A-100-89
William Claude Lyle (Appellant)
v.
Minister of Employment and Immigration (Re-
spondent)
Court of Appeal, Heald, Urie JJ. and Verchere
D.J.—Vancouver, February 9 and 15, 1982.
Immigration — Appeal from decision of Immigration
Appeal Board dismissing appeal from deportation order —
Order made before repeal of 1952 Immigration Act but appeal
to Board heard after repeal — Initial decision of Board to
quash order overruled by Court and matter referred back to
Board — Court held that 1952 Act rather than 1976 Act
should apply — Submission by appellant that order, deemed
penalty, reduced to nothing under new Act as latter eliminated
such penalty in cases similar to appellant's — Board held (1)
that penalty neither imposed nor adjudged after repeal; (2)
that removal of appellant's offences as deportable offences
neither reduction nor mitigation of penalty; (3) that it was
bound by order of Federal Court of Appeal to apply 1952 Act
— Board's decision amounts to adjudication after repeal —
Phrase "imposed or adjudged" clearly disjunctive — Abolition
of penalty under Immigration Act, 1976 covered by words
"reduced" or "mitigated", as abolition amounts to complete
reduction — Board's third basis for dismissing appeal fails, as
ss. 36(e) of Interpretation Act and 126(a) of 1976 Act not
argued before another panel of Court — Appeal allowed —
Immigration Act, R.S.C. 1952 (Supp.), c. 325, s. 18(1)(d)
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 27(1)(d),
32(5),(6), 125(3), 126(a) — Interpretation Act, R.S.C. 1970, c.
I-23, s. 36(e) — Narcotic Control Act, R.S.C. 1970, c. N-1,
s. 3.
Appeal from a decision of the Immigration Appeal Board
dismissing appellant's appeal from a deportation order made on
the ground that he was a person described in paragraph
18(1)(r1) of the Immigration Act of 1952, having been convict
ed of offences contrary to section 3 of the Narcotic Control
Act. The decision of the Board to quash that order was
overruled by a panel of this Court and the matter was referred
back to the Board for determination according to the law as it
existed when the order was made (i.e. January 4, 1978) and not
as it was when the appeal was heard (i.e. after the repeal of the
1952 Act by the 1976 Act on April 10, 1978). Appellant,
relying on paragraphs 36(e) of the Interpretation Act and
126(a) of the Immigration Act, 1976, argued that when a
deportation order is "reduced or mitigated" by the 1976 Act,
that order, if "imposed or adjudged" after the repeal of the
1952 Act, is required to be reduced or mitigated accordingly.
Since paragraph 27(1)(d) of the Act of 1976 eliminates the
deportation order in a case such as appellant's, then the order is
reduced to nothing and must be quashed. The Board held: (1)
that paragraph 126(a) was not applicable as the penalty, i.e.
the deportation order, was not "imposed or adjudged" after the
repeal of the 1952 Act; (2) that paragraph 36(e) was not
applicable as the removal of a deportation order for the
offences committed by the appellant is neither a "reduction"
nor a "mitigation"; and (3) that it was bound to determine the
case pursuant to the provisions of the 1952 Act as ordered by
the Court of Appeal. That is the decision under appeal.
Held, the appeal is allowed. The Board's decision was an
adjudication after the repeal of the 1952 Act. When the Board
deals with appeals from deportation orders, it is clearly adjudg
ing, i.e. settling or deciding the matter. The Board's reasoning
implies an interpretation which would substitute "and" for "or"
in the expression "imposed or adjudged" in paragraph 36(e).
Since the expression is clearly disjunctive, it must be presumed
that Parliament did not intend "imposition" and "adjudication"
to be synonymous. Secondly, the abolition of a penalty under
the 1976 Act, as is the case here, since it represents complete or
total reduction or mitigation, is covered by the words "reduced"
or "mitigated" as used in paragraph 36(e). Paragraphs 126(a)
and 36(e) contemplate a situation where the reduction or
mitigation of the penalty is provided for in the new statute
itself, and not a situation where, to a very limited extent,
discretion is given to the adjudicator to reduce the penalty, such
as in subsection 32(6) of the Act of 1976 where the adjudica
tor, in certain situations, has the discretion to replace a depor
tation order by a departure notice. Finally, the third ground
advanced by the Board for dismissal of the appeal fails. The
appeal before the first panel of this Court was argued solely on
the correctness or otherwise of the Board's interpretation of
subsection 125(3) of the 1976 Act, and the Court's decision
was based solely on that subsection. In the case at bar, para
graphs 36(e) and 126(a) were argued, and this Court has been
persuaded that those provisions apply to the appellant.
APPEAL.
COUNSEL:
James Aldridge for appellant.
Alan Louie for respondent.
SOLICITORS:
Rosenbloom, McCrea & Leggatt, Vancouver,
for appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is an appeal, pursuant to leave
granted by this Court, from a decision of the
Immigration Appeal Board made on November
30, 1979, dismissing the appellant's appeal from a
deportation order made against him dated January
4, 1978.
The appellant is a citizen of the U.S.A. and a
permanent resident of Canada, having become a
landed immigrant on August 29, 1974. The appel
lant was convicted on two occasions for possession
of cocaine, contrary to section 3 of the Narcotic
Control Act, R.S.C. 1970, c. N-1. Both convictions
were summary convictions. After a special inquiry
held under the provisions of the Immigration Act,
R.S.C. 1952 (Supp.), c. 325, the appellant was the
subject of a deportation order dated January 4,
1978, on the basis that he was a person described
in paragraph 18(1)(d) of the Immigration Act,
1952 in that he had been convicted of an offence
under section 3 of the Narcotic Control Act. The
appellant launched an appeal against that deporta
tion order to the Immigration Appeal Board.
The Immigration Act, 1952, was repealed and
replaced by the Immigration Act, 1976, S.C.
1976-77, c. 52, on April 10, 1978. It is common
ground between the parties that while the appel
lant was subject to deportation under paragraph
18(1)(d) of the 1952 Act, he would not be subject
to deportation under the 1976 Act, the relevant
paragraph of that Act being paragraph 27(1)(d).
The Immigration Appeal Board quashed the
deportation order (Board Decision No. 1) on the
basis that subsection 125(3) of the Immigration
Act, 1976' required it to consider the deportation
order in the light of the substantive provisions of
the new Act. Board Decision No. 1 was appealed
to this Court. A panel of this Court set aside that
decision and referred the matter back to the Board
"for decision on the basis that the legality of the
deportation order made against the Respondent
must be determined in the light of section 18(1)(d)
of the Immigration Act, 1952".
' Said subsection 125(3) reads as follows:
125. ...
(3) Every proceeding taken before the Immigration
Appeal Board before the coming into force of this Act shall
be taken up and continued under and in conformity with this
Act.
That panel of the Court decided that the merits
of the appeal must be decided by applying the law
as it existed at the time of the making of the
deportation order and not as it was at the time the
appeal was heard. It was the Court's further view
that subsection 125(3) (supra) did not authorize
the Board to determine the legality of the deporta
tion order pursuant to the substantive provisions of
the Immigration Act, 1976.
Pursuant to the order of this Court supra, the
Board re-heard the matter. At the re-hearing
counsel for the appellant relied on paragraph 36(e)
of the Interpretation Act, R.S.C. 1970, c. I-23,
which provides:
36. Where an enactment (in this section called the "former
enactment") is repealed and another enactment (in this section
called the "new enactment") is substituted therefor,
(e) when any penalty, forfeiture or punishment is reduced or
mitigated by the new enactment, the penalty, forfeiture or
punishment if imposed or adjudged after the repeal shall be
reduced or mitigated accordingly;
Counsel for the appellant also relied on para
graph 126(a) of the Immigration Act, 1976 which
reads as follows:
126. For greater certainty,
(a) a deportation order made under the Immigration Act, as
it read before it was repealed by subsection 128(1) of this
Act, shall be deemed to be a penalty, forfeiture or punish
ment within the meaning of paragraph 36(e) of the Interpre
tation Act;
It was his submission that by reading these two
sections together the result is that when a deporta
tion order is "reduced or mitigated" by the 1976
Act, that order, if "imposed or adjudged" after the
repeal of the 1952 Act, is required to be reduced or
mitigated accordingly and since on the facts of this
case, the new Act eliminated the deportation order
altogether, it has been reduced to nothing and
must accordingly be quashed.
The Board dismissed the appellant's appeal and
affirmed the deportation order, directing that it be
executed as soon as practicable (Board Decision
No. 2). It is that decision which forms the subject
matter of this appeal.
As I read the Board's reasons, the appeal was
dismissed on a threefold basis: firstly, that para-
graph 126(a) supra could not apply to the facts of
this case because subject "penalty", i.e. the depor
tation order, was not "imposed or adjudged" after
the repeal of the 1952 Act. In this connection the
Board's reasons state (A.B., Vol. III, p. 362):
To return to Mr. Aldridge's arguments that although the
order of deportation was "imposed" on Mr. Lyle before repeal,
this Board was required to "adjudge" it after repeal, in my view
the Board as an appellate tribunal is not "adjudging" an order
of deportation which is before it on appeal. It is not, and never
has been, the deporting authority; all it does on appeal is
determine whether or not a deportation order already made is
in accordance with the law: the imposition of the "penalty" has
already been made.
In my view the Board erred in finding that in
the appeal to it of the deportation order, it was not
"adjudging" the matter. The function which the
Board performs in dealing with appeals from
deportation orders is clearly an adjudication of the
matter. Black's Law Dictionary, Fifth Edition,
defines "Adjudge" as, inter alia, "To pass on
judicially, to decide, settle ...". Similar definitions
are to be found in The Concise Oxford Dictionary
and numerous other recognized works. As I read
the Board's reasons, they appear to hold that the
only "adjudication" contemplated by paragraph
36(e) is the original adjudication when the penalty
was imposed. Put another way, the Board's reason
ing necessarily implies an interpretation of para
graph 36(e) which would substitute and for or in
the expression "imposed or adjudged". Had Par
liament intended to express the manner conjunc-
tively rather than disjunctively, we can assume
that it would have done so. Since the expression
used is clearly disjunctive, it must be presumed
that Parliament did not intend imposition and
adjudication to be synonymous. In the circum
stances of the case, I am satisfied that Board
Decision No. 2 was an adjudication after repeal of
the 1952 Immigration Act.
The second basis upon which the appeal was
dismissed appears from the Board's reasons to be
that, in its view, where, as here, the 1976 Act
removes as a deportable offence the offences com
mitted by this appellant, this cannot be said to be a
"reduction" or "mitigation" of penalty within the
meaning of paragraph 36(e) of the Interpretation
Act (supra) and accordingly said paragraph 36(e)
does not apply to the case at bar. The Board
expressed its opinion on this matter as follows
(A.B., Vol. III, pp. 36I-362):
The effect of reading section 126(a) of the Immigration Act
and section 36(3) [sic] of the Interpretation Act together is at
first somewhat startling, leading to the conclusion that a depor
tation order made under the Immigration Act 1952 before
repeal is deemed to be a penalty which if reduced or mitigated
by the Immigration Act 1976, i.e. after repeal of the 1952 Act,
shall if imposed after repeal be reduced or mitigated according
ly. This seems to be a contradiction in terms, but this contradic
tion can be resolved, I think, if one recognizes that section
126(a) of the Immigration Act is directed not to the grounds of
a deportation order but to its consequences. Under the 1952
Act there was only one means of enforcing the departure from
Canada of a person found inadmissible or, being in Canada, a
person falling within one or more of the subsection [sic] of
section 18(1), that is, an order of deportation.
Under the 1976 Act there are three means of enforcing
departure, a departure notice, an exclusion order or a deporta
tion order. A departure notice or an exclusion order is a lesser
"penalty" than a deportation order and a person ordered
deported under the 1952 Act could, if the order has not been
executed, appeal to the Board and invoke section 126(a) of the
1976 Act in order to have his deportation order "reduced" or
"mitigated" to a departure notice or exclusion order, if he falls
within a category in respect of which such notice or order may
be made.
Under the Immigration Act 1976 the issuance of a departure
notice or an exclusion order is discretionary by the adjudicator,
within certain categories of persons. A person seeking mitiga
tion of a deportation order made under the Immigration Act
1952 would have to apply to an adjudicator for the reopening of
the inquiry held in respect of him, pursuant to section 35 of the
Immigration Act 1976 (an adjudicator can reopen an inquiry
held by a Special Inquiry Officer under the 1952 Act) or, if he
has a right of appeal to the Board and has exercised it, request
the Board to exercise its jurisdiction under section 76(1)(a) of
the Immigration Act 1976 to "make any other removal order
that the adjudicator who was presiding at the inquiry should
have made". It may be noted that the Board has no specific
power to issue a departure notice, but by extension of Pratap v.
Minister of Employment and Immigration and applying the
principle established in Gana v. Minister of Manpower and
Immigration the Board could probably, in an appropriate case,
issue an exclusion order rather than a deportation order, in
respect of a deportation order made pursuant to the 1952 Act.
This option, however, was not open to Lyle, since as a landed
immigrant he would have been subject to a deportation order,
and only a deportation order, by reason of section 32(2) of the
Immigration Act 1976.
With respect, I am unable to agree with the
Board's views as set out above. Those reasons
imply that the words "reduced or mitigated" in
paragraph 36(e) apply only to situations where
under the 1976 Act an adjudicator has a discretion
to issue a departure notice or an exclusion order
instead of a deportation order. (Subsections 32(5)
and 32(6) of the 1976 Act.) The fallacy in this
reasoning, in my view, is that paragraph 36(e) of
the Interpretation Act refers to "reduction" or
"mitigation" of the penalty in the "new enact
ment". For our purposes, the new enactment is the
Immigration Act, 1976. This statute does not
reduce the penalty from deportation order to
departure notice. Subsection 32(6) of the Immi
gration Act, 1976 provides that a discretion in
certain situations may be exercised by the
adjudicator provided certain specified conditions
have been met, to replace a deportation order with
a departure notice but, in my view, this is not the
kind of provision envisaged by paragraph 126(a)
of the Immigration Act, 1976 and paragraph 36(e)
of the Interpretation Act. I think those provisions
contemplate a situation where the penalty is
reduced or mitigated in the new statute itself, and
not a statute such as this where, to a very limited
extent, discretion is given to reduce the penalty. I
agree with counsel for the appellant that to inter
pret the words "reduced or mitigated" in the
manner suggested by the Board would lead to an
anomalous situation. The result would be that a
visitor to Canada, a person with considerably less
attachment to Canada than a permanent resident
such as this appellant, could conceivably have
available to him the less onerous alternative of a
departure notice, whereas the permanent resident
with a much stronger tie to Canada would be
deported (because the adjudicator is not author
ized in this case to issue a departure notice) for an
offence under the 1952 Act which Parliament had
removed as a deportable offence under the 1976
Act when committed by a permanent resident.
Thus the anomaly is that the visitor would receive
more favourable treatment than the permanent
resident. I cannot believe that the paragraph
should be interpreted to produce such a result,
particularly in light of the scheme of the Immigra-
tion Act, 1976 which clearly confers on permanent
residents in Canada substantially greater rights to
remain here than one given to visitors, for exam
ple: removal from Canada of visitors is envisaged
in a wider scope of activity than for permanent
residents; permanent residents have the right to
sponsor applicants for permanent residence; and
permanent residents have a right of appeal to the
Immigration Appeal Board from the decision of an
adjudicator whereas visitors do not. For these rea
sons I have concluded that the abolition of a
penalty under the new Act, as was the case here,
since it represents complete or total reduction or
mitigation is covered by the words "reduced" or
"mitigated" as used in paragraph 36(e) supra and
that the Board erred in not so finding.
The third basis for dismissing the appeal is
expressed by the Board as follows (A.B., Vol. III,
p. 363):
Again, as pointed out in Court, the judgment and order of
the Federal Court of Appeal is categorical, and this tribunal is
bound by it. This Board has been ordered by the learned
Federal Court of Appeal to determine this case in the "light of
section 18(1)(d) of the Immigration Act 1952" and we have no
alternative but to do so.
I agree with this statement by the Board and
except for the unusual circumstances present in
this case, that reason, quite apart from the other
reasons advanced by the Board, would be a suffi
cient and proper basis for dismissing the appeal.
However, I turn now to the unusual circumstances
present in this case. When Board Decision No. 1
was before another panel of this Court on appeal,
the appeal was argued solely on the basis of the
correctness or otherwise of the Board's interpreta
tion of subsection 125(3) of the Immigration Act,
1976 supra. A perusal of the Board reasons in
Board Decision No. 1 (A.B., Vol. I, p. 141) con
firms that the Board in applying subsection
125(3), applied it retrospectively, substantively as
well as procedurally and it is clear from the rea
sons of this Court on the appeal from Board
Decision No. 1 (A.B., Vol. II, p. 208) that the
Court disagreed with the Board's interpretation of
subsection 125(3), and that this view formed the
sole basis for the Court's decision. Counsel for
both parties before us agreed that the application
of paragraphs 36(e) of the Interpretation Act and
126(a) of the Immigration Act, 1976 were not
argued either before the Board at hearing No. 1 or
before the panel of this Court hearing the appeal
from Board Decision No. 1. Since I was a member
of the panel of the Court hearing that appeal, I
have no hesitation in saying that had the provisions
of paragraphs 36(e) and 126(a) supra been drawn
to the attention of the Court, I would have con
cluded that those provisions applied to the factual
situation in this case so as to require that subject
deportation order be quashed. I say this because I
have been persuaded at this hearing that those
provisions do apply to this appellant for the rea
sons set forth supra.
Accordingly, I would allow the appeal and
quash the deportation order made against the
appellant.
URIE J.: I concur.
VERCHERE 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.