Revell v. Canada (Citizenship and Immigration)

Revell v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2017-10-12
Neutral citation
2017 FC 905
File numbers
IMM-3411-16
Notes
A correction was made on July 13, 2018
Reported Decision
Decision Content
Date: 20171012
Docket: IMM-3411-16
Citation: 2017 FC 905
Ottawa, Ontario, October 12, 2017
PRESENT: The Honourable Madam Justice Kane
BETWEEN:
DAVID ROGER REVELL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
and
BC CIVIL LIBERTIES ASSOCIATION
Intervener
JUDGMENT AND REASONS
[1] The Applicant, David Revell, seeks judicial review of the decision of the Immigration Division (ID) of the Immigration and Refugee Board, dated July 28, 2016. The ID determined that he was inadmissible to Canada on the grounds of serious criminality pursuant to paragraph 36(1)(a), and organized criminality pursuant to paragraph 37(1)(a), of the Immigration and Refugee Protection Act, SC 2001, c 27, [the Act] and issued a deportation order.
[2] Mr. Revell does not dispute the allegations of inadmissibility. Rather, he challenges the provisions of the Act that provide for the deportation of long-term permanent residents like himself on the basis of serious or organized criminality as violating sections 7 and/or 12 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. He submits that the serious consequences of his deportation ‒ being uprooted from his family and life in Canada to be removed to the UK, a place he left as a child and has no ties ‒ are grossly disproportionate to the objective of deporting him.
[3] Mr. Revell argues, among other things, that: his section 7 rights are engaged at the admissibility stage (i.e., the hearing to determine whether he is admissible to Canada) and by the finding of inadmissibility; the deprivation of his liberty and/or security of the person is not in accordance with the principles of fundamental justice, namely proportionality between the intent of the Act and the consequences of his deportation; there is no process or forum to conduct this proportionality assessment; and, his inevitable deportation will constitute cruel and unusual treatment contrary to section 12. He also argues that the ID erred in finding that it was bound by Chiarelli v Canada (Minister of Employment and Immigration), [1992] 1 SCR 711, 90 DLR (4th) 289 [Chiarelli cited to SCR].
[4] Mr. Revell submits that the decision of the ID should be quashed. He submits that the issue of his admissibility should be remitted to the ID with a clear direction that the ID is not bound by Chiarelli. He further submits that the ID should be directed first, to find that section 7 is engaged by the finding of inadmissibility (as it did in the decision under review) and second, to assess whether the deprivation of his liberty and/or security of the person is in accordance with the principles of fundamental justice, specifically proportionality.
[5] In addition or alternatively, he submits that the Court should make the following declarations:
The combined effect of sections 25, 36(1), 37(1), 44(1), 44(2), 45, and 64 of the Act is inconsistent with the principles of fundamental justice because it does not provide for a proper assessment as to whether or not the removal of this long-term permanent resident would be grossly disproportionate;
His removal would be inconsistent with the principles of fundamental justice as being grossly disproportionate; [and/or],
His removal would be inconsistent with section 12 of the Charter as it would result in the imposition of “cruel, inhumane and degrading treatment” [sic].
[6] Mr. Revell raises several issues as described more fully below. As this is an application for judicial review, the primary issue is whether the ID erred.
[7] For the reasons that follow I find that the ID erred in finding that section 7 was engaged at the admissibility stage (i.e., determining Mr. Revell inadmissible to Canada and issuing a deportation order). Despite the ID’s error in finding that section 7 was engaged at the admissibility stage and by Mr. Revell’s circumstances, the ID did not err in finding that any deprivation of Mr. Revell’s liberty and/or security of the person was in accordance with the principles of fundamental justice.
[8] The jurisprudence has established that section 7 is not engaged at the admissibility stage given that other stages remain in the deportation process. Moreover, the jurisprudence has established that deportation per se (i.e., in itself or without more) does not engage section 7.
[9] The ID did not err in finding that it was bound by Chiarelli to find that any deprivation of Mr. Revell’s liberty or security of the person is in accordance with the principles of fundamental justice; the high threshold to derogate from binding jurisprudence has not been established.
[10] More generally, the current deportation regime and procedure is consistent with the principles of fundamental justice.
[11] Finally, the ID did not err in finding that Mr. Revell’s deportation would not be cruel and unusual, whether or not it is characterized as treatment, and as a result, would not violate section 12.
I. Background
[12] The provisions of the Act at issue in this application for judicial review govern the deportation of permanent residents in certain circumstances.
[13] If an Immigration Officer is of the opinion that a permanent resident is inadmissible, the Officer may prepare a report pursuant to subsection 44(1), generally with a recommendation, that is then forwarded to the Minister’s Delegate. The Minister’s Delegate will consider whether the report is well-founded and if so, may refer the matter to the ID pursuant to subsection 44(2) for an admissibility hearing. This is commonly referred to as the “section 44 Report” or the “report stage”. The ID is required to make a decision pursuant to section 45, including issuing a deportation order if satisfied that the permanent resident is inadmissible (paragraph 45(d)).
[14] A permanent resident may be found inadmissible to Canada on the ground of serious criminality if convicted of an offence or offences under an Act of Parliament for which a term of imprisonment of ten years or more may be imposed, or for which a term of imprisonment of six months or more has been imposed (paragraph 36(1)(a)). In addition, a permanent resident may be found inadmissible to Canada on the ground of organized criminality if he or she is a member of an organization believed on reasonable grounds to be or have been engaged in activity that is part of a pattern of criminal activity planned and organized by a group in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment or engaging in activity that is part of such a pattern (paragraph 37(1)(a)).
[15] Pursuant to section 64 of the Act, there is no right of appeal of the ID decision for a person found inadmissible for organized crime or for serious criminality on the basis of a crime that was punished in Canada by at least six months imprisonment. In addition, a person found inadmissible for organized criminality cannot seek an exemption from the requirements of the Act on humanitarian and compassionate grounds [H&C application] pursuant to section 25.
[16] On March 28, 2008, Mr. Revell was convicted of possession for the purposes of trafficking and of trafficking in cocaine, pursuant to the Controlled Drugs and Substances Act [CDSA]. The charges followed an investigation into the activities of the East End Hell’s Angels chapter in Kelowna, B.C. He was sentenced to five years in prison, but released on parole once eligible.
[17] In August 2008, the Canada Border Services Agency [CBSA] reported Mr. Revell pursuant to subsection 44(1) of the Act on the basis of serious criminality. Mr. Revell made submissions with the assistance of counsel regarding whether he should be referred to an admissibility hearing. In February 2009, the CBSA decided not to refer him to an admissibility hearing, although it did not communicate this to him. It appears that, due to an oversight, Mr. Revell did not receive a letter warning him that his 2008 conviction could be revisited for the purposes of his deportation if he re-offended. (Mr. Revell is not pursuing the argument he made before the ID that this amounted to an abuse of process.)
[18] At the same time, the CBSA was also investigating whether Mr. Revell was inadmissible for organized criminality. However, this investigation was not pursued at that time.
[19] In 2013, Mr. Revell pleaded guilty to assault with a weapon and assault causing bodily harm arising from several allegations by his then girlfriend. Both offences carry a maximum sentence of ten years imprisonment. Mr. Revell received a suspended sentence and two years of probation.
[20] Following Mr. Revell’s 2013 conviction, the CBSA sought submissions regarding whether he should be referred to an admissibility hearing. He was given an extension of time to retain Counsel and make submissions, which he did. The CBSA Officer made a detailed report dated February 3, 2015 and determined that Mr. Revell should be reported pursuant to subsection 44(1) of the Act on the basis of inadmissibility pursuant to paragraph 36(1)(a) for the 2013 assault convictions as well as pursuant to paragraph 37(1)(a) for the 2008 drug trafficking convictions. The Officer recommended that Mr. Revell be referred to a hearing to determine his admissibility to Canada. The Officer further recommended that the Minister proceed first on Mr. Revell’s inadmissibility pursuant to paragraph 37(1)(a).
[21] On February 6, 2015, the Minister’s Delegate found the CBSA Officer’s report to be well-founded and referred Mr. Revell to an admissibility hearing pursuant to subsection 44(2).
[22] Mr. Revell’s request for reconsideration of the Minister’s Delegate’s decision was denied. He then sought leave for judicial review of both the decision to refer him to an admissibility hearing pursuant to subsection 44(2) and the decision to refuse reconsideration. Leave was denied in both applications.
[23] The following year, in February 2016, Mr. Revell was reported and referred for an admissibility hearing on the basis of inadmissibility pursuant to paragraph 36(1)(a) for his 2008 drug trafficking conviction. Mr. Revell provided further submissions. The Officer considered the new submissions and noted that the detailed considerations set out in the February 2015 report remained applicable. The Officer acknowledged that a decision not to report Mr. Revell had been made in 2009, although no letter had been sent to advise him or warn him of the possible consequences of further convictions. With respect to Mr. Revell’s submissions that pursuing his inadmissibility based on his 2008 conviction was an abuse of process, the Officer noted that Mr. Revell had been represented by Counsel at that time, he had been advised of the opportunity to make submissions and of the consequences of a section 44 report, including referral to an admissibility hearing, and that he had made such submissions. The Officer concluded that Mr. Revell would have known of the consequences of further convictions.
[24] On February 9 and 10, 2016, the ID held a two-day hearing regarding all of the section 44 referrals. Mr. Revell adduced evidence of the impact that deportation would have on him and his family. His extensive written submissions and post-hearing written submissions were considered by the ID.
[25] Mr. Revell was found inadmissible pursuant to both paragraphs 36(1)(a) (serious criminality) and 37(1)(a) (organized criminality). As a result, he has no right of appeal to the Immigration Appeal Division, nor can he make an H&C application for an exemption from the requirements of the Act.
II. The ID Decision Under Review
[26] As noted above, the ID found Mr. Revell inadmissible under both paragraphs 36(1)(a) and 37(1)(a) of the Act and issued a deportation order. The ID relied only on Mr. Revell’s 2008 drug trafficking conviction, not on his 2013 assault conviction.
[27] The ID set out the allegations and noted Mr. Revell’s background, including that he is a citizen of England who came to Canada in 1974 at the age of ten and is a permanent resident.
[28] The ID rejected Mr. Revell’s submission that the CBSA’s failure to issue a warning letter, following the first investigation in 2009 (relating to his 2008 drug trafficking charges), constituted an abuse of process. The ID noted that, ideally, a letter should have been sent, but concluded that the failure to do so was “not of such an egregious nature to lead to a finding of abuse of process.”
[29] With respect to Mr. Revell’s submissions that his section 7 rights were violated, the ID considered the evidence submitted, including Mr. Revell’s testimony and that of family members, friends and psychologist, Dr. Karl Williams.
[30] The ID found that there “is little question that the consequences of deportation on Mr. Revell would be profound.” The ID noted that: he has lived in Canada for 42 years; he has only known Canada as home; he has no relatives remaining in England; he has a close relationship with his three children and three grandchildren; he works in Provost, Alberta on a schedule of two weeks on followed by six days off, and regularly returns to Kelowna to be with his family; and, he lives with his girlfriend of two years in Provost.
[31] The ID noted Mr. Revell’s testimony that removal to England would be devastating because he would lose his family connections and his family would lose their father and grandfather. The ID cited Dr. Williams’ report, which stated that there was “no doubt” that the forced separation of Mr. Revell from his family would be “devastating for him”, and that without his family he “would be devoid of direction and purpose.” The ID also noted that Mr. Revell’s son, daughter, and girlfriend gave similar evidence: that it would “kill him” to be away from his family, that he would face significant depression, and that he may not survive the deportation due to emotional devastation. Mr. Revell testified that without his family and contacts he feared a downward emotional spiral.
[32] The ID noted that the application of section 7 requires a two-step analysis: first, to determine whether section 7 is engaged, and second, to determine if any deprivation of the section 7 right is in accordance with principles of fundamental justice.
[33] The ID relied on Romans v Canada (Minister of Citizenship and Immigration), 2001 FCT 466, [2001] FCJ No 740 (QL) [Romans], where Justice Dawson (then of the Federal Court Trial Division) found that deportation would deprive Mr. Romans of the right to make a fundamental personal choice and that the profound consequences of his deportation order engaged his section 7 rights. (Mr. Romans was a 35-year-old citizen of Jamaica and a permanent resident of Canada who had been in Canada since the age of two. He suffered from serious mental illness and a substance abuse disorder, and had been ordered deported for serious criminality based on a lengthy criminal record.)
[34] The ID found that the same reasoning applied to the personal circumstances of Mr. Revell, again noting that he would be removed from his family and returned to England, where he would be a stranger with no safety net, and would face significant emotional and psychological hardship in starting over. The ID stated it had “no hesitation finding that his section 7 rights are engaged as he will be deprived of the right to make a personal choice of where to establish his home, free from state interference”.
[35] The ID then considered whether this deprivation was in accordance with the principles of fundamental justice. The ID concluded that while the deportation order deprived Mr. Revell of his section 7 rights, it did so in accordance with the principles of fundamental justice. The ID again relied on Romans, where Justice Dawson found that the deprivation of Mr. Roman’s section 7 right to security of the person was in accordance with the principles of fundamental justice, relying on Chiarelli.
[36] The ID acknowledged Mr. Revell’s submission that the Chiarelli decision should be reassessed in light of trends in international jurisprudence over the intervening 25 years. The ID found that the international jurisprudence, which generally takes the position that long-term permanent residents have a right to remain in their country of residence, was inconsistent with the established Canadian jurisprudence and that Chiarelli remains the binding precedent.
[37] The ID also found that the deportation order would not violate section 12, in accordance with Chiarelli, which held that the deportation of a permanent resident who had committed a serious criminal offence was not cruel and unusual.
III. Overview of the Parties’ Positions
A. The Applicant’s Position
[38] Mr. Revell submits that the consequences of his deportation engage his section 7 rights. He claims that his removal to the UK would be grossly disproportionate to the intent of the Act, which is to protect public safety, stating that he does not pose such a risk. As a result, the deprivation of his section 7 rights is not in accordance with the principles of fundamental justice.
[39] Mr. Revell submits that the ID erred by relying on the Supreme Court of Canada’s decision in Chiarelli. He argues that Chiarelli should be reconsidered as the threshold to do so, as established in Canada (Attorney General) v Bedford, 2013 SCC 72 at para 42, [2013] 3 SCR 1101 [Bedford], has been met. He submits that there are novel legal issues to be considered as a consequence of significant developments in the law and a change in the underlying circumstances, in particular: developments in international law and recognition by Canadian courts of its role in Charter interpretation; amendments to the Act that changed the removal process for permanent residents who are inadmissible; the recognition of gross disproportionality as a distinct principle of fundamental justice under section 7 of the Charter; and, evolving values and standards of decency in Canadian society which inform the notion of cruel and unusual treatment under section 12 of the Charter.
B. The British Columbia Civil Liberties Association’s [BCCLA] Position
[40] The BCCLA submits that the Supreme Court of Canada’s decisions in Chiarelli and subsequently in Medovarski v Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 SCR 539 [Medovarski] must be revisited because the Court’s reliance on the common law principle that non-citizens do not have an unqualified right to enter or remain in the country to assess whether section 7 is engaged is inconsistent with contemporary principles of Charter interpretation. The contextual analysis to determine the scope and application of the principles of fundamental justice should be broader. The scope of the section 7 right must be determined from the perspective of the “rights-bearer” (in this case, Mr. Revell), not the state.
C. The Respondent’s Position
[41] The Respondent submits that the jurisprudence is clear and is binding on the ID: section 7 is not engaged at the admissibility stage in these circumstances and, in any case, deportation would not be inconsistent with the principles of fundamental justice. The Respondent adds that Mr. Revell’s deportation would not violate section 12.
[42] The Respondent argues, in the alternative, that if an assessment of proportionality between the consequences of deportation and the objectives of the Act is required, this has already occurred at least three times at the section 44 report stage, which resulted in the decision to refer Mr. Revell to an admissibility hearing. The Respondent notes that leave for judicial review of the 2015 decision to refer Mr. Revell to an admissibility hearing and of the refusal to reconsider that decision was denied. The Respondent suggests that the present application is a collateral attack on that decision.
[43] The Respondent also suggests that Mr. Revell can pursue other options prior to his deportation, including seeking a stay of removal, at which time he could raise his Charter arguments.
IV. The Issues
[44] Mr. Revell raised several issues in his written submissions, some of which were slightly modified in his oral submissions. Mr. Revell also proposes several questions for certification (which are set out at the end of these reasons), some of which are general and/or hypothetical questions.
[45] The specific issues raised by Mr. Revell all relate to whether the ID erred in its findings and whether the provisions of the Act at issue, as they apply to the consequences of deportation for Mr. Revell – a long-term permanent resident who will be uprooted from his home and family, but will not face any risk of persecution or torture in the UK ‒ violate his rights to liberty and/or security of the person and to protection from cruel and unusual treatment.
[46] I have slightly restated the issues raised by Mr. Revell based on his written and oral submissions, however, the issues continue to over-lap:
Are Mr. Revell’s section 7 rights infringed by the ID’s finding of inadmissibility and issuance of a deportation order given his circumstances as a long-term permanent resident with no right of appeal and no right to seek an H&C exemption, and who does not assert a risk of persecution in his country of origin?
Did the ID err in finding that it remained bound by stare decisis to apply Chiarelli?
If stare decisis does not apply, do the principles of fundamental justice require that an independent tribunal be mandated to conduct a case-by-case assessment of all of the circumstances to determine if the deportation of Mr. Revell would be grossly disproportionate?
More generally, is the current deportation regime and procedure consistent with the principles of fundamental justice, and did the ID err in so finding?
Did the ID err in finding that the deportation process would not violate Mr. Revell’s section 12 rights, as it would not constitute cruel and unusual treatment due to gross disproportionality?
V. The Standard of Review
[47] Mr. Revell submits that the reasonableness standard applies to the findings of facts about the impact of the deportation order on him and whether this impact engages his section 7 “interests”. He submits that the ID reasonably found that section 7 was engaged and that the Court should show deference to this finding. He also submits that the ID was correct in this finding.
[48] Mr. Revell submits that questions related to the interpretation of the Charter and the interaction between the Charter and international law are reviewable on a standard of correctness (Febles v Canada (Minister of Citizenship and Immigration), 2012 FCA 324 at paras 24-25, [2014] 2 FCR 224, aff’d 2014 SCC 68, [2014] 3 SCR 431 [Febles (FCA)]; Doré v Barreau duQuébec, 2012 SCC 12 at para 43, [2012] 1 SCR 395 [Doré]).
[49] He submits that the issue of whether the application of section 7 is in accordance with the principles of fundamental justice (at stage 2) and whether section 12 has been violated are questions of constitutional law to be determined on the correctness standard.
[50] The Respondent submits that the standard of review, whether correctness or reasonableness, does not make any difference; the decision is both reasonable and correct.
[51] In my view, both parties’ submissions lack clarity on the applicable standard of review.
[52] In Doré, the Supreme Court of Canada stated that when a tribunal is determining the constitutionality of a law the standard of review is correctness (at para 43). The Court noted, however, that this was not necessarily the case when determining whether the tribunal had taken sufficient account of Charter values in making a discretionary decision (at para 43).
[53] In this case, Mr. Revell claims that the provisions of the Act, as applied to him, violate his section 7 and 12 Charter rights. He is not claiming that Charter values or his Charter interests were not taken into account and were not proportionately balanced by an administrative decision-maker. The applicable standard of review is correctness because he alleges that his+ Charter rights have been infringed.
[54] If Mr. Revell’s section 7 rights are engaged by the finding of inadmissibility, the determination at the second stage, which assesses whether any deprivation of liberty or security of the person is in accordance with principles of fundamental justice, is also a question of constitutional law reviewed on the correctness standard.
VI. Are Mr. Revell’s section 7 rights infringed by the ID’s finding of inadmissibility and issuance of a deportation order given his circumstances as a long-term permanent resident with no right of appeal and no right to seek an H&C exemption, and who does not assert a risk of persecution in his country of origin?
[55] This issue requires consideration of three sub-issues:
Whether section 7 can be engaged at the admissibility stage (the finding of inadmissibility and issuance of a deportation order);
· If so, whether section 7 is engaged in these circumstances; and,
· If section 7 is engaged in these circumstances, whether any deprivation of liberty or security of the person is in accordance with the principles of fundamental justice.
A. The Applicant’s Submissions
[56] Mr. Revell argues that section 7 is engaged by the finding of inadmissibility and the issuance of a deportation order in his case. He submits that the jurisprudence does not preclude finding that section 7 is engaged at an earlier stage than actual deportation. Mr. Revell equates the finding of inadmissibility with his deportation; he appears to view his deportation as inevitable.
[57] Mr. Revell argues that the ID’s determination that section 7 is engaged in his circumstances should be given considerable deference because it is based on a careful assessment of the facts.
[58] Mr. Revell relies on Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 SCR 307 [Blencoe] which establishes that the liberty or security of the person interests can be engaged in a non-criminal context. In Blencoe, the Court found that the liberty interest is not restricted to freedom from physical restraint (such as imprisonment), and is engaged “where state compulsions or prohibitions affect important and fundamental life choices” (at paras 49-54) and that the security of person interest may encompass serious state-imposed psychological stress (at paras 56-57).
[59] He also relies on Romans, noting that Justice Dawson applied Blencoe to conclude that Mr. Romans’ liberty interests were engaged by the deportation process as it prohibited him from making the “fundamental personal choice to remain in Canada”, and that the consequences of the deportation order were profound (at para 22).
[60] Mr. Revell points out that in Romans v Canada (Minister of Citizenship and Immigration), 2001 FCA 272, [2001] FCJ No 1416 (QL) [Romans FCA] the Federal Court of Appeal accepted that section 7 was engaged by deportation “for the sake of discussion”, although the Court of Appeal also found that the deprivation of the section 7 right was in accordance with the principles of fundamental justice, based on Chiarelli.
[61] Mr. Revell notes that in Chiarelli the Supreme Court of Canada did not determine whether deportation engages section 7 rights. Although the Supreme Court of Canada stated that deportation “in itself” does not engage section 7 in Medovarski (at para 46), Mr. Revell argues that the Court relied on the existence of an H&C application to find that there was no breach of the principles of fundamental justice even if section 7 were engaged.
[62] Mr. Revell submits that the jurisprudence supports his position that section 7 is engaged by the consequences of his deportation. In addition to Romans, he points to Powell v Canada (Minister of Citizenship and Immigration), 2004 FC 1120, [2004] FCJ No 1538 (QL), aff’d 2005 FCA 202, 255 DLR (4th) 59 [Powell], where Justice Gibson concluded that section 7 rights were engaged in the deportation of a permanent resident on the basis of inadmissibility for serious criminality (at para 17). The Federal Court of Appeal affirmed the decision, but without deciding whether section 7 was engaged.
[63] Mr. Revell also points to several other cases to demonstrate that the section 7 liberty or security of the person interests may be engaged in a range of circumstances including: the determination of whether a person is a Convention Refugee in Singh v Canada (Minister of Employment & Immigration), [1985] 1 SCR 177, 17 DLR (4th) 422 [Singh]; the determination of whether removal places a person at risk of torture upon return to his or her country in Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 SCR 3 [Suresh]; and the impact of a security certificate in Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 SCR 350 [Charkaoui].
[64] Mr. Revell notes that in Charkaoui the Supreme Court of Canada clarified that while it had held in Medovarski that deportation “of a non-citizen in itself” does not engage section 7 (at para 16, emphasis added in Charkaoui), that did not mean that deportation in the immigration context was immune from section 7 scrutiny (at para 17). The Court noted that “some features associated with deportation, such as detention in the course of the certificate process or the prospect of deportation to torture” may engage section 7 (at para 17).
[65] Mr. Revell acknowledges that in B010 v Canada (Minister of Citizenship and Immigration), 2015 SCC 58, [2015] 3 SCR 704 [B010], the Supreme Court of Canada stated that “s. 7 of the Charter is not engaged at the stage of determining admissibility” (at para 75). However, he submits that this is obiter and, when read in the context of the whole paragraph, the Court is simply affirming that the mere fact that the consequence of an inadmissibility determination is the issuance of a deportation order and is not, in itself, sufficient to engage section 7; more is required.
[66] Mr. Revell also relies on Savunthararasa v Canada (Minister of Public Safety and Emergency Preparedness), 2016 FCA 51, [2017] 1 FCR 318 [Savunthararasa], where the Federal Court of Appeal cautioned that the Federal Court “must be mindful of the need to properly analyze at the first stage of the section 7 analysis whether the removals scheme imposes limits on the security of the person, thus engaging section 7 of the Charter” (at paras 28-30). He submits that, although the Court found that section 7 is not engaged where there are subsequent proceedings to assess risk, the decision supports the view that an assessment of whether section 7 is engaged should be conducted at the earlier stage.
[67] Mr. Revell submits that if deportation poses a risk of persecution or torture, then the section 7 assessment can be conducted before removal at the Pre- Removal Risk Assessment [PRRA] stage. However, where there are other consequences which will not be assessed at the later stage, as in his case, the section 7 assessment must be conducted at an earlier stage and must assess broader risks. He submits that the ID is the appropriate tribunal to conduct a case-by-case assessment of the consequences of deportation and erred in not doing so.
[68] Mr. Revell notes that he grew up in Canada and all his family and social ties are in Canada; he has no ties or connections in England; he would not be able to return to Canada without permission; he cannot be sponsored by a spouse because he is inadmissible; he is not eligible to seek an exemption from the requirements of the Act on H&C grounds; and, the psychological evidence establishes that he will suffer serious harm upon removal. He argues that his liberty interest is engaged because the decision to stay with his family in the country where he grew up is a fundamental personal choice. He argues that his security of the person interest is engaged by the serious psychological harm that would be caused by his deportation, which goes beyond the “stress and anxiety” that was found insufficient to engage section 7 in Blencoe.
[69] Mr. Revell argues that the ID reasonably (and correctly) found that section 7 was engaged and that this finding should not be disturbed. However, the ID erred in finding that it was bound by Chiarelli and that the deprivation of his liberty and security of the person was in accordance with principles of fundamental justice. Mr. Revell submits that the evidence demonstrates the devastating impact of deportation on him which is grossly disproportionate to the objective of deportation, which is to protect public safety.
B. The BCCLA’s Submissions
[70] The BCCLA submits that the state inflicted harm of deportation, which will uproot Mr. Revell from his home and life in Canada, impairs his section 7 rights. Regardless of his citizenship, Canada is his home country.
[71] The BCCLA submits that the scope of the section 7 right must be considered from the perspective of the “rights-bearer” (in this case, Mr. Revell) and not the state. The BCCLA submits that in Chiarelli, the Court found that the contextual analysis required to determine whether section 7 is engaged, including the individual’s circumstances and the circumstances of their offences, was not constitutionally relevant.
[72] The BCCLA submits that the Supreme Court’s reliance on a single common law principle in Chiarelli, which the Court characterized as the “most fundamental principle of immigration law” – that “non-citizens do not have an unqualified right to enter or remain in the country” – to determine the scope of the principles of fundamental justice under section 7 of the Charter is inconsistent with contemporary principles of section 7 interpretation. Reliance on a common law principle cannot pre-empt an inquiry into the impact of state conduct on the rights of individuals and does not resolve whether deportation, in certain circumstances, violates section 7 of the Charter. Moreover, Mr. Revell does not assert that non-citizens have an unqualified right to enter Canada. Therefore, reliance on this principle does not respond to his position, which is, that in the particular circumstances of his life and situation, deportation would violate his Charter rights.
[73] The BCCLA submits that both Chiarelli and Medovarski should be revisited.
C. The Respondent’s Submissions
[74] The Respondent submits that the ID erred in relying on Romans to find that section 7 was engaged, despite that the Court had noted in Romans that the question of whether deportation engages section 7 of the Charter was “unsettled” (at para 16). The law has since been settled.
[75] The Respondent emphasizes that deportation per se does not engage section 7 of the Charter, as held in Medovarski and subsequent decisions. It is the risk of persecution or torture on removal, and not removal itself, that engages section 7. The Respondent further submits that section 7 of the Charter is not engaged at the admissibility stage and could only possibly come into play at the time of removal.
[76] The Respondent submits that Chiarelli remains binding and points to Torre v Canada (Minister of Citizenship and Immigration), 2015 FC 591, [2015] FCJ No 601 (QL), aff’d 2016 FCA 48, [2016] FCJ No 162 (QL) [Torre] and Stables v Canada (Minister of Citizenship and Immigration), 2011 FC 1319, [2013] 3 FCR 240 [Stables] where the Court reviewed the relevant jurisprudence, including Chiarelli and Medovarski and the Federal Court of Appeal’s decision in Poshteh v Canada (Minister of Citizenship and Immigration), 2005 FCA 85, [2005] 3 FCR 487 [Poshteh].
[77] The Respondent notes that the more recent jurisprudence reinforces that section 7 of the Charter is not engaged at the stage of determining admissibility (Febles (FCA), B010, Poshteh, Stables, Torre and Brar v Canada (MPSEP), 2016 FC 1214, [2016] FCJ No 1241 (QL) [Brar]).
[78] The Respondent reiterates that ‘something more’ than deportation is required to engage section 7 and that Mr. Revell’s personal circumstances would not be sufficient to constitute ‘something more’.
[79] The Respondent submits that the ID also erred in relying on the evidence of the psychological impact to find that Mr. Revell’s ability to make fundamental life choices was affected and as a result, his liberty and security interests were engaged; this type of impact does not engage section 7.
[80] The Respondent notes that in Stables, Justice de Montigny applied Blencoe and found that the psychological stress of prospective removal did not engage the security of the person interest, despite the fact that Mr. Stables immigrated from the United Kingdom to Canada over 40 years previously at the age of seven (at para 42).
[81] The Respondent also points to Brar at para 23, where Justice Mactavish distinguished the type of harm that engages section 7 of the Charter from the “typical consequences of deportation”, which include “family separation, loss of establishment and the need to become re‑established in a country left years before”.
[82] The Respondent submits that although the ID erred in finding that Mr. Revell’s section 7 rights were engaged at the admissibility stage, nothing turns on this error because the ID correctly determined at the second stage of the analysis that deportation would be in accordance with the principles of fundamental justice.
D. Section 7 is not engaged at the admissibility stage (the finding of inadmissibility and issuance of a deportation order)
[83] The jurisprudence has established that a two-stage analysis is required to determine whether section 7 rights have been infringed; first, whether section 7 is engaged in the circumstances and second, whether any limits on the section 7 rights are in accordance with the principles of fundamental justice.
[84] The Supreme Court of Canada stated in Blencoe at para 47:
[…] before it is even possible to address the issue of whether the respondent’s s. 7 rights were infringed in a manner not in accordance with the principles of fundamental justice, one must first establish that the interest in respect of which the respondent asserted his claim falls within the ambit of s. 7.
[85] The starting point is to address whether section 7 can be engaged by a finding of inadmissibility. A distinction must be drawn between an inadmissibility finding and actual deportation. Given that there are several steps in the process, a finding of inadmissibility does not automatically or immediately result in deportation.
[86] The more recent jurisprudence from the Supreme Court of Canada and the Federal Court of Appeal has held that an inadmissibility determination does not engage section 7. The jurisprudence has also firmly established that section 7 is not engaged by a deportation per se (in itself, without more). In addition, some jurisprudence appears to equate inadmissibility with deportation, and has blended the two principles from the appellate jurisprudence to find that inadmissibility per se (in itself, without more) does not engage section 7.
[87] In Chiarelli, the Supreme Court of Canada did not determine whether deportation amounted to a deprivation of life, liberty or security of person and thereby engaged section 7. The Court determined the matter solely on the basis that there was no breach of fundamental justice (at page 732). However, the Court agreed that the threshold question was whether deportation per se engages section 7, noting at page 731-732:
The essence of the respondent's position is that ss. 27(1)(d)(ii) and 32(2) are contrary to principles of fundamental justice because they are mandatory and require that deportation be