A-212-74
Vernon Morris (Applicant)
v. _
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Thurlow, J., MacKay and
Sweet D.JJ.—Toronto, October 3 and Novem-
ber 18, 1974.
Judicial review—Immigration—Order for special inquiry—
Withdrawal of application for admission—Subsequent
request by applicant for inquiry—Renewal of withdrawal
request during inquiry—Jurisdiction of Special Inquiry Offi
cer not affected—Deportation order affirmed—Immigration
Act, R.S.C. 1970, c. I-2, ss. 5(p), 14, 18, 19, 22, 23, 26 and
27—Immigration Act, R.S.C. 1952, c. 325, ss. 19, 20, 23,
24, 26—Federal Court Act, s. 28.
The applicant, seeking entry to Canada from Trinidad as a
non-immigrant visitor, was the subject of a report under
section 22 of the Immigration Act; a Special Inquiry Officer
directed that the applicant be detained for inquiry. On the
following day, a second Special Inquiry Officer was
assigned to conduct the inquiry. The applicant then signed a
letter asking that he might withdraw his application for
admission to Canada. Later he indicated his desire for an
inquiry. On the following day, the inquiry re-commenced
before a third Special Inquiry Officer who heard evidence.
The Special Inquiry Officer gave reasons for his opinion
that the applicant was not a bona fide non-immigrant within
section 5(p) of the Act. Denying requests for adjournment
and for permission to withdraw from the country voluntari
ly, the Special Inquiry Officer ordered deportation. The
applicant sought review of the decision under section 28 of
the Federal Court Act.
Held, (Sweet DJ. dissenting) the application should be
dismissed.
Per Thurlow J. (MacKay DJ. concurring): When the
Special Inquiry Officer received a report on the applicant as
a person "seeking to come to Canada" (the expression
found in sections 19(1), 22, 23(1) and 27 of the Immigration
Act) he had authority to order him detained for inquiry
under section 23(2). Once this order was made on the first
day, it was unaffected by steps taken on the second day.
When the applicant came before the Special Inquiry Officer
on the third day, that Officer had jurisdiction over the
applicant and did not lose it when the applicant stated that
he no longer sought to come to Canada. After the Special
Inquiry Officer's decision, under section 27(1) that the
applicant was a member of a prohibited class within section
5(p) of the Act, it was his duty to order deportation under
section 27(3) and further detain the applicant under section
14(2).
Moore v. Minister of Manpower and Immigration [1968]
S.C.R. 839, applied.
Per Sweet D.J. (dissenting): Before rendering his decision
at the conclusion of the inquiry, the Special Inquiry Officer
was made aware that the applicant was no longer a person
seeking to come into Canada. There was no need for him to
determine whether the applicant was entitled to entry. The
officer had lost jurisdiction to make a decision so he had
lost jurisdiction to order deportation.
Moore v. Minister of Manpower and Immigration
(supra), distinguished.
JUDICIAL review.
COUNSEL:
T. J. O'Sullivan for applicant.
K. F. Braid for respondent.
SOLICITORS:
Parkdale Community Legal Services,
Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered in English by
THURLOW J.: This is an application to review
and set aside an order for the deportation of the
applicant made by Carmen DeCarlo, a Special
Inquiry Officer, under the Immigration Act fol
lowing an inquiry held on July 27, 1974. The
question raised by the application is whether the
Special Inquiry Officer lost jurisdiction to com
plete the inquiry and make a deportation order
when in the course of the inquiry the applicant
announced that he no longer sought to enter
Canada and requested that he be allowed to
leave.
The applicant arrived at Toronto International
Airport from Trinidad on July 25, 1974 and
sought entry as a non-immigrant visitor. The
immigration officer who examined him, how
ever, was not satisfied that he was a bona fide
non-immigrant and proceeded to make a report
under section 22 of the Immigration Act. That
report was considered by C. A. Page, a Special
Inquiry Officer, who directed that the applicant
be detained for an inquiry to be held at 0800
o'clock the following morning. The evidence
shows that another Special Inquiry Officer, Ian
Williams, was assigned to conduct the inquiry
but at some stage, following a telephone call to
a person in New York, the applicant indicated
that he wished to withdraw his application for
admission to Canada and signed a letter to that
effect which included an agreement to remain
voluntarily in the Canadian Immigration Offices
until his return flight could be arranged. This
was in accord with a practice of the Depart
ment. The applicant was thereupon returned to
the local detention centre. However, during the
afternoon a Mr. Whitman Solomon arrived at
the airport and had a conversation with the
applicant following which the applicant indicat
ed to Mr. Williams that he wanted an inquiry.
The inquiry was then rescheduled for the fol
lowing morning at 0900 o'clock. It was under
stood that Mr. Solomon was to appear as the
applicant's counsel. The inquiry was re-com
menced on July 27 before Mr. DeCarlo. The
applicant was present with a Mr. Hoffe of Park-
dale Community Legal Services as his counsel.
Mr. Solomon did not attend.
The Special Inquiry Officer proceeded to
question the applicant on formal matters and
matters pertaining to his admissibility to Canada
and then called Mr. Williams to give evidence
respecting conversations he had had with the
applicant and what had transpired the previous
day. The witness was cross-examined by coun
sel for the applicant. Thereafter, in the course
of further extensive questioning of the applicant
by the Special Inquiry Officer in an obvious
effort to test the credibility of the applicant's
answers, counsel for the applicant intervened as
follows:
Mr. DeCarlo, at this point I would like to mention that we
have had a lengthy resumé of the details surrounding Mr.
Morris' family in Trinidad and his circumstances and the
circumstances of Miss Lockhart. I would like to state at this
time I don't object to your efforts to investigate Mr. Morris'
credibility and in fact I appreciate the efforts you are
making, however, I want to state it is our position at this
inquiry that since this inquiry was convened for the purpose
of determining whether he may be admitted to Canada, that
this discussion, as far as our position is concerned, becomes
irregular at this point. We are saying that Mr. Morris no
longer wishes to enter Canada and that he is not seeking to
come into Canada and the circumstances of his past activi
ties would be irrelevant to inquiring into. Our position is, he
wishes to leave, I wonder if something might be expedited—
if you want to continue your inquiry. As the witness has
stated, Mr. Morris was granted the opportunity to withdraw
and he had signed the withdrawal form on 25 July, 1974,
however, the same person also, testified he wanted to go to
inquiry upon the arrival of his friend.
A discussion ensued in which the applicant him
self asserted his desire to leave the country but
following argument by counsel the Special
Inquiry Officer rendered a decision in which he
gave reasons for his opinion that the applicant
was not a bona fide non-immigrant. Counsel
then requested an adjournment of the inquiry
and that the applicant be allowed to withdraw
voluntarily but this was denied and an order of
deportation was made.
The applicant's attack on the jurisdiction of
the Special Inquiry Officer to make the order
was founded on the wording "person seeking to
come into Canada" which appears in sections
19(1) and 22 1 of the Immigration Act, and on
similar expressions in sections 23 and 27 2 . The
submission was that subsection 23(2) does not
require the Special Inquiry Officer to detain for
inquiry an applicant in respect of whom he
receives a section 22 report but merely author
izes him to do so even when he does not admit
the applicant, that his jurisdiction to hold an
inquiry and order deportation is at all stages
dependent upon the applicant continuing to be a
person seeking admission to Canada and that
when during the course of the inquiry the appli
cant expressed his wish to leave Canada he was
no longer such a person and jurisdiction to
order his deportation was lost.
19. (1) Every person, including Canadian citizens and
persons with Canadian domicile, seeking to come into
Canada shall first appear before an immigration officer at a
port of entry or at such other place as may be designated by
an immigration officer in charge, for examination as to
whether he is or is not admissible to Canada or is a person
who may come into Canada as of right.
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.
2 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
ehalf, admit such person or let him come into Canada or
(Continued on next page)
It is to be observed that whether or not the
authority of the Special Inquiry Officer under
subsection 23(2) to detain the person for inquiry
is discretionary the present is a case in which
Mr. Page, a Special Inquiry Officer, had con
sidered the section 22 report and had directed
that the applicant be detained for an inquiry. I
see no reason to doubt that at that time the
applicant was in fact a person seeking to come
into Canada. The discretion, therefore, if there
was any, was exercised at that point in favour
of detaining the applicant for an inquiry. It is to
be doubted whether once this had occurred the
discretion could properly be re-exercised by Mr.
Williams on the following day either to counter
mand the direction or to restore it or give a
further direction to detain the applicant for an
inquiry, but in any event I do not think what
transpired on July 26 had any effect on Mr.
Page's direction. It amounted to no more than a
pause in the procedure accorded at the request
and for the accommodation of the applicant to
enable him to leave, as he then proposed to do.
(Continued from previous page)
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.
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.
{4) No decision rendered under this section prevents the
holding of a future inquiry if required by reason of a
subsequent report under section 18 or pursuant to
section 24.
It appears to me to follow that the Special
Inquiry Officer had jurisdiction to embark on
the inquiry and the only question that remains is
whether he lost that jurisdiction when the appli
cant through his counsel stated that he no longer
sought to come into Canada.
While the object of the inquiry is to determine
whether the person concerned is admissible
under the law (see subsections 11(2), 23(2) and
26(4)) and it seems incongruous that an inquiry
should proceed to a conclusion which results in
a deportation order against a person who at that
stage seeks only to leave, I do not think the
problem can be resolved by these consider
ations. Nor do I think that jurisdiction to contin
ue an inquiry to its conclusion and thereupon to
make a deportation order depends on the person
concerned continuing throughout the inquiry to
be a person who seeks to enter Canada. He
must be such a person initially to be the subject
of a section 22 report and it may be that if,
before the report has been considered by a
Special Inquiry Officer and a direction for
detention for inquiry is given, the person con
cerned asks to be allowed to leave, and thus no
longer seeks entry, that is a matter that the
Special Inquiry Officer could consider as war
ranting him in not directing detention. Indeed to
allow him to leave may be the reasonable course
to follow in some cases, in particular, where the
presence of the person concerned is the result
of a bona fide mistake as to entrance
requirements.
But there is no such status as that of a person
who is in fact in the country because he came
here seeking admission and who because he is
to be subjected to the procedures of the statute
no longer seeks admission. For the purposes of
the statutory scheme, in my opinion, he remains
in the category that he was in initially, that is to
say, that of a - person seeking admission and
once a direction has been made, or at any rate
once an inquiry has begun, it is, in my opinion,
not within his power to stop the inquiry by
changing his mind about seeking to enter
Canada. In this respect the direction of the
Special Inquiry Officer following consideration
of a section 22 report is, in my opinion, the
equivalent of the direction for an inquiry given
by the Director of Immigration upon consider
ation of a section 18 report and the reasoning of
Cartwright C.J. in Moore v. Minister of Man
power and Immigration' appears to me to apply
and to lead to the same conclusion.
The statutory scheme requires every person
seeking to come into Canada, that is to. say,
every person arriving from abroad, to appear
before an immigration officer at a port of entry
for examination as to whether he is or is not
admissible to Canada or is a person who may
come into Canada as of right. Upon such an
examination, the immigration officer may admit
him but is also authorized by section 22, if of
the opinion that the person may not be admis
sible, to detain him and to report him to a
Special Inquiry Officer. At this point a differ
ence in procedure is prescribed by section 23
for persons arriving from the United States or
from St. Pierre and Miquelon and for persons
arriving from other places.
In the case of persons arriving from the
United States or from St. Pierre and Miquelon,
the Special Inquiry Officer is simply to conduct
such further examination as he may deem
necessary and, subject to applicable regulations,
he is to admit the person or let him come into
Canada or deport him. The provision is
mandatory.
In the case of others, the Special Inquiry
Officer is empowered by subsection 23(2) to
admit or let the person come into Canada or
detain him for an immediate inquiry as to his
admissibility. Upon the inquiry being held the
Special Inquiry Officer, if of the opinion that
the person concerned is not admissible, is to
make an order for his deportation. In that event
subsection 14(2) authorizes the Special Inquiry
Officer to further detain the person.
It appears to me that this scheme of the
statute for preventing the entry to Canada of
inadmissible persons could be defeated and ren-
3 [1968] S.C.R. 839.
dered unworkable if the jurisdiction of a Special
Inquiry Officer to hold an inquiry and make a
deportation order could be terminated at the will
of the person in respect of whom an inquiry is
being held. Such an interpretation of the statute
would give rise to a situation in which the
person concerned, though inadmissible, would
be in fact in Canada but would no longer even
be subject to detention to ensure his departure.
This consideration suggests the necessity of
adopting an interpretation of the Act which will
make the system practical and effective and, in
my view, it affords a further reason pointing to
the conclusion I have expressed.
I would dismiss the application.
MACKAY D.J.: I concur.
* * *
The following are the reasons for judgment
delivered in English by
SWEET D.J.: This is an application under sec
tion 28 of the Federal Court Act to review and
set aside an order, dated 27th July 1974, of a
Special Inquiry Officer, that the applicant be
deported.
On July 25th, 1974, the applicant, a resident
of Trinidad, arrived at Toronto International
Airport seeking to come into Canada. There, he
was examined by an immigration officer. The
immigration officer reported him to a Special
Inquiry Officer pursuant to section 22 of the
Immigration Act.
Before an inquiry was held by a Special
Inquiry Officer the applicant signed a document
dated 26 July 1974 on "Manpower and Immi
gration" stationery containing:
I hereby voluntarily withdraw my application for admission
to Canada which was made on 25 July 1974 at Toronto
International Airport and I further agree to voluntarily
remain in the Canadian Immigration offices until my return
flight can be arranged. I fully realise that this may not be
practical until the following day.
There appears to be a departmental practice to
accept such a document prior to the commence-
ment of an inquiry from persons who, on seek
ing entry into Canada, are reported to a Special
Inquiry Officer but who do not wish an inquiry
and are prepared voluntarily to leave Canada.
In this case an inquiry was held on July 27,
1974. Mr. Ian Williams, a Special Inquiry Offi
cer, who said he was assigned to deal with this
case, but who was not the Special Inquiry Offi
cer conducting the inquiry, was a witness at the
inquiry. The following is from a transcript of his
evidence:
Later in the afternoon a gentleman by the name of Mr.
Whitman Solomon arrived at the airport. I believe I left a
note on the file indicating his name, address and telephone
number. Mr. Solomon indicated that he wished to speak to
Mr. Morris and he was then returned to the airport from the
hotel. They spoke at length and after some discussion, Mr.
Morris then indicated his desire to go to inquiry. This was
considered and agreed upon by Mr. Solomon, Mr. Morris
and myself with the proviso that Mr. Solomon would return
today, the 27th of July as counsel which was agreed on by
Mr. Morris and Mr. Solomon at 9 o'clock in the A.M.
The Special Inquiry Officer conducting the
inquiry was Mr. C. W. DeCarlo. Counsel for the
applicant was then Mr. Carter Hoppe. After the
inquiry had been in progress for some time, Mr.
Hoppe, according to the transcript, said:
I want to state it is our position at this inquiry that since this
inquiry was convened for the purpose of determining wheth
er he may be admitted to Canada, that this discussion, as far
as our position is concerned, becomes irregular at this point.
We are saying that Mr. Morris no longer wishes to enter
Canada and that he is not seeking to come into Canada and
the circumstances of his past activities would be irrelevant
to inquiring into. Our position is, he wishes to leave, I
wonder if something might be expedited—if you want to
continue your inquiry.
The transcript contains:
By Special Inquiry Officer:
One thing must be remembered counsel. Withdrawal is
a privilege granted by the Department for persons who
do not want to enter the country. Your client was
given the chance and he changed his mind. It was his
prerogative to go to inquiry. Section 23(2) of the Act
states persons who seek admission to Canada and is
not found admissible and upon whom a 22 report is
written, shall be taken to immediate inquiry. Mr.
Morris had things going pretty much his own way from
the start he was given withdrawal, he changed his mind
and wanted to go to inquiry. As I stated earlier, this
withdrawal is a privilege given to the person con
cerned. An S. I. O. has the right to conduct an inquiry
on every person. There is no legality—
By counsel:
If there is no legality in a withdrawal form, I wonder
why on departmental memoranda withdrawals are
printed up.
By Special Inquiry Officer:
For the sake of persons seeking to withdraw.
The following are from the transcript in
respect to subsequent proceedings at the
inquiry:
By Special Inquiry Officer:
This Inquiry is resumed.
Q. Mr. Morris, in the event a deportation order is made
against you, is there any reason why you should be
allowed to remain in Canada?
A. Well, I am going back home, I prepared to go back
home voluntary.
Q. In the event a deportation order is made against you, is
there any reason why you should not be deported?
A. I do want to get deported cause I voluntary said I am
going back home and I going back home.
By Counsel:
With respect, the reason for his giving those answers,
it is our position you have no jurisdiction to make a
deportation order because of the fact we do not want
to come into Canada. My client wants to go home.
By Special Inquiry Officer:
Counsel, seeing that a 22 report is written, a Special
Inquiry Officer is required to hold a board of inquiry. I
stated previously your client was allowed to withdraw.
He changed his mind after presumably having consult
ed with a friend and he decided to go to the inquiry at
that point.
Q. After being advised by me this morning, what is your
intention now with respect to whether or not you want
to come into Canada?
A. I don't want to stay in Canada. I prefer to go back
home and renew my course. I want to go back home.
By Special Inquiry Officer to the person concerned:
Q. Mr. Morris, do you have any further evidence to give,
or anything to help me make a decision?
A. I want to go back home. I do not want to be deported
back home because my first passport I have lost
through travelling as identification. They tell me if this
passport—that I cannot get next passport besides that
one if it is marked. I intend to graduate and work in
Trinidad. If I intend to leave Trinidad, I cannot leave
because my passport is no good.
Q. Why is your passport no good?
A. If I get deported which I do not want to get deported, I
want to go voluntary. If it is stamped, it will be
recognized. If I go home voluntary it will be recog
nized as a very useful passport.
Q. Do you have anything to say on your own behalf?
A. On my own behalf, I want to go back home voluntary.
Now at this present moment, I want to go home.
Notwithstanding all this the inquiry con
tinued.
According to the transcript, the Special Inqui
ry Officer said:
Mr. Morris on the basis of the evidence adduced at
this inquiry held here today, the 27th of July, 1974 at
Toronto International Airport, I have reached the deci
sion that you may not come into or remain in Canada
as of right in that:
(1) you are not a Canadian citizen;
(2) you are not a person having acquired Canadian
domicile and that
(3) you are a member of the prohibited class of per
sons described in paragraph 5(p) of the Immigration
Act in that, in my opinion, you are not a bona fide
non-immigrant.
I hereby order you to be detained and to be deported.
It is, I think quite clear from the transcript of
the hearing that after it commenced and before
its conclusion and before the Special Inquiry
Officer rendered his decision there was
unequivocal indication to the Special Inquiry
Officer on behalf of and by the applicant that he
withdrew his application for admission to
Canada and that he then no longer sought to
come into Canada. What is to be decided is
whether under such circumstances the Special
Inquiry Officer was empowered to order
deportation.
It is necessary to consider the general pur
pose and intent of the Immigration Act and the
wording of its relevant provisions.
Portions of relevant sections follow.
19. (1) Every person, including Canadian citizens and
persons with Canadian domicile, seeking to come into
Canada shall first appear before an immigration officer at a
port of entry or at such other place as may be designated by
an immigration officer in charge, for examination as to
whether he is or is not admissible to Canada, or is a person
who may come into Canada as of right.
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. (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.
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.
(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.
The basic purpose and intent of the Immigra
tion Act is to set out the circumstances under
which and the conditions on which persons may
come into and/or stay in Canada and provide
criteria for permitted entry depending on the
reason for desired entry. A corollary is the
prevention of entry and stay of those who do
not qualify. Provision is made in it for person
nel, machinery and remedial action to imple
ment its purpose and intent. Included in this and
under circumstances designated in the legisla
tion is the power to deport.
The legislation is not punitive in nature. In
some important aspects it is even meliorating. It
allows entry of many not entitled to entry as of
right.
In my view the foregoing indicates the correct
approach to interpretation of the Act's
provisions.
The provisions relevant to the issue here con
template, and only contemplate, a person "seek-
ing to come into Canada",—to adopt wording in
section 19(1). It is only such a person who is to
"appear before an immigration officer" as
directed in that subsection.
It is only "a person seeking to come into
Canada" whom an immigration officer is to
report to a Special Inquiry Officer under the
circumstances set out in section 22.
Consequently "where the Special Inquiry
Officer receives a report under section 22" it
could only be concerning a person seeking to
come into Canada. It is that report concerning
such a person which is a prerequisite to a Spe
cial Inquiry Officer causing "such person to be
detained for an immediate inquiry" under sec
tion 23(2). Thus the inquiry following a report
pursuant to section 22 may only be concerning a
person seeking to come into Canada.
In my opinion in order that such an inquiry
(namely one arising out of a section 22 report)
may continue to the point where there may be a
decision by the Special Inquiry Officer ordering
deportation the person concerning whom the
hearing is held must continue to seek to come
into Canada right up to the time of decision.
The jurisdiction of a Special Inquiry Officer
to deport is found in and is limited by
section 27. It is "upon rendering his decision"
that the Special Inquiry Officer may "make an
order for the deportation." (Section 27(3)). It is
"at the conclusion of the hearing of an inquiry"
that "the Special Inquiry Officer shall render his
decision". (Section 27(1)).
The Special Inquiry Officer was made aware
before the conclusion of the hearing that the
applicant was no longer a person seeking to
come into Canada. From that time on there was
nothing for the Special Inquiry Officer to
inquire into. There was no need for him to
determine whether the applicant was entitled to
entry. Inasmuch as the applicant was to return
voluntarily a determination as to whether he
would have been entitled to entry was pointless.
In my opinion the Special Inquiry Officer had
then lost jurisdiction to make a decision and so
had lost jurisdiction to order deportation. In my
opinion he should not have purported to render
a decision and in doing so erred in law.
As I see it such an inquiry is not a procedure
designed for punishment. On the contrary I con-
sider the purpose of an inquiry following a-
section 22 report is to provide an opportunity to
a proposed "immigrant" or "non-immigrant",
who an immigration officer is not prepared to
admit into Canada, to establish, if he wishes,
and if he can, that he qualifies for entry. That
hearing is not primarily to effect deportation.
Primarily it is to determine whether the appli
cant may be permitted the entry which he seeks.
There was no need for Parliament to establish
the inquiry procedure in order that an alien
might be deported. The Parliament of Canada,
controlling immigration as it does, could easily
enough cause an alien seeking entry into Canada
to be deported without an inquiry.
If a person desiring to immigrate or visit
could only be the subject of an inquiry at the
risk of deportation, with the consequences of
deportation contained in the Act, and without
the right to withdraw his application before the
conclusion of the hearing and so leave without
deportation, there would be a serious and un
necessary lessening of the benefit which the
inquiry is meant to accord the applicant. In any
event, as I construe it, the wording of the legis
lation does not force such a choice upon the
applicant.
I consider Moore v. The Minister of Manpow
er and Immigration [1968] S.C.R. 839 to be
distinguishable. Nevertheless I feel that some
comment should be made regarding it and this
principally because of a statement therein by
Cartwright C.J. (p. 844):
A person who is unlawfully in Canada cannot exempt him
self from liability to have an inquiry directed and to be
ordered to be deported by demonstrating his desire to leave
Canada voluntarily.
and a statement by Judson J. (p. 845):
It is argued that the Special Inquiry Officer had no jurisdic
tion since the appellant was neither seeking to come into
Canada nor seeking to remain in Canada. The answer to this
submission is that the appellant was unlawfully in Canada
contrary to the Immigration Act.
Of course those statements must be con
sidered along with and in the context of the
reasons of their Lordships as a whole and of the
circumstances existing in the Moore case.
Moore entered Canada on November 24,
1967. He came from Panama by way of Mexico.
On November 26, 1967, he went to the Toronto
International Airport to return to Panama. He
was waiting to board the aircraft when he was
arrested. He was reported pursuant to section
19 of the Immigration Act then in force. On
November 28, 1967 he was notified that the
Director of Immigration had directed an inquiry
under section 26 of the then Immigration Act.
On February 1, 1968, following the inquiry, he
was ordered to be deported.
According to the report of the case: a depor
tation order had been made against Moore on
May 8, 1959; he was deported to the United
States on May 22, 1959; he was in possession
of a Canadian passport which stated that he was
born in Canada and was a Canadian citizen
although he was born in the United States and
was a citizen of that country; when he was
trying to leave he produced that passport for the
purpose of obtaining a tourist card to enable
him to enter Mexico on his return journey; and
he had a serious criminal record in the United
States and that was the reason for his deporta
tion in 1959.
Section 26 of the Immigration Act, R.S.C.
1952, c. 325 was:
Subject to any order or direction by the Minister, the
Director shall, upon receiving a written report under section
19 and where he considers that an inquiry is warranted,
cause an inquiry to be held concerning the person respecting
whom the report was made.
Section 19 of that Act was a forerunner of
section 18 of the Immigration Act presently in
force.
It is to be observed that section 26 referred to
reports under section 19 and not to reports
under section 23 as then enacted. That section
23 was a forerunner of present section 22. In
quiries following reports under that section 23
were dealt with in the then section 24 which
was a forerunner of the present section 23.
The following are portions of section 19 of
the Immigration Act, R.S.C. 1952, c. 325 and
are those portions of that section which were
referred to in the immigration officer's report
under section 19 in the Moore case.
19. (1) Where he has knowledge thereof, the clerk or
secretary 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
(e) any person, other than a Canadian citizen or a person
with Canadian domicile, who
(iv) was a member of a prohibited class at the time of
his admission to Canada,
(viii) came into Canada or remains therein with a false
or improperly issued passport, visa, medical certificate
or other document pertaining to his admission or by
reason of any false or misleading information, force,
stealth, or other fraudulent or improper means, whether
exercised or given by himself or by any other person,
(ix) returns to or remains in Canada contrary to the
provisions of this Act after a deportation order has been
made against him or otherwise, or
Subsection (2) of that section 19 is:
Every person who is found upon an inquiry duly held by a
Special Inquiry Officer to be a person described in subsec
tion (1) is subject to deportation.
Section 19(1) specifically refers to a person
who resides or may be in a municipality in
Canada as does present section 18. Accordingly
it differs significantly from section 22 of the
present Act, which specifically refers to "a
person seeking to come into Canada". These,
then, are separate and distinct sections dealing
with different situations and have different
purposes.
As I read the Moore case, Moore was not a
person seeking to come into Canada within the
meaning of the present section 22 or the previ
ous section 20. As I read it he was a person in a
municipality in Canada (albeit illegally) within
the meaning of section 19 then in force. In any
event he was reported pursuant to section 19.
I am of opinion that the Moore case is not
applicable to the present section 22 nor to in-
quiries resulting from reports made pursuant to
it.
Morris was reported under section 22 and in
my opinion different results flow from such a
report than would flow from a report under the
previous section 19.
Being of opinion that if an inquiry is held
following a section 22 report deportation may
only be ordered by the Special Inquiry Officer
conducting the inquiry if the applicant for
admission does not withdraw his application
prior to the conclusion of the hearing, I would
set aside the order for deportation of the appli
cant, Vernon Morris.
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.