A-50-18
2019 FCA 261
Massimo Thomas Moretto (Appellant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Moretto v. Canada (Citizenship and Immigration)
Federal Court of Appeal, Stratas, Near and de Montigny JJ.A—Vancouver, January 16, 2018; Ottawa, October 18, 2019.
Citizenship and Immigration — Exclusion and Removal — Removal of Permanent Residents — Appeal from Federal Court decision dismissing judicial review of Immigration and Refugee Board, Immigration Appeal Division (IAD) decision determining that appellant’s stay of removal cancelled by operation of Immigration and Refugee Protection Act (Act), s. 68(4) because of conviction for “serious criminality” within meaning of Act, s. 36(1)(a) — Appellant having accrued long criminal record, sentenced to prison — Immigration Division finding appellant inadmissible, issuing deportation order — IAD conditionally staying removal order for three years — Conditions including that appellant not commit criminal offences — Appellant later convicted of robbery — IAD holding that s. 68(4) applying to appellant’s case — Stay of removal order cancelled, appeal before IAD terminated — On review appellant arguing stay cancellation decision unjustifiably infringing his Charter rights — Federal Court finding Charter, s. 7 not engaged on facts of case, and that in any event, any deprivation consistent with principles of fundamental justice — Also finding s. 68(4) not unjustifiably infringing rights under Charter, ss. 2(d), 12 — Whether Act, s. 68(4) infringing appellant’s Charter rights — Inadmissibility finding distinct from effecting removal — Present case concerning admissibility determination stage, not removal arrangements — Charter, s. 7 thus not engaged — Deportation of non-citizen not implicating, in itself, liberty interests protected by Charter, s. 7 — Impugned scheme consistent with fundamental justice — Lifting conditional stay of ID inadmissibility decision, terminating IAD appeal neither overbroad nor grossly disproportionate in present circumstances — Overbreadth, gross disproportionality having to be considered in light of underlying purpose of s. 68(4), i.e. prompt removal of dangerous criminals who are repeat offenders — Appellant’s circumstances considered at all stages — S. 68(4) but one process in complex inadmissibility determination, removal regime — More processes available to avoid removal — These proceses ensuring against gross disproportionality, overbreadth — As to whether Act, s. 68(4) violating Charter, s. 2(d), family relationship having little to do with freedom of association — No reason to depart from this reasoning — Appeal dismissed.
Constitutional Law — Charter of Rights — Life, Liberty and Security — Federal Court dismissing judicial review of Immigration and Refugee Board, Immigration Appeal Division (IAD) decision determining that appellant’s stay of removal cancelled by operation of Immigration and Refugee Protection Act (Act), s. 68(4) because of conviction for “serious criminality” within meaning of Act, s. 36(1)(a) — Federal Court finding that Charter, s. 7 not engaged on facts of case, and that in any event, any deprivation resulting from removal process consistent with principles of fundamental justice — Whether Act, s. 68(4) infringing Charter s. 7 — Application of s. 68(4) not engaging Charter, s. 7 — Inadmissibility finding distinct from effecting removal — Case herein concerning admissibility determination stage, not removal arrangements — Impugned scheme consistent with fundamental justice — More processes available to appellant to avoid removal — Federal Court correctly relying on Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration) to find that deportation of non-citizen not implicating, in itself, s. 7 liberty interests — That case dispositive of present appeal.
Constitutional Law — Charter of Rights — Criminal Process — Federal Court dismissing judicial review of Immigration and Refugee Board, Immigration Appeal Division decision determining that appellant’s stay of removal cancelled by operation of Immigration and Refugee Protection Act (Act), s. 68(4) because of conviction for “serious criminality” within meaning of Act, s. 36(1)(a) — Whether Act, s. 68(4) infringing Charter s. 12 — Federal Court correct to conclude that Charter, s. 12 not engaged in this case.
Constitutional Law — Charter of Rights — Fundamental Freedoms — Federal Court dismissing judicial review of Immigration and Refugee Board, Immigration Appeal Division (IAD) decision determining that appellant’s stay of removal cancelled by operation of Immigration and Refugee Protection Act (Act), s. 68(4) because of conviction for “serious criminality” within meaning of Act, s. 36(1)(a) — Federal Court finding that s. 68(4) not unjustifiably infringing rights under Charter, s. 2(d) — Appellant arguing impugned scheme infringing his Charter, s. 2(d) right of association with family — Whether Act, s. 68(4) violating Charter, s. 2(d) — Family relationship having little in common with underlying purpose of freedom of association — Recent case law not mandating departure from this reasoning.
Federal Court Jurisdiction — Federal Court dismissing judicial review of Immigration and Refugee Board, Immigration Appeal Division (IAD) decision determining that appellant’s stay of removal cancelled by operation of Immigration and Refugee Protection Act (Act), s. 68(4) because of conviction for “serious criminality” within meaning of Act, s. 36(1)(a) — Whether constitutionality of s. 68(4) properly raised before Federal Court, properly before Court herein — IAD declining jurisdiction to deal with constitutional issue, but Federal Court nevertheless deciding to consider question — While Federal Court’s decision to consider appellant’s constitutional argument appearing to conflict with its own case law, several decisions implicitly recognizing Federal Court’s authority, on judicial review, to issue declaration that statutory provision breaching Charter even though administrative decision maker itself not dealing with issue — Statutory scheme militating in favour of IAD having jurisdiction to consider constitutionality of s. 68(4).
This was an appeal from a Federal Court decision dismissing an application for judicial review of a decision by the Immigration Appeal Division (IAD) of the Immigration and Refugee Board of Canada (IRB). The IAD had determined that the appellant’s stay of removal was cancelled by the operation of subsection 68(4) of the Immigration and Refugee Protection Act (Act) because of a conviction for “serious criminality” within the meaning of paragraph 36(1)(a) of the Act during a period when he was subject to a stay of removal.
The appellant, a permanent resident, accrued a long criminal record since 1997. In 2008, he was sentenced to two years less a day as a result of convictions for theft and breaking and entering. A Canada Border Services Agency officer made a report under subsection 44(1) of the Act, finding that the appellant was inadmissible for serious criminality as defined by paragraph 36(1)(a) of the Act. In 2009, the Immigration Division (ID) of the IRB found that the appellant was inadmissible and issued a deportation order. The IAD dismissed the appellant’s appeal of the ID decision. The Federal Court found that the IAD had misapprehended the evidence, particularly with respect to the hardship factor, and sent the matter back for re-determination. As a result, the IAD conditionally stayed the removal order for three years. The conditions of the stay included that the appellant would not commit any criminal offences. Following those three years, the appellant reported that he had been charged with four additional criminal offences. In 2015, in light of the less severe nature of the recent offences and other factors, the IAD granted a further conditional stay of one year. In 2016, the appellant was convicted of robbery, which qualifies as a “serious criminality” offence under paragraph 36(1)(a) of the Act, and was sentenced to time in prison. As a result, the IAD held that subsection 68(4) of the Act applied to his case. The stay of the removal order was cancelled, and the appeal before the IAD terminated. In seeking judicial review, the appellant argued that the stay cancellation decision unjustifiably infringed his rights under paragraph 2(d), and sections 7 and 12 of the Canadian Charter of Rights and Freedoms (Charter). The Federal Court held that the decisions of the Supreme Court in Canada (Minister of Employment and Immigration) v. Chiarelli (Chiarelli) and Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration) (Medovarski) could be revisited but nonetheless found that section 7 of the Charter was not engaged on the facts of the case and that, in any event, any deprivation resulting from the removal process was consistent with the principles of fundamental justice. It likewise found that subsection 68(4) of the Act did not unjustifiably infringe rights under paragraph 2(d) and section 12 of the Charter.
The appellant submitted, inter alia, that the Federal Court’s determination that section 7 cannot be engaged at this stage was erroneous, as it immunizes from scrutiny the process leading up to deportation. The appellant also claimed that as subsection 68(4) of the Act rendered his deportation order enforceable, it engaged his liberty and security interests under section 7 of the Charter. The appellant argued that the impugned scheme infringed his paragraph 2(d) Charter right as the effect of his deportation would be to sever his association with his family. He further argued that the family unit is the “foundational social institution”, and that it should thus enjoy Charter protection.
The central issue was whether subsection 68(4) of the Act unjustifiably infringed the appellant’s Charter rights.
Held, the appeal should be dismissed.
The Court determined, in a preliminary matter, that the constitutionality of subsection 68(4) of the Act had been properly raised before the Federal Court and was properly before it herein. The IAD had declined jurisdiction to deal with the constitutional issue, but the Federal Court nevertheless decided to consider this question itself. The appellant asked the Court to quash the IAD’s decisions and declare subsection 68(4) of the Act constitutionally invalid. It appeared that the Federal Court’s decision to consider the appellant’s constitutional argument conflicted with its own case law. Nevertheless, a number of decisions have implicitly recognized the authority of the Federal Court, on an application for judicial review, to issue a declaration that a statutory provision is in breach of the Charter even though the administrative decision maker itself did not deal with the issue. The statutory scheme as a whole militates in favour of the IAD having jurisdiction to consider the constitutionality of subsection 68(4) of the Act. Requiring the IAD to apply a provision without giving it the power to determine that provision’s constitutionality goes against the principle that invalid laws should not be applied and that rights should be assertable in the most accessible forum available.
The application of subsection 68(4) of the Act cannot, in and of itself, engage sections 7 or 12 of the Charter (see Revell v. Canada (Citizenship and Immigration), 2019 FCA 262, [2020] 2 F.C.R. 355, at paragraphs 35-57 (companion case heard by the same panel as in the present matter)). There is extensive case law establishing that an inadmissibility finding is distinct from effecting removal and that, as other steps remain in the process, it does not engage section 7 of the Charter. This case concerned the admissibility determination stage, not removal arrangements. The appellant could still apply for an exceptional temporary resident permit, a deferral of removal at a later stage of his deportation process, or exemption from inadmissibility on humanitarian and compassionate grounds.
The Federal Court was right to rely on Medovarski to find that the deportation of a non-citizen does not implicate, in itself, the liberty interests protected by section 7 of the Charter. That case was dispositive of the present appeal. While there was evidence that the appellant’s removal would have a profound and serious impact on his psychological integrity, in light of Medovarski, the consequences of his removal did not rise beyond the “typical” ones associated with this procedure.
The principle of stare decisis precluded reconsidering the findings of the Supreme Court in Chiarelli. The appellant’s raising of a new Charter provision, namely paragraph 2(d), did not weigh in favour of revisiting Chiarelli and Medovarski. The Federal Court erred in finding otherwise. The fact that a new Charter provision is raised to challenge the validity of a legislative scheme has no bearing on whether precedents concerning other Charter provisions should be reconsidered. The Federal Court did not err however in finding that the impugned legislative scheme was consistent with the principles of fundamental justice. Lifting the conditional stay of an ID inadmissibility decision and terminating the IAD appeal in circumstances where a non-citizen has been convicted of a further serious crime is neither overbroad nor grossly disproportionate. The underlying purpose of subsection 68(4) is to allow for the prompt removal of dangerous criminals who continue to commit serious criminal offences after being given a second chance. It is in light of this purpose that overbreadth and gross disproportionality have to be considered. Even assuming that section 36 of the Act could cover conduct that bears no relation to its purpose, the numerous processes provided for by the Act to assess admissibility save it from any charge of overbreadth by effectively narrowing its scope. In the case at bar, the appellant’s circumstances were considered extensively at the report and referral stage. The appellant had access to the “full spectrum of individualized processes” within the Act’s broader inadmissibility scheme before the automatic operation of subsection 68(4). It would be a mistake to focus entirely on this last provision, as it is but one process in a complex, multi-tiered inadmissibility determination and removal regime. Even at this late stage, the appellant could still avail himself of a few more processes to avoid removal. These processes are “safety valves” that ensure against any gross disproportionality and overbreadth. There was nothing draconian or “out of sync” about giving effect to the appellant’s obligation to behave lawfully while in Canada by lifting the stay of removal and rendering him inadmissible to Canada. The impact of subsection 68(4), at least in the particular circumstances of this case, was not grossly disproportionate to its objective.
The Federal Court was correct to conclude that section 12 of the Charter was not engaged in this case (see Revell, at paragraphs 123–137).
As to whether subsection 68(4) of the Act violates paragraph 2(d) of the Charter, the case law of the Supreme Court has evolved towards a more generous interpretation of paragraph 2(d). It is now beyond dispute that freedom of association protects not only the right to join with others and form associations and the right to join with others in the pursuit of other constitutional rights, but also the right to join with others to meet on more equal terms the power and strength of other groups or entities. Broadening the scope of paragraph 2(d) had a major impact on the right to collective bargaining. However, there is no indication that the “voluntariness” aspect of that right has been cast aside, or that the Supreme Court’s explanation in Reference Re Public Service Employee Relations Act (Alta.) as to why institutions like the family do not fall easily under the rubric of paragraph 2(d) has lost its currency. It would appear, on the contrary, that family relationship has little (if anything) in common with the underlying purpose of freedom of association. The recent paragraph 2(d) case law does not mandate departing from this reasoning. Human rights instruments to which Canada is a party can serve as interpretative tools in delineating the breadth and scope of Charter rights. However, for international norms to be relevant in this manner, the international obligation invoked and the Charter right at issue must at least be conceptually similar. The idea that the right to freedom of association in paragraph 2(d) of the Charter should be interpreted in light of international protections that bear no connection to that right is without merit.
STATUTES AND REGULATIONS CITED
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, 2(d), 7, 12.
Federal Courts Act, R.S.C., 1985, c. F-7, ss. 17, 18, 18.1.
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3(3)(d), 25, 36, 44, 45(a),(c),(d), 48, 67, 68, 97(1)(a),(b), 112, 113, 162(1).
Immigration Division Rules, SOR/2002-229, r. 47.
TREATIES AND OTHER INSTRUMENTS CITED
International Covenant on Civil and Political Rights, December 19, 1966, [1976] Can. T.S. No. 47, Arts. 17, 22, 23.
CASES CITED
FOLLOWED:
Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711, (1992), 90 D.L.R. (4th) 289; Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539.
NOT FOLLOWED:
Ferri v. Canada (Minister of Citizenship and Immigration), 2005 FC 1580, [2006] 3 F.C.R. 53.
APPLIED:
Revell v. Canada (Citizenship and Immigration), 2019 FCA 262, [2020] 2 F.C.R. 355; Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157, [2018] 2 F.C.R. 344; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, (1987), 38 D.L.R. (4th) 161.
CONSIDERED:
Lewis v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 130, [2018] 2 F.C.R. 229; R. v. Moretto, 2009 BCCA 139, [2009] B.C.W.L.D. 3281; Moretto v. Canada (Citizenship and Immigration), 2011 FC 132, 96 Imm. L.R. (3d) 320; Moretto v. Canada (Public Safety and Emergency Preparedness), 2015 CanLII 85511 (I.R.B.); Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, (1999), 177 D.L.R. (4th) 124; Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3; Catholic Children’s Aid Society of Metropolitan Toronto v. S. (1989), 69 O.R. (2d) 189, 60 D.L.R. (4th) 397 (C.A.); Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R. 176.
REFERRED TO:
Tran v. Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289; Harkat (Re), 2012 FCA 122, [2012] 3 F.C.R. 635; Tapambwa v. Canada (Citizenship and Immigration), 2019 FCA 34, [2020] 1 F.C.R. 699, 304 A.C.W.S. (3d) 376; Begum v. Canada (Citizenship and Immigration), 2018 FCA 181, [2019] 2 F.C.R. 488, 297 A.C.W.S. (3d) 622; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570, (1990), 77 D.L.R. (4th) 94; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5, (1991), 3 O.R. (3d) 128; Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22, (1991), 126 N.R. 1; Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, (1996), 140 D.L.R. (4th) 193; Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 S.C.R. 504; Benavides Livora v. Canada (Minister of Citizenship and Immigration), 2006 FC 104, 152 A.C.W.S. (3d) 489; Ramnanan v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FC 404, 166 A.C.W.S. (3d) 295; Canada (Citizenship and Immigration) v. Bui, 2012 FC 457, [2013] 4 F.C.R. 520, 222 A.C.W.S. (3d) 769; Canada (Public Safety and Emergency Preparedness) v. Rasaratnam, 2016 FC 670, [2017] 1 F.C.R. 115, 268 A.C.W.S. (3d) 170; Singh v. Canada (Minister of Public Safety and Emergency Preparedness), 2018 FC 455, 294 A.C.W.S. (3d) 357; Young v. Canada (Public Safety and Emergency Preparedness), 2016 CanLII 102941 (I.R.B.); Adil v. Canada (Public Safety and Emergency Preparedness), 2016 CanLII 73708 (I.R.B.); Smith v. Canada (Public Safety and Emergency Preparedness), 2006 CanLII 52281 (I.R.B.); X (Re), 2014 CanLII 66637 (I.R.B.); Atawnah v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 144, [2017] 1 F.C.R. 153, 397 D.L.R. (4th) 177; Jodhan v. Canada (Attorney General), 2012 FCA 161, [2014] 1 F.C.R. 185, 215 A.C.W.S. (3d) 847; Bilodeau-Massé v. Canada (Attorney General), 2017 FC 604, [2018] 1 F.C.R. 386; Stables v. Canada (Citizenship and Immigration), 2011 FC 1319, [2013] 3 F.C.R. 240, 2009 A.C.W.S. (3d) 637; B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704; Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431; Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85, [2005] 3 F.C.R. 487; J.P. v. Canada (Public Safety and Emergency Preparedness), 2013 FCA 262, [2014] 4 F.C.R. 371, 235 A.C.W.S. (3d) 460; Torre v. Canada (Citizenship and Immigration), 2016 FCA 48, 263 A.C.W.S. (3d) 729, leave to appeal to S.C.C. refused [2016] 1 S.C.R. xviii]; PSAC v. Canada, [1987] 1 S.C.R. 424, (1987), 38 D.L.R. (4th) 249; RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460, (1987), 8 D.L.R. (4th) 277; Droit de la famille - 1741, [1993] R.J.Q. 647, 38 A.C.W.S. (3d) 315 (C.A.), leave to appeal to S.C.C. refused [1993] 2 S.C.R. vi]; L.C. v. Alberta, 2010 ABCA 14, 316 D.L.R. (4th) 760.
AUTHORS CITED
Sarah Joseph, Jenny Schultz, and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary, 2nd ed. Oxford: Oxford University Press, 2004.
APPEAL from a Federal Court decision (2018 FC 71, 291 A.C.W.S. (3d) 831) dismissing an application for judicial review of an Immigration and Refugee Board, Immigration Appeal Division decision ([2016] I.A.D.D. No. 2159 (QL)) determining that the appellant’s stay of removal was cancelled by the operation of subsection 68(4) of the Immigration and Refugee Protection Act (Act) because of a conviction for “serious criminality” within the meaning of paragraph 36(1)(a) of the Act. Appeal dismissed.
APPEARANCES
Laura Best, Lobat Sadrehashemi and Audrey Macklin for appellant.
Banafsheh Sokhansanj, Marjan Double and Helen Park for respondent.
SOLICITORS OF RECORD
Embarkation Law Corporation, Vancouver, for appellant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
[1] de Montigny J.A.: The appellant Mr. Moretto appeals from a decision of the Federal Court (Justice McDonald) dated January 24, 2018 (Moretto v. Canada (Citizenship and Immigration), 2018 FC 71, 291 A.C.W.S. (3d) 831) (F.C. reasons), which dismissed his application for judicial review of a decision of the Immigration Appeal Division (IAD) of the Immigration and Refugee Board, dated December 21, 2016 [Moretto v. Canada (Public Safety and Emergency Preparedness), [2016] I.A.D.D. No. 2159 (QL)]. The IAD determined that his stay of removal from Canada was cancelled by the operation of subsection 68(4) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) because of a conviction for “serious criminality” within the meaning of paragraph 36(1)(a) of the Act during a period when he was subject to a stay of removal.
[2] The Federal Court certified the three following serious questions of general importance:
i. Is section 7 engaged at the stage where a permanent resident’s stay of removal is automatically cancelled pursuant to s. 68(4) and if so, would section 7 be engaged where the deprivation of the right to liberty, security of the person of a permanent resident arises from their uprooting from Canada, not from possible persecution or torture in the country of nationality?
ii. Does the principle of stare decisis preclude this Court from reconsidering findings of the Supreme Court of Canada in Chiarelli which established that the deportation of a permanent resident who has been convicted of a serious criminal offence, despite that the circumstances of the permanent resident and the offence committed may vary, is in accordance with the principles of fundamental justice? In other words, have the criteria to depart from binding jurisprudence been met in the present case?
iii. Is a s. 12 determination premature at the stage where a permanent resident’s stay of removal is automatically cancelled pursuant to s. 68(4)?
[3] Essentially for the same reasons that I have given in a companion case heard by the same panel on the same day, in which judgment is also being delivered today (Revell v. Canada (Citizenship and Immigration), 2019 FCA 262, [2020] 2 F.C.R. 355 (Revell)), I am of the view that the application of subsection 68(4) of the Act cannot, in and of itself, engage sections 7 or 12 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). I am also of the view that the application of subsection 68(4) of the Act does not violate paragraph 2(d) of the Charter.
I. Background
[4] Paragraph 36(1)(a) of the Act provides that a permanent resident may be found inadmissible to Canada on the ground of serious criminality if convicted for a serious offence:
Serious criminality
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.
[5] Inadmissibility on this basis can lead to loss of status and removal from Canada. The Act outlines a broad scheme for the adjudication and enforcement of allegations of inadmissibility.
[6] Subsection 44(1) of the Act provides that if a Canada Border Services Agency (CBSA) officer is of the view that a permanent resident is inadmissible, that officer may prepare a report setting out the relevant facts and transmit it to the Minister of Public Safety and Emergency Preparedness (the Minister). If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division (ID) of the Immigration and Refugee Board for an admissibility hearing (subsection 44(2) of the Act). However, even if the Minister is of the opinion that the report of the CBSA officer is well founded, he or she still retains some discretion not to refer it to the ID (see, notably, Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289, at paragraph 6).
[7] If the Minister does refer the report to the ID, an admissibility hearing is held for the permanent resident, and the ID must either recognize that person’s right to enter Canada (paragraph 45(a) of the Act), authorize him or her to enter Canada for further examination (paragraph 45(c) of the Act), or make a removal order against that person (paragraph 45(d) of the Act). While inadmissibility decisions by the ID are generally appealable to the IAD, there are circumstances where they are not:
No appeal for inadmissibility
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.
Serious 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 six months or that is described in paragraph 36(1)(b) or (c).
[8] Before a removal order is enforced, a foreign national can apply for a pre-removal risk assessment (PRRA) (sections 112–113 of the Act). This process seeks to determine whether the removal of a person to their country of nationality would subject them to a danger of torture (paragraph 97(1)(a) of the Act), to a risk to their life or, in certain circumstances, to a risk of cruel and unusual treatment (paragraph 97(1)(b) of the Act).
[9] While section 48 of the Act directs that removal orders be enforced as soon as possible, the person concerned may request that it be deferred. CBSA retains a limited discretion to defer (Lewis v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 130, [2018] 2 F.C.R. 229 (Lewis), at paragraph 54).
[10] Of particular relevance in the present case is subsection 68(4) of the Act. This provision deals with the consequences, for a permanent resident found inadmissible on grounds of serious criminality or criminality, of being convicted of another offence referred to in subsection 36(1). It reads:
68 ….
Termination and cancellation
(4) If the Immigration Appeal Division has stayed a removal order against a permanent resident or a foreign national who was found inadmissible on grounds of serious criminality or criminality, and they are convicted of another offence referred to in subsection 36(1), the stay is cancelled by operation of law and the appeal is terminated.
[11] The facts of the case are briefly summarized by the Federal Court at paragraphs 5 to 10 of the decision below. It nonetheless bears mentioning the most salient of these facts.
[12] The appellant was born in Italy in 1969. When he was around nine months old, he immigrated to Canada with his parents and became a permanent resident of this country. He claims to have only returned to Italy once, for summer vacation when he was eight years old, and to have no family or friends in that country. He has a teenage daughter who resides in Canada. While he has spent fifty years in this country, the appellant has not applied for Canadian citizenship.
[13] The appellant has accrued a long criminal record since 1997. It consists mainly of theft, breaking and entering, and failure to comply with probation orders.
[14] On May 28, 2008, the appellant was convicted of several counts of theft and breaking and entering for acts committed at seniors’ residences in October and November 2007, while bound by a probation order prohibiting him from visiting any senior or long-term care facility. As a result, he was sentenced to two years’ imprisonment. The appellant challenged his sentence before the British Columbia Court of Appeal. He argued that his permanent resident status had not been brought to the attention of the trial judge, and that a two-year sentence would result, under the Act, in the loss of his right to appeal a deportation order. The appeal was allowed, and his sentence was reduced to two years less a day (R. v. Moretto, 2009 BCCA 139, [2009] B.C.W.L.D. 3281).
[15] On August 28, 2008, a CBSA officer made a report, under subsection 44(1) of the Act, finding that the appellant was inadmissible to Canada for serious criminality as defined by paragraph 36(1)(a) of the Act, based on the May 2008 convictions.
[16] On November 27, 2008, the delegate for the Minister referred the subsection 44(1) report to the ID for an admissibility hearing. On April 27, 2009, the ID found that the appellant was inadmissible on the ground of serious criminality and issued a deportation order.
[17] On May 31, 2010, the IAD dismissed the appeal brought by Mr. Moretto against the inadmissibility decision of the ID. Although the appellant had admitted to being inadmissible for serious criminality, he had sought a stay based on humanitarian and compassionate grounds. Before the IAD, he attributed his criminal behavior to mental health issues and addiction.
[18] On February 4, 2011, the Federal Court granted his application for judicial review of that decision and sent the matter back for re-determination (Moretto v. Canada (Citizenship and Immigration), 2011 FC 132, 96 Imm. L.R. (3d) 320). The Federal Court found that, in the course of its assessment of whether a removal order should be issued against the appellant, the IAD had misapprehended the evidence, particularly with respect to the hardship factor. The IAD was said not to have considered the fact the appellant was facing removal to Italy, a country he does not know, and that separation from his family could affect his ability to manage his mental health and addiction issues.
[19] On March 31, 2011, based on a joint recommendation of the parties, the IAD ordered that the ID’s removal order be conditionally stayed for three years. The conditions of the stay included that the appellant would not commit any criminal offences, that he would immediately report in writing any such criminal offences to the CBSA, and that he would make reasonable efforts to ensure that his mental illness and drug addiction would not endanger others.
[20] On January 22, 2014, the IAD issued the appellant a notice of reconsideration of stay, seeking a written statement of his compliance with his stay conditions. With the aid of counsel, the appellant reported that he had since been charged with four additional criminal offences, including three counts of theft under $5 000, breaking and entering, and breach of probation order.
[21] On May 6, 2015, the IAD held an oral hearing of the reconsideration of the stay of the removal order [Moretto v. Canada (Public Safety and Emergency Preparedness), 2015 CanLII 85511]. Based again on the joint recommendation of the parties, the IAD granted a further conditional stay of one year. In light of the less severe nature of the recent offences, of the appellant’s efforts toward rehabilitation, and of his personal circumstances, the IAD concluded that there were sufficient humanitarian and compassionate considerations to warrant the stay. The conditions imposed on him were similar to those of the first stay. The IAD warned the appellant that the stay would be cancelled if he was convicted of another serious offence.
[22] On February 22, 2016, the IAD notified the parties it would reconsider the appellant’s appeal on May 9, 2016, and asked for written submissions about the appellant’s compliance with the conditions of the second stay. In response, the appellant completed a form, dated March 5, 2016, stating that he had complied with these conditions. On June 2, 2016, Mr. Moretto was convicted of robbery, which qualifies as a “serious criminality” offence under paragraph 36(1)(a) of the Act.
II. Decision below
[23] On December 21, 2016, the IAD held that, as the appellant had again been convicted of a serious criminal offence under subsection 36(1) of the Act and sentenced to a 15-month prison sentence, subsection 68(4) of the Act applied to his case. The stay of the removal order was thus cancelled, and the appeal before the IAD terminated by operation of the law. In its reasons, the IAD ruled it did not have jurisdiction to consider the constitutionality of subsection 68(4). The appellant sought judicial review of the stay cancellation decision on the basis that subsection 68(4) of the Act unjustifiably infringes his rights under paragraph 2(d), and sections 7 and 12 of the Charter.
[24] On January 24, 2018, the Federal Court rendered its decision. Contrary to what was found in the companion case of Revell, the Judge held that the decisions of the Supreme Court in Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711, (1992), 90 D.L.R. (4th) 289 (Chiarelli) and Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539 (Medovarski) could be revisited. She nonetheless found that section 7 was not engaged on the facts of the case and that, in any event, any deprivation resulting from the removal process was consistent with the principles of fundamental justice (at paragraph 50). She likewise held that subsection 68(4) of the Act does not unjustifiably infringe rights under paragraph 2(d) and section 12 of the Charter.
III. Issues
[25] The present appeal raises a number of questions, which can be formulated as follows:
A. Is section 7 engaged when a permanent resident’s stay of removal is automatically cancelled pursuant to subsection 68(4) of the Act?
B. If so, would section 7 be engaged where the deprivation of the right to liberty and security of the person of a permanent resident arises from their uprooting, absent possible persecution or torture in the country of nationality?
C. Does the principle of stare decisis preclude this Court from reconsidering the findings of the Supreme Court of Canada in Chiarelli? In other words, have the criteria to depart from binding jurisprudence been met in the present case?
D. If so, is the impugned legislative scheme consistent with the principles of fundamental justice?
E. Does the impugned legislative scheme infringe upon the appellant’s rights under section 12 of the Charter?
F. Does subsection 68(4) of the Act violate paragraph 2(d) of the Charter?
G. Would these infringements be justified under section 1 of the Charter?
[26] I acknowledge that some of these questions have not been certified by the Federal Court. Nevertheless, they have all been argued by the parties and legitimately arise as a result of the Federal Court decision. As this Court has held in Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157, [2018] 2 F.C.R. 344, at paragraph 50: “[o]nce an appeal has been brought to this Court by way of certified question, this Court must deal with the certified question and all other issues that might affect the validity of the judgment under appeal” (see also Harkat (Re), 2012 FCA 122, [2012] 3 F.C.R. 635). Since the respondent does not dispute that the certified questions meet the test for a valid certification, I shall therefore address all the above-noted questions.
IV. Standard of review
[27] On appeal from a decision of the Federal Court sitting in judicial review of a decision of an administrative decision-maker, the applicable framework is that of Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paragraphs 45–47. This framework requires this Court to “step into the shoes” of the Federal Court to determine whether it identified the appropriate standard of review, and whether it applied this standard properly.
[28] The Judge was right to conclude, at paragraph 14 of her reasons, that the standard of review for constitutional questions is correctness (Tapambwa v. Canada (Citizenship and Immigration), 2019 FCA 34, [2020] 1 F.C.R. 699, 304 A.C.W.S. (3d) 376 (Tapambwa), at paragraph 30; Begum v. Canada (Citizenship and Immigration), 2018 FCA 181, [2019] 2 F.C.R. 488, 297 A.C.W.S. (3d) 622, at paragraph 36; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paragraph 58).
[29] Before moving on to the analysis of the merits, a preliminary matter must be considered.
V. Preliminary matter
[30] A peculiarity of the present case is that the administrative decision under review—the IAD’s decision to cancel the stay and dismiss the appeal—does not directly consider the central issue before this Court: does subsection 68(4) of the Act unjustifiably infringe the appellant’s Charter rights? This is because the IAD held that “[i]t is settled law that the IAD does not have jurisdiction to rule on the constitutionality of subsection 68(4) of the Act” (IAD reasons, at paragraph 6). Indeed, the appellant himself acknowledges so much in his representations to the IAD.
[31] The “settled law” to which the IAD refers appears to be based on the decision of Mactavish J. (as she then was) in Ferri v. Canada (Minister of Citizenship and Immigration), 2005 FC 1580, [2006] 3 F.C.R. 53 (Ferri). After a careful review of the Supreme Court jurisprudence with respect to the jurisdiction of specialized tribunals to hear and decide constitutional questions, she held (at paragraph 39) that the IAD did not have jurisdiction to consider the constitutionality of subsection 68(4) of the Act (Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570, (1990), 77 D.L.R. (4th) 94; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5, (1991), 3 O.R. (3d) 128 (Cuddy Chicks); Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22, (1991), 126 N.R. 1; Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, (1996), 140 D.L.R. (4th) 193; Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 S.C.R. 504).
[32] According to Justice Mactavish, the wording of subsection 68(4) limits the jurisdiction of the IAD to the determination of whether the factual requirements of the subsection have been met. In other words, the IAD loses jurisdiction over an individual once an affirmative answer is given to the following four questions:
1) Is the individual a foreign national or a permanent resident?
2) Has the individual previously been found to be inadmissible on grounds of serious criminality or criminality?
3) Has the IAD previously stayed a removal order in relation to that individual?
4) Has the individual been convicted of another offence referred to in subsection 36(1)?
While noting that a tribunal’s jurisdiction to decide questions of law concerning a provision is presumed to include the constitutional validity of that provision, she held that this presumption was rebutted in this case. The wording of subsection 68(4), according to Justice Mactavish, “clearly reflects Parliament’s intent to limit the jurisdiction of the IAD” (at paragraph 42).
[33] I note that this decision has since been relied upon by the Federal Court in several cases. See, for example: Benavides Livora v. Canada (Minister of Citizenship and Immigration), 2006 FC 104, 152 A.C.W.S. (3d) 489, at paragraph 10; Ramnanan v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FC 404, 166 A.C.W.S. (3d) 295 (Ramnanan), at paragraphs 29–36; Canada (Citizenship and Immigration) v. Bui, 2012 FC 457, [2013] 4 F.C.R. 520, 222 A.C.W.S. (3d) 769, at paragraph 31; Canada (Public Safety and Emergency Preparedness) v. Rasaratnam, 2016 FC 670, [2017] 1 F.C.R. 115, 268 A.C.W.S. (3d) 170, at paragraph 15; Singh v. Canada (Minister of Public Safety and Emergency Preparedness), 2018 FC 455, 294 A.C.W.S. (3d) 357, at paragraphs 41–43, 54–61).
[34] This holding also appears to have been consistently followed by the IAD itself. See, for example: Young v. Canada (Public Safety and Emergency Preparedness), 2016 CanLII 102941 (I.R.B.), at paragraph 2; Adil v. Canada (Public Safety and Emergency Preparedness), 2016 CanLII 73708 (I.R.B.), at paragraph 2; Smith v. Canada (Public Safety and Emergency Preparedness), 2006 CanLII 52281 (I.R.B.), at paragraphs 16–19; X (Re), 2014 CanLII 66637 (I.R.B.), at paragraph 21.
[35] Assuming that this line of cases represents an accurate statement of the law with respect to the jurisdiction of the IAD, the issue for this Court is whether the constitutionality of subsection 68(4) of the Act was properly raised before the Federal Court and is now properly before us. The Federal Court acknowledged that the IAD had declined jurisdiction to deal with the constitutional issue, but nevertheless decided to consider this question itself. Was it right to do so?
[36] The respondent has not challenged the appellant’s right to raise the constitutional issue either before the Federal Court or before this Court, and has not disputed that the certified questions meet the test for valid certification. Notwithstanding Ferri, I am of the view that the constitutional validity of subsection 68(4) of the Act was properly before the Federal Court and is now properly before us.
[37] In Ferri, at paragraph 48, the Federal Court made it clear that the applicant was not left without a forum in which to challenge the constitutionality of subsection 68(4) of the Act: “[i]t is entirely open to him”, said the Court, “to commence an action in this Court, seeking a declaration that the legislative provision in issue is unconstitutional. It would then also be open to [the appellant] to adduce the evidence before this Court that he believes will support his challenge”. In the case at bar, the proceedings have not been brought by way of an action pursuant to section 17 of the Federal Courts Act, R.S.C., 1985, c. F-7, as contemplated in Ferri. Rather, the appellant commenced these proceedings under sections 18 and 18.1. Specifically, he applied for judicial review of the IAD’s decision, asking the Court to quash it and declare subsection 68(4) of the Act constitutionally invalid.
[38] At first sight, it appears that the Federal Court’s decision to consider the appellant’s constitutional argument conflicts with its own jurisprudence. I am nevertheless loath to conclude that the Federal Court was not entitled to consider the issue on judicial review, even though the IAD had declined jurisdiction to do so. The Federal Court and this Court have implicitly recognized in a number of decisions the authority of the former, on an application for judicial review, to issue a declaration that a statutory provision is in breach of the Charter even though the issue had not been dealt with by the administrative decision maker itself. (See Ramnanan, at paragraph 55; Atawnah v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 144, [2017] 1 F.C.R. 153, 397 D.L.R. (4th) 177; Jodhan v. Canada (Attorney General), 2012 FCA 161, [2014] 1 F.C.R. 185, 215 A.C.W.S. (3d) 847; Bilodeau-Massé v. Canada (Attorney General), 2017 FC 604, [2018] 1 F.C.R. 386, 140 W.C.B. (2d) 168.)
[39] Before turning to the substantive issues raised in this appeal, I pause to make this final comment. I do not wish to be understood as endorsing the reasoning developed in Ferri with respect to the jurisdiction of the IAD to entertain a constitutional argument. There is no doubt in my mind, and it was accepted by the Federal Court, that the IAD is presumptively clothed with this jurisdiction. Subsection 162(1) of the Act confers upon each division of the Refugee Board the power to consider all questions of law, including ones of jurisdiction. Further, paragraph 3(3)(d) of the Act requires that the Act be construed in a manner that ensures decisions taken under its purview are made in a manner that is consistent with the Charter. Finally, rule 47 of the Immigration Division Rules, SOR/2002-229 specifically addresses the procedure for challenging the constitutional validity, applicability or operability of any legislative provision under the Act. When these three provisions are read together, it appears that the statutory scheme as a whole militates in favour of the IAD having jurisdiction to consider the constitutionality of subsection 68(4) of the Act.
[40] Moreover, to require that the IAD apply a provision without giving it the power to determine that provision’s constitutionality would appear to run counter to each and every policy consideration identified in the Cuddy Chicks trilogy. More specifically, it goes against the principle that invalid laws should not be applied and that rights should be assertable in the most accessible forum available. It also deprives the courts of the benefit of having constitutional questions determined by expert administrative tribunals in the very environment in which the law operates. (See, by way of analogy, Stables v. Canada (Citizenship and Immigration), 2011 FC 1319, [2013] 3 F.C.R. 240, 2009 A.C.W.S. (3d) 637 (Stables), at paragraphs 27–29.)
[41] Can it be said, however, that this presumption is rebutted by the express wording of subsection 68(4)? Or that this express wording “clearly reflects” Parliament’s intent to limit the jurisdiction of the IAD and to deprive it of the jurisdiction to determine the constitutionality of subsection 68(4)? In my view, the issue deserves to be fully canvassed with the benefit of fulsome arguments by the parties involved. In the absence of such arguments, it is preferable to leave it for another day.
VI. Analysis
A. Is section 7 engaged at the stage where a permanent resident’s stay of removal is automatically cancelled pursuant to subsection 68(4) of the Act?
[42] The appellant submits that the Judge’s determination that section 7 cannot be engaged at this stage is erroneous, as it immunizes the process leading up to deportation from scrutiny. He says that in this case, there are no remaining steps between the operation of subsection 68(4) of the Act and his removal: his PRRA was denied, his humanitarian and compassionate (H&C) application is not a bar to removal, and the discretion left to enforcement officers at the removal stage is highly limited. The appellant further argues that this approach runs counter to the Supreme Court’s holding in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 (Bedford) that, for section 7 of the Charter to be engaged, only a “sufficient causal connection” needs to be shown between the state-caused effect and the prejudice allegedly suffered. It is also said to run counter to case law in criminal and extradition law, where section 7 is engaged from the start.
[43] In my view, the Judge was right to note that there is extensive case law establishing that an inadmissibility finding is distinct from effecting removal and that, as other steps remain in the process, it does not engage section 7 of the Charter (F.C. reasons, at paragraphs 24, 43 and 47–48). (See Tapambwa, at paragraph 81; B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704 (B010), at paragraph 75; Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431 at paragraph 67; Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85, [2005] 3 F.C.R. 487, at paragraph 63; J.P. v. Canada (Public Safety and Emergency Preparedness), 2013 FCA 262, [2014] 4 F.C.R. 371, 235 A.C.W.S. (3d) 460, at paragraphs 123 and 125, revd on other grounds in B010; Torre v. Canada (Citizenship and Immigration), 2016 FCA 48, 263 A.C.W.S. (3d) 729, at paragraph 4, leave to appeal [to S.C.C.] refused [[2016] 1 S.C.R. xviii], 36936 (25 August 2016).)
[44] The appellant raised essentially the same arguments as in Revell, and my reasoning as set out in paragraphs 35 to 57 of that case therefore applies similarly in the case at bar. The impugned provision, subsection 68(4) of the Act, mandates a finding of inadmissibility by lifting the IAD’s conditional stay of the ID’s inadmissibility decision. In this respect, the Judge was right to conclude that this case concerns the admissibility determination stage, not removal arrangements. In the specific circumstances of this case, the appellant may still apply for a section 24 exceptional temporary resident permit allowing him to remain in Canada for a finite period of time, or he may seek a deferral of removal at a later stage of his deportation process. This is not to mention that, unlike the appellant in the case of Revell, Mr. Moretto can apply for a section 25 exemption from inadmissibility on humanitarian and compassionate grounds.
B. If so, would section 7 be engaged where the deprivation of the right to liberty and security of the person of a permanent resident arises from their uprooting from Canada, and not from possible persecution or torture in the country of nationality?
[45] The appellant claims that as subsection 68(4) of the Act renders his deportation order enforceable, it engages his liberty and security interests under section 7 of the Charter. With respect to liberty, he argues that his deportation would deprive him of a fundamental life choice, that of not being uprooted from the country he calls home and from his family and medical networks. As for his security interests, he says that they are engaged by the psychological harm associated with his deportation from Canada, i.e. the consequences of his uprooting. He relied in this respect on the evidence detailing his psychological frailty, his need for family support, and the harm that would arise if he were removed from Canada.
[46] For the most part, the legal framework and analysis that I have set out in paragraphs 64 to 79 of my reasons in the case of Revell applies equally in this case.
[47] In my view, the Judge was right to rely on Medovarski to find that the deportation of a non-citizen does not, in itself, implicate the liberty interests protected by section 7 of the Charter. The appellant has not demonstrated, nor really argued before this Court, that the consequences of his deportation on his liberty interests are more significant than the ones generally associated with deportation, which consequences have been found not to engage section 7. The limits that would be imposed on the appellant’s ability to make a choice about where to live are no greater, in my view, from the ones imposed on the claimant’s ability, in Medovarski, to choose “to remain with her partner” in Canada. This case is thus dispositive.
[48] As in the case of Revell, I would be inclined, were it not for the decision of Medovarski, to conclude that the impugned state action in the present case does have a serious enough effect on the appellant’s psychological integrity to engage his security interests under section 7.
[49] The evidence on record shows that the appellant has lived in Canada for 50 years, that he is not fluent in Italian, and that he has essentially no connection to medical or social supports in Italy (appeal book, at pages 53 and 338). It also shows that he has struggled with addiction and mental health issues for some time (appeal book, at pages 50–52, 340, 342, 345 and 356–357), and that he relies a lot on his family in Canada for emotional, financial and psychological support (appeal book, at pages 337, 340–341, 345–346 and 1189). The evidence, notably that of psychologists, also indicates that deportation would have significant negative emotional consequences on the appellant (appeal book, at pages 360, 1190 and 1203–1204). The clearest evidence of that is found in the report of Dr. Williams, which reads:
Mr. Moretto is quite horrified at the prospect of being deported to Italy. On the basis of the present assessment, there can be no doubt that his enforced separation from his family and from the familiarity of Canada would be devastating to him. As discussed above, at the best of times his coping resources are limited, and his tolerance to stress and his ability to function autonomously are tenuous. Extrapolating from this, almost certainly his deportation to Italy, where he would have minimal or no supports and would be deprived of direct contact with known family members, would expedite his psychological deterioration, incapacitation, and gravitation toward passive and/or active patterns of self-destructive behaviour; as such, it would likely represent a life-shortening event for him.
(Report of Dr. Karl Williams (10 July 2017), appeal book, at page 360.)
[50] The report of Dr. Peter Hotz reaches a similar conclusion. He states in his psychological opinion:
Mr. Moretto is completely dependent on his family in Vancouver, and I am of the opinion that were he to be deported, his dysfunctional coping skills would be profound. In fact I cannot see him managing, his loneliness would be profound, and I would think it highly likely that depression would likely worsen and that he would have no ability to manage at all.
I cannot predict specifics of changed mental status, but I would be of the opinion that were he to be deported, current symptomatology would worsen markedly.
(Report of Dr. Peter Hotz (23 March 2014), appeal book, at page 1190.)
[51] In light of the above, I accept that the harms alleged here are far greater than the “ordinary stresses and anxieties that a person of reasonable sensibility would suffer as a result of government action”, which the Supreme Court excluded from the ambit of the right to security of the person in New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, 177 D.L.R. (4th) 124 (G. (J.)), at paragraph 59. There is evidence on record (contrary to the situation in Stables, at paragraph 42) that Mr. Moretto’s removal would have a profound and serious impact on his psychological integrity, which need not rise to the level of nervous shock or psychiatric illness to offend section 7 of the Charter, as the Supreme Court cautioned in G. (J.), at paragraph 60.
[52] That being said, in light of Medovarski I am nevertheless unable to find in favour of Mr. Moretto. While the evidence here is stronger than in Revell, notably because of the mental health and addiction issues faced by the appellant, I have not been convinced that the consequences of removal for him rise beyond the “typical” ones associated with this procedure. After all, the Supreme Court stated in that case that deportation of a non-citizen in itself cannot implicate the liberty and security interests protected by section 7 of the Charter, since such a protection would negate Canada’s right to decide who it will allow to remain in its territory. As this Court stated in Lewis, at paragraph 63:
It is convenient to first address the Charter argument as it may be disposed of quickly. The starting point for the discussion is what the respondent terms a “foundational principle in the immigration context”… namely, that section 7 of the Charter does not prevent the removal of non-citizens from Canada if those being removed will not upon return to their country of origin face risks of the sort that would qualify for protection under section 97 of the IRPA…. As there is no suggestion that Mr. Lewis would face any such risk, his section 7 Charter rights are not impacted by the removal order. In short, his constitutionally protected rights to life, liberty and security of the person will not be impacted if he is returned to Guyana.
[53] In any event, even assuming if the appellant had shown a deprivation of his security interest, I would still find, for the reasons below, that the deprivation accords with fundamental justice.
C. Does the principle of stare decisis preclude this Court from reconsidering the findings of the Supreme Court of Canada in Chiarelli? In other words, have the criteria to depart from binding jurisprudence been met in the present case?
[54] In the appellant’s view, the Judge was right to conclude that, in light of the developments in the law related to fundamental justice under section 7 of the Charter, the threshold to revisit Chiarelli was met. The appellant argues that there have been developments in the concepts of “gross disproportionality” and “overbreadth” as principles of fundamental justice, and that these concepts require an individualized assessment of the impact of the impugned law on the rights bearer, which he says the Court did not undertake in Chiarelli. The appellant also says that the Court in Chiarelli considered societal interests in its section 7 analysis, which, he says, is inconsistent with modern case law. The appellant also points to developments in international law in support of his position.
[55] These arguments are essentially the same as those raised in the companion case of, Revell. For the reasons set out at paragraphs 80 to 106 of that case, I am of the view that the appellant’s arguments must be rejected.
[56] Before moving on to the next question, one last comment is in order with respect to stare decisis. The Judge held that the appellant’s raising of a new Charter provision, namely paragraph 2(d), also weighed in favour of revisiting Chiarelli and Medovarski (F.C. reasons, at paragraph 34). With respect, this conclusion is mistaken.
[57] While it is true that the Supreme Court held, in Bedford, that a “judge can consider and decide arguments based on Charter provisions that were not raised in the earlier case”, as this “constitutes a new legal issue” (at paragraph 42), this is in no way a relevant factor as to whether an earlier case should be revisited. If the earlier case did not deal with a provision, there is no need to “revisit” it in this regard. The fact that a new Charter provision is raised to challenge the validity of a legislative scheme has no bearing on whether precedents concerning other Charter provisions should be reconsidered.
[58] If I were to find that the appellant’s right to security of the person was engaged at the inadmissibility determination stage and that this Court is free to revisit the Supreme Court’s decision in Chiarelli, the next question would be whether the impugned legislative scheme is nonetheless consistent with the principles of fundamental justice.
D. If so, is the impugned legislative scheme consistent with the principles of fundamental justice?
[59] Counsel for Mr. Moretto, like counsel for Mr. Revell, submits that it would be grossly disproportionate to apply subsection 68(4) of the Act to his client, and that the Judge failed to conduct the individualized assessment that section 7 of the Charter requires. According to counsel, the prior procedures which the Judge characterized as “safety valves” and which have allowed Mr. Moretto’s circumstances to be taken into consideration are irrelevant to this challenge, since subsection 68(4) takes away any further opportunity to explain his circumstances to a decision maker.
[60] In my view, this argument is flawed for the reasons already provided in Revell, at paragraphs 107 to 122. Mr. Moretto has not demonstrated that the Judge erred. Lifting the conditional stay of an ID inadmissibility decision and terminating the IAD appeal in circumstances where a non-citizen has been convicted of a further serious crime is neither overbroad nor grossly disproportionate. The underlying purpose of subsection 68(4) is to allow for the prompt removal of dangerous criminals who continue to commit serious criminal offences after being given a second chance. It is in light of this purpose that overbreadth and gross disproportionality have to be considered.
[61] Even assuming that section 36 of the Act could cover conduct that bears no relation to its purpose, the numerous processes provided for by the Act to assess admissibility save it from any charge of overbreadth by effectively narrowing its scope. To repeat, these provisions include the section 44 referral process, the H&C application under section 25, the pre-removal risk assessment and the possibility of a deferral of removal.
[62] In the case at bar the appellant’s circumstances—the nature of his criminal convictions and his risk of reoffending, as well as his deep roots in Canada, his family situation, his addiction and mental health issues, and the impact removal may have on him—were considered extensively at the report and referral stage. In addition, the appellant benefitted from a quasi-judicial hearing before the ID to address the merits of the inadmissibility allegations. Mr. Moretto was then allowed to appeal that decision to the IAD and to seek a stay based on the IAD’s humanitarian and compassionate jurisdiction. The Federal Court then granted Mr. Moretto’s judicial review application and set aside the negative IAD decision, and upon redetermination the IAD ordered the ID’s removal order be conditionally stayed for three years.
[63] Upon reconsideration of the stay of the removal order, the IAD granted a further conditional stay of one year despite Mr. Moretto breaching the stay of conditions and having been convicted of four criminal offences between March 2012 and February 2014. In coming to this conclusion, the IAD again examined the specific circumstances of the appellant and summarized what it deemed to be relevant considerations in deciding whether it should exercise its authority to grant special relief under sections 67 and 68 of the Act [2015 CanLII 85511, at paragraph 7]:
These factors are the seriousness of the offence or offences leading to the removal order, the possibility of rehabilitation, the length of time the appellant has been in Canada and the degree to which the appellant is established, the impact the appellant’s removal from Canada would have on members of the appellant’s family, the appellant’s family in Canada, and the dislocation to that family that the removal of the appellant would cause, the support available for the appellant not only within the family but also within the community and the degree of hardship that would be caused to the appellant by his return and the hardship the appellant would face in the country to which he would likely be removed.
[64] In light of the above, the appellant cannot claim that his personal circumstances were not considered. Throughout the various stages of the process, the appellant was provided with several chances to remain in Canada based on an individualized assessment of his particular situation. I agree with the Judge that the appellant had access to the “full spectrum of individualized processes” within the Act’s broader inadmissibility scheme before the automatic operation of subsection 68(4). It would be a mistake to focus entirely on this last provision, as it is but one process in a complex, multi-tiered inadmissibility determination and removal regime.
[65] Moreover, even at this late stage, Mr. Moretto can still avail himself of a few more processes to avoid being removed. These include applying to remain in Canada on humanitarian and compassionate grounds under section 25 of the Act, applying for both a temporary resident permit and a pre-removal risk assessment, and requesting to defer removal. All of these processes are subject to judicial review by the Federal Court. They are “safety valves” that ensure against any gross disproportionality and overbreadth. The system as a whole is replete with meaningful opportunities for an individual’s situation to be considered, in order to mitigate the rigidity of the law and avoid unconstitutional results.
[66] The appellant was given several chances to remain in Canada based on an individualized assessment of his personal circumstances. Yet, he has continued to violate the essential condition of his right to remain in Canada that he not engage in serious criminality. In this context, I find that there is nothing draconian or “out of sync” about giving effect to the appellant’s obligation to behave lawfully while in Canada by lifting the stay of removal and rendering him inadmissible to Canada. The impact of subsection 68(4), at least in the particular circumstances of this case, is not grossly disproportionate to its objective.
E. Does the impugned legislative scheme infringe upon the appellant’s rights under section 12 of the Charter?
[67] For the same reasons as those set out in paragraphs 123 to 137 of Revell, I find that the Judge was correct to conclude that section 12 was not engaged in this case.
F. Does subsection 68(4) of the Act violate paragraph 2(d) of the Charter?
[68] The appellant reiterates the claim, rejected by the Judge, that the impugned scheme infringes his paragraph 2(d) Charter right as the effect of his deportation would be to sever his association with his family. He argues, referring to international norms, that the family unit is the “foundational social institution”, and that it should thus enjoy Charter protection. While undoubtedly creative, these submissions must fail.
[69] In the Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, (1987), 38 D.L.R. (4th) 161 (Alberta Reference), Justice McIntyre, writing for himself, explained why institutions like the family do not fall easily under the rubric of paragraph 2(d) (at paragraph 173 [page 406 of S.C.R.]):
…The purpose of freedom of association is to ensure that various goals may be pursued in common as well as individually. Freedom of association is not concerned with the particular activities or goals themselves; it is concerned with how activities or goals may be pursued. While activities such as establishing a home, pursuing an education, or gaining a livelihood are important if not fundamental activities, their importance is not a consequence of their potential collective nature. Their importance flows from the structure and organization of our society and they are as important when pursued individually as they are when pursued collectively.
[70] It is true that the jurisprudence of the Supreme Court has evolved towards a more generous interpretation of paragraph 2(d) of the Charter. Recent cases have departed from the view adopted in what has come to be known as the Labour Trilogy (the Alberta Reference; PSAC v. Canada, [1987] 1 S.C.R. 424, (1987), 38 D.L.R. (4th) 249; and RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460, (1987), 8 D.L.R. (4th) 277). Under the old view, freedom of association protects a right to engage collectively in activities that are constitutionally protected for each individual. Today, the Supreme Court espouses the broader view that Chief Justice Dickson put forward in dissent. It is now beyond dispute that freedom of association protects not only the right to join with others and form associations (the “constitutive” approach) and the right to join with others in the pursuit of other constitutional rights (the “derivative” approach), but also the right to join with others to meet on more equal terms the power and strength of other groups or entities (the “purposive” approach). (For a good recapitulation of that evolution, see Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3 (MPAO), at paragraphs 52–66.)
[71] Broadening the scope of paragraph 2(d) had a major impact on the right to collective bargaining, but there is no indication that the “voluntariness” aspect of that right has been cast aside, nor that the above-quoted excerpt of Justice McIntyre has lost its currency. It would appear, on the contrary, that family relationship has little (if anything) in common with the underlying purpose of freedom of association as re-articulated by the Supreme Court in MPAO, at paragraph 58:
This then is a fundamental purpose of s. 2(d) — to protect the individual from “state-enforced isolation in the pursuit of his or her ends”: Alberta Reference, at p. 365. The guarantee functions to protect individuals against more powerful entities. By banding together in the pursuit of common goals, individuals are able to prevent more powerful entities from thwarting their legitimate goals and desires. In this way, the guarantee of freedom of association empowers vulnerable groups and helps them work to right imbalances in society. It protects marginalized groups and makes possible a more equal society.
[72] The appellant was unable to refer the Court to a single case where family relationship was recognized as falling within the ambit of freedom of association. In fact, the jurisprudence has consistently and unanimously found the opposite. The decision of the Court of Appeal of Ontario in Catholic Children’s Aid Society of Metropolitan Toronto v. S. (1989), 69 O.R. (2d) 189, 60 D.L.R. (4th) 397 provides a good illustration. Holding that provisions requiring a termination of access by birth parents upon placement for adoption do not violate paragraph 2(d) of the Charter, the Court wrote (at paragraph 41):
The freedom of assembly and association are necessarily collective and so mostly public. Our constitutional concerns have not been with assemblies within families or associations between family members. Rather, the protections we have been concerned with are for those assemblies and associations that take us outside the intimate circle of our families. The family is a collective, but the desire of one family member to associate with another is not so much for the purpose of pursuing goals in common, nor even pursuing activities in common…, as it is merely because they are members of a family. A parent and child may associate for an economic goal, for example, but the motivation comes from their relationship, rather than a relationship being created because of the economic motivation. The desire of a parent to be with a child has no goal or purpose like that of associations for economic, political, religious, social, charitable or even entertainment purposes. If it has any purpose it is that of loving or being loved, of comforting and protecting or being comforted and protected.
[73] In addition to several first-instance courts, appellate courts in both Quebec and Alberta have relied on this decision to conclude that the right to freedom of association does not apply to association of family members (See Droit de la famille - 1741, [1993] R.J.Q. 647, at pages 23–24, 38 A.C.W.S. (3d) 315 (C.A.), leave to appeal to S.C.C. refused [[1993] 2 S.C.R. vi] (21 May 1993); L.C. v. Alberta, 2010 ABCA 14, 316 D.L.R. (4th) 760, at paragraph 20.) The appellant has not convinced me that the recent paragraph 2(d) case law mandates departing from this reasoning.
[74] Finally, I cannot accept the appellant’s arguments based on international law. It is true that the human rights instruments to which Canada is a party, such as the International Covenant on Civil and Political Rights, December 19, 1966, [1976] Can. T.S. No. 47 (ICCPR), can serve as interpretative tools in delineating the breadth and scope of Charter rights (Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R. 176 (Kazemi), at paragraph 150). However, for international norms to be relevant in this manner, the international obligation invoked and the Charter right at issue must at least be conceptually similar. As the Supreme Court clearly noted in Kazemi, the Charter is understood to “provide protection at least as great as that afforded by similar provisions in international human rights documents to which Canada is a party” Kazemi, at paragraph 150; emphasis added).
[75] Articles 17 and 23 of the ICCPR expressly protect the right to family life and privacy. As was acknowledged by the appellant, the Charter does not explicitly contain such a right. The idea that the right to freedom of association in paragraph 2(d) of the Charter should be interpreted in light of international protections that bear no connection to that right is without merit. It should also be noted that Article 22 of the ICCPR, which, like paragraph 2(d) of the Charter, is concerned with the right to “freedom of association”, has been interpreted as not extending to association with family members. (See, on this question, Sarah Joseph, Jenny Schultz, and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary, 2nd ed. (Oxford: Oxford University Press, 2004), at pages 575–576.)
G. Would these infringements be justified under section 1 of the Charter?
[76] Having found that the appellant has not been subjected to any infringement of his rights under paragraph 2(d), sections 7 or 12 of the Charter, it is not necessary to consider the section 1 analysis.
VII. Conclusion
[77] For all of the above reasons, I would dismiss the appeal. The parties have not sought costs, and therefore none will be awarded.
[78] I would answer the certified questions as follows:
Question 1:
Is section 7 engaged at the stage of determining whether a permanent resident’s stay of removal is automatically cancelled pursuant to subsection 68(4) and if so, would section 7 be engaged where the deprivation of the right to liberty and security of the person of a permanent resident arises from their uprooting from Canada, and not from possible persecution or torture in the country of nationality?
Answer to Question 1:
The cancellation of the stay of an ID’s inadmissibility determination pursuant to subsection 68(4) of the IRPA does not engage section 7 of the Charter, and even if it does, the deportation of the appellant in the specific circumstances of this case would not infringe his section 7 right to liberty or security.
Question 2:
Does the principle of stare decisis preclude this Court from reconsidering the findings of the Supreme Court of Canada in Chiarelli, which established that the deportation of a permanent resident who has been convicted of serious criminal offence, despite that the circumstances of the permanent resident and the offence committed may vary, is in accordance with the principles of fundamental justice. In other words, have the criteria to depart from binding jurisprudence been met in the present case?
Answer to Question 2:
The criteria to depart from binding jurisprudence have not been met in the present case, and this Court is therefore bound to conclude that subsection 68(4) of the IRPA is consistent with section 7 of the Charter.
Question 3:
Is a section 12 determination premature at the stage where a permanent resident’s stay of removal is automatically cancelled pursuant to subsection 68(4)?
Answer to Question 3:
For the same reasons already given in the context of section 7, it is premature to determine whether deportation infringes section 12 at the stage where a stay of removal is cancelled.
Stratas J.A.: I agree.
Near J.A.: I agree.