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Paul Alexander Smogor (Appellant) v.
Minister of Manpower and Immigration (Respondent)
Court of Appeal, Jackett C.J., Cameron and MacKay D.JJ.—Toronto, March 30, 1973.
Immigration—Deportation order—Landed immigrant sen tenced to jail—Report made after his discharge—Whether subject to deportation—Immigration Act, R.S.C. 197''0I, c. I-2, s. 18(1)(e)(iii).
A landed immigrant was convicted of an offence against the Food and Drugs Act and sentenced to a fine of $'20'0 or 21 days in jail. He chose to go to jail and was discharged therefrom on March 9, 197'1. On April 1, 1971, a report was made under section 19(1)(e)(iii) of the Immigration Act [now section 18(1)(e)(iii) of R.S.C. 1970, c. I-2] that he was a person who "has become an inmate of a gaol", and he was ordered deported.
Held, reversing the Immigration Appeal Board, the depor tation order should be quashed. The words "has become an inmate" imply that the person referred to is still an inmate when the report is made.
APPEAL from Immigration Appeal Board.
COUNSEL:
J. T. Weir, Q.C., and G. L. Segal for appellant.
E. A. Bowie and G. Garton for respondent. SOLICITORS:
Weir and Foulds, Toronto, for appellant.
Deputy Attorney General of Canada for respondent.
JACKETT C.J. (orally)—This is an appeal from a decision of the Immigration Appeal Board, dated April 25, 1972, dismissing an appeal from a deportation order made against the appellant on May 26, 1971.
The deportation order was based on a finding that the appellant was a person described in section 19(1)(e)(iii) of the Immigration Act, R.S.C. 1952, c. 325, as amended, as it was at the time the deportation order was made. Sec-
tion 19, which is section 18 of R.S.C. 1970, c. I-2, read in part as follows:
19. (1) Where he has knowledge thereof, the clerk or secretary of a municipality in Canada in which a person hereinafter described resides or may be, an immigration officer or a constable or other peace officer shall send a written report to the Director, with full particulars, concerning
(e) any person, other than a Canadian citizen or a person with Canadian domicile, who
(iii) has become an inmate of a penitentiary, gaol, refor matory or prison or of an asylum or hospital for mental diseases,
(2) Every person who is found upon an inquiry duly held by a Special Inquiry Officer to be a person described in subsection (1) is subject to deportation.
The appellant came to Canada as a visitor in February, 1970, and obtained "landed-Immi grant" status in April, 1970. In December, 1970, he was convicted of an offence against the Food and Drugs Act, R.S.C. 1970, c. F-27, sentenced to a fine of $200 and given the alternative of twenty-one days in jail. He chose to serve the jail sentence and served a period of fourteen days that expired on March 9, 1971.
On April 1, 1971, a report was made under section 19 of the Immigration Act, supra, in respect of the appellant, which report indicated that the appellant was a person who
"has become an inmate of a Gaol."
As a result of that report, the deportation order that resulted in this appeal was made.
The appellant's principal objection to the judgment of the Immigration Appeal Board is that the Board erred in law:
In interpreting section 19(1')(e)(iii) of the Immigration Act, [now s. 18(1')(e)(iii), R.S.C. 1970, c. I-2] to include anyone who has ever been an inmate of a penitentiary, gaol, refor matory, or prison or of an asylum or hospital for mental diseases;
The appellant's case is based on the fact that, while he had, since his admission to Canada, become an inmate of a jail, his term of impris onment was completed before the time when the section 19(1) report was made so that he
was not such an inmate at that time. What is involved is a narrow point of statutory construc tion turning on the tense of the verb used in section 19(1)(e)(iii).
In my view, it is no exaggeration to say that there is a lack of precision and consistency in the use of verbal tenses in section 19. Section 19(1) required a report to be made concerning, among others,
(a) any person . . . "who engages in, advocates or is a member of or associated with" a certain type of organization,
(b) any person . . . who . . . "has been convicted" of an offence against the Sovereign,
(c) any person . . . who . . . "en- gages in espionage" or related activities,
(d) any person . . . "who is convicted" of certain offences under the Narcotic Con trol Act,
(e) any person . . . who
(i) "practises . . . prostitution", etc.,
(ii) "has been convicted of an offence under the Criminal Code,"
(iii) has become an inmate of inter alia a "gaol",
(iv) was a member of a prohibited class at the time of his admission,
(v) has, since his admission . . . be come a person who, if he were applying for admission . . . would be refused.
Section 19(2) provided that a person who "is found" upon an inquiry "to be" a person described in section 19(1) is subject to deportation.
The appellant's contention is that section 19(1)(e)(iii) only applied to a person who was an "inmate" of one of the institutions referred to therein at the time of the making of the report contemplated by section 19(1). The respond ent's position is that section 19(1)(e)(iii) had application "to any person who has become an inmate of a gaol notwithstanding that he ceased to be an inmate before the report required by section 19 of the Immigration Act was made".
I am of the view, not without some doubt, that the appellant's contention represents the better view. As I appreciate the precise use of the English language, the words "has become an inmate" imply that the person referred to is still an inmate.
Certainly, if it had been intended to extend section 19(1)(e)(iii) to every person who had been an inmate of a penal or mental institution at any time since his admission to Canada, it would have been quite simple to have made that intention clear. For example, that provision might have been worded as follows:
(iii) has, at any time since his admission to Canada, been an inmate of a penitentiary, gaol, reformatory or prison, or of an asylum or hospital for mental disease.
Parliament did not, however, use any such lan guage and it may well be that, upon considera tion, any such language would be found to go much too far. It would apply, I should have thought, to a person incarcerated on an unfounded charge or on a misapprehension as to the facts and who is subsequently not charged or is acquitted; and it might, as a practical matter, make the unfortunate victim of the mis take vulnerable to a form of blackmail that is not unknown in connection with immigration matters.
The view of the meaning of section 19(1)(e)(iii) that I have adopted is also support ed, in my opinion, by a consideration of the context. Section 19(1)(b),(4) and (e)(ii) spell out the classes of convictions for offences that render a person liable to be deported. Where a person has been convicted of such an offence, there is no need to have recourse to section 19(1)(e)(iii). Similarly section 19(1)(e)(v) read with section 5(s) makes it clear that, while cer tain mental abnormalities will be sufficient to prevent a person from being admitted to Canada, the acquisition of such abnormalities after admission does not, of itself, make a person subject to be deported. What section 19(1)(e)(iii) is dealing with, therefore, is the class of persons who, for no matter what reason, are inmates of penal or mental institu tions. As a matter of policy, as I conceive it, the statute says, if you are such an inmate, even
though for a condition that would not make you subject to deportation if you were not such an inmate, you are subject to deportation.
My conclusion is that the appeal should be allowed, the judgment of the Immigration Appeal Board should be set aside and the depor tation order made against the appellant on May 26, 1971, should be quashed.
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CAMERON and MACKAY D.B. concurred.
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