A-224-80
Donald Wayne Wilson (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Heald and Le Dain JJ. and
MacKay D.J.—Toronto, May 16; Ottawa, June
18, 1980.
Judicial review — Immigration — Deportation — Applica
tion to review and set aside a deportation order, based upon
finding that applicant was a member of an inadmissible class
pursuant to para. 19(1)(c) of the Immigration Act, 1976 —
Applicant convicted of an offence outside of Canada —
Offence deemed to be equivalent of an offence under para.
320(1)(c) of the Criminal Code punishable by imprisonment
for ten years — Applicant submits that the equivalent offence
in the Code is para. 320(1)(a) — Whether the offences in
paras. 320(1)(a) and (c) are substantially different — Appeal
allowed — Immigration Act, 1976, S.C. 1976-77, c. 52, ss.
19(1)(c), 27(2)(a),(d) — Criminal Code, R.S.C. 1970, c. C-34,
as amended by S.C. 1974-75-76, c. 93, ss. 31, 320(1)(a),(c) —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Application to review and set aside a deportation order.
Adjudicator ordered applicant to be deported because he was a
person described in paragraphs 27(2)(a) and (d) of the Immi
gration Act, and would have been denied entry to Canada as a
member of an inadmissible class pursuant to paragraph
19(1)(c). Applicant had been convicted of offences under the
Criminal Code, and had also been convicted in the United
States of the offence of writing an N.S.F. cheque on the bank
account of his Company. Adjudicator found that the equivalent
section in the Criminal Code for the latter offence was para
graph 320(1)(c), for which a maximum term of imprisonment
of ten years may be imposed. Applicant submits that the
equivalent section of the Code is paragraph 320(1)(a). The
question is whether the offences described in paragraphs
320(1)(a) and (c) are substantially different.
Held, the section 28 application is allowed. The offences
described in paragraphs 320(1)(a) and (c) and the penalties are
substantially different. Paragraph 320(1)(a) refers to a false
pretence, which is defined as a representation of a matter of
fact either present or past, made by words or otherwise. Para
graph 320(1)(c) refers to a false statement in writing. While a
cheque can be said to be a representation in writing, it cannot
be said to be a statement in writing within the meaning of
paragraph 320(1)(c). Paragraph 320(1)(c) contemplates a false
statement in writing in addition to the N.S.F. cheque, the
purpose of which is to procure acceptance of the N.S.F. cheque.
Since paragraph 320(1)(a) describes the proper offence rather
than paragraph 320(1)(c) and since the maximum term of
imprisonment under paragraph 320(1)(a) is two years rather
than 10 years, paragraph 19(1)(c) has no application.
Adjudicator had jurisdiction to issue either a departure notice
or a deportation order after complying with the provisions of
subsection 32(6).
R. v. Lyons [1939] 3 D.L.R. 625, distinguished. R. v.
Cohen (1912) 5 D.L.R. 437, applied.
APPLICATION for judicial review.
COUNSEL:
S. I. Lovas for applicant.
G. R. Garton for respondent.
SOLICITORS:
S. I. Lovas, 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 the deportation order made
against the applicant on March 27, 1980. The
relevant portions of the deportation order in ques
tion read as follows:
I hereby order you to be deported because you are a person
described in paragraphs 27(2)(a) and 27(2)(d) of the Immigra
tion Act, 1976. You are a person in Canada other than a
Canadian Citizen or a permanent resident who if you were
applying for entry would not be granted entry by reason of
being a member of an inadmissible class described in paragraph
19(1)(c). You are a person who has been convicted of an
offence outside of Canada, namely N.S.F. cheques in the State
of Florida in the United States of America, an offence, which if
committed in Canada would constitute an offence that may be
punishable under the Criminal Code, Section 320(1)(c) that is
false pretences for which a maximum term of imprisonment of
ten years may be imposed.
You are a person other than a Canadian Citizen or a perma
nent resident who has been convicted of offences under the
Criminal Code on the 25 February 1980 in the Provence [sic]
of Ontario namely, unlawful possession of goods not exceeding
$200.00 and impaired driving.
So far as the grounds relating to paragraph
27(2)(d) of the Immigration Act, 1976, S.C. 1976-
77, c. 52 are concerned', I am of the view that the
Adjudicator, on the evidence before him, quite
properly found the applicant to be a person
described in paragraph 27(2)(d) since the evidence
clearly establishes his convictions on February 25,
1980 of two offences under the Criminal Code,
R.S.C. 1970, c. C-34, as amended by S.C. 1974-
75-76, c. 93, s. 31, i.e., (1) unlawful possession of
goods not exceeding two hundred dollars ($200);
and (2) impaired driving.
However, so far as the grounds relating to para
graph 27(2)(a) of the Act are concerned 2 , I have
reached a different conclusion. In disposing of the
paragraph 27(2)(a) grounds, the Adjudicator
stated as follows (Transcript, pp. 29 and 30):
With regard to 27(2)(a) of the Immigration Act and in particu
lar to the allegation that you fall within 27(2)(a) because you
are a person as described in 19(1)(c) of the Immigration Act, I
have taken into consideration the following factors: You have
testified at this inquiry that in 1978 you wrote a cheque on the
bank account of your company, that being L & B Carpet
Laying Service in the amount of $176.
MR. WILSON: And some odd cents. I don't remember. It was
something like 800.
ADJUDICATOR: Then this cheque was given to a second party in
payment for or partial payment for a carpet which you
received. In view of that set of circumstances, I am of the
opinion that the conviction in 1978 for insufficient funds relat
ing to cheques is equivalent to 320(1)(c) of the Criminal Code.
320(1)(c) refers to knowingly makes or causes to be made
directly or indirectly false statement in writing with the intent
that it should be relied on with respect to financial condition or
means or ability to pay of themselves or any person, firm or
corporation that he is entrusted in or that he has for the
purpose of procurring [sic] in any form whatever, whether for
' Said paragraph 27(2)(d) reads as follows:
27....
(2) Where an immigration officer or peace officer has in
his possession information indicating that a person in
Canada, other than a Canadian citizen or a permanent
resident, is a person who
(d) has been convicted of an offence under the Criminal
Code or of an offence that may be punishable by way of
indictment under any Act of Parliament other than the
Criminal Code or this Act,
2 Said paragraph 27(2)(a) reads as follows:
27....
(2) Where an immigration officer or peace officer has in
his possession information indicating that a person in
Canada, other than a Canadian citizen or a permanent
resident, is a person who
(a) if he were applying for entry, would not or might not
be granted entry by reason of his being a member of an
inadmissible class other than an inadmissible class
described in paragraph 19(1)(h) or 19(2)(c),
his benefit or for the benefit of that person's firm or corpora
tion and it lists six different sections. One of those sections, 2,
refers to the payment of money. I am of the opinion that
because you produced this cheque in return for carpet that the
equivalent offence or conviction in Canada would fall within
320(1)(c). The punishment or term of imprisonment which
may be imposed pursuant to 320(1)(c) lies in 320(3) and states:
Everyone who commits an offence under paragraph (1)(b), (c)
or (d) is guilty of an indictable offence and is liable to
imprisonment for ten years. Having equivalenced N.S.F.
cheques to false pretenses and, in particular, to 320(1)(c), 1
find that you are a person who has been convicted of an offence
that if committed in Canada, constitutes or if committed
ourside [sic] of Canada, would constitute an offence that may
be punishable under the Criminal Code for which a maximum
term of imprisonment of ten years of [sic] more may be
imposed.
You have not satisfied the Governor-in-Council that you have
rehabilitated yourself and at least five years have not lapsed
since the termination of the sentence imposed for that offence.
Therefore, 1 find you to be a person described in 19(1)(c). In
other words, throught [sic] the vehicle of 27(2)(a), if you were
applying for entry, you would not or might not be granted entry
by reason of being a member of an inadmissible class described
in paragraph 19(1)(c), that is, you are a person who has been
convicted of an offence that if committed outside of Canada
would constitute an offence that may be punishable under any
Act or [sic] Parliament for which a maximum term of impris
onment of 10 years or more may be imposed.
The provisions of paragraph 19(1)(c) of the Immi
gration Act, 1976, referred to supra by the
Adjudicator read 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;
The conviction in 1978 in the U.S.A. relied on by
the Adjudicator to support a finding that para
graph 19(1)(c) applied to this applicant, involved
an N.S.F. cheque written for the sum of $176.80
on a company known as L & B Carpet Laying
Service, the applicant being one of two owners of
that Company. The Adjudicator was of the opin
ion that the equivalent section in the Criminal
Code is paragraph 320(1)(c). Counsel for the
applicant submitted rather, that the equivalent
section of the Code is paragraph 320(1)(a). Sec
tion 320 reads as follows:
320. (1) Every one commits an offence who
(a) by a false pretence, whether directly or through the
medium of a contract obtained by a false pretence, obtains
anything in respect of which the offence of theft may be
committed or causes it to be delivered to another person;
(b) obtains credit by a false pretence or by fraud;
(c) knowingly makes or causes to be made, directly or
indirectly, a false statement in writing with intent that it
should be relied upon, with respect to the financial condition
or means or ability to pay of himself or any person, firm or
corporation that he is interested in or that he acts for, for the
purpose of procuring, in any form whatever, whether for his
benefit or the benefit of that person, firm or corporation,
(i) the delivery of personal property,
(ii) the payment of money,
(iii) the making of a loan,
(iv) the extension of credit,
(v) the discount of an account receivable, or
(vi) the making, accepting, discounting or endorsing of a
bill of exchange, cheque, draft, or promissory note; or
(d) knowing that a false statement in writing has been made
with respect to the financial condition or means or ability to
pay of himself or another person, firm or corporation that he
is interested in or that he acts for, procures upon the faith of
that statement, whether for his benefit or for the benefit of
that person, firm or corporation, anything mentioned in
subparagraphs (c)(i) to (vi).
(2) Every one who commits an offence under paragraph
(1)(a)
(a) is guilty of an indictable offence and is liable to imprison
ment for ten years, where the property obtained is a testa
mentary instrument or where the value of what is obtained
exceeds two hundred dollars; or
(b) is guilty
(i) of an indictable offence and is liable to imprisonment
for two years, or
(ii) of an offence punishable on summary conviction,
where the value of what is obtained does not exceed two
hundred dollars.
(3) Every one who commits an offence under paragraph
(1)(b), (c) or (d) is guilty of an indictable offence and is liable
to imprisonment for ten years.
(4) Where, in proceedings under paragraph (1)(a), it is
shown that anything was obtained by the accused by means of a
cheque that, when presented for payment within a reasonable
time, was dishonoured on the ground that no funds or insuffi
cient funds were on deposit to the credit of the accused in the
bank or other institution on which the cheque was drawn, it
shall be presumed to have been obtained by a false pretence,
unless the court is satisfied by evidence that when the accused
issued the cheque he had reasonable grounds to believe that it
would be honoured if presented for payment within a reason
able time after it was issued.
(5) In this section, "cheque" includes, in addition to its
ordinary meaning, a bill of exchange drawn upon any institu
tion that makes it a business practice to honour bills of
exchange or any particular kind thereof drawn upon it by
depositors.
In my view, the Adjudicator erred in finding
equivalency in paragraph 320(1)(c). I agree with
counsel for the applicant that the equivalent sec
tion is paragraph 320(1)(a) and that subsection
(4) of said section 320 indicates that the section
contemplates prosecution for N.S.F. cheques
under paragraph (1)(a). Furthermore, a perusal of
the criminal jurisprudence reveals innumerable
prosecutions over the years under paragraph
320(1)(a) and its predecessor paragraphs for
N.S.F. cheques. By contrast, I was unable to dis
cover any prosecutions for N.S.F. cheques under
paragraph 320(1)(c) and its predecessor para
graphs. There are, however, three decisions which,
in my view, are instructive in deciding this issue.
The first decision to which I wish to refer is the
decision of the Saskatchewan Court of Appeal in
the case of Rex v. Lyons 3 . In that case, the
respondent was charged with four counts arising
out of his application for and his acceptance of
government relief. The first count was for making
a false statement in writing contrary to paragraph
407(2)(a), the predecessor paragraph to the
present paragraph 320(1)(c). The second count
was obtaining goods by false pretences contrary to
section 405, the predecessor section to the present
paragraph 320(1)(a). The other two counts related
to stealing various quantities of fodder and hay
and have no relevance to the present problem. On
the paragraph 407(2)(a) count and the section 405
count, the Trial Judge directed the jury to return a
verdict of not guilty on both counts. The Crown's
appeal was allowed and a new trial directed on
these counts. In discussing the nature of the
offence contemplated by paragraph 407(2)(a),
Chief Justice Turgeon said at page 627:
3 [1939] 3 D.L.R. 625.
The language of the statutory provision is very broad. It
extends to all false written statements made "for the purpose of
procuring in any form whatsoever ... the delivery of personal
property, the payment of cash, the making of a loan or credit,
etc."
In that case, the written statement made by the
respondent took the form of a statutory declara
tion in which he made a number of statements
about his lack of sufficient material resources to
provide necessaries for himself and his dependants,
including particulars thereof. It is also interesting
to note that the Lyons case (supra) appears to be
the first reported decision on subsection 407(2) of
the Criminal Code.
The second case which is, in my view, helpful in
resolving this matter is the case of Rex v. Cohen 4 .
In that case, it was decided that an indictment
charging an offence under section 405 of the Code
(the predecessor section to paragraph 320(1)(a))
of obtaining money by false pretences, upon which
a true bill has been found by the grand jury,
cannot be amended at the close of the case for the
Crown so as to charge an offence under section
405A of obtaining credit by false pretences (the
predecessor section to paragraph 320(1)(b)), inas
much as the two offences are not substantially of
the same nature.
While the Cohen case (supra) addresses itself to
the question as to whether or not the offences
described in the predecessor paragraphs to para
graphs 320(1)(a) and (b) are substantially differ
ent, whereas in the case at bar, the question for
determination is whether the offences described in
paragraphs 320(1)(a) and (c) are substantially
different, the reasoning adopted in that case by the
Justices who wrote reasons, is, in my view, instruc
tive. Maclaren J.A. in describing the two offences
stated at page 442:
Although secs. 405 and 405A both relate to false pretences,
yet they differ. The former relates exclusively to obtaining
money, chattels, etc., something "capable of being stolen," the
latter exclusively to the obtaining of credit; the punishment in
the former case may be three years' imprisonment, in the latter
the maximum is one year; the former is an adaptation of sec. 86
of the English Larceny Act; the latter is derived from sec. 13 of
the English Debtors Act, 1869 (32 & 33 Vict. ch. 62).
If the amendment had been simply the substitution of
another article capable of being stolen, as, for instance, the
4 (1912) 5 D.L.R. 437—Ontario Court of Appeal.
substitution of promissory notes or other valuable securities for
the "five thousand dollars," the transaction being the same as
that disclosed in the preliminary examination, to use the lan
guage of Wurtele, J., it would seem to me that the amendment
might have been upheld.
And Meredith J.A. stated at page 443:
The question here is one very different from that, however; it
is, whether the change of an indictment from one of obtaining
money to one of obtaining credit by false pretences is an
amendment which the law permits; and that question is solved,
in my opinion, when the question whether the two charges are
substantially for an offence of the same kind is truly answered.
If the charge were of obtaining one thing capable of being
stolen, within the meaning of sec. 405 of the Criminal Code,
and the change were to something else of the same nature, the
amendment might well be made; whether it ought to be would,
of course, be another question. But, wide as the power of
amendment is, it cannot comprehend a change from an offence
of one nature to one of another ....
And Magee J.A. stated at page 445:
Here it is a matter of such substance which is altered that the
offence sought to be charged by the amendment had been held
in Regina v. Boyd not to be one punishable under an indictment
such as this was when assented to by the grand jury. Such a
charge has, therefore, not been authorised by them. It is an
offence under another and later provision of the law and not
subject to the same punishment.
Relating the above cited jurisprudence to the cir
cumstances in the case at bar, 1 have concluded
that, as was the case with paragraphs 320(1)(a)
and (b), here also, when dealing with paragraphs
320(1)(a) and (c), the proper view is that the
offences described in the two paragraphs are sub
stantially different. The penalties are substantially
different. The maximum penalty under paragraph
320(1)(a) is imprisonment for two years (where,
as here, the value of what is obtained does not
exceed two hundred dollars ($200)). The max
imum penalty under paragraph 320(1)(c) is
imprisonment for ten years. As stated earlier, the
only charges I have been able to discover under
paragraph 320(1)(c) or its predecessor sections are
cases where a lengthy and detailed statement in
writing was made, dealing with financial represen
tations related either to the obtaining of govern
ment assistance or a bank loan 5 .
5 See: Rex v. Cohen (1916) 25 D.L.R. 510.
Paragraph 320(1)(a) refers to a false pretence.
Subsection 319(1) defines a false pretence as ".. .
a representation of a matter of fact either present
or past, made by words or otherwise . ..". Para
graph 320(1)(c) refers to ". .. a false statement in
writing ...".
An N.S.F. cheque can be said, in the appropri
ate circumstances, to be a representation of the
fact that the writer of the cheque is possessed of
sufficient funds standing to his credit in the bank
upon which the cheque is drawn, to enable that
bank to pay the amount shown on the cheque to
the payee thereof. Thus, while such a cheque can
be said to be a representation in writing, it cannot,
in my view, be said to be a statement in writing
within the meaning of paragraph 320(1)(c). I say
this because if the words in paragraph 320(1) (c)
which apply to the facts in this case are isolated,
the paragraph would read as follows: "... a false
statement in writing . .. with respect to the ...
ability to pay of ... any ... corporation that he is
interested in ... for the purpose of procuring ...
for his benefit ..., (vi) the ... accepting ... of a
cheque;". Read in this manner, it is 'evident
that paragraph 320(1)(c) contemplates a false
statement in writing in addition to the N.S.F.
cheque, the purpose of which is to procure the
acceptance of the N.S.F. cheque.
Accordingly, since paragraph 320(1)(a)
describes the proper offence rather than paragraph
320(1)(c), and since the maximum term of impris
onment, in the circumstances of this case, under
paragraph 320(1) (a) is two years rather than ten
years, it follows that paragraph 19(1)(c) can have
no application and the Adjudicator erred in find
ing that it did apply. Because of this finding, the
Adjudicator held that, pursuant to subsection
32(6), he had no jurisdiction to issue a departure
notice 6 . Once it is determined that paragraph
6 Subsection 32(6) of the Immigration Act, 1976 reads as
follows:
32....
(6) Where an adjudicator decides that a person who is the
subject of an inquiry is a person described in subsection
27(2), he shall, subject to subsections 45(1) and 47(3), make
a deportation order against the person unless, in the case of a
person other than a person described in paragraph 19(1)(c),
(d), (e), (j) or (g) or 27(2)(c), (h) or (1), he is satisfied that
(a) having regard to all the circumstances of the case, a
deportation order ought not to be made against the person,
and
(b) the person will leave Canada on or before a date
specified by the adjudicator,
in which case he shall issue a departure notice to the person
19(1) (c) does not apply here, it is clear that the
Adjudicator had jurisdiction to issue either a
departure notice or a deportation order after com
plying with the provisions of subsection 32(6)
(supra). I would therefore allow the section 28
application, set aside the deportation order and
refer the matter back to the Adjudicator for rede-
termination of the question as to whether a depor
tation order or a departure notice should issue
pursuant to the provisions of subsection 32(6)
(supra).
* * *
LE DAIN J.: I agree.
* *
MACKAY D.J.: I agree.
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.