A-78-74
Lorraine Carol Button (Appellant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Jackett C.J., MacKay and Smith
D.JJ.—Toronto, January 22; Ottawa, February
24, 1975.
Judicial review—Immigration—Appellant seeking admis
sion as visitor—Admitting previous possession of marijuana in
country of domicile—Whether "crime involving moral turpi-
tude"—Immigration Act. R.S.C. 1970, c. I-2, ss. 5(d), (k), 7,
11, 22, 23, 25, 26(4), 27 and 50—Immigration Appeal Board
Act, R.S.C. 1970, c. I-3, s. 11, 14, 23—Narcotic Control Act,
R.S.C. 1970, c. N- 1—Interpretation Act, R.S.C. 1970, c. I-23,
s. 8—Federal Court Act, ss. 28, 52.
The appellant, a United States citizen, sought admission to
Canada for a two-day visit in 1973. Following a report by the
Immigration Officer, she was further examined, under section
23(1) of the Immigration Act, by a Special Inquiry Officer, to
whom she admitted that from 1971 to 1972 in the United
States she had possessed marijuana on numerous occasions.
The Special Inquiry Officer ordered her deportation, on the
ground that having admitted "the commission of a crime
involving moral turpitude", that is, the illegal possession of
marijuana, a drug under the Narcotic Control Act, she was
within a prohibited class of persons under section 5(d) of the
Immigration Act. The Immigration Appeal Board, by a majori
ty, dismissed her appeal. A further appeal was made to the
Court of Appeal.
Held, the deportation order under section 5(d) of the Immi
gration Act should be set aside and the case referred back to
the Immigration Appeal Board for consideration of whether the
order could be supported under section 5(k) of the Immigration
Act, referring specifically to the use of narcotic drugs.
Per Jackett C.J. and Smith D.J.: The agreement, before the
Court of Appeal, by the appellant and the respondent that the
possession of marijuana, although a crime, was not a "crime
involving moral turpitude", could not relieve the Court of its
duty to decide the question raised on this appeal under section
23 of the Immigration Appeal Board Act, of whether the Board
had erred in law in deciding that the deportation order had
been validly made. On the evidence, there was no basis for the
finding that the appellant, when presenting herself at the
Canadian border, was a person who admitted that she had
committed "a crime involving moral turpitude." Her admission
as to the possession of marijuana could have applied only to her
life in the United States. The Narcotic Control Act of Canada
had operative effect only within Canada's territorial limits.
There was no evidence that the foreign law, by virtue of which
the appellant's possession was illegal, necessarily involved
moral turpitude. The respondent asserted a burden on the
appellant under section 26(4) of the Immigration Act, to prove
that she was not prohibited from coming into Canada. But this
burden, applicable to an inquiry pursuant to a report under
section 23(2), had no application to the "further examination"
to which the appellant was subjected under section 23(1). The
Board had erred in deciding that the deportation order could be
supported under section 5(d) of the Immigration Act. But, by
virtue of section 14 of the Immigration Appeal Board Act, the
Board had to satisfy itself that the order could not be supported
on some other ground. In rendering its judgment, under section
52 of the Federal Court Act, the Court should refer the matter
back to the Board, to consider (within its jurisdiction over law
and fact declared in section 11 of the Immigration Appeal
Board Act) whether the appellant fell within the class described
in section 5(k) of the Immigration Act, "of persons who at any
time" have been engaged "in any unlawful ... using" of any
narcotic within the meaning of the Narcotic Control Act.
Per MacKay D.J.: The only question to be decided under
section 5(d) of the Immigration Act was whether the acts
admitted by the appellant constituted a "crime involving moral
turpitude" under Canadian law. The onus placed on the appel
lant by section 26(4) of the Act applied to all persons seeking
admission, including those undergoing further examination
under section 23(1). There was no error by the Board in
deciding the appeal without evidence that what appellant
admitted doing in her country was a crime involving moral
turpitude under the law of that country. But there was error by
the Special Inquiry Officer and the Board in failing to consider
the specific category provided by section 5(k) of the Act.
R. v. Walkem (1908) 8 W.L.R. 857, 14 C.C.C. 122 [leave
to appeal refused, [1908] A.C. 197]; R. v. Martin [1956] 2
All E.R. 86, Board of Trade v. Owen [1957] A.C. 602;
Schiffer v. Minister of Manpower and Immigration
[1974] 2 F.C. 695; Julius v. Bishop of Oxford (1880) 5
App. Cas. 214, and Srivastava v. Minister of Manpower
and Immigration [1973] F.C. 138, discussed.
APPEAL.
COUNSEL:
I. Scott, Q. C., for appellant.
A. C. Pennington and R. G. Vincent for
respondent.
SOLICITORS:
Cameron, Brewin and Scott, Toronto, for
appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
JACKETT C.J. and SMITH D.J.: This is an
appeal under section 23 of the Immigration
Appeal Board Act from a decision of the Immigra
tion Appeal Board dismissing the appellant's
appeal from a deportation order made by a Special
Inquiry Officer on the ground that (not being a
Canadian citizen and not having Canadian domi
cile) she was a person who (when seeking admission
to Canada from the United States as a visitor)
admitted "the commission of a crime involving
moral turpitude", and was, therefore, in a prohib
ited class by virtue of section 5(d) of the Immigra
tion Act which reads, in part, as follows:
5. No person, other than a person referred to in subsection
7(2), shall be admitted to Canada if he is a member of any of
the following classes of persons:
(d) persons who have been convicted of or admit having
committed any crime involving moral turpitude, except per
sons whose admission to Canada is authorized by the Gover
nor in Council ....
The facts do not appear to be in dispute. On
March 9, 1973, the appellant sought admission to
Canada from the United States to Canada for a
visit of two days. Upon being examined at the
border by an immigration officer, she admitted,
according to the report made by that officer under
section 22 of the Immigration Act, "having com
mitted a crime involving moral turpitude namely
having illegal possession of a substance (marijua-
na) that is a drug within the meaning of the
Narcotic Control Act."' Upon the resulting "fur-
ther examination" by a Special Inquiry Officer,
under section 23(1) of the Immigration Act, she
admitted, according to a report made by that
Officer to the Immigration Appeal Board, "com-
mission of the offence", but argued that the
offence was not a "crime involving moral turpi
tude"; and the Special Inquiry Officer thereupon
made the deportation order that was the subject-
matter of the appeal to the Board. The Special
Inquiry Officer's report to the Board reads, in
Her "admission" to Canada had not been authorized by the
Governor in Council.
part, as follows:
3. Evidence in Support of Order
Miss Button admitted to me that from the end of 1971 until
the late summer of 1972 she had been in unlawful possession of
marijuana on numerous occasions. She stated that she had used
marijuana during that period, but had never trafficked in
marijuana. She admitted that she was aware that possession of
marijuana was contrary to law, but in her opinion she does not
consider this as a crime involving moral turpitude. She was
asked if she had the authority of the Governor-in-Council to be
admitted to Canada and she stated that she did not.
4. Identity and Citizenship
Lorraine Carol Button claims United States citizenship by
birth in Wilkes Barre, Pennsylvania, on May 19, 1952. She
states that she is single and she makes no claim to Canadian
citizenship, or domicile. Her next of kin is her father, Mr.
Robert Button, who lives at 122 South Main Street, Mountain
Top, Pennsylvania. Her permanent address is with her father,
but she is presently a student at Bucknell University, Lewis-
burg, Pennsylvania.
5. Arrival and Transportation
Miss Button arrived at the Queenston Bridge on March 9,
1973, seeking visiting privileges for two days to attend a
seminar at York University, Toronto, concerning amnesty for
draft evaders. Miss Button had forty-three dollars in cash and
she was travelling by automobile with a group of other students
from Bucknell University who were all going to the same
seminar.
6. Activities Prior to Arrival
Miss Button provided the following information: she attend
ed primary school in Mountain Top, Pennsylvania, attended St.
Ann's Academy in Wilkes Barre, Pennsylvania, where she
graduated from grade 12 in May, 1970, and she has been in
attendance at Bucknell University, Lewisburg, Pennsylvania.
She is studying political science.
When Miss Button arrived at the Queenston Bridge, the
vehicle in which she was riding was thoroughly examined by a
Customs Officer with the result that a package of marijuana
was found. The Royal Canadian Mounted Police Local Detach
ment were called in on the case, bu they were unsuccessful in
establishing the ownership of the marijuana and, as a result, no
charges were laid under the Narcotic Control Act.
7. Intentions
Miss Button stated she intended to travel with her fellow
students to York University, where they would attend a semi
nar concerning amnesty for draft evaders which was a project
of their political science class.
8. Disposition
Following service of the deportation order Miss Button was
returned to the United States on March 9, 1973.
On the appeal to the Immigration Appeal
Board, counsel for the appellant "accepted" the
Special Inquiry Officer's report and put into evi-
dence "The Report of the Commission of Inquiry
into the non-medical use of drugs" 2 (commonly
referred to as the Le Dain Commission Report),
and counsel for the respondent proffered no
evidence.
The majority of the members of the Immigra
tion Appeal Board sitting on the appeal (Mr.
Benedetti and Mr. Appellini), having said that
"There were no arguments introduced during the
hearing and there is no doubt, by virtue of the
Narcotic Control Act, that possession of marijuana
is a crime", stated that the matter to be decided on
the appeal was "whether or not the possession and
the use of marijuana by Miss Button, to which she
admitted, is a `crime involving moral turpitude' ".
They then reviewed previous decisions of the
Board and parts of the Le Dain Commission
Report in a portion of their judgment, which, while
lengthy, is worthy of repetition and is set out in an
appendix to these reasons. The reasons of the
majority thereafter concluded by holding that
"possession of marijuana is a crime involving
moral turpitude" and held that the deportation
order that had been made against the appellant
was valid.
There was a dissenting member of the Board
(Mrs. Steele), whose views on the question dealt
with by the majority are sufficiently indicated by a
portion of her judgment that is also set out in an
appendix to these reasons.
On the appeal to this Court, not only did the
appellant take the position, as set out in her memo
randum filed in this Court, that the Board erred in
holding "that the simple possession or use of
marijuana constitutes a crime involving moral tur
pitude" and that the deportation order should,
therefore, be set aside, but the respondent, con
trary to the position that he took before the Immi
gration Appeal Board, also took the position that
the deportation order should be "quashed". The
respondent sets out his argument in support of this
position in Part III of his memorandum filed in
this Court, in part as follows:
2 Depending upon the true effect of section 5(d), there must
be some question as to the admissibility of this document as
evidence. The question arises as to the question of fact to which
it is relevant.
2. Section 5, subsection (d) of the Immigration Act, R.S.C.
1970, Chap I-2 (hereinafter called "the Immigration Act")
reads in part as follows:
5. No person, other than a person referred to in subsection
7(2), shall be admitted to Canada if he is a member of any of
the following classes of persons:
(d) persons who have been convicted of or admit having
committed any crime involving moral turpitude, except
persons whose admission to Canada is authorized by the
Governor in Council ....
4. The Appellant has admitted previous possession of
marijuana.
5. Possession of marijuana is a crime under the Narcotic
Control Act, R.S.C. 1970, Chap. N-1, Section 4(2).
6. The narrow question for determination on this appeal is
whether the Appellant is a member of the class of persons "who
have been convicted of or admit having committed any crime
involving moral turpitude" or, in short whether the crime of
possessing marijuana involves moral turpitude within the mean
ing of the Immigration Act.
7. It is submitted that "a crime involving moral turpitude" is
intended by Parliament to distinguish such crimes from other
crimes which do not involve moral turpitude. In one sense
virtually all crimes involve a degree of moral turpitude, even if
it is only a high degree of recklessness or negligence, but it is
respectfully submitted that Parliament in enacting section 5(d)
of the Immigration Act must have intended to circumscribe
that group of crimes which have attached to them a special
moral stigma setting them apart from other crimes.
8. It is submitted therefore that a crime involving moral turpi
tude in the sense in which it is employed in the Immigration
Act is a crime involving an act of baseness, vileness or depravity
in the private and social duties which a man owes to his fellow
man or to society in general, contrary to the accepted and
customary rule of right and duty between man and man; it
implies something immoral in itself, regardless of its being
punishable by law; it is restricted to grave offences that are
malu;n in se.
9. It is submitted that a crime involving moral turpitude must
be recognized as such by the community as a whole and there
ought not to be any significant disagreement by society as to
such stigmatization.
10. It is respectfully submitted that the possession of marijua
na although a crime, is no longer recognized as a crime
involving moral turpitude by a substantial segment of contem
porary Canadian society.
If this were an ordinary lawsuit between private
parties, the position taken by the respondent in this
Court would relieve the Court of the task of
coming to any conclusion itself on the matter
raised by this appeal. However, as the Court con
strues section 23 of the Immigration Appeal
Board Act, its jurisdiction to interfere with a
decision of the Immigration Appeal Board is lim
ited to a case where it is satisfied that that Board
has erred on a "question of law, including a ques
tion of jurisdiction", and its additional jurisdiction
under section 28 of the Federal Court Act, which
presumably might also be invoked even at this late
date if any useful purpose would be served by so
doing, would on the facts of this case be similarly
limited. The question that this Court must decide
is, therefore, whether, on the facts that were before
the Immigration Appeal Board, that Court erred,
as a matter of law, in holding that the deportation
order was validly made.
Even if, as the immigration officer, the Special
Inquiry Officer, the Immigration Appeal Board
and the parties appear to have assumed through
out, section 5(d) is the only provision of the Immi
gration Act that requires consideration, we are of
the view that, on the facts that appear on the
record, there was no basis for holding that the
appellant was, when she presented herself at the
Canadian border, a person who admitted that she
had "committed any crime involving moral
turpitude".
The applicant did admit that she had, prior to
that time, had in her possession, and used,
marijuana at a time when the Canadian Narcotic
Control Act (R.S.C. 1970, c. N-1) prohibited any
person from having a narcotic (which by definition
included the drug commonly referred to as
marijuana) in his possession except as authorized
by that Act, or regulations made thereunder. How
ever, that statute only had operative effect within
the territorial limits of Canada' and, on the facts
as recorded, the only inference that can be drawn
is that the possession of marijuana admitted by the
appellant was in the United States, where she was
3 Compare R. v. Walkem (1908) 8 W.L.R. 857; 14 C.C.C.
122 (leave to appeal refused [1908] A.C. 197). See also R. v.
Martin [1956] 2 All E.R. 86, per Devlin J. (as he then was) at
(Continued on next page)
born, lived and went to university. (There is no
basis for inferring that she had been, during the
relevant period, in Canada.) It follows that the
facts admitted by the applicant do not establish
that she had been guilty of any infraction of the
Canadian Narcotic Control Act and, in our view,
there can be no presumption that the law of a
foreign country coincides with a Canadian statute
creating a statutory offence, except where the
offence falls within one of the traditional offences
commonly referred to as malum in se. 4
(Continued from previous page)
page 92: "In a crime that is the creation of statute, regard must
be had to the terms of the statute for a definition of the nature
of the crime; and if the effect of the statute is limited territori-
ally, then so is the nature of the crime", and section 8 of the
Interpretation Act which reads, in part, as follows:
8. (1) Every enactment applies to the whole of Canada,
unless it is otherwise expressed therein.
(3) Every Act of the Parliament of Canada now in force
enacted prior to the 11th day of December 1931 that in
terms or by necessary or reasonable implication was intend
ed, as to the whole or any part thereof, to have extra-ter
ritorial operation, shall be construed as if at the date of its
enactment the Parliament of Canada then had full power to
make laws having extra-territorial operation as provided by
the Statute of Westminster, 1931.
The problem of applying the principle of territorial operation of
the criminal law, where a criminal law has not been expressly
made to operate outside the territorial boundaries of the state,
becomes particularly difficult in the case of conspiracy. Com
pare Board of Trade v. Owen [1957] A.C. 602.
° See the Martin case supra per Devlin J. at page 92:
"Crimes conceived by the common law, however, which are
mostly offences against the moral law, such crimes as murder
and theft, are not thought of as having territorial limits. They
are universal offences. Murder is a crime whether done in
France or in England; but if done in France the English courts
would not under the common law assume jurisdiction to punish
it because that would be an infringement of French sovereignty.
... Broadly speaking, therefore, distinction can be drawn be
tween offences which are offences against the moral law and to
be regarded as wrong wherever they are committed, and
offences which are merely breaches of regulations that are
made for the better order or government of ... a particular
country such as England.
Now with regard to the offence charged here [which was
that of being in unlawful possession of drugs contrary to the
U.K. Dangerous Drugs Act, 19511—whatever may be the
position in regard to other statutory offences—it is perfectly
clear that this offence is an offence only if it is done in
England."
That, of course, is not an end of the matter
because illegal possession of marijuana may have
been a "crime involving moral turpitude" accord
ing to the law of the foreign country where the
appellant's admitted possession occurred, and,
indeed, the appellant admitted that her possession
was illegal. However, an admission of illegal
possession, in our view, stops short of an admission
of a "crime involving moral turpitude", even
assuming that the character of a foreign law is a
proper subject-matter for "admission" by a
layman.
As it seems to us, the expression "crime involv
ing moral turpitude" is ambiguous. It may, proper
ly interpreted, mean either
(a) the commission of an act that is a crime the
legal definition of which necessarily involves
moral turpitude, or
(b) the commission of an act constituting a
crime which act was committed in such circum
stances as to involve moral turpitude.
In either case, there is no basis for a finding that
the applicant had committed a crime involving
moral turpitude in this case. Foreign statutory law
is, in a Canadian court, a fact that must be
established by appropriate evidence or presump
tion. Foreign law, in this case, has not been estab
lished by anything on the record and, in our view,
there can be no presumption that the law of
another country is the same as a Canadian law
creating an offence against a law regulating
possession of drugs; and, therefore, no judgment
can be formed as to whether the foreign law by
virtue of which the appellant's possession of
marijuana was illegal necessarily involves moral
turpitude. Indeed, a mere prohibition of possession
"except as authorized", such as is found in the
Narcotic Control Act, may well embrace acts that
can, on no view of the meaning of the words
"moral turpitude" as used in section 5(d), involve
such an element—e.g., possession under a licence
that has been allowed negligently to expire. On the
other hand, there is nothing in the record to estab
lish the circumstances of the applicant's actual
"possession" so that no judgment can be formed as
to whether such circumstances "involve moral tur
pitude". Indeed, there can be cases of illegal
possession and user that, in particular circum
stances, cannot be sufficiently immoral, according
to the standards of any society, to involve "moral
turpitude"—e.g., bona fide scientific experiments
carried on on an erroneous assumption that such
experiments are not illegal.
In reaching this conclusion, we have given care
ful consideration to the submissions on behalf of
the respondent that the burden was on the appli-.
cant to prove that she was not prohibited from
coming into Canada (section 26(4) of the Immi
gration Act). 5 In our view, however, this burden
5 The applicable provisions read as follows:
22. Where, an immigration officer, after examination of a
person seeking to come into Canada, is of opinion that it
would or may be contrary to a provision of this Act or the
regulations to grant admission to or otherwise let such person
come into Canada, he may cause such person to be detained
and shall report him to a Special Inquiry Officer.
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.
(2) Where the Special Inquiry Officer receives a report
under section 22 concerning 'a person, other than a person
referred to in subsection (1), he shall admit him or let him
come into Canada or may cause such person to be detained
for an immediate inquiry under this Act.
25. Subject to any order or direction by the Minister, the
Director shall, upon receiving a written report under section
18 and where he considers that an inquiry is warranted,
cause an inquiry to be held concerning the person respecting
whom the report was made.
26. (1) An inquiry by a Special Inquiry Officer shall be
separate and apart from the public but in the presence of the
person concerned wherever practicable.
(2) The person concerned, if he so desires and at his own
expense, has the right to obtain and to be represented by
counsel at his hearing.
(3) The Special Inquiry Officer may at the hearing
receive and base his decision upon evidence considered cred
ible or trustworthy by him in the circumstances of each case.
only arises in the case of an "inquiry" such as
follows a report received by a Special Inquiry
Officer under section 23(2) and does not apply in
the case of the less formal "further examination"
contemplated by section 23(1) in the case of "a
person who seeks to come into Canada from the
United States or St. Pierre and Miquelon". It
cannot, therefore, be used against the appellant in
this case. (One must draw a distinction between
the burden of proof created by section 26 and the
burden that rests upon any person appealing to the
Immigration Appeal Board from the facts found
against him by the Special Inquiry Officer. 6 ) An
even greater objection to drawing any inference
against the appellant from a complete lack of
evidence on either of the possibly relevant ques
tions arises, in our view, even in the case of an
"inquiry" in which the statutory burden does
apply, from the ordinary rules of natural justice
unless it appears that it had been made clear to the
person seeking admission to Canada that a par
ticular issue was being raised as against him and
that he was given a reasonable opportunity of
discharging the burden in relation thereto. In this
case, it seems clear that it was assumed by the
Special Inquiry Officer and the Immigration
Appeal Board that the applicable law was the
Canadian Narcotic Control Act and, consequently,
the applicant was, presumably, not given any inti
mation that there was a case to meet with regard
to the state of the foreign statutory law or with
(4) Where an inquiry relates to a person seeking to come
into Canada, the burden of proving that he is not prohibited
from coming into Canada rests upon him.
27. (1) At the conclusion of the hearing of an inquiry, the
Special Inquiry Officer shall render his decision as soon as
possible and shall render it in the presence of the person
concerned wherever practicable.
(2) Where the Special Inquiry Officer decides that the
person concerned is a person who
(a) may come into or remain in Canada as of right;
(b) in the case of a person seeking admission to Canada, is
not a member of a prohibited class; or
(c) in the case of a person who is in Canada, is not proved
to be a person described in paragraph 18(1)(a),(b),(c),(d)
or (e),
he shall, upon rendering his decision, admit or let such
person come into Canada or remain therein, as the case may
be.
(3) In the case of a person other than a person referred to
in subsection (2), the Special Inquiry Officer shall, upon
rendering his decision, make an order for the deportation of
such person.
e See, for example, Schiffer v. Minister of Manpower and
Immigration [1974] 2 F.C. 695.
reference to the circumstances under which the
illegal possession occurred in the foreign country.
For the above reasons, we are of opinion that the
majority of the Immigration Appeal Board erred
in holding that the deportation order that was the
subject of the appeal in this case could be support
ed on the basis of section 5(d).
However, it does not follow necessarily from
that conclusion that the Board should have allowed
the appeal from the deportation order and set it
aside. The Board's power and implied duty,' on an
appeal concerning the validity of a deportation
order is set out in section 14 of the Immigration
Appeal Board Act, which reads as follows:
14. The Board may dispose of an appeal under section 11 or
section 12 by
(a) allowing it;
(b) dismissing it; or
(c) rendering the decision and making the order that the
Special Inquiry Officer who presided at the hearing should
have rendered and made.
When, therefore, the Board finds, as it should in
our view have done in this case, that a deportation
order cannot be supported on the ground upon
which the Special Inquiry Officer based it, the
Board must satisfy itself that that deportation
order cannot, on the material before it, be support
ed on some other ground, before it can legally
allow the appeal and quash that order; s and, in
this case, there is, in our view, another paragraph
of section 5 to which consideration must be given
by the Board before it has completed its task of
deciding whether the deportation order should
' Julius v. Bishop of Oxford (1880) 5 App. Cas. 214.
Compare Srivastava v. Minister of Manpower and Immi
gration [1973] F.C. 138, at pages 154 to 157.
have been made on the material that was before
it. 9
If the Board had concluded, as in our view it
should have done, that the material before it did
not establish that the applicant had admitted a
crime involving moral turpitude within section
5(d), it should then have considered whether,
nevertheless, the deportation order could be sup
ported under section 5(k), 1 ° which prohibited
admission to Canada of any person who was a
member of the class of persons set out therein,
which class includes "persons who at any time"
have been engaged "in any unlawful ... using" of
any substance that is a narcotic within the mean
ing of the Narcotic Control Act. The material
before the Board showed that the applicant had,
from the end of 1971 until the late summer of
1972, been in unlawful possession of marijuana on
numerous occasions and had used marijuana
during that period; and one view of the matter
might well be that user of drugs unlawfully pos-
9 It is to be borne in mind that the appeal to the Board was
an appeal on the law and the facts (section 11 of the Immigra
tion Appeal Board Act) and the appeal to this Court was
limited to a question of law (section 23 of the Act).
10 Section 5(k) of the Immigration Act reads as follows:
5. No person, other than a person referred to in subsection
7(2), shall be admitted to Canada if he is a member of any of
the following classes of persons:
(k) persons who are engaged or are suspected on reason
able grounds of being likely to engage in any unlawful
giving, using, inducing other persons to use, distributing,
selling, offering or exposing for sale, buying, trading or
trafficking in any substance that is a narcotic within the
meaning of the Narcotic Control Act, or persons who at
any time have been so engaged unless, in the latter case, at
least five years have elapsed since they were so engaged
and they are not, in the opinion of the Minister, likely to
unlawfully use or deal in any way in such substances or
cause other persons to do so;
sessed was unlawful user." Whether on that ma
terial the Board should conclude that, during the
period in question, the applicant "had been
engaged" in "unlawfully" using marijuana is a
question, at least in the first instance, for the
Board, in the exercise of its jurisdiction as a fact
finder; and, in our view, the Board should address
itself to that question before it comes to a decision
to dismiss the appeal or to allow it and quash the
deportation order. 12
The power and duty of this Court in disposing of
an appeal from a tribunal other than the Trial
Division is set out in that part of section 52 of the
Federal Court Act, which reads as follows:
52. The 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;
The judgment that we propose to render under
that section is as follows:
1. The appeal will be allowed and the decision
of the Immigration Appeal Board will be set
aside.
2. The matter will be referred back to the Board
for further consideration and disposition, on the
material that was before it at the time that it
rendered that decision, on the basis that
(a) the deportation order cannot be supported
on section 5(d) of the Immigration Act, and
(b) consideration should be given by the
Board to the question whether the deportation
order can be supported on section 5(k) of the
Immigration Act.
" Smith D.J. is very doubtful that any such inference can be
drawn. Our brother MacKay inclines to the view that it is the
inference that should be drawn. The Chief Justice has, as yet,
formed no view with regard to the matter whatsoever. We are
all agreed on the proposed disposition of the matter.
12 Compare Schiffer v. Minister of Manpower and Immigra
tion [1974] 2 F.C. 695.
APPENDIX A
PART I
Extracts from the Reasons of the Majority of the
Immigration Appeal Board
There were no arguments introduced during the
hearing and there is no doubt, by virtue of the
Narcotic Control Act, that possession of marijuana
is a crime. The matter to be decided in this appeal
is whether or not the possession and the use of•
marijuana by Miss Button, to which she admitted,
is a crime involving moral turpitude.
In the appeal of Moore v. The Minister of
Manpower and Immigration, [1973] Vol. 4, I.A.C.
199 at page 214, the following appears:
"Moral turpitude", the words used in the Act, defy the
exactness of definition which should be required in a statute
which, while not penal in itself, does impose penalties of a penal
nature, viz., deportation. Deportation proceedings have been
referred to as being a matter of determination of status and,
therefore, not penal. Nevertheless, the consequences which flow
from such a determination are of a penal nature and, therefore,
it is unfortunate that in referring to such a question in this case
that the wording is not precise, but that the individual opinions
of members as to moral conduct and behaviour must apply
subject to - their inherent prejudices: Erskin Maximillian
Turpin v. Minister of Manpower and Immigration, [1969]
I.A.C. (Revised) 1.
The problem of practical application to a set of facts is ably
outlined in King v. Brooks (1960), 31 W.W.R. 673, 129 C.C.C.
at 239, 24 D.L.R. (2d) 567 at 572, affirmed 33 W.W.R. 192,
129 C.C.C. 239, 25 D.L.R. (2d) 567 (Man. CA.), where
Monnin J. states:
What is moral turpitude? No reference to these words can be
found in Sanagan's "Words and Phrases", in "Words and
Phrases Judicially Defined", the English text, or in "The
Canadian Abridgment". Counsel have referred me to only
one Canadian case dealing with moral turpitude, Re Brooks,
[supra], and I have been unable to find any other. On the
other hand there is an abundance of American decisions.
Bouvier's Law Dictionary, 3rd ed., vol. 2, p. 2246, defines
"moral turpitude" as follows: "An act of baseness, vileness or
depravity in the private and social duties which a man owes
to his fellow men or to society in general, contrary to the
accepted and customary rule of right and duty between man
and man. Re Henry (1908), 15 Idaho 755, 99 Pac. 1054, 21
L.R.A. (N.S.) 207. It does not necessarily include publishing
a defamatory libel of George V; U.S. v. Uhl (1914), 210 Fed.
860. See Deportation; Immigration."
The American text "Words and Phrases—Permanent Edi-
tion"—vol. 27, pp. 554 et seq., contains numerous so-called
definitions and references to cases of immigration, disbar-
ment proceedings, crimes malum per se, and others. Here
with are a few examples:
Under statute authorizing deportation of alien convicted of
crime involving moral turpitude, whether crime for which
alien was convicted in foreign jurisdiction involved "moral
turpitude" must be determined according to the standard
in the United States. Immigration Act of Feb. 5, 1917, 19,
8 U.S.C.A. 155. Mercer v. Lence (1938), 96 F. 2d 122. (p.
555).
"Turpitude", in its ordinary sense involves the idea of
inherent baseness of vileness, shameful wickedness;
depravity. In its legal sense, it includes everything done
contrary to justice, honesty, modesty or good morals. The
word "moral", which so often precedes the word "turpi-
tude", does not seem to add anything to the meaning of the
term, other than that emphasis which often results from
tautological expression, within the divorce statute. Hollo-
way v. Holloway (1906), 55 S.E. 191, 126 Ga. 459, 7
L.R.A. (N.S.) 272, 115 Am. St. Rep. 102, 7 Ann. Cas.
1164; Webst. Dict., Black, Law Dict; Bouv. Law Dict. (p.
557).
"Moral turpitude" is an act of baseness, vileness, or
depravity in the private and social duties which a man
owes to his fellow men or to society in general, contrary to
the accepted and customary rule of right and duty between
man and man. Though the point at which an act begins to
take on the color of turpitude is not very definitely
marked, yet the commission of the crimes of larceny,
whether grand or petit, undoubtedly involves "moral turpi
tude", as that term is commonly used. Re Henry, [supra].
(pp. 561-2). [The italics are mine.]
In Turpin v. The Minister of Manpower and
Immigration [1969] I.A.C. Rev. 1, at page 16 the
following appears:
The generally accepted definition of moral turpitude is to be
found in Bouvier's Law Dictionary:
An act of baseness, vileness or depravity in the private and
social duty which a man owed to his fellow men or to society
in general, contrary to the accepted and customary rule or
right and duty between man and man (In re Henry, 15 Idaho
755).
In Hecht v. McFaul, (1961) Que. S.C. 392, one of the three
Canadian cases on this point, the learned judge cited, with tacit
approval, the definition set out in "Words and Phrases" (U.S.)
(1952) Vol. 27, as follows (in part):
In general "Moral Turpitude" is anything done contrary to
justice, honesty, modesty or good morals ... "Crime malum
in se." Generally speaking, crimes malum in se involve moral
turpitude.
The phrase "moral turpitude" has a definite meaning includ
ing only the commission of crimes malum in se and those
classed as felonies; it is an act of baseness, vileness or
depravity in the private and social duties which a man owes
to his fellow men or to society in general, contrary to the
accepted and customary rule of right and duty between man
and man, everything done contrary to justice, honesty and
good morals ...
The Board is in agreement with the remark of Monnin, J., in
King v. Brooks, (1960) 3 W.W.R. 673 at 683.
I agree entirely with the American decisions that the word
"moral" preceding the word "turpitude" adds nothing to the
meaning of it. It is a pleonasm which has been used only for
the sake of emphasis.
and there also appears at page 17 the following:
The Court, however, must deal with the phrase as it is found
in the Canadian Immigration Act, and adopting the definitions
above set out, at least until a better definition can be devised, it
appears clear that the crime must necessarily involve some
element of depravity, baseness, dishonesty, or immorality.
In the above-cited case of Klipper v. The Minis
ter of Manpower and Immigration [[1975] 8
I.A.C. 414, at pp. 422 et seq.,] Vice-Chairman
Campbell referred to the report of the Le Dain
Commission published in 1972, and particularly to
a statement at page 266 of the report, which reads:
The Bases for Social Concern About Cannabis.
General. The evidence of the potential for harm of cannabis
is far from complete and far from conclusive. It is possible to
find some fault with the methodology or the chain of reasoning
in virtually all of the evidence. Explaining away the evidence on
one side or the other has become a favourite pastime of
participants in the cannabis controversy. What is significant is
that there is a growing body of evidence to explain away. The
literature on adverse psychological reactions, both here and
abroad, is now quite extensive. There are problems in proving
causality, but the hypotheses are persistent. It is not difficult to
point out why other factors may be the cause of these mental
disorders, but we cannot afford to ignore the possibility that
cannabis may be the cause of them.
The picture with respect to long-term effects is not really
very much clearer than it was at the time of our Interim
Report. As we suggested then, it may take as long as ten years
or more to obtain the answers to important questions. It will
take at least that long to determine the statistical significance
of cannabis-related disorders now being reported by clinicians.
What has come to our attention with respect to long-term
effects since the Interim Report is matter for cautious concern
rather than optimism. At this time, these observations by some
clinicians who are in contact with chronic, heavy users of
cannabis are nothing more than straws in the wind, but to
gether they reinforce an uneasy impression that, in certain
kinds of individuals and at certain levels of use, cannabis can
cause serious mental problems. The questions are: in what kinds
of individuals and at what levels of use? The answers to these
questions are only likely to emerge with any kind of statistical
validity after a significant number of years of experience with
established patterns of use. It is simply too early in North
American experience of the widespread social use of cannabis
to hope to be able to obtain these answers. We should be
selecting groups of cannabis users now, with matched control
groups, for close follow-up study over a period of years.
Also at page 268 (Ex-A-2) of the report appears
the following:
Effect on adolescent maturation. We are in general agree
ment that the regular use of cannabis by adolescents has, in all
probability a harmful effect on the maturing process, and that
this should be the chief focus of our social concern. We do not
have experimental evidence for this conclusion but we believe
that it is a reasonable inference from what we know of the
nature of cannabis and adolescent development.
The subjective experiences of cannabis intoxication—particu-
larly intoxication with high doses possessing hallucinogenic
properties—and alcohol intoxication are in our opinion essen
tially different. Alcohol may produce a blunting of perception
and a gross disinhibition of behaviour, while an hallucinogenic
experience may lead to an extreme intensification of the pro
cesses of perception as well as to qualitative distortion of
space-time relationships. Such experiences are often also
associated with striking changes in one's perception of his own
body image and personal identity. This special nature of hal
lucinogenic experiences conceivably may have a lasting trau
matic impact on the maturation of a 12 or 13-year old who is
probably not yet capable of assimilating this kind of experience
without suffering harm.
It seems completely unrealistic to assume that adolescents,
beginning as early as the age of twelve, can persistently resort
to cannabis intoxication with its hallucinogenic effects without
seriously interfering with development of the capacity to cope
with reality that is an essential part of the process of matura
tion. There is also the probability that the use of cannabis will
have the effect of precipitating mental disorders in those who
are particularly vulnerable to them. The evidence as to the
effects of cannabis on the learning process and on academic
performance is inconclusive, although there is a good deal to
suggest that frequent use of cannabis may have adverse effects
on these functions, mainly because of its effect on short-term
memory and attention. It is a virtual certainty that heavy use of
cannabis will have an adverse effect on these functions.
Probably the most serious thing about cannabis is that it is
being used by adolescents. The most ardent proponents of
legalization do not pretend that this is a matter of indifference.
Virtually all proposals for legalization contemplate an age
limit, usually 18, below which cannabis would not be available.
Vice-Chairman Campbell, in delivering the
judgment of the Court in Klipper, said, inter alia,
at pages 9 and 10 [[1975] 8 I.A.C. 414 at 424-5]:
Having in mind the quotations referred to above, it is quite
apparent that marijuana is a drug with a potential for harming
those who persist in its use. This applies particularly to adoles
cents who may suffer serious interference with development of
the capacity to cope with reality; the probability that mental
disorders will be precipitated in those who are particularly
vulnerable to them; the virtual certainty that heavy use of
cannabis will have an adverse effect on their learning process
and academic performance. The use of cannabis in combina
tions of dose, set and setting can induce possible severe acute
panic or psychotic reactions as, for example, depression, anxie
ty, panic or psychotic-like, short-term responses ([Le Dain]
report, page 67). It follows that as marijuana has a potential
for harm society as we know it must be protected so that its
existence as a politically, socially and viable order for sustain
ing a creative and democratic process of human development
and self-realization may take place. The person who is in
possession of marijuana for his own use therefore has commit
ted a generic act of baseness which is contrary to the social
duty owed by him to society in general, contrary to the
accepted and customary rule of right and duty between man
and man.
The Court finds that simple possession of marijuana—not for
the purpose of trafficking—is a crime involving moral turpi
tude. In so finding the Court has not overlooked the conclusions
and recommendation of Commissioner Marie -Andrée Bertrand
(report, page 303) who recommended a policy of legal distribu
tion of cannabis or that the majority of the Commissioners at
page 282 of the report expressed a general reservation concern
ing the offence of simple possession as follows:
Our basic reservation at this time concerning the prohibi
tion against simple possession for use is that its enforcement
would appear to cost far too much, in individual and social
terms, for any utility which it may be shown to have. We feel
that the probability of this is such that there is justification
at this time to reduce the impact of the offence of simple
possession as much as possible, pending further study and
consideration as to whether it should be retained at all. The
present cost of its enforcement, and the individual and social
harm caused by it, are in our opinion, one of the major
problems involved in the non-medical use of drugs.
The expressed reservation at the time the report was written
was based primarily on the present cost of its enforcement. This
does not detract from the fact that generically simple posses
sion of marijuana and its use can cause serious mental problems
and therefore its possession, as already stated, is an act of
baseness, vileness and depravity coming within the definition of
moral turpitude. Furthermore because a person charged with
possession of marijuana may receive a light sentence, be fined
or granted either a conditional or absolute discharge does not
alter the generic nature of the crime. The fact that marijuana is
used by people in many other countries and by, perhaps, one
million Canadians is not relevant to the point in issue. There
are many more millions of Canadians who do not use marijua
na than there are users of the drug.
Miss Button admitted to the Special Inquiry
Officer that she had used marijuana from the end
of 1971 until the late summer of 1972. At page 50
of Cannabis, A Report of the Commission of
Inquiry into the Non-Medical Use of Drugs
(Exhibit A-1 to the hearing), under the heading
"Some Subjective Characteristics of the Cannabis
`High' ", we read the following:
Unpleasant experiences may occur in different individuals, or
possibly in the same individual at different times, although
significant acute adverse effects are relatively infrequent.
Apparently most regular cannabis users have experienced some
undesirable side effects from the drug. Some of these reactions
may include: fear and anxiety, depression, irritability, nausea,
headache, cold hands and feet, backache, dizziness, blurred
vision, a dulling of attention, confusion, lethargy, and a sensa
tion of heaviness, weakness and drowsiness. Disorientation,
depersonalization, delusions, suspiciousness, paranoia and, in
some cases, panic, loss of control, and acute psychotic and
depressive reactions have also been reported. Schwarz has
compiled an extensive catalogue of reports of negative effects
which have at different times been attributed to cannabis in the
literature.
A perusal of the report shows that marijuana
related to psychiatric problems may precipitate a
psychosis in an unstable, disorganized personality
when it is taken in an amount greater than a
person can tolerate. Although the study in regard
to the use of marijuana is continuing and no final
conclusion has been drawn, and the evidence as to
the physiological effects is limited and conflicting,
at pages 128 and 129 of the Cannabis Report
(Exhibit A-1) we read:
Progression to heroin and other drugs. In the past two
decades, the relationship between cannabis and heroin has been
the subject of heated controversy in Western literature. During
this period, reports from the United States indicated that the
majority of heroin users studied had previously used cannabis,
although in certain sections of the country (noticeably the
southeastern states) this was not the case. Before 1950, there
was little evidence or serious discussion of a cannabis-to-heroin
progression. Similarly, until recently in Canada, there appeared
to be no relationship between the use of cannabis and heroin.
Heroin users studied were generally heavy consumers of
alcohol, barbiturates, and tobacco, but had little or no cannabis
experience. The situation has apparently changed, and many
young Canadian heroin users report previous and concomitant
use of marijuana, amphetamines and LSD.
Several studies in the United States of persons arrested for
cannabis offences, or noted for other delinquent behaviour,
indicate that a significant number of these individuals were
later arrested on heroin offences. In some instances, however,
the critical contact with heroin users and sources came from a
prison experience. Robins reported that one-fifth of a group of
blacks in St. Louis who were users of cannabis in the 1940s had
admitted to subsequent heroin use.
Cannabis, A Report of the Commission of
Inquiry into the Non-Medical Use of Drugs has
been published since 1972 and the Interim Report
of the Commission of Inquiry into the Non-Medi
cal Use of Drugs has been published since 1973.
Parliament did not remove marijuana from the
Narcotic Control Act, and although possession of
marijuana is not as serious a crime as that of
possession of opium, morphine, cocaine, etc., it is
in the same Schedule and, therefore, it is to be
considered as a dangerous drug until satisfactorily
proven otherwise and until the law is changed.
APPENDIX A
PART II
Portion of Dissenting Reasons of a Member of the
Immigration Appeal Board
In my view the possession of marijuana for the
purposes of personal use unquestionably consti
tutes a crime upon conviction. It certainly has not
yet been removed from the Narcotic Control Act. I
do not believe that possession of marijuana for
personal use can possibly pass the test which has
been placed upon it by previous decisions of the
Immigration Appeal Board, that the violation
must be one which renders it "contrary to the
accepted and customary rule of right and duty
between man and man".
The possession of marijuana for personal use is
the subject of such wide-spread controversy and is
so common in certain sectors of our society that I
believe, in no way, can it be called "contrary to the
accepted and customary rule of right and duty
between man and man". One might justifiably say
"contrary to the accepted and customary rule of
right and duty between man and man—over fifty",
or "contrary to the accepted and customary rule of
right and duty between men and women in certain
areas of our country" or "contrary to the accepted
and customary rule of right and duty in nursing
homes", but we cannot say "contrary to the
accepted and customary rule of right and duty
between man and man".
Lorraine Carol Button stated, at page 2 of her
Further Examination, that she had used marijua
na, but never trafficked in marijuana. She admit
ted that she was aware that possession of marijua
na was contrary to law, but in her opinion she does
not consider this as a crime involving moral
turpitude.
For the reasons outlined above, I am of the
opinion that possession of marijuana for personal
use is not a crime involving moral turpitude and,
therefore, I would allow the appeal under section
14 of the Immigration Appeal Board Act.
APPENDIX B
ADDENDUM OF THE CHIEF JUSTICE
In this case, I did not find it necessary to come
to any conclusion as to the ambit of the expression
"crime involving moral turpitude" in section 5(d)
of the Immigration Act. However, for several rea
sons, I deem it advisable to set out, by way of
addendum to our reasons for judgment, my think
ing on that subject to the extent that it has devel
oped at the present time.
Having regard to the exclusive legislative au
thority of Parliament by virtue of section 91(27) of
The British North America Act, 1867 13 to make
13 Section 91 reads, in so far as applicable, as follows:
91. It shall be lawful for the Queen, by and with the
Advice and Consent of the Senate and House of Commons,
to make Laws for the Peace, Order, and good Government of
Canada, in relation to all Matters not coming within the
Classes of Subjects by this Act assigned exclusively to the
Legislatures of the Provinces; and for greater Certainty, but
not so as to restrict the Generality of the foregoing Terms of
this Section, it is hereby declared that (notwithstanding
anything in this Act) the exclusive Legislative Authority of
the Parliament of Canada extends to all Matters coming
within the Classes of Subjects next herein-after enumerated;
that is to say,-
27. The Criminal Law, except the Constitution of Courts
of Criminal Jurisdiction, but including the Procedure in
Criminal Matters.
And any Matter coming within any of the Classes of Sub
jects enumerated in this Section shall not be deemed to come
within the Class of Matters of a local or private Nature
comprised in the Enumeration of the Classes of Subjects by
this Act assigned exclusively to the Legislatures of the
Provinces.
laws, in Canada, in relation to the criminal law, it
might have been thought that the word "crime" in
a Canadian statute would mean an "act prohibited
with penal consequences" by a statute enacted "in
the public interest" by Parliament in the exercise
of the section 91(27) exclusive legislative
authority. 14 However, it has long since been estab
lished that the word "crime", in certain contexts in
Canadian statutes, includes, in addition, offences
created by the legislatures of the provinces as well
as offences created by Parliament as ancillary to
laws made under legislative authority other than
its legislative authority in relation to criminal
law. 15
Furthermore, Parliament's powers to create a
crime under section 91(27) are not limited to acts
that are (according to the Courts) immoral or, to
use the ancient "tag", malum in se. As Lord Atkin
said in the Proprietary Articles case: 16
Morality and criminality are far from co-extensive; nor is the
sphere of criminality necessarily part of a more extensive field
covered by morality—unless the moral code necessarily disap
proves all acts prohibited by the State, in which case the
argument moves in a circle. It appears to their Lordships to be
of little value to seek to confine crimes to a category of acts
which by their very nature belong to the domain of "criminal
jurisprudence"; for the domain of criminal jurisprudence can
only be ascertained by examining what acts at any particular
period are declared by the State to be crimes, and the only
common nature they will be found to possess is that they are
prohibited by the State and that those who commit them are
punished.
In other words, as I understand it, it is for Parlia
ment to decide what acts are such that, by reason
of their nature, they should be prohibited in the
public interest with penal consequences, and thus
made crimes, by virtue of its powers under section
91(27). On the other hand, prohibitions with penal
consequences in order to render effective a law
that falls within the exclusive provincial legislative
14 See Proprietary Articles case [1931] A.C. 310, per Lord
Atkin, at page 324; and Attorney General For British
Columbia v. Attorney General for Canada [1937] A.C. 368,
per Lord Atkin, at page 375.
' See In re Richard (1907) 38 S.C.R. 394; Re McNutt
(1912) 47 S.C.R. 259; Mitchell v. Tracey (1919) 58 S.C.R.
640; and The King v. Nat Bell Liquors Ltd. (1921) 62 S.C.R.
118, and [1922] 2 All E.R. (Rep.) 335, per Lord Sumner at
page 357.
16 [1931] A.C. 310 at page 324.
sphere do not fall within the legislative jurisdiction
conferred on Parliament by section 91(27). This
appears from Lord Atkin's discussion of The
Board of Commerce case in the Proprietary
Articles case, 17 and such cases as the Reciprocal
Insurers case. 18 Similarly, in my view, where Par
liament creates an offence to render effective a law
passed in relation to some matter other than crimi
nal law, it is not creating a "crime" under section
91(27) but is creating an offence of the same
nature as the offences that a provincial legislature
can create under section 92(15) of The British
North America Act, 1867. 19
What I conclude from the above analysis of our
constitutional provisions concerning crimes and
offences is that, as a matter of sound legislative
policy,
(a) when Parliament exercises its powers under
section 91(27) to create a crime, it is imple
menting a legislative conclusion that an act is, in
itself, so bad that it ought to be prohibited with
penal consequences, and
(b) when a legislature or Parliament creates an
offence under some other legislative head, an act
that is not necessarily bad in itself is prohibited
in order to implement a legislative scheme
designed to achieve some social, economic or
other end.
In my view, section 3(1) of the Narcotic Control
Act is not a law enacted by Parliament under
section 91(27) but is a law in relation to a matter
" [1931] A.C. 310, at pages 325 et seq.
18 [1924] A.C. 328.
19 Section 92(15) reads as follows:
92. In each Province the Legislature may exclusively
make Laws in relation to Matters coming within the Classes
of Subjects next herein-after enumerated; that is to say,—
15. The Imposition of Punishment by Fine, Penalty, or
Imprisonment for enforcing any Law of the Province made
in relation to any Matter coming within any of the Classes
of Subjects enumerated in this Section.
that falls under the opening words of section 91. It
does not prohibit any act as bad in itself but
prohibits possession of narcotics "Except as
authorized . ..". This would appear to be a regula
tory law adopted by Parliament as being in rela
tion to the welfare of Canada as a whole and not
as being in relation to a matter of "local or private
concern" in each province. This appears to fall
within the reasoning of the Privy Council in the
Canada Temperance Act Reference decision of
1946 20 where Viscount Simon, giving the judgment
of the Board, said at pages 205-6:
In their Lordships' opinion, the true test must be found in the
real subject matter of the legislation: if it is such that it goes
beyond local or provincial concern or interests and must from
its inherent nature be the concern of the Dominion as a whole
(as, for example, in the Aeronautics case [1932] A.C. 54 and
the Radio case [1932] A.C. 304), then it will fall within the
competence of the Dominion Parliament as a matter affecting
the peace, order and good government of Canada, though it
may in another aspect touch on matters specially reserved to
the provincial legislatures. War and pestilence, no doubt, are
instances; so, too, may be the drink or drug traffic, or the
carrying of arms....
From the foregoing and the context in which it
is found, I have reached the tentative conclusion
that the word "crime" in section 5(d) is used in a
sense broad enough to include any act that is
prohibited with penal consequences, whether or
not it is so prohibited because it is regarded by the
appropriate legislative authority as being, in itself,
so bad that it ought to be so prohibited or is
prohibited only to make effective some law
designed to implement a law adopted to achieve
some social, economic or other objective. This
conclusion would seem to flow inevitably from the
fact that section 5(d) applies only to crimes
"involving moral turpitude".
The further question arises as to whether the
word "crime" in section 5(d) refers to an act that
is made a crime by the law of Canada regardless
of where it is committed. Having regard to the
function of section 5, to which I will make refer
" [1946] A.C. 193.
ence later, and the wording of section 5(d), in my
view, the word "crime" in section 5(d) refers to an
act that was prohibited with penal consequences at
the time and place where it was committed. Sec
tion 5(d) refers to persons who "have been convict
ed or admit having committed any crime involving
moral turpitude". In my view, the words "crime
involving moral turpitude" must have the same
meaning whether they are read with the words
"convicted of" or the words "admit having com
mitted". A person cannot be convicted of an act
unless it was prohibited at the time and place
where he committed it. It follows that, when the
paragraph refers to admission of "a crime involv
ing moral turpitude", it refers to admission of an
act that was prohibited at the time and place
where he committed it. This, conceivably, may
have been done, in respect of something done at a
place outside Canada, by a Canadian law having
extraterritorial effect but, ordinarily, would have
been done by a law of the legislature having
jurisdiction in that place.
The final question that occurs to me as requiring
consideration is what meaning should be given as a
matter of judicial interpretation to the words
"involving moral turpitude".
The view that seems to have been implicitly
adopted is that the Court must decide, based on its
own judgment of community thought, what
offences involve moral turpitude and what offences
do not. Within this approach there is a difference
of opinion on the further question whether that
element must be found in the legal definition of
the offence or must be decided as a question of
fact on the circumstances in which the offence was
committed. In my opinion, this latter view assumes
that Parliament was, without saying so, leaving
this question, which is one primarily for legislative
policy, to the Courts. 21
In considering this question, it is advisable, as it
is in any question of legislative interpretation, to
21 It would not seem that we should conclude, in the absence
of express words, that it was intended that the effect of the law
should vary according to the impressions of the judiciary from
time to time as to the generality of community views on moral
questions in the community.
examine the general scheme of the statute in which
the provision to be interpreted occurs. The Immi
gration Act, in this connection, contemplates two
different problems, viz: what persons should be
stopped from coming into Canada and what per
sons found in Canada should be sent out of the
country. The first problem is dealt with in section
5, which reads in part:
5. No person, other than a person referred to in subsection
7(2), shall be admitted to Canada if he is a member of any of
the following classes of persons:
(d) persons who have been convicted of or admit having
committed any crime involving moral turpitude, except per
sons whose admission to Canada is authorized by the Gover
nor in Council ...
(e) prostitutes, homosexuals or persons living on the avails of
prostitution or homosexualism, pimps, or persons coming to
Canada for these or any other immoral purposes;
(I) persons who attempt to bring into Canada or procure
prostitutes or other persons for the purpose of prostitution,
homosexualism or other immoral purposes;
(g) professional beggars or vagrants;
(i) persons who are chronic alcoholics;
(j) persons who are addicted to the use of any substance that
is a narcotic within the meaning of the Narcotic Control Act;
(k) persons who are engaged or are suspected on reasonable
grounds of being likely to engage in any unlawful giving,
using, inducing other persons to use, distributing, selling,
offering or exposing for sale, buying, trading or trafficking in
any substance that is a narcotic within the meaning of the
Narcotic Control Act, or persons who at any time have been
so engaged unless, in the latter case, at least five years have
elapsed since they were so engaged and they are not, in the
opinion of the Minister, likely to unlawfully use or deal in
any way in such substances or cause other persons to do so;
The second problem is dealt with in section 18,
which reads in part:
18. (1) Where he has knowledge thereof, the clerk or secre
tary 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
(b) any person, other than a Canadian citizen, who, if in
Canada, has, by a court of competent jurisdiction, been
convicted of any offence involving disaffection or disloyalty
to Her Majesty;
(c) any person, other than a Canadian citizen, who, if out
side Canada, engages in espionage, sabotage or any activity
detrimental to the security of Canada;
(d) any person, other than a Canadian citizen, who is con
victed of an offence under section 3, 4, 5 or 6 of the Narcotic
Control Act;
(e) any person, other than a Canadian citizen or a person
with Canadian domicile, who
(ii) has been convicted of an offence under the Criminal
Code,
(iv) was a member of a prohibited class at the time of his
admission to Canada,
(v) has, since his admission to Canada, become a person
who, if he were applying for admission to Canada, would
be refused admission by reason of his being a member of a
prohibited class other than the prohibited classes described
in paragraphs 5(a), (b), (c) and (s),
(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 view that I have reached tentatively, upon a
study and comparison of these provisions, is that
Parliament has said, by section 18, that anybody
who comes into Canada and, without achieving
permanent status of one kind or another, is con
victed of a breach of our Criminal Code or certain
other statutes, including the Narcotic Control Act,
must be regarded as thereby having committed an
offence of such a nature that he must be required
to leave. In defining such offences it was not
necessary to adopt any general formula to draw a
line around offences that were sufficiently heinous
to require him to leave because it was possible to
refer to particular Canadian statutes or offences.
On the other hand, when defining who should be
stopped from coming into Canada, it was neces
sary to adopt a general formula to draw such a line
because the generality of persons coming into
Canada who should be prohibited entry because of
criminal activity would have been guilty of acts
prohibited by a foreign law; and so the formula
"crime involving moral turpitude" was adopted.
This, I should have thought, was adopted as being
designed to be a rough and ready rule to achieve
the same result with reference to keeping people
out as was adopted by section 18 for the purpose of
putting people out. It is worthy of note in this
connection that section 5, apart from paragraph
(d), enumerates almost every conceivable class of
person other than the common criminal, including
persons involved with narcotic drugs in one way or
another, who might be regarded as objectionable.
In my view, therefore, a possible interpretation
of section 5(d), and one that is eminently a rule
that courts are competent to apply is that a "crime
involving moral turpitude" means an offence that
was created by the competent legislature because
that legislature has evidenced by its legislation
that it regarded the prohibited act as being so bad
in itself as to call for prohibition with penal conse
quences and does not include an offence created by
the competent legislature to make effective some
other type of legislative scheme. I recognize, how
ever, that such a rule may well require modifica
tion if the problem arises in respect of a "crime"
against the law of a foreign country where the
prohibited act has not been recognized by the
Canadian Parliament as involving such moral tur
pitude as to require that it be prohibited on that
account with penal consequences in Canada.
* * *
The following are the reasons for judgment
rendered in English by
MACKAY D.J.: I have had the privilege of read
ing the reasons for judgment of My Lord, the
Chief Justice, and I agree that this case should be
referred back to the Immigration Appeal Board to
be dealt with under the provisions of section 5(k).
I wish, however, to state my views as to the
interpretation of sections 5(d), 5(k), 22, 23, and
26(4) of the Immigration Act.
Section 5 sets out the various classes of persons,
not being Canadian citizens, who are to be refused
admission to Canada.
Section 5(d), is, in part, as follows:
... persons who have been convicted of or admit having
committed any crime involving moral turpitude.
The question arises as to what law and stand
ards are to be applied in determining whether the
person seeking admission has been convicted of or
admitted having committed a crime involving
moral turpitude. Is it to be determined by the law
and standards of Canada or the law and standards
of the country of which the person seeking admis
sion is a citizen?
It is my view that the purpose of section 5 being
to prevent the admission to Canada of the persons
or classes of persons referred to in this section that
the determination as to whether a person seeking
entry comes within any of the enumerated catego
ries set out in section 5 must be determined by
Canadian law and Canadian standards.
If, therefore, it is admitted or proved by other
evidence that a person seeking admission to
Canada has been convicted in respect of or has
committed an act that by Canadian law and stand
ards would be a crime involving moral turpitude,
that person will not be admitted, because to do so
would defeat the purpose of the subsection.
Every country is entitled to set its own standards
as to the persons it will allow to enter—that right
cannot be controlled or limited by the laws and
standards of another country. For example, a read
ing of the American cases indicates that in some
States adultery is a crime and has been held to be
a crime involving moral turpitude. Adultery is not
a crime in Canada and a person seeking admission
to Canada who admitted to having been convicted
of or having committed adultery in another coun
try where adultery is a crime could not be refused
entry on that ground.
To apply the laws and standards of another
country in determining admissibility to Canada of
a citizen of that other country would require immi
gration officials to be familiar with or ascertain
the laws and standards of all countries from which
applicants for admission to Canada might come,
an impractical and difficult task.
For these reasons, I do not think it was neces
sary to adduce evidence of or prove that what the
appellant in this case admitted doing was a crime
involving moral turpitude in the State of which she
was a resident. The only question to be decided
was whether her admitted acts constituted a crime
involving moral turpitude under Canadian law and
standards.
I think that some support for the view I have
expressed is to be found in section 50 of the
Immigration Act, which is as follows:
Any Act, omission or thing that would by reason of this Act,
or the regulations, be punishable as an offense if committed
in Canada, is, if committed outside Canada, an offense
against this Act, or the regulations, and is triable and
punishable in Canada.
And also under American jurisprudence: The
following provision is contained in "The United
States Immigration and Nationality Act" [U.S.
Code 1970, Vol. 2, Title 8, 1182 (9)].
Aliens who have been convicted of a crime involving moral
turpitude ... or aliens who admit having committed such a
crime, or aliens who admit committing acts which constitute
the essential elements of such a crime ... are to be excluded
from the United States.
In Corpus Juris Secundum, Vol. 3, p. 914,
under the title Immigration, there is the following
statement.
The Law of the United States is applicable in determining
whether a crime committed by an alien in another country is
such as will preclude his admission.
Giammario vs Hurney (CA) Pa 311 F 2nd 285.
As to the effect of section 26(4), the following
sections of the Act are relevant:
11. (1) Immigration officers in charge are Special Inquiry
Officers and the Minister may nominate such other immigra
tion officers as he deems necessary to act as Special Inquiry
Officers.
(2) A Special Inquiry Officer has authority to inquire into
and determine whether any person shall be allowed to come
into Canada or to remain in Canada or shall be deported.
(3) A Special Inquiry Officer has all the powers and author
ity of a commissioner appointed under Part I of the Inquiries
Act and, without restricting the generality of the foregoing,
may, for the purposes of an inquiry,
(a) issue a summons to any person requiring him to appear
at the time and place mentioned therein, to testify to all
matters within his knowledge relative to the subject-matter
of the inquiry, and to bring with him and produce any
document, book or paper that he has in his possession or
under his control relative to the subject-matter of the inquiry:
(b) administer oaths and examine any person upon oath,
affirmation or otherwise;
(c) issue commissions or requests to take evidence in
Canada;
(d) engage the services of such counsel, technicians, clerks,
stenographers, or other persons as he may deem necessary for
a full and proper inquiry; and
(e) do all other things necessary to provide a full and proper
inquiry.
22. Where an immigration officer, after examination of a
person seeking to come into Canada, is of opinion that it would
or may be contrary to a provision of this Act or the regulations
to grant admission to or otherwise let such person come into
Canada, he may cause such person to be detained and shall
report him to a Special Inquiry Officer.
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 practicable to the place whence he
came to Canada.
(2) Where the Special Inquiry Officer received a report
under section 22 concerning a person, other than a person
referred to in subsection (1), he shall admit him or let him
come into Canada or may cause such person to be detained for
an immediate inquiry under this Act.
26. (1) An inquiry by a Special Inquiry Officer shall be
separate and apart from the public but in the presence of the
person concerned wherever practicable.
(2) The person concerned, if he so desires and at his own
expense, has the right to obtain and to be represented by
counsel at his hearing.
(3) The Special Inquiry Officer may at the hearing receive
and base his decision upon evidence considered credible or
trustworthy by him in the circumstances of each case.
(4) Where an inquiry relates to a person seeking to come
into Canada, the burden of proving that he is not prohibited
from coming into Canada rests upon him.
Sections 22 to 29 inclusive are under the head
ing "inquiries". Section 22 requires an immigra
tion officer where he is of the opinion that it would
or may be contrary to the Act or the Regulations
to grant admission to any person seeking admis
sion to Canada, shall report him to a Special
Inquiry Officer.
I am of the opinion that section 26 is of general
application and applies to all persons, not being
Canadian citizens, who seek admission to Canada
and that a further examination under section
23 (1) by Special Inquiry Officer of persons from
the United States or St. Pierre and Miquelon who
seek admission to Canada is an inquiry and that
all of the provisions in section 26 including subsec
tion 4 are applicable to such persons.
While I am of the opinion that the Immigration
Appeal Board did not err in law in deciding the
appeal in the absence of evidence that what the
appellant admitted having done was a crime
involving moral turpitude under the law of her
country of domicile, where the admitted acts were
done, I think that Parliament having provided by
section 5(k), a special category for persons who
had committed acts that were a breach of the
Narcotic Control Act of Canada, that both the
Special Inquiry Officer and the Immigration
Appeal Board erred in failing to consider whether
the provision of section 5(k)—had they done so it
might well have been unnecessary for them to
resolve the troublesome and controversial problem
of whether the acts admitted by the appellant
constituted a crime involving moral turpitude
under the more general subsection 5(d).
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.