A-524-89
The Minister of Employment and Immigration
(Appellant)
v.
Trevor Sabaulks Smalling (Respondent)
INDEXED AS: CANADA (MINISTER OF EMPLOYMENT AND
IMMIGRATION) V. SMALLING (CA.)
Court of Appeal, Stone, MacGuigan and Linden
JJ.A.—Toronto, January 30; Ottawa, February 5,
1992.
Immigration — Deportation — Permanent resident having
been charged under Narcotic Control Act, s. 4, with indictable
offence of possession for purpose of trafficking — Pleading
guilty to hybrid offence of simple possession contrary to s. 3
Whether convicted of offence punishable by five years' impris
onment — Onus on Crown to prove permanent resident deport-
able under Immigration Act s. 27(1)(d)(ii) — Guilty plea to
lesser included hybrid offence conviction on indictment —
Decision of Immigration Appeal Board overturning deporta
tion order set aside.
Criminal justice — Narcotics — Accused charged with
indictable offence of possession for purpose of trafficking —
Plea of guilty to lesser included hybrid offence of simple pos
session constituting conviction on indictment.
This was an appeal from a decision of the Immigration
Appeal Board reversing a deportation order.
The respondent, a permanent resident of Canada, was
charged in 1975 with possession of a narcotic for the purpose
of trafficking, an indictable offence punishable, under section 4
of the Narcotic Control Act, by life imprisonment. He pleaded
guilty to the lesser and included offence of simple possession,
contrary to subsection 3(1), and was fined $75. Simple posses
sion is a hybrid offence punishable, upon summary conviction,
by a year's imprisonment and, upon conviction on indictment,
by seven years' imprisonment.
Subparagraph 27(1)(d)(ii) of the Immigration Act defines, as
persons who are to be removed from Canada, permanent
residents who have been convicted of an offence punishable by
more than five years' imprisonment. An adjudicator ordered
the respondent deported. The Immigration Appeal Board held
that the Crown in the criminal proceeding must have pro
ceeded by way of summary conviction, and reversed the depor
tation order.
Held, the appeal should be allowed.
The onus is on the Crown to prove, on the balance of
probabilities, that a permanent resident is a person subject to
removal under subparagraph 27(1)(d)(ii). There was no evi
dence that the possession for the purpose charge had been
withdrawn and replaced with one of simple possession; rather,
the evidence was that no new charge was laid and that a plea
was entered to the lesser and included offence. If the case had
proceeded upon a plea of not guilty to possession for the pur
pose of trafficking, and the judge had found the accused guilty
of possession only, the conviction would have been for the
indictable offence under paragraph 3(2)(b). The same result
follows from a plea of guilty.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Criminal Code, R.S.C. 1970, c. C-34, s. 646(2).
Immigration Act, R.S.C. 1970, c. I-2, ss. 18, 646(2).
Immigration Act, R.S.C., 1985, c. 1-2, s. 27(1)(d).
Narcotic Control Act, R.S.C. 1970, c. N-1, ss. 3, 4.
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Wardley (1978), 43 C.C.C. (2d) 345; 11 C.R. (3d)
282 (Ont. C.A.); R. v. Fudge (1979), 26 Nfld. & P.E.I.R.
76; 72 A.P.R. 76; 49 C.C.C. (2d) 63 (C.A.)
REFERRED TO:
Regina v. Howard Smith Paper Mills, Limited et al.,
[1954] O.R. 663; [1954] 4 D.L.R. 517; (1954), 109
C.C.C. 213; 22 C.P.R. 119; 19 C.R. 242 (H.C.); Rex v.
Vanek, [1944] O.R. 428; [1944] 4 D.L.R. 59; (1944), 82
C.C.C. 53 (C.A.).
COUNSEL:
A. Leena Jaakkimainen for appellant.
Dan Miller for respondent.
SOLICITORS:
Deputy Attorney General of Canada for appel
lant.
Green & Spiegel, Toronto, for respondent.
The following are the reasons for judgment ren
dered in English by
LINDEN J.A.: This is an appeal from a decision of
the Immigration Appeal Board dated April 26, 1989,
in which the Board overturned a decision ordering
Trevor Smalling, the respondent, a permanent resi
dent from Jamaica, deported from Canada. The adju-
dicator had found the respondent to be a person
described in what is now subparagraph 27(1)(d)(ii) of
the Immigration Act [R.S.C., 1985, c. I-2] (formerly
section 18 [R.S.C. 1970, c. I-2]) which reads as fol
lows:
27. (1) Where an immigration officer or a peace officer is in
possession of information indicating that a permanent resident
is a person who
(d) has been convicted of an offence under any Act of Par
liament for which a term of imprisonment of
(i) more than six months has been imposed, or
(ii) five years or more may be imposed.....
The legislation goes on to stipulate that a report
should be made and then considered by the Deputy
Minister and, if warranted, an inquiry should be
undertaken, as a result of which a person may be
ordered deported.
The purpose of this legislation is to remove from
Canada permanent residents who commit serious
offences, presumably on the basis that they have
thereby forfeited the privilege of remaining in
Canada and the opportunity to become Canadian citi
zens.
It will be noted that, under the legislation, a person
must be convicted of an offence. The offence must be
one for which either a term of imprisonment of more
than six months has been imposed or one for which a
term of five years or more may be imposed. Parlia
ment has obviously determined that an offence is
serious enough to warrant deportation if someone is
sentenced to a prison sentence of more than six
months, or if a lesser sentence is actually imposed, it
was possible that a five-year sentence might be
imposed.
This being a provision dealing with the removal of
permanent residents from Canada, the onus of prov
ing facts upon which such a determination is to be
made rests upon the Crown. It is not for the perma
nent resident to have to prove that he is not a person
as described by subparagraph 27(1)(d)(ii). The stan
dard of proof is on the balance of probabilities, the
usual standard of proof in matters such as these.
Mr. Smalling and his wife, Mrs. R. Smalling, were
charged in 1975 with offences under the Narcotic
Control Act [R.S.C. 1970, c. N-1], namely possession
of narcotics for the purpose of trafficking (see sub
section 4(2)). It was alleged that they had in their
possession 3 1 / 2 pounds of marijuana. Everyone who
contravenes that section is guilty of an indictable
offence and liable for imprisonment for life (subsec-
tion 4(3)).
As a result of plea negotiations, it appears that Mr.
Smalling pleaded guilty to the lesser and included
charge of having in his possession a narcotic (subsec-
tion 3(1)) and the charge was withdrawn against Mrs.
Smalling. A person found guilty of the possession
offence, which is called a "hybrid offence", on a first
offence, is liable either on "summary convic
tion ... to a fine not exceeding one thousand dollars
or to imprisonment for a term not exceeding six
months or to both" or "on conviction on indictment,
to imprisonment for a term not exceeding seven
years". (See paragraphs 3(2)(a) and (b).)
The penalty imposed on Mr. Smalling on March
19, 1975 was a fine of $75 or, in lieu thereof, fifteen
days in jail, clearly not within subparagraph
27(1)(d)(i). The evidence, however, is not crystal
clear as to whether he was convicted of an indictable
offence, which would have made him potentially lia
ble to a prison term of seven years, and, hence,
excludable (re subparagraph 27(l)(d)(ii)) or whether
he was convicted of a summary conviction offence
which would mean that he was not excludable.
The adjudicator found that he was convicted of an
indictable offence and ordered him deported. The
Board reversed that decision, holding that the Crown
"must have proceeded by way of summary convic
tion", given the sentence which could only have been
imposed if the offence was a summary conviction
offence and given the maxim that one must "presume
that a court has done the right thing".
Having examined all of the material, which unfor
tunately does not include a transcript of the proceed
ings at which the sentence was imposed and which
might have shed more light on what actually
occurred, I am of the view that the adjudicator was
correct in concluding that Mr. Smalling was con
victed of an indictable offence. There is no indication
that the charge against Mr. Smalling under subsection
4(2) was withdrawn and replaced with a charge laid
pursuant to section 3. Nor is there any evidence in the
record that the Crown elected to proceed summarily,
rather than by indictment, which it had the discretion
to do.
Certainly, it would have been possible for the
Crown to have withdrawn the original charge under
subsection 4(2), re-laid it under section 3 and elected
to proceed summarily. There is no evidence, how
ever, that this occurred. Rather, the documentary evi
dence indicates that no new charge was laid, but that
Mr. Smalling's plea was to the lesser and included
offence of possession. The only evidence of any elec
tion was that of the accused to proceed before the
Provincial Court Judge which was his right in an
indictable proceeding.
The authority of R. v. Wardley (1978), 43 C.C.C.
(2d) 345 (Ont. C.A.), leads inexorably to the conclu
sion that the Board erred in law and that Mr. Smal-
ling was found guilty of an indictable offence, sub
jecting him to a potential prison term of more than
five years and making him deportable under subpara-
graph 27(1)(d)(ii). Mr. Justice Dubin explained the
law as follows [at page 347]:
If the case had proceeded upon a not guilty plea and the
Judge had found that the accused, although in possession, was
not in possession for the purpose of trafficking, the verdict
would have been guilty of the indictable offence of possession.
The same result follows upon a plea of guilty.
Consistent with R. v. Wardley is R. v. Fudge (1979),
26 Nfld. & P.E.I.R. 76 (C.A.), where Morgan J.A.
stated [at page 77]:
On a charge of "simple possession", it is incumbent on the
Crown to elect trial by summary conviction or trial by indict
ment. If the election were by way of summary conviction and
the accused convicted, a conviction should properly be entered
under Section 3(2)(a). If by indictment, a conviction should be
entered under Section 3(2)(b).
In the case at bar, the accused was not charged with posses
sion simply. He was charged with the indictable offence of
possession for the purpose of trafficking. Following the
accused's election the matter proceeded by way of indictment
under Part XVI of the Code. Thus, the finding by the Magis
trate that the accused was in possession of a narcotic contrary
to section 3 of the Narcotic Control Act was in fact a finding
that the accused was guilty of an indictable offence and a con
viction should therefore have been entered under Section
3(2)(b).
It should be noted that the counsel representing the
respondent at the deportation hearing expressly
acknowledged this legal conclusion. It should also be
noted that in 1975, under the old section 18, any con
viction under the Narcotic Control Act subjected a
person to deportation, not only convictions for
offences punishable by more than five years. Thus, if
Mr. Smalling had not been so difficult to locate over
the years, he would have been deported much earlier
without any basis for complaint on the grounds raised
on this appeal.
The argument based on subsection 646(2) of the
Criminal Code [R.S.C. 1970, c. C-341 and the techni
cal meaning of "conviction" as stated in Regina v.
Howard Smith Paper Mills, Limited et al., [1954]
O.R. 663 (H.C.) and Rex v. Vanek, [1944] O.R. 428
(C.A.) is of no relevance here. The appropriate rem
edy for any sentencing error that may have been
made by the Trial Judge was an appeal as to sentence,
as was done in Wardley, supra. But no such appeal
was launched. This is understandable, because the
error could only have led to a greater penalty, not a
lesser one. Nor would such an appeal, even if suc
cessful, have made any difference to the outcome of
this appeal, since the conviction dated March 19,
1975 was clearly to an indictable offence in any
event.
The decision of the Board dated April 26, 1989 will
be set aside and the order of the adjudicator dated
March 3, 1988 will be affirmed.
STONE J.A.: I agree.
MACGUIGAN J.A.: 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.