A. B. v. Canada (Citizenship and Immigration)

A. B. v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2016-12-16
Neutral citation
2016 FC 1385
File numbers
IMM-919-15
Notes
A correction was made on September 18, 2017
Reported Decision
Decision Content
Date: 20161216
Docket: IMM-919-15
Citation: 2016 FC 1385
Ottawa, Ontario, December 16, 2016
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
A. B., C. D. AND E. F.
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
[1] This is an application for judicial review of the February 2, 2015 decision of Mr. John Kivlichan, a member (“Member”) of the Refugee Protection Division of the Immigration and Refugee Board of Canada (“RPD”). The Member found that the Applicants were excluded from refugee protection pursuant to Article 1F(b) of the Convention Relating to the Status of Refugees, 1951, CTS 1969/6; 189 UNTS 150 (“Convention”) as the principal applicant (hereinafter referred to as the “Applicant”) had committed the serious non-political crime of child abduction. Alternatively, that the Applicant was generally not credible, had failed to establish subjective fear or to rebut the presumption of state protection and, on that basis, the Applicant and her two minor children, for whom she had been appointed as the designated representative, were not Convention refugees nor persons in need of protection pursuant to s 96 or s 97, respectively, of the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”).
Confidentiality Order [2] A Confidentiality Order was issued in this matter by Prothonotary Milczynski on March 12, 2015. At the hearing before me, the parties agreed that the documents that had been sealed and filed as confidential in the Court record would remain as such. It was also agreed that the hearing would proceed in open Court which was attended only by persons known to the parties, however, that the names of the Applicants or names of others who might be associated with or serve to identify the Applicants would not be used during oral argument. Because the proceeding was recorded, I will order that, should any third party seek a copy of the recorded proceeding, the Court registry will ensure that any identifying names that may have inadvertently been stated during the course of the hearing will be deleted from the copy of the recording provided to the third party. In my view, no further steps are required. And, had the manner in which the Applicants interpreted the Confidentiality Order, specifically, had the extent of the sealing of the documents challenged, I would have entertained that motion.
Background [3] The Applicant is a 39-year-old Roma woman from Hungary. In her lengthy Personal Information Form (“PIF”) she claims that in Hungary, she worked as a journalist reporting about human rights violations involving the Roma, later as a researcher for the European Roma Rights Centre, and then for the Hungarian Ministry of Education. She served as a Member of the European Parliament (“MEP”) from 2004 to 2009 where the focus of her parliamentary work was educational reform in Hungary and, in particular, the desegregation of schools for Roma children.
[4] The Applicant claims that following the establishment in 2007 of an anti-Roma extremist group, the Hungarian Guard, she began to change her focus in the European Parliament to investigate the response of the Hungarian state to, and complicity in violence against Romani people, including serial killings. She was able to provide evidence and file reports with the authorities for 39 cases. After a double murder on February 23, 2009, the Applicant held a press conference demanding an independent investigation. She alleges that during her tenure as a MEP she and her family were the subject of daily insults and threats and that in February 2009, she requested and obtained police protection for herself and her family until the end of her MEP term.
[5] The Applicant claims that between February and August 2009, she met with ambassadors from other countries and requested assistance in investigating the Romani murders. The United States Federal Bureau of Investigation ultimately assisted the Hungarian investigators which resulted in the apprehension of six persons in August 2009. The Applicant alleges that during this time, she was questioned several times by the National Investigation Office as to whether she was organizing the Romani people for a potential anti-Hungary attack.
[6] The Applicant alleges that on August 29, 2009 she learned that the Hungarian secret service (“Secret Service”) was involved in the Roma serial murders. As a result, she asked former liberal political colleagues in the Hungarian Parliament for help and, on September 22, 2009, a Fact Finding Working Group (“Working Group”) was created within the Hungarian Parliament to look into the murders. The Applicant alleges that the Working Group shared some evidence with her but, in November 2009, the Hungarian Parliament ordered that information about any Secret Service involvement be held as confidential for eighty years. She claims that she was told that this was done in the interest of avoiding a Gypsy-Hungarian civil war.
[7] In October 2010, the Applicant travelled to New York and Washington to accept an award from Human Rights First for her human rights advocacy. Upon her return to Hungary, she decided to withdraw from public advocacy because she feared her surveillance by the Secret Service could endanger other activists or Roma victims. She also suffered an emotional crisis.
[8] On August 11, 2011 the Applicant learned that Jozsef Gulyas, a member of the Working Group, had been questioned by the Military Public Prosecutor and alleged to have committed the crime of unauthorized secret information collection. Upon learning this, the Applicant formed the belief that it was no longer safe for her and her family to remain in Hungary as she would be arrested because of her knowledge of the government’s involvement in the Romani killings.
[9] The Applicant bought tickets to fly to Canada on August 25, 2011. However, she did not leave at that time because her husband suffered a stroke on August 22, 2011. She claims that in February 2011, she was contacted by a Dublin based foundation, Front Line Defenders for Human Rights, and advised that she ranked number one hundred on a list of one hundred and thirty of the world’s most endangered human rights activists. The foundation invited her to attend a five day conference in Dublin which she did. While there, she informed the organizers of her fear of staying in Hungary and they agreed to pay the airfare for her and her family to travel to Canada.
[10] The Applicant came to Canada with her husband and three children on November 26, 2011. At the time of her departure, the Applicant’s eldest child, a daughter from a previous marriage, was the subject of contested custody proceedings in Hungary. On December 14, 2011, the Budapest 20th, 21st and 23rd District Court issued a judgment terminating the Applicant’s joint custody rights and ordering the child’s return to the custody of her father with visitation rights to the Applicant.
[11] Subsequently, on November 30, 2012, the child’s father obtained an order from the Ontario Court of Justice (“OCJ”) under the Hague Convention on the Civil Aspects of International Child Abduction, 1980, CTS 1983/35; 19 ILM 1501 (“Hague Convention”) directing that the child be returned to Hungary. The child was returned to her father and her claim for protection in Canada was withdrawn.
[12] The basis of the Applicant’s claim for protection was that she witnessed and experienced many forms of discrimination growing up in Hungary as a Romani child. Further, that throughout her career, she encountered discrimination and persecution because of her ethnicity and advocacy for the Roma people. In this regard, she was threatened during her term as a MEP and was later subjected to two physical attacks. The first in August 2009, when an unknown woman insulted the Applicant for 30 minutes while the Applicant was in her vehicle. The woman kicked the car door and tried unsuccessfully to open it. The Applicant claims that she called the police but they did not respond. The second in the spring of 2010, when the Applicant was insulted by a woman in a supermarket who also attempted to slap her. She did not report this incident to the police.
[13] The Applicant claims that she fears, if she and her family were to return to Hungary, they would be harmed by Neo-Nazis, the Secret Service and the police. She claims that the Secret Service has been monitoring her communications and activities for a number of years and are likely now aware of her knowledge of their and the Hungarian government’s involvement in the Roma serial killings. She claims that she and her family are no longer safe anywhere in Hungary and fears that she personally would be detained or even killed if she were to return.
[14] The Minister initially took the position that he would not intervene as he had no concern with the Hague Convention application as the child had been returned to her father in Hungary, and, with respect to a defamation and libel charge against the Applicant, as the maximum term of imprisonment was only five years, these were not serious crimes under the Criminal Code, RSC 1985, c C-46 (“Criminal Code”). However, the Minister subsequently sought to intervene pursuant to s 170(e) of the IRPA and Rule 29 of the Refugee Protection Division Rules, SOR/2012-256 (“RPD Rules”) in reference to the issue of credibility and, pursuant to Rule 36, to use an undisclosed document, being a Reuters news article dated June 16, 2013 describing an interview of the Applicant concerning her claim for protection. Subsequently, the Minister gave notice that, pursuant to s 170(e) of the IRPA, he intended to participate at the hearing on the basis of his belief that there had been a contravention of Article 1F(b) of the Convention, namely that the Applicant was excluded from refugee protection in Canada as she had committed the serious non-political crime of child abduction before coming to Canada.
[15] As set out in detail in the decision, various matters were addressed by the Member, including an application by the Applicant objecting to the Minister’s intervention, which application was denied. The Applicant and the Minister also made several post-hearing submissions and the Applicant, as well as the Member, made post-hearing disclosures. The submissions included responses to requests made by the Member concerning the Supreme Court of Canada’s decision in Febles v Canada (Citizenship and Immigration), 2014 SCC 68 (“Febles”) as it related to the issue of exclusion before the Member, and the relevance of s 283 of the Criminal Code. As discussed below, the post-hearing disclosure included various documents pertaining to the claim for protection of an alleged former employee of the Applicant (“Former Employee”) and his family, and, members of the Applicant’s immediate family who arrived in Canada in November 2014 and sought refugee protection. The Member issued his decision on February 2, 2015.
Decision Under Review [16] The decision is 112 pages in length and is comprised of 531 paragraphs. Accordingly, what follows is a brief description of the Member’s reasons.
[17] Paragraphs 65 to 257 of the decision concern the Member’s exclusion analysis. The Member noted the applicable legislative provisions, jurisprudence speaking to the applicable standard of proof (Lai v Canada (Minister of Citizenship and Immigration), 2005 FCA 125) and that the applicability of the exclusion clause is not dependent upon whether the claimant has been charged or convicted of the criminal acts in question (Moreno v Canada (Minister of Employment and Immigration), [1994] 1 FCR 298 (CA)). The Member also referenced the Supreme Court of Canada’s decision in Febles. The Member stated that he must first determine “whether there are serious reasons for considering the first part of Article 1F(b) of section 98 of the Act” (at para 76). In that regard, he would review the evidence concerning the abduction of the child and the Hague Convention application. The latter on the basis that it was relevant to the exclusion, although the OCJ decision was not binding upon him (Kovacs v Canada (Minister of Citizenship and Immigration), 2005 FC 1473 at paras 9-10 (“Kovacs”)).
[18] In this regard, the Member provided his description, in great detail, of the facts and findings of the 22 page decision of the OCJ and quoted extensively from it. Of note is that in 2005, a Hungarian court had made an order granting joint legal custody of the child, the adopted daughter of the Applicant and her ex-husband, which contained a provision allowing either parent to remove the child from Hungary for periods of up to two weeks without the prior consent of the other parent.
[19] The Member noted that in the OCJ proceeding, the child’s father gave evidence that the Applicant had told him that she wished to work abroad and to take their daughter with her. Concerned that the child’s education had previously been detrimentally impacted by the Applicant’s frequent moves, he took the child to the Hungarian government guardianship office where she was interviewed and gave a statement objecting to being removed from Hungary and stating that she wished to remain with her father. The Member noted that the OCJ decision revealed that on September 26, 2011, the Applicant made a complaint to the Hungarian police alleging sexually inappropriate behaviour towards the child by her father, stemming a police investigation. In October 2011, the Hungarian court appointed a lawyer for the child and a psychologist to conduct a family assessment involving the child, the parties, and their current partners, and adjourned the case to December 14, 2011. However, on November 26, 2011, the Applicant removed the child from Hungary, telling her that they were going on a vacation. On December 14, 2011, when the Hungarian court learned of the removal prior to the assessment being completed, it issued a final order dissolving the prior joint custody and placed the child in the custody of her father.
[20] The Member stated that the OCJ agreed, given the provision in the original custody order allowing removal from the country for up to two weeks by either parent, that it appeared the child had not been “wrongfully removed” from Hungary but that “...there can be no doubt that she was wrongfully retained…” (at para 102). The Member noted the OCJ assessment of the risk of harm to the child if she returned to Hungary, including the Applicant’s admission that the child would be safe if she lived with her father and that the risk of harm due to her Roma ethnicity was remote and could be safely managed by her father. Further, that the OCJ had noted that the Applicant did not pursue the allegation of sexually inappropriate behaviour at the hearing before it, conceding that the behaviour alleged could not be established on the balance of probabilities. And that, upon the OCJ’s own review of the evidence, including the report of a clinical investigator assisting the Office of the Children’s Lawyer (“OCL”) who interviewed the child, it agreed with that conclusion.
[21] The Member found that there were serious concerns raised with respect to the overall credibility of the Applicant arising from the OCJ decision. For example, that the Applicant had threatened her daughter that she might have to return to Hungary because, as reported by the clinical investigator, she did not “say the right thing” (at paras 135, 173). The Member found that this suggested that the Applicant has a propensity to focus her efforts on saying the right thing as opposed to telling the truth. Further, because the OCJ was of the view that the Applicant had attempted to mislead her own child in order to gain advantage in the custody situation, this was conduct that spoke poorly to the Applicant’s credibility and led the Member to draw an adverse inference. The Member also found that the Applicant had made a false allegation about her ex-husband in the 2011 custody litigation and to the Hungarian police. This led the Member to find that she was willing to misrepresent or to indeed lie in judicial proceedings and to police authorities in order to win her case or otherwise gain advantage and that she allowed her conduct to be governed by the principle that the end justifies the means. The Member went on to make many other negative credibility findings in concluding that the Applicant was not a credible witness.
[22] Before the Member, the Applicant had submitted that no crime had been committed outside Canada as the Applicant was permitted, by the custody order then in place, to remove her daughter from Hungary for two weeks without the prior consent of her ex-husband. Thus, any crime of abduction occurred only two weeks after the Applicant arrived in Canada, and not in Hungary. In the result, Article 1F(b) had no application. However, the Member found that the Applicant had conceded that she removed her daughter from Hungary not intending to return within two weeks as required by the custody order, but rather with the intent of relocating to Canada without the knowledge or consent of the child’s father. The Member found that the “guilty act” of the Applicant was the removal of the child from Hungary with the intent to deprive the child’s father of her custody and the intent to contravene the custody order and not to return to Hungary. The Member stated that it was undisputed that the Applicant had a “guilty mind” or mens rea.
[23] The Member concluded there were serious reasons for considering that the Applicant had committed a serious non-political crime outside the country of refuge prior to her admission to that country as a refugee, specifically, s 282 of the Criminal Code - Abduction in contravention of a custody order. Alternatively, s 283 - Abduction, applied in which event the Attorney General’s consent for that charge was not relevant to the Member’s determination. He stated that in order for him to find that the Article 1F(b) exclusionary provisions applied, he need only determine that both the guilty mind and the guilty act were present. Based on his prior factual findings, the Member also found that there was no available defence of imminent harm pursuant to s 285 of the Criminal Code. He then quoted paragraph 62 of Febles and applied the factors listed in Jayasekara v Canada (Citizenship and Immigration), 2008 FCA 404 (“Jayasekara”) (which application is discussed further in the analysis below).
[24] As to whether the crime met the criteria of a serious non-political crime as envisioned by Article 1F(b), the Member stated that the OCJ had found the Applicant to have contravened an important international convention regarding child abduction. Therefore, the offence was sufficiently serious, applying the comments from Febles and the factors from Jayasekara. He concluded that on the totality of the evidence, he was satisfied that the Minister had established that there are serious reasons for considering that the Applicant has committed a serious non-political crime before coming to Canada.
[25] In paragraphs 258 to 528 of his decision, the Member conducted an analysis of the merits of the refugee claim. The Member made further adverse credibility findings and found the Applicant’s claim to lack credibility. He also found that the evidence did not support that she and her children had been marginalized or discriminated against on the basis of ethnicity. To the contrary, the evidence was that the Applicant had achieved success in Hungary. She had obtained a university degree, owned properties in Budapest, had been employed from 1991 to 2009 and was then selected to hold a political post. Her sister had stated in an interview that, because of the social origin of her family, she had never been discriminated against. Further, the OCJ had found, amongst other things, that the Applicant’s daughter had not been attacked or persecuted and had attended desegregated schools. The Member found that this all suggested a limited risk for the Applicant and her children and provided little persuasive evidence of discriminatory treatment of the children.
[26] The Member did not accept the Applicant’s unsubstantiated allegation that there was a government conspiracy or that the Secret Service or other agent of the Hungarian government was directly responsible for the Roma killings in 2008 and 2009. He gave greater weight to documentary evidence that contained a contrary opinion and concluded that police incompetence does not necessarily equate to police complicity or apathy. The Member also found that the Applicant’s inability to give any persuasive testimony about the existence of any state secrets, or her knowledge or possession of them, impugned her credibility and undermined the well-foundedness of her alleged fear of persecution from the Hungarian state and its agents. Further, if she were to return to Hungary, she could openly make her allegations of government involvement in the killings or assaults on Roma without fear of reprisal, although there was no credible evidence to support her allegations.
[27] The Member also drew an adverse inference from the Applicant’s continued participation in media interviews regarding her refugee claim and her knowledge of state secrets while her claim, and those of her immediate family, had yet to be determined. Further, the Member found that the Applicant had, in her original PIF, sought to deceive the Immigration and Refugee Board of Canada with respect to the status of her daughter’s custody and that her conduct in that regard impugned her credibility. Similarly, her PIF failed to mention her allegation, made before the Member, of being stopped daily by the police. The Member found that the Applicant had failed to give a reasonable explanation for the omission and drew a negative credibility inference. Based on the cumulative credibility findings the Member found that the Applicant had failed to provide sufficient credible evidence regarding her motivation for leaving Hungary and he did not believe that she feared the Secret Service nor that she came to Canada because of a genuine subjective fear of persecution.
[28] With respect to subjective fear, the Member noted that the Applicant delayed her departure from Hungary and found that her reason for doing so was not reasonable. Further, the Applicant had not sought protection when she went to the United States in October 2010. In addition, the Applicant travelled to Ireland in September 2011 and, although she could not claim asylum there, the Member found that her voluntary return to Hungary was inconsistent with her alleged fear of persecution. He drew negative inferences regarding her subjective fear and credibility.
[29] The Member also found that the Applicant had failed to rebut the presumption of state protection. The Member acknowledged that the objective evidence was mixed regarding Hungary’s efforts to provide protection to Roma against discrimination and that there had been local failures in that regard. He also stated that he had weighed the comments of a refugee coordinator with Amnesty International and an affidavit of a former Hungarian Minister of Education concerning risks to Roma rights activists. However, the Member found that the subjective evidence did not support that the Applicant had personally experienced serious problems of discrimination. Further, while the Applicant expressed distrust of the police, she had been provided with police protection when she requested it during her tenure as a MEP which indicated that the police were willing and able to offer protection. Given her general lack of credibility, the Member did not accept that the police protection would not be provided, if requested, after her MEP term concluded. The Member stated that, viewed fairly, the objective evidence indicated that Hungary has taken serious measures to address and improve state protection for minorities suffering from discrimination, which included Roma, that it continued to battle right wing extremism and, while the results may not be perfect, there have been concrete signs of many operational successes.
[30] The Member acknowledged two psychiatric reports submitted by the Applicant but afforded them little or no weight.
[31] The Member also referenced the claim by the alleged Former Employee and his family in which the RPD had rejected an effort to submit a letter from the Applicant identifying herself as the current director of the “Fund of Movement for Desegregation” in Hungary and stating that the claimant in that application had been her employee. The Member sought and received written testimony from the Applicant in response to questions that were raised by documentation in the alleged Former Employee’s claim, including why she had not mentioned him in her PIF nor an alleged targeted attack on him and his family by neo-Nazis because of his association with the Applicant and her work. The Member rejected the Applicant’s explanation for the omission as spurious and lacking merit and drew a negative credibility inference. Further, he found that she knowingly provided corroborating evidence in support of the alleged Former Employee’s fraudulent refugee claim and that she was a willing accomplice in that regard. This further supported his view that the Applicant generally lacked credibility.
[32] The Member also addressed post-hearing disclosure submitted by the Applicant concerning the refugee claim made by her mother, her sister and her sister’s children but gave little weight to any of the assertions made by the Applicant’s sister or other members of her family in their refugee claims.
[33] The Member stated that, even taking the Applicant’s profile into account, he made a general finding of a lack of credibility given the “cumulative, important and remarkable, litany of negative credibility findings and inferences” as noted in his reasons (at para 528).
Relevant Legislation Immigration and Refugee Protection Act, SC 2001, c 27
96 A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
96 A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques :
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
97 (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
97 (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée :
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture;
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
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98 A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.
98 La personne visée aux sections E ou F de l’article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger.
Convention Relating to the Status of Refugees, 1951, CTS 1969/6; 189 UNTS 150
Article 1
Article premier
…
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F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser :
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(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
b) qu’elles ont commis un crime grave de droit commun en dehors du pays d’accueil avant d’y être admises comme réfugiées;
Criminal Code, RSC 1985, c C-46
282 (1) Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, in contravention of the custody provisions of a custody order in relation to that person made by a court anywhere in Canada, with intent to deprive a parent or guardian or any other person who has the lawful care or charge of that person, of the possession of that person is guilty of
282 (1) Quiconque, étant le père, la mère, le tuteur ou une personne ayant la garde ou la charge légale d’une personne âgée de moins de quatorze ans, enlève, entraîne, retient, reçoit, cache ou héberge cette personne contrairement aux dispositions d’une ordonnance rendue par un tribunal au Canada relativement à la garde de cette personne, avec l’intention de priver de la possession de celle-ci le père, la mère, le tuteur ou une autre personne ayant la garde ou la charge légale de cette personne, est coupable :
(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
a) soit d’un acte criminel et passible d’un emprisonnement maximal de dix ans;
(b) an offence punishable on summary conviction.
b) soit d’une infraction punissable sur déclaration de culpabilité par procédure sommaire.
(2) Where a count charges an offence under subsection (1) and the offence is not proven only because the accused did not believe that there was a valid custody order but the evidence does prove an offence under section 283, the accused may be convicted of an offence under section 283.
(2) Lorsqu’un chef d’accusation vise l’infraction prévue au paragraphe (1) et que celle-ci n’est pas prouvée du seul fait que l’accusé ne croyait pas qu’il existait une ordonnance de garde valide, ce dernier peut cependant être reconnu coupable de l’infraction prévue à l’article 283 s’il y a preuve de cette dernière.
283 (1) Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, whether or not there is a custody order in relation to that person made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person, is guilty of
283 (1) Quiconque, étant le père, la mère, le tuteur ou une personne ayant la garde ou la charge légale d’une personne âgée de moins de quatorze ans, enlève, entraîne, retient, reçoit, cache ou héberge cette personne, qu’il y ait ou non une ordonnance rendue par un tribunal au Canada relativement à la garde de cette personne, dans l’intention de priver de la possession de celle-ci le père, la mère, le tuteur ou une autre personne ayant la garde ou la charge légale de cette personne est coupable :
(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
a) soit d’un acte criminel passible d’un emprisonnement maximal de dix ans;
(b) an offence punishable on summary conviction.
b) soit d’une infraction punissable sur déclaration de culpabilité par procédure sommaire.
(2) No proceedings may be commenced under subsection (1) without the consent of the Attorney General or counsel instructed by him for that purpose.
(2) Aucune poursuite ne peut être engagée en vertu du paragraphe (1) sans le consentement du procureur général ou d’un avocat qu’il mandate à cette fin.
284 No one shall be found guilty of an offence under sections 281 to 283 if he establishes that the taking, enticing away, concealing, detaining, receiving or harbouring of any young person was done with the consent of the parent, guardian or other person having the lawful possession, care or charge of that young person
284 Nul ne peut être déclaré coupable d’une infraction prévue aux articles 281 à 283 s’il démontre que le père, la mère, le tuteur ou l’autre personne qui avait la garde ou la charge légale de la personne âgée de moins de quatorze ans en question a consenti aux actes reprochés.
285 No one shall be found guilty of an offence under sections 280 to 283 if the court is satisfied that the taking, enticing away, concealing, detaining, receiving or harbouring of any young person was necessary to protect the young person from danger of imminent harm or if the person charged with the offence was escaping from danger of imminent harm.
285 Nul ne peut être déclaré coupable d’une infraction prévue aux articles 280 à 283 si le tribunal est convaincu que les actes reprochés étaient nécessaires pour protéger la jeune personne en question d’un danger imminent ou si l’accusé fuyait pour se protéger d’un tel danger.
286 In proceedings in respect of an offence under sections 280 to 283, it is not a defence to any charge that a young person consented to or suggested any conduct of the accused.
286 Dans les procédures portant sur une infraction visée aux articles 280 à 283, ne constitue pas une défense le fait que la jeune personne a consenti aux actes posés par l’accusé ou les a suggérés.
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787 (1) Unless otherwise provided by law, everyone who is convicted of an offence punishable on summary conviction is liable to a fine of not more than five thousand dollars or to a term of imprisonment not exceeding six months or to both.
787 (1) Sauf disposition contraire de la loi, toute personne déclarée coupable d’une infraction punissable sur déclaration de culpabilité par procédure sommaire est passible d’une amende maximale de cinq mille dollars et d’un emprisonnement maximal de six mois, ou de l’une de ces peines.
Hague Convention on the Civil Aspects of International Child Abduction, 1980, CTS 1983/35; 19 ILM 1501
The States signatory to the present Convention,
Les Etats signataires de la présente Convention,
Firmly convinced that the interests of children are of paramount importance in matters relating to their custody,
Profondément convaincus que l'intérêt de l'enfant est d'une importance primordiale pour toute question relative à sa garde,
Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access,
Désirant protéger l'enfant, sur le plan international, contre les effets nuisibles d'un déplacement ou d'un non-retour illicites et établir des procédures en vue de garantir le retour immédiat de l'enfant dans l'Etat de sa résidence habituelle, ainsi que d'assurer la protection du droit de visite,
Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions -
Ont résolu de conclure une Convention à cet effet, et sont convenus des dispositions suivantes :
CHAPTER I - SCOPE OF THE CONVENTION
CHAPITRE I – CHAMP D'APPLICATION DE LA CONVENTION
Article 1
Article premier
The objects of the present Convention are -
La présente Convention a pour objet :
a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
a) d'assurer le retour immédiat des enfants déplacés ou retenus illicitement dans tout Etat contractant ;
b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
b) de faire respecter effectivement dans les autres Etats contractants les droits de garde et de visite existant dans un Etat contractant.
Article 2
Article 2
Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.
Les Etats contractants prennent toutes mesures appropriées pour assurer, dans les limites de leur territoire, la réalisation des objectifs de la Convention. A cet effet, ils doivent recourir à leurs procédures d'urgence.
Article 3
Article 3
The removal or the retention of a child is to be considered wrongful where -
Le déplacement ou le non-retour d'un enfant est considéré comme illicite :
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
a) lorsqu'il a lieu en violation d'un droit de garde, attribué à une personne, une institution ou tout autre organisme, seul ou conjointement, par le droit de l'Etat dans lequel l'enfant avait sa résidence habituelle immédiatement avant son déplacement ou son non-retour; et
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
b) que ce droit était exercé de façon effective seul ou conjointement, au moment du déplacement ou du non-retour, ou l'eût été si de tels événements n'étaient survenus.
The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
Le droit de garde visé en a) peut notamment résulter d'une attribution de plein droit, d'une décision judiciaire ou administrative, ou d'un accord en vigueur selon le droit de cet Etat.
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Article 7
Article 7
Central Authorities shall co-operate with each other and promote c