A-70-81
Cesar Efrain Heras (Appellant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Thurlow C.J., Cowan and
Lalande D.JJ.—Toronto, September 22 and 24,
1982.
Judicial review — Prerogative writs — Prohibition
Immigration — S. 27 appeal from trial judgment dismissing
s. 18 application for writs of prohibition and certiorari prohib
iting respondent from executing order of deportation and
quashing order on grounds that it was void ab initio
Appellant entered Canada as visitor but having overstayed and
married Canadian citizen, became a person described in
s. 27(2)(e).• one who enters Canada as a visitor and remains
therein after he has ceased to be a visitor — Appellant
remained in Canada on Minister's permit without which he
would have been liable to deportation — New Act proclaimed
during currency of permit — Whether, based on combined
effect of definitions of "visitor" and "permit" in s. 2(1) of new
Act, appellant acquired status of visitor during period from
coming into force of Act to expiration of permit — Appeal
dismissed — Federal Court Act, R.S.C. 1970 (2nd Supp.),
c. 10, ss. 18, 27(1) — Immigration Act, R.S.C. 1970, c. 1-2
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 2(1), 27(2)(e),
37(1).
COUNSEL:
Carter C. Hoppe for appellant.
Brian R. Evernden for respondent.
SOLICITORS:
Abraham, Duggan, Hoppe, Niman & Stott,
Toronto, for appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered orally in English by
COWAN D.J.: This is an appeal pursuant to
subsection 27(1) of the Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10 from a judgment of the
Trial Division dismissing an application brought
by the appellant pursuant to section 18 of the
Federal Court Act seeking a writ of prohibition
prohibiting the respondent from executing an
order of deportation made against the appellant on
October 10, 1979, and a writ of certiorari quash
ing the order of deportation on the ground that the
order was a nullity and void ab initio.
I am of the opinion that the appeal should be
dismissed for the reasons given by the Trial Judge
which are now reported at [1981] 2 F.C. 605.
On April 10, 1978, when the Immigration Act,
1976, the "new Act"' was proclaimed in force, the
appellant was a person who "entered Canada as a
visitor and remains therein after he has ceased to
be a visitor". As such, he was "a person with
respect to whom a report ... may be made" under
paragraph 27(2)(e) of the new Act. On that date
he was, however, authorized to remain in Canada
by reason of the permit granted under the Immi
gration Act 2 , the "old Act" and, as found by the
Trial Judge, the appellant's right to remain in
Canada continued until the expiry date of the
period stated in that permit. Nevertheless, he
remained "a person with respect to whom a report
... may be made" under paragraph 27(2)(e) and
the Minister was entitled to issue to him a permit
under paragraph 37(1)(b) of the new Act.
I reject the argument that the effect of the
definitions of "visitor" and "permit" in subsection
2(1) of the new Act was to give the appellant the
status of a visitor during the period from the
coming into force of the new Act to the expiration
of the period covered by the permit granted to him
by the Minister under the old Act.
The definition of visitor is as follows:
"visitor" means a person who is lawfully in Canada, or seeks to
come into Canada, for a temporary purpose, other than a
person who is
(a) a Canadian citizen,
(b) a permanent resident,
(c) a person in possession of a permit, or
(d) an immigrant authorized to come into Canada pursu
ant to paragraph 14(2)(b), 23(1 )(b) or 32(3)(b).
"Permit" is defined as follows:
' S.C. 1976-77, c. 52.
2 R.S.C. 1970, c. I-2.
"permit" means a subsisting permit issued under subsection
37(1);
The appellant was not, on April 10, 1978, in
possession of a permit issued under subsection
37(1) of the new Act and did not therefore come
within the exclusionary paragraph (c) of the defi
nition of "visitor" but he did not, on that date,
qualify as a visitor under the opening words of the
definition, as being "a person who is lawfully in
Canada ... for a temporary purpose". He had
entered Canada as a visitor on July 31, 1976. He
was admitted for ten days but remained beyond
that period. He married a Canadian citizen and
applied for permanent residence in October 1977.
He did come within the meaning of paragraph
27(2)(e) as "a person who ... entered Canada as a
visitor and remains therein after he has ceased to
be a visitor". As such he was subject to being
reported under paragraph 27(2)(e) and, but for
the Minister's permit under the old Act, he would
have been liable to be deported. That situation
continued and was still the situation when a Minis
ter's permit under paragraph 37(1)(b) 3 of the new
Act was issued, allowing him to remain in Canada
after the period of the permit issued under the old
Act came to an end. The circumstances authoriz
ing the Minister to issue a permit under the new
Act existed from the time the new Act came into
effect and continued to exist when the permit
under the new Act was issued.
The appeal, therefore, fails and should be dis
missed with costs.
THURLOW C.J.: I agree.
LALANDE D.J.: I agree.
3 37. (I) The Minister may issue a written permit authorizing
any person to come into or remain in Canada if that person is
(b) in the case of a person in Canada, a person with respect
to whom a report has been or may be made under subsection
27(2).
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.