T-750-76
Anoop Kumar Kalicharan (Applicant)
v.
Minister of Manpower and Immigration
(Respondent)
Trial Division, Mahoney J.—Toronto, March 8;
Ottawa, March 24, 1976.
Immigration—Prerogative writs—Applicant ordered de
ported following conviction for theft—Subsequently granted
conditional discharge by Ontario Court of Appeal Seeking
prohibition against execution of order—Immigration Act,
R.S.C. 1970, c. I-2, ss. 7(1)(f), 18(1)(e)(ii),(2)—Criminal Code,
R.S.C. 1970, c. C-34, ss. 614(2), 662.1(1),(3),(4).
Applicant, who had entered Canada as a student, was con-
vioted of theft, and ordered deported under section 18(1)(e)(ii)
of the Immigration Act. Subsequently, the Ontario Court of
Appeal granted a conditional discharge. Applicant applied for
prohibition against execution of the deportation order.
Held, the order for prohibition is granted. The Special
Inquiry Officer was under no legal obligation to await the
result of the appeal before issuing the deportation order; a
person convicted at trial is a convicted person notwithstanding
the existence of an unexhausted right of appeal. However,
under a conditional discharge pursuant to the Criminal Code
substituted by a court of appeal for a sentence imposed by a
trial court, the conviction is deemed never to have been passed.
The decision is not simply new evidence which would permit
the Special Inquiry Officer to reopen the hearing, or merely a
fact to be considered if an appeal is entertained by the Immi
gration Appeal Board. Rather, the basis for making the depor
tation order no longer exists in fact, and is deemed in law not to
have existed at all.
R. v. Law Society of British Columbia (1968) 68 D.L.R.
(2d) 179, agreed with.
ACTION.
COUNSEL:
R. Kligerman for applicant.
K. Braid for respondent.
SOLICITORS:
Shuber, Gluckstein, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: The applicant moves, by originat
ing notice of motion, for a writ of prohibition
prohibiting the execution of an order that he be
deported. The applicant entered Canada, as a stu
dent, pursuant to section 7(1)(f) of the Immigra
tion Act'. Following his conviction for theft con
trary to the provisions of section 294 of the
Criminal Code 2 , he was sentenced to pay a $50
fine. He appealed against the sentence but not the
conviction.
On February 5, 1976, a Special Inquiry Officer
issued the deportation order on the basis that the
applicant was a person described in subparagraph
18(1)(e)(ii), namely one who, being neither a
Canadian citizen nor with a Canadian domicile,
has been convicted of an offence under the Crimi
nal Code. The Immigration Act provides:
18. (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.
On February 19, 1976, the Ontario Court of
Appeal allowed the applicant's appeal and granted
him a conditional discharge.
The pertinent provisions of the Criminal Code
follow:
614. (2) A judgment of a court of appeal that varies the
sentence of an accused who was convicted has the same force
and effect as if it were a sentence passed by the trial court.
662.1 (I) Where an accused, other than a corporation,
pleads guilty to or is found guilty of an offence, other than an
offence for which a minimum punishment is prescribed by law
or an offence punishable, in the proceedings commenced
against him, by imprisonment for fourteen years or for life or
by death, the court before which he appears may, if it considers
it to be in the best interests of the accused and not contrary to
the public interest, instead of convicting the accused, by order
direct that the accused be discharged absolutely or upon the
conditions prescribed in a probation order.
R.S.C. 1970, c. I-2.
2 R.S.C. 1970, c. C-34.
(3) Where a court directs under subsection (1) that an
accused be discharged, the accused shall be deemed not to have
been convicted of the offence to which he pleaded guilty or of
which he was found guilty and to which the discharge relates
except that
(a) the accused or the Attorney General may appeal from
the direction that the accused be discharged as if that
direction were a conviction in respect of the offence to which
the discharge relates or, in the case of an appeal by the
Attorney General, a finding that the accused was not guilty
of that offence; and
(b) the accused may plead autrefois convict in respect of any
subsequent charge relating to the offence to which the dis
charge relates.
(4) Where an accused who is bound by the conditions of a
probation order made at a time when he was directed to be
discharged under this section is convicted of an offence, includ
ing an offence under section 666, the court that made the
probation order may, in addition to or in lieu of exercising its
authority under subsection 664(4), at any time when it may
take action under that subsection, revoke the discharge, convict
the accused of the offence to which the discharge relates and
impose any sentence that could have been imposed if the
accused had been convicted at the time he was discharged, and
no appeal lies from a conviction under this subsection where an
appeal was taken from the order directing that the accused be
discharged.
Whatever the practical considerations that ought
to have prevailed, the Special Inquiry Officer was
under no legal obligation to await the result of the
appeal before issuing the deportation order. A
person convicted at trial is a convicted person
notwithstanding that he may have an unexhausted
right of appeal that would render him otherwise'.
The applicant was, on February 5, 1976, a person
described in subparagraph 18(1)(e)(ii) and, thus,
subject to deportation.
As I appreciate the provisions of the Criminal
Code, as they bear upon a conditional discharge
substituted by a court of appeal for a sentence
imposed by a trial court, the conviction is not
reversed; it is deemed never to have been passed.
The decision of the Ontario Court of Appeal is not
merely new evidence that would permit the Special
Inquiry Officer to reopen his hearing; nor is it
simply a fact to be taken into account by the
Immigration Appeal Board if, as and when, that
tribunal entertains an appeal from the Special
Inquiry Officer's decision. Rather, its import is
R. v. Law Society of British Columbia, Ex parte MacKrow
(1968) 68 D.L.R. (2nd) 179.
that the basis for making the deportation order not
only no longer exists in fact; it is deemed, in law,
not to have existed at all. This, therefore, is a
proper case for prohibition and the order sought
will issue accordingly.
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.