Judgments

IMM-472-04

2005 FC 60

Claudette Marri Martin (Applicant)

v.

The Minister of Citizenship and Immigration (Respondent)

Indexed as: Martin v. Canada (Minister of Citizenship and Immigration) (F.C.)

Federal Court, Martineau J.--Québec, December 16, 2004 and January 17, 2005.

Citizenship and Immigration -- Exclusion and Removal -- Removal of Permanent Residents -- Permanent resident convicted of importing cocaine (punishable by life imprisonment), drew three-year sentence but incarcerated for six months plus same period at half-way house -- Under IRPA, s. 36(1), permanent resident inadmissible if convicted of crime punishable by 10-year sentence or if sentenced to over six months -- Deportation ordered -- Permanent resident status lost -- Appeal Division denied appeal for want of jurisdiction, holding applicant caught by IRPA, s. 64 (no appeal if punished by at least two-year term of imprisonment) due to three-year sentence -- Applicant's position: not caught by s. 64 as served only six months -- Meaning of "punished in Canada by a term of imprisonment" -- Also relied on Charter, s. 7 arguing fundamental justice denied by lack of mechanism for assessment of personal circumstances -- Judicial review application denied -- Term imposed governs -- Statutory construction of s. 64(2) -- Intentions of Parliament -- Distinction between "punishment", "sentence" in criminal law context not determinative -- Whether Charter, s. 7 engaged -- Review, exposition of case law on point -- Most fundamental immigration law principal: non-citizens lack unqualified right to enter, remain in Canada -- Termination of applicant's right to remain not breach of fundamental justice -- Judicial review adequate remedy -- Also has right to risk assessment, H & C application -- Questions certified for F.C.A.

Constitutional Law -- Charter of Rights -- Life, Liberty and Security -- Judicial review of Immigration Appeal Division decision lacking jurisdiction to hear appeal from decision permanent resident inadmissible as convicted of crime, sentenced to more than six months' imprisonment -- Whether IRPA, s. 64 (inadmissible for serious criminality) inoperative as breaching Charter, s. 7 -- Whether fundamental justice demanding mechanism permitting personal circumstances assessment -- Review, exposition of case law on whether s. 7 engaged -- Conflicting case law on point, so Court assuming s. 7 engaged -- Charter s. 6 recognizes only citizens have right to enter, remain in Canada -- No breach of fundamental justice herein -- S. 7 not mandating compassionate appeal -- Those in applicant's position have right to risk assessment, humanitarian and compassionate (H&C) application, judicial review by F.C. -- At later stage, issue may be whether s. 7 demands mandatory stay pending decision on H & C application -- No evidence application to Minister illusory -- Charter decision not made in factual vacuum.

Construction of Statutes -- Under Immigration and Refugee Protection Act, s. 36(1), permanent resident inadmissible if convicted of crime for which sentence over six months imposed -- Under s. 64, permanent resident inadmissible for serious criminality (crime punished by term of at least two years) may not appeal to IRB's Appeal Division -- Whether s. 64 applicable to applicant as served just six months -- Meaning of "punished in Canada by a term of imprisonment" in s. 64(2) -- Two sections differently defining "serious criminality" -- Reference to dictionary definition of "punish", case law holding term imposed, not served, governs, grammatical, ordinary sense notwithstanding -- Otherwise "term of imprisonment" depending on what done by National Parole Board -- Words to be read in entire context, harmoniously with object of Act -- Parliament had different objectives in enacting ss. 36, 64 -- Criminal law distinction between "punishment" and "sentence" not determinative herein -- Criminal context involved credit for pre-trial custody in determining sentence quantum, statutory minimum sentences.

This was an application for judicial review of an Immigration Appeal Division decision dismissing an appeal for want of jurisdiction.

Applicant came to Canada from Jamaica in 1983 at age 31 but did not become a permanent resident until 1991. She has three children, two of whom are Canadian citizens and one of whom is a minor. In 1999 applicant was arrested when caught importing cocaine. At that time she was found in possession of a false passport. Convicted of importing cocaine, she drew a three-year term of imprisonment. She was also convicted of an offence contrary to Criminal Code, section 405 (acknowledging an instrument in a false name) for which she was sentenced to six months to run concurrent. Under IRPA, subsection 36(1) a permanent resident is inadmissible if convicted in Canada of an offence punishable by a maximum 10-year sentence or for any federal offence for which a sentence exceeding six months has been imposed. She was found to be such a person at a subsection 44(2) admissibility hearing. A deportation order was made and, under paragraph 46(1)(c), the applicant automatically lost permanent resident status. And, under subsection 48(2), one in her situation "must leave Canada immediately". If the individual fails to leave, she can be arrested and detained. Once the removal order has been enforced, the person cannot return unless authorized to do so. Once a removal order has been made, a right of appeal arises. Applicant filed a notice of appeal but the Appeal Division granted Minister's motion for summary dismissal on the ground that the three-year sentence brought applicant within IRPA, section 64, which precludes an appeal by a permanent resident found inadmissible on the ground of serious criminality, defined as meaning a crime that was "punished" by a term of at least two years.

Applicant argued that she was not caught by subsection 64(2) since she actually only served six months of imprisonment followed by six months in a half-way house. She suggested that the phrase "punished in Canada by a term of imprisonment" in subsection 64(2) contemplated the length of time actually served. She pointed to the use of different language in paragraph 36(1)(a) to define "serious criminality", in arguing that Parliament must have intended two different definitions of that term. She also referred to a dictionary definition wherein "punish" is defined as "to cause to suffer; to subject to judicial chastisement; to inflict a penalty".

It was further argued that section 64 was inoperative as it violated Charter, section 7 because it breached her right to liberty by failing to meet fundamental justice requirements. Applicant's position was that fundamental justice demands a mechanism that would allow for an assessment of the personal circumstances of the person concerned, the best interests of any child and a balancing of those interests against those of the state prior to removal. Such mechanism did not necessarily have to involve an appeal to the Appeal Division; a paper application, such as a humanitarian application, might suffice. Whatever the process, it was important that it be completed prior to removal. It was submitted that, as the law now stands, it is entirely within a removal officer's discretion whether to delay deportation pending consideration of a humanitarian application.

Held, the application should be dismissed.

Those found inadmissible for serious criminality punished by a term of imprisonment of at least two years do not have a right of appeal, as they are caught by the IRPA, subsection 64(2) exclusion. The definition of "serious criminality" was addressed in Cartwright v. Canada (Minister of Citizenship and Immigration) (F.C.), in which Heneghan J. wrote that, the "grammatical and ordinary sense" of the phrase notwithstanding, it was the term of imprisonment imposed that mattered, not the time actually served. The individual is "punished" at the time of his sentencing. Her Ladyship went on to say that if it were otherwise, it would mean that, for IRPA purposes, the "term of imprisonment" would depend upon what was done by the NPB or a provincial parole board. The interpretation preferred by Heneghan J. was agreed with. The words used in subsection 64(2), read in their entire context and harmoniously with the scheme and object of the Act, could be reasonably construed only as referring to the sentence actually imposed. The expression "crime punished" (or, in French, "infraction punie") in subsection 64(2) must be opposed to "offence punishable" ("infraction punissable") in subsection 36(1). Similarly, paragraph 36(1)(a) refers to distinct concepts: (1) the maximum term of imprisonment prescribed by statute; and (2) the actual term of imprisonment imposed by sentence. In this regard "offence punishable" ("infraction punissable") which is used for the first purpose must be opposed to "imprisonment imposed" ("emprisonnement infligé") which is used for the second. Parliament had different objectives in adopting paragraph 36(1)(a) and subsection 64(2). The intention of Parliament was to enlarge the grounds of inadmissibility but not to limit the right of appeal with respect to offences not under the umbrella of subsection 64(2), which refers to "a crime that was punished in Canada by a term of imprisonment of at least two years". That could refer only to the sentence the offender received. Subsection 64(2) specifically excludes an offence outside Canada even where a sentence of at least two years was imposed by a foreign authority. Such person might still be inadmissible under paragraph 36(1)(b) but would have a right of appeal.

Any distinction between "punishment" and "sentence" which may have developed in the criminal law context was not determinative herein. There was, in criminal law, a question as to whether courts might deduct time in custody awaiting trial if that would reduce the sentence to a length less than a statutory minimum. Could time in custody prior to sentencing be considered a "punishment"? Under Criminal Code, subsection 719(3), a court may take into account time already in custody in determining sentence quantum. In R v. Wust, the Supreme Court held that a mandatory minimum had to be understood in the full context of the sentencing scheme and that pre-sentencing custody is time actually served in detention and that often under harsher conditions than will be undergone post-sentencing. As said by Pinard J. in Atwal v. Canada (Minister of Citizenship and Immigration), by enacting IRPA, section 64 Parliament sought to establish an objective standard of criminality beyond which a permanent resident loses the right of appeal and Parliament must be taken as having known that time already in custody is taken into account in sentence computation under Criminal Code, section 719. To omit consideration of pre-sentence custody under IRPA, section 64 when it was expressly factored into the criminal sentence would defeat Parliamentary intent in enacting that provision. Pre-sentence custody was not an issue in the case at bar. Three years' imprisonment was and remains the sentence applicant received and, until that time is up, she remains liable to incarceration in case of parole breach.

Turning to the Charter issue, the question was whether it is constitutionally permissible to preclude an appeal to the Appeal Division from a removal order against a permanent resident found inadmissible for serious criminality with respect to a crime punished in Canada by a term of imprisonment of at least two years. In a Charter, section 7 analysis, if no interest in one's life, liberty or security is implicated, that is an end of the matter. Still, "liberty" means not only freedom from physical restraint as it can be engaged if state compulsions or prohibitions impact upon "important and fundamental life choices". In view of the conflicting case law on whether deportation engages Charter, section 7, for purposes of this judicial review application, it was assumed that section 7 had been engaged.

As to whether the deprivation of an appeal to the Appeal Division is contrary to fundamental justice principles, in Chiarelli v. Canada (Minister of Citizenship and Immigration), the Supreme Court of Canada stressed the fact 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. This is recognized also by Charter, subsection 6(1), which provides that only citizens have the right "to enter, remain in and leave Canada". The applicant is not a Canadian citizen. Parliament has made legitimate choices as to circumstances in which it is not in the public interest that a non-citizen be permitted to remain here. The offence of which applicant was convicted--importing cocaine--rendered her liable to imprisonment for life. Termination of applicant's right to remain in Canada did not constitute a breach of fundamental justice.

As to whether deprivation of the right to appeal the deportation order violates Charter, section 7, the same grounds of review can be raised upon an application for leave and judicial review before the Federal Court and that provides ample protection from an erroneous decision in fact or law on the part of the Immigration Division. Again, fundamental justice was not breached by suppressing the right of appeal to the Appeal Division.

Nor could the Court accede to the submission that judicial review was inadequate as not allowing for an appeal on compassionate grounds. As was held by the Federal Court of Appeal in Luitjens v. Canada (Secretary of State), "it is permissible for Parliament to constitutionally deny the right to appeal. The principles of fundamental justice do not mandate endless hearings and appeals at every stage of a process". Even under the former Immigration Act, it was held in Chiarelli that, paragraph 72(1)(b) notwithstanding, Charter, section 7 did not mandate provision for a compassionate appeal. In his opinion in Chiarelli, Sopinka J. wrote that the "absence of an appeal on wider grounds than those on which the initial decision was based does not violate s. 7". Applicant, however, suggested that Chiarelli had been eroded by more recent case law to the effect that fundamental justice (Charter, section 7) requires a fair balancing between state and personal interests. Context, the approach relied on in Chiarelli, was no longer the overriding issue, having given way to more important considerations such as proportionality and balancing of interests. But, in Medovarski, the Federal Court of Appeal reaffirmed that fundamental justice principles do not dictate a right of appeal on humanitarian and compassionate (H&C) grounds before a permanent resident can be deported for serious criminality. Those in applicant's position do have a right under IRPA, subsection 112(1) to obtain an assessment of the risk that they would face if removed from Canada and they can also apply under subsection 25(1) to be permitted to remain on H & C grounds.

While, at a later stage of the process, the issue may come to turn on whether Charter, section 7 demands a mandatory stay pending determination of an H & C application, at this stage the Court was justified in refusing to grant a declaration or other remedy in that regard. It is also a fact that Federal Court Judges have disagreed as to the scope of a removal officer's discretion to defer removal pending determination of an H&C application. But there was no evidence on the record that supported applicant's allegation that, in the circumstances, an application to the Minister would be illusory. It is settled law that a Charter decision will not be made in a factual vacuum. Again, a court is not to grant declaratory relief where, as here, another procedure is available.

Two questions proposed by the applicant as serious questions of general importance were certified: (1) Does "punished" in IRPA, subsection 64(2) with respect to a term of imprisonment refer to the sentence of imprisonment imposed or the actual time served in prison? (2) Does IRPA, subsection 64(2) violate Charter, section 7 in a manner which cannot be justified under section 1?

statutes and regulations judicially

considered

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 6(1),(2), 7, 12.

Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 6(1).

Convention on the Rights of the Child, November 20, 1989, [1992] Can. T.S. No. 3.

Criminal Code, R.S.C., 1985, c. C-46, ss. 344(a) (as am. by S.C. 1995, c. 39, s. 149), 405, 718.3 (as enacted by S.C. 1995, c. 22, s. 6; 1999, c. 5, s. 30; 2002, c. 1, s. 182), 719(3) (as am. by S.C. 1995, c. 22, s. 6).

Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 18.1(4) (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27).

Immigration Act, R.S.C., 1985, c. I-2, s. 19 (as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 3; 1992,c. 47, s. 77, c. 49, s. 11; 1995, c. 15, s. 2; 1996, c. 19, s. 83; 2000, c. 24, s. 55).

Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 27, 32, 72(1)(b) (as am. by S.C. 1984, c. 21, s. 81).

Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 25, 34, 35, 36, 37, 38, 39, 40, 44, 45, 46(1)(c), 48(1),(2), 49(1)(a),(c), 52, 55, 63(3), 64, 67(1), 72, 112(1), 192, 196, 233.

Immigration and Refugee Protection Regulations, SOR/2002-227, ss. 230, 231, 232, 233.

cases judicially considered

applied:

Cartwright v. Canada (Minister of Citizenship and Immigration) (2003), 236 F.T.R. 98; 32 Imm. L.R. (3d) 79; 2003 FCT 792; Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307; (2000), 190 D.L.R. (4th) 513; [2000] 10 W.W.R. 567; 23 Admin. L.R. (3d) 175; 81 B.C.L.R. (3d) 1; 3 C.C.E.L. (3d) 165; 77 C.R.R. (2d) 189; 260 N.R. 1; 2000 SCC 44; Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; (1992), 90 D.L.R. (4th) 289; 2 Admin. L.R. (2d) 125; 72 C.C.C. (3d) 214; 8 C.R.R. (2d) 234; 16 Imm. L.R. (2d) 1; 135 N.R. 161; Chiarelli v. Canada (Minister of Employment and Immigration), [1990] 2 F.C. 299; (1990), 67 D.L.R. (4th) 697; 42 Admin. L.R. 189; 10 Imm. L.R. (2d) 137; 107 N.R. 107 (C.A.); Medovarski v. Canada (Minister of Citizenship and Immigration), [2004] 4 F.C.R. 48; (2004), 238 D.L.R. (4th) 328; 35 Imm. L.R. (3d) 161; 318 N.R. 252; 2004 FCA 85; Canepa v. Canada (Minister of Employment and Immigration), [1992] 3 F.C. 270; (1992), 93 D.L.R. (4th) 589; 10 C.R.R. (2d) 348; 145 N.R. 121 (C.A.); Al Yamani v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 433; (2000), 72 C.R.R. (2d) 259; 186 F.T.R. 161; 5 Imm. L.R. (3d) 235 (T.D.); Romans v. Canada (Minister of Citizenship and Immigration) (2001), 86 C.R.R. (2d) 139; 203 F.T.R. 108; 14 Imm. L.R. (3d) 215; 2001 FCT 466; Powell v. Canada (Minister of Citizenship and Immigration), 2004 FC 1120; [2004] F.C.J. No. 1588 (QL); Luitjens v. Canada (Secretary of State) (1992), 9 C.R.R. (2d) 149; 142 N.R. 173 (F.C.A.); Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; (1999), 174 D.L.R. (4th) 193; 14 Admin. L.R. (3d) 173; 1 Imm. L.R. (3d) 1; 243 N.R. 22.

distinguished:

R. v. McDonald (1998), 40 O.R. (3d) 641; 127 C.C.C. (3d) 57; 17 C.R. (5th) 1; 54 C.R.R. (2d) 189 (C.A.); R. v. Wust, [2000] 1 S.C.R. 455; (2000), 184 D.L.R. (4th) 385; 134 B.C.A.C. 236; 143 C.C.C. (3d) 129; 32 C.R. (5th) 58; 252 N.R. 332; 2000 SCC 18; Atwal v. Canada (Minister of Citizenship and Immigration) (2004), 245 F.T.R. 170; 2004 FC 7; Allen v. Canada (Minister of Citizenship and Immigration), Snider J., IMM-2439-02, May 5, 2003, F.C.T.D.; Canada (Minister of Citizenship and Immigration) v. Smith, 2004 FC 63; [2004] F.C.J. No. 2159 (QL); Nguyen v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 696; (1993), 100 D.L.R. (4th) 151; 14 C.R.R. (2d) 146; 18 Imm. L.R. (2d) 165; 151 N.R. 69 (C.A.); Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; (2002), 208 D.L.R. (4th) 1; 37 Admin. L.R. (3d) 152; 90 C.R.R. (2d) 1; 18 Imm. L.R. (3d) 1; 281 N.R. 1; 2002 SCC 1; Adviento v. Canada (Minister of Citizenship and Immigration) (2003), 242 F.T.R. 295; 33 Imm. L.R. (3d) 13; 2003 FC 1430.

considered:

Grewal v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 581; (1991), 85 D.L.R. (4th) 166 (C.A.); Nokhodchari v. Canada (Minister of Citizenship and Immigration) (2003), 236 F.T.R. 206; 29 Imm. L.R. (3d) 270; 2003 FCT 803; Martinez v. Canada (Minister of Citizenship and Immigration), 2003 FC 1341; [2003] F.C.J. No. 1695.

referred to:

Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; (1985), 17 D.L.R. (4th) 422; 12 Admin. L.R. 137; 14 C.R.R. 13; 58 N.R. 1; R. v. Morgentaler, [1988] 1 S.C.R. 30; (1988), 44 D.L.R. (4th) 385; 37 C.C.C. (3d) 449; 62 C.R. (3d) 1; 31 C.R.R. 1; 82 N.R. 1; 26 O.A.C. 1; B. (R.) v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; (1994), 122 D.L.R. (4th) 1; 26 C.R.R. (2d) 202; 176 N.R. 161; 78 O.A.C. 1; 9 R.F.L. (4th) 157; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; (1998), 36 O.R. (3d) 418; 154 D.L.R. (4th) 193; 50 C.B.R. (3d) 163; 33 C.C.E.L. (2d) 173; 221 N.R. 241; 106 O.A.C. 1; R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; (1988), 55 D.L.R. (4th) 481; [1989] 1 W.W.R. 97; 71 Sask. R. 1; 45 C.C.C. (3d) 57; 66 C.R. (3d) 97; 36 C.R.R. 90; 88 N.R. 205; Romans v. Canada (Minister of Citizenship and Immigration) (2001), 17 Imm. L.R. (3d) 34; 281 N.R. 357; 2001 FCA 272; Hurd v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 594; (1988), 90 N.R. 31 (C.A.); Hoang v. Canada (Minister of Employment & Immigration) (1990), 13 Imm. L.R. (2d) 35; 120 N.R. 193 (F.C.A.); Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646; (1997), 147 D.L.R. (4th) 93; 212 N.R. 63 (C.A.); Kroon v. Canada (Minister of Citizenship and Immigration) (2004), 15 Admin. L.R. 315; 252 F.T.R. 257; 36 Imm. L.R. (3d) 244; 2004 FC 697; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; (1991), 84 D.L.R. (4th) 438; 67 C.C.C. (3d) 1; 8 C.R. (4th) 1; 6 C.R.R. (2d) 193; 129 N.R. 81; United States of America v. Burns, [2001] 1 S.C.R. 283; (2001), 195 D.L.R. (4th) 1; [2001] 3 W.W.R. 193; 148 B.C.A.C. 1; 85 B.C.L.R. (3d) 1; 151 C.C.C. (3d) 97; 39 C.R. (5th) 205; 81 C.R.R. (2d) 1; 265 N.R. 212; 2001 SCC 7; Cunningham v. Canada, [1993] 2 S.C.R. 143; (1993), 11 Admin. L.R. (2d) 1; 80 C.C.C. (3d) 492; 20 C.R. (4th) 57; 14 C.R.R. (2d) 234; 151 N.R. 161; 62 O.A.C. 243; Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84; (2002), 208 D.L.R. (4th) 107; 37 Admin. L.R. (3d) 252; 18 Imm. L.R. (3d) 93; 280 N.R. 268; 2002 SCC 3; Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; (1990), 73 D.L.R. (4th) 686; 43 C.P.C. (2d) 165; 112 N.R. 362; MacKay v. Manitoba, [1989] 2 S.C.R. 357; [1989] 6 W.W.R. 351; (1989), 61 Man. R. (2d) 270; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), [2002] 2 S.C.R. 146; (2002), 210 D.L.R. (4th) 577; [2002] 6 W.W.R. 1; 165 B.C.A.C. 1; 1 B.C.L.R. (4th) 1; [2002] 2 C.N.L.R. 143; 286 N.R. 131; 2002 SCC 31; Kourtessis v. M.N.R., [1993] 2 S.C.R. 53; (1993), 102 D.L.R. (4th) 456; [1993] 4 W.W.R. 225; 27 B.C.A.C. 81; 78 B.C.L.R. (2d) 257; 81 C.C.C. (3d) 286; 20 C.R. (4th) 104; 14 C.R.R. (2d) 193; [1993] 1 C.T.C. 301; 93 DTC 5137; 153 N.R. 1.

authors cited

Canadian Sentencing Commission. Sentencing Reform: A Canadian Approach. Ottawa: Supply and Services Canada, 1987.

Oxford English Dictionary, 2nd ed. Oxford: Clarendon Press, 1989 "punish".

APPLICATION for judicial review of an IAD (Appeal Division) decision denying an appeal for want of jurisdiction. Application dismissed but two questions certified for consideration by the Federal Court of Appeal.

appearances:

Ronald P. Poulton for applicant.

Marina Stefanovic for respondent.

solicitors of record:

Mamann & Associates, Toronto, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order and order rendered in English by

[1]Martineau J.: This is an application for judicial review under section 72 [as am. by S.C. 2002, c. 8, s. 194] of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA) of a decision of the Immigration Appeal Division (the Appeal Division) of the Immigration and Refugee Board (IRB) dated December 19, 2003, wherein the Appeal Division determined that the appeal filed by the applicant should be dismissed based on a lack of jurisdiction.

FACTUAL AND LEGAL BACKGROUND

[2]The applicant, Claudette Marri Martin (a.k.a. Avis Petronella Creary), is not a Canadian citizen. She was born in Jamaica. She first arrived in Canada in 1983 at the age of 31 and has apparently lived in Canada ever since. That said, she only became a permanent resident on December 9, 1991. The basis of her landing in Canada was a sponsorship which her mother Phyllis Francis, a Canadian citizen, had made. The applicant is also the mother of three children, two of whom (Natasha Jackson, age 30 and Rowan Gordon, age 12) were born in Canada and are Canadian citizens. She apparently lives with Rowan. In March 1999, the applicant was arrested with a false passport while attempting to import cocaine from Jamaica. In April 2002, she was convicted of importing cocaine into Canada contrary to subsection 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 for which she was sentenced to three years of imprisonment. She was also convicted of the offence mentioned in section 405 of the Criminal Code, R.S.C., 1985, c. C-46 (acknowledging an instrument in a false name) for which she was sentenced to six months of imprisonment to run concurrent. Following her sentence, the applicant served six months in prison plus six months in a halfway house. She has since been released.

[3]Subsection 36(1) of the IRPA stipulates:

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.

[4]An admissibility hearing was conducted by the Immigration Division of the IRB under the authority of subsection 44(2) of the IRPA. On the basis of the evidence on record, it was determined that the applicant is a person described in paragraph 36(1)(a). In such a case, paragraph 45(d) prescribes that the applicable removal order be made. As a result, a deportation order against the applicant was issued by the Immigration Division on October 9, 2002. Paragraph 46(1)(c) states that a person loses permanent resident status when a removal order comes into force. Pursuant to subsection 48(1) a removal order is enforceable if it has come into force and is not stayed. In such a case, the effect on the person is immediate since subsection 48(2) prescribes that "the foreign national against whom [the removal order] was made must leave Canada immediately." If the foreign national has not left Canada and is unlikely to appear at an interview arranged for the purpose of scheduling the removal, the foreign national can ultimately be arrested and detained, with or without warrant, where the conditions mentioned at section 55 are satisfied. Finally, pursuant to section 52, "If a removal order has been enforced, the foreign national shall not return to Canada, unless authorized by an officer or in other prescribed circumstances."

[5]That said, the existence of a right of appeal against the decision made by the Immigration Division following an admissibility hearing takes effect at the moment where a removal order made under section 45 can be legally enforced by the Minister. In this regard, paragraph 49(1)(a) provides that a removal order comes into force the day the removal order is made, if there is no right to appeal. However, if there is a right of appeal, pursuant to paragraph 49(1)(c), a removal order only comes into force the day of the final determination of the appeal, if an appeal is made. In the case at bar, the applicant filed a notice of appeal to the Appeal Division. However, before the appeal was heard, the Minister brought a motion requesting the summary dismissal of this appeal. On December 19, 2003, the Appeal Division granted the Minister's motion and dismissed the applicant's appeal.

IMPUGNED DECISION

[6]Essentially, the Appeal Division considered that the applicant's sentence of three years of imprisonment brings her within the ambit of section 64 of the IRPA which reads as follows:

64. (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.

(2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least two years. [My emphasis.]

[7]The applicant now asks for judicial review of the Appeal Division decision dismissing her appeal on the ground of lack of jurisdiction.

PRINCIPAL GROUNDS OF ATTACK

[8]The legality of the impugned decision has been attacked by the applicant on two principal grounds which were both developed in great detail by counsel at the hearing held by this Court.

[9]The applicant argues that she is not caught by subsection 64(2) of the IRPA because her actual punishment by imprisonment lasted only six months (and an additional six months in a half-way house). She argues that the phrase "punished in Canada by a term of imprisonment" used in subsection 64(2) refers to the length of time actually served in prison. She states that her interpretation is based on the language used in other provisions of the IRPA where serious criminality is defined. In particular, she points to paragraph 36(1)(a) where the language used to define serious criminality specifically refers to persons found guilty of offences that are "punishable" by a maximum term of imprisonment of at least 10 years or persons upon whom a term of imprisonment of more than six months has been "imposed". She submits that Parliament intended to use two different definitions for "serious criminality" in the IRPA, otherwise it would have simply used the same language concerning serious criminality in subsection 64(2) as it did in paragraph 36(1)(a). While this Court has dealt directly with this issue and dismissed a similar argument in Cartwright v. Canada (Minister of Citizenship and Immigration) (2003), 236 F.T.R. 98 (F.C.T.D.), the applicant nevertheless submits that the interpretation adopted in this case is not correct. She relies on the key words used in the Oxford English Dictionary (2nd ed., 1989) to define "punish" which are:  "To cause . . . to suffer . . .; to subject to judicial chastisement . . .; to inflict a penalty". In this regard, she submits that the actions themselves are the fundamental component of the word "punish". Reference is also made to the distinction in criminal law between a "sentence", being a judicial determination of a legal sanction, and "punishment", which is the actual infliction of the legal sanction (Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (Ottawa: Supply and Services Canada, 1987), page 110 et seq.; R. v. McDonald (1998), 40 O.R. (3d) 641 (C.A.), at pages 657-659; R. v. Wust, [2000] 1 S.C.R. 455, at paragraph 36).

[10]In the alternative, the applicant submits that section 64 is rendered inoperative as it violates section 7 of the Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act, 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, appendix II, No. 44] (the Charter) (and is not saved by section 1 of same) because it breaches her right to "liberty" in a manner that does not comply with the requirements of fundamental justice (Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; R. v. Morgentaler, [1988] 1 S.C.R. 30; B. (R.) v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, at paragraphs 78-81). In bringing this appeal, the applicant intended to invite the Appeal Division to exercise its equitable jurisdiction and wished to be provided the opportunity to present evidence and make submissions on issues related to her personal circumstances. However, because her appeal was dismissed on the ground of lack of jurisdiction, she submits that, by the effect of section 64 of the IRPA, her constitutional right not to be deprived of her "liberty" in a manner in accord with principles of fundamental justice, is violated. That said, at the hearing, the applicant's counsel somewhat qualified this position in stating that the applicant's position is not that fundamental justice in section 7 of the Charter requires a right of appeal to the Appeal Division of the IRB because it is clear that the Supreme Court jurisprudence does not support such a right. Moreover, the applicant does not suggest that the decision being appealed is wrong in law or fact. Indeed, she recognizes that the offence of importing cocaine contrary to subsection 6(1) of the Controlled Drugs and Substances Act and her sentence of three years of imprisonment render her inadmissible in Canada on grounds of serious criminality pursuant paragraph 36(1)(a) of the IRPA. She does not suggest either that the Immigration Division breached the rules of natural justice before issuing the deportation order. Indeed, she was present at the admissibility hearing but had apparently chosen not be represented at that time by counsel. The applicant's position is, instead, that fundamental justice requires that a mechanism be available to a person such as the applicant for adherence to the principle of proportionality. This principle of fundamental justice mandates an assessment of the personal circumstances of the person concerned, the best interests of any child involved and a balancing of these interests against those of the state prior to the removal of the person from Canada. This mechanism may take any reasonable form that Parliament may craft and can include an appeal to the Appeal Division, but not necessarily so. Before this Court, reference has been made to paragraph 67(1)(c) and subsection 68(1) of the IRPA which authorize the Appeal Division to allow an appeal or stay a removal order if it is satisfied, "taking into account the best interests of a child directly affected by the decision, that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case". The mechanism may also include a paper application such as a humanitarian application. Of importance to the rights at issue, is a requirement that the application process be completed and a determination made prior to removal taking place. At present, the applicant submits that no such mechanism exists under the removal scheme in the IRPA. As such, she submits that there is no process, other than the exercise of a removal officer's discretion, to delay deportation pending consideration of a humanitarian application.

STATUTORY ISSUE

[11]I have concluded that persons that who are found to be inadmissible on grounds of serious criminality punished in Canada by a term of imprisonment of at least two years do not have a right of appeal as they come within the ambit of the exclusion mentioned in subsection 64(2) of the IRPA.

[12]In Cartwright, this Court has addressed the definition of "serious criminality" enunciated in subsection 64(2) in comparison to the scheme which existed under the Immigration Act, R.S.C., 1985, c. I-2 (the former Immigration Act), as well as the grammatical and ordinary sense of the words used in subsection 64(2) and the distinctions with the wording used in paragraph 36(1)(a). In Cartwright, Heneghan J. notes [at paragraphs 59, 61, 65, 67]:

The wording of section 64(2) is not immediately clear. It states that a person will fall within the definition of "serious criminality" and have his or her appeal rights curtailed before the IAD, with respect to "a crime" that "was punished" in Canada "by a term of imprisonment" of at least two years. The words "was punished" are very different from the wording of the inadmissibility provisions of the former Act, where the maximum term of imprisonment that may be imposed for a particular crime was often the governing consideration (sections 19(1) and (2) of the former Act).

    . . .

The interpretation of the words of section 64(2) in their "grammatical and ordinary sense" means that it is the actual punishment which an individual received in Canada which is determinative. The introductory wording of subsection 64(2), "For the purpose of subsection 1 . . .", suggests, in my view, that this provision is to be read separately from section 36(1)(a) of IRPA, which defines serious criminality for the purpose of inadmissibility and speaks in terms of possible sentences which may be imposed for an offence.

    . . .

Despite the fact that section 64(2) cannot be interpreted along the same lines as section 36(1)(a) of IRPA and the fact that the definition differs from the former Act's definition of criminality, in my view, the interpretation urged by the Applicant cannot be accepted. It is the term of imprisonment imposed which section 64(2) describes, rather than the actual length of time served in prison prior to being granted parole.

    . . .

To "punish" a person for a crime is to impose judicial sanction; it is to pronounce a sentence relative to the crime for which a conviction has been entered. In my opinion, this definition of "punish" supports the interpretation that the Applicant was "punished" at the time of his sentencing, when the Supreme Court of Nova Scotia convicted and sentenced [the applicant in that case] to four years imprisonment in a federal penitentiary.

[13]Later in the decision [at paragraphs 68-69, 71], Heneghan J. provides further explanation as to why the Court could not accept the same argument that the applicant, in the case at bar, has forwarded:

The punishment that the Applicant received was a four year prison term, not a ten month term. While the fact that he was released on parole at the earliest opportunity, after about ten months, may reflect that he was not a significant risk to society, it does not change the fact that he was punished in Canada for a crime by a term of imprisonment of at least two years.

Parole eligibility is governed by Part II of the Corrections and Conditional Release Act, S.C. 1992, c. 20. Further, there are different types of parole, with varying conditions imposed. If the Applicant's interpretation of section 64(2) is accepted, an offender's "term of imprisonment", as it is to defined in IRPA, would be determined by the National Parole Board or provincial parole boards, as the case may be, rather than by the criminal courts upon sentencing.

    . . .

In my opinion, section 64(2) must be interpreted as referring to the term of imprisonment for which an offender was sentenced, that is, the punishment imposed, rather than the actual amount of time served prior to being granted parole.

[14]The applicant attacks the rationale endorsed by this Court in Cartwright, by suggesting an alternate analysis of the dictionary meaning of the word "punish" to that of Heneghan J. and by further relying on the distinction made in a criminal law context between a sentence and a punishment. Despite counsel's able presentation, I cannot adhere to the interpretation suggested by the applicant. Where the words used in subsection 64(2) are read in their entire context, not only in their grammatical and ordinary sense but also harmoniously with the scheme and object of the IRPA (Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 S.C.R. 27, at paragraph 21), their meaning can only be reasonably construed as referring to the sentence which was actually imposed and not the actual length of time served in prison.

[15]What is fundamental here is not so much the words chosen in the French and English versions of subsection 64(2) ("a crime that was punished in Canada by a term of imprisonment of at least two years" [emphasis added] and "l'infraction punie au Canada par un emprisonnement d'au moins deux ans" [emphasis added]) but the concepts that they carry. The expressions "crime . . . punished" and "infraction punie" in French used in subsection 64(2) must be opposed to the expressions "offence punishable" and "infraction punissable" in French used in subsection 36(1). Similarly, paragraph 36(1)(a) refers to distinct concepts: (1) the maximum term of imprisonment prescribed by statute; and (2) the actual term of imprisonment imposed by sentence. In this regard, the expressions "offence punishable" and "infraction punissable" in French which are used for the first purpose must be opposed to the expressions "imprisonment imposed" and "emprison-nement infligé" in French which are used for the second purpose. These differences in wording are necessary to attain the different objectives pursued by Parliament in enacting paragraph 36(1)(a) and subsection 64(2)of the IRPA.

[16]First, notwithstanding the fact that a sentence of less than six months of imprisonment has been imposed, a permanent resident or foreign national will still be inadmissible on grounds of serious criminality if the offence in question is punishable by a maximum term of imprisonment of at least 10 years. Second, notwith-standing the fact that the offence for which a permanent resident or foreign national has been convicted in Canada is punishable by a maximum term of imprisonment of less than 10 years, he will still be inadmissible on grounds of serious criminality if a term of imprisonment of more than six months has been imposed (paragraph 36(1)(a)). On the other hand, while Parliament intended to enlarge the grounds of inadmissibility, it did not want to limit the right of appeal with respect to the offences which do not fall under the umbrella of subsection 64(2) which refers to "a crime that was punished in Canada by a term of imprisonment of at least two years" [emphasis added]. Contextually, this can only refer to the sentence the offender actually received in Canada. Indeed, subsection 64(2) specifically excludes the permanent resident who has been convicted of an offence outside Canada and this, even if a term of imprisonment of at least two years of imprisonment or more has been imposed by the foreign authority. In such a case, while the permanent resident may be inadmissible on the ground set out in paragraph 36(1)(b) (where same would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years if committed in Canada), he or she will nevertheless have a right of appeal.

[17]Any distinction between "punishment" and "sentence" which has developed in a criminal context is not determinative in the present case. The issue was whether the courts could deduct the time spent by the accused in custody while awaiting trial and sentence if this had the effect of reducing the sentence pronounced by the court to less than the minimum provided by law. For this purpose, the courts were asked to decide whether the time spent in detention prior sentencing could be considered a "punishment". Paragraph 344(a) [as am by S.C. 1995, c. 39, s. 149] of the Criminal Code prescribes a minimum punishment of imprisonment for a term of four years in a robbery where a firearm is used while subsection 719(3) [as am. by S.C. 1995, c. 22, s. 6] of the Criminal Code states that the court may take into account any time spent in custody in determining the sentence to be imposed. A rigid interpretation of the interaction between these two provisions suggests that time served before sentence could not be credited to reduce a minimum sentence because this would offend the requirement that nothing short of the minimum be served. In accordance with the umbrella principle of statutory interpretation expressed in Rizzo & Rizzo Shoes Ltd. (Re), the Supreme Court of Canada reiterated in R. v. Wust, that mandatory minimum sentences must be understood in the full context of the sentencing scheme. Pre-sentencing custody is time actually served in detention, and often in harsher circumstances than the "punishment" will ultimately call for. Moreover, minimum sentences are, in every respect, "reduced" like all others, even to below the minimum. Accordingly, the Supreme Court favoured a more liberal interpretation of the word "punishment".

[18]In R. v. Wust, Arbour J. (at paragraph 36) referred to the distinction between "sentence" and "punishment" underlined by Rosenberg J.A. in R. v. McDonald, but added in this regard:

While this distinction is helpful, I do not think that it is fundamental to sustain the conclusion that s. 719(3) may be applied to s. 344(a). The French version does not employ a similar distinction in the language of the two sections. In French, the expression "la peine" is used interchangeably for "punishment" (s. 344(a)), for "sentencing" (marginal note to s. 718.2) and for "sentence" (ie., ss. 718.2 and 719). However, the expression "punishment" which is used twice in s. 718.3(1), is referred to in French first as "de peine" and the second time, in the same sentence, as "la punition". What is fundamental is less the words chosen, in the French and English version, but the concepts that they carry. [My emphasis.]

[19]In a criminal context, the word "punishment" or "punition" in French can refer to the "sentence" to be imposed. Indeed, section 718.3 [as enacted by S.C. 1995, c. 22, s. 6; 1999, c. 5, s. 30; 2002, c. 1, s. 182] of the Criminal Code uses the expression "the punishment to be imposed", and in French "la punition à infliger", in reference to sentencing and the court's discretion respecting punishment. As stated by Pinard J. in Atwal v. Canada (Minister of Citizenship and Immigration) (2004), 245 F.T.R. 170 (F.C.) [at paragraph 15], with section 64 of the IRPA, "Parliament sought to set an objective standard of criminality beyond which a permanent resident loses his or her appeal right, and Parliament can be presumed to have known the reality that time spent in pre-sentence custody is used to compute sentences under section 719 of the Criminal Code". Accordingly, as decided in a number of cases, to omit consideration of pre-sentence custody under section 64 of the IRPA when it was expressly factored into the criminal sentence would defeat the intent of Parliament in enacting this provision (Atwal; Allen v. Canada (Minister of Citizenship and Immigration), May 5, 2003, IMM-2439-02, F.C.T.D.; Canada (Minister of Citizenship and Immigration) v. Smith, 2004 FC 63.

[20]The present case is clearly distinguishable from the latter ones. For instance, in Atwal, the offender was convicted of two counts of robbery and one count of use of an imitation of a firearm. In that case, the offender had already served 20 months in pre-sentence custody when his sentence was imposed by the Court. There, the warrant of committal on conviction indicated a final custodial sentence of six months in addition to the 20 months of pre-sentence custody (credited at 3[frac12] years), for a total of four years of punishment. Therefore, there was no doubt in Atwal, that the offender was convicted of a crime that was punished in Canada by a term of imprisonment of at least two years. Accordingly, he had no right of appeal under subsection 64(2) of the IRPA. In the case at bar, pre-sentence custody is not in issue. Furthermore, in my view, it cannot be said that the applicant was not "punished" by three-years' imprisonment since that was and remains the sentence she received. Indeed, until the expiration of the three year period the applicant remains liable to full-time incarceration should she breach the conditions of her parole. While the applicant may have been released on parole prior to having served the full term of imprisonment for which she was sentenced, that is three- years, I am unable to conclude that Parliament's intent in enacting subsection 64(2) was to use such parole determinations as the determining factor for ascertaining the right of appeal in the case of serious criminality (Cartwright).

[21]In conclusion, subsection 64(2) must therefore be interpreted as referring to the term of imprisonment for which an offender was sentenced, rather than the actual amount of time served prior to being granted parole. Consequently, the Appeal Division had no jurisdiction to hear the applicant's appeal.

Charter Issue

[22]The applicant does not contest the constitutionality of sections 36, 44, 45, 46, 48 and 49 of the IRPA, nor the legality of the deportation order itself. The applicant's notice of constitutional question strictly refers to the application or effect of subsection 64(2) which, it is submitted, violates section 7 of the Charter. Therefore, the Charter issue can be substantially stated in the following terms: is it constitutionally permissible to preclude an appeal to the Appeal Division from a removal order made against a permanent resident who has been found to be inadmissible by the Immigration Division on the ground of serious criminality with respect to a crime that was punished in Canada by a term of imprisonment of at least two years?

[23]Section 7 of the Charter reads as follows:

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.

[24]Any analysis under section 7 of the Charter possibly involves two steps. First, there must be a finding of deprivation of the right "to life, liberty or security of the person". If this is the case, it is necessary to determine whether the deprivation is contrary to the principles of fundamental justice (R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387, page 415). Thus, if no interest in the applicant's life, liberty or security of the person is implicated, the section 7 analysis stops there. That said, "liberty" is not restricted to mere freedom from physical restraint; it can be engaged where state compulsions or prohibitions affect "important and fundamental life choices" (Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, at paragraph 49).

[25]In the present case, if section 7 of the Charter is violated, it would then be necessary for this Court to determine whether section 64 of the IRPA is otherwise saved by section 1 of the Charter. For the reasons that are exposed thereunder, as Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711 is still the law of the land, I have concluded that the preclusion of an appeal in the cases mentioned at subsection 64(2) is not contrary to the principles of fundamental justice, and this, even if I assume for the sake of discussion, that the applicant's right to "liberty" is engaged by the application of the impugned legislative provision.

(1) Is section 7 of the Charter engaged?

[26]The jurisprudence on whether deportation engages section 7 of the Charter is not unanimous.

[27]In Chiarelli v. Canada (Minister of Employment and Immigration), [1990] 2 F.C. 299, the Federal Court of Appeal had determined that deportation necessarily engages section 7 of the Charter. However, the Supreme Court in reversing the decision on other grounds found it unnecessary to address this issue. On another note, both Federal Court of Appeal's decisions, Romans v. Canada (Minister of Citizenship and Immigration) (2001), 17 Imm. L.R. (3d) 34 (F.C.A.) and Medovarski v. Canada (Minister of Citizenship and Immigration), [2004] 4 F.C.R. 48 (F.C.A.), are non-determinative of the issue at hand since the Federal Court of Appeal only assumed that section 7 was engaged and therefore, in my view, did not make a final determination of this matter.

[28]On the other hand, it has been held that deportation for serious offences is not a deprivation of "liberty" under section 7 of the Charter nor is it a "punishment" contemplated by section 12 of the Charter. It has also been held that a deportation order resulting from the perpetration of a serious offence does not contravene section 7 of the Charter and also that the elimination of the right of appeal to the Appeal Division against a deportation order, as applied to a non-refugee who has no legal right to be in the country, does not involve a deprivation of "liberty" (Canepa v. Canada (Minister of Employment and Immigration), [1992] 3 F.C. 270 (C.A.); Hurd v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 594 (C.A.); Hoang v. Canada (Minister of Employment and Immigration) (1990), 13 Imm. L.R. (2d) 35 (F.C.A.); Williams v. Canada (Minister of Employment and Immigration), [1997] 2 F.C. 646 (C.A.), at paragraph15; Kroon v. Canada (Minister of Citizenship and Immigration) (2004), 15 Admin. L.R. (4th) 315 (F.C.)).

[29]Indeed, in Canepa, at page 277, the Federal Court of Appeal held that arguments as to the violation of section 7 were precluded before it by authority (Hurd and Hoang). However, in Grewal v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 581 (C.A.), at pages 588-589, the Federal Court of Appeal appears to have concluded that deportation of a permanent resident as a result of criminal convictions does engage section 7 of the Charter as it actually examined whether fundamental justice had been accorded to that person. Moreover, in Nguyen v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 696 (C.A.), at pages 704-705, the Federal Court of Appeal held that the deprivation of liberty involved in any forced deportation is given a new dimension when the individual to be deported claims to be a refugee, therefore, it is appropriate to assume that section 7 of the Charter is brought into play with respect to the scheme as a whole.

[30]That said, the Supreme Court of Canada has since released its decision in Blencoe, in which the majority of the Court commented that section 7 of the Charter must be interpreted broadly and that the liberty interest is not restricted to mere freedom from physical restraint. The majority stated that in a free and democratic society, an individual has the right to make fundamental personal choices, free from state interference.

[31]Shortly afterwards, the Supreme Court's decision in Blencoe, in Al Yamani v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 433 (T.D.), Gibson J. considered whether on the facts before him section 7 was engaged. Justice Gibson adopted the view of Pratte J.A. as expressed in Chiarelli, at paragraph 59, that "deportation necessarily implies an interference with the liberty of the [applicant]" so as to engage section 7 of the Charter. Moreover, in both Romans v. Canada (Minister of Citizenship and Immigration) (2001), 86 C.R.R. (2d) 139 (F.C.T.D.), at paragraph 30 and Powell v. Canada (Minister of Citizenship and Immigration), 2004 FC 1120, at paragraph 25, this Court held that deportation engages section 7 of the Charter.

[32]On another note, in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, the Supreme Court held that, in some factual circumstances, section 7 interests might be engaged at the time of removal, such as where a person will be deported to a country where they will be subject to torture. However, this is not a case where the "life" or "security" of the individual may be at stake (see Singh and Suresh). The applicant is not a Convention refugee and there is no allegation or evidence on record demonstrating that the applicant's life or security of the person could be at risk upon her return to Jamaica. Indeed, she has returned from time to time to visit Jamaica since her admission into Canada.

[33]If any right in section 7 of the Charter is engaged, it can only be with respect to the applicant's "liberty" as this concept has been broadly defined by the Supreme Court in Blencoe. In this regard it is argued that the issuance of a deportation order validly made and legally enforceable as a result of the operation of sections 46, 48 and 49 of the IRPA prohibits the applicant from making the fundamental personal choice to remain in Canada. In addition to the loss of permanent residency, separation from family and banishment from Canada, it is also submitted that the extinguishment of the appeal and activation of the deportation order will directly result in the applicant losing the right to work, study and obtain state funded health care: all statutory rights which a person having the status of a permanent resident can enjoy in Canada. All those adverse effects are natural consequences of deportation. However, I note that in Nokhodchari v. Canada (Minister of Citizenship and Immigration) (2003), 236 F.T.R. 206 (F.C.T.D.) where the applicant's appeal was discontinued under section 196 of the IRPA (and which was decided by this Court before the Federal Court of Appeal rendered its decision in Medovarski, Blais J. [at paragraph 35] remarked "that the issue is not whether deportation engages section 7 of the Charter, but rather whether the statutory removal of an appeal to the IAD engages section 7" (my emphasis). That said, for the sake of the discussion, I will nevertheless assume for the purposes of the present judicial review application that section 7 of the Charter is engaged by the deprivation of the applicant's right to appeal to the Appeal Division the decision rendered by the Immigration Division to order her deportation (Medovarski, at paragraph 58).

(2) Is the deprivation contrary to the principles of fundamental justice?

[34]While the case at bar concerns exclusively the constitutionality of the legislative provision, namely section 64 of the IRPA, preventing an appeal to be made to the Appeal Division, I will nevertheless examine what has been stated by the Supreme Court of Canada in Chiarelli with respect to the legality of the overall removal scheme enacted under the former legislative provisions adopted by Parliament. But before doing so, I will note that while the IRPA may have somewhat broadened the grounds of inadmissibility (now listed in sections 34 to 40 of the IRPA) to include offences which were not previously contemplated by section 19 [as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 3; 1992, c. 47, s. 77; c. 49, s. 11; 1995, c. 15, s. 2; 1996, c. 19, s. 83; 2000, c. 24, s. 55] of the former Immigration Act the objectives pursued by the legislator have not changed and the means to attain same are virtually the same. Following a report setting the ground of inadmissibility and a referral by the Minister, there is still an admissibility hearing to determine whether the permanent resident indeed falls into one of the inadmissible classes, except it is now conducted by a member of the Immigration Division instead of an adjudicator. That said, section 70 of the former Immigration Act granted a general right of appeal from a deportation order to the Appeal Division subject to right of the executive to prevent such an appeal in cases involving serious security interests. That right has been fundamentally modified with the current legislative scheme. Rather, the right of appeal for a permanent resident (or foreign national) found to be inadmissible on the grounds of security (section 34), violating human or international rights (section 35) or organized criminality (section 37) has been suppressed in absolute terms by subsection 64(1). Similarly, the IRPA now curtails the right of appeal in cases of inadmissibility on grounds of serious criminality (section 36) by distinguishing between crimes that were punished in Canada by a term of imprisonment of at least two years (no right of appeal under subsections 64(1) and (2)) and crimes for which lesser sentences of imprisonment have been imposed (right of appeal under subsections 63(3) and 64(2)).

[35]That said, in Chiarelli, the Supreme Court was asked to determine whether sections 27 and 32 of the Immigration Act, 1976, S.C. 1976-77, c. 52 which were similar to sections 44 and 45 of the IRPA, were contrary to principles of fundamental justice because they were mandatory and required that deportation be ordered by an adjudicator without regard to circumstances of the offence or the offender. In Chiarelli the Supreme Court stressed that in determining the scope of principles of fundamental justice as they applied to this case, the Court must look to the principles and policies underlying immigration law. In this regard, the most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country. Indeed, the distinction between citizens and non-citizens is recognized in the Charter itself. While permanent residents are given the right to move to, to take up residence in, and pursue the gaining of a livelihood in any province in subsection 6(2) of the Charter, only citizens are accorded the right "to enter, remain in and leave Canada" in subsection 6(1). Therefore, the absolute right to stay in Canada which is conferred by subsection 6(1) of the Charter does not find application in the case at bar since the applicant is not a Canadian citizen.

[36]In Chiarelli, the Supreme Court further stated that 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. The applicability or constitutionality of the general legislative scheme under the IRPA is not in issue in the case at bar. I accept in the circumstances that the above conditions represent 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. Both paragraph 19(1)(c) [as am. by S.C. 1992, c. 49, s. 11] of the former Immigration Act (which was in force at the time the applicant was convicted of importing cocaine) and paragraph 36(1)(a) of the IRPA impose, as a condition on a permanent resident's right to remain in Canada, that he or she not be convicted in Canada of an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of 10 years or more. The act of importing cocaine into Canada constitutes an indictable offence which renders the offender liable to imprisonment for life under subsection 6(1) of the Controlled Drugs and Substances Act. In the present case, the applicant has been found to be a person inadmissible on the ground of serious criminality and this finding is not contested.

[37]In the case at bar, as stated by the Supreme Court in Chiarelli, there is accordingly no breach of fundamental justice in giving practical effect to the termination of the permanent resident's right to remain in Canada. Indeed, in the case of a permanent resident, deportation is the only way in which to accomplish this (Chiarelli, at paragraph 27). However, I will nevertheless examine any suggestion that section 64 of the IRPA would be inconsistent with section 7 of the Charter because it creates a process whereby the applicant is deprived, contrary to the principles of fundamental justice, of his or her right to appeal against a deportation order on any of the grounds set out in subsection 67(1) of the IRPA.

[38]While the applicant is deprived by subsection 64(2) of the IRPA of the right to make an appeal inviting the Appeal Division to set aside the decision rendered by the Immigration Division on the ground, inter alia, that it is wrong in law or fact or that a principle of natural justice has not been observed (paragraphs 67(1)(a) and (b)), I note that substantially the same grounds of review can nevertheless be invoked by the applicant in support of an application for leave and judicial review presented before this Court in accordance with section 72 of the IRPA (see the grounds mentioned in subsection 18.1(4) [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27] of the Federal Courts Act, R.S.C. 1985, c. F-7 [s. 1 (as am. by S.C. 2002, c. 8. s. 14)]). In my opinion, the right to present such an application for leave and judicial review offers ample protection to a permanent resident from an erroneous decision in law or fact of the Immigration Division. Therefore, there is no breach of a principle of fundamental justice in suppressing a right of appeal on such grounds.

[39]Therefore, the issue is whether principles of fundamental justice require more than the right to bring an application for leave and judicial review questioning the legality of the decision of the Immigration Division on factual and legal grounds. The applicant submits in this regard that fundamental justice requires a mechanism be available to a person such as the applicant for adherence to the principle of proportionality, which can include an appeal on compassionate reasons before the Appeal Division. This argument must also fail. There is no constitutionally guaranteed right of appeal. As the Federal Court of Appeal ruled in Luitjens v. Canada (Secretary of State) (1992), 9 C.R.R. (2d) 149, at page 152 "[i]t is permissible for Parliament to constitutionally deny the right to appeal. The principles of fundamental justice do not mandate endless hearings and appeals at every stage of a process."

[40]Despite the fact that paragraph 72(1)(b) [as am. by S.C. 1984, c. 21, s. 81] of the Immigration Act, 1976 provided for an appeal on the ground that, having regard "to all the circumstances of the case", the person should not be removed from Canada, the Supreme Court determined in Chiarelli, that section 7 of the Charter did not mandate the provision of a compassionate appeal. Sopinka J. who wrote the opinion of the Court noted in this regard at pages 741-742:

It can thus be seen that there has never been a universally available right of appeal from a deportation order on "all the circumstances of the case". Such an appeal has historically been a purely discretionary matter. Although it has been added as a statutory ground of appeal, the executive has always retained the power to prevent an appeal from being allowed on that ground in cases involving serious security interests.

If any right of appeal from the deportation order in s. 32(2) is necessary in order to comply with principles of fundamental justice, a "true" appeal which enables the decision of the first instance to be questioned on factual and legal grounds clearly satisfies such a requirement. The absence of an appeal on wider grounds than those on which the initial decision was based does not violate s. 7.

[41]That said, the applicant nevertheless argues that the dicta in Chiarelli, concerning the removal of a permanent resident from Canada has been eroded by more recent pronouncements by the Supreme Court. The applicant notes in this regard that in Chiarelli, Sopinka J. relied largely on the decisions of La Forest J. and McLachlin J. (as she then was) in Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779. The applicant argues that both of these decisions relied on a contextual approach to a consideration of section 7 fundamental justice. Although reference was made to a balancing of interests, clearly the contextual approach, involving a historical analysis of the process at issue and the government interest in that case extradition, was preferred. The applicant further submits that by the time the Supreme Court considered the appeal in United States of America v. Burns, [2001] 1 S.C.R. 283, the principle that fundamental justice in section 7 requires a fair balancing between state and personal interests was confirmed by the Supreme Court in Cunningham v. Canada, [1993] 2 S.C.R. 143. With this principle confirmed, the Supreme Court in Burns, ruled that the personal interest issue such as the death row phenomenon and risk of wrongful convictions etc., had tipped the scale in public opinion such that now, it would shock the conscience to return a person to face execution. Context was no longer the overriding issue. The applicant also submits that the principle in Burns, was incorporated directly into the immigration context in Suresh. The contextual approach was still relevant, but gave way to other more important considerations such as proportionality and a balancing of interests. The applicant further remarks this was implicitly recognized by the Federal Court of Appeal in Romans, when in citing Burns, it held that the requirements of fundamental justice in section 7 had been complied within that case because a balancing had been undertaken by the Immigration Appeal Division.

[42]Be that as it may, in 2003, the Federal Court of Appeal decided in Medovarski, that the discontinuation of an appeal against a removal order resulting from the operation of section 196 of the IRPA (which provides that, despite section 192, is discontinued if "the appellant has not been granted a stay under the former Act"), is not contrary the principles of fundamental justice. Evans J.A. who wrote the opinion of the majority (Pelletier J.A. wrote a dissenting opinion but he did not address the section 7 Charter issue) relied on Chiarelli, and reaffirmed that the principles of fundamental justice do not require Parliament to provide a right of appeal on humanitarian and compassionate grounds before a permanent resident can be deported for serious criminality. Evans J.A. also disposed of the alternative argument that is also made here by the applicant to the effect that, absent a right of appeal to the Appeal Division on humanitarian and compassionate grounds, the principles of fundamental justice, nevertheless, require Parliament to provide some other effective opportunity to make representations against a permanent resident prior to removal. In this case, Evans J.A. remarked that persons in the position of the applicant have some opportunities to bring to the attention of immigration officials reasons why they should not be removed, despite their criminal conviction. Indeed, such persons have the right under subsection 112(1) of the IRPA to obtain an assessment of the risk that they would face if removed from Canada. In addition, they may make an application to remain in Canada on humanitarian or compassionate grounds (H & C application) under subsection 25(1) of the IRPA.

[43]However, questioning the rationale followed in Medovarski and Powell, counsel for the applicant urges this Court to conclude that the right to make an H & C application is illusory because none of the statutory stay removal provisions in the IRPA mandate a stay of removal pending a consideration of an H & C application (Immigration and Refugee Protection Regulations, SOR/2002-227 (the IRPR) as amended, sections 230, 231, 232 and 233). As such, the applicant submits that there is no legislative or regulatory process other than the exercise or a removal officer's discretion to delay deportation pending the determination of an H & C application.

[44]While later in the process leading to the removal of the applicant, the issue may ultimately turn on whether section 7 of the Charter requires that there be a mandatory stay pending the determination of an H & C application, this Court is justified at the present time to refuse to entertain the applicant's request for some kind of declaration or remedy in this regard. The issue raised above is not properly the object of the present proceedings and appears to be premature. The present judicial review application attacks solely the Appeal Division's decision of the refusal to entertain the applicant's appeal. The present section 7 Charter challenge, as attested by the notice of constitutional question served and filed by the applicant, is exclusively directed to the legality of the legislative provision which eliminates the right of appeal in the cases enumerated at subsection 64(2) of the IRPA. Here, the applicant has chosen not to attack the legality of the deportation order issued by the Immigration Division. In view of the position taken that by the applicant that she has a right of appeal on compassionate grounds before the Appeal Division, the applicant has decided not to make an H & C application pursuant to section 25 of the IRPA.

[45]The legality of a deportation order issued by the Immigration Division following an admissibility hearing is separate from the question of whether or not, once it is in force and legally enforceable, it should be stayed. The issue of where and when an individual will be removed is a matter for the Minister (Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, at paragraph 74). Indeed, section 233 of the IRPR provides that a removal order is stayed if the Minister is of the opinion under subsection 25(1) of the IRPA that there exist humanitarian and compassionate considerations or public policy considerations. In this respect, subsection 25(1) of the IRPA specifically provides that the Minister shall exercise its discretion, taking into account the best interests of a child directly affected. I am cognizant of the fact that judges of this Court have differed about the scope of a removal officer's discretion to defer a removal pending the determination of an H & C application. I have myself expressed the opinion that there is no requirement that the removal officer consider humanitarian and compassionate factors: Adviento v. Canada (Minister of Citizenship and Immigration) (2003), 242 F.T.R. 295 (F.C.), at paragraph 41. I note that in the former case, there were no children involved and this dictum was made in the context of the application of the former Immigration Act. However, in accord with the Supreme Court of Canada dicta in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, Parliament has since enacted paragraph 3(3)(f) of the IRPA which clearly states that the latter is to be construed and applied in a manner that complies with international human rights instruments to which Canada is a signatory. This certainly includes the Convention on the Rights of the Child, November 20, 1989, [1992] Can. T.S. No. 3. Indeed, in Martinez v. Canada (Minister of Citizenship and Immigration), 2003 FC 1341, where it appears that the father was being removed and the children were remaining in Canada, Simpson J. stayed the removal order following the removal officer's refusal to defer same pending the determination of the applicant's H & C application. Simpson J. [at paragraph 13] noted in this regard that "it is contrary to Article 1 of the Convention [of the Rights of the Child] to use the provisions of the IRPA to separate the applicant and his children before a decision is made on the application". Simpson J. also concluded that such an infringement of a human right constitutes irreparable harm.

[46]That said, there is no evidence in the record to support the allegations made by the applicant that the making of an application before the Minister would be illusory in the particular circumstances of the case. On numerous occasions, the Supreme Court of Canada has reiterated that a Charter decision should not be made in a factual vacuum since doing so would trivialize the Charter and inevitably result in ill-considered opinions. The presentation of a solid factual foundation is essential to a proper consideration of Charter issues (Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086, at page 1099; MacKay v. Manitoba, [1989] 2 S.C.R. 357, at pages 361-362; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), [2002] 2 S.C.R. 146, at paragraph 46). Moreover, a court is justified in refusing to entertain a request for declaratory or other relief where another procedure is available or where the legislature intended that the other procedure be followed (Kourtessis v. M.N.R., [1993] 2 S.C.R. 53 at page 115). This is clearly the case here (Medovarski, at paragraphs 56 and 62; Powell, at paragraph 29).

[47]In conclusion, I have decided to dismiss the present judicial review application. The applicant has proposed the two following questions for certification:

a)     Does the word "punished" used in ss. 64(2) of the IRPA with respect to a term of imprisonment refer to the sentence of imprisonment imposed or the actual time served in prison?

b)     Does ss. 64(2) of the IRPA violate s. 7 of the Charter in a manner which cannot be justified under s. 1 of the Charter?

[48]While the first question is somewhat different from the one certified by my colleagues Pinard J. and Campbell J. in Atwal and Smith, it touches an important aspect concerning the scope of the same legislative provision and which has not yet been addressed by Federal Court of Appeal jurisprudence. Same cannot be said with respect to the second question in view of the recent decision of the Federal Court of Appeal in Medovarski. There, the majority determined that section 196 of the IRPA is not contrary to the principles of fundamental justice (Pelletier J.A. dissenting expressed no opinion on section 7 of the Charter). I fail to see how Evans J.A.'s reasoning, who wrote the majority opinion, cannot be integrally applied to subsection 64(2) of the IRPA which has a similar effect. That said, I note that Evans J.A. relied heavily on the Supreme Court of Canada decision in Chiarelli. Leave to appeal to the Supreme Court was granted in Medovarski, last November. Following the Medovarski decision, a somewhat similar reasoning has been subsequently adopted by Gibson J. in Powell, leading again to the certification of two constitutional questions based on section 7 of the Charter. The latter case involved a permanent resident convicted of criminal offences and punished by a term of imprisonment of two years or more and who had attacked in this instance the validity of paragraph 45(d) of the IRPA, as well as the overall removal scheme enacted under the IRPA (this includes the suppression of any appeal right by virtue of section 64). Considering that leave to appeal has been granted by the Supreme Court of Canada in Medovarski and that the Federal Court of Appeal has yet to pronounce itself on the questions certified in Powell, I find it advisable, in these circumstances, to also certify the second question proposed by the applicant.

[49]Accordingly, after considering the submissions of counsel and determining that the questions proposed on behalf of the applicant for certification are serious questions of general importance that taken together, would be dispositive of an appeal herein, I have accepted to certify same.

    ORDER

THE COURT ORDERS:

1. This application for judicial review is dismissed.

2. The following questions are certified:

(a) Does the word "punished" used in subsection 64(2) of the IRPA with respect to a term of imprisonment refer to the sentence of imprisonment imposed or the actual time served in prison?

(b) Does subsection 64(2) of the IRPA violate section 7 of the Charter in a manner which cannot be justified under section 1 of the Charter?