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