A-210-73
Stephen Michael Cohen, also known as Stephen
Gerald Cohen, or Stephen Ira Cohen (Applicant)
v.
Minister of Manpower & Immigration (Respond-
ent)
Court of Appeal, Thurlow J., Hyde and Shep-
pard D.JJ.—Vancouver, January 14 and 15,
1974.
Judicial review—Deportation—Prohibited class—`Persons
who admit having committed a crime involving moral turpi-
tude'—Admission as to conviction not the same as admis
sion as to having committed the crime—Deportation order
set aside—Immigration Act, R.S.C. 1970, c. 1-2, s. 5(d).
This is a section 28 application to review and set aside a
deportation order made under subparagraph 18(1)(e)(iv) of
the Immigration Act in that the applicant was a member of a
prohibited class at the time of his admission to Canada,
namely, a person described in paragraph 5(d) as a person
who admitted to having committed a crime involving moral
turpitude.
Held, the deportation order is set aside. The applicant
admitted that he was convicted of a theft in California and
was imprisoned for 90 days but he did not admit that he
committed the crime. It is not the same thing. The Special
Inquiry Officer failed to observe a principle of natural
justice and erred in law in having made a finding that is not
sustainable on the material before him.
JUDICIAL review.
COUNSEL:
G. G. Goldstein for applicant.
G. O. Eggertson for respondent.
SOLICITORS:
John Taylor Associates, Vancouver, for
applicant.
Deputy Attorney General of Canada for
respondent.
HYDE D.J.—This is an application under sec
tion 28 of the Federal Court Act to review and
set aside an order of deportation made against
the applicant on December 5th by a Special
Inquiry Officer. We were informed that the
applicant has been deported pursuant to the
order but the question of the validity of the
order has not thereby become entirely academic
because so long as it stands the applicant is
subject to the disabilities provided by the Immi
gration Act in respect of persons against whom
such orders have been made.
The basis for deporting the applicant, as set
out in the order is that he is a person described
in subparagraph 18(1)(e)(iv) of the Immigration
Act in that he was a member of the prohibited
class at the time of his admission to Canada,
"namely a person described in paragraph 5(d) of
the Immigration Act, persons who admit having
committed a crime involving moral turpitude;
except persons whose admission to Canada is
authorized by the Governor-in-Council".
The direction given to the Special Inquiry
Officer under section 25 of the Act by one J. B.
McKinistry, who describes himself as "Acting
Director of Immigration Operations for the
Director of Immigration", reproduced as Exhib
it "C" (App. Bk., p. 66) is:
... to determine whether the said Stephen Michael Cohen
also known as Stephen Ira Cohen, and Stephen Gerald
Cohen, is a person other than a Canadian citizen or a person
with Canadian domicile and is a person described in sub-
paragraph 18(1)(e)(iv) of the Immigration Act in that he was
a member of a prohibited class at the time of his admission
to Canada, namely a person described in paragraph 5(d) of
the Immigration Act, persons who have been convicted of
any crime involving moral turpitude, except persons whose
admission to Canada is authorized by the Governor-ia-
Council.
Section 5(d) of the Act includes in the prohib
ited class "persons who have been convicted of
or admit having committed any crime involving
moral turpitude ...".
A comparison of the wording of the deporta
tion order and that of McKinistry's section 25
direction discloses that while the latter refers to
"persons who have been convicted etc." the
former finds him to be in the class of "persons
who admit having committed a crime involving
moral turpitude".
The two alternatives, valid as they may be as
the basis of exclusion, are obviously not the
same thing. One may well have been convicted
of a crime but not admit having committed it.
The use of this alternative is curious in view
of the remarks of the Special Inquiry Officer
immediately preceding his formal order when he
says to the applicant "you have also admitted to
me a conviction in the Courts of California for
theft" (App. Bk., p. 62). He then continues on
to say that theft is a crime involving moral
turpitude.
Now, while there is evidence in the testimony
of the applicant that he was convicted in the
Courts of California of theft, even though it
may not have been "grand theft" (whatever the
line may be dividing grand theft from something
less in the several categories of theft in that
jurisdiction) there is no evidence upon which it
was, in my opinion, proper for the Inquiry Offi
cer to conclude that the applicant had admitted
the commission of theft.
I cannot accept the respondent's contention
that such an admission is found in appellant's
own words at page 59:
A. O.K. First of all, I admitted to the crime of theft. My
definition of theft and obviously the definition of theft as
you see it; I'd like to withdraw my admitting to the crime of
theft. After speaking to my attorney in California, the par
ticular crime to which I was convicted on is not actually
defined as theft in California, so I withdraw my conviction
of theft. By being charged with that particular crime and
having it changed by Rule 17 of the Penal Code, State of
California does not ... is completely obstruction to the
crime of theft and therefore I deny any allegation as my
knowledge of being convicted of a crime of theft as you see
it. If I wasn't reduced by Rule 17 then I would say that I
have been convicted of a crime of theft.
Up to that time it is agreed that all that had
been admitted was a conviction. If the whole of
the passage just extracted is read together I see
no justification for concluding that applicant
had suddenly changed his position. Further
more, he was not warned by the Inquiry Officer
that anything other than a conviction was
alleged against him.
The question of whether the applicant was a
person who admitted having committed a crime
involving moral turpitude had not up to that
time been the subject of the inquiry and at no
subsequent stage was any step taken to make it
the subject matter of inquiry and to give the
applicant an opportunity to meet it. See Laskin
J. (as he then was) in Minister of Manpower and
Immigration v. Brooks (1973) 36 D.L.R. (3d)
522 at page 525:
The Immigration Act may be invoked on any or all of the
stated grounds upon which a report and a consequent inqui
ry may be founded, so long as the subject of the inquiry is
made aware of the allegations made against him under the
relevant provisions of the Act which are invoked, and is
given an opportunity to meet them.
I take a similar view as regards applicant's
answer at page 61: "As I said before, I with
draw my admission to the crime of theft". One
does not withdraw an admission which has not
been made. Applicant clearly was referring to
his admission of conviction of the crime of
theft.
Applicant gave a somewhat confusing
account of the basis of the theft charge against
him (App. Bk., p. 17), which is not made any
clearer by obvious errors in transcription;
included in this statement he says that he was
told if he pleaded guilty and asked for probation
"that would be the end of the case". Whether
this is what happened or not, we do not know
but he does admit that he was sentenced to eight
months imprisonment, later modified to 90 days
on what he described as "work furlough", per
mitting him to work during the day though
spending the night in gaol.
We know that what might be termed as guilty
pleas of convenience are resorted to in some
jurisdictions.
It is unfortunate that the Inquiry Officer
during the three weeks delay accorded by him
to the applicant did not obtain more particulars
of the offence of which applicant was convicted
which should have been available and would
have settled the matter leaving only his determi-
nation as to whether such offence was under the
laws of Canada, the proper test, a crime involv
ing moral turpitude.
If the Inquiry Officer had based his order of
applicant's admission of conviction of theft, I
would have found it difficult to criticize as that
would, in my view, have constituted sufficient
evidence of a conviction.
However, this is not what he did. In deciding
that applicant was a person "who admitted)
having committed a crime involving moral turpi
tude", presumably theft, I find that the Special
Inquiry Officer failed to observe a principle of
natural justice and erred in law in having made a
finding that is not sustainable on the material
before him.
This being the case, I do not need to consider
any of the other grounds raised by applicant.
I would accordingly set aside the deportation
order.
* * *
THURLOW J.—I concur.
* * *
SHEPPARD IJ.J.—I concur.
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.