A-371-74
Tyrone Sylvester Lew (Appellant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Thurlow and Urie JJ. and
MacKay D.J.—Toronto, November 25 and 28,
1974.
Immigration—Deportation—Immigrant convicted of
offence under Criminal Code—Deportation ordered—Subse-
quent discharge under Code—Appeal to Immigration Appeal
Board dismissed—Not "a person convicted of an offence"—
Error of Board in not re-opening inquiry or quashing order—
Immigration Act, R.S.C. 1970, c. I-2, s. 18(1Xe)(ii) —Immi-
gration Appeal Board Act, R.S.C. 1970, c. I-3, ss. 13 and
14—Criminal Code, R.S.C. 1970, c. C-34, s. 662.1(1) and (3)
as. am.
Deportation of the appellant was ordered on the ground
that he was a person within a prohibited class described in
section 18(1)(e)(ii) of the Immigration Act, in that he had
been convicted of an offence under the Criminal Code.
Subsequent to the order, appellant received an absolute
discharge in respect of the charge in question. His appeal
from the order was dismissed by the Immigration Appeal
Board. He appealed from the decision of the Board, arguing
that since he had received discharges in respect of both
charges, he was "deemed not to have been convicted" under
section 662.1(3) of the Code; accordingly he was not within
the prohibited class contemplated by section 18(1)(e)(ii).
Held, allowing the appeal, and quashing the deportation
order, since the appellant had been discharged in respect of
each of the charges referred to in the Board's reasons, he is
not a person "who has been convicted of an offence under
the Criminal Code" within the meaning of section 18(1)(e)(ii)
of the Immigration Act, nor was he in May 1974 when the
Board heard and determined his appeal. In not ordering the
inquiry re-opened, under section 13 of the Immigration
Appeal Board Act, or quashing the order, due to the effect
of the order of the Supreme Court of Ontario giving abso
lute discharge, the Board proceeded on an erroneous view
of the law.
APPEAL.
COUNSEL:
V. T. Rosemay for appellant.
H. Erlichman for respondent.
SOLICITORS:
Viebert T. Rosemay, Toronto, for appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered orally in English by
THURLOW J.: This is an appeal from a deci
sion of the Immigration Appeal Board which
dismissed an appeal against a deportation order
made against the appellant on December 24,
1973, but stayed the execution of the order until
December 4, 1974. The appeal to this Court was
not opposed and a consent on behalf of the
respondent to judgment allowing the appeal and
quashing the deportation order has been filed.
The ground for deportation set out in the
order is that the appellant was a person
described in subparagraph 18(1)(e)(ii) of the
Immigration Act in that he had been convicted
of an offence under the Criminal Code. On this
aspect of the case the Board's conclusion is
expressed in the following passage from its
reasons:
The Court finds that the appellant was tried on July 27,
1973, for Theft Under and received a Conditional Discharge
with 12 months probation, and again on September 24,
1973, of Theft Under for which he was convicted and
received 30 days in jail. On 7th March, 1974, the Supreme
Court of Ontario allowed the appeal against sentence and
varied the sentence to one of absolute discharge. The appel
lant, nevertheless, was the subject of a conviction on
December 24, 1973, and this is a historical fact. The Special
Inquiry Officer, was, therefore, bound to make the order he
did on the evidence existing at that time.
It is clear from the evidence that the Deportation Order is
valid in law and, therefore, the appeal is dismissed under
Section 14 of the Immigration Appeal Board Act.
By subsection 662.1(1) of the Criminal Code
a Court, before whom an accused person pleads
guilty or is found guilty of an offence of the
kind referred to in the Board's reasons, is
empowered, "instead of convicting the
accused", to direct that he be discharged abso-
lutely or upon conditions. Under subsection
662.1(3) it is provided that, except for certain
defined purposes, when such a discharge is
directed "the accused shall be deemed not to
have been convicted of the offence to which he
pleaded guilty or of which he was found guilty
and to which the discharge relates".
In my opinion since the appellant has been
discharged under this provision in the case of
each of the charges referred to in the reasons of
the Immigration Appeal Board it cannot be said
at this time that he is a person who "has been
convicted of an offence under the Criminal
Code" within the meaning of subparagraph
18(1)(e)(ii) of the Immigration Act. Nor was he
in that category in May 1974 when his appeal to
the Immigration Appeal Board was heard and
determined.
The Board appears to have considered that its
function was to determine whether the deporta
tion order was valid on the facts as they existed
when it was made. With respect, in my opinion,
the essential question for the Board on an
appeal is whether the person concerned is sub
ject to deportation and for this purpose the
Board has jurisdiction to consider that question
on the facts as they exist when the matter is
before it. There was ample authority under sec
tion 13 of the Immigration Appeal Board Act to
order the inquiry re-opened in the light of the
effect of the order of the Supreme Court of
Ontario on the conviction upon which the
deportation order was founded, if the Board
considered that any good purpose would be
served by so proceeding, or it could have acted
on its own to recognize that effect on the basis
of the deportation order and to quash it. In
doing neither the Board appears to me to have
proceeded on an erroneous view of the law.
I would allow the appeal and quash the depor
tation order.
* * *
URIE J. concurred.
* * *
MACKAY D.J. concurred.
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.