A-560-79
Francis Illtydd Potter (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Heald and Ryan JJ. and Smith
D.J.—Vancouver, October 23; Ottawa, December
5, 1979.
Judicial review — Immigration — Deportation — Applica
tion to review and set aside deportation order made after
inquiry — Inquiry convened pursuant to direction for inquiry,
and pursuant to notice of inquiry — Whether or not inquiry
held pursuant to direction for inquiry can consider issues other
than in the report to the Deputy Minister and raised in inquiry
held at same time under s. 28 of the Immigration Act, 1976
Question concerning determination and application of s.
19(2)(a) dealing with applicant's criminal conviction abroad —
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 19(2)(a),(6),
27(2)(a),(3),(4), 28, 104(2),(5) — Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, s. 28.
This is a section 28 application to review and set aside a
deportation order made against the applicant. An inquiry had
been convened pursuant to both a direction for inquiry and a
notice of inquiry. A direction for inquiry directed that an
inquiry be held to determine if applicant is a person described
in paragraph 27(2)(a) of the Immigration Act, 1976, and a
notice of inquiry stated that the applicant had been arrested for
inquiry as a person described in paragraphs 27(2)(b) and (e) of
the Act, causing an inquiry to be held pursuant to section 28 of
the Act. One question raised in this application is whether an
inquiry held pursuant to a direction for inquiry can consider
issues other than those made in the report to the Deputy
Minister and raised in an inquiry held at the same time under
section 28. The other question deals with the interpretation and
application of paragraph 19(2)(a)—the determination of
whether the conviction of an offence abroad would have been
an indictable offence in Canada, and whether the sentence
given would have been less than ten years.
Held, the application is dismissed. The Adjudicator did not
err in finding that he had jurisdiction by reason of applicant's
arrest under subsection 104(2) to consider whether applicant
was a person described in paragraphs 27(2)(6),(e) of the
Immigration Act, 1976, and that he had jurisdiction to consider
whether applicant was a person described in paragraph
27(2)(a) of the Act because of the direction for inquiry requir
ing the Adjudicator to consider the matter. The Senior Immi
gration Officer did not lack jurisdiction to cause an inquiry to
be held under section 28 because applicant was not in actual
detention. The Senior Immigration Officer had a duty under
section 28 to cause an inquiry to be held concerning applicant
and was not relieved of this duty by releasing applicant from
detention within 48 hours of his arrest, pursuant to subsection
104(5). The necessary implication of paragraph 19(2)(a) is
that, when a person is convicted abroad of an offence commit
ted abroad, an adjudicator, in deciding whether a person falls
within the class described in paragraph 19(2)(a), must consider
what the consequences would be in respect of offence and might
be by way of procedure and penalty had the offence been
committed in Canada.
APPLICATION for judicial review.
COUNSEL:
R. Rothe for applicant.
P. Partridge for respondent.
SOLICITORS:
Rothe, Lipetz, Elias, Raynier & Pinsky, Van-
couver, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
RYAN J.: This is a section 28 application to
review and set aside the decision and the deporta
tion order made against the applicant on 21 Sep-
tember 1979 by Adjudicator R. J. Pickwell.
The deportation order, in its relevant portions,
reads:
1 hereby order you to be deported because you are a person in
Canada, other than a Canadian citizen or a permanent resi
dent, described in:—
paragraph 27(2)(b) of the Immigration Act in that you are a
person in Canada, other than a Canadian citizen or a perma
nent resident, who engaged in employment in Canada without a
valid and subsisting employment authorization contrary to
subsection 18(1) of the Immigration Regulations
paragraph 27(2)(e) of the Immigration Act 1976 who entered
Canada as a visitor and remained therein after ceasing to be a
visitor
paragraph 27(2)(a) of the Immigration Act 1976 in that you
are a person in Canada other than a Canadian citizen or a
permanent resident who, if you were applying for entry, would
not or might not be granted entry by reason of being a member
of an inadmissible class, namely
(i) you are a person described in paragraph 19(2)(a) of the
Immigration Act in that you are a person who has been
convicted of an offence in England in 1975 or 1976, namely
receiving stolen goods, an offense [sic] if committed in Canada
would constitute an offense [sic] under Section 312 of the
Criminal Code, namely possession of stolen property, which
may be punishable by way of indictment for which a term of
imprisonment of less than ten years may be imposed.
The application raises questions in relation to
the interpretation and application of certain provi
sions of the Immigration Act, 1976, S.C. 1976-77,
c. 52, including sections 27(2)(a), 27(3), 27(4),
19(2)(a) and (b), 104(2) and (5), and 28'.
One of the questions involves determining
whether an adjudicator, in an inquiry which was
caused to be held pursuant to subsection 27(4), by
virtue of a direction by the Deputy Minister under
subsection 27(3), can consider and resolve issues
other than those raised in the written report made
to the Deputy Minister under subsection 27(2),
and more particularly issues raised in an inquiry
held at the same time under section 28.
The other question arises in respect of para
graph 19(2)(a) of the Act. It is this: an adjudica
tor is conducting an inquiry in respect of a person
convicted of an offence committed outside
Canada. He determines that, had the offence been
committed in Canada, it would have constituted an
offence that might be punishable either as an
indictable offence or as a summary conviction
offence at the election of the appropriate prosecut
ing authority. To decide that the offence might
have been punishable by indictment in Canada,
must he have evidence on which he can decide, and
must he decide, that the conviction abroad was a
conviction for an indictable offence?
These are the relevant facts:
The applicant, Mr. Potter, was arrested under
subsection 104(2) by Immigration Officer D. F.
Brummer on 28 August 1979. Mr. Brummer's
notice to the Senior Immigration Officer, given
after the arrest, was to the effect that Mr. Potter
had been arrested for an inquiry because Mr.
Potter, "on reasonable grounds", was suspected of
being a person described in paragraphs 27(2)(b)
and (e) of the Act. It was stated in the notice that
Mr. Potter "... was engaged in employment in
Canada contrary to this Act or the regulations"
and that "... he entered Canada as a visitor and
' These reasons involve consideration of an unusually large
number of provisions of the Immigration Act, 1976. All of
these provisions are set out in the Appendix to these reasons.
remains therein after he has ceased to be a
visitor".
By a document dated 30 August 1979, a direc
tion for inquiry was made under subsection 27(3)
of the Immigration Act, 1976. A copy of the report
dated 29 August 1979, signed by D. F. Brummer,
was attached. The report stated in part:
I have to report that ... POTTER, FRANCIS, ILLRYDD [Sid] ...
is a person in Canada, other than a Canadian citizen or a
permanent resident, who:
is described in paragraph 27(2)(a) by reason of 19(2)(a) in that
if he were applying for entry, would not or might not be
granted entry by reason of his being a member of an inadmiss
ible class in that he is a person who has been convicted of an
offence that, if committed in Canada would constitute an
offence that may be punishable by way of indictment under any
other Act of Parliament and for which a maximum term of
imprisonment of less than ten years may be imposed.
This report is based on information in my possession as follows:
that Francis Illrydd [sic] Potter, also known as Frank Potter:
—was convicted in England in 1975 or 1976 of receiving stolen
goods, namely a generator valued at approximately $30.00
Canadian and sentenced to pay a fine of thirty pounds. This
offence would equate to Section 312 of the Criminal Code of
Canada for which he is liable to imprisonment for two years.
The direction for inquiry dated 30 August 1979
directed that "... an Inquiry be held to determine
if the above mentioned person is a person
described in paragraph 27(2)(a) ..." of the Act.
There was, finally, a notice of inquiry under
section 28 of the Act. This notice, signed by the
Senior Immigration Officer and dated 31 August
1979, stated that Mr. Potter had been arrested
under subsection 104(2) for inquiry as a person
described in paragraphs 27(2)(b) and (e) of the
Act. The notice was directed to "An Adjudicator"
and said: "Pursuant to section 28 of the Immigra
tion Act, 1976 I hereby cause an Inquiry to be
held concerning ..." Mr. Potter.
An inquiry was convened on 6 September 1979
at Vancouver. It was convened pursuant both to
the direction, dated 30 August 1979, directing an
inquiry to determine whether Mr. Potter was a
person described in paragraph 27(2)(a) of the Act,
and to the notice of inquiry, dated 31 August
1979, causing an inquiry to be held pursuant to
section 28.
Counsel for Mr. Potter took the position at the
opening of the inquiry that the Adjudicator had no
jurisdiction to deal with anything other than the
matter embraced in the direction to hold an inqui
ry to determine if Mr. Potter was a person
described in paragraph 27(2)(a) of the Act. The
Adjudicator decided the issue in these words:
The person concerned, according to the documents before me,
was arrested pursuant to subsection 104(2) of the Immigration
Act on the 28th of August 1979 and the Immigration Act
clearly requires when a person is described pursuant to subsec
tion 104(2) that an inquiry be held. Following that, a Direction
for Inquiry was issued. I find absolutely nothing wrong with
this procedure and it is my ruling at this time that I have the
jurisdiction by reason of the arrest under 104(2) to consider
whether Mr. Potter is a person described in 27(2)(b) and
27(2)(e) of the Immigration Act and I also have the jurisdic
tion to consider whether he is a person described in paragraph
27(2)(a) of the Immigration Act by reason of the fact that the
Direction for Inquiry has been issued requiring me to consider
this matter.
I am of opinion that the Adjudicator did not err
in deciding to proceed as he did.
In so deciding, I have not overlooked a submis
sion made by counsel in respect of the notice of
inquiry issued pursuant to section 28. At the con
clusion of the inquiry, when the question of detain
ing Mr. Potter pending deportation was raised, the
case presenting officer stated that on 29 August
1979, Mr. Potter had signed a cash bond in the
amount of $300 and had agreed to report for
inquiry on September 6. It was submitted by coun
sel that, in consequence, the Senior Immigration
Officer lacked jurisdiction on August 31 to cause
an inquiry to be held under section 28 because on
that date Mr. Potter was not in actual detention.
Mr. Potter had been arrested and detained for
inquiry under subsection 104(2), and the detaining
officer had notified the Senior Immigration Offi
cer pursuant to subsection 104(4). The Senior
Immigration Officer had a duty under section 28
to cause an inquiry to be held concerning Mr.
Potter. He was not relieved of this duty by exercis
ing his power under subsection 104(5), if that is
what he did, to release Mr. Potter within forty-
eight hours of his detention. In issuing the notice
of inquiry, he was acting in performance of his
duty under section 28.
I will now deal with the second question raised
by the application, the question having to do with
the interpretation and application of paragraph
19(2)(a) of the Act.
Counsel for the applicant, as I understood him,
did not take issue with the Adjudicator in so far as
the Adjudicator proceeded on the basis that he was
required by paragraph 19(2)(a) to determine
whether the offence of which the applicant was
convicted in England would have been an offence
that might be punishable by way of indictment and
for which a maximum term of imprisonment of
less than ten years might be imposed had it been
committed by the applicant in Canada. Nor, as I
understood the submission, was issue taken with
the Adjudicator's finding that, if committed in
Canada, the offence would have been an offence
under section 312 of the Criminal Code, R.S.C.
1970, c. C-34, punishable under either subpara-
graph 313(b)(î) or 313(b)(ii) of the Code 2 . The
submission was that there was no evidence on
which the Adjudicator could properly find, nor did
he find, that the applicant had been convicted on
indictment in England. I am not at all sure that
there was no material on which the Adjudicator
could have found that the applicant was convicted
on indictment in England, but I agree that he did
not make such a finding.
In my view it is at any rate irrelevant whether
the applicant was convicted on indictment in Eng-
land. The relevant question for the Adjudicator
2 The relevant provisions of sections 312 and 313 of the
Criminal Code are:
312. (1) Every one commits an offence who has in his
possession any property or thing or any proceeds of any
property or thing knowing that all or part of the property or
thing or of the proceeds was obtained by or derived directly
or indirectly from
(a) the commission in Canada of an offence punishable by
indictment; or
(b) an act or omission anywhere that, if it had occurred in
Canada, would have constituted an offence punishable by
indictment.
313. Every one who commits an offence under section 312
(b) is guilty
(i) of an indictable offence and is liable to imprison
ment for two years, or
(ii) of an offence punishable cm summary conviction,
where the value of what is in his possession does not exceed
two hundred dollars.
was whether the applicant, had the offence been
committed in Canada, could have been convicted
of an offence in respect of which he might have
been proceeded against by way of indictment in
Canada, and whether, if convicted in Canada, he
might have been imprisoned for a maximum term
of less than ten years. This is precisely the question
to which the Adjudicator addressed himself.
Counsel did, however, rely on the decision of
this Court in Kai Lee v. Minister of Employment
and Immigration'. In that case, the applicant had
been convicted in Canada of theft of goods to a
value of less than $200, and his conviction, as
appeared from the certificate of conviction which
was received in evidence, had been by way of
summary conviction. The conviction thus had obvi
ously been for a summary conviction offence under
subparagraph 294(b)(ii) of the Criminal Code and
not for an indictable offence under subparagraph
294(b)(î) ° . This Court held that it was not open to
the Adjudicator to consider the choice that was
open to the appropriate prosecuting authority
before it was decided to charge the applicant with
the summary conviction offence of which in fact he
was subsequently convicted.
That is not this case. Here, there was no convic
tion under either subparagraph (b)(i) or (b)(ii) of
section 313 of the Code. The question the
Adjudicator properly asked himself was: If the
applicant had committed in Canada the offence of
which he was convicted abroad, could he have
been charged here with an offence for which he
might have been punished here by way of indict
3 [1980] 1 F.C. 374.
4 The relevant provisions of section 294 of the Criminal Code
are:
294. Except where otherwise provided by law, every one
who commits theft
(b) is guilty
(i) of an indictable offence and is liable to imprison
ment for two years, or
(ii) of an offence punishable on summary conviction,
where the value of what is stolen does not exceed two
hundred dollars.
ment and for which the maximum term stipulated
might have been imposed? Having in mind sub-
paragraph (b)(i) of section 313, it is clear that he
might have been.
I would observe that, though in relevant aspect
the wording of paragraph 19(2)(a) is not as clear
as it might have been, as I read it its necessary
implication is that, when a person is convicted
abroad of an offence committed abroad, an
adjudicator, in deciding whether the person falls
within the class described in the paragraph, must
consider what the consequences would be in
respect of offence and might be by way of proce
dure and penalty had the offence been committed
in Canada.
Counsel for the applicant also submitted that
the Adjudicator had erred because, in deciding to
make a deportation order rather than to issue a
departure notice, he had taken into consideration
his allegedly erroneous finding that the applicant
was a person described in paragraph 19(2)(a) of
the Act. My decision that the Adjudicator's find
ing in respect of paragraph 19(2)(a) was not
erroneous renders this submission academic.
I would dismiss the application.
* * *
HEALD J.: I concur.
* * *
SMITH D.J.: I concur in the foregoing reasons
for judgment.
APPENDIX
Provisions of the Immigration Act, 1976 g S.C.
1976-77, c. 52, cited in reasons for judgment of
Mr. Justice Ryan in Potter v. Minister of
Employment and Immigration:
19....
(2) No immigrant and, except as provided in subsection (3),
no visitor shall be 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 punishable
by way of indictment under any other Act of Parliament 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 termination 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 termination of the
sentence imposed for the offence;
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(0(h) or 19(2)(c),
(b) has engaged or continued in employment in Canada
contrary to this Act or the regulations,
(e) entered Canada as a visitor and remains therein after he
has ceased to be a visitor,
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.
(3) Subject to any order or direction of the Minister, the
Deputy Minister shall, on receiving a report pursuant to subsec
tion (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.
(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.
28. Where a person is held in detention pursuant to para
graph 23(3)(a) or section 104 for an inquiry, a senior immigra
tion officer shall forthwith cause the inquiry to be held concern
ing that person.
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
warrant, 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
27( 2 )(b),(e),(/),(g),(h),(i) 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.
(4) Where any person is detained for an examination or
inquiry pursuant to this section, the person who detains or
orders the detention of that person shall forthwith notify a
senior immigration officer of the detention and the reasons
therefor.
(5) A senior immigration officer may, within forty-eight
hours from the time when a person is placed in detention
pursuant to this Act, order that the person be released from
detention subject to such terms and conditions as he deems
appropriate in the circumstances, including the payment of a
security deposit or the posting of a performance bond.
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.