A-17-79
Kai Lee (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Urie J., Kelly and Kerr D.JJ.—
Toronto, May 17; Ottawa, June 20, 1979.
Judicial review — Immigration — Applicant, a student
from Hong Kong, was convicted of offence punishable on
summary conviction — After conviction, student applied for
and was granted extension of student authorization, without
disclosing conviction on this and on application following his
return from trip to Hong Kong — On return from that trip,
applicant relied on student status for entry into Canada with
out disclosing conviction — Immigration procedures initiated
— Application to review and set aside Adjudicator's decision
that applicant excluded as a person described in s. 19(2)(a) of
the Immigration Act, 1976 — Immigration Act, 1976, S.C.
1976-77, c. 52, s. 19(2)(a),(b) — Criminal Code, R.S.C. 1970,
c. C-34, s. 294 as amended by S.C. 1974-75-76, c. 93, s. 25
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Applicant seeks to have reviewed and set aside a departure
notice made January 9, 1979, by an Adjudicator before 'whom
an inquiry was held pursuant to section 27(4) of the Immigra
tion Act, 1976. Applicant, a student from Hong Kong, was
charged with theft under $200, prosecuted by way of summary
conviction, and convicted. After his conviction and without
disclosing that he had been convicted, applicant applied for and
was granted an extension of his student authorization. A short
time after his conviction, applicant travelled to Hong Kong,
and on his return, entered Canada relying on his student status,
without disclosing his conviction. Before proceedings were ini
tiated to inquire into his right to be in Canada, applicant
applied for, and was granted, a further extension of his student
authorization, again without disclosing the conviction. The
Adjudicator held that applicant would have necessarily been
excluded because he was a person described in section 19(2)(a)
in that he had been convicted of an offence which "may be
punishable by way of indictment under any other Act of
Parliament and for which a maximum term of imprisonment of
less than ten years may be imposed".
Held, the application is allowed. In light of the decision in
Smalenskas v. Minister of Employment and Immigration
applicant's contention that he was not a person seeking admis
sion to Canada on his return because his status as student had
not been exhausted or terminated is not tenable. Regarding the
applicant's second ground of attack, the nature of the amend
ment to the Criminal Code indicates that the intention of
Parliament was, by the present section 294(b), to create two
separate offences where the value of what is stolen does not
exceed $200, one indictable and one punishable on summary
conviction. The conviction registered against the applicant was
for the offence punishable on summary conviction. Section 19
relates the disqualification for admission to Canada to a `con-
viction" for an offence that may be punishable by indictment or
convictions for two offences punishable on summary conviction.
Although the applicant's conduct might have resulted in the
Crown seeking a conviction for an indictable offence, the actual
conviction was not for an offence that might be punishable by
indictment. Therefore, there being registered against the appli
cant no conviction for an offence described in section 19(2)(a),
and but one conviction for an offence described in section
19(2)(b), applicant is not a member of the class of persons
excluded by that section. The Adjudicator erred in law in
making the departure notice under review.
Smalenskas v. Minister of Employment and Immigration
[1979] 2 F.C. 145, followed.
APPLICATION for judicial review.
COUNSEL:
M. J. Danilunas for applicant.
G. Garton for respondent.
SOLICITORS:
Marija J. Danilunas, London, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
KELLY D.J.: The applicant seeks to have
reviewed and set aside a departure notice made, on
the 9th of January 1979, by an Adjudicator before
whom an inquiry was held pursuant to subsection
27(4) of the Immigration Act, 1976, S.C. 1976-77,
c. 52.
The applicant was first admitted from Hong
Kong to Canada in 1976 as a student and appar
ently was lawfully in Canada as such on the 30th
of May 1978. At that time, the period of his
student authorization ran to about the 26th of
June 1978.
In May 1978, at Saskatoon, the applicant was
charged with theft of merchandise valued at under
$200 contrary to sections 283 and 294 of the
Criminal Code, R.S.C. 1970, c. C-34 and was
prosecuted by way of summary conviction; on the
30th of May 1978, a conviction was registered.
After his conviction and without disclosing that
he had been so convicted, the applicant applied for
and was granted an extension of his student
authorization good to the 20th of September 1978.
Some short time after his conviction, in the
summer of 1978, the applicant left Canada and
returned to Hong Kong. On the 20th of August
1978, he arrived at the Vancouver International
Airport and came into Canada, relying on his
student status, and not disclosing that he had been
convicted of theft.
Before proceedings were initiated to inquire into
his right to be in Canada, he applied for and
received a further extension of his student authori
zation, good until the 10th of September 1979,
again refraining from disclosing any information
as to his conviction.
The Adjudicator found that he was not a
Canadian citizen, and not a permanent resident,
and held that he was a person who, if applying for
admission, would have necessarily been excluded
because he was a person described in section
19(2)(a), in that he had been convicted of an
offence which "may be punishable by way of
indictment under any other Act of Parliament and
for which a maximum term of imprisonment of
less than ten years may be imposed".
The first attack made upon the departure notice
was that on 20th of August 1978, the applicant
was not a person seeking admission to Canada
because, at that time, the life of his status as a
student had not been exhausted, nor had that
status been terminated. In the light of the decision
of this Court in Smalenskas v. Minister of
Employment and Immigration ([1979] 2 F.C.
145), the contention of the applicant is not tenable;
once he had departed from Canada in the absence
of some specific permission, granted to him before
his departure, to return, on his return he was
required to present himself to an immigration
officer as one seeking admission to Canada. If the
applicant had been convicted of one of the offences
described in section 19(2)(a), despite the action of
the immigration officer at Vancouver, he was a
person whose admission into Canada was not
allowed by the Immigration Act, 1976.
The second attack, and the one more vigorously
pursued was that, having been convicted after
having been tried by summary conviction proce
dure, he was not a member of a class of persons
whose admission to Canada as an immigrant or as
a visitor was prohibited by section 19(2)(a)—the
class described in that part of the section reading
as follows:
19....
(2) No immigrant and, except as provided in subsection (3),
no visitor shall be granted admission if he is a member of any of
the following classes:
(a) persons who have been convicted of an offence that, if
committed in Canada, constitutes ... an offence that may be
punishable by way of indictment under any other Act of
Parliament and for which a maximum term of imprisonment
of less than ten years may be imposed ... .
In dealing with the latter attack, some assist
ance is afforded by the history of section 19. For
many years, Canadian immigration legislation has
described certain classes of persons who are not
acceptable within Canada and, on that account,
whose presence in Canada may not be made legal
under the normal procedures provided by statute.
In general terms, one of the classes of prohibited
persons was made up of those who had a record of
what Canada considered to be criminal conduct.
By a logical extension of this, a person of a prohib
ited class, found in Canada, was regarded as if he
were seeking admission, gaining no improved
status by his presence in Canada.
Prior to the adoption of the 1976 Act, one of the
specific criteria for the inclusion in such prohibited
class was established guilt of some offence involv
ing moral turpitude. Since the determination as to
whether a particular person were a member of
such a prohibited class required a value judgment
on the part of the officer applying the test, it is
understandable that in the revision of 1976, the
Act set out objective tests by which to determine
who are ineligible for admission to Canada on
account of criminal conduct. Under these tests,
refusal of admission follows from culpability
(established by a conviction in Canada or else-
where) for deviant conduct, which, regardless of
the law elsewhere, displays the ingredients of some
one or more offences which the laws of Canada
might punish.
In order to decide whether one seeking admis
sion to Canada comes within the ambit of such
prohibition, regard must be had to the forms of
criminal procedure currently in use in Canada.
Two paths are provided whereby an accused
person may be tried and convicted—the more
formal, by indictment, the less formal by summary
conviction. The procedure for the trial of persons
charged with the commission of more serious
offences, designated indictable offences, is
required to be by way of indictment: at the other
end of the scale, there are many minor offences,
designated as offences punishable on summary
conviction for the trial of which only summary
conviction procedure may be adopted.
In addition to the foregoing categories of
offences, conduct falling within some generic defi-
nitions—such as assault with intent to resist or
prevent lawful arrest or detention, the commission
of mischief in relation to property or theft—is, by
the Criminal Code, subdivided into two separate
punishable offences, one of which is constituted an
indictable offence with respect to which a max
imum term of imprisonment is provided by the
section creating the crime, the other of which is
constituted an offence punishable by summary
conviction with respect to which the punishment
available is limited by the provisions of Part XXIV
of the Criminal Code.
Consequently, on any one occurrence, the person
accused may be tried for, and, if found guilty,
convicted of either but not both of these offences,
the selection of which of the two offences for
which conviction is to be sought depending on the
selection of one or the other by the Crown.
Section 19 of the Immigration Act, 1976 divides
persons with criminal records into three classes
according to the nature of the offence and the
gravity of the punishment to which Canadian law
would expose them if the offences of which they
were convicted had been committed in Canada.
First—those convicted after a trial by indictment
of an offence for the punishment of which Canadi-
an law provides a maximum term of imprisonment
of ten years or more; second—those convicted,
after a trial by indictment of an offence for the
punishment of which Canadian law provides a
maximum term of imprisonment of less than ten
years; third—those convicted of two offences (not
arising out of a single occurrence) punishable on
summary conviction.
Neither of the first or third classification
embraces the situation of the applicant: the
second, pursuant to which the Adjudicator made
his decision, is described in section 19(2)(a)
(supra).
The conviction registered against the applicant
after a trial by way of summary conviction, of
which Ex. C6 is a certified copy, states that the
applicant on the 20th of May 1979, at the City of
Saskatoon in the said province, did unlawfully
steal merchandise valued at under $200, the prop
erty of the Hudson Bay Company, 2nd Avenue
and 23rd Street, Saskatoon, Saskatchewan, con
trary to sections 283 and 294 of the Criminal
Code.
Section 294 of the Criminal Code, as enacted by
the Criminal Law Amendment Act, 1975, S.C.
1974-75-76, c. 93, reads as follows:
294. Except where otherwise provided by law, every one who
commits theft
(a) is guilty of an indictable offence and is liable to impris
onment for ten years, where the property stolen is a testa
mentary instrument or where the value of what is stolen
exceeds two hundred dollars; or
(b) is guilty
(i) of an indictable offence and is liable to imprisonment
for two years, or
(ii) of an offence punishable on summary conviction,
where the value of what is stolen does not exceed two
hundred dollars.
Prior to the 1975 amendment, section 294
appeared in the Criminal Code in the following
form:
294. Except where otherwise prescribed by law, every one
who commits theft is guilty of an indictable offence and is
liable
(a) to imprisonment for ten years, where the property stolen
is a testamentary instrument or where the value of what is
stolen exceeds fifty dollars, or
(b) to imprisonment for two years, where the value of what
is stolen does not exceed fifty dollars.
The nature of the amendment indicates that the
intention of Parliament was, by the present section
294(b), to create two separate offences where the
value of what is stolen does not exceed $200, one
indictable for which the maximum term of impris
onment that may be imposed is two years, and one
an offence punishable on summary conviction.
The conviction registered against the applicant
was for the offence punishable on summary
conviction.
Section 19 relates the disqualification for admis
sion to Canada to a "conviction" for an offence
that may be punishable by indictment or convic
tions for two offences punishable on summary
conviction. Although the applicant's conduct
might have resulted in the Crown seeking a convic
tion for an indictable offence, the actual conviction
was not for an offence that might be punishable by
indictment.
Therefore, there being registered against the
applicant no conviction for an offence described in
section 19(2)(a), and but one conviction for an
offence described in section 19(2)(b), he is not a
member of the class of persons excluded by that
section, and the Adjudicator erred in law in
making the departure notice herein under review.
The application is granted and the departure
notice is set aside.
* * *
URIE J. concurred.
* * *
KERR D.J. concurred.
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