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A-235-78
Bruce Dale Robertson (Applicant)
v.
Minister of Employment and Immigration (Respondent)
Court of Appeal, Heald and Ryan JJ. and MacKay D.J.—Toronto, June 14 and 15; Ottawa, September 11, 1978.
Judicial review — Immigration — Deportation order issued against applicant — Applicant convicted in 1971 under Crimi nal Code for an offence punishable at that time by a maximum term of ten years' imprisonment — Provision in Code subse quently amended to provide for a maximum term of imprison ment of less than ten years — Whether or not deportation order, made pursuant to s. 19(1)(c) of the Immigration Act, 1976, should be set aside — Deportation order set aside — Immigration Act, 1976, S.C. 1976-77, c. 52, s. 19(1)(c) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review. COUNSEL:
Alan D. Levy for applicant. B. Segal for respondent.
SOLICITORS:
Alan D. Levy, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment rendered in English by
HEALD J.: This is a section 28 application to review and set aside a deportation order made against the applicant, by Robert Parkes, an adjudicator under the Immigration Act, 1976, S.C. 1976-77, c. 52, on May 12, 1978.
Following oral argument, the Court directed counsel to submit written argument on the ques tion as to whether the adjudicator erred in law in applying the provisions of section 19(1)(c) of the Immigration Act, 1976, to the facts and circum stances of this case. Written argument has now been received and after a consideration of same along with the oral submissions of counsel at the hearing, I have concluded that the adjudicator did,
indeed, err in law in applying the provisions of said section 19(1)(c) 1 to the case at bar.
The applicant was convicted of possession of stolen property in 1971 and was sentenced to a term of probation for six months. The stolen prop erty in question was valued at more than $50, and pursuant to section 313(a) of the Criminal Code, as it then was, the "maximum term of imprison ment" for that offence was ten years. Section 313(a) was later amended to provide a maximum term of imprisonment of ten years only when the value of the stolen property exceeds $200. In this case, there is no issue between the parties that the value of the goods in question was clearly less than $200, the evidence being that the retail value would not exceed $150, and that the wholesale value was approximately $45 to $60.
It is also clear that the maximum punishment for possession of this stolen property, if the offence had been committed in 1978, would be imprison ment for two years under the provisions of section 313(b) of the Criminal Code.
Section 19(1)(c) of the Immigration Act, 1976 came into effect on April 10, 1978. It refers to "persons who have been convicted of an offence that .. . constitutes . .. an offence . ..". [The underlining is mine.]
In my opinion, section 19(1)(c) can only be used to deport a person where that person has been convicted of an offence for which the maximum punishment at the date of the deportation order is ten years. The word "constitutes" in the present tense supports this view. Section 10 of the Inter pretation Act, R.S.C. 1970, c. I-23 is also suppor tive. It reads as follows:
' 19. (1) No person shall be granted admission if he is a member of any of the following classes:
(c) persons who have been convicted of an offence that, if committed in Canada, constitutes or, if committed outside Canada, would constitute an offence that may be punishable under any Act of Parliament and for which a maximum term of imprisonment of ten years or more may be imposed, except persons who have satisfied the Governor in Council that they have rehabilitated themselves and that at least five years have elapsed since the termination of the sentence imposed for the offence;
10. The law shall be considered as always speaking, and whenever a matter or thing is expressed in the present tense, it shall be applied to the circumstances as they arise, so that effect may be given to the enactment and every part thereof according to its true spirit, intent and meaning.
Accordingly, and for the above reasons, I am of the opinion that subject deportation order must be set aside.
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RYAN J.: I concur.
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MACKAY D.J.: I concur.
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