determination
on his application for permanent residence. In the meantime, he was advised
that, by reason of having been charged with two counts of sexual assault, he
was not entitled to a 60 day administrative deferral of removal under the policy.
The Applicant seeks to challenge the policy on the basis that it violates his
section 7 and 11(d) Charter rights.
II. Facts
[2]
The Applicant arrived
in Canada on July 14, 2006 and claimed refugee
status on the same day.
[3]
The Applicant’s claim
for refugee protection was denied on September 24, 2007. His application for
leave and judicial review of that decision was dismissed on January 30, 2008.
[4]
On February 7, 2008,
the Applicant was arrested and charged with 2 counts of sexual assault. He was
released on his own recognizance. The Applicant’s trial for these charges has
not yet been held.
[5]
On April 5, 2008, the
Applicant married a Canadian citizen. His spousal sponsorship application for permanent
residence under the Spouse or Common-law Partner in Canada class, as permitted by the Minister’s policy enunciated in
IP8, was received by the Canadian Border Services Agency (CBSA) on April 17,
2008.
[6]
The Applicant was
issued a notice dated July 3, 2008 for his PRRA and was requested to attend an
interview at the CBSA. The Applicant attended the interview on July 25, 2008
where a CBSA Officer (the Officer) informed the Applicant that he was eligible
to apply for a PRRA; that he should do so by August 8, 2008, and that, failure
to do so could result in arrangements being made for his removal from Canada.
He was also informed that he was not entitled to an administrative deferral of
removal by reason of his pending criminal charges.
[7]
On August 6, 2008,
the Applicant filed the within application for judicial review challenging the
Minister’s policy under IP8 and the Officer’s refusal to defer removal.
[8]
On August 13, 2008,
CBSA updated its Field Operating Support System (FOSS) entries to indicate that
no application for a PRRA had been received by the Applicant and that the
Applicant no longer benefited from the stay of removal as per section 163 of
the Immigration and Refugee Protection Regulations (IRPR).
[9]
On August 25, 2008,
the Applicant brought a motion for an order staying the commencement of the
PRRA until this application for leave and for judicial review is determined.
The motion was dismissed on August 27, 2008, on the basis that, a removal date
not yet having been set, the Applicant had failed to establish irreparable harm
should he be subjected to the PRRA process.
III. Decision
Under Review
[10]
The Officer found
that the Applicant was not entitled to benefit from the administrative deferral
of removal under the “Public Policy under s. 25(1) of the Immigration
and Refugee Protection Act (IRPA) to Facilitate Processing in accordance
with the Regulations of the Spouse or Common-law Partner in Canada Class” (the
Policy). The Policy is contained in Appendix H of the Citizenship and
Immigration Canada’s Operation Manual for Inland Processing IP 8. The Officer
found that the Applicant was not eligible for the administrative deferral under
the Policy by reason of the outstanding criminal charges against him.
[11]
It is alleged that
the Officer violated a duty to ensure that the Policy does not violate any of
the Applicant’s Charter rights. The existence of such a duty was raised as an
issue in this application; however both the Applicant and the Respondent failed
to make any submissions on the issue. Without argument I can only assume this
issue has been abandoned.
[12]
There
are no allegations before me that the Officer erred in refusing to grant the
administrative deferral to the Applicant. The Applicant challenges only the
constitutionality of the Policy.
[13]
While the issue of the Court’s jurisdiction was not raised by the
parties, on May 14, 2009, I directed the parties to file written submissions on
the issue of whether the Court has jurisdiction to consider the Charter issues
raised in the within application without prior notice to the Attorneys General
having been served pursuant to section 57 of the Federal Courts Act.
[14]
Upon reading the submissions of the parties and the relevant
authorities, I am satisfied that the application does not question the
constitutional validity, applicability or operability of an Act or regulation
made under such an Act. As a result, notice pursuant to section 57 is not
required. Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Mikisew Cree First Nation v.
Canada (Minister of Canadian Heritage), [2004] 2 C.N.L.R. 74; Trevor
Jacobs v. Sports Interaction, 2006 FCA 116; Bekker v. Canada, 2004
FCA 186; Gitxsan Treaty Society v. Hospital Employees Union, [2000] 1
F.C. 135 (C.A.); Giagnocavo v. Canada, [1995] F.C.J. No. 1355 (QL); Husband
v. Canada (Canadian Wheat Board), 2006 FC 1390; Canada
(Information Commissioner) v. Canada (Prime Minister) 1993 1 F.C. 427.
[15]
I am therefore satisfied that the Court has the jurisdiction to hear the
issues raised in this application.
IV. Impugned
Policy
[16]
I reproduce below the
pertinent provisions of the Policy:
|
F. ADMINISTRATIVE DEFERRAL OF REMOVAL
The Canada Border Services Agency has
agreed to grant a temporary administrative deferral of removal to applicants who qualify under
this public policy. The deferral will not be granted to applicants who:
·
Are inadmissible
for security (A34), human or international rights violations (A35), serious
criminality and criminality
(A36), or organized criminality (A37);
·
Are excluded by the
Refugee Protection Division under Article F of the Geneva Convention;
·
Have charges
pending or in those cases where charges have been laid but dropped by the
Crown, if these charges were
dropped to effect a removal order;
·
Have already
benefited from an administrative deferral of removal emanating from an
H&C spousal
application;
·
Have a warrant
outstanding for removal;
·
Have previously
hindered or delayed removal; and
·
Have been
previously deported from Canada and have not obtained permission to
return.
For those applicants who are receiving
a pre-removal risk assessment (PRRA), the administrative deferral for processing applicants
under this H&C public policy will be in effect for the time required to complete the PRRA (R232).
Applicants who have waived a PRRA or who are not entitled to a PRRA will receive an
administrative deferral of removal of 60 days.
Applicants who apply under this public
policy after they are deemed removal ready by CBSA will not benefit from the administrative
deferral of removal except in the limited circumstances outlined below (transitional cases).
|
F. SUSPENSION ADMINISTRATIVE
DU RENVOI
L’Agence des services
frontaliers du Canada (ASFC) a accepté d’accorder, aux demandeurs
qui sont visés par cette politique d’intérêt public, une suspension
administrative du renvoi. La suspension ne sera pas accordée aux demandeurs
:
- qui sont interdits de
territoire pour raison de sécurité (L34), pour atteinte aux droits
humains et internationaux (L35), pour
criminalité et grande criminalité (L36) ou pour crime organisé (L37);
- qui sont exclus par la
Section de la protection des réfugiés aux termes de la section F de
l’article premier de la Convention de Genève;
- qui font l’objet
d’accusations en instance ou contre qui des accusations ont été portées,
mais que la Couronne a retirées, si ces accusations ont
été abandonnées pour procéder au renvoi;
- qui ont déjà profité
d’une suspension administrative découlant d’une demande CH de conjoint;
- qui sont visés par un
mandat non exécuté en vue du renvoi;
- qui ont déjà entravé ou
retardé le renvoi;
- qui ont déjà été
expulsés du Canada et n’ont pas été autorisés à y revenir.
Dans le cas des demandeurs
qui font l’objet d’un examen des risques avant renvoi (ERAR), la suspension administrative
pour le traitement des demandes présentées en vertu de cette politique
d’intérêt public sera en vigueur le temps qu’il faudra pour
effectuer l’examen en question (R232). Les demandeurs qui ont renoncé
à l’ERAR ou qui n’y ont pas droit se verront accorder une suspension
administrative de 60 jours.
Les demandeurs qui présentent
une demande aux termes de cette politique d’intérêt public après avoir été
jugés prêts au renvoi par l’ASFC ne bénéficieront pas de la suspension
administrative du renvoi, sauf dans les circonstances
limitées énoncées ci-dessous (cas visés par les dispositions transitoires).
|
[17]
The stated objective
of this policy is to “facilitate family reunification and facilitate processing
in cases where spouses and common-law partners are already living together in Canada.” The effect of the policy is to enable spouses or
common-law partners in Canada, for whom an undertaking of support has
been submitted, to apply for permanent residence from within Canada in
accordance with the same criteria as members of the Spouse or Common-law
partner in Canada class regardless of their immigration
status. Applicants who qualify under the Policy, other than those exempted
under Appendix H, section F, will also benefit from an administrative stay of
removal. For those receiving a PRRA, the deferral is in effect until the
completion of the PRRA. Those who are not entitled to a PRRA, or who have
waived their right to a PRRA, will receive a deferral of 60 days.
V. Issues
[18]
The following issues
are raised in this application:
(1) Is the Applicant’s application moot?
(2) Does the Policy
violate the rights of the Applicant as enshrined in sections 7, and 11(d)
of the Canadian Charter of Rights and Freedoms (the Charter)?
(3) Is the Policy
saved by section 1 of the Charter?
VI. Analysis
Issue
1: Is the Applicant’s application moot?
[19]
The Respondent
submits that for the following reasons, the application is moot:
(a) the
Applicant benefited from a regulatory stay by virtue of his PRRA being
initiated;
(b) any administrative deferral of
his removal would have run simultaneously to the regulatory stay he received
when his PRRA was initiated;
(c) he currently benefits from a
statutory stay of his removal because of the pending criminal charges against
him (section 50(a) of the IRPA); and
(d) more than 60 days have lapsed
since his pre-removal interview on July 25, 2008, and so even if he had
received an administrative deferral under the policy, that period would have
already run.
[20]
I accept the
Respondent’s submission that the administrative deferral under the Policy
sought by the Applicant would already have expired even if the Officer had
found that the Applicant was eligible to it. Notwithstanding this finding, I
will nevertheless consider the Charter issues raised in this application. Based
on the principles set out in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, in the exercise of
my discretion, I am satisfied that it is in the interest of justice that the issues
be decided. I note also that, notwithstanding the Respondent’s above stated
arguments in oral submissions, counsel for the Respondent invited the Court to decide
the Charter questions.
Issue 2: Does the Policy violate the
rights of the Applicant as enshrined in Sections 7, and 11(d) of the Canadian
Charter of Rights and Freedoms (the Charter)?
(a) Section 7
Section
7 of the Charter provides that:
|
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in accordance with the
principles of fundamental justice.
|
7. Chacun a droit à la vie,
à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte
à ce droit qu’en conformité avec les principes de justice fondamentale.
|
[21]
The
Applicant argues that the Policy compromises his security in that it does not
allow him to defend his innocence of the charges laid against him. He says that
the Policy stigmatizes those charged but not convicted of criminal charges.
[22]
For the
reasons that follow, I find that the Applicant’s argument is without merit. His
section 7 Charter rights are not engaged in the circumstances.
[23]
The
impugned Policy renders the Applicant ineligible for an administrative deferral
by reason of his criminal charges. It does not follow, however, that the
Applicant will be removed without a proper risk assessment. The PRRA process,
to which the Applicant is entitled, is designed to assist foreign nationals who
may be required to leave Canada. It is the means by which the Applicant can have his risk assessed
prior to his departure. It is the very process which provides for consideration
of the Applicant’s life, liberty and security interest in a pre-removal
context. The Applicant’s access to that process is in no way affected by the
Policy. Here, the Applicant not only allowed his initial opportunity to apply
for a PRRA to expire, he took out an application to stay the initiation of a
PRRA. In the circumstances, the Applicant cannot argue that his section 7
rights to life, liberty and security of the person are affected by reasons of the
Policy.
[24]
Further,
the Applicant’s removal is currently stayed by law by reason of his pending
criminal charges. By virtue of this stay, a PRRA may be decided before a
scheduled removal date, should the Applicant apply for one. He could also seek
a judicial stay following a negative PRRA determination. Access to these procedures
is available to the Applicant and serves to protect his section 7 rights.
[25]
For the
above reasons, I find that the Applicant’s section 7 interests under the
Charter are not engaged by reason of the Policy.
(b) Section 11(d)
[26]
Section
11(d) of the Charter reads as follows:
|
11. Any person charged with an
offence has the right
d)
to be presumed innocent until proven guilty according to law in a fair and
public hearing by an independent and impartial tribunal;
|
11. Tout inculpé a le droit :
d) d'être présumé innocent tant qu'il
n'est pas déclaré coupable, conformément à la loi, par un tribunal
indépendant et impartial à l'issue d'un procès public et équitable;
|
[27]
The
Applicant submits that by being excluded from the benefit of the administrative
deferral on the basis of his pending criminal charges without any means to
establish his innocence, he has been denied his section 11(d) Charter
right to be presumed innocent. The Applicant argues that the presumption of
innocence enshrined in section 11(d), which protects the fundamental
liberty and human dignity of any and every person, not only applies in criminal
proceedings, but also to government policies especially where such policies
rely on the criminal process to define its criteria.
[28]
The
Applicant also argues that section 11(d) creates a regime that enjoins
government bodies and agencies not to differentiate between persons on the
basis of unsubstantiated allegations. He says that his exclusion from the
Policy portrays him as a “culprit or guilty”. The Applicant claims that the
Policy violates his section 11(d) Charter rights and contends that his
pending criminal charges should not be a criterion for non-qualification under
a government policy or regulation.
[29]
For the
following reasons, I find that the Applicant’s section 11(d) right to be
presumed innocent is not engaged in the circumstances. As such, any
differentiating treatment cannot violate section 11(d).
[30]
The
jurisprudence has clearly established that although the Applicant has a
constitutionally protected right to be presumed innocent in the context of his
prosecution on outstanding criminal charges, he has no such corresponding right
in administrative proceedings. Giroux v. Canada (National Parole Board), [1994] F.C.J. no. 1750, at
para. 20 (Lexis). The Supreme Court held that the presumption of innocence extends only to the judicial
proceedings in which the innocence of the Applicant is at stake. It does not
extend to unrelated administrative proceedings. R. v. Wigglesworth, [1987] 2 S.C.R. 541,
at 560. The rights protected in section 11(d)
of the Charter apply to courts and tribunal charged with trying the guilt of
persons charged with criminal offences. Re application under s. 83.28 of he
Criminal Code, 2004 SCC 42, paras. 80-81.
[31]
Here, we
are clearly dealing with the application of an administrative policy. It cannot
be said to be a judicial proceeding in which the innocence of the Applicant is
at stake. Nor can it be said that the Applicant’s ability to defend himself has
been impaired by the operation of the Policy. A statutory stay of removal
currently allows him to remain in Canada and defend the pending charges against him. It follows that the
Applicant’s section 11(d) rights are not engaged or violated by the
Policy.
[32]
I also
hold the view that the Applicant is not subjected to a differential treatment
in violation of his section 11(d) Charter rights as alleged. I note the
Applicant did not argue a section 15 violation, nor did he conduct the required
analysis for a claim of discrimination under section 15(1) of the Charter as
set out in Law v. Canada
(Minister of Employment and Immigration), [1999] 1 S.C.R. 497. I find
therefore that the arguments advanced regarding the allegation of differential
treatment are made in the context of the Applicant’s section 11(d)
claim.
[33]
Having
found that the Applicant’s section 11(d) right to be presumed innocent
is not engaged, there can be no impermissible differential treatment based on
his criminal charges under this section. Further, the jurisprudence teaches
that section 11(d) rights are to be interpreted narrowly in the sense
that they relate to criminal and penal proceedings and cannot be read to offer
individuals a broad protection against any adverse opinions or prejudices drawn
against them by individuals or organizations outside the state’s criminal
proceedings. Tadros v.
Peel Regional Police Service, and Attorney General of Ontario, 87 O.R. (3d) 563, at para. 35 (Ont.
Superior Court).
[34]
A review
of the Policy indicates that applicants under the Spouse in Canada Class can be
ineligible for an administrative deferral for reasons other than pending
criminal charges, such as:
(a) those who have already
benefited from a prior administrative deferral of removal emanating from and
H&C spousal application;
(b) those who have a warrant
outstanding for removal
(c) those who have previously
hindered or delayed removal; and
(d) those who were removal ready
prior to making their application for permanent residence
[35]
In my view,
it is open to the Minister to adopt policies which facilitate and expedite the
processing of certain classes of applicants. The Minister may also establish
conditions under which applicants within that class are rendered ineligible
under the policy. As mentioned above, ineligibility by virtue of pending
criminal charges does not violate the presumption of innocence nor does it
result in an impermissible differential treatment.
Issue
3: Is the Policy saved by section 1 of the Charter?
[36]
Having
decided that there is no violation of the Applicant’s Charter rights in this
case, there is no need to conduct a section 1 analysis.
VII. Conclusion
[37]
For the
above reasons, this application for judicial review will be dismissed.
VIII. Certified Question
[38]
The Applicant
proposed the following question for certification as an important question of
general application:
Whether
the Minister of Citizenship and Immigration’s policy on administrative deferral
of removal found under IP8 spouse or common-law partner in Canada Class
contravenes the Canadian Charter of Rights and Freedoms. Alternatively,
whether the Minister’s policy under IP8 offends the Applicant’s section 11(d)
rights of the Charter?
[39]
The test for the certification of a question of general
importance was articulated in Zazai v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 89, at paras. 11-12:
…
the threshold for certifying a question remains the same. Is there a serious
question of general importance which would be dispositive of an appeal? That
principle is well established in the jurisprudence of the Federal Court itself.
See Bath v. Canada
(Minister of Citizenship and Immigration) [1999] F.C.J. No. 1207 (Reed J.) at para. 15; Gallardo
v. Canada (Minister of Citizenship and
Immigration) [2003]
F.C.J. No. 52 (Kelen J.) at para. 35.
The
corollary of the fact that a question must be dispositive of the appeal is that
it must be a question which has been raised and dealt with in the decision
below. Otherwise, the certified question is nothing more than a reference of a
question to the Court of Appeal. If a question arises on the facts of a case
before an applications judge, it is the judge's duty to deal with it. If it
does not arise, or if the judge decides that it need not be dealt with, it is not
an appropriate question for certification.
[40]
I am satisfied that
the following proposed question raises a question of general importance which could
be dispositive of the appeal, namely:
“Does the Minister’s policy on
administrative deferral of removal found under IP8 offend the Applicant’s
sections 7 and 11(d) rights of the Canadian Charter of Rights and
Freedoms?
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. The application for judicial
review is dismissed.
2. The following question is certified:
“Does the Minister’s policy on
administrative deferral of removal found under IP8 offend the Applicant’s
sections 7 and 11(d) rights of the Canadian Charter of Rights and
Freedoms?”
“Edmond P. Blanchard”
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