Sun v R,

• Judge: Locke,Judson,Abbott,Martland,Cartwright,Fauteux,Kerwin C.J.,Ritchie JJ.,Taschereau
• Date: 28 November 1960
• Court: Supreme Court (Canada)

Canada, Ontario High Court of Justice.

Ontario Court of Appeal.

Supreme Court.

(King J.)

Louie Yuet Sun

and

The Queen.

Aliens — Expulsion of — Right of expulsion — Alien giving birth to child during visit — Child a natural-born subject of State of birth — Whether affecting status of mother — The law of Canada.

On appeal,

Held (by the Ontario Court of Appeal): that the appeal must be allowed. No reasons were recorded.

The applicant appealed to the Supreme Court of Canada.

Held (by the Supreme Court): that the appeal must be dismissed. The fact that the appellant was the mother of a legitimate child born in Canada had no bearing on the fact that she should be deported as a person within a prohibited class under the Immigration Act and the Regulations.

The Court stated the facts and said (per Kerwin C.J.): “I can see no basis for the judgment of the judge of first instance. If the appellant chooses to take the child with her, the material indicates that the Hong Kong authorities are willing to receive her and the child. If, on the other hand, she chooses to leave the child here, he is entitled to remain in Canada. It is not denied that the applicant falls within the relevant sections of the Act and Regulations, and, unless the fact that she is the mother of a legitimate child born in Canada affects the matter, she has not been deprived of her liberty except by due process of law. In my view that fact has no bearing on the matter.

“Any other points raised in the Courts below were abandoned before us. The appeal should be dismissed without costs.”

The Facts.—This was an application for an order in lieu of certiorari to quash a deportation order made by a Special Inquiry Officer of the Department of Citizenship and Immigration by reason of the applicant's coming within Section 5 (t) of the Immigration Act. Section 5 (t) provides:

“No person, other than a person referred to in sub-section (2) of section 7, shall be admitted to Canada if he is a member of any of the following classes of persons: …(t) persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders lawfully made or given under this Act or the regulations.”

The applicant, Mrs. Louie Yuet Sun, a citizen of China, came to Canada as a visitor on a six-months' non-immigrant visa issued at Hong Kong. Her husband and two children remained in Hong Kong. Her visa was extended for a second six months, during which time she gave...