A-21-74
Albert Eggen (Appellant)
v.
The Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Jackett C.J., Ryan J. and Shep-
pard D.J.—Vancouver, January 19, 1976.
Immigration—Deportation order—Subsequent to coming to
Canada, appellant admitting commission of crime of moral
turpitude before coming to Canada—Whether subsequent
admission makes him a member of a prohibited class "at the
time of his admission to Canada"—Immigration Act, R.S.C.
1970, c. I-2, ss. 5(d), 18(1)(e)(iv),(v) and 19.
Appellant was ordered deported as "a member of a prohib
ited class at the time of his admission to Canada," for having
admitted committing a "crime involving moral turpitude."
According to the finding of the Special Inquiry Officer and the
Immigration Appeal Board, the admission of the offence com
mitted before coming to Canada was made subsequently to his
admission to Canada.
Held, allowing the appeal, and setting aside the order, such a
subsequent admission does not make a person a member of a
prohibited class "at the time of his admission to Canada". It
might bring him within section 18(1)(e)(v) of the Immigration
Act, or be evidence of untruthfulness (section 19(2)); it does
not make him a person who should have been refused admission
by virtue of section 5(d). A section 18 report can only be used
to support a deportation order based on "grounds" contained
within it. Such an order cannot be made under section 18(2)
where the section 18(1) report is based on one head of section
18(1), and the alleged facts upon which the order is to be made
fall under another head.
Minister of Manpower and Immigration v. Brooks [1974]
S.C.R. 850, applied.
APPEAL.
COUNSEL:
R. Rosenbloom for appellant.
G. Donegan for respondent.
SOLICITORS:
Rosenbloom & Boyle, Vancouver, for
appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment of
the Court delivered orally in English by
JAcKETF C.J.: In this case a deportation order
was made against the appellant as a result of a
section 19 1 report in which it was alleged that the
appellant was, within section 19(1) (e)(iv), "a
member of a prohibited class at the time of his
admission to Canada". The prohibited class on
which reliance was placed by the section 19 report
was that defined by that part of section 5(d) that
said that no person should be admitted to Canada
if he was a member of the class of persons
described as "persons who ... admit having com
mitted any crime involving moral turpitude ...."
When the appellant was admitted to Canada, he
had made no admission but, according to the
findings of fact of the Special Inquiry Officer and
the Immigration Appeal Board, subsequently to
coming to Canada, he did admit having committed
such a crime before coming to Canada.
In our view, such a subsequent admission does
not make a person a member of a prohibited class
"at the time of his admission to Canada." It might
bring him within section 18(1)(e)(v) as a person
who has "since his admission to Canada" become
a person "who, if he were applying for admission
to Canada, would be refused admission by reason
of his being a member of a prohibited class ..." or
it might be evidence that he had, contrary to
section 19(2) (of the present Act), not answered
questions that had been put to him by an immigra
tion officer "truthfully". It does not, however,
make him a person who should have been refused
admission, by virtue of section 5(d), because he
had admitted commission of a crime involving
moral turpitude.
The respondent submits that, in any event, the
appeal should be dismissed because, on the facts,
the deportation order should have been made on
the basis that, as a result of the admission, the
appellant became a person to whom section
Every statutory reference in these reasons is to the Immi
gration Act and all references to section 19, except where
otherwise noted, are to section 18 of the present Immigration
Act.
19(1)(e)(v) applied. In our view, a section 19
report can only be used to support a deportation
order based upon "grounds" that are contained
within it. That does not mean, as was pointed out
by the Supreme Court of Canada in the Brooks
case 2 , that the specific facts must be precisely as
alleged in the report providing the requirements of
natural justice are complied with. We are, how
ever, of the view that a deportation order cannot
be made under section 19(2) where the section
19(1) report is based on one head of section 19(1)
and the alleged facts upon which the deportation
order is to be made fall under another head of
section 19(1) 3 .
We are of the view that the appeal must be
allowed and the deportation order set aside.
2 [1974] S.C.R. 850 per Laskin J. (as he then was) at p. 854.
3 The section 25 requirement of action by the Director as a
condition precedent to an inquiry based on section 18 of the
present Act, which requirement does not exist in the case of a
section 22 report, would otherwise seem to be without point.
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.