Judgment of the Court
THE CHIEF JUSTICE:-This is an appeal by Mrs. Louie Yuet Sun from a judgment of the Court of Appeal for Ontario' reversing a decision of King J. which had quashed a deportation order made against the appellant under the Immigration Act, R.S.C. 1952, c. 325. As set out in the factum of the appellant, it appears that she is a citizen of China who came to Canada as a visitor in December 1957 by way of Hong Kong. She was in possession of a passport in which was entered a Canadian non-immigrant visa issued to her in Hong Kong. She had been allowed entry into Canada for a period of six months and later her permit was extend2d another six months to December 1958. She had come to Canada to visit her father and brother, who live Kerwin CJ. and Taschereau, Locke, Cartwright, Fauteux, Abbott, Martland, Judson and Ritchie JJ.
1[1960] O.W.N. 476.
in Ottawa. Her husband, a farmer, and her two children, remained in Hong Kong. She, who is now twenty-nine years of age, and her husband, who is thirty-one years of age,
S. were married in China in 1948. On August 18, 1958, while she was in Ottawa, the appellant gave birth to a son, a Cl. child of that marriage.
Since the permission she had received to enter Canada had expired, the appellant reported to an immigration officer as required by the Act. She was examined by the officer who made a report under s. 23 of the Act that it would be contrary to the provisions of the Act to grant admission to or otherwise let the appellant come into
Canada by reason of her coming under the prohibited classes of s. 5, para. (t) thereof, in that she could not or did not fulfil or comply with the conditions or requirements of ss. 18 and 20 of the Regulations promulgated under the
Act. Subsequently an enquiry was held by a special enquiry officer, who decided that the appellant might not come into or remain in Canada as of right and that (1) she was not a Canadian citizen; (2) she was not a person having
Canadian domicile; (3) she was a member of a prohibited class described in s. 5(t) of the Act in that she could not and did not fulfil or comply with the conditions or requirements of the Act or the Regulations because: (a) she did not have an immigrant visa as required under subs. 3 of s. 18 of the
Regulations; (b) she did not come within the provisions of subs. (d) of s. 20 of the Regulations. He accordingly ordered her to be detained and to be deported.
King J. held that the appellant was not a person within the meaning and intent of s. 5(t) of the Act because she had recently given birth to a child in Canada; the child being a natural born Canadian citizen had a right to live in Canada and was entitled to the love, care and attention of its mother. The mother desired to remain in Canada because she thought it would be better for the child. No reasons were given by the Court of Appeal but upon consideration 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
Statutes and regulations cited
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Unresolved citations
- s. 23
- s. 5
- para. (t)
- ss. 18
- 20
- s. 5(t)
- s. 18
- s. 20