Judgments

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C.A.C. 52/74
In the matter of the Canadian Citizenship Act and in the matter of Stephen Hardwick Merritt
Citizenship Appeal Court, Cattanach J.—Corn- wall, September 23; Ottawa, October 1, 1974.
Citizenship—Appeal from rejection of application— Whether appellant of good character—Conviction of crimi nal offence—Whether proof of rehabilitation—Evidence on appeal—Canadian Citizenship Act, R.S.C. 1970, c. C-19, s. 10(1)(d)—Narcotic Control Act, R.S.C. 1970, c. N-1, s. 3— Federal Court Rule 911.
The appellant, convicted on a plea of guilty to unlawful possession of a narcotic, contrary to section 3(1) of the Narcotic Control Act, was fined $100 or five days in jail. His application for citizenship was rejected by the County Court Judge on the ground that, after the conviction, the applicant had failed to demonstrate his rehabilitation, in that he admitted continuing the occasional use of soft drugs.
Held, allowing the appeal, the county judge had correctly applied the proper principles to the evidence before him. But, under Federal Court Rule 911, the appellant had pro duced further evidence on appeal and this should be con sidered with reference to the time of the appeal. The evi dence showed that the appellant had given up the use of drugs and had achieved rehabilitation.
APPEAL. COUNSEL:
H. Sherwood for appellant. P. Beseau, amicus curiae.
SOLICITORS:
Adams, Bergeron and Palmer, Cornwall, for appellant.
Barrette, Lalonde, Chartrand & Beseau, Ottawa, amicus curiae.
The following are the reasons for judgment delivered in English by
CATTANACH J.: This is an appeal from the rejection of an application for Canadian citizen ship by the Citizenship Court which came to the conclusion that the appellant was not of "good character" within the meaning of section 10(1)(d) of the Citizenship Act.
His Honour C. A. Stiles, who is the County Court Judge for the United Counties of Stor- mont, Dundas and Glengarry and who was the
Judge of the Court of first instance, reached that conclusion by reason of the fact that on December 5, 1973 the appellant pleaded guilty at the Provincial Court, Cornwall, Ontario, to a charge that "he unlawfully did have in his possession a narcotic, to wit: cannabis resin, contrary to section 3(1) of the Narcotic Control Act". Having pleaded guilty the appellant was duly convicted of that charge and was fined $100 or five days in jail.
It is axiomatic that because a person has been convicted of an offence it does not follow that the person is to be eternally damned to being a person not of good character. After the person has been so convicted and has paid the penalty imposed upon him he may demonstrate by his subsequent course of conduct and way of life that he has rehabilitated himself in the eyes of right thinking citizens. In that event he is en titled to a finding that he is of good character within the meaning of section 10(1)(d).
There can be no rule of thumb strictly appli cable in the decision of such matters but salient considerations would be the seriousness of the offence, contrasted with the length of time during which the person has lived an exemplary life of a law abiding and useful member of society.
The learned Judge of the Court of first instance was fully aware of the foregoing princi ples and in my view he applied them correctly in this matter. He exhibited great concern. He questioned the appellant who frankly admitted that he had been growing marijuana for his personal use. Apparently, in response to ques tions by the Trial Judge, the appellant indicated that he had desisted from growing his own supply but also admitted that even at that time he still used the drug occasionally.
Faced with this admission by the appellant the Trial Judge concluded that the appellant does not strictly observe the criminal law of the Country. The Trial Judge had previously point ed out that the use of marijuana is against the
law to which the appellant made no response. It is implicit in the remarks of the Trial Judge that he construed the appellant's failure to respond to this observation to mean that the appellant did not agree with the mores of the majority.
Accordingly I am of the opinion that the learned Trial Judge correctly applied the basic principles enunciated above to the facts of this particular case as were before him and properly rejected the appellant's application for citizenship.
In the matter of an appeal under the Citizen ship Act by Victor Grégoire dated May 28, 1971 from a rejection of the appellant's application for citizenship because the applicant there did not intend to have his place of domicile in Canada, the Chief Justice of this Court said:
Having regard to the decision of this Court in the appeal of Mrs. Eugénie Jodoin, dated April 5, 1968, a question such as whether the appellant intends to have his place of domi cile in Canada "must be considered with reference to the time that the Court has the matter under consideration".
Before the Chief Justice, the applicant Gré- goire established that at that time he had changed his mind and had intended to have his place of domicile in Canada. The Chief Justice therefore allowed the appeal.
In the appeal of Mrs. Eugénie Jodoin to which the Chief Justice referred in the passage quoted above, specific mention was made that as a general rule when an applicant has had a crimi nal conviction he should be expected to bring before the Court of first instance unrelated per sons able to testify as to the type of life the applicant had been living since his conviction.
Rule 911 provides that an appeal shall take the form of a new hearing at which evidence shall be received and such examination of the appellant shall be conducted as the Court deems appropriate.
Further evidence was adduced before me.
It was established that the appellant has taken a leading part in the community affairs particu larly the Glengarry Historical Society in which he initiated the renovation of the Museum in Dunvegan, Ontario and has overseen the prepa ration of a proper catalogue of the exhibits.
Both the local medical practitioner and cler gyman, who were on intimate terms, both socially and professionally with the appellant and his family, testified that he was a model citizen and a credit to the community. Both were aware of the appellant's two convictions, one for possession of marijuana and second for the possession of hashish.
My prime concern however has been with respect to the appellant's use of soft drugs. While it is not explicitly stated I have the dis tinct impression that the appellant's attitude before the learned Trial Judge that the growing of marijuana and the appellant's subsequent use of that drug after he had desisted from growing it was that his actions in so doing were his private affairs and did not affect the community at large. Before me I think the appellant's atti tude has undergone a radical change for the better.
The appellant was, in fact, convicted twice of the offence of possession. The second offence for which the conviction was recorded in December 1973 took place under unusual circumstances.
The appellant was married in 1965 and there are three children of that marriage, two girls aged 6 and 7 years respectively and a baby boy aged 15 months. A friend of the family, named Cobb, wrote to Mrs. Merritt to advise her that he was sending a parcel from the Middle East addressed to himself under an alias in care of the appellant, and which parcel included cloth ing and contraband. Mrs. Merritt did not tell her husband about this because she wanted to shield him because of his prior conviction for possession.
The sender of the parcel arrived at the appel lant's home before the arrival of the parcel. He stayed with the Merritts for a period of weeks awaiting the arrival of the parcel. Because of its
non-arrival during that interval, Cobb, the sender of the parcel, left, much to the relief of Mrs. Merritt. Four days after the sender left the parcel arrived. The postmaster called Mrs. Mer- ritt to tell her there was a parcel. Mrs. Merritt was expecting a parcel of shoes from her par ents for the children and asked her husband to pick it up. He did. It contained .34 grams of hashish in a shirt pocket and a quantity of opium. The parcel was opened by Mrs. Merritt, who at that time told her husband of its con tents. Her husband picked up the hashish but Mrs. Merritt dumped the opium in the garbage pail in the expectation that it would be gathered by the trash collector, taken to the dump and be burned. However before this could happen tile police arrived. Cobb was convicted of an offence and sentenced to three years imprison ment. The appellant pleaded guilty and was con victed of possession of .34 grams of hashish. He was fined $100.
Following on these two convictions an order for deportation issued against the appellant. On appeal to the Immigration Appeal Board the deportation order was quashed. I commend the amicus curiae for bringing this fact to my attention.
At this point I should also add that I was very favourably impressed by Mrs. Merritt who testi fied that after this second conviction to which the appellant pleaded guilty that she had a heart to heart talk with her husband during which she laid down an ultimatum to him. Either he sever all connections with any friends who might be drug users, other than those he came into con tact with on a purely commercial basis during the course of his business as a maker of fret stringed musical instruments and that he himself give up the use of drugs, or she would leave him taking their children with her.
Faced with that choice the appellant has elected to adhere to his wife and children. I am convinced that he will do so. There is no doubt in my mind that the appellant loves his wife and children and could not bear to be parted from them. This is confirmed by the clergyman who
testified that they are a devoted couple and that the three children are extremely well mannered and capably reared. The appellant has contribut ed to their upbringing. In my view the choice offered to the appellant by his wife was not a difficult decision to make and I would have been greatly surprised and exercised if he had done otherwise than to choose his wife and children over the passing pleasure that the occa sional use of soft drugs may have given him.
It is for this reason that I have concluded that the appellant has become rehabilitated and will desist from even an occasional use of drugs and that he will continue to live the exemplary life that he has demonstrated he is capable of doing. This I attribute to his devotion to his wife and their children. I do not reach this conclusion on the ground of compassion but because I am convinced that the appellant is possessed of those qualities inherent in normal human beings of instinctive protection of their young and their mate.
I, therefore, allow the appeal.
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