A-17-90
The Minister of Employment and Immigration
(Appellant)
v.
David Ross Burgon (Respondent)
INDEXED AS: CANADA (MINISTER OF EMPLOYMENT AND
IMMIGRATION) V. BURGON (C.A.)
Court of Appeal, Mahoney, MacGuigan and
Linden JJ.A.—Toronto, January 30; Ottawa, Feb-
ruary 22, 1991.
Immigration — Inadmissible classes — Act, s. 19(1)(a)(ii)
denying admission to persons who might reasonably be expect
ed, for medical reasons, to cause excessive demands on health
or social services — Landing applicant former heroin addict
— Examining physician pronouncing applicant fit and healthy
— Medical officer rejecting on medical grounds for former
addiction — Not shown that drug addiction ongoing disease —
Refusal on medical grounds must be based on medical evi
dence — Act, s. 19(1)(c) denying admission to certain convicted
persons — Landing applicant having pleaded guilty, in Eng-
land, to conspiracy to supply controlled drugs — Put on
probation — Under British legislation, where probation order
made accused deemed not convicted — Whether word "con-
victed" in Immigration Act including expunged conviction —
No reason for Canadian immigration law to thwart goal of
British legislation.
Construction of statutes — Immigration — Inadmissible
classes — Immigration Act, s. 19(1)(c) denying admission to
persons convicted of offence punishable in Canada by ten
years' imprisonment — Landing applicant having pleaded
guilty in Britain to conspiracy to supply controlled substance
(heroin) — Subsequently pardoned under British legislation
providing accused deemed not convicted where probation order
made — Meaning of "convicted" in Act consistent with mean
ing in criminal legislation — Canadian legislation providing
for clemency — British legislation having same objective
Laws of foreign jurisdiction having legal system with founda
tion, values similar to those of Canada to be accorded respect
unless solid rationale for departure.
The respondent, a Canadian citizen, married his wife, Susan
Mary Pearn Burgon, in England. Ms. Burgon is a British
citizen. They wed, on June 26, 1986, a week after Ms. Burgon
was sentenced to two years' probation upon a plea of guilty to
conspiracy to supply controlled drugs. Under subsection 13(1)
of the Powers of Criminal Courts Act, 1973 (U.K.), a person
placed under sentence of probation is deemed not to be
convicted.
During much of Ms. Burgon's childhood, her father, a bank
robber, had been in prison. She gave up her course of studies in
nursing when she became pregnant at 20. Her first marriage
ended in divorce in 1983. Under the influence of her ex-hus
band, she became addicted to heroin. Upon his incarceration,
she dealt in the drug, in exchange for her own supply, for the
account of a criminal named Szuluk. The Szuluk ring, includ
ing Ms. Burgon, was arrested. In spite of Szuluk's warnings to
remain silent, she volunteered evidence upon which he and
others, including her son and her father, were sentenced to
prison. The Burgons lived in England from June, 1986 until
January, 1987, when they travelled to Canada. In March, 1987,
Ms. Burgon applied for permanent residence in Canada, spon
sored by the respondent. On December 7, 1987, an order was
issued in Britain discharging her from her conviction.
The Minister rejected the application for permanent residen
cy. This rejection was communicated to Ms. Burgon in Febru-
ary, 1988, while she was in England to attend the funeral of her
son, dead of a heroin overdose. The refusal was on the grounds
that she fell within two classes of inadmissible person: persons
convicted of a serious offence, under paragraph 19(1)(c) of the
Immigration Act, and persons who, for medical reasons, might
reasonably be expected to cause excessive demands on health or
social services under paragraph 19(1)(a)(ii). The Appeal Divi
sion of the Immigration and Refugee Board reversed on both
grounds. That decision was appealed by the Minister.
Held, the appeal should be dismissed.
Per Linden J.A.: The meaning of the word "convicted" in
paragraph 19(1)(c) of the Immigration Act is consistent with
its meaning in Canadian criminal legislation. The British legis
lation as to the effect of a probation order upon a "conviction"
has the same objectives as does Canadian criminal law.
The Act contemplates, in paragraph 18(1)(c), that convicted
persons who have been rehabilitated may be admitted. The
Criminal Records Act and the Criminal Code, similarly, permit
a person to be cleansed of a conviction. Parliament is presumed
to have known the state of the criminal law in re-enacting the
Immigration Act; the word "convicted" in the Act should be
interpreted consistently with existing criminal legislation, which
deems a person who has been pardoned not to have been
convicted.
The British clemency legislation is consistent with Canadian
law. While the law of another country cannot be controlling in
the determination whether admission should be granted, the
legislation of countries with legal systems having similar foun
dations and values ought to be accorded respect, especially
where their aims are identical. Here, since there is no "convic-
tion" under British law, there is no conviction under Canadian
law.
The Appeal Division was correct in holding that the condi
tion of drug addiction named by the medical officer was not
shown in fact to be an ongoing disease and that his opinion that
the applicant might reasonably be expected to cause excessive
demands on health or social services for medical reasons was
not based on a medical diagnosis. The fact that someone has
had an addiction does not mean that he would automatically
come within subparagraph 19(1)(a)(ii).
Per Mahoney J.A. (concurring in the result): The opinion
called for by paragraph 19(1 )(a) is a medical opinion, neces
sarily based on medical evidence. The admission by a layperson
that he has had a condition is not such evidence and could not
be used to exclude the applicant after the examining physician
had pronounced her a "fit lady" and predicted normal health
and life span.
The Immigration Act should not be interpreted so as to give
preferential consideration to convicted persons who come from
countries which share Canada's clemency policy over those who
come from countries which do not. The standard for seriousness
of the offence is Canadian law, not the foreign law. Under the
Immigration Act, "convicted" means having been found guilty
or having pleaded guilty. For immigration purposes, a person
with a foreign pardon for an offence committed abroad still has
a conviction, although a person with a Canadian pardon for an
offence committed in Canada is deemed not to.
The Appeal Division erred in holding that because the
respondent could live with his wife in England, as he had
before, there were no extraordinary circumstances justifying
relief on compassionate or humanitarian grounds. Paragraph
3(c) makes the reunion in Canada of Canadians with their close
relatives an express objective of the Act. Compassionate or
humanitarian considerations need not be extraordinary: they
can be as ordinary as the love of husband and wife and their
natural desire to live together.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Criminal Code, R.S.C., 1985, c. C-46, s. 736(3) (as am.
by R.S.C., 1985 (1st Supp.), c. 27, s. 162; (4th Supp.),
c. I, s. 18 (Sch. I, item 24)).
Criminal Code, R.S.C. 1970, c. C-34.
Criminal Law Amendment Act, 1972, S.C. 1972, c. 13.
Criminal Records Act, S.C. 1969-70, c. 40, s. 5.
Federal Court Act, R.S.C., 1985, c. F-7, s. 52(c).
Immigration Act, R.S.C., 1985, c. I-2, ss. 3(c),
19(1)(a)(ii),(c), 77(3)(b) (as am. by R.S.C., 1985 (2nd
Supp.), c. 10, s. 6; (4th Supp.), c. 28, s. 33); 84(1) (as
am. idem (4th Supp.), c. 28, s. 19).
Immigration Act, R.S.C. 1970, c. I-2, s. 5(d).
Immigration Act, 1976, S.C. 1976-77, c. 52, s. 19(1)(c).
Powers of Criminal Courts Act, 1973 (U.K.), 1973, c. 62,
s. 13(1).
CASES JUDICIALLY CONSIDERED
APPLIED:
Seyoum v. Canada (Minister of Employment and Immi
gration), A-419-90, Mahoney J.A., judgment dated
15/11/90, F.C.A., not yet reported.
CONSIDERED:
Minister of Employment and Immigration v. Satiacum
(1989), 99 N.R. 171 (F.C.A.); Minister of Manpower
and Immigration v. Brooks, [1974] S.C.R. 850; (1973),
36 D.L.R. (3d) 522.
REFERRED TO:
R. v. McInnis (1973), I O.R. (2d) 1; 13 C.C.C. (2d) 471;
23 C.R.N.S. 152 (C.A.); Rex v. Vanek, [1944] O.R. 428;
[1944] 4 D.L.R. 59; (1944), 82 C.C.C. 53 (C.A.); Reg. v.
Blaby, [1894] 2 Q.B. 170; The King v. Sheridan (Frank),
[1937] 1 K.B. 223 (C.A.); R. v. Grant (1936), 26 Cr App
Rep 8; Ex parte Johnston, [1953] O.R. 207; (1953), 105
C.C.C. 161; 16 C.R. 93 (C.A.); United States of America
v. Cotroni; United States of America v. El Zein, [1989] I
S.C.R. 1469; (1989), Q.A.C. 182; 96 N.R. 321; 48
C.C.C. (3d) 193.
AUTHORS
Canada. Report of the Canadian Committee on Correc
tions (Ottawa: Queen's Printer, 1969) (Chairman:
Roger Guimet).
Salhany, Roger E. Canadian Criminal Procedure, 5th
ed., Aurora, Ontario: Canada Law Book, 1989.
Wydrzynski, Christopher J. Canadian Immigration Law
and Procedure, Aurora, Ontario: Canada Law Book,
1983.
COUNSEL:
Donald A. Macintosh for appellant.
Kenneth P. Swan for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Kenneth P. Swan, Toronto, for respondent.
The following are the reasons for judgment
rendered in English by
MAHONEY J.A.: I have had the advantage of
reading in draft the reasons for judgment proposed
by my brother Linden. While I am in agreement
with him in the result and in substantial agreement
with him on one of the issues: the medical exclu
sion, I am unable to agree on the other issue he has
dealt with: the exclusion by reason of previous
conviction. Consequently, I find it necessary to
deal with a third issue: the refusal of the Board to
grant relief on humanitarian and compassionate
grounds. Mr. Justice Linden had dealt fully with
the background facts and I shall not repeat them.
THE MEDICAL EXCLUSION
The applicable provision of the Immigration
Act' is paragraph 19(1) (a):
19. (1) No person shall be granted admission who is a
member of any of the following classes:
(a) persons who are suffering from any disease, disorder,
disability or other health impairment as a result of the
nature, severity or probable duration of which, in the opinion
of a medical officer concurred in by at least one other
medical officer,
(i) they are or are likely to be a danger to public health or
to public safety, or
(ii) their admission would cause or might reasonably be
expected to cause excessive demands on health or social
services; [My emphasis.]
The opinion called for by that provision is a
medical opinion. A medical opinion as to whether
a person is suffering at all from one of the pre
scribed conditions must necessarily be based on
some medical evidence. The question is not wheth
er the person may once have suffered from such a
condition. The admission by a lay person that he
or she has previously suffered from some condi
tion, not necessarily of a permanent character, is
not medical evidence upon which the required
medical opinion can be founded. Neither, in the
absence of medical evidence, can the fact of a past
condition support a medical opinion that such a
person might reasonably be expected to cause
excessive demands on health or social services.
1 R.S.C., 1985, c. I-2, as amended.
There was no medical evidence whatever to sup
port the opinion in this case. I share with Mr.
Justice Linden the view that there was no flaw in
the Board's reasoning on this issue.
THE U.K. "CONVICTION"
The pertinent provision of the Act is paragraph
19(1)(c):
19. (1) No person shall be granted admission who 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....
The exception is not in play.
The only question is whether, in the circum
stances, the respondent's wife was convicted; if she
was, all of the other conditions for exclusion under
the provision exist. The Board found that she had
not been convicted as contemplated by paragraph
19(1)(c). In my opinion, it erred.
The provision of the British statute, which is
recited in Mr. Justice Linden's reasons, does not
say that a person for whom a probation or condi
tional discharge order is made has not been con
victed; it says, rather, that for particular purposes,
the conviction shall be deemed not to have been a
conviction. It is trite to say that none of those
purposes can be accepted by a Canadian court as
being for purposes of the law of Canada.
With respect, I am not persuaded that Parlia
ment intended to import the policy of any foreign
criminal law, however compatible to our own, into
our immigration law. Aliens have no right to enter
or remain in Canada except such right as com
petent Canadian legislation has expressly given
them. I have been shown no reason why Canada
should afford a prospective immigrant who has
committed an offence the benefit of a policy which
reflects our current social attitudes for no reason
other than that the country in which the offence
was committed shares our enlightenment. Why, if
in Canada conviction of the offence would likely
result in a discharge or probation rather than a
fine or imprisonment, notwithstanding a liability
to ten or more years' incarceration, ought not
prospective immigrants similarly benefit even
though their countries of conviction do not accord
their convicts similar probationary and conditional
options? I am simply not persuaded of a Parlia
mentary intention to treat similarly situated appli
cants for admission differently for no reason other
than a difference in the criminal law policy of their
respective countries of origin.
On the other side of the coin, as we well know,
some countries severely, even savagely, punish
offences which we regard as relatively minor. Yet
Parliament has made clear that it is the Canadian,
not the foreign, standard of the seriousness of
crimes, as measured in terms of potential length of
sentence, that governs admissibility to Canada.
The policy basis for exclusion under paragraph
19(1)(c) must surely be the perceived gravity,
from a Canadian point of view, of the offence the
person has been found to have committed and not
the actual consequence of that finding as deter
mined under foreign domestic law. If that is the
policy basis, there seems to me no reason why the
Canadian standard ought not to apply uniformly
to all persons seeking admission regardless of
where an offence was committed.
I am also unable to agree that the 1976 amend
ment [S.C. 1976-77, c. 52, s. 19(1)(c)] which
replaced the term "persons who have been convict
ed of or admit having committed any crime involv-
ing moral turpitude" [Immigration Act, R.S.C.
1970, c. I-2, s. 5(d)] with the words of the present
paragraph 19(1)(c), has the effect of eliminating a
plea of guilty as the basis for a conviction within
the meaning of the paragraph. I think the amend
ment to have been concerned with the legal
imprecision of the term "moral turpitude" and an
intention that guilt ought to be established by due
process, not self-indictment.
Nor, with respect, do I see the exclusion from
Canada of a person deemed by foreign law not to
have been convicted of an offence as thwarting the
goals of that foreign law. In the first place, absent
a treaty or international convention, foreign legis
latures simply have no right to expect our laws to
accommodate the purposes of theirs. In any event,
while it is doubtless a purpose of the British legis
lation to relieve offenders of domestic civil disabili
ties, it ought not, if it is, to be intended to facilitate
emigration to Canada.
In my respectful opinion, "convicted", as used in
paragraph 19(1)(c) of the Immigration Act, was
intended by Parliament to mean "found guilty",
after a plea of guilty or otherwise. 2 It follows that,
in my opinion, the Board erred in finding that the
respondent's wife had not been properly denied
admission as an immigrant by reason of paragraph
19(1)(c).
2 This is not, of course, to suggest that the appropriate
provisions of the Criminal Code [R.S.C., 1985, c. C-46] cannot
be invoked to deem that there had been no conviction when
s. 19(1)(c) provides the basis for deporting a person (1) legally
in Canada and (2) convicted of an offence committed in
Canada. That would be incorporation of Canadian, not foreign,
criminal law policy into our immigration law.
COMPASSIONATE AND HUMANITARIAN
DISCRETION
Since the respondent succeeded before the
Board on other grounds, he did not challenge the
refusal of his wife's admission on compassionate or
humanitarian grounds. The issue was not dealt
with by the parties in their memoranda but it was
raised by the Court during the course of argument
and counsel were afforded the opportunity to
address it. In view of the conclusion I have reached
on the Board's decision that she should be admit
ted for other reasons, I must deal with that refusal.
The Act provides [paragraphs 3(c), 77(3)(b) (as
am. by. R.S.C., 1985 (2nd Supp.), c. 10, s. 6; (4th
Supp.), c. 28, s. 33)]:
3. It is hereby declared that Canadian immigration policy
and the rules and regulations made under this Act shall be
designed and administered in such a manner as to promote the
domestic and international interests of Canada recognizing the
need:
(c) to facilitate the reunion in Canada of Canadian citizens
and permanent residents with their close relatives from
abroad;
77....
(3) A Canadian citizen or permanent resident who has
sponsored an application for landing that is refused pursuant to
subsection (1) may appeal to the Appeal Division on either or
both of the following grounds:
(b) on the ground that there exist compassionate or humani
tarian considerations that warrant the granting of special
relief.
Again, my emphasis.
In dismissing the respondent's appeal on that
ground, the Board said:
... the Board is not persuaded that there exists extraordinary
circumstances that warrant the Board granting special relief.
The appellant has lived in England for some sixteen years. His
twenty-year-old daughter and thirteen-year-old son from a
previous marriage reside there. The hardship he might suffer
should he return to England, is mainly of economic nature.
It went on to discount the fear and anxiety they
claimed on account of Eddie Szuluk's threats of
revenge, the background of which is discussed by
my brother Linden and upon which I shall not
elaborate.
The circumstances in which the Board may
exercise its discretion under paragraph 77(3)(b)
need not be extraordinary. All that is needed are
compassionate or humanitarian considerations. It
seems to me that such considerations can be
among the most ordinary in the world: the love of
husband and wife and their natural desire to live
together.
Furthermore, the basis upon which the relief
was denied: the relative absence of hardship should
the respondent have to return to England to be
reunited with his wife, runs clearly contrary to an
express objective of the Immigration Act: the
reunion in Canada of Canadian citizens with their
close relatives from abroad. I have no hesitation in
saying that, had this been an appeal by the
respondent against the refusal of relief on compas
sionate or humanitarian grounds, I should have
allowed it.
CONCLUSION
The relief available in this appeal is prescribed
by paragraph 52(c) of the Federal Court Act
[R.S.C., 1985, c. F-7]:
52. The Federal Court of Appeal may
(c) in the case of an appeal other than an appeal from the
Trial Division,
(i) dismiss the appeal or give the decision that should have
been given, or
(ii) in its discretion, refer the matter back for determina
tion in accordance with such directions as it considers to be
appropriate;
This Court has traditionally and properly accorded
a high degree of deference to the Board in the
exercise of its discretion under paragraph
77(3)(b). Where error has been found, we have
almost always exercised the discretion of subpara-
graph 52(c)(ii) and remitted the matter for rede-
termination. That said, no provision of the Immi
gration Act detracts from our remedial discretion
under subparagraph 52(c)(î). In my opinion, we
would be remiss in our duty if we did not exercise
our discretion to give the decision that should have
been given where no question of fact remains to be
resolved by the Board and its error in law is so
plainly grounded in its failure to respect Parlia
ment's express statement of the policy of the Act.
An appeal is from a decision, not the reasons for
it. Since it is my opinion that the Board reached
the right result, albeit on the wrong basis, I would
dispose of the appeal as proposed by Mr. Justice
Linden.
* * *
The following are the reasons for judgment
rendered in English by
LINDEN J.A.: Susan Mary Pearn Burgon's life
in England was not a happy one. Born in 1949, the
applicant was the eldest of eight children. Her
father was a bank robber, who spent much of his
life in prison. When she was 9 years of age, her
mother disappeared for a time and, as a result, she
and her siblings had to be looked after by child
care authorities. At seventeen, she was living on
her own, working as a waitress and studying nurs
ing. In 1969, at age 20, she got pregnant, left her
nursing course and gave birth to her elder son,
Simon. Soon after that she met and, in 1971,
married her first husband, Harry Pearn. A second
son, Nicholas, was born to the Pearns. Harry
Pearn was a violent, possessive person, who occa
sionally had trouble with the law. In 1981, Ms.
Burgon left Pearn. When they were divorced in
1983, Pearn was given custody of the children.
Pearn, who had used cannabis regularly, led Ms.
Burgon to smoke it for a time, but she eventually
gave it up in 1974. Pearn began to use heroin in
1981 and introduced Ms. Burgon to that as well,
during her visits to the children. She learned that
he was dealing in heroin and, being concerned for
her children's welfare, she moved back into his
house to protect them. Unfortunately, she later
became addicted to heroin herself.
In 1984, she again tried to break her addiction
by moving to Cornwall, but she was not successful.
When Pearn was arrested and imprisoned for drug
offences, her supply of heroin was cut off. Instead
of quitting she then came under the influence of a
local drug dealer called Eddie Szuluk, who gave
her one gram of heroin, which was divided into 20
portions, 2 for her own use and 18 to be sold. Her
older son, Simon, soon became a drug user. She
tried to escape from Szuluk's influence but failed.
She sought her father's help, but rather than help
ing her, he too became a dealer for Szuluk.
In 1985, Ms. Burgon was arrested on drug
charges along with Szuluk and others. While
awaiting trial in prison, where she remained for 10
months, she learned from her younger son,
Nicholas, that her elder son, Simon, was now
involved in drug deals for Szuluk. Despite having
been warned by Szuluk to keep quiet, this caused
her to give a statement to the police which led to
the imprisonment of her son, Simon, her father,
and Szuluk as well as others. She pleaded guilty to
conspiracy to supply controlled drugs and was
sentenced on June 18, 1986 to probation for two
years. On sentencing her, the Judge, Sir Hugh
Park, explained that he was being lenient with her
because she had been addicted, because she had
been influenced by Szuluk, because she had made
a full confession and because she had been willing
to testify for the prosecution. Szuluk received a
sentence of 10 years and others in his ring were
also sentenced to varying terms of imprisonment.
On June 26, 1986, Ms. Burgon married David
Ross Burgon, the respondent, a Canadian citizen
who was living in England. They had met in 1981
and had kept in touch during her involvement in
the court proceedings. After the wedding, they
lived in Barnstaple for a few months, where Ms.
Burgon worked in the local pub.
In January, 1987, Mr. Burgon's mother fell ill
and the couple travelled to Canada to see her. In
March of 1987, sponsored by her husband, Ms.
Burgon applied for permanent residence in
Canada. On December 7, 1987, with the help of
her probation officer, she received an English dis
charge order which had the effect of clearing her
completely. Following that, she was admitted as a
visitor to Canada and awaited word from Employ
ment and Immigration Canada.
In February, 1988, Ms. Burgon's eldest son,
Simon, died of an overdose of drugs. She returned
to England to attend the funeral and, while there,
she received a letter from the Canadian immigra
tion authorities informing her that her application
for permanent residence had been rejected. Her
husband succeeded in getting Ms. Burgon permis
sion to re-enter Canada temporarily, where they
now live and wish to remain safely out of the reach
of Eddie Szuluk.
Ms. Burgon's application for landing was initial
ly refused on the ground that she was a member of
two inadmissible classes. First, it was said that,
because of her "conviction", she was caught by
paragraph 19(1)(c) of the Immigration Act which
stipulates:
19. (1) No person shall be granted admission who 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;
Second, it was stated that, because of her previous
heroin addiction, she came under subparagraph
19(1)(a)(ii) of the Immigration Act which reads:
19. (1) No person shall be granted admission who is a
member of any of the following classes:
(a) persons who are suffering from any disease, disorder,
disability or other health impairment as a result of the
nature, severity or probable duration of which, in the opinion
of a medical officer concurred in by at least one other
medical officer,
(ii) their admission would cause or might reasonably be
expected to cause excessive demands on health or social
services;
Mr. Burgon appealed to the Appeal Division of
the Immigration and Refugee Board, which in a
decision dated August 21, 1989, reversed on both
grounds, admitting the applicant to Canada. The
Minister of Employment and Immigration now
appeals to this Court.
The more complex issue is whether Ms. Burgon
is excluded from Canada pursuant to paragraph
19(1)(c) because of having pleaded guilty to a
charge of conspiring to supply controlled sub
stances, for which she was sentenced to two years
probation, or whether she is saved from the opera
tion of paragraph 19(1)(c) by subsection 13(1) of
the United Kingdom's Powers of Criminal Courts
Act, 1973 [(U.K.), 1973, c. 62] which stipulates:
13. (1) ... a conviction of an offence for which an order is
made under this Part of this Act placing the offender on
probation or discharging him absolutely or conditionally shall
be deemed not to be a conviction for any purpose other than the
purposes of the proceedings in which the order is made and of
any subsequent proceedings which may be taken against the
offender under the preceding provisions of this Act.
The appellant's counsel contended, inter alia
that, by pleading guilty to the charge against her
and by being found guilty and being sentenced, she
was "convicted of an offence", as this phrase is
used in paragraph 19(1)(c). It was urged that the
United Kingdom legislation cannot determine the
meaning of the word "convicted" in the Immigra
tion Act, which has different objectives than the
British criminal law.
The respondent's counsel contended, inter alia,
that the Appeal Division properly found as a fact
that she was not convicted in the U.K. and, fur
ther, that the law of England should be controlling
on this issue. In other words, if she is convicted in
England, she is "convicted" here; if she is not
convicted there, she is not "convicted" here.
It is clear that the word "convicted" does not
have a universal, immutable meaning; this word,
like so many other words, may have "equivocal"
and "different meanings depending upon the con-
text in which it is used". (See R. v. McInnis
(1973), 1 O.R. (2d) 1 (C.A.), at page 10 per
Martin J.A.; Rex v. Vanek, [1944] O.R. 428
(C.A.), at page 433, per Robertson C.J.O.) There
are a series of reported cases that interpret the
word "conviction" in various criminal procedure
contexts, but these specialized decisions are not
very helpful in discovering the meaning of the
word in this particular context. (See Reg. v. Blaby,
[1894] 2 Q.B. 170, sentencing matter; The King v.
Sheridan (Frank), [1937] 1 K.B. 223 (C.A.),
autrefois convict; R. v. Grant (1936), 26 Cr App
Rep 8, effect of guilty plea; Ex parte Johnston,
[1953] O.R. 207 (C.A.), effect of guilty plea; R. v.
McInnis, supra, appeal powers.)
What must be decided in this case is whether
the policy of the Immigration Act predominates in
arriving at the meaning of the word "convicted",
whether the policy of the criminal law should be
controlling, or whether the Court should seek to
harmonize the legislation in these two areas. Also,
there is a foreign element in this case, which
requires this Court to consider what recognition, if
any, should be given to the laws of a foreign
country in this interpretation exercise.
The Immigration Act sets out certain inadmiss
ible classes of persons who are "identified general
ly as threats to the public health, welfare, econo
my, safety and national security of Canada". (See
Wydrzynski, Canadian Immigration Law and
Procedure (1983), at page 160). In particular,
paragraph 19(1)(c) is "designed to exclude
individuals who have been convicted of serious
offences." (Ibid., at page 167) But all people who
have committed crimes are not necessarily exclud
ed forever. Immigration law, like society generally,
may forgive those who commit crimes. Those who
satisfy "the Governor in Council that they have
rehabilitated themselves and that at least five
years have elapsed since the termination of the
sentence imposed" may be admitted. (See para
graph 19(1)(c)). This provision indicates that a
person who commits a serious crime may be given,
a chance to start a new life in Canada, at least on
certain conditions.
The policy of the criminal law in relation to
criminal records has changed in recent years, in
order to reflect altering social attitudes toward
those who have violated the criminal law. The
Report of the Canadian Committee on Corrections
(Ouimet Report) recommended in 1969 that there
should be a way of avoiding the damaging conse
quences of the existence of a criminal record. (See
Salhany, Canadian Criminal Procedure (5th ed.
1989, at page 382). The first legislative response to
this was the Criminal Records Act, S.C. 1969-70,
c. 40, which permitted a pardon by the Governor
in Council, after the lapse of a certain period of
time, upon the recommendation of the National
Parole Board. The effect of such a pardon is that it
"vacates the conviction in respect of which it is
granted and, without restricting the generality of
the foregoing, removes any disqualification to
which the person so convicted is, by reason of such
conviction, subject by virtue of any Act of the
Parliament . .." (section 5). Hence, someone con
victed of an offence, upon showing that he was of
"good behaviour", could be cleansed of any stain
that the conviction caused. Not long after this, the
Criminal Code [R.S.C. 1970, c. C-34] of Canada
was also amended ( [Criminal Law Amendment
Act, 1972] S.C. 1972, c. 13, assented to June 15,
1972) to allow judges to impose absolute and con
ditional discharges in appropriate cases. This
would have the effect of the accused being
"deemed not to have been convicted of the offence
to which he pleaded guilty or of which he was
found guilty" subject to certain exceptions. (See
subsection 662.1(3), now subsection 736(3) [as
am. by R.S.C. 1985 (1st Supp.), c. 27, s. 162; (4th
Supp.), c. 1, s. 18 (Sch. 1, item 24)] of the
Criminal Code of Canada).
Similar provisions aimed at helping those con
victed of crimes to make a new beginning were
enacted in the U.K. as well as other countries. The
British went farther than Canada; in addition to
allowing absolute and conditional discharges, it
enacted in subsection 13(1) supra that, when an
offender was placed on probation, his conviction
would be "deemed not to be a conviction", except
for certain technical purposes. It was this provision
that enabled Ms. Burgon to have her conviction
expunged in the U.K.
The expert, Mr. Manraj, explained the effect of
this U.K. legislation:
Though a probation order can only be made following a
conviction for an offence, that conviction is not to be deemed to
be a conviction for any purpose other than for the purposes of
the proceedings in which the order is made. Thus, the "convic-
tion" will be a "conviction" for the purpose of allowing the
accused to appeal against the "conviction", but it will not be
deemed to be a conviction e.g. for the purpose of subsequently
empowering a Court to pass a heavier sentence, when this is
possible, provided the accused has a previous sentence, when
this is possible, provided the accused has a previous conviction.
It will only be recognized as a previous "conviction", if there is
a subsequent conviction for the same type of offence.
Apart from these instances, once probation is ordered and
entered upon, there is no longer a "conviction". [Emphasis
added.]
This evidence was accepted by the Appeal Divi
sion. This U.K. legislation, while not identical to
that of Canada, is certainly similar in content and
in effect.
In my view, when Parliament re-enacted the
Immigration Act in 1976 [S.C. 1976-77, c. 52], it
must be taken to have known about its own earlier
penal legislation which allowed for the elimination
of criminal convictions from the records of deserv
ing individuals. In using the word "convicted" in
paragraph 19(1)(c), therefore, Parliament meant a
conviction that had not been expunged, pursuant
to any other legislation it had enacted. If a "con-
viction" had been erased by the provisions of
another law of Parliament, it was not meant to be
treated in the same way as a conviction that had
not been removed from a person's record. If it had
intended that the word "convicted" in the Immi
gration Act be interpreted otherwise, it could and
should have demonstrated that. Interpreting para
graph 19(1)(c) in this way, the Immigration Act
and the criminal legislation in Canada is rendered
consistent, not in conflict. The policy of the crimi
nal law is incorporated within the Immigration
Act.
I am fortified in this view by an examination of
the legislative history of paragraph 19(1)(c),
which was significantly different in its earlier
form. The Immigration Act, R.S.C. 1970, c. I-2,
paragraph 5(d), prohibited certain classes of "per-
sons who have been convicted of or admit having
committed any crime involving moral turpi
tude ..." [underlining added] from entering
Canada. If this wording had continued in the
legislation of 1976, Ms. Burgon would probably
have fallen within it and been properly excluded,
because she had "admit[ted] having committed a
crime" [underlining added]. However, the new
immigration legislation of 1976 dropped the
underlined words, leaving only the key word "con-
victed". This provision now had a different mean
ing; a mere plea of guilty would not now be
sufficient to come within the section. This legisla
tive reform came after the Criminal Code amend
ments which received royal assent on June 15,
1972, permitting absolute and conditional dis
charges as a method of disposition in Canada.
Thus when the underlined words were omitted
from the Immigration Act in 1976, leaving only
the word "convicted", Parliament must be taken to
have been aware of the device of deeming an
offender not to have been convicted and, therefore,
must be taken to have meant to exclude such
persons from the ambit of paragraph, 19(1)(c) and
to render the Immigration Act consistent with the
Criminal Code of Canada.
'The further question to consider is whether the
U.K. legislation, which is similar in purpose, but
not identical to the Canadian law, should be treat
ed in the same way. In both countries, certain
offenders are granted the advantage of avoiding
the stigma of a criminal record so as to facilitate
their rehabilitation. There is no good reason for
Canadian immigration law to thwart the goal of
this British legislation, which is consistent with the
Canadian law. Our two legal systems are based on
similar foundations and share similar values. In
another context, which is not unrelated to this, Mr.
Justice MacGuigan of this Court has written
[Minister of Employment and Immigration v.
Satiacum (1989), 99 N.R. 171 (F.C.A.), at page
176]:
In the absence of exceptional circumstances ... Canadian
tribunals have to assume a fair and independent judicial process
in the foreign country. In the case of a non-democratic State,
contrary evidence might be readily forthcoming, but in relation
to a democracy like the United States contrary evidence might
have to go to the extent of substantially impeaching, for
example, the jury selection process in the relevant part of the
country, or the independence or fair-mindedness of the judici
ary itself. [See also United States of America v. Cotroni;
United States of America v. El Zein, [1989] 1 S.C.R. 1469].
The same might be said of the United Kingdom as
of the United States.
Unless there is some valid basis for deciding
otherwise, therefore, the legislation of countries
similar to ours, especially when their aims are
identical, ought to be accorded respect. While I
certainly agree with Justice Bora Laskin that the
law of another country cannot be "controlling in
relation to an inquiry about criminal convictions to
determine whether immigration to Canada should
be permitted", (see Minister of Manpower and
Immigration. v. Brooks, [ 1974] S.C.R. 850, at
page 863) we should recognize the laws of other
countries which are based on similar foundations
to ours, unless there is a solid rationale for depart
ing therefrom. In the words of the Appeal
Division:
It would constitute a grave assault on the Canadian sense of
justice if either the Canadian immigration department or the
Canadian justice system would empower itself to deem a person
convicted of an offence when the person is deemed not to be
convicted of the same offence in the jurisdiction where the
offence was allegedly committed.
While this Court is not required to go so far as to
"attorn" to the law of all foreign jurisdictions, as
argued by the respondent's counsel, it is appropri
ate to do so in this case, because the laws and the
legal system of the other country are similar to
ours.
There being no "conviction" in the U.K., there
fore, and there being no reason to refuse to grant
recognition to the law of the U.K. which is similar
to ours, Ms. Burgon was not "convicted" as that
term is used in paragraph 19(1)(c) of the Immi
gration Act and she is not excluded.
The less complex issue is the medical one. The
Appeal Division reversed the initial decision which
denied Ms. Burgon entry on the basis that she was
covered by subparagraph 19(1)(a)(ii). In doing so
it reasoned as follows:
The [medical] report indicates that the applicant suffers no
abnormality; the diagnosis reads "a fit lady" and the prognosis
reads "normal life-health expectancy". According to the appli
cant she was not questioned by the medical examiner about her
drug addiction, yet, the medical officer's narrative reads:
This lady has suffered from heroin addiction. She has been
convicted of a conspiracy to supply controlled drugs and is at
present on a two year probation period authorized by the
Courts which will not be completed until June 1988. Inad
missible under section 19(1)(a)(ii) of the Act (Drug
Addiction).
It would appear that the physician who conducted the physical
examinations of the applicant made neither findings nor refer
ences to the applicant's past drug habit. The medical officer
who wrote the narrative seemed to have based his opinion on
the information provided by the applicant who admitted to the
charge of conspiracy to supply controlled drugs during her
interview with the visa officer. The Board concurs with counsel
for the appellant that the medical refusal is flawed in two
respects. Firstly, it is flawed in the matter of fact that the
condition "drug addiction", named by the medical officer is not
shown to be an ongoing disease, disorder, disability or other
health impairment to which subparagraph 19(1)(a)(ii) can be
applied. Secondly, it is also flawed in the opinion expressed in
the medical narrative which concludes that the applicant
"would cause or might reasonably be expected to cause exces
sive demands on health and social services" based on a diagno
sis totally void of medical evidence. Neither the convictions nor
the probations mentioned in the narrative is relevant to para
graph 19(1)(a)(ii).
The Board finds that the medical refusal is without a premise
and, therefore, is not valid in law.
I have not been persuaded that there is any flaw in
this reasoning.
What was done by the medical officers here was
similar to what was done in Seyoum v. Canada
(Minister of Employment and Immigration)
(A-419-90, Mahoney J.A., judgment dated
15/11/90, not yet reported), where the applicant
was said to be covered by subparagraph
19(1)(a)(ii) because he had been found unfit to
stand trial for murder by reason of insanity. Mr.
Justice Mahoney of this Court said that this could
not "automatically support the conclusion that he
might reasonably be expected to cause excessive
demands on health and social services". So too, the
fact that someone had been addicted to drugs did
not mean that automatically she would fall within
subparagraph 19(1)(a)(ii), as was assumed by the
medical officers.
Ms. Burgon, therefore, is not inadmissible
because of subparagraph 19(1)(a)(ii).
For these reasons, this appeal is dismissed and
Ms. Burgon is granted a fresh start in Canada.
Costs will be to the respondent on a solicitor-client
basis in accordance with subsection 84(1) [as am.
by R.S.C., 1985 (4th Supp.), c. 28, s. 19] of the
Immigration Act.
MACGUIGAN J.A.: I agree.
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.