Revell v. Canada (Citizenship and Immigration)

Revell v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court of Appeal Decisions
Date
2019-10-18
Neutral citation
2019 FCA 262
File numbers
A-316-17
Notes
Reported Decision A correction was made on December 17, 2020
Decision Content
Date: 20191018
Docket: A-316-17
Citation: 2019 FCA 262
CORAM:
STRATAS J.A.
NEAR J.A.
DE MONTIGNY J.A.
BETWEEN:
DAVID ROGER REVELL
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
and
CHINESE AND SOUTHEAST ASIAN LEGAL CLINIC (CSALC)
AND SOUTH ASIAN LEGAL CLINIC OF ONTARIO (SALCO)
Interveners
Heard at Vancouver, British Columbia, on January 16, 2019.
Judgment delivered at Ottawa, Ontario, on October 18, 2019.
REASONS FOR JUDGMENT BY:
DE MONTIGNY J.A.
CONCURRED IN BY:
STRATAS J.A.
NEAR J.A.
Date: 20191018
Docket: A-316-17
Citation: 2019 FCA 262
CORAM:
STRATAS J.A.
NEAR J.A.
DE MONTIGNY J.A.
BETWEEN:
DAVID ROGER REVELL
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
and
CHINESE AND SOUTHEAST ASIAN LEGAL CLINIC (CSALC) AND SOUTH ASIAN LEGAL CLINIC OF ONTARIO (SALCO)
Interveners
REASONS FOR JUDGMENT
DE MONTIGNY J.A.
[1] The appellant, Mr. Revell, appeals from a decision of the Federal Court (Justice Kane) dated October 12, 2017 (Revell v. Canada (Citizenship and Immigration), 2017 FC 905, [2018] 3 F.C.R. 255 [FC Reasons]), which dismissed his application for judicial review of a decision of the Immigration Division (ID) of the Immigration and Refugee Board (IRB), dated July 28, 2016 (Canada (Minister of Public Safety and Emergency Preparedness) v. Revell, [2016] I.D.D. No. 44 [ID Decision]). The ID determined he was inadmissible to Canada on the grounds of serious criminality under paragraph 36(1)(a) and organized criminality under paragraph 37(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act or IRPA), and issued a deportation order.
[2] The Federal Court certified the two following serious questions of general importance:
a) Is section 7 engaged at the stage of determining whether a permanent resident is inadmissible to Canada and if so, would section 7 be engaged where the deprivation of the right to liberty and security of the person of a permanent resident arises from their uprooting from Canada, and not from possible persecution or torture in the country of nationality?
b) Does the principle of stare decisis preclude this Court from reconsidering the findings of the Supreme Court of Canada in Chiarelli, which established that the deportation of a permanent resident who has been convicted of serious criminal offence, despite that the circumstances of the permanent resident and the offence committed may vary, is in accordance with the principles of fundamental justice? In other words, have the criteria to depart from binding jurisprudence been met in the present case?
[3] For the reasons that follow, I am of the view that the Federal Court Judge did not err in answering these two questions in the negative, and would accordingly dismiss the appeal without costs.
I. Background
[4] A permanent resident may be found inadmissible to Canada on various grounds. Of particular relevance on this appeal are paragraphs 36(1)(a) and 37(1)(a) of the Act, which provide as follows:
36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for
36 (1) Emportent interdiction de territoire pour grande criminalité les faits suivants :
(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;
a) être déclaré coupable au Canada d’une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans ou d’une infraction à une loi fédérale pour laquelle un emprisonnement de plus de six mois est infligé;
37 (1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for
37 (1) Emportent interdiction de territoire pour criminalité organisée les faits suivants :
(a) being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern;
a) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle se livre ou s’est livrée à des activités faisant partie d’un plan d’activités criminelles organisées par plusieurs personnes agissant de concert en vue de la perpétration d’une infraction à une loi fédérale punissable par mise en accusation ou de la perpétration, hors du Canada, d’une infraction qui, commise au Canada, constituerait une telle infraction, ou se livrer à des activités faisant partie d’un tel plan;
[5] Inadmissibility on either of these bases (i.e., serious criminality and organized criminality) can lead to loss of status and removal from Canada. The Act outlines a comprehensive scheme for the adjudication and enforcement of allegations that a permanent resident is inadmissible.
[6] Subsection 44(1) of the Act provides that if a Canada Border Services Agency (CBSA) officer is of the view that a permanent resident is inadmissible, that officer may prepare a report setting out the relevant facts and transmit it to the Minister of Public Safety and Emergency Preparedness (the Minister). If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the ID, under subsection 44(2) of the Act, for an admissibility hearing. However, even if the Minister is of the opinion that the report of the CBSA officer is well-founded, he or she still retains some discretion not to refer it to the ID (see, notably, Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289 at para. 6 [Tran]).
[7] If the Minister does refer the report to the ID, an admissibility hearing is held for the permanent resident. The ID must then recognize that person’s right to enter Canada, authorize him or her to enter Canada for further examination, or make a removal order against that person (IRPA, ss. 45(a), (c) and (d)). Inadmissibility decisions by the ID are generally appealable to the Immigration Appeal Division (IAD). However, there is no right to appeal by a foreign national or permanent resident who has been found to be inadmissible on grounds of serious criminality or organized criminality (s. 64-(1)). When there is no right to appeal, a removal order comes into force on the day of its issuance (para. 49(1)(a)). The permanent resident loses his or her status and reverts to being a foreign national (para. 46(1)(c)).
[8] If the foreign national who has been found inadmissible on grounds of serious criminality or organized criminality wishes to remain in Canada, three avenues remain open to them: a temporary residence permit, a humanitarian and compassionate discretionary exemption, and a Ministerial declaration. Section 24 allows foreign nationals found inadmissible to apply to an officer for an exceptional temporary resident permit allowing them to remain in Canada for a finite period of time.
[9] Section 25 allows foreign nationals found inadmissible to apply to the Minister of Citizenship and Immigration for a discretionary exemption from their inadmissibility on humanitarian and compassionate (H&C) grounds. Unlike the temporary residence permit, the exemption allows them to remain in Canada permanently. Although it is available to foreign nationals who are inadmissible for subsection 36(1) serious criminality irrespective of their sentence, it is not available to those who are inadmissible under subsection 37(1) organized criminality.
[10] Section 42.1 provides that the Minister of Public Safety and Emergency Preparedness may declare that subsection 37(1) organized criminality does not constitute inadmissibility in respect of a foreign national if he or she is satisfied that this exception is not contrary to the national interest. This declaration may be made on his or her own initiative or on the basis of an application. Under subsection 42.1(3), in determining whether or not to make this declaration the Minister may only consider “national security and public safety considerations” but he or she “is not limited to considering the danger that the foreign national presents to the public or the security of Canada” in the analysis. When section 42.1 relief is granted, the foreign national becomes eligible to make an H&C application under section 25.
[11] Before a removal order is enforced, a foreign national can apply for a Pre-Removal Risk Assessment (PRRA) (ss. 112-113). This process seeks to determine whether the removal of a person to his or her country of nationality would subject that person to a danger of torture, to a risk to their life or, in certain circumstances, to a risk of cruel and unusual treatment (s. 97(1)). A positive PRRA stays removal from Canada.
[12] While section 48 of the Act directs that removal orders be enforced as soon as possible, the person concerned may request that it be deferred. CBSA retains a limited discretion to defer (see Lewis v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 130, [2018] 2 F.C.R. 229 at para. 54 [Lewis]).
[13] The particular facts underpinning the present case are aptly summarized by the Federal Court at paragraphs 16 to 25 of the decision below. As a result, I shall only mention the most salient of these facts.
[14] The appellant is a 55 year old British citizen who immigrated to Canada in 1974 at the age of ten. Since that time, he has lived in Canada as a permanent resident and has never applied for Canadian citizenship. The appellant has three adult children residing in Canada. He claims that he has not maintained any significant ties to England and has no friends or family there, except for one elderly aunt. He lives and works in Provost, Alberta, where he is employed as an oil well technician.
[15] In March 2008, the appellant was charged with possessing cocaine for the purposes of trafficking, committing that offence at the direction of or in association with a criminal group, and trafficking cocaine. The charges followed an investigation into the activities of the East End Hells Angels chapter in Kelowna, B.C. The appellant was ultimately found guilty of the drug possession and drug trafficking charges, and was acquitted of the criminal organization charge. The appellant was sentenced to five years in prison, and was released on parole once eligible.
[16] In June 2008, a CBSA officer reported the appellant under subsection 44(1) of the Act for serious criminality. The appellant then made submissions, with the assistance of counsel, as to why a removal order should not be made against him. On February 16, 2009, the Minister’s Delegate decided, upon consideration of the appellant’s personal circumstances at the time, to exercise his discretion under subsection 44(2) of the Act. The report was not referred to the ID for an admissibility hearing. It appears, however, that due to an oversight, the appellant did not receive a letter warning him that his 2008 conviction could be revisited for the purposes of removal if he were to reoffend.
[17] In 2013, the appellant pleaded guilty to assault with a weapon and assault causing bodily harm arising from allegations by his then girlfriend. Both offences carry a maximum sentence of ten years in prison. He ultimately received a suspended sentence and two years of probation.
[18] In October and November 2014, a CBSA officer notified Mr. Revell that CBSA was considering subsection 44(1) reports against him for inadmissibility for serious criminality under paragraph 36(1)(a) as a result of his assault convictions, and for engaging in organized crime under paragraph 37(1)(a) as a result of revisiting his 2008 conviction. The CBSA officer sought submissions from the appellant as to whether he should be referred to an admissibility hearing; the appellant made submissions, with the assistance of his counsel.
[19] On February 3, 2015, the CBSA officer made subsection 44(1) reports against Mr. Revell for inadmissibility under paragraph 36(1)(a) for the 2013 convictions, and under paragraph 37(1)(a) for the 2008 convictions. Having considered the appellant’s submissions and countervailing factors, the CBSA officer suggested that the subsection 44(1) reports be referred to the ID for an admissibility hearing.
[20] On February 6, 2015, the Minister’s Delegate found the CBSA officer’s report to be well-founded and referred the appellant to an admissibility hearing pursuant to subsection 44(2) of the Act. The appellant’s request for reconsideration was denied. He then sought leave for judicial review of both the referral decision and the decision to refuse reconsideration, but was unsuccessful.
[21] In February 2016, a third subsection 44(1) report was filed against the appellant on the basis of inadmissibility under paragraph 36(1)(a) of the Act in relation to the 2008 drug trafficking convictions. The appellant again made new submissions regarding why a removal order should not be issued against him. The Minister’s Delegate considered these submissions before referring the matter to the ID for an admissibility hearing.
[22] On February 9 and 10, 2016, the ID held a hearing regarding the three subsection 44(1) reports.
II. Decisions Below
A. The Immigration Division’s Decision
[23] Before the ID, the appellant conceded he was inadmissible on the basis of organized criminality and serious criminality, but claimed abuse of process. He further argued that sections 44 and 45 of the Act unjustifiably infringed his right under sections 7 and 12 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the Charter).
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu’en conformité avec les principes de justice fondamentale.
[…]
[…]
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
12. Chacun a droit à la protection contre tous traitements ou peines cruels et inusités.
[24] The ID rejected the appellant’s submission that the immigration authorities’ failure to issue a warning letter following the first investigation in 2009 constituted an abuse of process. While of the view that a letter should have been sent, the ID nonetheless found that the failure to do so was “not of such an egregious nature to lead to a finding of abuse of process” (ID Decision, at para. 20).
[25] Moving on to the Charter arguments, 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 the alleged deprivation is in accordance with principles of fundamental justice (ID Decision, ibid. at para. 28). Relying on the Federal Court’s decision in Romans v. Canada (Minister of Citizenship and Immigration), 2001 FCT 466, 203 F.T.R. 108 [Romans FC], aff’d 2001 FCA 272, 281 NR 357 [Romans FCA], the ID found, in light of the evidence, that the appellant’s 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” (ID Decision at para. 31).
[26] In the second step of the analysis, the ID then considered whether this deprivation of section 7 rights was in accordance with the principles of fundamental justice. In light of Romans FC and Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, 135 N.R. 161 [Chiarelli], the ID answered this question in the affirmative (ID Decision at para. 35). It further rejected the appellant’s submission that the Chiarelli decision should be reassessed in light of recent trends in international law, as it found these trends to be inconsistent with the established Canadian jurisprudence on the matter (ibid. at para. 34).
[27] Lastly, the ID found, again on the basis of Chiarelli, that the deportation order was not cruel and unusual because it did not outrage standards of decency. It therefore did not violate section 12 of the Charter (ibid. at para. 41).
B. The Federal Court’s Decision
[28] Applying the correctness standard of review (FC Reasons at paras. 53-54), the Judge found that the ID erred at step one of the analysis, both in finding that section 7 could be engaged by the inadmissibility adjudication process (ibid. at para. 114), and in finding that section 7 was engaged in Mr. Revell’s circumstances (ibid. at para. 130). She noted that it is only at the later stages of the deportation process that section 7 may be engaged (ibid. at para. 99). She also found that Mr. Revell had not established any risk of persecution, torture or detention if deported, and that his circumstances fell short of establishing his claim that he would suffer serious psychological harm if he were to return to England.
[29] The Judge held, however, that the ID was correct at the second stage of the analysis. It was right to conclude that even if section 7 of the Charter were to be engaged, the principles of fundamental justice were observed in Mr. Revell’s case (ibid. at para. 143). The Judge was of the view that the threshold for departing from the Chiarelli decision was not met here, and that the ID did not err in finding it was bound by this decision (ibid. at para. 184).
[30] Lastly, the Judge also held that, if deportation is indeed a “treatment” under section 12, it is not cruel and unusual due to gross disproportionality in this case (ibid. at para. 226).
III. Issues
[31] As previously mentioned, the Federal Court certified one question pertaining to the moment where section 7 of the Charter is engaged, and one question pertaining to the binding character of Chiarelli. In my view, and based on the parties’ submissions, the present appeal turns on six questions, which can be formulated as follows:
Is section 7 of the Charter engaged at the admissibility hearing stage?
If so, is section 7 engaged by the uprooting of a long-term permanent resident absent possible persecution or torture in the country of nationality?
Does the principle of stare decisis preclude this Court from reconsidering the findings of the Supreme Court of Canada in Chiarelli? In other words, have the criteria to depart from binding jurisprudence been met in the present case?
If so, is the impugned legislative scheme consistent with the principles of fundamental justice?
Does the impugned legislative scheme infringe upon the appellant’s rights under section 12 of the Charter?
Would these infringements be justified under section 1 of the Charter?
[32] Some of these issues were also raised, albeit in a slightly different factual setting, in a companion case in which judgment is also being delivered today (Moretto v. Canada, 2019 FCA 261 [Moretto]). The appeals in these cases were heard one after the other by the same panel of the Court.
IV. Standard of review
[33] On appeal from a decision of the Federal Court sitting in judicial review of a decision of an administrative decision-maker, the applicable framework is that of Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at paras. 45-47. This framework requires this Court to “step into the shoes” of the Federal Court to determine whether it identified the appropriate standard of review and whether it applied this standard properly.
[34] While I do not subscribe to the whole of the Federal Court’s reasoning with respect to standard of review, I nevertheless find it properly identified the applicable standard of review as that of correctness. A tribunal’s analysis as to whether a law is Charter compliant attracts a correctness standard (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 58; Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 at paras. 36, 43; Begum v. Canada (Citizenship and Immigration), 2018 FCA 181, 297 A.C.W.S. (3d) 622 at para. 36 [Begum]). As this Court noted in Thomson v. Canada (Attorney General), 2016 FCA 253, 272 A.C.W.S. (3d) 230 at para. 24, “the case law recognizes that, with the exception of discretionary decisions, the correctness standard applies to reviews of tribunals’ adjudications of constitutional issues, including Charter claims” (see also Sawyer v. TransCanada Pipeline Limited, 2017 FCA 159, 281 A.C.W.S. (3d) 413 at paras. 7-8).
V. Analysis
A. Is section 7 of the Charter engaged at the admissibility hearing stage?
[35] Mr. Revell argues that his section 7 rights are engaged at the inadmissibility adjudication stage. In support of that contention, he points to the fact that a removal order comes into force on the day of its issuance if no right of appeal is available (IRPA at para. 49(1)(a)). He claims that the inadmissibility adjudication stage is therefore sufficiently proximate to deportation to engage section 7.
[36] He further submits that the Judge erred in determining that section 7 cannot be engaged at the inadmissibility stage so long as other steps remain available prior to removal. In his view, the Judge applied an incorrect “necessary link” test in arriving at this determination. He submits that the correct test is that articulated in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 [Bedford]. Following Bedford, section 7 of the Charter is engaged once a “sufficient causal connection” can be established between the state-caused effect and the prejudice allegedly suffered. In the appellant’s view, on a proper application of the Bedford standard the ID’s adjudicative process in this case is not too remote to trigger section 7. The IAD appeals and H&C applications are not available to Mr. Revell, and the PRRA officer lacks jurisdiction to consider his uprooting and its attendant psychological stress. Thus, the ID process is especially proximate to removal in his case. Finally, the appellant also claims that the Judge’s approach is inconsistent with the Supreme Court’s approach in criminal and extradition law, where section 7 is said to permeate the whole process.
[37] The Judge was justified to find that there is extensive case law to the effect that the rights enshrined in section 7 of the Charter are not infringed by deportation per se, without more. I shall return to that point when dealing with the second issue raised in this appeal. Suffice it to say for now that ever since the decision in Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539 [Medovarski], the Supreme Court has consistently held that the mere fact of removing an individual to his or her country of origin is not sufficient to breach the right to life, liberty or security of that person.
[38] The Judge was similarly right to note, at paragraphs 83 and following of her reasons, that there is extensive case law from this Court establishing that an inadmissibility finding is distinct from effecting removal and that, as other steps remain in the process, a finding of inadmissibility does not automatically or immediately result in deportation and therefore does not engage section 7 of the Charter. Despite some conflicting decisions in the early days following the decision of the Supreme Court in Chiarelli, this Court has consistently held since Medovarski and Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350 [Charkaoui] that section 7 is not engaged at the stage of determining inadmissibility (see Poshteh v. Canada (Citizenship and Immigration), 2005 FCA 85, [2005] 3 F.C.R. 487 at para. 63; Canada (Public Safety and Emergency Preparedness) v. J.P., 2013 FCA 262, [2014] 4 F.C.R. 371 at paras. 123, 125 [J.P.], reviewed on other grounds in B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704 [B010]; Torre v. Canada (Citizenship and Immigration), 2016 FCA 48, 263 A.C.W.S. (3d) 729 at para. 4, leave to appeal to SCC refused, 36936 (21 August 2016); Tapambwa v. Canada (Citizenship and Immigration), 2019 FCA 34, 304 A.C.W.S. (3d) 376 at paras. 81-82, leave to appeal to SCC refused, 38589 (11 July 2019); Kreishan v. Canada (Citizenship and Immigration), 2019 FCA 223 at paras. 118-127).
[39] In Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431 [Febles], the Court considered section 98 of the IRPA, which excludes from refugee protection all persons referred to in Article 1F(b) of the United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6 (Refugee Convention), namely “all persons who have committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee” (at para. 60). At issue was whether, as argued by Mr. Febles, the exclusion was confined to fugitives from justice and whether post-crime events like rehabilitation or expiation were relevant, or whether, as submitted by the Minister, a broader interpretation should be adopted such that the Article 1F(b) serious criminality exclusion is triggered whenever the refugee claimant has committed a serious non-political crime before coming to Canada.
[40] It is true that the majority in Febles did not expressly find that section 7 of the Charter has no role to play in the context of section 98 of the IRPA because the life or security of excluded persons is not engaged at that stage. A careful reading of paragraph 67, however, inescapably leads to the conclusion that the rights protected by section 7 of the Charter are triggered at a later stage, when removal is actually contemplated. In my view, there is no other way to read the following comments:
There is similarly no role to play for the Charter in interpreting s. 98 of the IRPA. … Moreover, as the Court of Appeal held, s. 98 of the IRPA is consistent with the Charter. As stated at para. 10 of these reasons, even if excluded from refugee protection, the appellant is able to apply for a stay of removal to a place if he would face death, torture or cruel and unusual treatment or punishment if removed to that place (ss. 97, 112, 113(d)(i) and 114(1)(b) of the IRPA). On such an application, the Minister would be required to balance the risks faced by the appellant if removed against the danger the appellant would present to the Canadian public if not removed (s. 113(d) of the IRPA). Section 7 of the Charter may also prevent the Minister from issuing a removal order to a country where Charter-protected rights may be in jeopardy…
[41] This reading of Febles is borne out by the obiter comments of the Chief Justice (writing for a unanimous Court) one year later in B010. Having concluded that the appellants in that case were not caught by paragraph 37(1)(b) of the IRPA, because that provision was meant to target people smugglers, i.e., “procuring illegal entry in order to obtain, directly or indirectly, a financial or other material benefit in the context of transnational organized crime”, as opposed to those who “merely aided in the illegal entry of other refugees or asylum-seekers in the course of their collective flight to safety” (at para. 72), the Court went on to address the alternative argument that paragraph 37(1)(b) was overbroad in the following terms (at para. 75):
The argument [that para. 37(1)(b) is overbroad and violates s. 7 of the Charter] is of no assistance in any event, as s. 7 of the Charter is not engaged at the stage of determining admissibility to Canada under s. 37(1). This Court recently held in [Febles] … that a determination of exclusion from refugee protection under the IRPA did not engage s. 7, because “even if excluded from refugee protection, the appellant is able to apply for a stay of removal to a place if he would face death, torture or cruel and unusual treatment or punishment if removed to that place” (para 67). It is at this subsequent pre-removal risk assessment stage of the IRPA’s refugee protection process that s. 7 is typically engaged. The rationale from Febles, which concerned determinations of “exclusion” from refugee status, applies equally to determinations of “inadmissibility” to refugee status under the IRPA.
[42] The appellant does not directly address this jurisprudence in his submissions. Rather, he argues that its underlying principle runs counter to the low causation standard for engaging section 7 set out in Bedford. This thesis is best explained by Professor Gerald Heckman in Revisiting the Application of Section 7 of the Charter in Immigration and Refugee Protection, (2017) 68 UNBLJ 312 (at p. 351):
The argument [of prematurity] appears to be that s. 7 is not engaged at [the ID stage] because there are steps later in the process more directly and foreseeable linked to a deprivation of a non-citizen’s s. 7 interests where the person’s circumstances can be scrutinized to ensure that this deprivation complies with the principles of fundamental justice. This reasoning implies a standard of causation more onerous than the “sufficient causal connection” standard adopted by the Supreme Court in Bedford. It requires that state action be a foreseeable and necessary cause of the prejudice to the person’s s. 7 interests - a standard expressly rejected in Bedford…
[43] I note, first, that this very same argument was raised and squarely rejected by this Court in J.P., and also dismissed on appeal (albeit in obiter) in B010 (at para. 75). The decision of the Supreme Court in that case and in Febles postdate Bedford, and it is fair to assume that the Court was aware of its previous decision and did not see any inconsistency between its holdings. There are, indeed, compelling and principled reasons to find no such inconsistency.
[44] First, the statements from Bedford relied upon by the appellant and Professor Heckman in his paper deal with whether there is a sufficient causal connection between the state action and a deprivation of rights, so as to determine whether the state (as opposed to third parties or other states) is responsible for the deprivation. At issue in that case was the constitutionality of the Criminal Code provisions preventing prostitutes from implementing certain safety measures (such as hiring security guards or screening potential clients) that could protect them from violence. The Attorney General had argued section 7 was not engaged because there was no “active and foreseeable” and “direct” causal connection between these provisions and the risks faced by the prostitutes. It is in this particular context that the Supreme Court came to the conclusion that the proper standard for causation was not the one urged by the Attorney General, but the “sufficient causal connection” test. Applying that test, the Court found that section 7 of the Charter was engaged because the prohibitions at issue imposed dangerous conditions on prostitution by preventing people engaged in a risky but legal activity from taking steps to protect themselves from those risks.
[45] I take Bedford to stand for the proposition that there must be a sufficient link between the impugned legislation (or state action) and the infringement of an individual’s right for section 7 to be engaged. In other words, Bedford speaks to the cause of the prejudice, not to its foreseeability, as is the case here. What is uncertain here is not whether the state will eventually be responsible for the deportation if it actually occurs, but whether the likelihood of it is real enough to take it outside the realm of pure speculation and engage the rights protected by section 7 of the Charter. The Supreme Court and this Court have held in a long line of cases that the nexus between the ineligibility determination and deportation is not close enough to trigger the right to life, liberty, and security. As mentioned earlier, an admissibility hearing is but one step in a complex, multi-tiered inadmissibility determination and removal regime under the IRPA. Section 7 of the Charter cannot be interpreted as requiring that an assessment of a person’s right be made at every step of the process. In a nutshell, I am of the view that Bedford has not displaced the extensive jurisprudence affirming that an inadmissibility finding is distinct from effecting removal.
[46] The appellant claims that inadmissibility findings are especially proximate to deportation for permanent residents like him, for whom Parliament has eliminated the possibility of an IAD appeal and has barred H&C applications. Indeed, once the ID determines that a permanent resident is inadmissible, such individuals revert to “foreign national” status and become legally vulnerable to an enforceable removal order pursuant to paragraph 49(1)(a) of the IRPA. That being said, foreign nationals in Mr. Revell’s position have access to other administrative processes to challenge their removal, as mentioned in paragraphs 10 to 12 of these reasons.
[47] Of particular relevance in this case is subsection 42.1(1) of the IRPA, which allows a permanent resident who has been found inadmissible for having engaged in organized crime to apply to the Minister of Public Safety and Emergency Preparedness for discretionary relief from that inadmissibility on the basis that such relief is not contrary to the national interest. The Minister may also, on his own initiative, declare that the ground of organized criminality of a foreign national does not constitute inadmissibility if he is satisfied that it is not contrary to the national interest (s. 42.1(2)); in determining whether to make such declaration, the Minister may consider national security and public safety considerations, including, but not limited to, the danger that the applicant presents to the public in Canada (s. 42.1(3)).
[48] If such relief is granted, a foreign national is then eligible to make an H&C application under section 25 of the IRPA. If the relief is not granted, the foreign national may nevertheless apply for an exceptional temporary resident permit allowing him or her to remain in Canada for a finite period of time; this permit is discretionary and may be renewed (the IRPA, s. 24).
[49] Even if declared inadmissible, a foreign national may still apply for a PRRA to determine whether they would be at risk in the country of return, including exposure to a risk of torture, risk to their life, or risk of cruel and unusual treatment or punishment. If positive, the PRRA decision has the effect of staying the applicant’s removal order (ss. 96-97, 112-113 of the IRPA; Covarrubias v. Canada (Minister of Citizenship and Immigration), 2006 FCA 365, [2007] 3 F.C.R. 169 at paras. 16-18 [Covarrubias]). In the case at bar, this mechanism was of no avail to the appellant, since his assertion of psychological harm resulting from his deportation falls outside the scope of a PRRA officer’s jurisdiction.
[50] Finally, the person subject to removal may request that it be deferred. Admittedly, the CBSA officer to whom such a request is made has only limited discretion to determine when it is possible, pursuant to section 48 of the IRPA, for a removal order to be executed. The circumstances that will typically be taken into consideration include illness or other impediments to removal, the short term best interests of children, or the existence of pending immigration applications that were made on a timely basis. Removal may also be deferred where it will expose the applicant to the risk of death, extreme sanction or inhumane treatment (see Lewis, at paras. 55, 58; Baron v. Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81, [2010] 2 F.C.R. 311 at paras. 49-51; Canada (Minister of Public Safety and Emergency Preparedness) v. Shpati, 2011 FCA 286, [2012] 2 F.C.R. 133 at paras. 43-44 [Shpati]).
[51] At each and every step of this process, an applicant is entitled to make submissions and to be represented by counsel, may challenge any decision by way of an application for judicial review before the Federal Court, and may seek a stay of removal pending the determination of such an application. More importantly for Mr. Revell, this Court has made it clear that the Federal Court has more leeway than an enforcement officer when considering a request for a stay. Upon judicial review of a decision by an enforcement officer not to defer removal, the Federal Court is empowered to (and in my view must) assess any risk of harm that has been overlooked by the enforcement officer in order to determine whether the rights protected by section 7 of the Charter are engaged (see Shpati, at paras. 49-51; Atawnah v. Canada (Minister of Public Safety and Emergency Preparedness), 2016 FCA 144, [2017] 1 F.C.R. 153 at paras. 18-23; Savunthararasa v. Canada (Minister of Public Safety and Emergency Preparedness), 2016 FCA 51, [2017] 1 F.C.R. 318 at para. 26 [Savunthararasa]).
[52] There are thus a number of safety valves in the IRPA ensuring that the deportation process as a whole is in accordance with the principles of fundamental justice. The admissibility hearing before the ID is clearly not the last step in that complex process, and every person, including the applicant, is provided with an opportunity to have his or her Charter rights fully assessed before being removed from Canada. The Judge did not err in finding that Mr. Revell could reiterate the submissions that could not be entertained by the PRRA officer if and when he seeks a deferral of his removal at a later stage of his deportation process (FC Reasons at para. 110).
[53] Relying once again on Professor Heckman’s article, the appellant submits that the approach to the engagement of section 7 in the context of deportation does not sit well with the reasoning of Canadian courts in the related areas of extradition law and criminal law. In these areas, section 7 rights are engaged from the outset of proceedings where there is a possibility of detention (see also H. Stewart, Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms (Toronto: Irwin Law, 2012), at p. 81). On this point, I would make two observations.
[54] First, one must never forget that Charter rights take their colour from the context. It bears repeating that the most fundamental principle of immigration law is that “non-citizens do not have an unqualified right to enter or remain in the country” (Chiarelli at p. 733). Therefore Parliament can impose conditions on a permanent resident’s right to remain in Canada, and can legitimately remove a permanent resident from the country if they have deliberately violated an essential condition under which they were permitted to enter and remain in Canada. A finding of inadmissibility is an administrative determination that a non-citizen failed to respect the conditions under which he or she was permitted to remain in Canada. Inadmissibility proceedings are therefore not criminal or quasi-criminal in nature, and courts have consistently held that the deportation of a person found criminally inadmissible to Canada is not imposed as a punishment (see Tran at para. 43; Chiarelli at pp. 735-736; Hurd v. Canada (Minister of Employment and Immigration), [1989] 2 FC 594, 90 N.R. 31 at paras. 22-27; Solis v. Canada (Minister of Citizenship and Immigration), [2000] 4 FC 407