A-238-86
Arnold Rosevelt Hurd (Appellant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: HURD V. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION)
Court of Appeal, Urie, Stone and MacGuigan
JJ.—Toronto, October 7; Ottawa, October 28,
1988.
Constitutional law — Charter of Rights — Criminal process
— Double jeopardy — Appellant convicted of crimes for
which sentences exceeding six months imposed — Deportation
order issued under Immigration Act, 1976, ss. 27(1) and 32(2)
— Provisions not contrary to Charter, s. 11(h) guarantee of
right not to be punished twice for same offence — S. II
applying to criminal or quasi-criminal proceedings and pro
ceedings giving rise to penal consequences — Deportation
neither criminal nor quasi-criminal proceeding — Implication
from case law and purpose of deportation that deportation not
true penal consequence — S. 11(h) aimed at larger-than-
merely personal disadvantage — Deportation individual, not
social, deterrence.
Immigration — Deportation — Appellant twice convicted of
crimes carrying sentences exceeding six months — Deportation
order issued — Deportation proceeding not within Charter, s.
11(h) proscribing double punishment for same offence as not:
(1) criminal or quasi-criminal proceeding, or (2) proceeding
giving rise to true penal consequence — Purpose of deportation
to remove undesirable person from Canada — Deportation to
homeland and transportation distinguished.
Criminal justice — Whether deportation proceedings crimi
nal or quasi-criminal by nature — Whether deportation "true
penal consequence" — Phrase including fine sufficient to
redress wrong to society — Purposes of criminal conviction:
redressing wrong done to society and deterrence of others —
Criminal sanctions of banishment, transportation distin
guished from deportation to homeland — Statutory definition
of deportation as "punishment" for limited purpose.
This was an appeal from an Immigration Appeal Board
decision declining to exercise its special powers under subsec
tion 72(1) of the Act. The appellant, a permanent resident, was
twice convicted of drug-related crimes and drew sentences
exceeding six months. The Immigration Act, 1976, subsections
27(1) and 32(2) calls for deportation under such circumstances.
Pending the immigration inquiry, the appellant was held in
custody for two days, but was released when it was adjourned.
He was eventually ordered deported. The issue was whether the
deportation was contrary to paragraph 11(h) of the Charter,
which proscribes double punishment for the same offence.
Held, the appeal should be dismissed.
Charter, section 11 applies to "criminal or quasi-criminal
proceedings giving rise to penal consequences": R. v. Wiggles-
worth. The deportation proceeding was not by its very nature
criminal or quasi-criminal. The implication from the case law
was that deportation was not a true penal consequence. "True
penal consequence" encompasses more than just imprisonment,
i.e. a fine of such magnitude as would redress the wrong to
society: Wigglesworth. On the other hand, the appellant's
imprisonment for two days hardly constituted a true penal
consequence. It merely assured his attendance at the inquiry.
A criminal conviction accomplishes the social purposes of
redressing a wrong to society and deterrence. Deportation
merely removes an undesirable person from Canada. It is
individual, not social deterrence. The older criminal sanctions
of banishment or transportation to a penal colony were to be
distinguished from deportation to one's homeland. Although
deportation may bring about a personal disadvantage, para
graph 11(h) of the Charter is directed to the larger-than-mere-
ly-personal disadvantage. Deportation is analogous to the loss
of a licence or to dismissal from a police force, or to the
forfeiture of a right to practice a profession.
Although paragraph 126(a) of the Act deems that deporta
tion is a "penalty, forfeiture or punishment", that is with
reference to paragraph 36(e) of the Interpretation Act, a
bridging provision which applies when a penalty is imposed
under an old Act, and new legislation reduces the penalty.
STATUTES AND REGULATIONS JUDICIALLY
CONSI DERED
Canadian Bill of Rights, R.S.C. 1970, Appendix III, s.
2(b).
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, /982, Schedule B, Canada Act
1982, 1982, c. II (U.K.), s. I 1(h).
Code of Offences, R.R.O. 1980, Reg. 791 (Schedule).
Criminal Code, R.S.C. 1970, c. C-34.
Immigration Act, R.S.C. 1927, c. 93, ss. 40, 42, 43.
Immigration Act, 1976, S.C. 1976-77, c. 52, ss.
27(1)(d)(i), 32(2), 72(1) (as am. by S.C. 1984, c. 21,s.
81), 84, 126(a).
Interpretation Act, R.S.C. 1970, c. 1-23, s. 36.
Ministry of Correctional Services Act, R.S.O. 1980, c.
275.
Police Act, R.S.O. 1980, c. 381.
Royal Canadian Mounted Police Act, R.S.C. 1970, c.
R-9
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Wigglesworth, [1987] 2 S.C.R. 541; 45 D.L.R.
(4th) 235; Reference as to the effect of the Exercise by
His Excellency, the Governor General of the Royal Pre
rogative of Mercy upon Deportation Proceedings, [1933]
S.C.R. 269.
CONSIDERED:
Knockaert v. Canada (Commissioner of Corrections),
[1987] 2 F.0 202; (1986), 72 N.R. 161 (leave to appeal
refused [1987] 1 S.C.R. ix; (1987), 22 Admin.L.R.
xxviii); R. v. Shubley (1988), 63 O.R. (2d) 161 (C.A.);
Gittens (In re), [1983] I F.C. 152; (1982), 137 D.L.R.
(3d) 687; 68 C.C.C. (2d) 438 (T.D.); Trimm v. Durham
Regional Police, [1987] 2 S.C.R. 582; 45 D.L.R. (4th)
276; Bowen v. Minister of Employment and Immigration,
[1984] 2 F.C. 507; (1984), 58 N.R. 223 (C.A.); Frangi-
pane v. Minister of Employment and Immigration et al.,
T-1553-85, Jerome A.C.J., judgment dated 27/3/86, not
reported; Secretary of State v. Delezos, [1989] I F.C.
297 (T.D.).
REFERRED TO:
Fong Yue Ting v. United States, 149 U.S. 698; 37 L. Ed.
905 (1893); Burnham v. Metropolitan Toronto Police,
[1987] 2 S.C.R. 572; 45 D.L.R. (4th) 309; Trumbley and
Pugh v. Metropolitan Toronto Police, [1987] 2 S.C.R.
577; 45 D.L.R. (4th) 318.
AUTHORS CITED
Gordon, Charles and Harry Nathan Rosenfield Immi
gration Law and Procedure, vol. IA, New York: Mat-
thew Bender, 1973.
COUNSEL:
Brent Knazan for appellant.
Roslyn Levine for respondent.
SOLICITORS:
Sack, Charney, Goldblatt & Mitchell,
Toronto, for appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
MACGUIGAN J.: This case raises but a single
issue: whether the deportation of the appellant
under the provisions of the Immigration Act, 1976
[S.C. 1976-77, c. 52], ("the Act") is contrary to
paragraph 11(h) of the Canadian Charter of
Rights and Freedoms [being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.)], which proscribes double pun
ishment for the same offence.
Section 11 of the Charter reads as follows:
11. Any person charged with an offence has the right
(a) to be informed without unreasonable delay of the specif
ic offence;
(b) to be tried within a reasonable time;
(c) not to be compelled to be a witness in proceedings
against that person in respect of the offence;
(d) to be presumed innocent until proven guilty according to
law in a fair and public hearing by an independent and
impartial tribunal;
(e) not to be denied reasonable bail without just cause;
(1) except in the case of an offence under military law tried
before a military tribunal, to the benefit of trial by jury
where the maximum punishment for the offence is imprison
ment for five years or a more severe punishment;
(g) not to be found guilty on account of any act or omission
unless, at the time of the act or omission, it constituted an
offence under Canadian or international law or was criminal
according to the general principles of law recognized by the
community of nations;
(h) if finally acquitted of the offence, not to be tried for it
again and, if finally found guilty and punished for the
offence, not to be tried or punished for it again; and
(i) if found guilty of the offence and if the punishment for
the offence has been varied between the time of commission
and the time of sentencing, to the benefit of the lesser
punishment.
The appellant is a permanent resident of
Canada, having been granted landing on Novem-
ber 10, 1968, when he was nineteen years old. His
admitted criminal record in Canada is as follows
(Appeal Book, pages 195-196):
November 15, 1971 indecent assault suspended sentence,
probation I year
January, 1979 assaulting a police 309 days gaol
officer
December, 1979 creating a disturb- 15 days gaol &
ance by shouting 2 years probation
February, 1982 driving while fined
under suspension
November 4, 1981 possession for the 7 months
purpose of imprisonment
trafficking
(Marihuana)
March 10, 1983 possession for the 8 months
purpose of imprisonment
trafficking
(Marihuana)
The relevant provisions of the Act are as follows:
27. (I) Where an immigration officer or peace officer has in
his possession information indicating that a permanent resident
is a person who:
(d) has been convicted of an offence under any Act of
Parliament for which a term of imprisonment of
(i) more than six months has been imposed,...
he shall forward a written report to the Deputy Minister setting
out the details of such information.
32....
(2) Where an adjudicator decides that a person who is the
subject of an inquiry is a permanent resident described in
subsection 27(1), he shall, subject to subsections 45(1) and
47(3), make a deportation order against that person.
On October 24, 1984, an immigration inquiry
was held pursuant to a report issued under sub-
paragraph 27(1)(d)(i) of the Act, which stated
that the appellant had been sentenced to over six
months' imprisonment following conviction for
offences under an Act of Parliament. He was
detained in custody for two days pending the
inquiry, but was released from custody when the
inquiry was adjourned. When the hearing was
resumed on December 21, 1984, he was ordered
deported on the grounds set out in subparagraph
27(1)(d)(i).
The appellant appealed to the Immigration
Appeal Board, conceding that the deportation
order was valid in law, but asking the Board to
exercise its special powers under subsection 72(1)
[as am. by S.C. 1984, c. 21, s. 81] of the Act. The
Board declined to do so and dismissed his appeal
on December 17, 1985. The appellant appealed to
this Court under section 84 of the Act, with leave.
The Charter argument now made was first
raised in this Court.
The appellant contended that "punishment means
a public act whereby an individual suffers a loss,
disability or disadvantage as a result of miscon
duct" (Memorandum of Fact and Law, paragraph
14). He supported this with the dissenting view of
Brewer J. in the United States Supreme Court in
Fong Yue Ting v. United States, 149 U.S. 698 at
page 740; 37 L. Ed. 905 (1893), at page 922, that
"deportation is punishment". He also cited the
concurring opinion of Marceau J. in Knockaert v.
Canada (Commissioner of Corrections), [ 1987] 2
F.C. 202, at pages 205-206; (1986), 72 N.R. 161,
at page 165; leave to appeal refused [1987] 1
S.C.R. ix; 22 Admin.L.R. xxviii:
Punishment means "the imposition of a penalty" and a penalty
[The definition given by The Shorter Oxford English Diction
ary (1973), reads as follows: Penalty 1. Pain, suffering (rare).
2. A punishment imposed for breach of law, rule, or contract; a
loss, disability, or disadvantage of some kind, either fixed by
law for some offence, or agreed upon in case of violation of a
contract;] is, in a broad sense, a "disadvantage of some kind"
imposed as a consequence of a misbehaviour which, it seems to
me, may include a loss of reward. Moreover, even if the earning
of remission days reducing the length of the sentence pro
nounced against him is not automatic for an inmate, in the
sense that it is subject to good conduct, nevertheless it is not a
discretionary reward and remains such a normal feature of the
sentencing system that a prisoner is entitled to expect a reduc
tion of his sentence by regular earned remission to the extent
that the loss of a periodic addition to his entitlement has to be
seen objectively as a sanction in the nature of a punishment. I
would not be prepared to disavow what appears to me to be the
implied finding of the learned Trial Judge that the decision of
the Earned Remission Board amounted to a punishment, a
finding which compelled her to deal with the double jeopardy
argument on another basis.
The appellant also relied on the provision of the
Act itself that deportation can properly be recog
nized as "a penalty, forfeiture or punishment".
This argument can be immediately dismissed,
because in the relevant paragraph, 126(a) of the
Act, there is a restricted context that is of no
assistance with respect to the classification of
deportation for purposes of the Charter:
126. For greater certainty,
(a) a deportation order made under the Immigration Act, as
it read before it was repealed by subsection 128(1) of this
Act, shall be deemed to be a penalty, forfeiture or punish
ment within the meaning of paragraph 36(e) of the Interpre
tation Act;
Paragraph 36(e) of the Interpretation Act
[R.S.C. 1970, c. I-23] is, however, only a bridging
provision:
36. Where an enactment (in this section called the "former
enactment") is repealed and another enactment (in this section
called the "new enactment") is substituted therefore,
(e) when any penalty, forfeiture or punishment is reduced or
mitigated by the new enactment, the penalty, forfeiture or
punishment if imposed or adjudged after the repeal shall be
reduced or mitigated accordingly ...
The appellant also argued that the Minister's
power to resort to both arrest and detention, and
his use of that power in this case when the appel
lant was detained for his inquiry, demonstrates
that deportation is a disadvantage and a sanction.
The Supreme Court of Canada has recently
defined the parameters of section 11 of the Char
ter in R. v. Wigglesworth, [1987] 2 S.C.R. 541; 45
D.L.R. (4th) 235. In that case, a member of the
RCMP was alleged to have assaulted a prisoner in
his custody, as a result of which he was charged
both with common assault under the Criminal
Code [R.S.C. 1970, c. C-34] and with a major
service offence under the Royal Canadian Mount
ed Police Act [R.S.C. 1970, c. R-9] for which the
maximum penalty is imprisonment for one year.
On his appearance before an RCMP service court,
he was convicted and fined $300. The accused in
that case argued that to proceed with the Criminal
Code charge, in view of his service offence convic-
tion, would constitute an infringement of his rights
under paragraph 11(h) of the Charter.
The majority judgment (for six of seven judges)
by Wilson J. favoured the narrower interpretation
of section 11 as applying to "criminal or quasi-
criminal proceedings and proceedings giving rise to
penal consequences" (at pages 558 S.C.R., 250
D.L.R.).
The appellant in the case at bar attempted to
argue that Wigglesworth is not in point because in
that case the first conviction was in the service
court, whereas here the first conviction was in a
criminal court. But no such distinction as to the
order of the convictions can be based on the Wig-
glesworth reasoninng. In fact, in her analysis of
the governing principles, Madam Justice Wilson
was dealing with the whole of section 11, and not
just with paragraph (h).
Her analysis of the scope of section 11 is as
follows (at pages 559-561 S.C.R.; 251-252
D.L.R.):
While it is easy to state that those involved in a criminal or
penal matter are to enjoy the rights guaranteed by s. 1l, it is
difficult to formulate a precise test to be applied in determining
whether specific proceedings are proceedings in respect of a
criminal or penal matter so as to fall within the ambit of the
section. The phrase "criminal and penal matters" which
appears in the marginal note would seem to suggest that a
matter could fall within s. 1l either because by its very nature
it is a criminal proceeding or because a conviction in respect of
the offence may lead to a true penal consequence. I believe that
a matter could fall within s. Il under either branch.
There are many examples of offences which are criminal in
nature but which carry relatively minor consequences following
conviction. Proceedings in respect of these offences would
nevertheless be subject to the protections of s. Il of the
Charter. It cannot be seriously contended that, just because a
minor traffic offence leads to a very slight consequence, per
haps only a small fine, that offence does not fall within s. Il. It
is a criminal or quasi-criminal proceeding. It is the sort of
offence which by its very nature must fall within s. I 1.
In my view, if a particular matter is of a public nature,
intended to promote public order and welfare within a public
sphere of activity, then that matter is a kind of matter which
falls within s. I1. It falls within the section because of the kind
of matter it is. This is to be distinguished from private, domes
tic or disciplinary matters which are regulatory, protective or
corrective and which are primarily intended to maintain disci-
pline, professional integrity and professional standards or to
regulate conduct within a limited sphere of activity .... There
is also a fundamental distinction between proceedings under
taken to promote public order and welfare within a public
sphere of activity and proceedings undertaken to determine
fitness to obtain or maintain a licence. Where disqualifications
are imposed as part of a scheme for regulating an activity in
order to protect the public, disqualification proceedings are not
the sort of "offence" proceedings to which s. 1 l is applicable.
Proceedings of an administrative nature instituted for the pro
tection of the public in accordance with the policy of a statute
are also not the sort of "offence" proceedings to which s. 1 l is
applicable. But all prosecutions for criminal offences under the
Criminal Code and for quasi-criminal offences under provincial
legislation are automatically subject to s. 1 I. They are the very
kind of offences to which s. I I was intended to apply.
This is not to say that if a person is charged with a private,
domestic or disciplinary matter which is primarily intended to
maintain discipline, integrity or to regulate conduct within a
limited private sphere of activity, he or she can never possess
the rights guaranteed under s. 11. Some of these matters may
well fall within s. 1l, not because they are the classic kind of
matters intended to fall within the section, but because they
involve the imposition of true penal consequences. In my opin
ion, a true penal consequence which would attract the applica
tion of s. I l is imprisonment or a fine which by its magnitude
would appear to be imposed for the purpose of redressing the
wrong done to society at large rather than to the maintenance
of internal discipline within the limited sphere of activity.
[Emphasis added.]
Wilson J. concluded that a major service offence
under the RCMP code of discipline does fall
within section 11, because the possibility of impris
onment for one year is a true penal consequence.
Estey J. in dissent accepted the general analysis to
this point and disagreed only with the majority's
final holding, viz., that the two offences are never
theless different offences so that the accused was
not tried and punished a second time for the same
offence.
In the case at bar, since the deportation pro
ceeding was clearly not by its very nature criminal
or quasi-criminal, the issue as defined in the terms
of Wilson J. is whether deportation can rightly be
considered a true penal consequence.
The respondent contended that only imprison
ment was a true penal consequence, but that does
not square with Wilson J.'s words that "a true
penal consequence which would attract the
application of s. 11 is imprisonment or a fine
which by its magnitude would appear to be
imposed for the purpose of redressing the wrong
done to society at large rather than to the mainte
nance of internal discipline within the limited
sphere of activity." [Emphasis added.]
On the other hand, it is impossible to go along
with the appellant's argument that the arrest and
imprisonment for two days which befell the appel
lant constituted a true penal consequence. This
was not a consequence in the true sense, but rather
a means of ensuring the appellant's presence at the
initial immigration inquiry.
In my view, no answer to the question whether
deportation is a true penal consequence leaps out
from the analysis of Madam Justice Wilson. It is
therefore necessary to look closely at all other
relevant decisions.
The first cases that should be examined are
these decided on the same day as Wigglesworth:
Burnham v. Metropolitan Toronto Police,
[1987] 2 S.C.R. 572; 45 D.L.R. (4th) 309; Trimm
v. Durham Regional Police, [1987] 2 S.C.R. 582;
45 D.L.R. (4th) 276; and Trumbley and Pugh v.
Metropolitan Toronto Police, [1987] 2 S.C.R.
577; 45 D.L.R. (4th) 318. In the Trimm case, the
appellant police officer was charged under the
Code of Offences [R.R.O. 1980, Reg. 791
(Schedule)] of the Ontario Police Act [R.S.O.
1980, c. 381] both with neglect of duty and with
insubordination by disobeying a lawful order. The
maximum penalty under the disciplinary proceed
ings was dismissal or forced resignation, and
Wilson J. held, for a unanimous court (at pages
589 S.C.R.; 282 D.L.R.):
Unlike Wigglesworth, the appellant is not subject to the possi
bility of imprisonment under the Police Act. There are in this
case no "true penal consequences".
The Court's conclusions in Burnham and Trumb-
ley were to the same effect.
In R. v. Shubley (1988), 63 O.R. (2d) 161
(C.A.), and inmate in a provincial correctional
institution, after assaulting another inmate, was
found guilty of a misconduct under regulations
enacted pursuant to the Ontario Ministry of Cor
rectional Services Act [R.S.O. 1980, c. 275].
Subsequently, the victim of the assault laid an
information charging assault causing bodily harm
under the Criminal Code. After setting out the
range of penalties available to the superintendent
of an institution under the relevant regulations,
Robins J.A. wrote for the Court (at pages
169-170):
The penalties that may be imposed by the superintendent
under s. 31(1) involve mainly the loss or withdrawal of privi
leges or benefits normally available to an inmate who conducts
himself properly in accordance with the rules. The penalties for
more serious misconducts under s. 31(2) involve a change in the
nature of the inmate's confinement or (subject to the Minister's
approval) forfeiture of a portion or all of the inmate's earned
remission or suspension of his eligibility to earn remission.
None of these penalties can be said to constitute true penal
consequences so as to render the disciplinary offence a criminal
or penal offence and thereby bring into play s. 11 of the
Charter.
An inmate becomes an inmate because of the criminal or
quasi -criminal proceedings which led to his imprisonment.
Those proceedings are obviously criminal or quasi -criminal in
nature and the consequences are penal. But once within the
institution, changes in the form of an inmate's cell arrangement
or the content of his diet or the loss, forfeiture or suspension of
privileges or benefits otherwise available to him do not amount
to true penal consequences such as to satisfy the second Wig-
glesworth test. The term of imprisonment remains the same,
only the manner in which or the arrangements under which the
term is to be served have been changed, and that because of the
inmate's own misconduct in the institution. The scale of punish
ment involved reflects only the internal disciplinary interest and
not the interest of the public at large.
Some years before Wigglesworth, Mahoney J.,
while still in the Trial Division, held in Gittens (In
re), [1983] 1 F.C. 152, at page 158; (1982), 137
D.L.R. (3d) 687, at page 692; 68 C.C.C. (2d) 438,
at page 443:
In its relevant parts, paragraph 11(h) vests the applicant
with the right not to be punished again for his crimes. Deporta
tion is not punishment for the offences, his conviction of which
has rendered a person liable to deportation: Reference re the
effect of the exercise of the Royal Prerogative of Mercy on
Deportation Proceedings, [ 1933] S.C.R. 269 at p. 278.
Also, this Court held in Bowen v. Minister of
Employment and Immigration, [ 1984] 2 F.C. 507,
at page 509; (1984), 58 N.R. 223 (C.A.), at page
225, that "paragraph 11(c) of the Charter has no
application to the testimony to be given by the
person concerned at an inquiry under the Immi
gration Act, 1976 . .. the purpose of which is to
determine a person's status under that Act, since
that person cannot be said to be a `person charged
with an offence' (per Heald J.). Similarly, in a
case where an immigrant was being deported for
criminal activity, the associate Chief Justice held
that deportation "can scarcely be characterized as
punishment of any sort, much less of a cruel and
unusual nature" contrary to paragraph 2(b) of the
Canadian Bill of Rights [R.S.C. 1970, Appendix
III]: Frangipane v. Minister of Employment and
Immigration et al., decided March 27, 1986, no.
T-1553-85, at page 4.
A good summary of the position of the Courts in
the United States is found in Gordon and Rosen-
field, Immigration Law and Procedure, Vol. 1A:
The courts repeatedly have said that a deportation edict does
not involve criminal punishment. [1, at para. 4.1c] ...
Since deportation is not regarded as criminal punishment,
the double jeopardy prohibition would not preclude a criminal
prosecution of one subjected to deportation proceedings in the
same ground. Conversely, of course, there would be no bar to
bringing of deportation proceedings against a person subjected
to criminal prosecution for the same offense. [2, para. 4.3(i)].
Finally, in Secretary of State v. Delezos, [ 1989]
1 F.C. 297 (T.D.), where the respondent had been
convicted under the Criminal Code, on a guilty
plea, of uttering a forged document in his applica
tion for citizenship, in a subsequent proceeding for
revocation of citizenship, Muldoon J. stated (at
page 303):
Here there is no doubt in the present case that the respondent
was indeed a "person charged with an offence" within the
meaning of section 11 of the Charter when he was convicted of
uttering a forged document, by a judge of the District Court of
Ontario, on March 20, 1984. Equally without doubt is that the
respondent is not charged with that offence, or even any offence
in these proceedings.
The implication of all this case law is that a
deportation proceeding should not be considered to
be within paragraph 11(h) of the Charter. Besides
authority, there is, moreover, good reason to come
to the same conclusion. The necessary redressing
of the wrong done to society, and the goal of
deterrence of others, has already been accom
plished through the criminal conviction. The pur
pose of the deportation proceedings is not any
larger-than-personal social purpose, but merely to
remove from Canada an undesirable person. It is
individual deterrence, as it were, not social deter
rence. Deportation under the Immigration Act,
1976 is thus to be distinguished from the older
criminal sanctions of banishment or transportation
to a penal colony, in which a citizen was deported
from his country of birth as part of his punish
ment, and so was just another penal consequence.
It cannot be supposed that deportation to a depor-
tee's country of birth is a true penal consequence.
It may, in particular circumstances, amount to a
grave personal disadvantage, but not to the kind of
larger-than-merely-personal disadvantage to which
paragraph 11(h) of the Charter is directed. Depor
tation is analogous, rather, to a loss of a licence or
to dismissal from a police force, or to the forfeiture
of a right to practice a profession.
The non-criminal character of deportation was
in fact the very point decided by the Supreme
Court in Reference as to the effect of the Exercise
by His Excellency, the Governor General of the
Royal Prerogative of Mercy upon Deportation
Proceedings, [1933] S.C.R. 269, at page 278,
when section 40 of the Immigration Act (R.S.C.
1927, c. 93) was the precursor of subsection 27(1)
of the present Act and sections 42 and 43 the
predecessors of subsection 32(2). Duff C.J. held
for the Court:
It is, perhaps, almost unnecessary to observe that the group
of sections under consideration is not concerned with the penal
consequences of the acts of individuals. They are designed to
afford to this country some protection against the presence here
of classes of aliens who are referred to in the statute as
"undesirable." The broad conception upon which they are
based is indicated by the summary already given of the enact
ments of s. 40. Persons convicted of crime in this country,
persons who are inmates of prisons in this country, are classed
with persons who are inmates of asylums for the insane, with
persons implicated in the trade of prostitution, with persons
known to have been convicted elsewhere of offences involving
moral turpitude, with persons who are remaining in this coun
try in defiance of the prohibitions of the Immigration Act.
Moreover, the results which follow from proceedings under s.
42 are not attached to the criminal offence as a legal conse
quence following de jure upon conviction for the offence or
imposable therefor at the discretion of a judicial tribunal. They
follow, if they follow at all, as the result of an administrative
proceeding initiated at the discretion of the Minister at the
head of the Department of Immigration.
In the words of the Supreme Court at that time,
deportation is "not concerned with the penal
consequences of the acts of the individuals", but is
rather designed to afford protection against the
presence in the country of undesirable persons.
I find the result clear both on precedent and on
principle. I would therefore dismiss the appeal.
URIE J.: I agree.
STONE J.: I agree.
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.