Button v. MMI, (1975) 8 N.R. 545 (FCA)

JudgeJackett, C.J., Mackay, D.J. and Smith, D.J.
CourtFederal Court of Appeal (Canada)
Case DateJanuary 22, 1975
JurisdictionCanada (Federal)
Citations(1975), 8 N.R. 545 (FCA)

Button v. MMI (1975), 8 N.R. 545 (FCA)

MLB headnote and full text

Button v. Minister of Manpower and Immigration

Indexed As: Button v. Minister of Manpower and Immigration

Federal Court of Appeal

Jackett, C.J., Mackay, D.J. and Smith, D.J.

February 24, 1975.

Summary:

This case arose out of an application by an American citizen to visit Canada for a brief period. The alien was examined by an immigration officer and a special inquiry officer pursuant to the provisions of the Immigration Act. The alien admitted that she used marijuana in the United States in 1971 and 1972. On March 9, 1973 the alien was ordered deported by a special inquiry officer because she admitted to the commission of a "crime involving moral turpitude" contrary to s. 5(d) of the Immigration Act.

On appeal to the Immigration Appeal Board the deportation order against the alien was affirmed.

On appeal to the Federal Court of Appeal the appeal was allowed and the deportation order was set aside. However, the Federal Court of Appeal referred the case back to the Immigration Appeal Board for reconsideration of the question of whether the deportation order can be supported under s. 5(k) of the Immigration Act.

The Federal Court of Appeal stated that the use of marijuana by the alien did not constitute a crime in Canada and that the law of the United States was not established by evidence. The Federal Court of Appeal stated that even if the law of the United States was established to be the same as Canadian law, that such an admission by an alien was not an admission of a crime involving moral turpitude - see paragraph 10.

Mackay, D.J., concurring in the result, stated that the law of Canada is applicable to determine whether a crime committed by an alien in another country is such as will preclude the alien's admission into Canada - see paragraphs 41 to 59.

Aliens - Topic 1746

Immigration - Exclusion - Particular persons - Persons admitting to crimes involving moral turpitude - Immigration Act, s. 5(d) - An alien was deported from Canada for admitting to the Commission of a crime involving moral turpitude - The alien admitted to the possession and use of marijuana in the United States - The Federal Court of Appeal set aside the deportation order with respect to the alien - The Federal Court of Appeal stated that the use of marijuana by the alien did not constitute a crime in Canada and that the law of the United States was not established by evidence - The Federal Court of Appeal stated that even if United States law was established to be the same as Canadian law that such an admission was not an admission of a crime involving moral turpitude - See paragraph 10.

Evidence - Topic 2430

Presumptions - Foreign law - An alien was deported from Canada for admitting to the Commission of a crime involving moral turpitude - The alien admitted to the possession and use of marijuana in the United States - The Federal Court of Appeal stated that there can be no presumption that the law of another country is the same as Canadian law respecting the possession of drugs - See paragraph 12.

Words and Phrases

Moral turpitude - The Federal Court of Appeal discussed the meaning of the phrase "moral turpitude" as found in s. 5(d) of the Immigration Act.

Cases Noticed:

R. v. Walkem (1908), 8 W.L.R. 857; 14 C.C.C. 122; [1908] A.C. 197, refd to. [fn. 2].

R. v. Martin, [1956] 2 All E.R. 86, refd to. [fn. 2].

Board of Trade v. Owen, [1957] A.C. 602, refd to. [fn. 2].

Schiffer v. M.M.I., 6 N.R. 321, folld. [fn. 5, 9].

Julius v. Bishop of Oxford (1880), 5 A.C. 214, folld. [para. 15].

Srivastava v. Minister of Manpower and Immigration, [1973] F.C. 138, folld. [para. 15].

Moore v. Minister of Manpower and Immigration, [1973] 4 1 A.C. 199, folld. [para. 19].

Turpin v. Minister of Manpower and Immigration, [1969] Rev. 1, 1 A.C. 1, folld. [para. 20].

Proprietary Articles, [1931] A.C. 310, refd to. [para. 31; fn. 11].

Attorney General for British Columbia v. Attorney General for Canada, [1937] A.C. 368, refd to. [fn. 11].

In re Richard (1907), 38 S.C.R. 394, refd to. [fn. 12].

Re McNeil (1912), 47 S.C.R. 259, refd to. [fn. 12].

Mitchell v. Tracey et al. (1919), 58 S.C.R. 118, refd to. [fn. 12].

R. v. Nat Bell Liquors Ltd. (1921), 62 S.C.R.; [1922] All E.R. 335, refd to. [fn. 12].

Reciprocal Insurers, [1924] A.C. 328, refd to. [para. 32].

Canada Temperance Act References, [1946] A.C. 193, refd to. [para. 34].

Statutes Noticed:

Immigration Act, R.S.C. 1970, c. I-2, sect. 5(d) [para. 1]; sect. 5(k) [fn. 7]; sect. 14 [para. 15]; sect. 26(4) [fn. 4]; sect. 50 [para. 51].

Federal Court Act, R.S.C. 1970, 2nd Supp., c. 10, sect. 52 [para. 17].

Counsel:

I. Scott, Q.C., for the appellant;

A.C. Pennington and R.G. Vincent, for the respondent.

This appeal was heard by the Federal Court of Appeal at Toronto, Ontario on January 22, 1975. Judgment was delivered by the Federal Court of Appeal on February 24, 1975 and the following opinions were filed:

JACKETT, C.J. and SMITH, D.J. - joint opinion, see paragraphs 1 to 17.

MACKAY, D.J. - see paragraphs 41 to 59.

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