C.A.C. 52/74
In the matter of the Canadian Citizenship Act
and in the matter of Stephen Hardwick Merritt
Citizenship Appeal Court, Cattanach J.—Corn-
wall, September 23; Ottawa, October 1, 1974.
Citizenship—Appeal from rejection of application—
Whether appellant of good character—Conviction of crimi
nal offence—Whether proof of rehabilitation—Evidence on
appeal—Canadian Citizenship Act, R.S.C. 1970, c. C-19, s.
10(1)(d)—Narcotic Control Act, R.S.C. 1970, c. N-1, s. 3—
Federal Court Rule 911.
The appellant, convicted on a plea of guilty to unlawful
possession of a narcotic, contrary to section 3(1) of the
Narcotic Control Act, was fined $100 or five days in jail.
His application for citizenship was rejected by the County
Court Judge on the ground that, after the conviction, the
applicant had failed to demonstrate his rehabilitation, in that
he admitted continuing the occasional use of soft drugs.
Held, allowing the appeal, the county judge had correctly
applied the proper principles to the evidence before him.
But, under Federal Court Rule 911, the appellant had pro
duced further evidence on appeal and this should be con
sidered with reference to the time of the appeal. The evi
dence showed that the appellant had given up the use of
drugs and had achieved rehabilitation.
APPEAL.
COUNSEL:
H. Sherwood for appellant.
P. Beseau, amicus curiae.
SOLICITORS:
Adams, Bergeron and Palmer, Cornwall, for
appellant.
Barrette, Lalonde, Chartrand & Beseau,
Ottawa, amicus curiae.
The following are the reasons for judgment
delivered in English by
CATTANACH J.: This is an appeal from the
rejection of an application for Canadian citizen
ship by the Citizenship Court which came to the
conclusion that the appellant was not of "good
character" within the meaning of section
10(1)(d) of the Citizenship Act.
His Honour C. A. Stiles, who is the County
Court Judge for the United Counties of Stor-
mont, Dundas and Glengarry and who was the
Judge of the Court of first instance, reached
that conclusion by reason of the fact that on
December 5, 1973 the appellant pleaded guilty
at the Provincial Court, Cornwall, Ontario, to a
charge that "he unlawfully did have in his
possession a narcotic, to wit: cannabis resin,
contrary to section 3(1) of the Narcotic Control
Act". Having pleaded guilty the appellant was
duly convicted of that charge and was fined
$100 or five days in jail.
It is axiomatic that because a person has been
convicted of an offence it does not follow that
the person is to be eternally damned to being a
person not of good character. After the person
has been so convicted and has paid the penalty
imposed upon him he may demonstrate by his
subsequent course of conduct and way of life
that he has rehabilitated himself in the eyes of
right thinking citizens. In that event he is en
titled to a finding that he is of good character
within the meaning of section 10(1)(d).
There can be no rule of thumb strictly appli
cable in the decision of such matters but salient
considerations would be the seriousness of the
offence, contrasted with the length of time
during which the person has lived an exemplary
life of a law abiding and useful member of
society.
The learned Judge of the Court of first
instance was fully aware of the foregoing princi
ples and in my view he applied them correctly in
this matter. He exhibited great concern. He
questioned the appellant who frankly admitted
that he had been growing marijuana for his
personal use. Apparently, in response to ques
tions by the Trial Judge, the appellant indicated
that he had desisted from growing his own
supply but also admitted that even at that time
he still used the drug occasionally.
Faced with this admission by the appellant
the Trial Judge concluded that the appellant
does not strictly observe the criminal law of the
Country. The Trial Judge had previously point
ed out that the use of marijuana is against the
law to which the appellant made no response. It
is implicit in the remarks of the Trial Judge that
he construed the appellant's failure to respond
to this observation to mean that the appellant
did not agree with the mores of the majority.
Accordingly I am of the opinion that the
learned Trial Judge correctly applied the basic
principles enunciated above to the facts of this
particular case as were before him and properly
rejected the appellant's application for
citizenship.
In the matter of an appeal under the Citizen
ship Act by Victor Grégoire dated May 28, 1971
from a rejection of the appellant's application
for citizenship because the applicant there did
not intend to have his place of domicile in
Canada, the Chief Justice of this Court said:
Having regard to the decision of this Court in the appeal
of Mrs. Eugénie Jodoin, dated April 5, 1968, a question such
as whether the appellant intends to have his place of domi
cile in Canada "must be considered with reference to the time
that the Court has the matter under consideration".
Before the Chief Justice, the applicant Gré-
goire established that at that time he had
changed his mind and had intended to have his
place of domicile in Canada. The Chief Justice
therefore allowed the appeal.
In the appeal of Mrs. Eugénie Jodoin to which
the Chief Justice referred in the passage quoted
above, specific mention was made that as a
general rule when an applicant has had a crimi
nal conviction he should be expected to bring
before the Court of first instance unrelated per
sons able to testify as to the type of life the
applicant had been living since his conviction.
Rule 911 provides that an appeal shall take
the form of a new hearing at which evidence
shall be received and such examination of the
appellant shall be conducted as the Court deems
appropriate.
Further evidence was adduced before me.
It was established that the appellant has taken
a leading part in the community affairs particu
larly the Glengarry Historical Society in which
he initiated the renovation of the Museum in
Dunvegan, Ontario and has overseen the prepa
ration of a proper catalogue of the exhibits.
Both the local medical practitioner and cler
gyman, who were on intimate terms, both
socially and professionally with the appellant
and his family, testified that he was a model
citizen and a credit to the community. Both
were aware of the appellant's two convictions,
one for possession of marijuana and second for
the possession of hashish.
My prime concern however has been with
respect to the appellant's use of soft drugs.
While it is not explicitly stated I have the dis
tinct impression that the appellant's attitude
before the learned Trial Judge that the growing
of marijuana and the appellant's subsequent use
of that drug after he had desisted from growing
it was that his actions in so doing were his
private affairs and did not affect the community
at large. Before me I think the appellant's atti
tude has undergone a radical change for the
better.
The appellant was, in fact, convicted twice of
the offence of possession. The second offence
for which the conviction was recorded in
December 1973 took place under unusual
circumstances.
The appellant was married in 1965 and there
are three children of that marriage, two girls
aged 6 and 7 years respectively and a baby boy
aged 15 months. A friend of the family, named
Cobb, wrote to Mrs. Merritt to advise her that
he was sending a parcel from the Middle East
addressed to himself under an alias in care of
the appellant, and which parcel included cloth
ing and contraband. Mrs. Merritt did not tell her
husband about this because she wanted to shield
him because of his prior conviction for
possession.
The sender of the parcel arrived at the appel
lant's home before the arrival of the parcel. He
stayed with the Merritts for a period of weeks
awaiting the arrival of the parcel. Because of its
non-arrival during that interval, Cobb, the
sender of the parcel, left, much to the relief of
Mrs. Merritt. Four days after the sender left the
parcel arrived. The postmaster called Mrs. Mer-
ritt to tell her there was a parcel. Mrs. Merritt
was expecting a parcel of shoes from her par
ents for the children and asked her husband to
pick it up. He did. It contained .34 grams of
hashish in a shirt pocket and a quantity of
opium. The parcel was opened by Mrs. Merritt,
who at that time told her husband of its con
tents. Her husband picked up the hashish but
Mrs. Merritt dumped the opium in the garbage
pail in the expectation that it would be gathered
by the trash collector, taken to the dump and be
burned. However before this could happen tile
police arrived. Cobb was convicted of an
offence and sentenced to three years imprison
ment. The appellant pleaded guilty and was con
victed of possession of .34 grams of hashish. He
was fined $100.
Following on these two convictions an order
for deportation issued against the appellant.
On appeal to the Immigration Appeal Board the
deportation order was quashed. I commend the
amicus curiae for bringing this fact to my
attention.
At this point I should also add that I was very
favourably impressed by Mrs. Merritt who testi
fied that after this second conviction to which
the appellant pleaded guilty that she had a heart
to heart talk with her husband during which she
laid down an ultimatum to him. Either he sever
all connections with any friends who might be
drug users, other than those he came into con
tact with on a purely commercial basis during
the course of his business as a maker of fret
stringed musical instruments and that he himself
give up the use of drugs, or she would leave him
taking their children with her.
Faced with that choice the appellant has
elected to adhere to his wife and children. I am
convinced that he will do so. There is no doubt
in my mind that the appellant loves his wife and
children and could not bear to be parted from
them. This is confirmed by the clergyman who
testified that they are a devoted couple and that
the three children are extremely well mannered
and capably reared. The appellant has contribut
ed to their upbringing. In my view the choice
offered to the appellant by his wife was not a
difficult decision to make and I would have
been greatly surprised and exercised if he had
done otherwise than to choose his wife and
children over the passing pleasure that the occa
sional use of soft drugs may have given him.
It is for this reason that I have concluded that
the appellant has become rehabilitated and will
desist from even an occasional use of drugs and
that he will continue to live the exemplary life
that he has demonstrated he is capable of doing.
This I attribute to his devotion to his wife and
their children. I do not reach this conclusion on
the ground of compassion but because I am
convinced that the appellant is possessed of
those qualities inherent in normal human beings
of instinctive protection of their young and their
mate.
I, therefore, allow the appeal.
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.