Preclaro v. Canada (Minister of Citizenship and Immigration), 2005 FC 1063

[17]                        Sections 1 and 7 of the Charter of Rights and Freedoms states:

Analysis and Decision

[18]                        As noted earlier, the applicant is not pursuing Issue 1.

[19]                        Issue 2

Did the Board err in law in applying paragraph 117(9)(d) of the Regulations -a section which conflicts section 7 of the Charter?

The applicant has submitted that the IRPA Regulation 117(9)(d) violates section 7 of the Charter and is thus, unconstitutional. The applicant stated that her right to liberty has been engaged. The particular liberty that she has been deprived of is her fundamental personal right of family unification, i.e., the right to be reunited with her son.

[20]                        The Supreme Court of Canada in Blencoe, supra, at paragraph 47 stated:

Section 7 of the Charter provides that "[e]veryone 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."    Thus, before it is even possible to address the issue of whether the respondent's s. 7 rights were infringed in a manner not in accordance with the principles of fundamental justice, one must first establish that the interest in respect of which the respondent asserted his claim falls within the ambit of s. 7. These two steps in the s. 7 analysis have been set out by La Forest J. in R. v. Beare,[1988] 2 S.C.R. 387, at p. 401, as follows:

To trigger its operation there must first be a finding that there has been a deprivation of the right to "life, liberty and security of the person" and secondly, that the deprivation is contrary to the principles of fundamental justice.

Thus, if no interest in the respondent's life, liberty or security of the person is implicated, the s. 7 analysis stops there. It is at the first stage in the s. 7 analysis that I have the greatest problem with the respondent's s. 7 arguments.

[21]                        The Supreme Court of Canada has also outlined the meaning of the word "liberty" as used in section 7 of the Charter. In Blencoe, supra, the Court stated at paragraphs 49 to 54:

The liberty interest protected by s. 7 of the Charter is no longer restricted to mere freedom from physical restraint. Members of this Court have found that "liberty" is engaged where state compulsions or prohibitions affect important and fundamental life choices. This applies for example where persons are compelled to appear at a particular time and place for fingerprinting (Beare, supra); to produce documents or testify (Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425); and not to loiter in particular areas (R. v. Heywood, [1994] 3 S.C.R. 761). In our free and democratic society, individuals are entitled to make decisions of fundamental importance free from state interference. In B. (R.) v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, at para. 80, La Forest J., with whom L'Heureux-Dubé, Gonthier and McLachlin JJ. agreed, emphasized that the liberty interest protected by s. 7 must be interpreted broadly and in accordance with the principles and values underlying the Charter as a whole and that it protects an individual's personal autonomy:

. . . liberty does not mean mere freedom from physical restraint. In a free and democratic society, the individual must be left room for personal autonomy to live his or her own life and to make decisions that are of fundamental personal importance.

In R. v. Morgentaler, [1988] 1 S.C.R. 30, Wilson J., speaking for herself alone, was of the opinion that s. 251 of the Criminal Code violated not only a woman's right to security of the person but her s. 7 liberty interest as well. She indicated that the liberty interest is rooted in fundamental notions of human dignity, personal autonomy, privacy and choice in decisions regarding an individual's fundamental being. She conveyed this as follows, at p. 166:

Thus, an aspect of the respect for human dignity on which the Charter is founded is the right to make fundamental personal decisions without interference from the state.    This right is a critical component of the right to liberty. Liberty, as was noted in Singh, is a phrase capable of a broad range of meaning. In my view, this right, properly construed, grants the individual a degree of autonomy in making decisions of fundamental personal importance.

The above passage was endorsed by La Forest J. in B. (R.), supra, at para. 80. This Court in B. (R.) was asked to decide whether the s. 7 liberty interest protects the rights of parents to choose medical treatment for their children. The above passage from Wilson J. was applied by La Forest J. to individual interests of fundamental importance in our society such as the parental interest in caring for one's children.

In Godbout v. Longueuil (City), [1997] 3 S.C.R. 844, at para. 66, La Forest J., writing for L'Heureux-Dubé J. and McLachlin J. (as she then was), reiterated his position that the right to liberty in s. 7 protects the individual's right to make inherently private choices and that choosing where to establish one's home is one such inherently personal choice:

The foregoing discussion serves simply to reiterate my general view that the right to liberty enshrined in s. 7 of the Charter protects within its ambit the right to an irreducible sphere of personal autonomy wherein individuals may make inherently private choices free from state interference. I must emphasize here that, as the tenor of my comments in B. (R.) should indicate, I do not by any means regard this sphere of autonomy as being so wide as to encompass any and all decisions that individuals might make in conducting their affairs. Indeed, such a view would run contrary to the basic idea, expressed both at the outset of these reasons and in my reasons in B. (R.), that individuals cannot, in any organized society, be guaranteed an unbridled freedom to do whatever they please. Moreover, I do not even consider that the sphere of autonomy includes within its scope every matter that might, however vaguely, be described as "private". Rather, as I see it, the autonomy protected by the s. 7 right to liberty encompasses only those matters that can properly be characterized as fundamentally or inherently personal such that, by their very nature, they implicate basic choices going to the core of what it means to enjoy individual dignity and independence. As I have already explained, I took the view in B. (R.) that parental decisions respecting the medical care provided to their children fall within this narrow class of inherently personal matters. In my view, choosing where to establish one's home is, likewise, a quintessentially private decision going to the very heart of personal or individual autonomy. [Emphasis added.]

La Forest J. therefore spoke in Godbout of a narrow sphere of inherently personal decision-making deserving of the law's protection. Choosing where to establish one's home fell within that narrow class according to three members of this Court.

Dissenting at the New Brunswick Court of Appeal in G. (J.), I also favoured a more generous approach to the liberty interest that would protect personal rights that are inherent to the individual and consistent with the essential values of our society (New Brunswick (Minister of Health and Community Services) v. J.G. (1997), 187 N.B.R. (2d) 81, at para. 49). In this vein, the parental interest in raising and caring for one's children would be protected. I however agreed with La Forest J.'s caution that the liberty interest would encompass only those decisions that are of fundamental importance.

Professor Hogg, supra, at p. 44-9, supports a more cautious approach to the interpretation of s. 7 such that s. 7 does not become a residual right which envelopes all of the legal rights in the Charter. Professor Hogg also addresses the deliberate omission of "property" from "life, liberty and security of the person" in s. 7, and states, at p. 44-12:

It also requires . . . that those terms [liberty and security of the person] be interpreted as excluding economic liberty and economic security; otherwise, property, having been shut out of the front door, would enter by the back.

Although an individual has the right to make fundamental personal choices free from state interference, such personal autonomy is not synonymous with unconstrained freedom. In the circumstances of this case, the state has not prevented the respondent from making any "fundamental personal choices". The interests sought to be protected in this case do not in my opinion fall within the "liberty" interest protected by s. 7.

[22]                        In the present case, the applicant argued that her fundamental personal choice to be reunited with her son has been engaged because she can not sponsor her son due to the operation of Regulation 117(9)(d). This regulation applies to the applicant because she failed to disclose the fact that she was married and had children. Regulation 117(9)(d) only applies to exclude the applicant's son from the family class because she failed to disclose the evidence of her son when she made her application for permanent residence, causing him not to be examined at that time.

[23]                        The sections of IRPA governing the sponsorship of a family member provide a means, when a person meets the requirements of these provisions, to enter Canada. There are other ways for a foreign national to enter Canada. In the present case, the state did not prevent the applicant from making any fundamental personal choice. The applicant made a decision not to include her son on her application for permanent residence and as a result, she does not qualify to sponsor him to enter Canada as a member of the family class. In my view, this does not engage the liberty interest under section 7 of the Charter.

[24]                        In the alternative, if the applicant's section 7 liberty rights have been engaged, I will now analyze whether the applicant's rights were infringed in a manner not in accordance with the principles of fundamental justice.

[25]                        The applicant argued that the application of the section breaches fundamental justice for two reasons: (1) the section is overly broad; and (2) the section is inconsistent with the basic tenets of our legal system which provides for an assessment of the best interests of the children before any decision impacting on them is made and with the principles of family unit.

[26]                        Overbreadth and Arbitrariness

The applicant submitted that Regulation 117(9)(d) is overbroad and arbitrary because it applies whether or not an applicant intended to conceal the inadmissibility of family members or to insure the applicant's own admissibility. The regulation applies irrespective of fault. As well, the regulation imposes a lifetime prohibition and there is no provision for notice to an applicant of the ban.

[27]                        In DeGuzman v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1557 (QL), Kelen J. stated at paragraph 67:

The applicant submits that her liberty and security interests have been deprived without complying with the principles of fundamental justice. On May 13, 2004 the IAD decided a similar case. In Gloria Samosa v. Minister of Citizenship and Immigration, [2004] I.A.D.D. No. 271, IAD File No. VA2-02990, panel member, Kim Workun, reviewed the purpose, importance and rationale for requiring applicants disclose all members of their "family class". The principle of family reunification requires that immigration authorities assess the family as a whole and the eligibility of each member who is seeking admission to Canada or may, in the future, seek admission in the preferred family class category. The IAD stated at paragraph 30:

[. . .] The required accurate disclosure goes to the heart of the integrity of the system.

[28]                        The applicant argued that the regulation catches more people than necessary because it catches people such as her who would gain no benefit with respect to admissibility by non-disclosure of family members. A review of the applicant's affidavit reveals the following at paragraph 2:

I married in 1972 in the Philippines. When I applied for my work permit and then my landing, I did not disclose this to Canada Immigration. Nor did I disclose that I had 3 children at the time. I did not disclose this information because the agent in Singapore who I had paid to obtain my papers for Canada told me that I should not disclose the information about my family. She told me that if I did disclose the fact that I had a husband and 3 children, I would be refused. I followed this advice. . . .

[29]                        I agree that the integrity of the system is important and authorities must be able to rely on the truthfulness of information contained in an applicant's application for entry into Canada. Consequently, I do not believe that the regulation is overly broad for this reason.

[30]                        The applicant also stated that the regulation is overly broad because of lack of notice to the applicant and because it provides a lifetime prohibition. I do not agree that the regulation provides a lifetime ban as the sponsorship route is only one way that a foreign national can enter Canada. There are other routes under IRPA that can be used by the applicant.

[31]                        Does not comply with fundamental justice because it does not comply with the basic tenets of our legal system

The applicant submitted that the basic tenets of our legal system are enforced by international human rights law and our domestic common law and cited the Convention on the Rights of the Child, other international agreements and the Baker, supra, case. She submitted that Regulation 117(9)(d) does not include the values enumerated therein in that the best interests of the child are not part of the process under the regulation. In De Guzman, supra, Kelen J. stated at paragraphs 53 to 55:

I have concluded that subsection 3(3)(f) of IPRA codifies the common law canon of statutory construction that domestic law should be interpreted to reflect the values contained in international human rights conventions to which Canada has ascribed. In Baker, supra the Supreme Court held at paragraph 70 that the human rights values in these international conventions "help inform the contextual approach" which the Court should incorporate when interpreting statutes. However, subsection 3(3)(f) of IRPA does not incorporate international human rights conventions as part of Canadian law, or state that they override plain words in a statute. Subsection (3)(3)(f) of IRPA means that the conventions be considered by the Court as "context" when interpreting ambiguous provisions of the immigration law. I am of the opinion that subsection 117(9)(d) of the Regulations is plain, clear, and unambiguous. It leaves no room for such interpretation.

In any event, IRPA provides a mechanism in subsection 25(1) to exempt the applicant's two sons from subsection 117(9)(d) of the Regulations for humanitarian and compassionate reasons or for the best interests of the children.

I am of the view that section 25 of IRPA reflects and fulfills Canada's commitment to take human rights and the best interests of children into account when administering the immigration law. Subsection 117(9)(d) of the Regulations is not an inflexible rule precluding sponsorship in appropriates cases. The applicant can support her sons in invoking section 25. That section can recognize that the applicant is the mother, who would have been able to sponsor her two sons if she had properly disclosed them when she applied for permanent residence to Canada. That section can apply equitable factors in appropriate cases.

[32]                        I adopt the reasoning of Kelen J. I am of the opinion that Regulation 117(9)(d) does comply with the basic tenets of our legal system and does comply with the principles of fundamental justice.

[33]                        Accordingly, I am of the opinion that Regulation 117(9)(d) does not conflict with section 7 of the Charter.

[34]                        The application for judicial review is therefore dismissed.

[35]                        The following question I believe to be a serious question of general importance and will be certified:

Is subsection 117(9)(d) of the Immigration Refugee Protection Regulations invalid or inoperative because it is unconstitutional as it deprives the applicant of her right to liberty and/or her right to security of person, in a manner not in accordance with the principles of fundamental justice, contrary to section 7 of the Charter?

ORDER

IT IS ORDERED that:

1.          The application for judicial review is dismissed.

2.          The following question is certified as a serious question of general importance:

Is subsection 117(9)(d) of the Immigration Refugee Protection Regulations invalid or inoperative because it is unconstitutional as it deprives the applicant of her right to liberty and/or her right to security of person, in a manner not in accordance with the principles of fundamental justice, contrary to section 7 of the Charter?

"John A. O'Keefe"

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-1760-04

STYLE OF CAUSE:                         LINDA AQUINO PRECLARO

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

PLACE OF HEARING:                    Toronto, Ontario

DATE OF HEARING:                       February 21, 2005

REASONS FOR ORDER

AND ORDER BY:                             O'KEEFE J.

DATED:                                              AUGUST 3, 2005      

APPEARANCES:

Ronald Poulton                                   FOR APPLICANT

Deborah Drukarsh                             FOR RESPONDENT

SOLICITORS OF RECORD:

Mamann & Associates

Toronto, Ontario                                 FOR APPLICANT

John H. Sims, Q.C.

Deputy Attorney General of Canada           FOR RESPONDENT