A-19-75
Yuk-King Chan (Applicant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Thurlow and Ryan JJ. and
MacKay D.J.—Toronto, April 3 and 4, 1975.
Judicial review—Immigration—Applicant applying for
extension of non-immigrant student status—Admitting
theft—Deportation order—Whether Officer should have
adjourned inquiry to enable applicant to seek Minister's per-
mit—Whether crime involving moral turpitude—Effect of
absolute discharge—Immigration Act, R.S.C. 1970, c. I-2, ss.
5(d), 7(3), 8(1).
Applicant, applying for extension of non-immigrant student
status admitted having committed theft. After a section 22
report and an inquiry, she was ordered deported, as a person
who had admitted commission of a crime involving moral
turpitude. Applicant appeals.
Held, the appeal is dismissed. Assuming as applicant has
alleged, that a discretion to adjourn the hearing to permit
applicant to apply for a Minister's permit rested in the Special
Inquiry Officer, it cannot be said that he refused to exercise it,
or acted wrongly in refusing an adjournment. In fact, nearly
three months have elapsed since applicant's admission. As to
the question of "moral turpitude", no circumstances exist
which could lead to the conclusion that the crime did not
involve moral turpitude. As to the effect of the absolute dis
charge, the basis for applying section 5(d) is not the conviction
but the admission of having committed the crime.
Button v. Minister of Manpower and Immigration [1975]
F.C. 277, followed.
APPEAL.
COUNSEL:
D. Cooke for applicant.
H. Erlichman for respondent.
SOLICITORS:
Trott, Artindale, West and Cooke, Toronto,
for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered orally in English by
THURLOW J.: The applicant came to Canada on
December 21, 1973 and was permitted entry as a
non-immigrant visitor for a period of three
months. In January 1974 she became a non-immi
grant student with permission to remain in Canada
until October 4, 1974. In the months that followed
she attended in succession three educational insti
tutions and applied herself well to her studies.
In October 1974, while pursuing a course of
study at Guelph University, she applied for an
extension of her non-immigrant student status but
on being examined in relation thereto by an immi
gration officer on October 15, 1974 she admitted
to him that on June 8, 1974 she had stolen two
pairs of sun glasses valued at $18.00, one tube of
glue and one tube of toothpaste from a store in
Waterloo, Ontario. The examination was conduct
ed in the presence of her legal counsel and there is
no reason to doubt that the admission was made. A
report under section 22 was made on December 4,
1974, and an inquiry was held on January 8, 1975
at the conclusion of which an order for the depor
tation of the applicant was made on the ground
that she was a member of the prohibited class
described in paragraph 5(d) of the Immigration
Act in that she was a person who admits having
committed a crime involving moral turpitude and
whose admission to Canada has not been author
ized by the Governor-in-Council.
The applicant's first attack on this order was
that the Special Inquiry Officer refused to exercise
his jurisdiction to adjourn the inquiry to enable the
applicant to make an application to the Minister
for a permit under subsection 8(1) or, alternative
ly, improperly exercised his discretion by not
adjourning the inquiry for that purpose. Such an
adjournment had been requested by counsel, who
had led evidence of the serious effects the making
of a deportation order might be expected to have
on the applicant on her return to her home
country.
The transcript of proceedings at the inquiry
indicates that following counsel's request there was
a "pause", the duration of which is not stated, and
that thereafter the Special Inquiry Officer
addressed the applicant saying, inter alia,
The officer who reported you apparently did not first seek a
Minister's Permit for you, or, if he did, it must have been
refused, because he did report you.
During the course of this hearing there has not been any new
testimony come forth which, in my decision, warrants applica
tion for a Minister's Permit on behalf of yourself, and therefore
my decision is as follows.
Assuming that a discretion rested in the Special
Inquiry Officer to adjourn the hearing to permit
such an application to be made, in my opinion, it
cannot be said either that the Special Inquiry
Officer refused to consider exercising it or that he
acted on any wrong principle in refusing an
adjournment. The statements I have cited show
that the Special Inquiry Officer did consider the
matter. Moreover nearly three months had already
elapsed since the admission had been made to the
examining officer.
The second submission was that the crime com
mitted by the applicant was not one "involving
moral turpitude" within the meaning of section
5(d) of the Act. It was said that to ascertain
whether a crime involves moral turpitude it is
necessary to look at the circumstances surrounding
the commission of the particular crime. The record
shows that the Special Inquiry Officer took the
view that theft is per se a crime involving moral
turpitude and that he did not consider the circum
stances of the particular crime.
The question of the correct interpretation of the
expression "crime involving moral turpitude" was
carefully analyzed by the Chief Justice in Appen
dix "B" to his reasons for judgment in Button v.
Minister of Manpower and Immigration [1975]
F.C. 277, wherein an interpretation consistent with
that adopted in this case by the Special Inquiry
Officer was proposed, and if it were necessary to
reach a concluded opinion for the purposes of this
case as at present advised I would be inclined for
the reasons given by the Chief Justice to adopt his
interpretation. However, in my view, it is unneces
sary for the present purpose to finally resolve the
question because, regardless of how much one may
deplore the unusually severe consequences which
the applicant's blunder has caused her, in my
opinion, no circumstances were established which
could lead to the conclusion that her crime, minor
as it was, was not one involving moral turpitude.
The final submission, as I understood it, was
that because, following her plea of guilty to the
charge of theft, she had been given an absolute
discharge under the provisions of the Criminal
Code and is therefore to be considered as not
having been convicted, the applicant's admission to
the examining officer of having committed the
crime cannot be used as a basis for excluding her
from Canada.
It must be remembered that the applicant
though in Canada, on applying for permission to
remain as a non-immigrant student following the
termination of her earlier permission, is, under
subsection 7(3), to be deemed for the purpose of
the examination and all other purposes of the Act
to be a person seeking admission to Canada. Such
a person has no right to enter Canada but may be
permitted to enter or refused entry in accordance
with what is prescribed by the statute. One of its
provisions is section 5(d). That provision, as I read
it, is not penal in nature but simply prohibits the
entry of the persons therein mentioned. It seems to
me to follow that the fact of the criminal proceed
ings and the absolute discharge are irrelevant
where the basis for the application of section 5(d)
is not that of the person concerned having been
convicted of a crime involving moral turpitude but
that of the person concerned being a person who
admits having committed such a crime.
The application accordingly fails and must be
dismissed.
* * *
MACKAY D.J. concurred.
* * *
The following are the reasons for judgment
delivered orally in English by
RYAN J.: I agree. I would, however, merely
indicate with great respect that I have not at
present formed a settled view on certain of the
important questions on the meaning of "a crime
involving moral turpitude" discussed by Chief Jus
tice Jackett in the Button case, particularly on the
question whether it is the intrinsic nature of the
crime as defined or the circumstances in which it
was done that is decisive.
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.