A-170-74
Maria de Oliveira Sousa Frias (Applicant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Thurlow J. and Mackay and
Sweet D.JJ.—Toronto, October 3 and 4, 1974.
Immigration—Deportation order—Sustained against
applicant for lack of valid visa—Finding of convictions
involving moral turpitude not sustained—Right to counsel—
Immigration Act, R.S.C. 1970, c. I-2, ss. 5(d), (t), 7(2), 22 —
Regs. 28(l)—Criminal Code, R.S.C. 1970, c. C-34, s. 193—
Federal Court Act, s. 28.
During her previous stay in Canada, the applicant had
married Antonio Frias, a landed immigrant, in 1972. Return
ing to Canada from Portugal, April 9, 1973, she was permit
ted to land as a visitor, for the six months ending October 8,
1973. On applying to an immigration officer, she was the
subject of a section 22 report that she was a member of a
prohibited class in that she did not have a valid immigrant
visa. At a special inquiry, the section 22 report was read to
the applicant, who had a businessman as counsel. The
inquiry was adjourned twice, to permit the applicant to
establish whether her husband would sponsor her as an
immigrant. This branch of the inquiry was completed with
out any such arrangement being reached. At the third hear
ing the applicant appeared without counsel and with her
husband. The Special Inquiry Officer produced a record of
two convictions of the applicant for keeping a common
bawdy house at Toronto in 1973, contrary to the Criminal
Code. Subsequently, the officer ordered deportation of the
applicant as a member of a prohibited class, in lacking a
valid visa contrary to section 5(t) of the Immigration Act
and as convicted of crime involving moral turpitude, con
trary to section 5(d). In a section 28 application, the appli
cant sought reversal of this decision.
Held, dismissing the application, the applicant had counsel
of her choice when her failure to obtain a valid visa was
established. No attempt was made to show that the applicant
had been sponsored by her husband. The order should be
sustained on this ground.
Held further by Thurlow J. (Sweet J. concurring): the
finding of conviction for a crime involving moral turpitude
was made without notice that the convictions were to be the
subject of inquiry, without opportunity to obtain counsel,
and should be struck out as contrary to natural justice.
Per Mackay D.J. (dissenting in part): according to the
record, the applicant denied and later admitted the two
convictions. She continued voluntarily in the absence of
counsel, who could not have helped her after her acknowl
edgment of the certificates as correct. This ground of depor
tation should also be sustained.
APPLICATION for judicial review.
COUNSEL:
William L. Green for applicant.
Mrs. Katherine Braid for respondent.
SOLICITORS:
William L. Greene, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered orally in English by
THURLOW J.: The applicant, a citizen of Por-
tugal, came to Canada on April 9, 1973 and was
permitted, under subsection 7(2)(c) of the Immi
gration Act, to enter for six months which
ended on October 8, 1973. She had been in
Canada in 1972 and in November of that year
had married Antonio Frias, a landed immigrant.
On October 25, 1973 she reported to an immi
gration officer and applied for admission as a
landed immigrant. She was thereupon made the
subject of a section 22 report which alleged that
she was a member of a prohibited class in that
she did not have an immigrant visa as required
by the Regulations.
A special inquiry was begun on November 27,
1974 when she was present with a Mr. Juvnal
De Freitas, a businessman, as her counsel. At
that hearing the section 22 report was read and
the facts alleged in it were established by her
answers to questions put to her by the Special
Inquiry Officer. However, as it was also given
in evidence that the applicant's husband was
expected back from a visit to Portugal within a
week or so the Special Inquiry Officer instead
of concluding the inquiry adjourned it to
December 11, 1973 to give the applicant and
her husband an opportunity to establish if the
husband would be willing to sponsor the appli-
cant, presumably under provisions of the Regu
lations for that purpose.
At the resumed inquiry on December 11 the
applicant, her husband and her counsel
appeared and in the course of what transpired
the husband was asked how he felt about a
statement made by him on August 14, 1973
withdrawing his application to sponsor his wife
as they were no longer cohabiting, to which he
replied that he had decided to stay with his wife.
The inquiry was then further adjourned without
day to give the husband an opportunity to spon
sor the applicant for admission to Canada and to
enable him to complete necessary procedures
and comply with the other requirements of an
application for permanent admission and the
applicant was released from detention on a bond
requiring her to report when called upon to do
so.
The record shows that she and her husband,
but not her counsel, reappeared before the Spe
cial Inquiry Officer on June 27, 1974 and that
she was asked if she wished to continue without
her counsel. She replied in the affirmative.
Nothing further was adduced regarding the
sponsoring of the applicant for admission or as
to her having applied for or been granted admis
sion. However, the Special Inquiry Officer pro
ceeded to question the applicant about and to
introduce certificates of two convictions of the
applicant for keeping a common bawdy house in
Toronto in July and October 1973. At no stage
was the applicant advised that these convictions
were to be the subject matter of an inquiry that
might lead to her deportation on grounds of her
having been so convicted nor was she advised
of her right to counsel with respect to such
subject matter or offered an opportunity to con
sider her position and prepare to meet the same.
After questioning her about the alleged con
victions and asking the applicant if she had any
witnesses to call or additional evidence to give
and if there was any reason why if ordered
deported she might be allowed to remain in
Canada the Special Inquiry Officer adjourned to
consider his decision and thereafter made an
order for the applicant's deportation on grounds
expressed as follows:
(3) You are a member of the prohibited class described in
paragraph 5(d) of the Immigration Act as you have been
convicted of a crime involving moral turpitude, namely, that
you were the keeper of a common bawdy house, and your
admission to Canada has not been authorized by the Gover
nor in Council.
(4) You are a member of the prohibited class described in
paragraph 5(t) of the Immigration Act in that you cannot or
do not fulfil or comply with the conditions or requirements
of the Immigration Act or the Regulations by reason of:
(a) You are not in possession of a valid and subsisting
immigrant visa issued to you by a visa officer in accord
ance with the requirements off subsection 28(1) of the
Immigration Regulations, Part 1, amended.
In so far as the deportation order is based on
the first of these grounds it is, in my opinion,
not sustainable since the applicant was never
informed that her alleged convictions were to be
the subject matter of an inquiry as possible
grounds for her deportation and she was never
afforded an opportunity to consider, whether
with or without the benefit of counsel, what
response might be made thereto. In this respect
the Special Inquiry Officer, in my opinion,
failed to observe a principle of natural justice
and I would, therefore, set his decision aside.
On the other hand with respect to the second
ground for the deportation order it appears to
me that the applicant had the counsel of her
choice when the subject matter was investigated
and established and that she voluntarily waived
her right to counsel at the final hearing. More
over, no attempt was made either at the final
hearing, or even in this Court, to show that the
applicant had been sponsored by her husband or
granted admission to Canada in the interval
between the second and third hearings before
the Special Inquiry Officer. In these circum
stances there is, in my opinion, no basis upon
which the order founded on this ground can be
disturbed.
I would amend the deportation order by strik
ing out the paragraph thereof numbered (3)
above quoted and in other respects I would
dismiss the application.
* * *
SWEET D.J. concurred.
* * *
The following are the reasons for judgment
delivered in English by
MACKAY D.J. (dissenting in part): The appli
cant was ordered deported on the grounds that:
(1) You are not a Canadian citizen;
(2) You are not a person having Canadian domicile, and
that;
(3) You are a member of the prohibited class described in
paragraph 5(d) of the Immigration Act as you have been
convicted of a crime involving moral turpitude, namely, that
you were the keeper of a common bawdy house, and your
admission to Canada has not been authorized by the Gover
nor in Council.
(4) You are a member of the prohibited class described in
Paragraph 5(t) of the Immigration Act in that you cannot or
do not fulfil or comply with the conditions or requirements
of the Immigration Act or the Regulations by reason of:
(a) You are not in possession of a valid and subsisting
immigrant visa issued to you by a visa officer in accord
ance with the requirements of subsection 28(1) of the
Immigration Regulations, Part 1, amended.
I am in agreement with my brother Thurlow
as to his findings in regard to ground (4) but
with respect I do not agree with his conclusion
in regard to ground (3), for the following
reasons:
The applicant as shown by the record and
admitted by her was convicted on the 13
September 1973 as the keeper of a common
bawdy house and was again convicted of the
same offence on the 11th February 1974.
At the first hearing before the inquiry officer
on the 27th November 1973 she was aked if
she had and she denied that she had ever been
convicted of a crime or offence—so that she
knew at that time that this was a matter
relevant to the inquiry.
A declaration of her husband dated August
14th, 1973 filed at the inquiry entitled "In the
Matter of Sponsorship Application for Maria
De Frias," stated in part:
"I wish to withdraw my application to
sponsor Maria De Frias—as as we no
longer co-habit and she earns money by
going with everybody and sending the
money to Portugal."
At the third hearing of the inquiry on June 27,
1974, the inquiry officer said to the applicant:
"Mrs. Frias, I note that your Counsel from
the opening of this enquiry and the resump
tion is not presently here. Do you wish to
continue without him: I am referring to Juvnal
de Freitas." Her answer was yes.
She was also told at this time "also since the
last session some further evidence regarding
your activities in Canada has been brought to
my attention and I intend to question you
further about them."
She was then asked about her convictions and
admitted them.
At this time she was aware by reason of the
questions she was asked at the first inquiry
that convictions were a relevant matter to be
inquired into.
In view of the certificates of convictions and
her acknowledgment of their correctness,
counsel could not have been of any assistance
to her.
In these circumstances, I would not give
effect to the ground of appeal that the applicant
was denied natural justice in not being repre
sented by counsel on the third hearing of the
inquiry.
Some argument was directed to the fact that
the order for deportation referred to a crime
involving moral turpitude rather than to a con
viction under the Criminal Code. It is to be
observed that there may be crimes involving
moral turpitude that are not offences under the
Criminal Code, for example, trafficking in nar
cotics under the Narcotic Control Act. Other
offences such as keeping a common bawdy
house are offences involving moral turpitude
and also offences under the Criminal Code.
For these reasons I am of the opinion that the
application should be dismissed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.