Paul Alexander Smogor (Appellant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Jackett C.J., Cameron and
MacKay D.JJ.—Toronto, March 30, 1973.
Immigration—Deportation order—Landed immigrant sen
tenced to jail—Report made after his discharge—Whether
subject to deportation—Immigration Act, R.S.C. 197''0I, c.
I-2, s. 18(1)(e)(iii).
A landed immigrant was convicted of an offence against
the Food and Drugs Act and sentenced to a fine of $'20'0
or 21 days in jail. He chose to go to jail and was discharged
therefrom on March 9, 197'1. On April 1, 1971, a report was
made under section 19(1)(e)(iii) of the Immigration Act [now
section 18(1)(e)(iii) of R.S.C. 1970, c. I-2] that he was a
person who "has become an inmate of a gaol", and he was
ordered deported.
Held, reversing the Immigration Appeal Board, the depor
tation order should be quashed. The words "has become an
inmate" imply that the person referred to is still an inmate
when the report is made.
APPEAL from Immigration Appeal Board.
COUNSEL:
J. T. Weir, Q.C., and G. L. Segal for
appellant.
E. A. Bowie and G. Garton for respondent.
SOLICITORS:
Weir and Foulds, Toronto, for appellant.
Deputy Attorney General of Canada for
respondent.
JACKETT C.J. (orally)—This is an appeal from
a decision of the Immigration Appeal Board,
dated April 25, 1972, dismissing an appeal from
a deportation order made against the appellant
on May 26, 1971.
The deportation order was based on a finding
that the appellant was a person described in
section 19(1)(e)(iii) of the Immigration Act,
R.S.C. 1952, c. 325, as amended, as it was at
the time the deportation order was made. Sec-
tion 19, which is section 18 of R.S.C. 1970, c.
I-2, read in part as follows:
19. (1) Where he has knowledge thereof, the clerk or
secretary of a municipality in Canada in which a person
hereinafter described resides or may be, an immigration
officer or a constable or other peace officer shall send a
written report to the Director, with full particulars,
concerning
(e) any person, other than a Canadian citizen or a person
with Canadian domicile, who
(iii) has become an inmate of a penitentiary, gaol, refor
matory or prison or of an asylum or hospital for mental
diseases,
(2) Every person who is found upon an inquiry duly held
by a Special Inquiry Officer to be a person described in
subsection (1) is subject to deportation.
The appellant came to Canada as a visitor in
February, 1970, and obtained "landed-Immi
grant" status in April, 1970. In December, 1970,
he was convicted of an offence against the Food
and Drugs Act, R.S.C. 1970, c. F-27, sentenced
to a fine of $200 and given the alternative of
twenty-one days in jail. He chose to serve the
jail sentence and served a period of fourteen
days that expired on March 9, 1971.
On April 1, 1971, a report was made under
section 19 of the Immigration Act, supra, in
respect of the appellant, which report indicated
that the appellant was a person who
"has become an inmate of a Gaol."
As a result of that report, the deportation order
that resulted in this appeal was made.
The appellant's principal objection to the
judgment of the Immigration Appeal Board is
that the Board erred in law:
In interpreting section 19(1')(e)(iii) of the Immigration Act,
[now s. 18(1')(e)(iii), R.S.C. 1970, c. I-2] to include anyone
who has ever been an inmate of a penitentiary, gaol, refor
matory, or prison or of an asylum or hospital for mental
diseases;
The appellant's case is based on the fact that,
while he had, since his admission to Canada,
become an inmate of a jail, his term of impris
onment was completed before the time when
the section 19(1) report was made so that he
was not such an inmate at that time. What is
involved is a narrow point of statutory construc
tion turning on the tense of the verb used in
section 19(1)(e)(iii).
In my view, it is no exaggeration to say that
there is a lack of precision and consistency in
the use of verbal tenses in section 19. Section
19(1) required a report to be made concerning,
among others,
(a) any person . . . "who engages in,
advocates or is a member of or associated
with" a certain type of organization,
(b) any person . . . who . . . "has
been convicted" of an offence against the
Sovereign,
(c) any person . . . who . . . "en-
gages in espionage" or related activities,
(d) any person . . . "who is convicted"
of certain offences under the Narcotic Con
trol Act,
(e) any person . . . who
(i) "practises . . . prostitution", etc.,
(ii) "has been convicted of an offence
under the Criminal Code,"
(iii) has become an inmate of inter alia a
"gaol",
(iv) was a member of a prohibited class at
the time of his admission,
(v) has, since his admission . . . be
come a person who, if he were applying for
admission . . . would be refused.
Section 19(2) provided that a person who "is
found" upon an inquiry "to be" a person
described in section 19(1) is subject to
deportation.
The appellant's contention is that section
19(1)(e)(iii) only applied to a person who was an
"inmate" of one of the institutions referred to
therein at the time of the making of the report
contemplated by section 19(1). The respond
ent's position is that section 19(1)(e)(iii) had
application "to any person who has become an
inmate of a gaol notwithstanding that he ceased
to be an inmate before the report required by
section 19 of the Immigration Act was made".
I am of the view, not without some doubt,
that the appellant's contention represents the
better view. As I appreciate the precise use of
the English language, the words "has become an
inmate" imply that the person referred to is still
an inmate.
Certainly, if it had been intended to extend
section 19(1)(e)(iii) to every person who had
been an inmate of a penal or mental institution
at any time since his admission to Canada, it
would have been quite simple to have made that
intention clear. For example, that provision
might have been worded as follows:
(iii) has, at any time since his admission to Canada,
been an inmate of a penitentiary, gaol, reformatory or
prison, or of an asylum or hospital for mental disease.
Parliament did not, however, use any such lan
guage and it may well be that, upon considera
tion, any such language would be found to go
much too far. It would apply, I should have
thought, to a person incarcerated on an
unfounded charge or on a misapprehension as to
the facts and who is subsequently not charged
or is acquitted; and it might, as a practical
matter, make the unfortunate victim of the mis
take vulnerable to a form of blackmail that is
not unknown in connection with immigration
matters.
The view of the meaning of section
19(1)(e)(iii) that I have adopted is also support
ed, in my opinion, by a consideration of the
context. Section 19(1)(b),(4) and (e)(ii) spell out
the classes of convictions for offences that
render a person liable to be deported. Where a
person has been convicted of such an offence,
there is no need to have recourse to section
19(1)(e)(iii). Similarly section 19(1)(e)(v) read
with section 5(s) makes it clear that, while cer
tain mental abnormalities will be sufficient to
prevent a person from being admitted to
Canada, the acquisition of such abnormalities
after admission does not, of itself, make a
person subject to be deported. What section
19(1)(e)(iii) is dealing with, therefore, is the
class of persons who, for no matter what
reason, are inmates of penal or mental institu
tions. As a matter of policy, as I conceive it, the
statute says, if you are such an inmate, even
though for a condition that would not make you
subject to deportation if you were not such an
inmate, you are subject to deportation.
My conclusion is that the appeal should be
allowed, the judgment of the Immigration
Appeal Board should be set aside and the depor
tation order made against the appellant on May
26, 1971, should be quashed.
* * *
CAMERON and MACKAY D.B. concurred.
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.