Mihm v. Minister of Manpower and Immigration, [1970] SCR 348

Supreme Court of Canada

Mihm v. Minister of Manpower and Immigration, [1970] S.C.R. 348

Date: 1970-01-27

Jerry Myric Mihm, Suzanne Mihm and Thomas Lee Mihm Appellants;

and

The Minister of Manpower and Immigration Respondent.

1969: December 1; 1970: January 27.

Present: Cartwright C.J. and Abbott, Hall, Spence and Pigeon JJ.

ON APPEAL FROM THE IMMIGRATION APPEAL BOARD

Immigration—Deportation—Foreigner entering Canada as non-immigrant visitor—Accepting employment without making application for permanent residence or obtaining work permit—Application made some months later—Order for deportation—Immigration Act, R.S.C. 1952, c. 325, ss. 7(3), 19(1)(e)(vi).

The appellant M, his wife and child entered Canada in November 1967 as non‑immigrant visitors intending to stay for two weeks. M ceased to be in the particular class of visitor on taking employment on December 7, 1967. On March 15, 1968, following inquiries made of him by the R.C.M.P. as to whether he intended to remain in Canada, and on being advised by the Police that in order to work lawfully in Canada it was necessary to make application for permanent residence, M attended at the Immigration Office and made such application. This application stated truthfully that he had been admitted to Canada as a visitor but stated inaccurately that he was allowed to remain in Canada until March 17, 1968. He was given an appointment for examination to be held on April 11, 1968.

Prior to this examination, M received a summons charging him pursuant to s. 52 of the Immigration Act with failing to report to an immigration officer after changing his status, as required by s. 7(3) of the Act.

On April 11, 1968, M was examined by an immigration officer and made a statutory declaration stating that he had worked in Canada without written permission. On receiving this declaration, the immigration officer stopped the inquiry and no further proceedings were taken with regard thereto.

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On April 17, 1968, M appeared in Court in response to the aforementioned summons, pleaded guilty to the charge, was fined $100 and paid the fine.

On August 26, 1968, M was arrested and brought before a Special Inquiry Officer, who found him to be a person described in s. 19(1)(e)(vi) of the Immigration Act, and ordered him and the two other appellants to be deported pursuant to s. 19(2) of the Act. An appeal from that deportation order was dismissed by the Immigration Appeal Board. With leave, the appellants appealed from the Board’s decision to this Court.

Held (Hall and Spence JJ. dissenting): The appeal should be dismissed.

Per Cartwright C.J. and Abbott and Pigeon JJ.: M was not able to bring himself within the terms of subs. (3) of s. 7. It could not be said that he reported forthwith as required by the statute, and when he did report he did not state the facts accurately. The answer to the question whether in a particular case the concluding words of s. 7(3) “and shall, for the purposes of the examination and all other purposes under this Act, be deemed to be a person seeking admission to Canada” have application depends upon whether the condition prescribed in the earlier words “he shall forthwith report such facts to the nearest immigration officer” has been fulfilled. The Court’s jurisdiction was limited to dealing with questions of law and there was no error in law in the decision of the Immigration Appeal Board in this case.

Even on the assumption that M did not intentionally make any false statement and that he was unaware of the obligation to make a report forthwith, he was not excused by ignorance of the law.

Per Hall and Spence JJ., dissenting: The insertion of the date March 17, 1968, in M’s application for permanent residence was done at the suggestion of the interviewing official and was not an attempt by M to deceive the department. The application, made on the very day M was first informed such application was necessary, was made within the provisions of s. 7(3) and he should have the right to “for all purposes” be considered an applicant for permanent residence. One of those “purposes” was the appearance before an immigration officer for an examination under the provisions of s. 20 of the Act.

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APPEAL from an order of the Immigration Appeal Board, dismissing an appeal against a deportation order. Appeal dismissed, Hall and Spence JJ. dissenting.

P. Copeland, for the appellants.

S.M. Froomkin, for the respondent.

The judgment of Cartwright C.J. and Abbott and Pigeon JJ. was delivered by

THE CHIEF JUSTICE—This is an appeal from an order of the Immigration Appeal Board made on October 9, 1968, dismissing an appeal against a deportation order issued at Toronto on August 26, 1968. The appeal is brought pursuant to an order of this Court made on December 9, 1968, giving the appellants leave to appeal upon the following question:

Are the Appellants, who have made an application for permanent residence in Canada, subject to deportation in accordance with Section 19(1)(e)(vi) of the Immigration Act, Revised Statutes of Canada, 1952, Chapter 325?

There is no dispute as to the relevant facts.

The appellant Jerry Mihm (hereinafter referred to as “Mihm”), his wife and child entered Canada at the end of November 1967, through a Manitoba port of entry, as non-immigrants, that is to say as visitors. Mihm stated that they expected to stay for about two weeks. Shortly thereafter Mihm and his family came to Toronto, and he obtained employment on December 7, 1967, without making application for permanent residence or obtaining a work permit.

In February 1968, Mihm was visited at his place of work by the Royal Canadian Mounted Police to find out whether he intended to stay in Canada. Mihm at this time was absent without leave from the United States Army; he advised the Police that he did intend to stay in Canada.

In the middle of March 1968, Mihm was again visited by the Police and was told that in order to work lawfully in Canada it was necessary to make application for permanent residence. On March 15, 1968, he attended at the Immigration

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office in Toronto and made an application in writing for permanent residence in Canada. This application stated truthfully that he had been admitted to Canada as a visitor but stated inaccurately that he was allowed to remain in Canada until March 17, 1968. He was given an appointment for examination to be held on April 11, 1968.

On or about April 2, 1968, Mihm received a summons charging him pursuant to s. 52 of the Immigration Act with failing to report to an immigration officer after changing his status, as required by s. 7(3) of the Act.

On April 11, 1968, Mihm was examined, by one Stefan, an immigration officer, and made a statutory declaration stating that he had worked in Canada without written permission. The record does not indicate that any order was made following this examination.

On April 17, 1968, Mihm appeared in Court in response to the aforementioned summons, pleaded guilty to the charge, was fined $100, and paid the fine.

Under date of July 31, 1968, P.M. Murray, an immigration officer, made a report to the Director of Immigration Operations stating:

Pursuant to subparagraph (vi) of paragraph (e) of subsection (1) of section 19 of the Immigration Act, I have to report that one Jerry Myric Mihm, formerly of the United States of America, is a person other than a Canadian citizen or a person with Canadian domicile, who entered Canada as a non-immigrant and remains therein after ceasing to be a non-immigrant or to be in the particular class in which he was admitted as a non-immigrant.

and on the same date the Director gave the following direction:

Pursuant to section 26 of the Immigration Act, I direct that an Inquiry be held to determine whether the said Jerry Myric Mihm is a person other than a Canadian citizen or a person with Canadian domicile, and is a person described in subparagraph (vi) of paragraph (e) of subsection (1) of section 19 of the Immigration Act, in that he entered Canada

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as a non-immigrant and remains therein after ceasing to be a non-immigrant or to be in the particular class in which he was admitted as a non-immigrant.

On August 26, 1968, Mihm was arrested and brought before V.R. Brown, a Special Inquiry Officer, who found him to be a person described in s. 19(1)(e)(vi) of the Immigration Act, and ordered him and the two other appellants to be deported pursuant to s. 19(2) of that Act. The appeal from that deportation order was heard by the Immigration Appeal Board on October 7, 1968, at Ottawa. On October 9, 1968, the appeal was dismissed. Written reasons for this decision were given on October 25, 1968.

Counsel for the appellant argues that the Immigration Appeal Board erred in law in failing to hold that the appellant, having on March 15, 1968, made application for permanent residence in Canada, ceased, by virtue of s. 7(3) and s. 20 of the Immigration Act, to be subject to deportation pursuant to s. 19(1)(e)(vi) of that Act. In support of this submission counsel relies on the decision of the Court of Appeal for Ontario in Regina v. Pringle, Ex parte Mills[1], decided on April 11, 1968. Counsel for the respondent submits that this decision is inconsistent with that of the Court of Appeal for British Columbia in Re Ho Kit Cheung[2], decided on January 18, 1968, and that the last-mentioned case correctly states the law.

In so far as these judgments (in neither of which is the other referred to) may be at variance with each other I do not find it necessary to choose between them as I am satisfied that on the facts of the case at bar the appellant is not able to bring himself within the terms of subs. (3) of s. 7. That subsection reads as follows:

(3) Where any person who entered Canada as a non-immigrant ceases to be a non‑immigrant or to be in the particular class in which he was ad-

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mitted as a non-immigrant and, in either case, remains in Canada, he shall forthwith report such facts to the nearest immigration officer and present himself for examination at such place and time as he may be directed and shall, for the purposes of the examination and all other purposes under this Act, be deemed to be a person seeking admission to Canada.

The appellant entered Canada in November as a non-immigrant visitor intending to stay for two weeks. He ceased to be in the particular class of visitor on taking employment on December 7, 1967. However favourably to the appellant the word “forthwith” is to be construed, it cannot be said that he reported forthwith; and when on March 15, 1968, following the inquiries made of him by the police, he made a report he did not state the facts accurately. In these circumstances nothing occurred to deprive the Director of jurisdiction to order the inquiry which he directed or to deprive the Special Inquiry Officer of jurisdiction to hold the inquiry which he held on August 26, 1968. The answer to the question whether in a particular case the concluding words of s. 7(3) “and shall, for the purposes of the examination and all other purposes under this Act, be deemed to be a person seeking admission to Canada” have application depends upon whether the condition prescribed in the earlier words “he shall forthwith report such facts to the nearest immigration officer” has been fulfilled. Our jurisdiction is limited to dealing with questions of law and I can find no error in law in the decision of the Immigration Appeal Board in this case.

Since writing the above I have had the advantage of reading the reasons of my brother Spence and, for the purposes of this appeal, I am prepared to assume that Mihm did not intentionally make any false statement to the Immigration authorities and that he was unaware of the obligation to make a report forthwith imposed upon him by s. 7(3) of the Act; but, in my view, even on this assumption the appeal fails; ignorantia legis neminem excusat.

I would dismiss the appeal.

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The judgment of Hall and Spence JJ. was delivered by

SPENCE J. (dissenting)—This is an appeal from a judgment of the Immigration Appeal Board pronounced on October 9, 1968. By that judgment, the said Board dismissed the appeal of the appellant against a deportation order made at the City of Toronto on August 26, 1968. That deportation order was made by a Mr. V.R. Brown, a Special Inquiry Officer, who had been directed to hold an inquiry by the order of Mr. I.R. Stirling, the Director of Immigration Operations at Toronto, made on July 31, 1968.

It is necessary to consider the facts surrounding the appeal in some detail.

The appellant, who was a citizen of the United States of America and was absent without leave from his military unit, crossed the border at an entry port in Manitoba, about the end of November or early in December 1967. The appellant, his wife and his infant child were then passengers in an automobile owned and driven by the appellant’s brother. They reported to some official at the Canadian border. They were unable to say whether that official was a Customs officer or an Immigration officer. In his testimony before the Special Inquiry Officer, the appellant described that conference with the Canadian official as follows:

Q. What was your answer? A. We said we came here for a visit, to look around and go up north to see if there were any jobs in pulp wood.

Q. How long did you wish to remain in Canada? A. A couple of weeks.

Q. Did you tell the examining officer it was your intention to return to the United States? A. I don’t know if I said that Sir, but I didn’t think I was going to stay here.

Q. Did the officer tell you how long you were allowed to remain in Canada as a visitor? A. No Sir.

In his testimony before the Immigration Appeal Board, the appellant said:

A. We arrived in Canada the 1st or 2nd of December, 1967. I am not sure of the date and we went to Winnipeg. I might add that in Winnipeg we

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didn’t know if we were going to remain in Canada or not and I talked to an RCMP in Winnipeg and I asked him what the proceedings were, that I needed to to become a Canadian citizen or landed immigrant or what I had to do. I didn’t know anything about it. He said that as far as he knew that I didn’t have to do anything. I know now that I should have found out more about it but I didn’t at the time.

In cross-examination, the appellant testified:

Q. Now your purpose was to come to Canada for a couple of weeks, is that correct? A. I stated that my purpose was when I came to Canada what I told the man I talked with when we came to the border that we wanted to look around Canada, I was going up north to look at the pulpwood industry to see what it was and see if there was any work in Canada and I will say that we, my brother was with me, we didn’t give the impression as if we were going to stay in Canada. We didn’t know at that time—I had never been to Canada before and I didn’t know what the country was like and I had been in Mexico and I didn’t know whether it was anything like Mexico. If it was I had no intention of staying.

Q. Obviously, though, you did give the impression from what you say here that you would be staying a couple of weeks. A. Right.

Either the appellant’s survey of the possibility of pulp work in Northern Ontario was very brief or he changed his mind for within two days the appellant’s brother drove the appellant, his wife and child to Toronto. There, he immediately obtained work and has been working ever since. The appellant, in the evidence which I have quoted above, told of his first contact with the RCMP. In his evidence before the Immigration Appeal Board, he outlined further contacts. Approximately in the middle of February, two RCMP came to the factory in which the appellant was working and “asked me what my feelings of Canada and if I wanted to stay that the FBI had contacted them and I told them at the time it was my desire to stay in Canada and that I liked the Country and that I wanted to stay

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here and I would have gone down to the Immigration at that time but I didn’t know that I was supposed to or that I should.”

Q. Did the RCMP officers at that time say anything in relation to your working? A. No, they didn’t, that is why I didn’t go down to Immigration at that time. They came to the factory, saw I was working, and didn’t say anything to me about going to the Immigration.

The appellant also testified that about March 1 the RCMP officers again saw him at work and again on March 15 the RCMP officers came “to my apartment and told me to go to the Immigration right away and make an application for permanent residence”. On the appellant’s evidence, and it is the only evidence on the subject, therefore, the appellant was not informed of his duty to make application for permanent residence upon his changing his status from that of a visitor to that of a worker until March 15, 1968. On that very day, the appellant went to the Immigration Office in Toronto and made application for permanent residence. The application form which the appellant executed was produced at the inquiry and marked as ex. C. A portion of that application signed by the appellant reads as follows:

I, Jerry Mihm, a non-immigrant in Canada admitted 24-9-1948 as a visitor and allowed to remain in Canada until 17-3-68 do hereby apply for permanent residence in Canada.

DATED at Toronto, Ont. on 15th Mar, 1968.

The lower portion of the form consists of a series of boxes with writing inserted in the boxes and it does not appear whose writing it is. However, it is plain from one of those boxes that the official before whom this form was witnessed and whose name would appear to be “V.A. Murphy” knew that the appellant had entered Canada on December 1, 1967, as in one box appear the words “1 Dec. 1967 Manitoba”. This application form is of considerable importance in considering the appeal. It is the appellant’s

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position that he is entitled to be treated on his application for permanent residence under the provisions of s. 7(3) of the Immigration Act, R.S.C. 1952, c. 325. That section provides:

(3) Where any person who entered Canada as a non-immigrant ceases to be a non-immigrant or to be in the particular class in which he was admitted as a non-immigrant and, in either case, remains in Canada, he shall forthwith report such facts to the nearest immigration officer and present himself for examination at such place and time as he may be directed and shall, for the purposes of the examination and all other purposes under this Act, be deemed to be a person seeking admission to Canada.

The appellant, as a result of his application for permanent residence, was given an appointment for a hearing by an immigration officer. Such hearing took place on April 11, 1968, before an officer known as “F.J. Stefan”. Prior to this hearing, however, the appellant had been charged with the offence of breach of s. 7(3) of the Immigration Act in that he did take employment and failed to “forthwith report such facts to the nearest immigration officer”. The appellant, without the aid of counsel, pleaded guilty and was fined $100.

Upon the immigration officer Stefan commencing his inquiry on April 11, 1968, so soon as he had discovered this fact, he had the appellant swear a declaration, which was produced in the material on this appeal, in which he simply admitted that he had taken employment without the prior written permission of the Canadian Immigration authorities. On receiving this declaration, the immigration officer stopped the inquiry and no further proceedings have been taken with regard thereto.

Before the Immigration Appeal Board and in this Court, the appellant relied on Regina v. Pringle, Ex parte Mills[3], a decision of the Court of Appeal for Ontario. There, Laskin J.A. gave the unanimous judgment for the Court and held that when a person makes application for perma-

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nent residence in Canada then he has the status granted to him by the provisions of the said s. 7(3) of the Immigration Act and shall “for all other purposes under this Act be deemed to be a person seeking admission to Canada” so that therefore the applicant was entitled to have his application properly considered by an immigration officer and was not subject to deportation under the provisions of s. 19 of the Immigration Act unless and until his position had been considered in accordance with the statute.

Counsel for the Minister sought to distinguish the Pringle case from the present one on the basis that in that case the immigrant had been given entry into Canada for six weeks as a non-immigrant as defined in s. 7(1) of the Act, including subs, (c) “tourists or visitors”, and within that six-week period the proposed immigrant had registered an application with the immigration officer for permanent residence. Noting that s. 7(3) of the statute requires a person who has entered as a non-immigrant, when he ceases to be a non-immigrant, to forthwith report such facts to the nearest immigration officer and present himself for examination, the Board in the present case was of the view that the appellant had not complied with that section and that therefore he was not entitled to the benefits given in the last few phrases in the section. It will be seen that the validity of this position depends on the meaning to be attached to the provisions of the section and particularly to the word “forthwith”. Counsel for the Minister, in his factum, has quoted various definitions of that word. I repeat hereafter three of those definitions:

1. Within a reasonable time in view of the circumstances of the case and of the subject matter.

per O’Connor J. in The King v. Cuthbertson, [1950] Ex. C.R. 83, 87.

2. Immediately; without delay, directly, hence within a reasonable time under the circumstances of the case; promptly and with reasonable dispatch…

Black’s Law Dictionary, 4th ed., 1951, West Publishing Company, p. 782.

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3. When a statute or rule of court requires an act to be done forthwith, it means that the act is to be done within a reasonable time having regard to the object of the provision and the circumstances of the case.

Jowitt, The Dictionary of English Law, Sweet & Maxwell, London, 1959, p. 828.

I think it may be presumed that the word implies that the person must report within a reasonable time under the circumstances having regard to all of the circumstances of any particular case. In the Pringle case, it was quite easy to determine the application had been made forthwith as the immigrant had been allowed six weeks’ non-immigrant residence and had made his application during that six-week period. In the present case, the Board was of the opinion that the appellant had been allowed three weeks’ residence and had not made application until many weeks after, i.e., from December 1 to March 15. The Board seems to have regarded as reprehensible the statement in the appellant’s application for permanent residence that he was permitted to remain in Canada until March 17, 1968. I have already recited the evidence in reference to the appellant’s entry into Canada and I think it is proper to say from that evidence that there never was a definite time allowed to the appellant to remain in Canada as a non-immigrant. It is true that the appellant in his evidence has admitted that his then intention was to remain in Canada only two or three weeks and that the particular official who interviewed him might have had that impression; such a vague statement is not the granting of a right to remain in Canada as a non-immigrant for a limited and definite time.

The appellant has testified as I have outlined, and again I stress it is the only evidence, that the RCMP officers interviewed him on three occasions, in early February, on March 1 and on March 15, 1968, and it was only on the third occasion that such officers informed the appellant that he had to make an immediate application for permanent residence. This was the first information which the appellant had received to such effect from any official in Canada. On that

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very day, March 15, 1968, the appellant attended the Immigration Office and made the application for permanent residence.

The significance of the date the 17th of March 1968 appearing on the application form as the date up to which the appellant was permitted to remain in Canada was explained by the appellant in his cross-examination before the Immigration Appeal Board. That evidence is as follows:

Q. I would like to refer to an exhibit in the record here which was filled out by you, Exhibit C:

“I, Jerry Mihm, a non-immigrant in Canada, admitted as a visitor and allowed to remain in Canada until 17th March, 1968.”

This was filled out by you and made by you as a voluntary statement, is that correct? A. Right.

Q. You have just told us that you left the officer with the impression you would be visiting for a couple of weeks and he let you in for this purpose, is this correct? A. Yes sir.

Q. Where did you arrive at this date, the 17th March; is this your own date that you decided to pick or what? A. I don’t understand what you mean.

Q. Where did you get that date from? A. I didn’t get that date. The Immigration Department in Toronto gave me that date. They told me that I could stay in Canada until this date.

Q. I see nothing in the record to that effect except your own statement. A. The Immigration Department, when I made an application, when I went down to the Immigration Department to make an application for permanent residence in Canada, they set the date for 11 April, 1968 so they gave me permission to remain in Canada until 11th day of April, 1968.

It would appear therefore that the date the 17th of March, quite evidently a date immediately following the date on which the appellant was then making application for permanent residence, was inserted, as it is noted, at the suggestion of the interviewing official and was not any attempt by the appellant to deceive the department. It is my opinion that it has wrongly been relied on as being an attempt by the appellant to evade the provisions of s. 7(3) by giving the impression that

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he was making an application within a definitely allowed time. It is difficult to imagine an application made more reasonably under the circumstances than an application for permanent residence made on the very day that he was first informed such an application was necessary. If the word “forthwith” is properly defined as “within a reasonable time under the circumstances”, I am of the opinion that the appellant’s application made on March 15 was made within the provisions of s. 7(3) of the Immigration Act and that the appellant should have the right to “for all purposes” be considered an applicant for permanent residence. As Laskin J.A. pointed out in Regina v. Pringle, Ex parte Mills, supra, one of those “purposes” is the appearance before an immigration officer for an examination under the provisions of s. 20 of the Immigration Act. I agree with the statement made by Laskin J.A., in that case at p. 133, when he said:

In my opinion, it was the right of the appellant. Whether he would have been found admissible for permanent residence is not the point. That is what the examination is designed to determine. Here this issue was not faced; and, in my view, the wrong proceedings were taken on a mistaken view of the appellant’s status.

For these reasons, I would allow this appeal and direct that the matter be returned to the Minister so that the examination of the appellant by an immigration officer may proceed in the ordinary course.

Appeal dismissed, HALL and SPENCE JJ. dissenting.

Solicitors for the appellants: Copeland & Ruby, Toronto.

Solicitor for the respondent: D.H. Aylen, Ottawa.