T-1322-88
Mayurchandra Khimji Ruparel (Applicant)
v.
Minister of Employment and Immigration and the
Secretary of State for External Affairs (Respond-
ents)
INDEXED AS: RUPAREL V. CANADA (MINISTER OF EMPLOY
MENT AND IMMIGRATION) (T.D.)
Trial Division, Muldoon J.—Toronto, October 30,
1989; Ottawa, August 8, 1990.
Immigration — Application to quash denial of application
for permanent residence — Applicant found inadmissible
under s. 19(2)(a)(i) due to U.K. conviction of driving with
excessive alcohol in breath — Judicial notice taken of U.K.
offence — Contrary to Criminal Code, s. 253, Crown election
offence, if committed in Canada — "Offence that may be
punishable by way of indictment under any other Act of
Parliament" in s. 19(2)(a) including hybrid offences
Although s. 19(2)(a) unconstitutional for unjustified age dis
crimination, application dismissed for lack of standing.
Constitutional law — Charter of Rights — Equality rights
— Immigration Act, 1976, s. 19(2)(a)(i) barring persons over
21 when convicted of indictable offence from admission to
Canada for five years from termination of sentence — S.
19(2)(a)(ii) barring those between 18 and 21 for only two years
— Although s. 19(2)(a) unconstitutional for unjustified age
discrimination, applicant lacking standing to apply for
declaration.
Practice — Parties — Standing — Application for declara
tion Immigration Act, 1976, s. 19(2)(a) invalid as contrary to
Charter, s. 15 brought by unsuccessful applicant for perma
nent residence — Application dismissed as applicant non-citi
zen outside Canada with no claim to admission and beyond
scope of Charter.
Construction of statutes — Immigration Act, 1976, s.
19(2)(a) — Applicant filing Minister's statement in House of
Commons upon second reading of bill which became legisla
tion — Inadmissible to show intent — No indication of Senate
debates nor whether bill amended prior to enactment
Speeches in Parliament, often made for partisan advantage,
not law, may misstate law — Legislation enacted governs — S.
19(2)(a) including hybrid offence.
This was an application to quash the denial of an application
for permanent residence and for an order pursuant to Charter,
section 24 declaring that subsection 19(2) of the Immigration
Act, 1976 is inconsistent with Charter, section 15 as it consti
tutes discrimination based on age. The applicant was convicted,
in the United Kingdom, of driving a motor vehicle when the
proportion of alcohol in his breath exceeded the prescribed
limit. His application for permanent residence was refused as
he was inadmissible under subparagraph 19(2)(a)(i) of the
Immigration Act, 1976: a person convicted of an offence that,
if committed in Canada, would constitute an offence that may
be punishable upon indictment, unless he has satisfied the
Minister that he has rehabilitated himself and, if he was
twenty-one or older when convicted, that at least five years
have elapsed since termination of the sentence. Subparagraph
19(2)(a)(ii) requires the passage of but two years since termi
nation of the sentence where the person was under twenty-one
when convicted. The applicant filed the statement of the Minis
ter in the House of Commons upon moving for a second
reading of the bill that was to become the Immigration Act,
1976. Criminal Code, section 253, a Crown election offence,
prohibits the operation of a motor vehicle by a person having
more than 80 milligrams of alcohol in 100 millilitres of blood.
Held, the application should be dismissed.
Section 17 of the Canada Evidence Act requires that judicial
notice be taken of British legislation. The essential elements of
the U.K. offence correspond with section 253 of the Criminal
Code. The applicant was therefore convicted of an offence
which, if committed in Canada, constituted an offence under
any other Act of Parliament. Although it was unlikely that the
Crown would elect to proceed by indictment in a drive-over-80
case, "may be punishable by way of indictment" in paragraph
19(2)(a) includes hybrid offences.
Ministers' statements are inadmissible to show intent because
they ignore Senate debates and whether the bill was amended
prior to enactment: Such speeches, frequently made for parti
san advantage or public effect, were not law and might misstate
the law. It is the legislation enacted that governs.
Paragraph 19(2)(a) appears to be unconstitutional by distin
guishing between adults between 18 and 21 and those over 21.
This is contrary to Charter, section 15. The Crown failed to
demonstrate that such discrimination based on age was justified
under Charter, section 1. American and Canadian studies of
parolees have indicated that those over 25 consistently did
better than those under that age. Born in 1941, the applicant
presents, statistically, less risk of committing further offences
than would a younger person. The Court was, however, bound
by the decision of the Federal Court of Appeal in Canadian
Council of Churches v. Canada. The applicant lacked status to
institute Charter litigation as a non-citizen outside Canada
with no claim to admission and therefore beyond the scope of
the Charter.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Evidence Act, R.S.C., 1985, c. C-5, s. 17.
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], ss. 1, 15.
Criminal Code, R.S.C., 1985, c. C-46, ss. 253 (as am. by
R.S.C., 1985 (4th Supp.) c. 32, s. 59), 255 (as am. by
R.S.C., 1985 (1st Supp.), c. 27, s. 36).
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 19(2)(a),
83.1 (as am. by S.C. 1988, c. 35, s. 19).
Transport Act, 1981 (U.K.), 1981, c. 56, s. 25, Schedule
8, s. 12(2).
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Canadian Council of Churches v. Canada, [1990] 2 F.C.
534; (1990), 106 N.R. 61 (C.A.); Singh et al. v. Minister
of Employment and Immigration, [1985] 1 S.C.R. 177;
(1985), 17 D.L.R. (4th) 422; 12 Admin. L.R. 137; 14
C.R.R. 13; 58 N.R. 1.
REFERRED TO:
Brannson v. Minister of Employment and Immigration,
[1981] 2 F.C. 141; (1980), 34 N.R. 411 (C.A.); Andrews
v. Law Society of British Columbia, [1989] S.C.R. 143;
(1989), 56 D.L.R. (4th) 1; [1989] 2 W.W.R. 289; 34
B.C.L.R. (2d) 273; 36 C.R.R. 193; 91 N.R. 255; Wilson
v. Minister of Justice, [1985] 1 F.C. 586; (1985), 13
Admin. L.R. 1; 20 C.C.C. (3d) 206; 6 C.P.R. (3d) 283;
46 C.R. (3d) 91; 16 C.R.R. 271; 60 N.R. 194 (C.A.);
Minister of Justice et al. v. Borowski, [1981] 2 S.C.R.
575; (1981), 130 D.L.R. (3d) 588; [1982] 1 W.W.R. 97;
12 Sask.R. 420; 64 C.C.C. (2d) 97; 24 C.P.C. 62; 24
C.R. (3d) 352; 39 N.R. 331; Naredo v. Canada (Minister
of Employment and Immigration), T-1985-89, judgment
dated 24/7/90, F.C.T.D., not yet reported.
AUTHORS CITED
Canada, House of Commons Debates, Vol. III, 6th Sess.,
21st Parl., June 10, 1952, at pages 3075 and 3078.
Driedger, Elmer A. The Construction of Statutes,
2nd ed., Toronto: Butterworths, 1974.
Gabor, Thomas The Prediction of Criminal Behaviour:
Statistical Approaches, Toronto: Univ. of Toronto
Press, 1986.
Martin's Annual Criminal Code, 1990, with annotations
by Edward L. Greenspan, Aurora, Ontario: Canada
Law Book Inc., 1989.
COUNSEL:
David A. Bruner for applicant.
L. April Burey for respondents.
SOLICITORS:
Abraham, Duggan, Hoppe, Niman, Scott,
Toronto, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
MULDOON J.: This is a sad case for it appears
that the applicant, his wife and child who would
appear to be first-rate immigrants are delayed in
their application for permanent residence in
Canada because of an isolated lapse of no great
moral turpitude in the applicant's otherwise appar
ently impeccable life's story. The Court must dis
miss his application with profound regret, because
the only alternative would be the Court's own
complicity in a breach, albeit a compassionate
breach, of the rule of law.
Counsel for both sides agree that these proceed
ings are properly instituted without need to obtain
leave pursuant to section 83.1 [Immigration Act,
1976, S.C. 1976-77, c. 52 (as added by S.C. 1988,
c. 35, s. 19)] of the current immigration statute.
The relief sought in the applicant's notice of
motion filed July 7, 1988, is an apt overture to
these reasons. In it the applicant seeks:
... relief in the nature of certiorari pursuant to section 18(a) of
the Federal Court Act, S.C. 1970-1971-1972, c. 1, quashing the
refusal by the Respondents dated the 21st day of March, 1988,
of the Application for Permanent Residence in Canada of
Mayurchandra Khimji Ruparel for reason that the Applicant is
inadmissible to Canada in that he is a person described in
section 19(2)(a)(i) of the Immigration Act, 1976, for an order
in the nature of mandamus pursuant to [said] section 18(a) ...
directing the Respondents to reconsider and process the said
application for permanent residence in Canada in accordance
with the Immigration Act, 1976 (as amended), and the Immi
gration Regulations, 1978 (as amended), and for an order or
remedy pursuant to section 24(1) of the Canadian Charter of
Rights and Freedoms declaring that section 19(2) of the
Immigration Act, 1976 (as amended) is inconsistent with the
provisions of section 15 of the Canadian Charter of Rights and
Freedoms to the extent that it constitutes discrimination based
on age, which discrimination is not a reasonable limit pre
scribed by law as can be demonstrably justified in a free and
democratic society, and to the extent of the inconsistency, is of
no force or effect pursuant to section 52(1) of the Canadian
Charter of Rights and Freedoms, or for such other order as
may seem just.
The applicant's affidavit tells of the unfortunate
events leading up to his rejection pursuant to
subparagraph 19(2)(a)(i) of the Immigration Act,
1976 as amended (hereinafter, the Act). Here are
that affidavit's pertinent paragraphs:
1. I am a citizen of the United Kingdom.
2. I am married to Jozica Ruparel, a citizen of Yugoslavia.
3. My wife and I have a son, Nicholai Ruparel, who is a citizen
of the United Kingdom.
4. I am a professional accountant and my wife is an executive
secretary.
• • •
8. On the advice of the Canadian High Commission, we con
tacted my brother, Sudhir Khimji Bhanji Ruparel, a citizen of
Canada, who resides in Aurora, Ontario, and on January 19,
1988, my brother executed an Undertaking of Assistance
(Assisted Relative Class) at the Toronto East Canada Immi
gration Centre on our behalf. Attached hereto, and marked as
Exhibit "C" to this my Affidavit is a true copy of the guaran
tor's copy of the Undertaking of Assistance.
9. On or about January 4, 1988, at Great North Road, Barnet,
Hertsfordshire, I was charged with the offence of driving a
motor vehicle on a road after consuming so much alcohol that
the proportion thereof in my breath exceeded the prescribed
limit, contrary to section 6 and schedule 4 to the British Road
Traffic Act, 1972, as substituted by section 25 and schedule 8
to the British Transport Act, 1981. Attached hereto, and
marked as Exhibit "D" to this my Affidavit is a true copy of
the charge record issued to me by the Barnet Metropolitan
Police. Attached hereto, and marked as Exhibit "E" to this my
Affidavit is a true copy of the test record issued to me by the
Barnet Metropolitan Police on January 4, 1988, with respect to
two specimens of breath provided by me, which results formed
the subject matter of the drinking and driving charge referred
to herein.
10. The test result indicated that the first specimen of breath
provided by me contained 57 milligrams [sic] of alcohol per
100 millilitres of breath and the second specimen of breath
contained 56 milligrams [sic] of alcohol in 100 millilitres of
breath.
11. On or about January 18, 1988, I attended the Barnet
Magistrates Court, High Street Barnet, and pleaded guilty to
the drinking and driving offence. I was sentenced to a fine of
£225 sterling and my driver's licence was disqualified for one
year.
12. In or about March, 1988, my wife and I attended a visa
interview at the Canadian High Commission in London.
13. At the time of the interview, I disclosed the conviction
referred to herein to the Visa Officer, F.J. Mark, Second
Secretary.
14. By letter dated March 21, 1988, a true copy of which is
marked as Exhibit "F" to this my Affidavit, I was advised by
the Canadian High Commission in London that my Applica
tion for Permanent Residence in Canada was refused because it
has been determined that I am inadmissible to Canada because
I am a person described in section 19(2)(a)(i) of the Immigra
tion Act, 1976.
15. With the exception of the conviction for drinking and
driving dated January 18, 1988, I have never been convicted of
any crime of [sic-or] offence.
16. In the evening of January 4, 1988, my last day of work in
Canada Life Insurance Company of Potters Bar, U.K., I drank
two and a half pints of beer with my colleagues from work. At
approximately 9 p.m., I was stopped by the police as I was
driving home. I told the police, and later the court, that it was
foolish to have driven alter drinking. I am only an occasional
drinker and I do not abuse alcohol.
In paragraph 10, above, the applicant must have
relied too much on his solicitors: the charge related
to microgrammes, not milligrams of alcohol in 100
millilitres of breath.
Paragraph 16, above, states the isolated and no
doubt aberrant lapse in the conduct of the appli
cant's life. If only he had engaged a taxi! So say
many, ruefully, and accordingly, they, like the
applicant, pay their "debts to society".
The applicant had to pay the fine and undergo
the year's disqualification from driving, both com
prising his sentence, upon conviction for the fol
lowing offence:
... you did drive a motor vehicle on a road or other public
place after consuming so much alcohol that the proportion
thereof in your breath exceeded the prescribed limit.
Contrary to Section 6 and Schedule 4 to the Road Traffic Act,
1972 as substituted by section 25 and Schedule 8 to the
Transport Act, 1981. (applicant's exhibit "D")
The second above-cited statute [Transport Act,
1981 (U.K.), 1981, c. 56] provides in its subsection
25(3):
25.
(3) For sections 6 to 12 of the 1972 Act there are substituted
the sections set out in Schedule 8.
The new section 6 refers to the proportion of
alcohol in a person's "breath, blood, or urine"
[emphasis added] as did the former section. It is
provided in the Transport Act, 1981 mentioned in
the charge above recited. The "prescribed limit" is
set out in Schedule 8, subsection 12(2), to mean:
12. ...
(2) ... as the case may require —
(a) 35 microgrammes of alcohol in 100 millilitres of breath;
(b) 80 milligrammes of alcohol in 100 millilitres of blood; or
(c) 107 milligrammes of alcohol in 100 millilitres of urine;
or such other proportion as may be prescribed by regulations
made by the Secretary of State.
No such regulations which might have been in
force in January, 1988, were brought to the
Court's attention. Each stated proportion of
alcohol is the equivalent of the other two. It is
necessary only to note that section 17 of the
Canada Evidence Act, R.S.C., 1985, c. C-5, exacts
that judicial notice be taken of all Acts of the
Imperial Parliament. Accordingly the Court must
take judicial notice of the "debt to society" which
persons in the U.K. must pay for the commission
of the above defined offence and of the ingredients
of the offence.
The applicant, however, is inflicted with a heavi
er "debt" than most other British citizens because
he was in the process of immigrating, with his
family, to Canada. It is Canadian law which
imposes the further penalty, whereby the Act
provides:
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; [Emphasis added.]
It will be noted that as between subparagraphs (i)
and (ii) there is a distinction, if not a discriminato
ry inequality, based on whether the subject be less
than 21 years of age, or be that age or older.
Another notable aspect of paragraph 19(2)(a),
at least in regard to the applicant's obviously
earnest submissions, is that it does not mention a
"crime" or "moral turpitude" at all, despite its
exceptional reference to "persons who have satis
fied the Minister that they have rehabilitated
themselves". It ought to be mighty easy to give
such satisfaction after a once-in-a-lifetime convic
tion of driving with excessively alcoholic breath,
blood or urine. Nevertheless, instead of "crime" or
"moral turpitude", the Act refers only to "an
offence . .. under any other Act of Parliament",
which expression covers a great multitude of not
only mala prohibita, but also of course mala in se,
the "real" crimes. All crimes are offences, but not
all offences are crimes; and Parliament simply
avoided any distinction by adopting the broader
expression "offence" in paragraph 19(2)(a) of the
Act.
The Revised Statutes of Canada, 1985, were
proclaimed in force as of December 12, 1988, but
certain intervening legislation in the field of crimi
nal law actually amended R.S.C., 1985 such that
the applicable law here may be conveniently found
in sections 253 and 255 set out in Martin's Annual
Criminal Code, 1990. These provisions of the
Criminal Code [R.S.C., 1985, c. C-46 (as am. by
R.S.C. 1985 (4th Supp.), c. 32, s. 59)] are those
offences "under any other Act of Parliament"
mentioned in paragraph 19(2)(a):
253. Every one commits an offence who operates a motor
vehicle ....
. . .
(b) having consumed alcohol in such a quantity that the
concentration in the person's blood exceeds eighty milligrams
of alcohol in one hundred millilitres of blood.
The Criminal Code, not being road traffic legisla
tion, does not limit the above offence to being
committed only on a highway. It can be committed
anywhere including on or along a highway, street
or road. So, here one notes the offence in Canada
of driving a motor vehicle, on or off a road or other
public or private place, after consuming so much
alcohol as to concentrate in the blood a proportion
exceeding 80 milligrams of alcohol in 100 mil
lilitres of blood, (or its equivalent in the breath of
35 micrograms of alcohol in 100 millilitres of
breath).
It regrettably appears that the applicant was
convicted in the U.K. of an offence which, if
committed in Canada, constitutes an offence under
any other Act of Parliament, the Criminal Code.
But is it an offence in Canada which "may be
punishable by way of indictment under" the
Criminal Code? Alas, it is. Section 255 [as am. by
R.S.C., 1985, (1st Supp.), c. 27, s. 36] of the Code
in part provides:
255. (1) Every one who commits an offence under section
253 or 254 is guilty of an indictable offence or an offence
punishable on summary conviction and is liable,
(a) whether the offence is prosecuted by indictment or
punishable on summary conviction, to the following mini
mum punishment, namely,
(i) for a first offence, to a fine of not less than three
hundred dollars,
(ii) for a second offence, to imprisonment for not less than
fourteen days, and
(iii) for each subsequent offence, to imprisonment for not
less than ninety days;
(b) where the offence is prosecuted by indictment, to impris
onment for a term not exceeding five years; and
(c) where the offence is punishable on summary conviction,
to imprisonment for a term not exceeding six months.
(2) Every one who commits an offence under paragraph
253(a) and thereby causes bodily harm to any other person is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding ten years.
(3) Every one who commits an offence under paragraph
253(a) and thereby causes the death of any other person is
guilty of an indictable offence and liable to imprisonment for a
term not exceeding fourteen years.
This is a "hybrid offence" with Crown option as to
manner of proceeding.
Now it would seem highly unlikely that the
Crown would have proceeded by way of indict
ment, if the applicant had committed the offence
in Canada. Luckily, he seems to have caused no
death, no personal injuries and no property
damage. Nevertheless, it is the terms of paragraph
19(2)(a) which govern, as enacted.
Exhibit "C" to Janet Rowsell's affidavit filed
for the applicant, is a "copy of an excerpt from the
Canadian House of Commons, Parliamentary
Debates of June 10th, 1952, including the state
ment of the Honourable W. E. Harris, Minister of
Citizenship and Immigration upon moving a [sic]
second reading of Bill No. 305, an Act Respecting
Immigration". In Elmer A. Driedger's well-
respected work, The Construction of Statutes,
Butterworths, Toronto, Chapter 8, "External Con
text", it is stated at page 130: "It is well estab
lished that parliamentary debates are not admis
sible to show Parliamentary intent", followed by a
footnote of weighty authorities. The statement of
the Hon. Walter E. Harris recorded in the Com
mons' Hansard, even if admissible to record his
understanding and intent on that day, does not,
and nor does the applicant, say anything of the
debates in the Senate, that other multi-member
organ of Canada's bicameral legislature, nor
whether Bill No. 305 was ever amended before
being enacted.
The learned author Driedger suggests that if a
minister's speech be inadmissible to show intent,
then, logically it might be "more" admissible to
show "the evil or mischief" [which provoked intro
duction of the Bill]. However, the learned author
notes (at pages 130-131), "Perhaps the reason for
rejecting a Minister's speech in Parliament to
show mischief is that a Royal Commission is sup-
posed to be objective, and evidence tendered to it is
normally given under oath."
Other good reasons for rejecting speeches in
Parliamentary debates are that they are not law,
they sometimes misstate the law, and are frequent
ly made for partisan advantage or public effect. In
the instant example, whereas the Minister proudly
mentioned (Hansard, at page 3075) that dichoto
my between persons younger than 21 years and
those 21 years of age and older, the Opposition
spokesman, Hon. Donald Fleming in welcoming
the proposed reforms (Hansard, at page 3078)
chose to ignore that dichotomy in dealing in his
remarks with people "who, having been convicted
of crimes involving moral turpitude, have never
theless established themselves in society or, as the
bill puts it, are rehabilitated". Whose version, in
one chamber of the bicameral Parliament, can be
said to unlock any secrets of interpretation?
Neither speaker "speaks" law: it is Parliament
(composed of Sovereign, Senate and Commons)
which "enacts" law. Parliament should be taken to
say what it means and to mean what it says,
especially in this instance, since there is no cryptic
or other ambiguity in the Act's text in this regard.
Therefore, it is the provisions of paragraph
19(2)(a) as enacted, which govern here.
They do not speak of or exempt an offence
which probably would have been charged as a
summary conviction offence, nor yet of a hybrid
offence which could possibly have been charged by
indictment. On the contrary, in paragraph
19(2)(a) of the Act, Parliament most articulately
and unambiguously speaks of "an offence that
may be punishable by way of indictment under any
other Act of Parliament" [emphasis added] and
that emphasized expression includes, of course, an
offence which may possibly not be punishable by
way of indictment, but rather by way of summary
conviction proceedings, as is found in section 253
of the Criminal Code. The essential elements of
the respective offences correspond with each other:
Brannson v. Minister of Employment and Immi-
gration, [1981] 2 F.C. 141 (C.A.), at pages
152-153.
In view of the general age of majority in both
federal and provincial laws in Canada being set at
18 years of age, subparagraphs 19(2)(a)(i) and (ii)
draw a distinction between those adults who are
between 18 and 21 years of age in subparagraph
(i) and those adults who are 21 years of age or
older in subparagraph (ii). The distinction, pre
scribed by the cited law, does not appear to be
demonstrably justified in terms of section 1 of the
Canadian Charter of Rights and Freedoms [being
Part 1 of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C.,
1985, Appendix II, No. 44]]. Indeed the Crown,
which here upholds those limits prescribed by law,
fails to demonstrate the justification for such a
sterile discrimination as between adult persons
who are over the age of 18 years.
The sterility of the provision appears to reside in
its counter-productivity, quite apart from its irrele
vant discrimination on personal characteristics in
breach of subsection 15(1) of the Charter:
Andrews v. Law Society of British Columbia,
[1989] 1 S.C.R. 143. Subparagraphs (i) and (ii)
are surely counter-productive according to the
author Thomas Gabor, an excerpt from whose
opus, The Prediction of Criminal Behaviour: Sta
tistical Approaches, 1986 Univ. of Toronto Press,
is appended as exhibit "H" to Janet Rowsell's
affidavit, filed by the applicant. The following
passages, at pages 36 and 37 of that work are,
among others, pertinent:
As in the two cohort studies just cited, an early age of
delinquency onset was positively related to the total number of
contacts with the criminal justice system. An interesting find
ing was that individuals with four or more contacts prior to the
age of 18 had a better-than-even likelihood of exceeding that
number of contacts following the age of 18, whereas, for those
with three or less prior contacts, the situation was reversed
that is, less than half exceeded their pre-I8 total following that
age. What this seems to indicate is an intensification of crimi-
nality for those already criminally active as juveniles and a
tapering off for those never deeply committed to criminality.
• • •
Another way of examining the age factor is to observe parole
outcome at various ages. In a study of 7,245 parolees released
in 1968 across the United States, Babst, Koval, and Neither-
cutt (1972) found that the probability of parole success was
almost invariant across different age groups. This included
comparisons between those aged 19 years and less with those
over 40 years of age. However, when offenders were classified
according to their prior criminal records and drug or alcohol
involvement, those over 25 years of age consistently did better
than those under that age. In a Canadian study of 423 Ontario
parolees in 1968, Waller (1974), using the same cutting-off
point of 25 years of age, found that the younger parolees were
substantially higher recidivism risks than were those in the
older categories.
Born in March, 1941, the applicant, along with
others of his age presents less risk of further
criminal behaviour, or of committing further
offences than do male persons younger than 18
years of age. The age discrimination in paragraph
19(2)(a) appears unjust and unjustifiable.
If that were all there were to it, the Court would
grant the asked-for orders in the nature of certio-
rari and mandamus sought by the applicant. The
Court would then find that the distinction residing
in subparagraphs (i) and (ii) would be inoperative,
and hence inapplicable to the applicant because it
constitutes a violation of section 15 of the Charter.
Unfortunately for the applicant there is more to
this case than is above considered.
Even although the respondents have conceded
that the requirements stated by Mr. Justice
Mahoney for the Appeal Division of this Court in
Wilson v. Minister of Justice, [1985] 1 F.C. 586
are met, and they concede that this application for
declaratory relief should not be dismissed solely
because it was not instituted by a statement of
claim, that concession of progress does not spell
the end of the hurdles facing the applicant. There
is yet one further question of what might be said to
be assimilated to standing, or the applicant's status
to institute these proceedings. Consideration of
that matter requires a short viewing of the
progress of this litigation.
The hearing of this case occurred in Toronto on
October 30, 1989. The Court called upon the
counsel on each side to provide further argument
in writing, on a schedule terminating on or about
December 5, 1989, with which counsel faithfully
complied. But, by that time it appeared that the
Appeal Division's adjudication of the Crown's
appeal in Canadian Council of Churches v.
Canada, [1990] 2 F.C. 534, would probably shed
light on the question of standing faced by the
applicant herein, and that the Appeal Division
ought to be tracked if its decision appeared to be
reasonably imminent. The Appeal Division heard
the case in January, 1989, and its unanimous
judgment was rendered by Mr. Justice Mac-
Guigan on March 12, 1990, the beginning of a
long, inopportune period for the formulation of
this Court's reasons in this case at bar.
The Council of Churches case is one in which
the standing to institute Charter litigation is pro
foundly explored and the Appeal Division's judg
ment in part could have been, and in fact was
determinative of the law in regard to the appli
cant's status in these present proceedings. That
judgment shed old and new light. The Council
filed its statement of claim in January, 1989,
seeking a declaration that most of the operative
provisions of the new Immigration Act [R.S.C.,
1985, c. 1-2], as well as several provisions of the
old Act were unconstitutional as breaching the
Charter and the Canadian Bill of Rights [R.S.C.,
1985, Appendix III]. The Government applied
under Rule 419(1) [Federal Court Rules, C.R.C.,
c. 663] for an order striking out the statement of
claim on the bases that the Council of Churches
lacked standing to seek declarations of legislative
invalidity and that the statement of claim, in any
event, disclosed no reasonable cause of action.
Under the approach to the matter of standing,
crystallized in Minister of Justice et al. v. Borow-
ski [Borowski No. 1], [1981] 2 S.C.R. 575, before
the emplacement of the Charter but later than
that of the Canadian Bill of Rights, the law,
according to MacGuigan J.A. in the Council of
Churches case, may be taken to accord litigants
the choice between showing that they are personal
ly affected and showing that they are entitled to
public-interest standing. Here, it is quite clear that
the applicant is indeed personally affected by the
operation of paragraph 19(2)(a) of the Act, and so
the other choice does not come into consideration.
As mentioned, on the facts of this case the
Court would be quite prepared to accord this
apparently worthy applicant the relief he seeks,
including a declaration. The Court quite readily
notes that it is the undoubted right of Canada to
bar entry and residence to persons of criminal
proclivities, but in the name of common sense and
sanity, it is apparent (at least on this record) that
the applicant is a good citizen who is devoid of
criminal proclivities, or barbarous deeds. (One
may note, by contrast, the case of Naredo v.
Canada (Minister of Employment and Immigra
tion), T-1985-89, July 24, 1990, F.C.T.D.). The
applicant broke the law in the U.K. by driving
under the influence of alcohol and, luckily, caused
no injury or damage. It would appear that he was
probably fully "rehabilitated", never again to
transgress in that regard, at the very moment he
perceived that a police constable was requiring
him to stop his car. In any event it does appear
that paragraph 19(2)(a) of the Act is unconstitu
tional.
Alas, the applicant cannot have the remedies
which he so justly seeks. In Singh et al. v. Minister
of Employment and Immigration, [1985] 1 S.C.R.
177, at pages 201-202, Madame Justice Wilson,
writing for one of the two equal divisions of the
Supreme Court of Canada in that case, considered
the application of the Charter, and came to this
conclusion:
Counsel for the Minister concedes that "everyone" is sufficient
ly broad to include the appellants in its compass and I am
prepared to accept that the term includes every human being
who is physically present in Canada and by virtue of such
presence amenable to Canadian law. [Emphasis not in original
text.]
Here is the point of guidance taken up, no doubt,
by MacGuigan J.A. in the Council of Churches
case wherein, in regard to certain matters pleaded
in the statement of claim, he is reported (at page
563) as holding:
This [pleading] could found a right of standing, but cannot
constitute a reasonable cause of action since the claimants
affected would all be non-citizens outside Canada with no claim
to admission, and therefore beyond the scope of the Charter.
It would be tempting to say that because, when
the applicant disclosed his conviction he was in the
Canadian High Commission in London, and
because the respondents' letter invoking paragraph
19(2)(a) issued from that place, and because the
High Commission is if not de facto, it is in any
event de jure Canada, that therefore the applicant
circumvents the disability pronounced to apply in
his circumstances. (Applicant's affidavit, para
graphs 12 to 14.) That would surely be a legal
fiction in the tradition of the common law. The
pronouncements, of the two appellate Courts are
however too clear, and in the case of this Court's
unanimous Appeal Division, too recent, to be dilut
ed by a legal fiction no matter how worthy the
cause. It may be noted that in the case of that
half-bench of the Supreme Court of Canada in
Singh (Beetz J., for the other half, refrained from
expressing any opinion on this subject) no require
ment of citizenship is posited; and indeed it is quite
the contrary, for a non-citizen in Canada may
invoke all those Charter rights not reserved for
citizens.
Perhaps someday an applicant present in
Canada will enjoy sufficient standing and possess
sufficient determination to bring the same sort of
application. It would be better that such person be
a plaintiff instituting an action in the nature of a
law suit leading to a trial, for the consent herein
evinced might never be repeated. In the mean
while, the applicant's claim must regrettably be
dismissed in compliance with the Appeal Division's
unanimous judgment in the Canadian Council of
Churches decision, [1990] 2 F.C. 534. He is not
liable to the respondents for their costs, despite the
professional high quality of their counsel's
performance. Both sides' counsel merit praise.
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.