Date: 19981102
Docket: IMM-613-97
BETWEEN:
BAHIG MOHAMED SKAIK ALI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
(Delivered from the Bench at Toronto, Ontario on
Thursday, October 29, 1998, as edited)
ROTHSTEIN J.:
[1] This is a judicial review of a decision of an immigration officer. The applicant's application for permanent residence in Canada was denied on the grounds that the immigration officer was of the opinion that there were reasonable grounds to believe the applicant would practice polygamy in Canada, an indictable offence under subsection 293(1) of the Criminal Code. Under subparagraph 19(1)(d)(i) of the Immigration Act, the immigration officer found the applicant to be inadmissable to Canada.
[2] Section 293 of the Criminal Code provides:
| 293(1) Every one who: |
| (a) practices or enters into or in any manner agrees or consents to practice or enter into |
| i - any form of polygamy, or |
| ii - any kind of conjugal union with more than one person at the same time, |
| whether or not it is by law recognized as a binding form of a marriage; or |
| (b) celebrates, assists or is a party to a rite, ceremony, contract, or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii) |
| is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years. |
| (2) Where an accuse is charged with an offence under this section, no averment or proof of the method by which the alleged relationship was entered into, agreed to or consented to is necessary in the indictment or upon the trial of the accused, nor is it necessary on the trial to prove that the persons who are alleged to have entered into the relationship had or intended to have sexual intercourse. |
[3] The applicant, a Palestinian national residing in Kuwait, was married twice. Both marriages were recognized as valid in Kuwait. The first marriage took place in 1965; the second in 1987. There were children of both marriages.
[4] On December 6, 1995 the applicant and his first wife made an application for permanent residence in Canada. With that application they included three children of the first marriage and two children of the second marriage. On the same date an application for permanent residence was made by the second wife.
[5] The applications of the applicant and the second wife were rejected because the immigration officer had reasonable ground to believe that they intended to practice polygamy in Canada.
[6] Although the applicant made a number of arguments in his memorandum of argument, the only arguments pursued at the judicial review were:
| 1. the second marriage was unenforceable in Canada and would not be recognized in this country; |
| 2. there was no evidence of active steps to practice polygamy and without evidence of active steps no offence would be committed under subsection 293(1) of the Criminal Code. |
[7] As to the first question, in Tse v. Minister of Employment and Immigration [1983] 2 F.C. 308, Urie J.A. at page 311 found that polygamous marriages valid in the country where they were entered into and where the parties were domiciled would be recognized as valid by Canadian Courts.:
| A threshold issue, it seems to me, is whether or not polygamous marriages entered into in countries where such marriages are permitted if parties were domiciled there, would be recognized by the courts of this country. The answer to the question appears to be yes. |
[8] Applicant's counsel submits that a second polygamous marriage would not be recognized for some purposes in Canada. That may be correct. In Castel, Canadian Conflicts of Law, Fourth Edition, at page 367 the author notes:
| Canadian courts are precluded from granting matrimonial relief in the case of a marriage that was entered into under a law which permits polygamy. |
[9] However, whether a second polygamist marriage is recognized for some purposes and not others is beside the point. The only question before the immigration officer was whether there were reasonable grounds to believe that the applicant would practice polygamy in Canada i.e. whether he would have more than one wife in Canada. It was not relevant to this consideration whether for purposes of matrimonial relief, legitimacy of children, maintenance etc. the second marriage would or would not be recognized in Canada.
[10] As to the second question, there is no pretence by either the applicant or his two wives that they did not wish to continue the same family relationship they had in Kuwait. There was no evidence of any intention by the applicant or either of his wives to divorce. The applicant and both wives all intended to settle in Halifax. When the issue of polygamy arose, the second wife offered to live in Quebec.
[11] Applicant's counsel says that there was no evidence that the applicant was taking active steps to practice polygamy in Canada and without active steps no offence would be committed under subsection 293(1) of the Criminal Code. As I understand the argument, it is to the effect that active steps would be an intention by the applicant to live in the same premises with both wives and cohabit with both of them.
[12] Polygamy does not depend upon where the spouses reside or whether there is cohabitation in both marriages at the same location. In any event, irrespective of the representation made, nothing in Immigration law would preclude the applicant and his two wives from living together after they were granted landing.
[13] On its face, the practice of polygamy is having more than one spouse at the same time. Here the applicant has two wives. The three of them want to live in Canada. They all applied at the same time. I do not see that any other active step is required.
[14] In deciding that there were reasonable grounds to believe that the applicant, upon settling in Canada with his two wives, would be practicing polygamy in this country contrary to subsection 293(1) of the Criminal Code and that the applicant was therefore inadmissable, the immigration officer did not err in law. The judicial review is dismissed.
[15] The applicant has asked that the following question be certified for appeal:
| "whether or not, given the fact that the applicants applied separately but at the same time, and that they were going to live in Canada, the second wife in a separate province, the mere fact of the existence of polygamous marriages and legal marriages of the male applicant, to two different spouses, constitutes reasonable grounds to believe that the parties would be practising polygamy in Canada pursuant to section 293 of the Criminal Code, or does there have to be some active step taken once in Canada by the husband and/or either of the two wifes, recognizing or referable to the offending marriage before the offence of polygamy can be made out." |
[16] The question is certified.
"Marshall Rothstein"
Judge
TORONTO, ONTARIO
November 2, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-613-97
| STYLE OF CAUSE: BAHIG MOHAMED SKAIK ALI |
- and -
| THE MINISTER OF CITIZENSHIP AND |
IMMIGRATION
DATE OF HEARING: THURSDAY, OCTOBER 29, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: ROTHSTEIN, J.
DATED: MONDAY, NOVEMBER 2, 1998
APPEARANCES: Mr. Cecil L. Rotenberg, Q.C.
For the Applicant
Ms. A. Leena Jaakkimainen
For the Respondent
SOLICITORS OF RECORD: Cecil L. Rotenberg, Q.C.
Barristers & Solicitors
Suite 808
255 Duncan Mill Road
Don Mills, Ontario
M3B 3H9
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19981102
Docket: IMM-613-97
Between:
| BAHIG MOHAMED SKAIK ALI |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER