A-144-74
Susan Kline Dintenfass Schiffer (Appellant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Pratte and Urie JJ. and Shep-
pard D.J.—Vancouver, November 20 and 22,
1974.
Immigration—Deportation—Immigrant giving narcotic—
Upheld as ground for order—Effect of quashing by Board—
Narcotic Control Act, R.S.C. 1970, c. N-1, ss. 2-4—Immi-
gration Act, R.S.C. 1970, c. I-2, ss. 5(d), (k), 22, 23, 35—
Immigration Appeal Board Act, R.S.C. 1970, c. I-3, s. 15—
Federal Court Act, s. 28.
Deportation of the appellant, a United States citizen, was
ordered pursuant to section 22 and section 23(1) of the
Immigration Act, on the ground that she was a member of a
prohibited class, within sections 5(d) and (k) of the Immigra
tion Act, in that she had admitted commission of a crime
involving moral turpitude, the unlawful possession of
marijuana, a narcotic within the meaning of the Narcotic
Control Act, R.S.C. 1970, c. N-1, sections 2 and 3, and that
she had been engaged in the unlawful giving of marijuana
within the meaning of sections 2 and 4. Her appeal from the
order was dismissed by the Immigration Appeal Board. She
appealed from, and sought judicial review of, this decision.
The appellant argued that the possession of marijuana was
not a crime involving moral turpitude. The respondent did
not seek to support the decision on this ground.
Held, dismissing the appeal and application, to sustain the
finding as to engaging in any unlawful giving of a narcotic,
under section 5(k) of the Immigration Act, it need not be
proved that the giving of narcotics was one of the chief
activities of the person in question for a period of time.
From the appellant's evidence that she had given small
quantities of marijuana to friends, the Special Inquiry Offi
cer was justified in drawing the inference that the appellant
had "been engaged in the unlawful giving of a narcotic".
The appellant had failed to challenge the accuracy of the
inference. It was unnecessary to express an opinion on the
respondent's contention that since the deportation order had
been quashed by the Board under section 15 of the Immi
gration Appeal Board Act, the appeal was purely academic,
and that the prohibition, in section 35 of the Immigration
Act, against admission to Canada without the consent of the
Minister, was inapplicable to a person ordered deported,
once the deportation order had been quashed under section
15 of the Immigration Appeal Board Act.
APPEAL and judicial review.
COUNSEL:
Peter Fraser for appellant.
N. D. Mullins, Q.C., for respondent.
SOLICITORS:
Lew, Fraser & Harcourt, Vancouver, for
appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered orally in English by
PRATTE J.: This is an appeal which has been
joined with a section 28 application against a
decision of the Immigration Appeal Board dis
missing the appellant's appeal from a deporta
tion order.
The appellant is an American citizen who, on
August 3, 1973, sought to come to Canada from
the United States for a brief visit. She was
examined at the border by an immigration offi
cer who, being of opinion that she could not be
admitted to Canada, reported her to a Special
Inquiry Officer as he was required to do under
section 22 of the Immigration Act.
On the same day, the Special Inquiry Officer
who received the section 22 report, after a
further examination of the appellant, made a
deportation order against her. The Special
Inquiry Officer was then acting pursuant to
section 23(1) of the Immigration Act which
reads as follows:
23. (1) Where the Special Inquiry Officer receives a
report under section 22 concerning ,a person who seeks to
come into Canada from the United States or St. Pierre and
Miquelon, he shall, after such further examination as he may
deem necessary and subject to any regulations made in that
behalf, admit such person or let him come into Canada or
make a deportation order against such person, and in the
latter case such person shall be returned as soon as practi
cable to the place whence he came to Canada.
The deportation order was made on two
grounds which were stated as follows in para
graphs (iii) and (iv) of the order:
(iii) You are a member of the prohibited class described
in paragraph 5(d) of the Immigration Act being a person
who admits the commission of a crime involving moral
turpitude, namely, the unlawful possession of marijuana, a
substance which is a narcotic within the meaning of the
"Narcotic Control Act", and your admission to Canada
has not been authorized by the Governor-in-Council;
(iv) You are a member of the prohibited class described
in paragraph 5(k) of the Immigration Act being a person
who has been engaged in the unlawful giving of a sub
stance which is a narcotic within the meaning of the
"Narcotic Control Act", namely, marijuana, and five
years have not elapsed since you were so engaged.
The appellant appealed from that order to the
Immigration Appeal Board. At the hearing of
her appeal, she did not adduce any evidence
bearing on the validity of the order. The Board
rejected her attacks against the two grounds of
deportation mentioned in the order and, accord
ingly, dismissed her appeal. The Board, how
ever, acting on the view that the appellant was
entitled to special relief under section 15 of the
Immigration Appeal Board Act, quashed the
deportation order. It is against the decision of
the Board dismissing the appeal that these pro
ceedings are directed.
Counsel for the appellant submitted that the
Board should have allowed the appeal since, in
his view, neither of the grounds stated in the
order warranted the appellant's deportation. He
said that the first ground was bad because the
unlawful possession of marijuana is not a crime
involving moral turpitude. With respect to the
second ground, he argued that the evidence that
the Special Inquiry Officer had before him did
not warrant the conclusion that the appellant
had been "engaged in the unlawful giving" of
marijuana. In that connection, he referred to a
memorandum relating to the deportation of the
appellant which had been written by the Special
Inquiry Officer some ten days after the date of
the deportation order. Paragraph 3 of that
memorandum reads as follows:
3. EVIDENCE IN SUPPORT OF THE ORDER
Mrs. Schiffer admitted that she has used marijuana on an
intermittent basis for a period of five years. She stated that
she had purchased the drug in one ounce quantities, the last
purchase being two years ago. She has offered and given
small quantities of marijuana to friends. For the past months
Mrs. Schiffer stated that she has smoked marijuana once per
week to help her sleep at night. She stated that she had
recently acquired a "couple" of marijuana cigarettes from a
friend and felt that they were more beneficial than sleeping
pills for the above noted purpose.
From the statement of the appellant that "she
had given small quantities of marijuana to
friends", counsel said, the Special Inquiry Offi
cer could not legally infer that the appellant had
"been engaged in the unlawful giving" of
marijuana. According to counsel, a person
cannot be said to "have been engaged in the
unlawful giving of a narcotic" within the mean
ing of section 5(k) of the Immigration Act if
there is no evidence showing that trafficking in
narcotics has been one of the person's chief
activities over a period of time.
Counsel for the respondent did not seek to
support the decision of the Board in respect of
the first ground of deportation. He submitted,
however, that the Board had been right in dis
missing the appeal since, in his view, the evi
dence adduced before the Special Inquiry Offi
cer supported the conclusion that the appellant
had been "engaged in the giving of" marijuana.
He argued that if a person has once given a
narcotic to another, she has been engaged in the
activity of giving that narcotic within the mean
ing of section 5(k) of the Immigration Act.
Counsel for the respondent also submitted
that the appeal raised a purely academic ques
tion since the deportation order made against
the appellant has been quashed by the Board
under section 15 of the Immigration Appeal
Board Act. He maintained that the prohibition
from being admitted to Canada without the con
sent of the Minister, which prohibition is con
tained in section 35 of the Immigration Act,
does not apply to a person against whom a
deportation order has been made once that
deportation order has been quashed under sec
tion 15 of the Immigration Appeal Board Act.
I need not express any opinion on that last
argument of the respondent because, in my
view, the Immigration Appeal Board was clearly
right in dismissing the appellant's appeal from
the deportation order.
Without denying that in other contexts the
expression "to engage in" may have the mean-
ing proposed by the appellant, I am of opinion
that in order for a person "to engage in any
unlawful giving" of a narcotic, within the mean
ing of section 5(k), it is not necessary that the
"giving of narcotics" be one of the chief activi
ties of that person for a period of time. It
follows that, from the evidence that he had
before him, the Special Inquiry Officer, who
was acting summarily under section 23(1) of the
Immigration Act, had the right to infer that the
appellant "had been engaged in the unlawful
giving of a narcotic". If the appellant wanted to
challenge the accuracy of that inference, the
onus was upon her to establish that it was
wrong. This she failed to do. In those circum
stances, as there was no evidence on which the
Board could find that the appellant had not been
engaged in the unlawful giving of a narcotic, the
Board had no alternative but to dismiss the
appellant's appeal.
For these reasons I would dismiss both the
appeal and the section 28 application.
* * *
URIE J. concurred.
* * *
SHEPPARD D.J. 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.