islam, Lt Col. A. M. Rashed Chowdhury, Lt. Col. A. K. M.
Mohiuddin Ahmed (Lancer), Lt. Col. S. H. M. B. Nur Chowdhury, Lt. Col. Abdul
Aziz Pasha, Captain Md. Kismat Hashem, captain Nazmul Hossain Ansar,
Captain Abdul Majed, Risaldar Moslemuddin alias Moslehuddin. (Emphasis
added)
The conviction under section 120B of the Penal code passed against all of them is
also confirmed.

Finally, Fazlul Karim J. of the Supreme Court of Bangladesh noted as follows at the
outset of his judgment (Exhibit C, page 3):

The Learned Sessions Judge, Dhaka passed the order of conviction under section
302/34 of the Penal code in respect of 15 accused in Sessions Case No. 319 of
1997 and sentenced them to death and although the accused were also found
guilty under section 120B of the Penal code but in view of the sentence awarded
under section 302/34 no separate sentence was passed against them.

He noted further as follows (Exhibit C, page 4):

Upon hearing the Death Reference No. 30 of 1998 together with the aforesaid
appeals, by a split judgment dated 14-12-2000 the learned Judges of the High
Court division concurrently affirmed the conviction and sentence of 9
condemned accused, namely, Lieutenant Colonel Syed Farook Rahman,

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guilty of the offences of under Section 302/34 and Section 120B of the penal

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Lieutenant Colonel Sultan Shariar Khan, Lieutenant Colonel Khondaker Abdur


U., A. K. M. Mohiuddin (Lancer), Lieutenant Colonel S. H. B. M. Nur
Chowdhury and Lieutenant Colonel Md. Abdul Aziz Pasha under section 302/34
and 120B of the Penal code accepting the Reference in respect of the aforesaid
accused. (Emphasis added)

Extracts of two editions of the Bangladesh Penal Code are in evidence (Exhibits A and
D; Exhibit G). They provide the following text with reference to the sections cited by the
Supreme Court of Bangladesh in the extracts above:

302. Whoever commits murder shall be punished with death, or imprisonment for
life, and shall also be liable to fine. (Exhibit A, page 44; Exhibit G, page 36)
34. When a criminal act is done by several persons, in furtherance of the
common intention of all, each of such persons is liable for that act in the
same manner as if it were done by him alone. (Exhibit A, page 23; Exhibit
G, page 12)
120B. (1) Whoever is a party to a criminal conspiracy to commit an offence
punishable with death, imprisonment for life or rigorous imprisonment for a term
of two years or upwards shall, where no express provision is made in the s Code
for the punishment of such a conspiracy, be punished in the same manner as if he
had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal
conspiracy to commit an offence punishable as aforesaid shall be punished with
imprisonment of either description for a term not exceeding six months or with
fine or with both. (Exhibit A, page 35; Exhibit G, page 22)

There can be no doubt from the evidence that Mr. Nur Chowdhury was one of several
convicted of murder and of conspiracy to commit murder in Bangladesh.

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Rashid, Major Md. Bazlul Huda, Lieutenant Colonel Shariful Hoque Dalim, B.

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Section 229 of the Criminal Code provides that, in Canada, the offence of murder is

page 7 above). Likewise, section 300 of the Penal Code provides, in part, as follows:

Except in the cases hereinafter excepted, culpable homicide is murder if the act
by which the death is caused is done with the intention of causing death (Exhibit
D, page 8; Exhibit E, page 6; Exhibit G, page 28).

According to the evidence before the trial judge in Bangladesh convicting Mr. Nur
Chowdhury, he was a participant with a number of other men in the coup on 15 August
1975, proceeding with the others to the Presidents house in the middle of the night
wearing battle fatigues and bearing firearms. Once the President was located and
apprehended in the house, Mr. Nur Chowdhury and a companion, according to the
evidence, shot and killed him with their Sten guns (Sten n. ~ (gun), type of lightweight
submachine-gun The Concise Oxford Dictionary of Current English, Sixth Edition,
page 1126). (Exhibit E, pages 31 to 33, pages 118 to 125, page 172, and pages 268 to
271; Exhibit C, pages 5 and 6).

I am satisfied from the definitions of murder as found in paragraph 229(a) of the


Criminal Code (pages 6 and 7 above) and in section 300 of the Penal Code that, in the
circumstances of the present case, the offences are equivalent in Canada and Bangladesh.
In each case, murder is comprised of causing the death of a person with intention to do
so. The courts in Bangladesh found that Mr. Nur Chowdhury had walked into the home
of the victim and killed him by shooting him with a submachine gun. On those facts, the
elements of the crime of murder are clearly established for purposes of both jurisdictions.

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effected where a person who causes the death of another means to cause his death (viz.,

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The courts in Bangladesh also found Mr. Nur Chowdhury and the others convicted to

the Penal Code (reproduced at page 11 above) was invoked against them. The Ministers
counsel point to subsection 21(2) of the Criminal Code as the applicable Canadian
equivalent:

Where two or more persons form and intention in common to carry out an
unlawful purpose and to assist each other therein and any one of them, in
carrying out the common purpose, commits an offence, each of them who knew
or ought to have known that the commission of the offence would be a probable
consequence of carrying out the common purpose is a party to that offence.

Subsection 21(2) of the Criminal Code, however, pertains to the corollary commission of
an offence incidental to the common intention to carry out an unlawful purpose; it has no
application where the unlawful purpose is the same as the offence charged (R. v. Simpson
and Ochs, [1988] 1 S.C.R. 3).

Paragraph 21(1)(b) Criminal Code provides as follows:

Every one is a party to an offence who does or omits to do anything for the
purpose of aiding any person to commit it.

In R. v. Kirkness,[1990] 3 S.C.R. 74, the Court held that, in a homicide case, paragraph
21(1)(b) of the Criminal Code may apply only where the accused harbours in common
with the primary offender the intent to effect the death of the victim.

In my judgment, paragraph 21(1)(b) of the Criminal Code and section 34 of the Penal
Code are equivalent in their effect. Each renders those participating in some way in the

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have been parties to all the murders committed during the coup insofar as section 34 of

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commission of an offence in common cause with the principal offender to be guilty of

annotation 16 DLR 177 SC and annotation PLD 1960 SC 254) constitute examples of
offences in which, if situated in Canada, paragraph 21(1)(b) of the Criminal Code would
apply just as section 34 of the Penal Code applied in Bangladesh.

Mr. Nur Chowdhury was also found guilty as charged of conspiracy to commit the
murder of Sheikh Mujibur Rahman and the members of his family. Section 120A of the
Penal Code defines criminal conspiracy as follows (Exhibit E, page 4; Exhibit G, page
20; Exhibit A, page 34 appears to misprint the provision such as to change its meaning):

When two or more persons agree to do, or cause to be done


(1) an illegal act, or
(2) an act which is not illegal by illegal means,
such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall
amount to a criminal conspiracy unless some act besides the agreement is done
by one or more parties to such agreement in pursuance thereof.
Explanation It is immaterial whether the illegal act is the ultimate object of
such agreement, or is merely incidental to that object.

At pages 38 through 40 of Exhibit A, Ruhul Amin J. of the Supreme Court of Bangladesh


cites a summary of conspiracy law as offered in State vs. Nalini (1999), 5 S.C.C. 253.
Some highlights of that summary follow:

1. Under section 120A IPC offence of criminal conspiracy is committed when


two or more persons agree to do or cause to be done an illegal act or legal act

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that offence. Some annotations to the Penal Code provided in Exhibit A (viz., page 23,

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by illegal means. When it is a legal act by illegal means overt act is


where intent alone does not constitute crime. It is intention to commit crime
and joining hands with person having the same intention. Not only the
intention but there has to be agreement to carry out the object of the
intention, which is an offence.
5.

When two or more persons agree to commit a crime of conspiracy, then


regardless of making or considering any plans for its commission, and
despite the fact that no step is taken by any such person to carry out their
common purpose, a crime is committed by each and every one who joins in
the agreement. There has thus to be two conspirators and there may be
more than that. To prove the charge of conspiracy it is not necessary that
intended crime was committed or not. If committed it may further help
prosecution to prove the charge of conspiracy.

8. As stated above it is the unlawful agreement and not its accomplishment


which is the gist or essence of the crime of conspiracy. Offence of criminal
conspiracy is complete even though there is no agreement as to means by
which the purpose is to be accomplished. It is the unlawful agreement which
is the gravamen of the crime of conspiracy. .

There is no codified definition of conspiracy in Canadian criminal law. However, as


noted by the Ministers counsel in their submission, the offence is defined in Mulchahy v.
The Queen, [1863] L.R.H.L. 306 at page 317:

A conspiracy consists not merely in the intention of two or more, but in the
agreement of two or more to do an unlawful act, or to do a lawful act by unlawful
means. So long as such design rests in intention only, it is not indictable. When
two agree to carry it into effect, the very plot is an act in itself, and the act of
each of the parties, promise against promise, actus contra actum, capable of
being enforced, if lawful, punishable if for a criminal object or for the use of
criminal means.

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necessary. Offence of criminal conspiracy is an exception to the general law

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Clearly, there is congruency between the criminal law in Bangladesh and the criminal law

of an agreement between parties to commit an unlawful act or to achieve a lawful end by


unlawful means. I am satisfied on the evidence that there is equivalency in the provisions.
I have already found that the crime of murder is also equivalent in both jurisdictions;
therefore, I conclude that there is equivalency between the offence of conspiracy to
commit murder in Bangladesh and the same offence in Canada.

As noted above, the subjects counsel argues that the documentary evidence containing
the pertinent statutory provisions of Bangladesh does not establish what the law is or was
in Bangladesh at the time of the alleged offences or of the charges and convictions. None
of the evidence, she contends, was submitted under affidavit to prove its authenticity, and
only two of the four extracts provided bear dates, those being 1974 and 2003, neither of
which corresponds to the dates of the alleged offences, charges or convictions
(Attachment 4, pages 11 and 12).

The evidence pertinent to the law in Bangladesh is found in Exhibits A, D, E, and G.


Under section 173 of the Act, the Immigration Division is not bound by any legal or
technical rules of evidence and may receive and base a decision on evidence adduced at a
hearing that it considers credible or trustworthy in the circumstances. Thus, there is no
requirement in law that documentary evidence be presented under affidavit. The extracts
in Exhibit D do not include a title page; however, the remaining exhibits do so. The title
pages and preface to the extracts at pages 4 to 6 in Exhibit G clearly refer to the

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in Canada as to what constitutes conspiracy. In each jurisdiction, conspiracy is comprised

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Bangladesh Penal Code as it stood in 2003 (page 5). Exhibit E actually contains portions

of Exhibit G, the Pakistan Code was simply taken over wholesale as domestic law by
Bangladesh at the time of independence, effective 26 March 1971 (Exhibit G, page 6).
Thus, a comparison of Exhibits E and G may serve to disclose any change in the
legislation between 1974 and 2003. Such a comparison reveals that the provisions of the
Penal Code pertinent to the present proceedings, sections 34, 120A, 120B, and 299
through 301 are identical in both versions. I am prepared to conclude, therefore, that there
is no evidence that those provisions in the Penal Code as provided are any different from
those applied against Mr. Nur Chowdhury. Moreover, there is no reason to doubt that the
material provided does indeed reflect the law applicable in Bangladesh. The extracts from
Exhibit G originate in Dhaka, the capital city of Bangladesh, and the preface describes
the history of the establishment of the Penal Code in that country (pages 4 to 6). The title
page for the material provided at page 2 in Exhibit E verifies that the material is extracted
from the Pakistan Penal Code up to 1974. The title page of the material provided in
Exhibit A at page 22 refers to the editor as a former examiner of law at the University of
Chittagong, a city in Bangladesh. All of the material in the four exhibits is mutually
consistent. For these reasons, I am satisfied that the law that was applied against Mr. Nur
Chowdhury in Bangladesh has been provided for consideration at the present hearing.

Beyond that, as the Ministers counsel submitted (Attachment 3, page 4), the Federal
Court of Appeal in Hill v. Canada (Minister of Employment and Immigration)(1987), 1
Imm. L. R. (2d) 1 held that the equivalency between a foreign and a Canadian offence

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of the Pakistan Penal Code as of 1974 (pages 1 and 2); however, as explained at page 6

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may be derived from an examination of the evidence before the foreign court in order to

proven. In my judgment, even without the benefit of access to pertinent provisions of the
Bangladesh Penal Code, the extensive material available in Exhibits C and E of the
evidence before the Sessions Judge and the Supreme Court of Bangladesh establish that
Mr. Nur Chowdhury was convicted in that country on facts that would have left him
liable to conviction in Canada for murder and conspiracy to commit murder had the
offences been committed in Canada. As noted above, he was found to have taken part in
an orchestrated plot to kill the President and, in fact, to have partaken in the coup dtat
that occurred on 15 August 1975 to the extent that he had stormed the Presidents home
in concert with his companions and to have used his submachine gun to shoot and kill the
President. He was found by such action to have intentionally caused the death of the
President. Such conduct in Canada would, by the definitions of murder and conspiracy as
cited above, lead to findings of guilt for those offences.

A further submission advanced on behalf of the subjects is that the convictions against
Mr. Nur Chowdhury cannot be found equivalent to Canadian offences because the
convictions were registered following trial in absentia in Bangladesh in circumstances
under which no such trial would have proceeded in Canada. While there is provision
under section 475 of the Criminal Code for a trial to proceed in the absence of the
accused where the accused has absconded during the trial, there is no provision in
Canada for the trial to proceed in the absence of the accused where he has never appeared
at the trial. By contrast, Mr. Nur Chowdhury was considered to have absconded even

2006 CanLII 52173 (CA IRB)

determine whether, on such evidence, the elements of the Canadian offence had been

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prior to convening of the trial on 6 April 1997 (viz., Exhibit A, pages 14, 17 and 18), and

argued, an essential element of a conviction in Canada, the presence of the accused at


trial, has not been established.

Both parties cite the decision of the Federal Court of Appeal in Li v. Canada, [1997] 1
F.C. 235 on this issue. The appellant had been found to be inadmissible to Canada by
virtue of his conviction in Hong Kong for bribery. On its review, the Court held that the
corresponding Canadian provision cited was not equivalent and allowed the appeal. In its
deliberations, the Court held that defences available against any particular charge under
Canadian law must be considered as elements or ingredients to be addressed in
determining whether the Canadian provision is equivalent to the foreign offence. Relying
on this reasoning, the subjects counsel argues that the offences for which convictions
were registered against Mr. Nur Chowdhury in Bangladesh cannot be held to be
equivalent to murder and conspiracy to commit murder under Canadian law because an
essential element of securing a conviction for a serious indictable offence in Canada is
the presence of the accused at the whole of the trial, unless it can be shown that the
accused absconded at trial (Attachment 4, page 13, paragraph 16). In my judgment, the
very wording of that submission exposes its fallacy. What is properly compared in the
present case and in any case of this sort is not whether the conviction in the foreign
jurisdiction would be equivalent to a conviction in Canada, but whether the offence for
which the conviction was registered in the foreign jurisdiction is equivalent to an offence
in Canada. Clearly, whether one is present at ones trial is neither a defence to nor an

2006 CanLII 52173 (CA IRB)

the trial proceeded even though he had never appeared at the trial. On those facts, it is

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element of an offence. The subjects counsel cites paragraph 18 of the decision in Li in

exception of the last sentence of that paragraph, which, in referring to paragraph


19(2)(a.1)(i) of the Immigration Act, a provision comparable to paragraph 36(1)(b) of the
current Act in the predecessor to the current Act, reads as follows:

For the purpose of subparagraph 19(2)(a.1)(i) of the Immigration Act it is not


necessary to compare all the general principles of criminal responsibility in the
two systems: what is being examined is the comparability of offences, not the
comparability of possible convictions in the two countries. (Emphasis added)

The Ministers counsel cites paragraph 25 of Li in support of her argument that whether
Mr. Nur Chowdhury was convicted in absentia is immaterial to the question of whether
Canadian equivalents to the offences of which he was convicted in Bangladesh exist
(Attachment 3, pages 11 and 12). In my judgment, portions of that paragraph not cited by
her as well as portions so cited bear repeating here:

I believe it is necessary to return again to the language of subparagraph


19(2)(a.1)(i) of the Immigration Act, which requires that the person in question
have been convicted outside Canada of an offence that, if committed in Canada,
would constitute an offence [under Canadian federal law punishable by way of
indictment]. As the Adjudicator said to Mr. Li:
The issue before me Mr. Li, is whether a Canadian equivalent exists for the
offence for which you were convicted outside Canada, not whether you would
have been convicted in Canada for the offence.
I agree with this analysis of the statutory language..
What must be compared are the factual and legal criteria for establishing the
offence both abroad and in Canada. It is not necessary to compare the adjectival
law by which a conviction might or might not be entered in each country.

2006 CanLII 52173 (CA IRB)

support of her argument (Attachment 4, page 13, paragraph 14) with the notable

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The Act does not contemplate a retrial of the case applying Canadian rules of
conviction abroad. This is so whether the Canadian standards of procedure or
evidence sought to be applied are based on the Charter, statute, or common
law.

In so reasoning, the Court concluded that equivalency between the burdens of proof
applicable in court on an offence cited in a foreign jurisdiction and under Canadian law
was not necessary for equivalency between the two provisions to be found. Applying the
same reasoning, I conclude that Mr. Nur Chowdhurys convictions in Bangladesh in
absentia under circumstances in which no such conviction would have been registered in
Canada have no bearing on the question of whether the offences of which he was
convicted are equivalent to offences under Canadian law. That he was tried in absentia in
Bangladesh is clearly a matter of adjectival or procedural law that need not be
considered.

As noted above, an offender found guilty in Canada of murder or of conspiracy to


commit murder is liable, under sections 235 and 465 of the Criminal Code respectively,
to life imprisonment, a period greater than ten years.

I conclude, therefore, that Mr. Nur Chowdhury is inadmissible as alleged under


paragraph 36(1)(b) of the Act by virtue of his having been convicted of offences outside
Canada that, if committed in Canada, would constitute offences under an Act of
Parliament punishable by a maximum term of imprisonment of at least ten years.

2006 CanLII 52173 (CA IRB)

evidence. Nor does it contemplate an examination of the validity of the

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I further conclude that Ms. Khanam is a member of Mr. Nur Chowdhurys family by

Protection Regulations). She accompanies him currently in Canada. Insofar as Mr. Nur
Chowdhury is inadmissible under paragraph 36(1)(b) of the Act, she is also, therefore,
inadmissible under paragraph 42(b) of the Act as alleged.

CANADIAN CHARTER OF RIGHTS AND FREEDOMS


Notwithstanding the foregoing finding, the subjects counsel argues that section 33 of the
Act, which provides that the standard of proof applicable in cases involving paragraph
36(1)(b) of the Act is reasonable grounds to believe rather than the usual civil standard of
the balance of probabilities, and paragraph 36(1)(b) of the Act should be deemed
inapplicable in Mr. Nur Chowdhurys case by virtue of subsection 52(1) of the
Constitution Act, 1982 and of section 7 as well as subsection 15(1) of the Canadian
Charter of Rights and Freedoms (viz., Attachments 1, 2, 4, and 6). Therefore, it is argued,
the present hearing should either conclude with a finding that he is not inadmissible under
paragraph 36(1)(b) of the Act by virtue of its inoperability or be stayed (Attachment 4,
page 22, paragraphs 48 and 49).

Subsection 52(1) of the Constitution Act, 1982 provides as follows:

The Constitution of Canada is the supreme law of Canada, and any law that
is inconsistent with the Constitution is, to the extent of the inconsistency, of
no force or effect.

Section 7 and subsection 15(1) of the Charter read as follows:

2006 CanLII 52173 (CA IRB)

virtue of being his spouse (viz., paragraph 1(3)(a) of the Immigration and Refugee

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7. Everyone has the right to life, liberty and security of the person and the
fundamental justice.
15(1). Every individual is equal before and under law and has the right to
the equal protection and equal benefit of the law without discrimination and,
in particular, without discrimination based on race, national or ethnic
origin, colour, religion, sex, age or mental or physical disability.

Section 7

As I understand the argument advanced on behalf of the subjects, section 33 of the Act
should be deemed to be of no force or effect in their case, as per subsection 52(1) of the
Constitution Act,1982, because the applicable standard of proof under its provision, being
lower than the usual civil standard of the balance of probabilities, would contravene Mr.
Nur Chowdhurys right under section 7 of the Charter not to be deprived of his life,
liberty or security of the person except in accordance with the principles of fundamental
justice, in light especially of the particular facts of his case that include his having been
convicted in Bangladesh in absentia and his being required to face capital punishment
should he return or be returned there. The submission on his behalf is that the lower
standard of proof, being reasonable grounds to believe rather than the balance of
probabilities, sets a standard for acceptance of evidence which is disproportionate to the
gravity of the consequences of the decision to be made (Attachment 2, page 2, paragraph
4a). With every respect, this argument, in my judgment, cannot withstand scrutiny. The
evidence adduced to show the convictions and the law in Bangladesh far surpasses, in my
judgment, proof of reasonable grounds to believe that the convictions were registered for
the offences cited against him. As noted in the deliberations above, the Supreme Court of

2006 CanLII 52173 (CA IRB)

right not to be deprived thereof except in accordance with the principles of

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Bangladesh sat in review of his case because capital punishment had been imposed

convicted, the Supreme Court would not have sat in such review . The Courts records of
reasons for decision clearly refer to the convictions registered against him for murder and
for conspiracy to commit murder. The records in Exhibit E set out the evidence on which
the Court confirmed the convictions, including the evidence of Mr. Nur Chowdhurys
participation in the coup dtat and his having fired upon the victim with a submachine
gun (Exhibit E, pages 118 to 125 and pages 268 to 271). The Interpol correspondence
filed in evidence refers to the conviction against Mr. Nur Chowdhury in Bangladesh for
murder (Exhibit A, pages 10 and 14). In my judgment, such evidence is virtually
conclusive that the convictions were registered as alleged. The Ministers officers have
gone far beyond their onus to establish reasonable grounds to believe that the convictions
were registered; in fact, they have presented evidence that meets and, perhaps, surpasses
the usual civil standard, the balance of probabilities. As noted above, they have also
presented reliable and conclusive prima facie evidence of the applicable criminal law in
Bangladesh. Whether there is a Canadian equivalent of such law is a matter of legal
interpretation that does not involve the standard of proof. Thus, I cannot see how Mr. Nur
Chowdhury can complain that he was rendered victim of the lower standard of proof
cited in section 33 of the Act. Imposition of the usual civil standard of proof would not
have saved him from a finding that he is inadmissible.

As to the applicability of paragraph 36(1)(b) of the Act in this case, the subjects counsel
compares the Act to the provisions of the Canadian Extradition Act according to which, if

2006 CanLII 52173 (CA IRB)

(Exhibit E, pages 31 and 171; Exhibit C, page 3); presumably, had he not been so

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a person subject to an extradition request has been convicted in absentia abroad, he is to

made for the offence under consideration rather than just proof of a conviction for the
offence. As I understand the argument, given that Mr. Nur Chowdhury was convicted in
absentia in Bangladesh and that capital punishment has been imposed, the Ministers
officers ought more properly have reported him under a different portion of the Act (that I
take to be a reference to paragraph 36(1)(c) of the Act whereby a person is inadmissible
to Canada if there are reasonable grounds to believe that he or she has committed an
offence in a foreign jurisdiction for which a Canadian equivalent exists punishable by a
maximum term of imprisonment of at least ten years). To find him inadmissible under
paragraph 36(1)(b) for a conviction registered in absentia for which capital punishment
has been imposed would be to abrogate his entitlement to fundamental justice under
section 7 of the Charter.

As noted by the subjects counsel (Attachment 1, paragraph 16; Attachment 4, paragraph


28), the Supreme Court of Canada has proscribed removal or extradition of a person from
Canada to face capital punishment abroad. To that effect, the Interpol service in Ottawa
notes in its missive of 24 May 2004 (Exhibit A, page 10) as follows:

Department of Justice Canada has decided not to immediately extradite the a/m
subject since the death penalty prevails in Bangladesh. If theres a change of
policy in Canada or Bangladesh regarding the sentencing, the subject may be
extradited then.

Clearly, removal to Bangladesh is not foreseeable as long as the sentence to capital


punishment remains in effect against Mr. Nur Chowdhury. On that basis, I accept the

2006 CanLII 52173 (CA IRB)

be treated as a person who has not been convicted such that a prima facie case must be

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arguments of the Ministers counsel as set out at pages 2 and 3 of Attachment 5 to the

removal order does not offend his entitlements under section 7 of the Charter. Such an
order may remain unexecuted indefinitely unless and until the sentence is commuted, for
example, by executive order of the government of Bangladesh. In dismissing the
subjects application for an order setting aside the determination of the Refugee
Protection Division of the Immigration and Refugee Board that the subjects do not
qualify for protection as Convention refugees, the Federal Court noted as follows
(Exhibit B, page 12, paragraph 62):

Behind this Application, in my opinion, lies a justifiable fear that, if returned to


Bangladesh, the Principal Applicant at least could face torture and death. This
issue will need to be confronted directly if a decision is made to deport him. The
Panel, however, was fixed with considering the refugee status of the Applicants.

Similarly, the present tribunal is fixed with the obligation of determining whether the
subjects are inadmissible under the Act. Any decision as to whether actually to execute
any removal orders lies with the Minister; no decision is being made at the present
hearing to effect removal. Moreover, in contrast to an extradition order intended to return
an offender to a specific jurisdiction to be subject to the criminal legal system of that
jurisdiction, a removal order under the Act may be executed to a third country, where
possible, at the discretion of the Minister (viz., section 241 of the Immigration and
Refugee Protection Regulations). A finding of inadmissibility under paragraph 36(1)(b)
of the Act, therefore, does not deprive the subjects of life, liberty or security of the person
in contravention of the principles of fundamental justice.

2006 CanLII 52173 (CA IRB)

effect that a finding that he is inadmissible and the rendering of any consequential

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As to whether a conviction in absentia in Bangladesh renders such a finding in

by the subjects counsel, is not unknown. The evidence discloses that the trial proceeded
in absentia in Bangladesh not because, as suggested by Mr. Nur Chowdhurys counsel at
paragraphs 8 and 16 of Attachment 4, no proper notice of the trial was provided to him
but, rather, because he elected neither to attend nor to provide instruction to his counsel
appointed for him for purposes of the trial. In determining that Mr. Nur Chowdhury was
not entitled to protection in Canada as a Convention refugee, the Refugee Protection
Division of the Immigration and Refugee Board found as follows (Exhibit B, pages 6 and
7):

Does the fact that the principal claimant was not physically present during the
various hearings render the entire criminal proceedings unfair and biased? Does
the fact that he refused to put together his own defence render the entire criminal
proceedings unfair and biased? The panel determines that the answer to both of
these questions is NO. As stated, the Bangladeshi courts had appointed a
defence lawyer to represent the principal claimant, after the latter failed to appear
in person. It was the principal claimant who chose not to appear for the hearings.
It was he who chose not to communicate with his court-appointed defence lawyer
in order to put together his own defence. The panel finds it reasonable to expect
the principal claimant to have asked the witnesses who corroborated his alibi
during this refugee hearing to have at least had sworn affidavits stating what they
had testified to at this refugee hearing.

Clearly, the evidence before the Refugee Protection Division was that Mr. Nur
Chowdhury wilfully declined to attend his trial or even to submit any evidence on his
own behalf from abroad. For technical reasons, a criminal trial in Canada would not,
under such circumstances, have proceeded; rather, in all likelihood, a warrant would have

2006 CanLII 52173 (CA IRB)

contravention of section 7 of the Charter, trial in absentia in Canada, as acknowledged

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been made for his arrest for trial, to be held in abeyance pending his arrest. With every

should be considered nugatory because Mr. Nur Chowdhury successfully absconded from
the trial is far from convincing. On the evidence, he knew that the trial was pending, and
chose to take no part whatsoever. He can hardly be heard to complain now that the trial
was unfair on grounds that he marshalled no defence. He had every opportunity, but
elected not to do so. Whether he absconded before or, as would be required in Canada,
during the trial is, in my judgment, a specious distinction that does not engage the
provisions of section 7 of the Charter.

Section 15

According to further argument offered on behalf of Mr. Nur Chowdhury, his right under
subsection 15(1) of the Charter to treatment and benefit under the law equal to that of
others is infringed in the present hearing by virtue of his national origin. The submission,
as I understand it, is that, because he is a national of Bangladesh where human rights are
flagrantly denied, because there is no extradition treaty between Bangladesh and Canada,
and because, in any event, of the imposition of the death penalty, proceedings under the
Extradition Act against Mr. Nur Chowdhury have been forsaken in favour of the present
hearing. Extradition proceedings, it is argued, offer more safeguards to anyone subject

2006 CanLII 52173 (CA IRB)

respect, an argument that, under section 7 of the Charter, the verdict in Bangladesh

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thereto, safeguards unavailable to those subject to an admissibility hearing under the Act,

rather than merely to show reasonable grounds to believe, the treatment of a conviction
abroad in absentia as a charge rather than as a conviction, and the personal involvement
of the Minister of Justice in any final decision as to whether to surrender the subject to
the foreign jurisdiction. Were Mr. Nur Chowdhury a citizen of a nation that honours basic
human rights, it is argued, extradition proceedings would have been initiated (Attachment
1, paragraph 33); however, by virtue of his very nationality, extradition is not feasible,
and he is, therefore, unfairly and discriminately rendered subject to the very much less
favourably designed procedures of the present admissibility hearing, contrary to the
provisions of subsection 15(1) of the Charter.

In response, the Ministers counsel rely on the reasoning of the Supreme Court of Canada
in Law v .Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497.
There, the Court describes, at paragraph 51, the purpose of subsection 15(1) of the
Charter in the following terms:

to prevent the violation of essential human dignity and freedom through the
imposition of disadvantage, stereotyping, or political or social prejudice, and to
promote a society in which all persons enjoy equal recognition at law as human
beings or as members of Canadian society, equally capable and equally deserving
concern, respect and consideration.

At paragraph 39, the Court sets out the following criteria for purposes of considering
whether, in any given case, the provisions of subsection 15(1) of the Charter are
contradicted:

2006 CanLII 52173 (CA IRB)

including a judicial hearing, the requirement for the Crown to establish a prima facie case

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First, does the impugned law (a) draw a formal distinction between the claimant
into account the claimants already disadvantaged position within Canadian
society resulting in substantively differential treatment between the claimant and
others on the basis of one or more personal characteristics? If so, there is
differential treatment for the purpose of s. 15(1). Second, was the claimant
subject to differential treatment on the basis of one or more of the enumerated
and analogous grounds? And third, does the differential treatment discriminate in
a substantive sense, bringing into play the purpose of s. 15(1) of the Charter in
remedying such ills as prejudice, stereotyping and historical disadvantage?

Applying those criteria, the Ministers counsel argues that no discrimination as


contemplated under subsection 15(1) of the Charter is visited upon Mr. Nur Chowdhury
by the application of paragraph 36(1)(b) of the Act.

For the following reasons, I am unable to accept the arguments advanced on behalf of the
subjects for a decision declaring paragraph 36(1)(b) of the Act to be inapplicable in this
case.

First, inherent and, indeed, explicitly argued in the submission offered on behalf of the
subjects is the proposition that the Canadian government must choose, in any given case
involving outstanding foreign criminality, between extradition and deportation
proceedings (viz., Attachment 6, paragraphs 14 and 15). With every respect, I fail to see
why choice between the two procedures is an issue. In Halm v. Canada (Minister of
Employment and Immigration), [1996] 1 F.C. 547, the Federal Court noted as follows at
paragraph 31:

2006 CanLII 52173 (CA IRB)

and others on the basis of one or more personal characteristics, or (b) fail to take

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Fundamentally, irrespective of the action or inaction of a foreign government in


effective deportation proceedings in respect of an alien that Canada does not wish
to remain in this country.

It follows, therefore, that both extradition and deportation proceedings may properly be
initiated in any given case. I see no foundation for the assertion of the subjects counsel at
Attachment 6, paragraph 14 that (t)he choice to deport Mr. Chowdhury has been made
in the context of a clear conclusion that extradition will not be entertained I know of
no evidence to sustain that assertion. We know that extradition to Bangladesh is currently
not being pursued because Mr. Nur Chowdhury remains subject to capital punishment
there (Exhibit A, page 10); however, such does not mean that, even if extradition were an
option, the Minister would not have also initiated deportation proceedings under the Act.
As noted by the Ministers counsel (Attachment 5, paragraph 8), the Court in Halm
affirmed that extradition and deportation serve different purposes, the former being
invoked to send a person to another jurisdiction in order to be accountable to the criminal
legal system there, and the latter being invoked to remove an inadmissible person from
Canada. The subjects counsel acknowledges that principle (Attachment 6, paragraph 12).
Moreover, in a case where extradition is ordered, the Minister may nevertheless seek
deportation as well because, just as the Court in Halm noted at paragraph 31, unlike an
extradition order, the effect of a deportation order is such that a deportee requires the
special authorization of the Ministers officers before returning to Canada in future (viz.,
subsection 52(1) of the Act). A deportation order, therefore, may be desirable to the
Minister, even in the event of an extradition order, in order that administrative control
over the return of a deportee to Canada may be exercised. Moreover, and as noted above,

2006 CanLII 52173 (CA IRB)

instituting the extradition process, Canada is free to initiate and carry out

33
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removal orders may conceivably be executed in the present case to a destination other

argument invoking section 15 of the Charter that is, that the Canadian government has
unfairly opted for deportation in the case of Mr. Nur Chowdhury for no reason other than
that, because he is a national of a country that imposes capital punishment, extradition is
not a viable option does not withstand scrutiny.

Secondly, the argument invoking section 15 of the Charter, in its broadest implications,
imports the conclusion that, in any case of a foreign national currently wanted in his
country of nationality in order to face the criminal legal system there, deportation
proceedings under the Act would be improper. The argument suggests that the extradition
process, with its judicial proceedings, its personal involvement of the Minister of Justice,
and other features favourable to the subject, should always be followed in such cases
rather than deportation proceedings. The result, of course, would be that no persons
inadmissible to Canada for foreign criminality and still wanted in a foreign jurisdiction
could be rendered subject to removal under the Act. Such a proposition would fly in the
face of the principle that extradition and deportation serve distinct functions that are
legitimately and independently executed.

Thirdly, the argument invoking section 15 of the Charter appears to be an attempt to


revitalize the case advanced in Halm. There, the applicant complained that the use of
deportation rather than extradition proceedings deprived him, as is alleged in the present
case, of safeguards and benefits available to him under the Extradition Act in

2006 CanLII 52173 (CA IRB)

than Bangladesh (viz., section 241 of the Regulations) The whole premise of the

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contravention of section 7 of the Charter. The Court dismissed the application, holding,

there was no improper purpose apparent in the Ministers initiation of deportation


proceedings. In the present case, the argument is that the pursuit of deportation rather
than extradition proceedings and the ensuing deprivation to Mr. Nur Chowdhury of the
benefits and safeguards of the extradition process is discriminatory. Once more, however,
insofar as extradition and deportation processes serve distinct purposes and may be
invoked in any given case simultaneously rather than merely as options to one another,
such an argument has no merit.

As for the tests set out in Law, the dictum of the Court cited above renders clear that all of
the factors cited therein must be met before a legislative provision may be held to be
inoperative in a given case by virtue of section 15 of the Charter.

In my judgment, the initiation of deportation proceedings against the subjects of the


present hearing does not draw a formal distinction between them and others in any way,
much less on the basis of their personal characteristics of nationality. As noted above,
deportation and extradition proceedings are distinct in purpose and effect, and may be
invoked concomitantly or independently in any given case. It is not, as is argued, a matter
of choosing one process over the other. Regardless of the nationality of the subjects, the
Ministers election to initiate deportation proceedings for purposes of securing removal
orders against them on the basis of their inadmissibility to Canada is not such as to draw
a distinction between them and any other persons inadmissible under the Act. There is no

2006 CanLII 52173 (CA IRB)

as noted above, that, insofar as deportation and extradition are two distinct processes,

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basis for the argument at paragraph 16.A of Attachment 6 that Mr. Nur Chowdhury

nationality precludes him from being afforded fair procedures in the determination of
removal to face death.

I am also prepared to conclude that the subjects are not being subjected to differential
treatment on any grounds at all, much less on any of the grounds enumerated or
analogous to those in section 15 of the Charter. For the reasons given above, they are, in
my judgment, inadmissible to Canada. They are not so inadmissible by virtue of their
nationality. That extradition proceedings have not been pursued is of no moment. Had
there been no imposition of capital punishment in the case in Bangladesh, and had
extradition proceedings been advanced, it would have still been open to the Minister
simultaneously to invoke removal proceedings under the Act, regardless of the outcome
of the extradition proceedings. I am aware of no basis in law or in the evidence here on
which to conclude that the removal proceedings and the present hearing were premised
on the inability of the Canadian government to effect an extradition order.

Finally, and obviously from the conclusions reached above, I conclude further that the
deportation proceedings are not discriminatory in any sense.

For all of the foregoing reasons, I conclude that the application of section 33 and
paragraph 36(1)(b) of the Act constitutes no infringement of the rights of the subjects
under sections 7 and 15 of the Charter, and decline, therefore, to invoke section 52 of the
Constitution Act, 1982.

2006 CanLII 52173 (CA IRB)

faces deportation proceedings because he is a Bangladeshi national.. or that his

36
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Mr. Nur Chowdhury is subject to deportation under paragraph 45(d) of the Act and

subsection 227(2) of the Regulations.

Subsequent to the preparation of the foregoing reasons, the subjects counsel offered
further brief submissions in writing, received at the Immigration Division on 25 October
2006 (Attachment 7). A copy of that submission, according to the documentation, was
provided to the Ministers counsel (Attachment 7, page 3), along with a gracious
invitation for them to offer further submissions as well. As of the present time, no such
submissions have been tendered on behalf of the Minister.

The new submission refers to the decision of the Ontario Superior Court in U.S.A. v.
Tollman, [2006] O.J. No. 3672 in which the Court ordered a stay of extradition
proceedings against the applicant on grounds of abuse of process effected by the
requesting state. Briefly, the evidence there established that American officials, who
wanted the applicant, an American citizen, to be returned to New York State in order to
face criminal charges there, had attempted inappropriately to influence the Ministers
officers to detain him and to undertake deportation proceedings against him in order to
circumnavigate the requirements that must be met under the Extradition Act. Relying
particularly on paragraph 85 of the judgment, the subjects counsel submits as follows
(Attachment 7, page 3):

2006 CanLII 52173 (CA IRB)

paragraph 229(1)(c) of the Regulations, and Ms. Khanam is included in that order under

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it is clear that Canadian officials have concluded that they would not use the
death penalty. Instead, they are using the immigration system to accomplish the
same purpose. It is, on its (sic) face, a disguised extradition in light of the
reasoning of Justice Molloy.

I agree that the evidence shows that Canadian officials have declined to undertake
extradition proceedings against Mr. Nur Chowdhury because he faces capital punishment
in Bangladesh (Exhibit A, page 10). However, I am unable, with every respect, to find
evidence that they are invoking the immigration system to accomplish what amounts to
being extradition.

At paragraph 27 of the decision in Tollman, the Court cites Lord Dennings observations
concerning the question of disguised extradition in R. v. Brixton Prison (Governor),
[1962] 3 All E. R. 641 (C.A.) as follows:

So there we have in this case the two principles: on the one hand the principle
arising out of the law of extradition under which the officers of the Crown cannot
and must not surrender a fugitive criminal to another country at its request except
in accordance with the Extradition Acts duly fulfilled; on the other hand the
principle arising out of the law of deportation, under which the Secretary of State
can deport an alien and put him on board a ship or aircraft bound for his own
country if he considers it conducive to the public good that that should be done.
How are we to decide between these two principles? It seems to me that it
depends on the purpose with which the act is done. If it was done for an
authorized purpose, it was lawful. If it was done professedly for an authorized
purpose, but in fact for a different purpose with an ulterior object, it was
unlawful. If, therefore, the purpose of the Home secretary in this case was to
surrender the applicant as a fugitive criminal to the United States of America
because they had asked for him, then it would be unlawful; but if his purpose was

2006 CanLII 52173 (CA IRB)

extradition process to remove Mr. Chowdhury to Bangladesh because of the

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to deport him to his home country because he considered his presence here to be

Applying the test enunciated by Lord Denning, I am unable to find evidence that the
Ministers officers or any other officials have undertaken the present hearing against the
subjects for any improper or unlawful purpose. It is clear that authorities in Bangladesh
have expressed their desire that Mr. Nur Chowdhury be surrendered to them for the
administration of their criminal law against him (Exhibit A, pages 13 and 15); however,
there is no evidence that the present hearing has been taken up in response to that desire.
In contrast, the evidence before the Court in Tollman very compellingly established that
American and Canadian officials had communicated and planned prior to the applicants
arrival in Canada for his detention on his arrival, all for the purpose of returning him as
promptly as possible to the jurisdiction of a court in New York, notwithstanding that he
was a permanent resident of the United Kingdom. The Court found from the evidence
that there is not a whisper of any legitimate Canadian concern about Mr. Tollmans
presence in our country. There is no evidence of such collusion between officials in
Canada and Bangladesh to circumvent the extradition process in the present case. I
cannot infer, merely because extradition has not been undertaken, that the present
proceedings have been initiated to accomplish what cannot be done through extradition.
There is no evidence, on the test enunciated by Lord Denning, that the Ministers officers
have requested the present hearing in order to surrender Mr. Nur Chowdhury to
authorities in Bangladesh rather than to seek his deportation because his presence in
Canada is not conducive to the public good. After all, he is a convicted murderer and is
inadmissible for reasons of serious criminality. Under paragraph 3(1)(i) of the Act, an

2006 CanLII 52173 (CA IRB)

not conducive to the public good, then his action is lawful.

39
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objective of the Act is to promote international justice and security by denying

In Halm, cited above, the Court reflected on the case law pertaining to disguised
extradition as follows at paragraphs 20 and 21:

According to prior jurisprudence, to support a disguised extradition argument, an


applicant had to show improper purpose or bad faith on the part of the
government. In Moore v. Minister of Manpower and Immigration (1968), 69
D.L.R. (2d) 273 (S.C.R.), Cartwright C.J.C. states at pages 275-76:
To decide that the deportation proceedings are a sham or not bona fide it would
be necessary to hold that the Minister did not genuinely consider it in the public
interest to expel the appellant. This is the view expressed in the Soblen case,
supra, and I agree with it.
In Shepherd v. Canada (Minister of Employment and Immigration) (1989), 70
O.R. (2d) 265, Austin J., (as he then was), in the Ontario Weekly Court states at
pages 775-76 in respect of disguised extradition:
From the reasons of the two courts, the following principles emerge:
1. If the purpose of the exercise is to deport the person because his presence is
not conducive to the public good, that is a legitimate exercise of the power of
deportation.
2. If the purpose is to surrender the person as a fugitive criminal to a state
because it asked for him, that is not a legitimate exercise of the power of
deportation.
3. It is open to the courts to inquire whether the purpose of the government was
lawful or otherwise.
4. The onus is on the party alleging an unlawful exercise of power. It is a heavy
onus.
5. To succeed, it would be necessary to hold that the Minister did not genuinely
consider it in the public interest to expel the person in question.

2006 CanLII 52173 (CA IRB)

access to Canadian territory to persons who are criminals or security risks.

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In my judgment, the evidence in the present case goes no distance at all in establishing
that disguised extradition is being occasioned such as was held in Tollman. There is
nothing to suggest that the Ministers officers do not have a legitimate interest in
applying the provisions of the Act in accordance with the principle set out in section 3
cited above. Moreover, as noted above, the Ministers officers or Mr. Nur Chowdhury
himself are at liberty to make arrangements for his removal to a country other than
Bangladesh, if possible. In addition, given the decision of the Supreme Court of Canada
in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, his
removal under the Act to Bangladesh while remaining liable to capital punishment is not
possible; these proceedings, therefore, can hardly be seen as an end around play to
achieve what cannot be accomplished under the Extradition Act.

___________________________
(Immigration Division Member)

___________________________
(Date)

IMMIGRATION DIVISION - INADMISSIBILITY - CRIMINAL OFFENCES EVIDENCE - CANADIAN CHARTER OF RIGHTS AND FREEDOMS - FUNDAMENTAL
JUSTICE - EQUALITY BEFORE THE LAW - ABUSE OF PROCESS

2006 CanLII 52173 (CA IRB)

6. The adoption of the Charter has not lessened the onus.