A-235-78
Bruce Dale Robertson (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Heald and Ryan JJ. and
MacKay D.J.—Toronto, June 14 and 15; Ottawa,
September 11, 1978.
Judicial review — Immigration — Deportation order issued
against applicant — Applicant convicted in 1971 under Crimi
nal Code for an offence punishable at that time by a maximum
term of ten years' imprisonment — Provision in Code subse
quently amended to provide for a maximum term of imprison
ment of less than ten years — Whether or not deportation
order, made pursuant to s. 19(1)(c) of the Immigration Act,
1976, should be set aside — Deportation order set aside —
Immigration Act, 1976, S.C. 1976-77, c. 52, s. 19(1)(c) —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
Alan D. Levy for applicant.
B. Segal for respondent.
SOLICITORS:
Alan D. Levy, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is a section 28 application to
review and set aside a deportation order made
against the applicant, by Robert Parkes, an
adjudicator under the Immigration Act, 1976,
S.C. 1976-77, c. 52, on May 12, 1978.
Following oral argument, the Court directed
counsel to submit written argument on the ques
tion as to whether the adjudicator erred in law in
applying the provisions of section 19(1)(c) of the
Immigration Act, 1976, to the facts and circum
stances of this case. Written argument has now
been received and after a consideration of same
along with the oral submissions of counsel at the
hearing, I have concluded that the adjudicator did,
indeed, err in law in applying the provisions of said
section 19(1)(c) 1 to the case at bar.
The applicant was convicted of possession of
stolen property in 1971 and was sentenced to a
term of probation for six months. The stolen prop
erty in question was valued at more than $50, and
pursuant to section 313(a) of the Criminal Code,
as it then was, the "maximum term of imprison
ment" for that offence was ten years. Section
313(a) was later amended to provide a maximum
term of imprisonment of ten years only when the
value of the stolen property exceeds $200. In this
case, there is no issue between the parties that the
value of the goods in question was clearly less than
$200, the evidence being that the retail value
would not exceed $150, and that the wholesale
value was approximately $45 to $60.
It is also clear that the maximum punishment
for possession of this stolen property, if the offence
had been committed in 1978, would be imprison
ment for two years under the provisions of section
313(b) of the Criminal Code.
Section 19(1)(c) of the Immigration Act, 1976
came into effect on April 10, 1978. It refers to
"persons who have been convicted of an offence
that .. . constitutes . .. an offence . ..". [The
underlining is mine.]
In my opinion, section 19(1)(c) can only be used
to deport a person where that person has been
convicted of an offence for which the maximum
punishment at the date of the deportation order is
ten years. The word "constitutes" in the present
tense supports this view. Section 10 of the Inter
pretation Act, R.S.C. 1970, c. I-23 is also suppor
tive. It reads as follows:
' 19. (1) No person shall be granted admission if he is a
member of any of the following classes:
(c) persons who have been convicted of an offence that, if
committed in Canada, constitutes or, if committed outside
Canada, would constitute an offence that may be punishable
under any Act of Parliament and for which a maximum term
of imprisonment of ten years or more may be imposed,
except persons who have satisfied the Governor in Council
that they have rehabilitated themselves and that at least five
years have elapsed since the termination of the sentence
imposed for the offence;
10. The law shall be considered as always speaking, and
whenever a matter or thing is expressed in the present tense, it
shall be applied to the circumstances as they arise, so that
effect may be given to the enactment and every part thereof
according to its true spirit, intent and meaning.
Accordingly, and for the above reasons, I am of
the opinion that subject deportation order must be
set aside.
* * *
RYAN J.: I concur.
* * *
MACKAY D.J.: I concur.
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.