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Supreme Court of Canada

Immigration—Deportation order—False or misleading information as basis for deportation—Proof of intent—Mens rea not required—Interpretation—Immigration Act, R.S.C. 1952, c. 325, ss. 19, 20, 28—Immigration Appeal Board Act, R.S.C. 1970, c. 1-3, ss. 15,21.

The respondent was admitted to Canada as a landed immigrant on July 18, 1963, following an application for admission dated June 15, 1963. On December 4, 1964, following a report from an immigration officer to the Director of Immigration that the respondent was a person described in s. 19 (1)(e)(iv) and (viii) of the Immigration Act, R.S.C. 1952, c. 325, as amended, a deportation inquiry was ordered under s. 26 of the Act. On the conclusion of the inquiry on May 1, 1968, a deportation order was made against the respondent under s. 28(3) of the Act. The respondent appealed this order to the Immigration Appeal Board which on January 7, 1971, set aside the deportation order. The appellant, the Minister of Manpower and Immigration, sought leave to appeal on a number of questions but leave was granted to appeal on only five of these questions covering inter alia the interpretation of the expression “false document” in relation to s. 19 (1)(e)(viii) of the Immigration Act, the interpretation of s. 19(1)(e)(viii) in the absence of proof of intent to give false or misleading information, and whether the respondent could or could not be deported in the absence of proof that he was at the time of his admission to Canada in a prohibited class.

Held: The appeal should be allowed.

While the phrase “false document” as used in s. 19(1)(e)(viii) of the Immigration Act, R.S.C. 1952, c. 325, as amended, is not defined, a document is not to

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be construed as a false document merely because it contains information which is false. False or misleading information provided by a person whether or not the person coming into or remaining in Canada does attract the application of s. 19(1)(e)(viii). Mens rea or design to mislead are not essential elements for the application of s. 19(1)(e)(viii). The subject of an immigration application has a duty to answer truthfully and completely. Section 20(2) of the Immigration Act, R.S.C. 1952, c. 325, provides that failure to answer truthfully all questions put by an immigration officer shall in itself be sufficient ground for deportation, and lends support to the construction of s. 19(1)(e)(viii) which makes false or misleading information, if material, sufficient basis for deportation.

APPEAL from an order of the Immigration Appeal Board[1], allowing an appeal from a decision of a Special Inquiry Officer. Appeal allowed.

C.R.O. Munro, Q.C., and S.F. Froomkin, for the appellant.

Joseph Sedgwick, Q.C., A.J. Hewitt, Q.C., and F.J. McDonald, for the respondent.

The judgment of the Court was delivered by

LASKIN J.—The respondent Brooks was admitted to Canada as a landed immigrant on July 18, 1963, following upon an application for admission, Immigration Form 471, dated June 15, 1963. A Canadian Immigrant Record Card, Form 1000, was made out and signed by Brooks and then stamped and signed by the admitting immigration officer, certifying to Brooks’ admission on July 18, 1963. On December 4, 1964, an immigration officer reported to the Director of Immigration that Brooks was a person described in s. 19(1)(e)(iv) and (viii) of the Immigration Act, R.S.C. 1952, c. 325, as amended, and on the same day a deportation inquiry was ordered by the Director under s. 26 of the Act. The inquiry, which extended over forty-two hearing days, was begun on December

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8, 1964 but was not finally concluded until May 1, 1968. At that time a deportation order was made against Brooks under s. 28(3) of the Act, as being a person described under s. 19 (1)( e)(viii).

On appeal to the Immigration Appeal Board, it formally set aside the deportation order on January 7, 1971 pursuant to lengthy reasons delivered on December 18, 1970. The matter is now before this Court on five questions of law on which leave to appeal was given to the appellant Minister.

Section 19(1)(e)(iv), on which the report and the inquiry were in part founded, reads as follows:

19. (1) Where he was knowledge thereof… an immigration officer… shall send a written report to the Director, with full particulars, concerning…

(e) any person, other than a Canadian citizen or a person with Canadian domicile, who

(iv) was a member of a prohibited class at the time of his admission to Canada.

The particulars in this respect alleged that Brooks was within s. 5 (m) of the Act, as being a member of a class of

persons who have engaged in or advocated or concerning whom there are reasonable grounds for believing they are likely to engage in or advocate subversion by force or other means of democratic government, institutions or processes, as they are understood in Canada.

The Special Inquiry Officer found that this allegation was not made out, and the same result was reached by the Immigration Appeal Board when the matter was put in issue and argued again before it. It forms no part of the appeal to this Court which is limited to grounds of expulsion set out in s. 19(1)(e)(viii).

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This provision reads as follows:

19. (1) Where he has knowledge thereof… an immigration officer… shall send a written report to the Director, with full particulars, concerning…

(e) any person, other than a Canadian citizen or a person with Canadian domicile, who

(viii) came into Canada Or remains therein with a false or improperly issued passport, visa, medical certificate or other document pertaining to his admission or by reason of any false or misleading information, force, stealth or other fraudulent or improper means, whether exercised or given by himself or by any other person…

The particulars given in respect of the allegation under s. 19(1)(e)(viii) consisted of a reference to three documents, described in the report as follows:

(1) A true and faithful photoprint of a microfilmed record of admission taken from the official Immigration records.

(2) Administrative Order No 19 by the President of the Philippines directing the deportation among others, of Robert P. Brooks and,

(3) Criminal record of Robert P. Brooks, R.C.M.P. FPS 110-764-A and criminal record of the Philippines Department of Justice NBI No. 34763.

Upon the inquiry and before the Immigration Appeal Board, the application of Brooks for admission, Immigration Form 471, was also made part of the material in the two proceedings. Indeed, it was the chief basis upon which the Special Inquiry Officer made the deportation order and was closely considered along with the Immigrant Record Card, Form 1000, by the Immigration Appeal Board.

The five questions upon which leave to appeal to this Court was granted are as follows:

1. Did the Immigration Appeal Board err in law in its interpretaiton of the expression “false document” as used in section 19(1)(e)(viii) of the Immigration Act?

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2. Did the Immigration Appeal Board err in law in its interpretation of the expression “document pertaining to his admission” as used in section 19(1)(e)(viii) of the Immigration Act?

3. Did the Immigration Appeal Board err in its interpretation of section 19(1)(e)(viii) of the Immigration Act by deciding that it applies only where the relevant information is intentionally both false and misleading?

4. Did the Immigration Appeal Board err in law in its interpretation of the question, “Why do you wish to migrate?”

5. Did the Immigration Appeal Board err in law in deciding that the Respondent could not be deported under section 19(1)(e)(viii) because it had not been proved that he was, at the time of his admission to Canada, in a prohibited class?

Argument in this Court was also permitted on a sixth point, raised by the respondent Brooks, as arising out of the issues on which leave was given and as being in accordance with the understanding of counsel at that time. This point was, as framed by counsel for Brooks, that “the original direction upon which the Special Inquiry Officer proceeded was void because of lack of particularity and duplicity and no order of deportation should have been made in the first place”. The issue of particularity was raised before the Immigration Appeal Board and decided against Brooks, and the record, in my opinion, amply justifies the Board’s conclusion that Brooks was fully aware of the allegations upon which deportation proceedings were being pursued against him. He was at all material times represented by experienced counsel and there is no merit in the submission on lack of particularity. Equally, I see no basis for introducing into administrative proceedings for deportation, albeit they are invested with the procedural safeguards of a judicial hearing, the very different considerations which govern criminal charges. The Immigration Act may be invoked on any or all of the stated grounds upon which a report and a consequent inquiry may be founded, so long as the subject of the inquiry is made aware of the allegations made against him

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under the relevant provisions of the Act which are invoked, and is given an opportunity to meet them. I reject, therefore, the contention of duplicity as a ground for annulling the deportation order.

In order to provide a frame of reference for the questions with which this appeal is concerned, I turn to the facts in this case so far as relevant to the grounds upon which the Special Inquiry Officer acted in making the deportation order and to the appraisal thereof made by the Immigration Appeal Board in allowing Brooks’ appeal.

Brooks was born in the Philippines in 1918. His father was an American citizen and Brooks rightly claimed the same citizenship and held an American passport. He married in 1937, and about three years later he went through a form of marriage with another woman while his first marriage subsisted. He was convicted of bigamy in the Philippines in 1941, but later that year the President of the country granted him a conditional pardon resulting in his release from prison. There is nothing in the record about the terms of the pardon. He and his family were interned by the Japanese in 1942, but upon the liberation of Manila in 1945 they went to the United States, remaining there until 1948 when they returned to the Philippines.

Thereafter Brooks achieved great business success in association with one Stonehill. In addition to holdings in the Philippines, he had investments in the United States and elsewhere. In 1956 he went to Nevada for two months and in that period obtained an annulment of his first marriage. Brooks and Stonehill were arrested in Manila in March, 1962 on various criminal charges and deportation proceedings were taken concurrently against them. Brooks was allowed, upon petition, to leave the Philippines volun-

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tarily and did so on August 3, 1962, but on the same day a Presidential deportation order was made against him. He and his family went to Mexico City with a view to permanent residence there but, finding it unsuitable, they went to Vancouver in May, 1963 to see about settling there. Acting through a local solicitor, Brooks applied for permanent residence in Canada.

His application for admission, Immigration Form 471, included the following questions and his answers thereto, numbered as follows:

8. Country of last Permanent Residence.

United States.

10. Intended Occupation.

Business.

See attached letter.

12. Closest relative in Home Country (name, address, relationship).

None.

13. Have you or Has any Member of your Family suffered from Mental Illness, Tuberculosis or been convicted of of a Criminal Offence, refused Admission or been Deported from Canada (if “yes” to any of these, give details).

No.

17. Present Address in Full.

Suite 2308, 350 Fifth Avenue, New York 1, New York.

22. (a) Why Do you Wish to Migrate?

Business (see attached letter).

(b) Why Did you Select Canada?

Business (see attached letter).

28. Former Address and Employment.

(A) For the Last 10 Years. (B) Since 1939 if you Have Resided in Germany.

From
Month
Year

To
Month
Year

Home
Address
and
Country

Name of
Employer

Occupation

May 1952

To date
(i.e. June
15, 1963)

Suite 2308
Empire
State Bldg. New York
City

Universal
New York Incorporated

2nd Vice-Pres.

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31. Are you a Permanent Resident of the U.S.A.

Yes.

I certify that my answers to these Questions are True and Correct to the Best of my knowledge.

6-15-63

 

Date

Signature of Applicant

The respondent’s Canadian Immigrant Record Card contained similar answers to some of the same questions, bearing the same numbers 8, 10, 12 and 13.

It will be convenient to deal first with the second question of law posed by this Court, namely, whether the Immigration Appeal Board erred in law in its interpretation of the expression “document pertaining to his admission” in s. 19(1)(e)(viii) of the Immigration Act. The Board held that the Immigrant Record Card, Form 1000, made out when the decision was taken to admit Brooks to Canada was a “document pertaining to his admission” but not so the application Form 471. In my view, the Board erred in excluding the completed application form from the class of documents pertaining to admission.

The Immigrant Record Card is expressly mentioned in s. 3(1) of the Immigration Regulations, Part I, in these words:

3. (1) An immigration officer who grants admission to any person shall record the admission of the person on a card prescribed by the Minister for such purpose and, unless such record has been made, admission of the person shall be deemed not to have taken place.

Although there is no express mention of an application form, there is ample authority in s.

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63(a) of the Act for the prescription of this and other forms. The application form used in this case does not say on its face that it was prescribed by the Minister, but it shows a form number and the maxim “omnia praesumuntur” may be invoked to support its authenticity. There is no countervailing evidence to impugn it: If under the ejusdem generis rule, as applied by the Board, the Immigrant Record Card is a document pertaining to admission, then so is the application form which is equally “official” when prescribed.

The Board appeared to be of opinion that only “official” documents are covered by s. 19(1)(e)(viii), and that to be “official” a document must be expressly mentioned in the Act or Regulations. There is no requirement of officiality as the Board would have it. The basic questions are whether the documents are authorized, that is, is their source legitimate, and do they relate to admission to Canada. If there is any difficulty in subsuming Form 471 under s. 19(1)(e)(viii), it lies in bringing it within the words “remains [in Canada] with a false… document pertaining to his admission”. “With” in this connection is not limited in meaning to “possessed of” but, contextually, extends to “agreeably to” or “because of”, or “by use of”. Certainly, Brooks was not possessed of his Immigrant Record Card, and yet the Board found it was a document pertaining to his admission.

I cannot agree with the submission of counsel for Brooks that only a finding of fact is involved in the Board’s conclusion that the application, Form 471, was not a document pertaining to admission. It was a finding that depended on a prior construction of the scope of the relevant

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words of s. 19(1)(e)(viii) and followed automatically on the basis of the Board’s construction. Just as automatically, the construction I would place on them brings the completed Form 471 within the statutory provision. There would be little doubt of that under the present s. 32 of the Immigration Regulations, Part I, enacted in 1967, but the greater formality and particularity ordained under that provision do not point to impermissible use of an application form for purposes of s. 20(2) of the Act, which obliges a person seeking to come into Canada to answer truthfully all questions put to him by an immigration officer.

Turning to the first question, namely, whether the Board erred in law in its interpretation of the expression “false document” in s. 19(1)(e)(viii), it appears from its reasons that the Board qualified that phrase in two ways. First, it took the position that the phrase refers “not only to documents which are forged or counterfeits, but to documents which contain false information of such a nature as to vitiate their validity” (4 Case on Appeal, p. 811). Second, it was of the view that the document itself may give a clue as to the meaning of “false”. In the present case, the Immigrant Record Card required Brooks to certify that “my answers to these questions are true and correct to the best of my knowledge”. Hence, according to the Board, “it does not require absolute truth; mens rea of the informant, the prospective immigrant, is a factor” (4 Case on Appeal, p. 825). Honest and reasonable belief of the truth of an answer, especially when given on the advice of counsel, would, in the Board’s opinion, exclude a stain of falsity.

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There were three answers in the application for admission, Form 471, which the Special Inquiry Officer dealt with from the standpoint of falsity, which to him meant falsity in fact. They were (1) item 8, calling for the country of last permanent residence; (2) item 12, calling for “closest relative in home country (name, address, relationship)”; and (3) item 13, which asked “Have you or has any member of your family suffered from mental illness, tuberculosis, or been convicted of a criminal offence, refused admission or been deported from Canada? (if “yes” to any of these, give details)”. Brooks’ answer to item 8 was “United States”, to item 12, “None” and to item 13, “No”. The Special Inquiry Officer found that the answers to items 8 and 12 were false, but that the answer to question 13 was, in the light of a legal opinion, not false because Brooks’ conviction of bigamy had been wiped out by the pardon; and, moreover, he was asked to certify to the best of his knowledge and had done so on a matter of law.

The Board took the same view in respect of the bigamy conviction and found also that the answer to item 8 was true since at the time of his application he had at least two permanent residences, one in Mexico where his wife and children were then residing, and one in New York where he had a place of business and which had been his mailing address for some years. The Board dealt with the answers as recorded on the Immigrant Record Card, Form 1000, having found (wrongly, as I have pointed out) that the application for admission was not a document within s. 19(1)(e)(viii). The Board did not deal with item 12 in connection with the falsity of a document but only as bearing upon the second part of s. 19(1)(e)(viii) dealing with “false or misleading information”. It concluded that the answer “none” was false but was inadvertent, that there was no intention to mislead,

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and that although the answer was material there was no proof that it was of so vital a nature as to have affected the landing of Brooks in Canada. These conclusions relate to the legal issue raised by the third question to which I shall come shortly.

The Board’s characterization of a document as false if it contains false information of such a nature as to vitiate its validity is, in my opinion, founded upon a false premise, namely that the document has some legal force of itself if its contents satisfy certain prescriptions. Neither the application form nor the Immigrant Record Card is in the class of deeds or other documents that in themselves have a legal effect. They are merely records of information supplied as a required basis for securing a favourable decision that cannot be controlled by the supplier. I do not, therefore, understand how any question of the validity of the application form or Immigrant Record Card can arise by reason of the extent or gravity of the false information thereon.

Indeed, the Board’s interpretation of the phrase “false document” appears to be based on a view of s. 19(1)(e)(viii) which would exclude the application to a document of the phrase “by reason of any false or misleading information”, found in the second part of that provision. I reproduce s. 19(1)(e)(viii) again as a convenient point of reference on this aspect of the case; it reads:

came into Canada or remains therein with a false or improperly issued passport, visa, medical certificate

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or other document pertaining to his admission or by reason of any false or misleading information, force, stealth or other fraudulent or improper means, whether exercised or given by himself or by any other person…

The juxtaposition of “false document” and “false or misleading information” in the one paragraph conveys to me different senses in which the word “false” is used. “False document” is not defined in the Immigration Act. In context, it appears to me that a document does not become false merely because it contains false information. A person may be in possession of a passport or visa or other document which is an authorized one from an authorized source, being what it purports to be, and yet it may contain false or misleading information so as to bring him within the second part of s. 19(1)(e)(viii). I do not read this provision as necessarily relating false or misleading information to what is said outside of any document coming within s. 19(1)(e)(viii). I find it unnecessary therefore to struggle with the meaning of “false document” in the terms considered by the Board. False or misleading information provided by a person for inclusion in a document will attract the application of s. 19(1)(e)(viii) even though the document itself is not false.

The meaning of “false document” in s. 19(1)(e)(viii) is not governed by the same considerations which this Court applied in Gaysek v. The Queen[2]. There, the majority held that the falsification of inventory sheets by recording thereon incorrect sums resulted in those sheets being “false documents” and hence forgeries within ss. 268(e)(ii) and 309(2) of the Criminal Code. This decision turned on the wording of s.

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268(e)(ii) which defined “false document” to mean, inter alia, a document “that is made by or on behalf of the person who purports to make it but is false in some material particular”. In view of the concurrent references in s. 19(1)(e)(viii) to false documents and to false or misleading information, it is unnecessary to strain the meaning of the words “false document” to include a meaning that, even in the Criminal Code, depends on a special definition.

In my opinion, therefore, the Board erred in its construction of the words “false document”. This error led it to conclude that the answer “no” to item 13, respecting criminal convictions, did not involve falsity of a document. That answer cannot stand on the footing on which it was made. It, and the answer to item 8, ought to have been approached from the standpoint of whether those answers did or did not amount to the furnishing of “false or misleading information”. I add here that even if the pardon granted in the Philippines wiped out the bigamy conviction there in fact and in law, this is not controlling in relation to an inquiry about criminal convictions to determine whether immigration to Canada should be permitted.

The Board itself appears to have appreciated the relevance of the second part of s. 19(1)(e)(viii) to the information on the admission documents because, as already noted, it dealt with the answer to item 12 on that basis. Inconsistently, it did not deal in the same way with the answers to items 8 and 13. Its finding on item 12 that, although the answer was false, it was inadvertent, without any intention to mis-

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lead, relates to the third question of law on which leave to appeal to this Court was granted.

Turning now to the third question, the Board construed the second or concluding part of s. 19(1)(e)(viii) as not only requiring that the particular information be both false and misleading but that there be wilful or intentional falsehood and that it be designed to mislead. There is no doubt from its reasons that the Board regarded deportation as too severe a penalty for mere utterance of an untruth in a matter not, in its view, reasonably material to admissibility of an immigrant. There are, thus, three points which must be considered. First, whether intentional falsehood and an intention to mislead are to be imported into the statute, although it says nothing of this kind; second, whether the disjunctive “or” is to be read conjunctively; and third, whether materiality is introduced, a matter which, in my opinion, can only arise under the words “by reason of” in the provision under consideration.

On the first two of these points, it is my view that the Board erred. It is not for this or any other Court to revise, through interpretation, governmental policies on immigration and deportation when expressed in understandable words. There is here no issue of ambiguity, no question of want of the safeguards of natural justice which the Courts may properly monitor, no suggestion of the putting of intractable questions to immigrants. The consequences of a falsehood may be harsh, but no dispensing power is given to this Court nor is it entitled, when Parliament has spoken as clearly as it has,

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to provide its own measure of fatal deficiency. I say this, subject to the question of materiality, which I propose to consider in relation to the fifth question of law. An answer may be both false and misleading but the statute does not demand this combination. It may be the one or the other and still fall within the prohibition. Again, since criminal punishment is not the object of the enforcement of immigration and deportation policies by means of special inquiries, I cannot be persuaded that intentional or wilful deception should be read in as a prerequisite. It was noted by counsel, as well as by the Board, that mens rea is made a condition of culpability under s. 50(b) and (f) which sets out criminal offences, and hence is of a different order than what is prescribed by ss. 19 and 26.

I do not see that the bare words “false or misleading” take on any additional coloration by reason of the later use of the term “fraudulent” in s. 19(1)(e)(viii). That word is associated with the word “improper” in the phrase “other fraudulent or improper means”, and I cannot isolate it so as to read it as adding the elements of intention and design to “false or misleading”.

I should add here that the Board’s error in the construction of the words “false or misleading” makes its findings of facts, based upon the erroneous construction, vulnerable.

The fourth question brings into issue an alleged error of law by the Board in interpreting an item in the application form which put the question “Why do you wish to migrate?”. The

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succeeding item asked “Why did you select Canada?”. Brooks answered “business” to both these items, and accompanying each answer “business” was an explanatory letter by Brooks. What is put in issue here by the appellant Minister is that Brooks failed to reveal in answer to the question “Why do you wish to migrate” that a deportation order had been made against him by the Philippines Government. The submission was, moreover, that it was his duty to answer truthfully so as not to mislead the immigration officer, and by answering as he did he misled the officer. The Immigration Appeal Board held that the question was not sufficiently pointed to require disclosure of the deportation order, and that, in any event, he had not migrated directly from the Philippines. There is no suggestion that the answer “business” was itself false or misleading. At bottom, the contention is that it was incomplete.

As argued before this Court, I do not think that any question of law arises under the fourth question. The Board may have given an exaggerated meaning to “migrate” in its reference to the fact that Brooks did not come directly from the Philippines, but this exaggeration does not touch the basic issue raised by the Minister, namely, that more information should have been given by Brooks. If there was a failure by Brooks to answer as fully as the Minister felt was necessary, it was not a failure which rested upon any misinterpretation of the question “Why do you wish to migrate?”, especially when the question was left bare, without any extension of import.

The fifth question arises out of the Minister’s contention that the Board erred in law in deciding that Brooks could not be deported under s. 19(1)(e)(viii) unless it was proved that he was at the time of his admission to Canada within a

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prohibited class. If this is what the Board decided, then it clearly erred because s. 19(1)(e)(viii) is not dependent for it application upon proof that a person was within a prohibited class (under s. 5) when he was admitted. Section 19(1)(e)(iv) is the provision that deals with membership of a prohibited class at the time of admission, and it is not per se involved in the present appeal.

I do not read the Board’s reasons as involving the bald proposition suggested by the formulation of the fifth question. It appears, however, that the fifth question arose out of a contention by the Minister that by failing to disclose the Philippines deportation order and the grounds upon which it was made, Brooks forestalled further inquiries by the immigration authorities which, if pursued as a result of the disclosure, would have shown him to be a member of the prohibited class described in s. 5(m) of the Act. Putting the matter another way, Brooks’ failure to inform the authorities about the Philippines deportation order resulted in his coming into Canada or remaining there “by reason of false or misleading information”.

In his submission on the fifth question to this Court, counsel for the appellant Minister put the issue in a form different from what appeared to be the Board’s appreciation of it. He contended that it was irrelevant to determine what the immigration officers would have done had they known the true facts about the Philippines deportation order at the time Brooks applied for admission; it was a sufficient basis for invoking s. 19(1)(e)(viii) that Brooks had been admitted on false and misleading information. Counsel

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for the Minister did not find any element of reliance in the words “by reason of” in s. 19(1)(e)(viii). He appeared to treat them as meaning simply that the immigration officers had acted upon the allegedly false and misleading information. In effect then, any falsity or anything of a misleading character would support deportation. I do not agree with this view if that is what counsel intended to convey.

The Board approached counsel’s submission as follows in its reasons:

In the instant appeal, the evidence is clear that Brooks was never asked any question relating to a foreign deportation order, nor did he volunteer the information before he was landed. Was this failure to disclose so “material to the risk”—to use insurance parlance—as to vitiate the grant of landing to him made without knowledge of its existence? The burden of proof lies on the respondent, who must show that this non‑disclosure was “false and misleading information” by reason of which the appellant remained in Canada—it is the italicized words found in section 19(1)(e)(viii) which bring in the question of materiality.

It was the Board’s conclusion after an examination of the Immigration Act and Regulations that the mere existence of a foreign deportation order did not automatically bar landing in Canada or lead to deportation if landing had been effected. Nonetheless, as I read its reasons, it considered that two points arose for its determination: first, whether s. 19(1)(e)(viii) may be invoked in respect of non-disclosure where neither the Act nor the Regulations were otherwise applicable to the matter, and where no duty of disclosure could be based upon some question asked of Brooks which he evaded or which he answered by suppressing or misstating facts; and, second, whether, as a matter of materiality to admission there was a duty of

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disclosure which could be dealt with under s. 19(1)(e)(viii).

On this second point, the Board appears to have treated materiality as itself giving substance to the element of “false or misleading information” even if there was no information sought on a particular matter, instead of considering whether the false or misleading information that was given was material to admission. It said this in its reasons:

The position of an applicant for landing in Canada is that of a suppliant—he is seeking a privilege. The overriding interest is that of the State, and the State is entitled to require that all material facts be disclosed—even if no direct question is asked. The State may decide whether the facts disclosed are such as to bring the person concerned within a prohibited class. The lack of full, complete and detailed questioning by the immigration officers concerned, the failure to make any background check on Brooks, the haste in landing him, cannot affect his duty to disclose, if the fact is material to the question of landing or no landing.

There is no direct evidence on this point. Neither Adams nor Hawkins were asked the simple question during the inquiry, what they would have done had they known of the Philippine deportation order and its contents before the landing. Mr. Munro’s argument that the action taken by the Immigration Department ex post facto the landing was sufficient proof of what their attitude would have been cannot be accepted—this is no more proof of materiality than is the refusal of an insurance company to pay the proceeds of a policy allegedly obtained by misrepresentation.

This Court must therefore examine all the evidence to determine whether Brooks was in fact a member of a prohibited class at the time of his admission to Canada.

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In my opinion, if the materiality of matters on which no questions are asked is cognizable under s. 19(1)(e)(viii), it would be under the words “other fraudulent or improper means”. They are broad enough to embrace non-disclosure of facts which would be material to admission or non-admission if known. It is quite clear that in enunciating a duty of disclosure of facts if material to landing or no landing, the Board relied on a number of American authorities where the question of materiality was considered in relation to deportation of aliens who were alleged to have entered under visas obtained by false statements, and where the test applied by the Courts was whether the fact suppressed or misstated was one which, if known, would have justified a refusal to issue a visa. These cases, beginning with United States ex rel. loris v. Day[3], were decided prior to 1952 at a time when American immigration legislation did not expressly make falsity per se a ground of deportation; and hence it was that the Courts required materiality. Amendments in 1952 made fraud or wilful misrepresentation of a material fact a ground for exclusion and for deportation: see U.S. Code, Title 8, ss. 1182(a)(19) and 1252(a) (1 and 2). In post-1952 cases, the Courts were expressly required to determine, inter alia, whether in the case of an alleged misrepresentation of fact, it was, if established, wilful and material.

Section 19(1)(e)(viii) in its expression of grounds for an inquiry which could lead to deportation does not expressly require proof of materiality where falsity of a relevant document or false or misleading information, or other fraudulent or improper means is relied upon. It does, however, stipulate that where false or misleading information is the basis of deportation proceedings against a previously landed

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immigrant, it be shown that it was by reason of any such information that he came into or remained in Canada. The phrase “by reason of” imports something beyond the mere giving of false or misleading information; it connotes an inducing influence of the information, and hence I agree with the Immigration Appeal Board that it brings in materiality. It is on this basis that, in my opinion, the inadvertence or carelessness of an answer must be weighed as to its consequences; and it is in this connection, and not as importing any element of mens rea (as the Board stated) that the certification statement in the admission documents herein, namely, “my answers… are true… to the best of my knowledge” has significance for the purposes of s. 19(1)(e)(viii). In so far as the certification statement may relate to mens rea, it would be for the purposes of criminal prosecution under s. 50 of the Immigration Act.

Despite the broad view which the Board appeared to take of materiality as related to a general duty of disclosure, it came to a conclusion on a narrower base in rejecting the submission of the appellant Minister that the suppression of information by Brooks cut off further inquiry as to his desirability as an immigrant and that this was a matter for consideration under s. 19(1)(e)(viii). The Board answered in the negative the first point on non-disclosure to which I alluded earlier, and it summed up on this and on its assessment of materiality as follows:

The plain wording of section 19(1)(e)(viii) precludes the adoption of any such principle in Canada, at least under the circumstances of the instant appeal. It must be shown that Brooks remained in Canada “by reason of false and [sic] misleading information” given by himself, not that he might have remained, or that he “cut off further inquiry” by reason of such

[Page 872]

false and [sic] misleading information. If Parliament had meant the latter, it would have said so. Since no proof was adduced on this point, and since an examination of the evidence shows no justification for the invocation of section 5(m) or any other prohibited class to bar landing had the suppressed information been disclosed, the use of section 19(1)(e)(viii) as a ground for deportation cannot be supported.

The questions actually asked in the official immigration forms, the Canadian Immigrant Record Card and the application form, are all material in the sense that they must be answered accurately to the best of the knowledge of the person concerned. Inaccurate answers must be examined in the light of the facts of each individual case to determine whether the inaccuracy would have prevented the action taken. In the instant appeal, had the answer respecting residence been wholly false, we have evidence that the Department would not have considered it “material to the risk”. The answer respecting “relatives” was apparently inadvertent and was not knowingly false. The answer respecting “conviction” was not false to the knowledge of the appellant.

In view of the Board’s finding on the evidence that there was no proof that Brooks was at the time of his admission in a prohibited class, I do not pursue any further the question whether a failure to disclose facts showing a person to be within that class would attract the “other fraudulent or improper means” portion of s. 19(1)(e)(viii). Although I agree with the submission of counsel for the appellant Minister that it is s. 19(1)(e)(iv) and not s. 19(1)(e)(viii) that applies where the facts show, irrespective of whether false or misleading information on the matter was given, that a person was within a prohibited class at the time of his admission to Canada, I do not agree that the Board erred in refusing to find s. 19(1)(e)(viii) applicable whenever a false or misleading answer was given to a question, irrespective of whether it was or was not material to admission.

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Lest there be any doubt on the matter as a result of the Board’s reasons, I would repudiate any contention or conclusion that materiality under s. 19(1)(e)(viii) requires that the untruth or the misleading information in an answer or answers be such as to have concealed an independent ground of deportation. The untruth or misleading information may fall short of this and yet have been an inducing factor in admission. Evidence, as was given in the present case, that certain incorrect answers would have had no influence in the admission of a person is, of course, relevant to materiality. But also relevant is whether the untruths or the misleading answers had the effect of foreclosing or averting further inquiries, even if those inquiries might not have turned up any independent ground of deportation.

I note in this connection that s. 20(2) of the Immigration Act requires every person at an examination for entry into Canada to answer truthfully all questions put to him, and his failure to do so is declared to be itself sufficient ground for deportation where so directed by a Special Inquiry Officer. Although the present case concerns an inquiry into deportation and not examination for admission, the emphasis in s. 20(2) on the per se effect of the failure to answer truthfully lends support to a construction of s. 19(1)(e)(viii) which makes material falsity or misleading information a basis of deportation although no independent ground apart therefrom is established.

In the result, I would answer the five questions on which leave to appeal was granted as follows:

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Q. l: Yes.

Q. 2: Yes.

Q. 3: Yes.

Q. 4: No question of law was involved.

Q. 5: No, as this question was elaborated in argument.

Having regard to the foregoing answers, and to the views that I have expressed as to the proper construction of s. 19(1)(e)(viii), I am of the opinion that the appeal should be allowed, the order of the Immigration Appeal Board set aside and the deportation order restored. I would add, in response to a submission of counsel for the respondent, that s. 15 of the Immigration Appeal Board Act, now R.S.C. 1970, c. I-3, does not apply here because the record indicates that a certificate as prescribed under s. 21 of that Act has been issued and the Board is therefore precluded from acting under s. 15. This out of the way, I am of the opinion that this Court is in a position to make an effective disposition of the present case as it did in Podlaszecka v. Minister of Manpower and Immigration[4].

Appeal allowed.

Solicitor for the appellant: Donald S. Maxwell, Ottawa.

Solicitors for the respondent: Hewitt, Hewitt, Nesbitt, Reid, McDonald & Tierney, Ottawa.

 



[1] 1 I.A.C. 10; 33.

[2] [1971] S.C.R. 888.

[3] [1929], 34 F.(2d) 920.

[4] [1972] S.C.R. 733.

 

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