A-261-74
Dame Beatrice Kreis (Dallenbach) (Applicant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Jackett C.J., Hyde and St-Ger-
main D.JJ.—Montreal, October 9, 10, 1974.
Judicial review—Immigration—Entry into Canada as visi-
tor—Involvement in crimes of husband in Switzerland—
Question of duress—Order for deportation upheld—Immi-
gration Act, R.S.C. 1970, c. I-2, ss. 5(d), 18(1)(e)(iv) and (2),
25—Criminal Code, R.S.C. 1970, c. C-34, s. 17—Federal
Court Act, s. 28.
The applicant, allowed entry into Canada as a visitor,
subsequently admitted, at a special inquiry, her knowledge
of many thefts for which her husband was imprisoned in
Switzerland. In driving her husband and his accomplice to
the scene of their crimes, she claimed to have acted under
duress, through threats and beatings administered by her
husband. She admitted remaining alone in the car without
seeking the protection of the police. The applicant was
ordered deported as being within the forbidden class of
persons in that she was guilty of a crime involving moral
turpitude, under section 5(d) of the Immigration Act. By a
section 28 application, she sought review of the order.
Held, dismissing the application, theft was a crime involv
ing moral turpitude. The defence of duress, under section 17
of the Criminal Code, was subject to the test of whether
there was "immediate" threat of death or grievous bodily
harm. On the application of this test to the applicant's
admissions, it followed that her defence failed.
R. v. Brooks, (1960) 24 D.L.R. (2nd) 567; affirmed, 25
D.L.R. (2nd) 779 and R. v. Carker, [1967] S.C.R. 114,
applied.
APPLICATION for judicial review.
COUNSEL:
B. Vizkelety, Q.C., for applicant.
George Léger for respondent.
SOLICITORS:
B. Vizkelety, Q.C., Montreal, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered orally in English by
HYDE D.J.: This is an application under sec
tion 28 of the Federal Court Act to review and
set aside an order for deportation made against
the applicant on September 4, 1974 by a Special
Inquiry Officer on the following grounds:
[TRANSLATION] 1) you are not a Canadian citizen;
2) you are not a person who has acquired Canadian
domicile;
3) you are a person described in subparagraph 18(1)(e)(iv)
of the Immigration Act, in that you were a member of a
prohibited class of persons at the time of your entry into
Canada, to wit subsection 5(d) of the Immigration Act, in
that you admit having committed a crime involving moral
turpitude, and your entry into Canada was not authorized by
the Governor in Council;
4) you are subject to deportation under subsection 18(2) of
the Immigration Act.
The applicant is a citizen of Switzerland, aged
22, married without children; she has instituted
proceedings for divorce in that Country from
her husband, also a Swiss citizen, presently in
prison in Zurich. She arrived in Canada on April
30, 1974, and was admitted at Dorval as a visitor
for 2 months. She subsequently applied for and
was given a work permit and her visitor's status
was extended to April 29, 1975.
Following a report by an Immigration Officer
under section 18(1)(e)(iv) of the Immigration
Act on August 16, 1974, an order under section
25 of that Act was issued directing an inquiry
under section 5(d) as a "person who admits
having committed a crime involving moral turpi
tude" and whose admission to Canada had not
been authorized by the Governor in Council.
Accordingly an inquiry was held at Montreal
on September 4, 1974, at which she confirmed
what she had stated to an Immigration Officer
at an interview conducted on July 22, 1974,
namely, that she was aware that her husband
had been committing a large number of thefts.
Although she only gave details of one where he
and an accomplice broke into a store and came
back with a safe, she said that on that occasion
and some 10 to 15 others she had driven them
to the vicinity of the crime and knew what their
intentions were.
The applicant, in these circumstances, under
Canadian law, and no other was urged, admitted
the commission of a crime and I have no hesita
tion in saying it involved "moral turpitude".'
Counsel for the applicant, however, argues
that what she recounted was not a crime
because she did it under duress. She explained
this duress both to the Special Inquiry Officer
and the Immigration Officer a number of times.
The gist of it appears from the following
exchange at the special inquiry:
[TRANSLATION] Q. If you knew what your husband was
doing, and even though he beat you to make you go
with him, when you were waiting in the car why did
you wait? Why didn't you go to the police?
A. Because I was afraid of my husband; my husband had
threatened that if I went to the police he would kill me.
and from the interview under oath with the
Immigration Officer:
Q. 37. You have mentioned that you were forced, in what
way were you forced?
A. 37. Under physical, he hit me if I didn't want to help
him.
Q. 38. Did he actually hit you or did he threaten you?
A. 38. He hit me very often.
Q. 39. Can you explain to me why when you were left all
alone in the car, when your husband and his accom
plice were robbing, why you didn't just take off and go
to the police?
A. 39. If I had done that, it wouldn't have helped me, I
don't think so, I think it is ridiculous. It wouldn't have
changed anything, he would have caught up with me.
Q. 40. You were saying that your husband hit you and
threatened to hit you if you did not go along with these
robberies and yet you say that it never or you never
thought of going to the police and leave your husband
and his accomplice do the theft and ask for protection?
A. 40. I was too much afraid to do that.
' (See R. v. Brooks (1960) 24 D.L.R. (2nd) 567; con
firmed by the Manitoba Court of Appeal (1961) 25 D.L.R.
(2nd) 779).
"Duress" is dealt with in section 17 of the
Criminal Code as follows:
17. A person who commits an offence under compulsion
by threats of immediate death or grievous bodily harm from
a person who is present when the offence is committed is
excused for committing the offence if he believes that the
threats will be carried out and if he is not a party to a
conspiracy or association whereby he is subject to compul
sion, but this section does not apply where the offence that
is committed is treason, murder, piracy, attempted murder,
assisting in rape, forcible abduction, robbery, causing bodily
harm or arson.
This section was considered by the Supreme
Court of Canada in R. v. Carker [1967] S.C.R.
114 when Mr. Justice Ritchie, speaking for the
Court (at page 118), said that while the evidence
in that case:
... disclosed that the respondent committed the offence
under the compulsion of threats of death and grievous,
bodily harm, but although these threats were "immediate" in
the sense that they were continuous until the time that the
offence was committed, they were not threats of "immedi-
ate death" or "immediate grievous bodily harm" and none
of the persons who delivered them was present in the cell
with the respondent when the offence was committed.'
Applying this test to the facts as given by the
applicant herself it is clear that the excuse of
duress was not open to her.
I would, accordingly, refuse this application.
* *
JACKETT C.J. concurred.
* * *
ST -GERMAIN D.J. concurred.
2 (Note: this decision was recently followed by the
Quebec Court of Appeal in the yet unreported judgment in
Vaillancourt v. R. No. A. 5214 rendered July 4, 1974.)
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.