A-213-80
Shane Gregory Brannson (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Urie and Ryan JJ., Kelly D.J.—
Toronto, April 24 and June 5, 1980.
Judicial review — Immigration — Deportation order —
Applicant was convicted of using the U.S. Postal Service to
defraud — Application to review and set aside deportation
order on the grounds that Adjudicator erred in law in deciding
that the offence of which applicant had been convicted was an
offence which, had it been committed in Canada, would consti
tute an indictable offence for which less than ten years impris
onment could be imposed; the applicant did not consent to the
continuation of the inquiry before another Adjudicator; there
had not been a full and proper inquiry because of an accumu
lation of errors — Application allowed — Immigration Act,
1976, S.C. 1976-77, c. 52, ss. 19(2)(a), 27(2)(a),(3),(4), 45(1),
46(1) — Criminal Code, R.S.C. 1970, c. C-34, s. 339 —
United States Code, Title 18, c. 63, s. 1341 — Immigration
Regulations, 1978, SOR/78-172, s. 35 — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Application to review and set aside a deportation order made
against applicant because he had been convicted of using the
United States Postal Service in executing a scheme to defraud.
The Adjudicator held that such an offence, if committed in
Canada, would constitute an indictable offence carrying a
maximum term of imprisonment of two years under section 339
of the Canadian Criminal Code. The issues are whether the
deportation order should be set aside for the following reasons:
the Adjudicator erred in law in deciding that the offence of
which the applicant had been convicted in the United States
was an offence which, had the applicant committed it in
Canada would constitute an offence that "may be punishable
by way of indictment ... and for which a maximum term of
imprisonment of less than ten years may be imposed"; the
applicant did not consent to the continuation of the inquiry
before an Adjudicator other than the Adjudicator before whom
it was commenced; or, there had not been a full and proper
inquiry because of an accumulation of errors, none of which in
itself would have been fatal.
Held, the application is allowed and the deportation order is
set aside. The Adjudicator erred in deciding that the offence of
which applicant was convicted would constitute an offence
against section 339 of the Criminal Code. The offence of which
the applicant was convicted was that of sending by the Postal
Service any matter or thing whatever for the purpose of execut
ing a scheme to defraud. The sending or transmission of
"letters or circulars" is an essential element of the Canadian
offence. Whatever the names given the offences or the words
used in defining them, one must determine the essential ele
ments of each and be satisfied that they correspond. Where, as
here, the definition of foreign offence is broader than, but could
contain, the definition of an offence under a Canadian statute,
it may well be open to lead particulars of the offence of which
the person under inquiry was convicted. Such particulars might
so narrow the scope of the conviction as to bring it within the
terms of a Canadian offence. From what he said in his evi
dence, it could not be inferred that the offence to which the
applicant pleaded guilty contained, as an element, transmitting
or delivering letters or circulars by mail. The Adjudicator did
not purport to draw any such inference. She found simply that
the offence of which he was convicted in the United States,
would have been an offence under section 339 of the Criminal
Code had it been committed in Canada. With regard to the
applicant's second submission of error, the resumed inquiry
may proceed before another designated Adjudicator whether or
not the applicant consents. There is no substance to the appli
cant's third submission that, as a result of accumulation of
errors, there had not been a full inquiry.
R. v. Lavitch and Appel (1969) 69 W.W.R. 412, referred
to. Button v. Minister of Manpower and Immigration
[1975] F.C. 277, referred to. Pincheira v. Attorney Gener
al of Canada [1980] 2 F.C. 265, referred to.
APPLICATION for judicial review.
COUNSEL:
B. Knazan and Miss Jackman for applicant.
B. Evernden for respondent.
SOLICITORS:
Knazan, Jackman & Goodman, Toronto, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
URIE J.: I have had the advantage of reading
the reasons for judgment of my brother Ryan and
agree with them and with his proposed disposition
of this section 28 application. I merely wish to
enlarge on one aspect of the reasons—that relating
to equating the offence committed in the foreign
country to an offence under the laws of Canada.
The difficult question is to determine the limits of
the Adjudicator's duty to find whether the foreign
offence for which the applicant had been convicted
would constitute an offence under Canadian law.
There is no question that, in this case, if the
documentary evidence of the conviction in the
United States and of the nature of the offence for
which the applicant was convicted were sufficient
to show that, if committed in Canada, it would
constitute an indictable offence, then no viva voce
evidence would be required from the applicant or
others with regard thereto. In this case the evi
dence consists of certified copies of the judgment
and probation commitment order for, inter alia,
"(Ct. V) Using U.S. Postal Service in executing
scheme to defraud". Count V was, presumably
part of the indictment and undoubtedly it would
contain particulars as to how the offence was
committed. Because it is not in evidence, we do not
know how the U.S. Postal Service was used in
executing the scheme to defraud. In addition, there
was placed in evidence, an excerpt from Title 18,
chapter 63, section 1341 of the United States
Code, pursuant to which the conviction was regis
tered in the United States. It has been set out in
the reasons of Ryan J. Section 339 of the Canadi-
an Criminal Code was also before the Adjudicator.
Clearly it has a much narrower scope than does its
U.S. counterpart in that in the latter if any matter
or thing whatever is placed in the mail for the
purpose of executing a scheme to defraud, it is an
offence while under section 339 only when letters
or circulars are used in schemes to deceive or
defraud the public is it an offence.
The question then arises to what extent the
Adjudicator is entitled to flesh out the evidence
relating to the United States offence by ascertain
ing how the offence was committed by the appli
cant in order to ascertain whether the offence
committed would constitute an offence in Canada.
To bring the applicant within the scope of section
19(2)(a) the Adjudicator must be satisfied solely
on evidence adduced before, and admitted by, her
that the acts which are the ingredients of which
proof was essential to bring about a conviction for
the offence committed outside Canada would, if
committed in Canada, "constitute 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".
It is not sufficient, in my view, for the Adjudica
tor simply to look at the documentary evidence
relating to a conviction for an offence under the
foreign law. There must be some evidence to show
firstly that the essential ingredients constituting
the offence in Canada include the essential
ingredients constituting the offence in the United
States. Secondly, there should be evidence that the
circumstances resulting in the charge, count,
indictment or other document of a similar nature,
used in initiating the criminal proceeding in the
United States, had they arisen in Canada, would
constitute an offence that might be punishable by
way of indictment in Canada. Thus, it would seem
that such a document would constitute the best,
but not the only, evidence upon which the
Adjudicator might base her decision.
However, apparently in this case that evidence
was not adduced and, as my brother Ryan pointed
out, the Adjudicator seemed to rule that testimony
by the applicant as to what he had done was
irrelevant. In the circumstances of this case, I
think she was wrong in so deciding. In the absence
of the kind of documentary evidence which would
give her an indication as to how the applicant used
the mails to defraud, the case presenting officer
ought to have been permitted to adduce viva voce
evidence to establish how the offence had been
committed in the United States. Otherwise, the
Adjudicator could not properly fulfil her function
of determining whether section 19(2)(a) applied to
the applicant. In this case the case presenting
officer attempted to adduce that form of evidence
through the applicant. In other cases he might
properly adduce it through some other credible
witness.
I recognize, of course, that there are some
offences such as murder, which may be compendi-
ously described as crimes malum in se, where the
extent of the proof required to satisfy the duty
imposed on the Adjudicator is not so great. A
conviction for such a crime would usually arise
from circumstances which would constitute
offences in Canada. It is in the sphere of statutory
offences which may be described as offences
malum prohibitum in contradistinction to offences
malum in se, that the comments which I have
previously made have particular applicability.'
I believe that my view as to the necessity of
permitting evidence to be adduced of the nature
which I have discussed, is reinforced by the possi
bility that where there have been convictions in
countries other than common law countries, the
methods whereby prosecutions are instituted may
be substantially different from those generally pre
vailing in common law countries. In such countries
documentary disclosure of the particulars of the
offence charged or of the ingredients thereof
required to be proved may not be necessary, or at
least as stringently disclosed, as in common law
jurisdictions. Therefore, different requirements for
establishing that the offences in the two countries
have parallel constituents may be necessary and
quite obviously may necessitate that evidence be
adduced viva voce. 2
In summary, the necessity for the Adjudicator
to determine whether the offence for which the
applicant was convicted would constitute an
offence if committed in Canada, requires, at least
in circumstances where the scope of the offence is
narrower in compass than that in the foreign juris
diction, ascertainment of particulars of the offence
for which the person concerned was convicted. It is
neither possible nor desirable to lay down in gener
al terms the requirements applicable in every case.
Suffice it to say that the validity or the merits of
the conviction is not an issue and the Adjudicator
correctly refused to consider representations in
regard thereto. However, she did have the obliga
tion to ensure that the conviction in issue arose
from acts which were encompassed by the provi
sions of section 19(2)(a). This she failed to do.
For all of the above reasons, as well as those
given in the reasons by my brother Ryan, I would
dispose of the application in the manner proposed
by him.
* * *
' See Button v. Minister of Manpower and Immigration
[1975] F.C. 277, at page 284.
2 Since the applicant in this case is already in Canada, it is
unnecessary to consider how the onus of proof required by
section 8(1) would affect the responsibility for the adducing of
evidence to substantiate or negative the applicability of section
19(2)(a).
The following are the reasons for judgment
rendered in English by
RYAN J.: This is a section 28 application to
review and set aside the deportation order made
against the applicant, Shane Gregory Brannson,
by Adjudicator P. J. Delaney on March 25, 1980.
The deportation order is in these terms:
I hereby order you to be deported because you are a person
described in: subsection 27(2)(a) of the Immigration Act in
that You are a person in Canada other than a Canadian citizen
or permanent resident who, if you were applying for entry,
would not be granted entry by reason of being a member of an
inadmissible class described in paragraph 19(2)(a), that is you
are a person who has been convicted of an offence outside of
Canada, namely, using U.S. Postal Service in Executing
Scheme to Defraud, Section 1341, Article 18, on 20 November
1978 in Kansas City, Missouri, an offence which, if committed
in Canada, would constitute an offence that may be punishable
by way of indictment under the Criminal Code, Section 339,
that is entitled Using Mails to Defraud for which a maximum
term of imprisonment of two years may be imposed.
The inquiry was held pursuant to a notice of
inquiry issued under subsection 27(4) of the
Immigration Act, 1976, S.C. 1976-77, c. 52. In the
notice the senior immigration officer stated that he
had received a direction for inquiry issued pursu
ant to subsection 27(3) of the Act a and a copy of a
report which stated that "Shane G. Brannson is a
person described in paragraph 27(2)(a)" of the
Act.
Paragraph 27(2)(a) of the Act reads:
27....
(2) Where an immigration officer or peace officer has in his
possession information indicating that a person in Canada,
other than a Canadian citizen or a permanent resident, is a
person who
3 Subsections 27(3) and (4) of the Immigration Act, 1976
read:
27....
(3) Subject to any order or direction of the Minister, the
Deputy Minister shall, on receiving a report pursuant to
subsection (1) or (2), and where he considers that an inquiry
is warranted, forward a copy of that report and a direction
that an inquiry be held to a senior immigration officer.
(4) Where a senior immigration officer receives a copy of
a report and a direction pursuant to subsection (3), he shall,
as soon as reasonably practicable, cause an inquiry to be held
concerning the person with respect to whom the report was
made.
(a) if he were applying for entry, would not or might not be
granted entry by reason of his being a member of an
inadmissible class other than an inadmissible class described
in paragraph 19(1)(h) or 19(2)(c),
he shall forward a written report to the Deputy Minister setting
out the details of such information unless that person has been
arrested without warrant and held in detention pursuant to
section 104.
The inadmissible class of which it was alleged
the applicant was a member is the class described
in subsection 19(2), paragraph (a), which pro
vides:
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 or, if committed outside
Canada, would constitute 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, except persons who have satisfied the
Minister that they have rehabilitated themselves and that
(i) in the case of persons who were convicted of any such
offence when they were twenty-one or more years of age,
at least five years have elapsed since the termination of the
sentence imposed for the offence, or
(ii) in the case of persons who were convicted of any such
offence when they were less than twenty-one years of age,
at least two years have elapsed since the termination of the
sentence imposed for the offence;
Counsel for the applicant submitted that the
deportation order should be set aside on any one of
these grounds:
He submitted that the Adjudicator erred in law
in deciding that the offence of which the applicant
had been convicted in the United States was an
offence which, had the applicant committed it in
Canada, would constitute 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".
His second submission was that the applicant
did not consent to the continuation of the inquiry
before an Adjudicator other than the Adjudicator
before whom it was commenced after the inquiry
had been adjourned because of the applicant's
claim to be a Convention refugee.
A third submission was that there had not been
a full and proper inquiry because of an accumula
tion of errors none of which in itself would have
been fatal.
The inquiry began on June 22, 1979 before I.
Healy, Adjudicator. It was adjourned to June 29,
1979. The applicant was represented at the
adjourned hearing by Mr. Ramkissoon, a legal
assistant with a Toronto law firm. The inquiry was
further adjourned until July 12, 1979, in order to
give the applicant an opportunity to prepare his
case. The inquiry resumed on July 12, 1979. The
applicant was still represented by Mr. Ramkis-
soon. The applicant was examined. Mr. Ramkis-
soon, on behalf of the applicant, claimed that the
applicant was a Convention refugee. Pursuant to
subsection 45 (1) of the Act, the inquiry continued.
The Adjudicator determined that the allegations
against the applicant had been proven. This
amounted to a determination that, but for the
applicant's claim that he was a Convention
refugee, a removal order or a departure notice
would have been made or issued with respect to
him. The inquiry was adjourned pending determi
nation of the applicant's claim that he was a
refugee.
It appears that the Minister decided that the
applicant was not a Convention refugee, and that
an application for redetermination of refugee
status was rejected by the Immigration Appeal
Board. The inquiry was resumed on March 7, 1980
before Paul J. Delaney, an Adjudicator, by virtue
of a request directed to Mr. Delaney by a senior
immigration officer acting pursuant to subsection
46(1) of the Act. After several adjournments, the
Adjudicator at a hearing on March 25, 1980
decided that the deportation order in question
should be made rather than that a departure notice
should be issued.
I now turn to the first submission of error. This
was that the Adjudicator, I. Healy, erred in law in
finding, as she did, that the applicant was a person
described in paragraph 27(2)(a) of the Immigra
tion Act, 1976 in that, if he were applying for
entry into Canada, he would not have been grant
ed entry by reason of his being a member of the
inadmissible class of persons described in para
graph 19(2)(a) of the Act. In particular it was
submitted that she erred in finding that the
offence of which he was convicted in the United
States, "using the U.S. Postal Service in executing
a scheme to defraud", was an offence which, if
committed in Canada would constitute an offence
under section 339 of the Criminal Code, R.S.C.
1970, c. C-34, the offence of "Using [the] mails to
defraud". This error, if it was error, would, of
course, taint the deportation order made by Mr.
Delaney.
In support of the allegation that the applicant
had been convicted in the United States of an
offence which, had it been committed in Canada,
would constitute an offence that may be punished
by way of indictment, evidence both documentary
and oral was led.
There was placed in evidence a document, dated
November 20, 1978, entitled "Judgment and Pro
bation Commitment Order" of the United States
District Court for the Western District of Mis-
souri. It was established that the document has
reference to the applicant. It states in part:
Defendant has been convicted as charged of the offenses of (Ct.
V) Using U.S. Postal Service in executing scheme to defraud;
(Ct. XI) Using interstate wire communication in scheme to
defraud. Violation of 18:2, 18:1341 and 18:1343.
The document also noted that there had been a
guilty plea.
The applicant was sentenced to a term of three
years on count V; on count XI the imposition of
sentence was withheld and the applicant was
placed on probation for a period of four years to
commence upon his unconditional release from the
sentence on count V.
The case presenting officer placed no reliance on
the conviction of the applicant for "Using inter
state wire communication in scheme to defraud".
He stated that he could not find an equivalent
offence in the Canadian Criminal Code.
An extract from Title 18 of the United States
Code was also put in evidence. Section 1341,
which is entitled "Frauds and swindles", appears
,under a chapter heading, "Chapter 63. Mail
Fraud". Section 1341 reads:
§ 1341. Frauds and swindles
Whoever, having devised or intending to devise any scheme or
artifice to defraud, or for obtaining money or property by
means of false or fraudulent pretenses, representations, or
promises, or to sell, dispose of, loan, exchange, alter, give away,
distribute, supply, or furnish or procure for unlawful use any
counterfeit or spurious coin, obligation, security, or other
article, or anything represented to be or intimated or held out
to be such counterfeit or spurious article, for the purpose of
executing such scheme or artifice or attempting so to do, places
in any post office or authorized depository for mail matter, any
matter or thing whatever to be sent or delivered by the Postal
Service, or takes or receives therefrom, any such matter or
thing, or knowingly causes to be delivered by mail according to
the direction thereon, or at the place at which it is directed to
be delivered by the person to whom it is addressed, any such
matter or thing, shall be fined not more than $1,000 or
imprisoned not more than five years, or both.
There was also placed in evidence the statutory
declaration of Scott Morris, an immigration offi
cer. The declaration is dated May 14, 1979. In it,
Mr. Morris declares that he interviewed the appli
cant on May 14, 1979. He also declared:
At that time Mr. Brannson stated to me that he was convicted
of Mail Fraud on 13 October 1978 at Kansas City, Missouri,
Western District Court. For this offence he received a sentence
of three years in prison. He also stated that he had served five
months of his sentence when he escaped on 25 April 1979 and
shortly thereafter came to Canada as a visitor on 3 May 1979
at Windsor, Ontario. He also stated the Mail Fraud offence
involved approximately $250,000.00.
The applicant was examined by the case pre
senting officer in respect of the nature of the
offence of which he had been convicted. The appli
cant, in reply to the question, "What did you do in
order to get convicted?" said: "I wrote a book on
... I wrote a handbook titled `Modern Solution to
Age-Old Physical Problems' and I was marketing
and advertising the handbook through the mails."
He also said: "It was sold through the mails,
through advertising." He was asked how much the
book sold for and he replied: "Anywhere from
$5.00 to $9.95."
The applicant was questioned further about the
advertising. He testified:
Q. Where did you advertise the book?
A. I advertised it in various cities within the United States. I
don't know which cities, to be exact.
Q. In newspapers?
A. Yes.
Q. In magazines?
A. Only newspapers.
The case presenting officer presented Mr. Mor-
ris's statutory declaration to the applicant and
asked: "What in the statutory declaration don't
you agree with?" His answer was: "Well, I did not
escape on April 25th, 1979, and I don't agree
with the `offence involved approximately
$250,000.00.' " He was then asked whether he did
mention any amount of money to Mr. Morris, and
he replied: "I must have mentioned some figure
but I don't remember. I don't ... I can present
documentation which will document what the
amount was, but I'm quite sure it's not
$250,000.00."
The question then is whether the Adjudicator
erred in law in holding that the offence of which
the applicant was convicted in the United States
would have been an offence against section 339 of
the Criminal Code had the applicant committed it
in Canada.
The offence of which the applicant was convict
ed in the United States can be defined with some
precision. From the certificate of conviction and a
reading of section 1341 of Title 18 of the United
States Code, it is reasonably clear that the offence
was the offence described in these words:
Whoever, having devised or intending to devise any scheme ...
to defraud ... for the purpose of executing such scheme ... or
attempting so to do, places in any post office or authorized
depository for mail matter, any matter or thing whatever, to be
sent or delivered by the Postal Service, ... shall be fined not
more than $1,000 or imprisoned not more than five years, or
both. [Emphasis added.]
Section 339 of the Criminal Code reads:
339. Every one who makes use of the mails for the purpose of
transmitting or delivering letters or circulars concerning
schemes devised or intended to deceive or defraud the public, or
for the purpose of obtaining money under false pretences, is
guilty of an indictable offence and is liable to imprisonment for
two years. [Emphasis added.]
Section 339 was construed by the Manitoba
Court of Appeal in Regina v. Lavitch and Appel 4 .
At that time section 339 was numbered section
324. Mr. Justice Freedman (as he then was),
speaking for the Court, said at page 414:
4 (1969) 69 W.W.R. 412.
In my view, sec. 324 does deal with two offences ....
I agree with Wilson, J. that the explanatory heading "Using
mails to defraud," while it forms no part of the enactment, is
still a common-sense description in terse language of what sec.
324 aims to control. One form of mischief is using the mails for
the purpose of transmitting or delivering letters or circulars
concerning schemes devised or intended to deceive or defraud
the public. Another is using the mails for the purpose of
obtaining money under false pretences. Conceivably the latter
offence could involve either the public at large or only a single
person as the victim. Nor need it be committed by circulars.
But the use of the mails is an essential ingredient of the
second offence, just as it is of the first ....
It seems clear that the offence of which the
applicant was convicted would not be the second of
the two offences under section 339, the offence of
making use of the mails for the purpose of obtain
ing money under false pretences. It is an offence
under section 1341 of the relevant Title of the U.S.
Code to send by the Postal Service any matter or
thing for the purpose of executing a scheme to
obtain money by false pretences. But this was not
the offence of which the applicant was convicted.
Was the United States offence one which, if
committed in Canada, would constitute the first of
the two offences under section 339, the offence of
making "use of the mails for the purpose of trans
mitting or delivering letters or circulars concerning
schemes devised or intended to deceive or defraud
the public"?
Although Mrs. Healy, the Adjudicator, permit
ted the case presenting officer to question the
applicant in the way I have indicated above, it is
clear that, throughout, she was of opinion that it
was not open to the applicant to contest his convic
tion on the merits. During the argument of counsel
for the applicant, we made it clear from the Bench
that Mrs. Healy was right on this point.
In this case, we have in evidence the judgment
and probation commitment order and the defini
tion of the relevant United States offence, and we
know the definition of the Canadian offence. I
would observe generally that in such a situation, in
determining whether the offence committed
abroad would be an offence in Canada under a
particular Canadian statutory provision, it would
be appropriate to proceed with this in mind: What
ever the names given the offences or the words
used in defining them, one must determine the
essential elements of each and be satisfied that
these essential elements correspond. One must, of
course, expect differences in the wording of statu
tory offences in different countries. I cannot, how
ever, even with this in mind, escape the conclusion
that the sending or transmission of "letters or
circulars" is an essential element of the Canadian
offence. One could not be convicted of the offence
if the material transmitted or delivered were nei
ther letters nor circulars.
This being so, I am of the view that, on a
reading of the definition of the offence of which
the applicant was convicted, it could not be said
that the offence would be an offence under section
339 of the Criminal Code. To be an offence here,
there would have to be use of the mails for the
purpose of transmitting or delivering letters or
circulars.
I have, therefore, concluded that Mrs. Healy
erred in deciding on the material before her that
the offence of which the applicant was convicted
would constitute an offence against section 339 of
the Criminal Code. Her error was one of law in
that, as I see it, she could only have decided as she
did by misconstruing section 339 of the Criminal
Code or paragraph 19(2)(a) of the Immigration
Act, 1976, or both in the light of the evidence
before her concerning the United States offence.
This error, of course, tainted the decision of Mr.
Delaney.
I would, therefore, set aside the decision to
make the deportation order and the deportation
order itself.
I should, perhaps, indicate that where, as here,
the definition of the foreign offence is broader
than, but could contain, the definition of an
offence under a Canadian statute, it may well be
open to lead evidence of the particulars of the
offence of which the person under inquiry was
convicted. If, for example, the relevant count—the
count on which a conviction was obtained—in a
foreign indictment contained particulars of the
offence, such particulars might well, in my view,
be pertinent in establishing that the actual convic
tion was a conviction of an offence which, had it
been committed in Canada, would have been an
offence here. Such particulars might so narrow the
scope of the conviction as to bring it within the
terms of a Canadian offence.
Mr. Brannson was, it is true, questioned on what
he had done, but what he was convicted of depends
on what he was charged with, not on evidence that
might have been led had there been a trial. From
what he said in his evidence, and having in mind
the evidence as to the elements of the offence, it
could not, in my view, be inferred that the offence
to which he pleaded guilty contained, as an ele
ment, transmitting or delivering letters or circulars
by mail. And, as I read the record, Mrs. Healy did
not purport to draw any such inference. As I read
her determination, particularly when I read it in
the light of what she had previously indicated
concerning the irrelevancy of Mr. Brannson's evi
dence on what he had actually done, she found,
quite simply, that the offence of which he was
convicted in the United States, as revealed by the
terms of the judgment and probation commitment
order, would have been an offence under section
339 of the Criminal Code had it been committed
in Canada. I would quote these words from her
determination:
The allegations which were made against you have been
proven. You were convicted of using the U. S. Postal Service in
executing a scheme to defraud and using interstate wire com
munication in scheme to defraud, the equivalent offence of the
first charge in Canada being "Using mails to defraud", that is
section 339 of the Criminal Code of Canada ....
It may be as well to note also that in this case
the evidence before the Adjudicator in respect of
the offence of which the applicant was convicted
was such that it would not have been proper to rely
on presumptions, assuming that in this sort of case
presumptions about foreign statutory law could in
some circumstances be used 5 .
Having decided that the deportation order
should be set aside, I would refer the matter back
to Mr. Delaney or to another Adjudicator to be
designated by the appropriate senior immigration
5 See Button v. Minister of Manpower and Immigration
[1975] F.C. 277, particularly at page 284.
officer. The reference back should be on terms
that the inquiry is to be recommenced at the point
at which it was continued before Mr. Delaney on
March 7, 1980. The inquiry to be resumed is, of
course, the inquiry which was caused to be held
concerning the applicant pursuant to subsection
27(4) of the Immigration Act, 1976.
At the resumed inquiry, the Adjudicator should
proceed on the basis that Mrs. Healy had erred in
law in deciding that the offence of which the
applicant had been convicted would, had it been
committed in Canada, constitute an offence
against section 339 of the Criminal Code. Such a
determination is not final. It may be changed after
an inquiry has been recommenced under subsec
tion 46(1) of the Immigration Act, 1976. I would
refer to this passage from the reasons for judgment
of Mr. Justice Pratte in Pincheira v. Attorney
General of Canada dated February 8, 1980
[[1980] 2 F.C. 265 at page 267]:
The conclusion arrived at by an adjudicator at the close of the
first stage of an inquiry adjourned in accordance with section
45(1) is not fixed and unchanging: the adjudicator is entitled to
revise it at any time during the inquiry and he even has a duty
to do so if he finds that it is incorrect ....
Having in mind the applicant's second submis
sion of error, I would also make it clear that the
resumed inquiry may proceed before Mr. Delaney
or another designated Adjudicator whether or not
the applicant consents. In his submission that a
person under inquiry must consent where an inqui
ry is continued under subsection 46(1) of the Act,
counsel for the applicant relied on subsection
35(3) of the Immigration Regulations, 1978,
SOR/78-172. I quote section 35:
35. (1) The adjudicator presiding at an inquiry may adjourn
the inquiry at any time for the purpose of ensuring a full and
proper inquiry.
(2) Where an inquiry is adjourned pursuant to these Regula
tions or subsection 29(5) of the Act, it shall be resumed at such
time and place as is directed by the adjudicator presiding at the
inquiry.
(3) Where an inquiry has been adjourned pursuant to the
Act or these Regulations, it may be resumed by an adjudicator
other than the adjudicator who presided at the adjourned
inquiry with the consent of the person concerned or where no
substantive evidence has been adduced.
(4) Where substantive evidence has been adduced at an
adjourned inquiry and the person concerned refuses to consent
to the resumption of the inquiry by an adjudicator other than
the adjudicator who presided at the adjourned inquiry, the
inquiry shall be recommenced.
This section of the Regulations must be read
against the terms of subsection 46(1) of the Act
itself. The subsection provides:
46. (1) Where a senior immigration officer is informed
pursuant to subsection 45(5) that a person is not a Convention
refugee, he shall, as soon as reasonably practicable, cause the
inquiry concerning that person to be resumed by the adjudica
tor who was presiding at the inquiry or by any other adjudica
tor, but no inquiry shall be resumed in any case where the
person makes an application to the Board pursuant to subsec
tion 70(1) for a redetermination of his claim that he is a
Convention refugee until such time as the Board informs the
Minister of its decision with respect thereto.
The language of subsection 46(1) is imperative.
The inquiry must in the circumstance specified be
resumed. I cannot read subsection 35(3) of the
Regulations as being intended to vest in the person
under inquiry a power to prevent the statutory
mandate from being performed by refusing con
sent; I construe it as not being applicable to such a
case. The subsection of the Regulations has ample
scope within which to operate apart from an inqui
ry resumed under subsection 46(1) of the Act.
There is one other matter. The third submission
of error made by counsel for the applicant was
that, as a result of accumulation of errors, there
had not been a full inquiry. There is in my view in
the circumstances of this case no substance to this
submission. I would, however, refer to one of the
matters relied on because it was a circumstance
arising after the adjournment occasioned by the
claim to refugee status, but before the inquiry was
resumed before Mr. Delaney.
At the time of the adjournment, the applicant
was released on bail. He had in fact been on bail
before the adjournment. He was later taken back
into custody pursuant to subsection 104(8) of the
Act. There is evidence that during the lengthy
period of adjournment the applicant was convicted
of two offences under the Criminal Code, one of
having defrauded Bell Canada of $15,000 more or
less, the other of having entered a dwelling-house
with intent to commit an indictable offence there
in. The detention appears somehow to have been
connected with the criminal charges, with a claim
that he had moved, presumably without giving
notice, and because a co-signer of the bail bond
wished to withdraw. The complaint was that the
applicant had not been given notice of, nor was he
represented at the detention proceedings. The
record is very skimpy on the matter. The applicant
did say that he never knew there was a hearing.
There is not enough in the record, however, on
which to base a finding of impropriety. And at any
rate, the detention did not adversely affect the
inquiry itself. On the resumption of the inquiry,
the Adjudicator need not be concerned about this
matter, should it be raised.
* * *
KELLY D.J.: I concur.
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.