A-267-80
Donald Eugene Anderson (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Heald and Urie JJ. and Kelly
D.J.—Toronto, June 2 and 5, 1980.
Judicial review — Immigration — Application to review
and set aside a departure notice issued on the ground that
applicant was a member of an inadmissible class, described in
par. 19(2)(a) of the Immigration Act, 1976 — Section 27
report, which gave rise to the inquiry, stated that applicant
was a member of an inadmissible class described in par.
19(1)(c) — Whether Adjudicator erred in law in issuing a
departure notice on grounds not specified in the s. 27 report —
Application allowed — A removal order under s. 27 can only
be effected on 'grounds" contained within the report required
by that section — Federal Court Act, R.S.C. 1970 (2nd Supp.),
c. 10„s. 28 — Immigration Act, 1976, S.C. 1976-77, c. 52, ss.
19(1)(c),(2)(a), 21, 27(2)(a),(3),(4), 28, 104(2).
Eggen v. Minister of Manpower and Immigration [1976]
1 F.C. 643, followed. Potter v. Minister of Employment
and Immigration [ 1980] 1 F.C. 609, distinguished.
APPLICATION.
COUNSEL:
Mark A. Lapedus for applicant.
Brian Evernden for respondent.
SOLICITORS:
Koffman, Cohen, Lapedus, 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 departure notice made
against the applicant on April 23, 1980. The
departure notice reads as follows:
I have decided that you are a person described in Paragraph
27(2)(a) of the Immigration Act, 1976.
You are a person in Canada, other than a Canadian citizen or
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(2)(a), in that, you
have been convicted of an offence outside Canada that would
constitute an offence that may be punishable by way of indict
ment under the Criminal Code of Canada and for which a
maximum term of imprisonment of less than 10 years may be
imposed.
The inquiry was held pursuant to a notice of
inquiry issued under the authority of subsection
27(4) of the Immigration Act, 1976, S.C. 1976-77,
c. 52.'
In that notice, the senior immigration officer
stated that he had received a direction for inquiry
issued pursuant to subsection 27(3) of the Act 2
and a copy of a report which stated that th'e
applicant herein is a person described in paragraph
27(2)(a) of the Act.'
The inadmissible class specified in the report
was said to be the class described in paragraph
19(1)(c) which 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
' Said subsection 27(4) reads as follows:
27....
(4) Where a senior immigration officer receives a copy of
a report and a direction pursuant to subsection (3), he shall,
as soon as reasonably practicable, cause an inquiry to be held
concerning the person with respect to whom the report was
made.
2 Said subsection 27(3) reads as follows:
27...
(3) Subject to any order or direction of the Minister, the
Deputy Minister shall, on receiving a report pursuant to
subsection (1) or (2), and where he considers that an inquiry
is warranted, forward a copy of that report and a direction
that an inquiry be held to a senior immigration officer.
' 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)
he shall forward a written report to the Deputy Minister
setting out the details of such information unless that person
has been arrested without warrant and held in detention
pursuant to section 104.
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 Adjudicator found on the evidence, both
oral and documentary, that the equivalent offence
in Canada to the offence of which the applicant
was convicted in the U.S.A. would be attempted
theft of property not exceeding $200 in value and
he further concluded, by references to paragraphs
294(b) and 421(b) of the Criminal Code, R.S.C.
1970, c. C-34, as amended that the maximum
penalty for such an offence in Canada would be
one year, that offence being one that may be
proceeded with by way of indictment. Accordingly,
he concluded that the applicant was a member of
the inadmissible class of persons described in para
graph 19(2)(a) of the Act 4 , and on this basis he
issued the departure notice herein attacked.
Thus, it will be seen that the Adjudicator found
the applicant to be a member of an inadmissible
class other than the inadmissible class specified in
the section 27 report and based his departure
notice on that finding. In so doing, he erred in law
in my opinion. In my view, the ratio of the decision
of this Court in the case of Eggen v. The Minister "
of Manpower and Immigration s applies equally to
the case at bar notwithstanding that it was decided
4 Paragraph 19(2)(a) reads as follows:
19....
(2) No immigrant and, except as provided in subsection
(3), no visitor shall he granted admission if he is a member of
any of the following classes:
(a) 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 punish
able by way of indictment under any other Act of Parlia
ment and for which a maximum term of imprisonment of
less than ten years may be imposed, except persons who
have satisfied the Minister that they have rehabilitated
themselves and that
(i) in the case of persons who were convicted of any such
offence when they were twenty-one or more years of
age, at least five years have elapsed since the termina
tion of the sentence imposed for the offence, or
(ii) in the case of persons who were convicted of any
such offence when they were less than twenty-one years
of age, at least two years have elapsed since the termina
tion of the sentence imposed for the offence.
5 [1976] 1 F.C. 643.
under the 1952 Immigration Act, the predecessor
to the present Act. In that case, it was held that a
section 18 report could only be used to support a
deportation order based on "grounds" contained
within that report. In a footnote to his reasons in
that case, Chief Justice Jackett makes a clear
distinction between a section 18 report and a
section 22 report. That footnote observes that the
section 25 requirement of action by the Director as
a condition precedent to an inquiry based on sec
tion 18 is a requirement which does not exist in the
case of a section 22 report. The former Chief
Justice makes the further observation that if a
section 18 report was capable of being treated in
the same manner as a section 22 report, there
would seem to be no reason or rationale for the
requirement set out in section 25.
Turning now to the Immigration Act, 1976,
which applies to the present case, it seems clear
that at least this portion of that Act is, in all
material particulars, similar to the 1952 Act. Sec
tion 20 of the 1976 Act is similar to section 22 of
the 1952 Act because both sections contemplate a
report leading to an inquiry in respect of persons
seeking to come into Canada. On the other hand,
subsections 27(3) and (4) of the 1976 Act are, in
all material particulars similar to sections 25 and
18 of the 1952 Act because they relate to persons
already in Canada. It is for this reason that I have
concluded that the rationale of the Eggen case
applies to the case at bar under the 1976 Act. I am
reinforced in this conclusion by a perusal of the
provisions of section 21 of the 1976 Act which
reads as follows:
21. Where a removal order is made against any person with
respect to whom an inquiry is held as a result of a report made
pursuant to subsection 20(1), the removal order against that
person may be made on the basis that that person is a member
of any inadmissible class.
That section makes it clear that a section 20 order
may be made on the basis that the person in
question is a member of any inadmissible class. I
attach significance to the fact that there is no
similar provision with respect to persons removed
from Canada under section 27. Such a significant
omission reinforces my view that a removal under
section 27 can only be effected on "grounds"
contained within the report required by that sec
tion. In this case the "grounds" set out in that
report relate to paragraph 19(1)(c) whereas the
"grounds" under which the Adjudicator purported
to make subject departure notice relate to para
graph 19(2)(a). In my view, this error by the
Adjudicator is an error in law which vitiates the
departure notice.
Counsel for the respondent referred us to the
decision of this Court in the case of Potter y.
Minister of Employment and Immigration [1980]
1 F.C. 609. In my view, that decision is of no
assistance because, in that case, there had been an
arrest pursuant to the provisions of subsection
104(2) of the Act. 6 In such cases, section 28 of the
Act requires a senior immigration officer to
"forthwith cause the inquiry to be held concerning
that person." 7
In such circumstances, the requirement for the
section 27 report plus the actions of the Director
consequent thereupon do not apply. Thus, in the
Potter case, there was no report by an immigration
officer under subsection 27(2). There was only a
direction for inquiry and a notice of inquiry. The
direction for inquiry referred to paragraph
27(2)(a). The notice of inquiry referred to para
graphs 27(2)(b) and (e). The Adjudicator decided
that he had jurisdiction to consider whether Mr.
Potter was a person described in any one of the
three paragraphs. This Court held that the
Adjudicator did not err in so proceeding. The
essential difference is that in Potter, the initiating
circumstance was the arrest, whereas in the case at
6 Said subsection 104(2) reads as follows:
104....
(2) Every peace officer in Canada, whether appointed
under the laws of Canada or of any province or municipality
thereof, and every immigration officer may, without the issue
of a warrrant, an order or a direction for arrest or detention,
arrest and detain or arrest and make an order to detain
(a) for an inquiry, any person who on reasonable grounds
is suspected of being a person referred to in paragraph
2 7 (2)(b), (e), (l), (g), (h), (1) or (j), or
(b) for removal from Canada, any person against whom a
removal order has been made that is to be executed,
where, in his opinion, the person poses a danger to the public
or would not otherwise appear for the inquiry or for removal
from Canada.
Said section 28 reads as follows:
28. Where a person is held in detention pursuant to
paragraph 23(3)(a) or section 104 for an inquiry, a senior
immigration officer shall forthwith cause the inquiry to be
held concerning that person.
bar, the initiating circumstance was the subsection
27(2) report, just as in Eggen the initiating cir
cumstance was the section 18 report. Accordingly,
the ratio in Eggen applies in this case but would
not apply to Potter where there was no subsection
27(2) report, since no such report is necessary in
the case of arrest and since an immediate inquiry
is nevertheless mandatory pursuant to the provi
sions of section 28 of the Act.
Having concluded, for the reasons set forth
above, that the Adjudicator's error in law as there
in set out, vitiates the departure notice, this would
be sufficient to dispose of this application. How
ever, in my view, there is an additional basis for
setting aside the departure notice. I have conclud
ed that the Adjudicator further erred in deciding
on the material before him that the equivalent
offence in Canada to the offence of which the
applicant was convicted in the U.S.A. was
attempted theft under $200 and that the max
imum penalty for such an offence in Canada
would be one year and was an offence that could
be proceeded with by way of indictment. The
relevant documentary evidence (Exs. C4-05)
shows only that the applicant was charged with
grand larceny, that he was convicted of some
offence on December 10, 1970 for which he
received 8 months imprisonment. The applicant's
oral testimony which was accepted by the
Adjudicator was to the effect that he snatched a
lady's purse containing approximately $22, that
the original charge was grand larceny, and that he
pleaded guilty to a reduced charge of attempted
grand larceny in the third degree as a result of a
plea bargaining arrangement which would reduce
the charge from a felony to a misdemeanour. The
above represents the totality of the evidence in this
regard. There was no evidence as to the definition
of "grand larceny" or "attempted grand larceny in
the third degree" as defined in the relevant U.S. or
New York Penal Code which would enable the
Adjudicator to determine the essential ingredients
of the offence. On the basis of this information, it
was, in my view, impossible for the Adjudicator to
define the U.S. offence with any precision. Faced
with this problem, it was therefore quite impos
sible for him to determine that said offence would
have been an offence punishable by way of indict
ment under the Criminal Code. Accordingly, in
my opinion, this error on the part of the Adjudica
tor represents an additional reason for setting
aside subject departure notice.
Thus, for all the above reasons, I would allow
the section 28 application and set aside the depar
ture notice.
* * *
URIE J.: I concur.
* * *
KELLY 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.