Catenacci v. Canada (Attorney General)

Catenacci v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2006-04-28
Neutral citation
2006 FC 539
File numbers
T-822-05
Notes
Digest
Decision Content
Date: 20060428
Docket: T-822-05
Citation: 2006 FC 539
Ottawa, Ontario, April 28, 2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
MAURIZIO CATENACCI
and NANCY JOAN CATENACCI
Applicants
and
ATTORNEY GENERAL OF CANADAand
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
I. OVERVIEW
[1] Maurizio Catenacci (Catenacci), one of the Applicants (the other is his wife), is a Canadian permanent resident serving a prison sentence in the United States of America. He applied to be transferred to Canada so that he could complete his sentence here. Catenacci was informed that he did not qualify for the prisoner transfer program because he was not a Canadian citizen.
[2] The International Transfer of Offender Act (ITOA) and the Treaty between Canada and the United States of America on the Execution of Penal Sentences (the Treaty) permit a person incarcerated in the United States to be considered for transfer to a penal institution in Canada. The ITOA, and thus, by extension, the Treaty in respect of Canada, applies only to Canadian citizens.
[3] The Applicants seek judicial review of the determination that Catenacci was not eligible for transfer to Canada. Specifically, he seeks a declaration that the limitation in the ITOA to Canadian citizens violates s. 15 of the Charter of Rights and Freedoms (the Charter). Section 7 of the Charter was not argued even though it was raised in the Notice of Constitutional Question.
[4] The Notice of Constitutional Question describes the relief sought, more particularly as:
(a) a declaration that section 2 and all consequent provisions of the International Transfer of Offenders Act, S.C. 2004, C. 21 is deficient in not including permanent residents of Canada in the category of persons who may be transferred from another state jurisdiction to serve a penal sentence in Canada and as such is contrary to ss. 7 and 15 of the Charter of Rights and Freedoms, 1982 and of no force and effect, as worded, under s. 52 of the Constitution Act, 1982;
(b) a declaration that Article 2(b) and all consequent provisions of the Treaty between Canada and the United States of America on the Execution of Penal Sentences, CTS 1978, No. 12 is deficient in not including permanent residents of Canada in the category of persons who may be transferred from the United States to serve a penal sentence in Canada and as such is contrary to ss. 7 and 15 of the Charter of Rights and Freedoms, 1982 and of no force and effect, as worded, under s. 52 of the Constitution Act, 1982;
(c) a declaration that Article 2(b) and all consequent provisions of the Convention on the Transfer of Sentenced Persons, CTS 1985/9 is deficient in not including permanent residents of Canada in the category of persons who may be transferred from another state jurisdiction to serve a penal sentence in Canada and as such contrary to ss. 7 and 15 of the Charter of Rights and Freedoms, 1982 and of no force and effect, as worded, under s. 52 of the Constitution Act, 1982; and
(d) a declaration that the Applicant, Maurizio Catenacci, has a right to be considered for a transfer from a penal institution in the United States of America to serve the remainder of his sentence in a penal institution in Canada as a just and appropriate remedy under s. 24 of the Charter of Rights and Freedoms, 1982.
II. FACTUAL BACKGROUND
[5] Catenacci was born of Italian parents in Italy in 1964 and is an Italian citizen. At the age of two, his family moved to Canada where they have resided ever since. Catenacci is a permanent resident and never applied for Canadian citizenship although his mother and two sisters did so and became citizens. Catenacci's wife, the other Applicant, is a Canadian citizen as are his two teenage sons.
[6] Catenacci grew up in Canada and continued to live and work in Canada except for those periods when he was abroad playing hockey. From 1983 to 1999, Catenacci played professional hockey in Italy and for other European teams. During the off-season, he returned to Canada for work. After he retired from hockey in March 1999, he returned to Newmarket, Ontario, where he worked in automobile sales and coached minor hockey.
[7] While Catenacci never applied for a Canadian passport, he did obtain an Italian passport in 1983 after he signed a contract to play professional hockey in Italy. As of 1992, Italy permitted citizens to hold dual citizenship. The number of players (holding dual or foreign citizenship) eligible to play hockey professionally on any Italian team was restricted. Therefore, it was to Catenacci's advantage to hold only Italian citizenship while he pursued his professional hockey career in Italy.
[8] Catenacci was also employed as a car salesman and, through contacts there, he apparently became engaged in the drug trade. As set out in the Pre-sentence Report prepared for the U.S. District Court, Catenacci served as a courier in a criminal organization, headed by his co-accused, which smuggled large quantities of cocaine from the United States to Canada where it was sold and distributed. During 1998, Catenacci conspired with five others, including his brother-in-law, to purchase, transport and distribute cocaine.
[9] Catenacci's role in this cocaine trading operation was to transport the U.S. funds from Canada to the United Stateswhere the funds were used to purchase the cocaine which was transported by others to Canada. Catenacci was aware that the funds which he transported to the United States were to be used for the purchase of cocaine.
[10] Following indictment by a Federal Grand Jury in Virginia, Catenacci was arrested on January 12, 2000 in Canada on charges laid against him in the United States. In May 2003 he consented to his extradition to Virginia.
[11] Pursuant to plea agreement entered into after Catenacci had been advised that Canadian citizenship was a requirement under ITOA, he pled guilty to one count of conspiracy to possess with intent to distribute and to distribute cocaine - an offence which constitutes serious criminality under the Immigration and Refugee Protection Act (IRPA). On December 19, 2003, he was sentenced to 46 months in custody, less 7½ months for time served, plus three years' supervised release - probation in Canadian terms. He is currently serving his sentence in federal prison in Ohio and is due to be released from custody in August 2006.
[12] Catenacci made a written request in the form prescribed under ITOA regulations for transfer to Canada to serve the remainder of his sentence. He left the citizenship question blank on that form. Catenacci was then informed in October 2004 that he was not eligible for transfer because he was not a Canadian citizen.
[13] The Applicants, through new counsel, in January 2005 sought from the Canadian Border Services Agency (CBSA) a "no objection" notice in respect of Catenacci's transfer, effectively Canada's consent to the transfer from the U.S. prison. This was denied principally because neither the Act nor the Treaty covers the transfer of permanent residents. A judicial review application of that decision was commenced and then withdrawn. The judicial review application before this Court is the one filed on May 10, 2005.
III. ISSUES
[14] The parties have agreed that the issue of the timeliness of the judicial review application (filed more than 30 days after the impugned decision) and the issue of Mrs. Catenacci's status as a party are not, in view of the declaration sought, necessary for the Court to decide.
[15] While the issue, as initially framed by the parties, was whether section 2 of the ITOA and Article 11b of the Treaty are discriminatory under section 15 of the Charter, that issue must be resolved by examining three issues:
1) Is s. 15(1) of the Charter engaged where the legislation is consistent with the rights entrenched in s. 6(1) of the Charter?
2) If the answer to issue (1) is in the affirmative, is s. 2 of the ITOA in breach of s. 15 of the Charter on the grounds of discrimination?
3) If the answer to issue (2) is in the affirmative, is s. 2 of the ITOA saved by s. 1 of the Charter?
IV. APPLICABLE LEGISLATION
[16] Section 6(1) and (2) of the Charter guarantees to Canadian citizens the right to enter, remain in and leave Canada; whereas permanent residents (along with citizens) only have the right to move to, reside in and work in any province.
6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.
(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right
(a) to move to and take up residence in any province; and
(b) to pursue the gaining of a livelihood in any province.
(3) The rights specified in subsection (2) are subject to
(a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and
(b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.
(4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.
6. (1) Tout citoyen canadien a le droit de demeurer au Canada, d'y entrer ou d'en sortir.
(2) Tout citoyen canadien et toute personne ayant le statut de résident permanent au Canada ont le droit :
a) de se déplacer dans tout le pays et d'établir leur résidence dans toute province;
b) de gagner leur vie dans toute province.
(3) Les droits mentionnés au paragraphe (2) sont subordonnés :
a) aux lois et usages d'application générale en vigueur dans une province donnée, s'ils n'établissent entre les personnes aucune distinction fondée principalement sur la province de résidence antérieure ou actuelle;
b) aux lois prévoyant de justes conditions de résidence en vue de l'obtention des services sociaux publics.
(4) Les paragraphes (2) et (3) n'ont pas pour objet d'interdire les lois, programmes ou activités destinés à améliorer, dans une province, la situation d'individus défavorisés socialement ou économiquement, si le taux d'emploi dans la province est inférieur à la moyenne nationale.
[17] Section 15(1) of the Charter guarantees equality and prohibits discrimination based on both the traditional enumerated grounds found in human rights legislation as well as on analogous grounds.
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
15. (1) La loi ne fait acception de personne et s'applique également à tous, et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l'origine nationale ou ethnique, la couleur, la religion, le sexe, l'âge ou les déficiences mentales ou physiques.
[18] Canada was instrumental in leading nations to enter into arrangements for the transfer of prisoners from a foreign state to the prisoner's own state for purposes of completing their sentences. Canada entered into its first transfer treaty in 1978 which was with the United States. It then enacted legislation to govern this prison transfer program, under treaties, in the 1977-78 Transfer of Offenders Act. That legislation was superseded by the current ITOA in May 2004.
[19] Section 2 of ITOA contains the allegedly offending provision in its definition of "Canadian offender" to whom the benefits of the transfer to Canadian prisons are available:
"Canadian offender" means a Canadian citizen within the meaning of the Citizenship Act who has been found guilty of an offence - and is detained, subject to supervision by reason of conditional release or probation or subject to any other form of supervision in a foreign entity - and whose verdict and sentence may no longer be appealed.
« délinquant canadien » Citoyen canadien au sens de la Loi sur la citoyenneté qui a été reconnu coupable d'une infraction et qui, en application d'une décision qui ne peut plus faire l'objet d'un appel, est soit détenu, soit sous surveillance en raison d'une ordonnance de probation ou d'une mise en liberté sous condition, soit assujetti à une autre forme de liberté surveillée, dans une entité étrangère.
[20] The similar provision governing "foreign offenders" extends the definition to include both citizens and "nationals" of the foreign entity.
[21] A critical provision of the ITOA, upon which there was considerable argument as to its breadth was the purpose clause - s. 3. That clause underlines that the purpose of the ITOA is the administration of justice, and the reintegration and rehabilitation of offenders into the community.
3. The purpose of this Act is to contribute to the administration of justice and the rehabilitation of offenders and their reintegration into the community by enabling offenders to serve their sentences in the country of which they are citizens or nationals.
3. La présente loi a pour objet de faciliter l'administration de la justice et la réadaptation et la réinsertion sociale des délinquants en permettant à ceux-ci de purger leur peine dans le pays dont ils sont citoyens ou nationaux.
[22] It was the Respondents' position that the purpose of the ITOA was broader than the words of s. 3 suggest - that the purpose of the legislation is to protect the Canadian public, to foster international co-operation and to encourage naturalization and citizenship. These arguments were raised in the context of s. 1 of the Charter in respect of the objects served by the legislation, specifically, that there was a pressing objective and that there was a rational connection between the objects of the legislation and the limitation on rights and freedoms.
[23] The system for prisoner transfers requires the consent of the prisoner, the foreign country and Canada. The Minister must consider specific criteria in determining whether to consent to the transfer of a Canadian offender including whether the offender intended to abandon Canada as his or her permanent residence, and whether the offender has social or family ties to Canada.
10. (1) In determining whether to consent to the transfer of a Canadian offender, the Minister shall consider the following factors:
(a) whether the offender's return to Canada would constitute a threat to the security of Canada;
(b) whether the offender left or remained outside Canada with the intention of abandoning Canada as their place of permanent residence;
(c) whether the offender has social or family ties in Canada; and
(d) whether the foreign entity or its prison system presents a serious threat to the offender's security or human rights.
(2) In determining whether to consent to the transfer of a Canadian or foreign offender, the Minister shall consider the following factors:
(a) whether, in the Minister's opinion, the offender will, after the transfer, commit a terrorism offence or criminal organization offence within the meaning of section 2 of the Criminal Code; and
(b) whether the offender was previously transferred under this Act or the Transfer of Offenders Act, chapter T-15 of the Revised Statutes of Canada, 1985.
10. (1) Le ministre tient compte des facteurs ci-après pour décider s'il consent au transfèrement du délinquant canadien :
a) le retour au Canada du délinquant peut constituer une menace pour la sécurité du Canada;
b) le délinquant a quitté le Canada ou est demeuré à l'étranger avec l'intention de ne plus considérer le Canada comme le lieu de sa résidence permanente;
c) le délinquant a des liens sociaux ou familiaux au Canada;
d) l'entité étrangère ou son système carcéral constitue une menace sérieuse pour la sécurité du délinquant ou ses droits de la personne.
(2) Il tient compte des facteurs ci-après pour décider s'il consent au transfèrement du délinquant canadien ou étranger :
a) à son avis, le délinquant commettra, après son transfèrement, une infraction de terrorisme ou une infraction d'organisation criminelle, au sens de l'article 2 du Code criminel;
b) le délinquant a déjà été transféré en vertu de la présente loi ou de la Loi sur le transfèrement des délinquants, chapitre T-15 des Lois révisées du Canada (1985).
[24] To give effect to the legislation, Canada has entered into eleven bilateral and three multi-lateral treaties with foreign states, including, obviously, the United States. A common feature of all of these international agreements is that the treaty is applicable to "nationals" of each state. Each state then defines who is included in the term "national".
[25] Canada has, by both treaty and domestic legislation, defined "national" as a Canadian citizen. Most states do likewise. However, under the Council of Europe, Convention on Transfer of Sentenced Persons, any state which is a member of the Council can determine who is a "national" - four states have included permanent residents as nationals. Likewise, in the Commonwealth Scheme for the Transfer of Offenders, a national can include a person who has "close ties with the administering country of a kind that may be recognized by that country for purposes of this Scheme". Some countries have recognized permanent residents as nationals.
[26] Under the Transfer of Offenders Treaty between Canada and the United States, a transfer is available to an offender who is a "citizen of the Receiving State". Article 1(d) states that " "Citizen" includes an Offender who may be a dual national of the Parties and in the case of the United States, also includes nationals".
The evidence is that in the United States a "national" covers people in such territories as American Samoa, Guam and the like. It does not mean permanent residents.
V. ANALYSIS
A. Is Section 6 of the Charter Engaged by the ITOA?
[27] Against this background, it is necessary to consider each of the issues, even if only in the alternative.
[28] The Applicant's position is that s. 6 is irrelevant and is not engaged in a determination of whether the citizenship limitation in the ITOA complies with the Charter. The basis of this position is that the Applicant is simply seeking an opportunity to be considered for a process operated in Canada. Moreover, the Applicant argues that he is entitled as a permanent resident to enter Canada under the provisions of the IRPA until a determination to deport him is made. Until that time, to exclude him from the ITOA is contrary to s. 15.
[29] On its face, the citizenship requirement does differentiate between persons on analogous grounds in s. 15. However, s. 6 of the Charter specifically authorizes differentiation based on citizenship with respect to the right to enter, remain and depart from Canada. It also differentiates (in respect of the right to move to and work in Canada) between citizens/permanent residents on the one hand and, on the other, persons in Canada who are here under different status.
[30] In Adler v. Ontario, [1996] 3 S.C.R. 609 at p. 644, the Court held that one cannot use one part of the Constitution to interfere with rights protected by a different part of the same document. The Court expanded on this principle in Lavoie v. Canada, [2002] 1 S.C.R. 769 at p. 806 where the Court held that where the Charter authorizes differential treatment, a finding of a s. 15(1) violation would amount to a finding that the Charter was in violation of itself.
[31] The situation is particularly stark where the Charter is specific in its differentiation, both as to class of person and the limited circumstances of differentiation. That differentiation, which is in s. 6, must be contrasted with the more general protection and breadth of grounds found in s. 15(1) to curtail certain types of differentiation.
[32] The issue in this case is whether the differentiation is truly one of exclusion from entry into Canada. In order to make that determination, the Court must examine the context in which the legislation operates and the true nature of the right which is being asserted.
[33] The present case is, to some extent, the obverse of the Supreme Court of Canada's decision in Canada(Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711. In Chiarelli, the Court had to deal with the constitutionality of the statutory scheme providing for the deportation of a permanent resident on conviction of a serious criminal offence. More specifically, the question was whether the provisions authorizing a security certificate (ss.82.1 and 83 of the Immigration Act, 1976) violated s. 7 of the Charter (life, liberty and security of the person).
[34] The Court laid down some principles which are equally applicable (and perhaps more so given the degree of specificity of s. 6 ) to this case. The first is the importance of the contextual approach to the interpretation of provisions of the Charter. The second is 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. The third is that Parliament has the right to bar criminal permanent residents from entering or staying in Canada.
[35] This last point was expanded upon to affirm that, with respect to those who have violated an essential condition under which they were permitted to remain in Canada, there was no breach of fundamental justice in giving practical effect to the termination of their right to remain in Canada. As Sopinka J. stated in Chiarelli, above, at p. 734:
Thus Parliament has the right to adopt an immigration policy and to enact legislation prescribing the conditions under which non-citizens will be permitted to enter and remain in Canada. It has done so in the Immigration Act. Section 5 of the Act provides that no person other than a citizen, permanent resident, Convention refugee or Indian registered under the Indian Act has a right to come to or remain in Canada. The qualified nature of the rights of non-citizens to enter and remain in Canadais made clear by s. 4 of the Act. Section 4(2) provides that permanent residents have a right to remain in Canadaexcept where they fall within one of the classes in s. 27(1). One of the conditions Parliament has imposed on a permanent resident's right to remain in Canada is that he or she not be convicted of an offence for which a term of imprisonment of five years or more may be imposed. This condition represents a legitimate, non-arbitrary choice by Parliament of a situation in which it is not in the public interest to allow a non-citizen to remain in the country. The requirement that the offence be subject to a term of imprisonment of five years indicates Parliament's intention to limit this condition to more serious types of offences. It is true that the personal circumstances of individuals who breach this condition may vary widely. The offences which are referred to in s. 27(1)(d)(ii) also vary in gravity, as may the factual circumstances surrounding the commission of a particular offence. However there is one element common to all persons who fall within the class of permanent residents described in s. 27(1)(d)(ii). They have all deliberately violated an essential condition under which they were permitted to remain in Canada. In such a situation, there is no breach of fundamental justice in giving practical effect to the termination of their right to remain in Canada. In the case of a permanent resident, deportation is the only way in which to accomplish this. There is nothing inherently unjust about a mandatory order. The fact of a deliberate violation of the condition imposed by s. 27(1)(d)(ii) is sufficient to justify a deportation order. It is not necessary, in order to comply with fundamental justice, to look beyond this fact to other aggravating or mitigating circumstances.
[36] These principles must have equal applicability to the issue of entrance into Canada of a permanent resident guilty of serious criminality. They must have similar applicability to provisions which allow for entry or upon which entry into Canada is an essential, if not overriding, element.
[37] While what the Applicant says about his desire to participate in a transfer program and his rights as a permanent resident are true, those rights are not absolute. A permanent resident who has been convicted of an offence which constitutes "serious criminality" is inadmissible to Canada. Having been found inadmissible, the permanent resident may not be able to remain in or enter Canada.
36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for
(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;
(b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or
(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.
(2) A foreign national is inadmissible on grounds of criminality for
(a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;
(b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament;
(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament; or
(d) committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations.
(3) The following provisions govern subsections (1) and (2):
(a) an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily;
(b) inadmissibility under subsections (1) and (2) may not be based on a conviction in respect of which a pardon has been granted and has not ceased to have effect or been revoked under the Criminal Records Act, or in respect of which there has been a final determination of an acquittal;
(c) the matters referred to in paragraphs (1)(b) and (c) and (2)(b) and (c) do not constitute inadmissibility in respect of a permanent resident or foreign national who, after the prescribed period, satisfies the Minister that they have been rehabilitated or who is a member of a prescribed class that is deemed to have been rehabilitated;
(d) a determination of whether a permanent resident has committed an act described in paragraph (1)(c) must be based on a balance of probabilities; and
(e) inadmissibility under subsections (1) and (2) may not be based on an offence designated as a contravention under the Contraventions Act or an offence under the Young Offenders Act.
36. (1) Emportent interdiction de territoire pour grande criminalité les faits suivants :
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;
b) être déclaré coupable, à l'extérieur du Canada, d'une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d'un emprisonnement maximal d'au moins dix ans;
c) commettre, à l'extérieur du Canada, une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d'un emprisonnement maximal d'au moins dix ans.
(2) Emportent, sauf pour le résident permanent, interdiction de territoire pour criminalité les faits suivants :
a) être déclaré coupable au Canada d'une infraction à une loi fédérale punissable par mise en accusation ou de deux infractions à toute loi fédérale qui ne découlent pas des mêmes faits;
b) être déclaré coupable, à l'extérieur du Canada, d'une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable par mise en accusation ou de deux infractions qui ne découlent pas des mêmes faits et qui, commises au Canada, constitueraient des infractions à des lois fédérales;
c) commettre, à l'extérieur du Canada, une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable par mise en accusation;
d) commettre, à son entrée au Canada, une infraction qui constitue une infraction à une loi fédérale précisée par règlement.
(3) Les dispositions suivantes régissent l'application des paragraphes (1) et (2) :
a) l'infraction punissable par mise en accusation ou par procédure sommaire est assimilée à l'infraction punissable par mise en accusation, indépendamment du mode de poursuite effectivement retenu;
b) la déclaration de culpabilité n'emporte pas interdiction de territoire en cas de verdict d'acquittement rendu en dernier ressort ou de réhabilitation - sauf cas de révocation ou de nullité - au titre de la Loi sur le casier judiciaire;
c) les faits visés aux alinéas (1)b) ou c) et (2)b) ou c) n'emportent pas interdiction de territoire pour le résident permanent ou l'étranger qui, à l'expiration du délai réglementaire, convainc le ministre de sa réadaptation ou qui appartient à une catégorie réglementaire de personnes présumées réadaptées;
d) la preuve du fait visé à l'alinéa (1)c) est, s'agissant du résident permanent, fondée sur la prépondérance des probabilités;
e) l'interdiction de territoire ne peut être fondée sur une infraction qualifiée de contravention en vertu de la Loi sur les contraventions ni sur une infraction à la Loi sur les jeunes contrevenants.
[38] The process of inadmissibility of a permanent resident requires a report being made to the Minister of the facts of the conviction. This process has been held to be fairly limited and does not accord the officer making the report very much latitude on whether and on what to report. (Correia v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 964 (QL), 2004 FC 782; Lee v. Canada(Minister of Citizenship and Immigration), [2006] F.C.J. No. 260 (QL), 2006 FC 158)
44. (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.
(2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order.
44. (1) S'il estime que le résident permanent ou l'étranger qui se trouve au Canada est interdit de territoire, l'agent peut établir un rapport circonstancié, qu'il transmet au ministre.
(2) S'il estime le rapport bien fondé, le ministre peut déférer l'affaire à la Section de l'immigration pour enquête, sauf s'il s'agit d'un résident permanent interdit de territoire pour le seul motif qu'il n'a pas respecté l'obligation de résidence ou, dans les circonstances visées par les règlements, d'un étranger; il peut alors prendre une mesure de renvoi.
[39] Following the report, the Minister has, in respect of permanent residents three options: (1) recognise the right to enter; (2) permit entrance for purposes of further examination; and (3) order the person deported.
45. The Immigration Division, at the conclusion of an admissibility hearing, shall make one of the following decisions:
(a) recognize the right to enter Canada of a Canadian citizen within the meaning of the Citizenship Act, a person registered as an Indian under the Indian Act or a permanent resident;
...
(c) authorize a permanent resident or a foreign national, with or without conditions, to enter Canada for further examination; or
(d) make the applicable removal order against a foreign national who has not been authorized to enter Canada, if it is not satisfied that the foreign national is not inadmissible, or against a foreign national who has been authorized to enter Canada or a permanent resident, if it is satisfied that the foreign national or the permanent resident is inadmissible.
45. Après avoir procédé à une enquête, la Section de l'immigration rend telle des décisions suivantes :
a) reconnaître le droit d'entrer au Canada au citoyen canadien au sens de la Loi sur la citoyenneté, à la personne inscrite comme Indien au sens de la Loi sur les Indiens et au résident permanent;
...
c) autoriser le résident permanent ou l'étranger à entrer, avec ou sans conditions, au Canada pour contrôle complémentaire;
d) prendre la mesure de renvoi applicable contre l'étranger non autorisé à entrer au Canada et dont il n'est pas prouvé qu'il n'est pas interdit de territoire, ou contre l'étranger autorisé à y entrer ou le résident permanent sur preuve qu'il est interdit de territoire.
[40] Therefore, the Applicant's right to enter and remain in Canada is uncertain and seriously in peril. The critical nature of this right to enter and remain in Canada is clear from the context of the Applicant's circumstances. Quite simply, entry into Canada is the sine qua non of the opportunity to do his three years' probation in Canada.
[41] When one examines the true nature of the Applicant's request for transfer, it is, at its core, his attempt to enter and remain in Canada for the duration of his prison term and hopefully thereafter. By being accepted for transfer, the Applicant is guaranteed entry - one cannot realistically anticipate that border officials would deny entry when the Minister had authorized that very entry. His deportation hearing having been deferred until the expiry of his probation, the Applicant would have the benefit in any proceeding related to his subsequent deportation, including an appeal (available because the offence at issue was committed outside Canada) or a humanitarian and compassionate application, of reliance on his good conduct during his probation.
[42] That entry into Canada is the real right or benefit being sought is underscored by the Applicant's dilemma - a dilemma which any similarly situated permanent resident faces. The dilemma is that at the end of his imprisonment in the United States, the U.S. authorities will deport him. There is no assurance that they will deport him to Canada. There is a significant risk that he will be deported to Italy, his place of citizenship. He is therefore prepared to undergo three years' probation in Canada rather than simply end his term in the United States, at which point the U.S. would have no interest in supervising his probation.
[43] Once in Italy, he argues that he has no assurance that he will be re-admitted to Canada. It was argued that because he does not have a permanent resident card, he cannot get on an airplane (or presumably a ship) to Canada. Further, he cannot secure such a card because he is required to be in Canada to pick up the card. It is difficult to understand this conundrum because the applicable regulations do not impose a requirement to attend in Canada to pick up the card. One would have thought that if a person is truly entitled to a permanent resident's card in accordance with status under IRPA, that person is entitled to secure it outside Canada at an embassy or similar location whether the card has expired, been lost, destroyed or confiscated.
[44] Whatever the merits of this above proposition, the fact remains that the only means by which a permanent resident in the Applicant's situation can be assured of entry into Canada is by transfer as a prisoner from a foreign country into Canada. The pith and substance of the right or benefit which the Applicant seeks to assert is that of entry into Canada.
[45] Therefore, the ITOA necessarily engages s. 6 of the Charter. In accordance with the judgment in Chiarelli that deportation of a permanent resident guilty of serious criminality is consistent with the Charter (in that instance s. 7), to deny a permanent resident guilty of serious criminality an opportunity to re-enter Canada must likewise be consistent with the Charter, particularly s. 6.
[46] While the Court recognizes the somewhat unusual circumstances of Catenacci, that he has been a long-term permanent resident, that most of his ties are to Canada and that he has a loving family here who attended this hearing, the law does not distinguish between long and short-term permanent residence, or those with deep ties or little connection to the country, or those who have something other than a loving family here. It is often the tragedy of criminal behaviour that the family suffer the most. Catenacci chose his course of conduct; he put on and took off his "Canadianism" as it suited him. His rights as a Canadian citizen would have been different from those of a permanent resident as recognized by s. 6.
[47] For these reasons, I find that s. 2 of the ITOA is in accord with s. 6 of the Charter. As such, it cannot also be contrary to s. 15 of the Charter.
[48] In the event that Chiarelli is distinguishable or that its application only touches on s. 7 of the Charter or to deportation matters, despite the following quotation from that case, I will consider whether s. 2 of the ITOA is contrary and if so, whether it is saved by s. 1.
Although the constitutional question stated by Gonthier J. raises the issue of whether ss. 27(1)(d)(ii) and 32(2) violate s. 15 of the Charter, the respondent made no submissions on this issue. I agree, for the reasons given by Pratte J.A. in the Federal Court of Appeal, that there is no violation of s. 15. As I have already observed, s. 6 of the Charter specifically provides for differential treatment of citizens and permanent residents in this regard. While permanent residents are given various mobility rights in s. 6(2), only citizens are accorded the right to enter, remain in and leave Canada in s. 6(1). There is therefore no discrimination contrary to s. 15 in a deportation scheme that applies to permanent residents, but not to citizens.
B. Is Section 2 of ITOA contrary to Section 15(1) of the Charter?
Introduction
[49] In Law v. Canada (Minister of Employment and Immigration, [1999] 1 S.C.R. 497, the Supreme Court articulated that the purpose of s. 15(1) is to prevent violation of human dignity and freedom through the imposition of disadvantage, stereotyping or political or social prejudice as to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society equally capable and deserving of concern, respect and consideration.
[50] The Court underlined that the overriding concern of s. 15 is the protection and promotion of human dignity, and that digni