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A-19-75
Yuk-King Chan (Applicant) v.
Minister of Manpower and Immigration (Respondent)
Court of Appeal, Thurlow and Ryan JJ. and MacKay D.J.—Toronto, April 3 and 4, 1975.
Judicial review—Immigration—Applicant applying for extension of non-immigrant student status—Admitting theft—Deportation order—Whether Officer should have adjourned inquiry to enable applicant to seek Minister's per- mit—Whether crime involving moral turpitude—Effect of absolute discharge—Immigration Act, R.S.C. 1970, c. I-2, ss. 5(d), 7(3), 8(1).
Applicant, applying for extension of non-immigrant student status admitted having committed theft. After a section 22 report and an inquiry, she was ordered deported, as a person who had admitted commission of a crime involving moral turpitude. Applicant appeals.
Held, the appeal is dismissed. Assuming as applicant has alleged, that a discretion to adjourn the hearing to permit applicant to apply for a Minister's permit rested in the Special Inquiry Officer, it cannot be said that he refused to exercise it, or acted wrongly in refusing an adjournment. In fact, nearly three months have elapsed since applicant's admission. As to the question of "moral turpitude", no circumstances exist which could lead to the conclusion that the crime did not involve moral turpitude. As to the effect of the absolute dis charge, the basis for applying section 5(d) is not the conviction but the admission of having committed the crime.
Button v. Minister of Manpower and Immigration [1975] F.C. 277, followed.
APPEAL. COUNSEL:
D. Cooke for applicant.
H. Erlichman for respondent.
SOLICITORS:
Trott, Artindale, West and Cooke, 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 came to Canada on December 21, 1973 and was permitted entry as a
non-immigrant visitor for a period of three months. In January 1974 she became a non-immi grant student with permission to remain in Canada until October 4, 1974. In the months that followed she attended in succession three educational insti tutions and applied herself well to her studies.
In October 1974, while pursuing a course of study at Guelph University, she applied for an extension of her non-immigrant student status but on being examined in relation thereto by an immi gration officer on October 15, 1974 she admitted to him that on June 8, 1974 she had stolen two pairs of sun glasses valued at $18.00, one tube of glue and one tube of toothpaste from a store in Waterloo, Ontario. The examination was conduct ed in the presence of her legal counsel and there is no reason to doubt that the admission was made. A report under section 22 was made on December 4, 1974, and an inquiry was held on January 8, 1975 at the conclusion of which an order for the depor tation of the applicant was made on the ground that she was a member of the prohibited class described in paragraph 5(d) of the Immigration Act in that she was a person who admits having committed a crime involving moral turpitude and whose admission to Canada has not been author ized by the Governor-in-Council.
The applicant's first attack on this order was that the Special Inquiry Officer refused to exercise his jurisdiction to adjourn the inquiry to enable the applicant to make an application to the Minister for a permit under subsection 8(1) or, alternative ly, improperly exercised his discretion by not adjourning the inquiry for that purpose. Such an adjournment had been requested by counsel, who had led evidence of the serious effects the making of a deportation order might be expected to have on the applicant on her return to her home country.
The transcript of proceedings at the inquiry indicates that following counsel's request there was a "pause", the duration of which is not stated, and that thereafter the Special Inquiry Officer addressed the applicant saying, inter alia,
The officer who reported you apparently did not first seek a Minister's Permit for you, or, if he did, it must have been refused, because he did report you.
During the course of this hearing there has not been any new testimony come forth which, in my decision, warrants applica tion for a Minister's Permit on behalf of yourself, and therefore my decision is as follows.
Assuming that a discretion rested in the Special Inquiry Officer to adjourn the hearing to permit such an application to be made, in my opinion, it cannot be said either that the Special Inquiry Officer refused to consider exercising it or that he acted on any wrong principle in refusing an adjournment. The statements I have cited show that the Special Inquiry Officer did consider the matter. Moreover nearly three months had already elapsed since the admission had been made to the examining officer.
The second submission was that the crime com mitted by the applicant was not one "involving moral turpitude" within the meaning of section 5(d) of the Act. It was said that to ascertain whether a crime involves moral turpitude it is necessary to look at the circumstances surrounding the commission of the particular crime. The record shows that the Special Inquiry Officer took the view that theft is per se a crime involving moral turpitude and that he did not consider the circum stances of the particular crime.
The question of the correct interpretation of the expression "crime involving moral turpitude" was carefully analyzed by the Chief Justice in Appen dix "B" to his reasons for judgment in Button v. Minister of Manpower and Immigration [1975] F.C. 277, wherein an interpretation consistent with that adopted in this case by the Special Inquiry Officer was proposed, and if it were necessary to reach a concluded opinion for the purposes of this case as at present advised I would be inclined for the reasons given by the Chief Justice to adopt his interpretation. However, in my view, it is unneces sary for the present purpose to finally resolve the question because, regardless of how much one may deplore the unusually severe consequences which the applicant's blunder has caused her, in my opinion, no circumstances were established which could lead to the conclusion that her crime, minor as it was, was not one involving moral turpitude.
The final submission, as I understood it, was that because, following her plea of guilty to the charge of theft, she had been given an absolute discharge under the provisions of the Criminal
Code and is therefore to be considered as not having been convicted, the applicant's admission to the examining officer of having committed the crime cannot be used as a basis for excluding her from Canada.
It must be remembered that the applicant though in Canada, on applying for permission to remain as a non-immigrant student following the termination of her earlier permission, is, under subsection 7(3), to be deemed for the purpose of the examination and all other purposes of the Act to be a person seeking admission to Canada. Such a person has no right to enter Canada but may be permitted to enter or refused entry in accordance with what is prescribed by the statute. One of its provisions is section 5(d). That provision, as I read it, is not penal in nature but simply prohibits the entry of the persons therein mentioned. It seems to me to follow that the fact of the criminal proceed ings and the absolute discharge are irrelevant where the basis for the application of section 5(d) is not that of the person concerned having been convicted of a crime involving moral turpitude but that of the person concerned being a person who admits having committed such a crime.
The application accordingly fails and must be dismissed.
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MACKAY D.J. concurred.
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The following are the reasons for judgment delivered orally in English by
RYAN J.: I agree. I would, however, merely indicate with great respect that I have not at present formed a settled view on certain of the important questions on the meaning of "a crime involving moral turpitude" discussed by Chief Jus tice Jackett in the Button case, particularly on the question whether it is the intrinsic nature of the crime as defined or the circumstances in which it was done that is decisive.
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