[1] This is an appeal on questions certified by Gibson J. of the Federal Court (2004 FC 1120), dismissing the appellant's application for judicial review of a decision of a member of the Immigration Division of the Immigration and Refugee Board who issued a deportation order against the appellant on the grounds that he was inadmissible to Canada because of serious criminality.

[2] The certified questions are:

(a) Does the issuance of a deportation order pursuant to paragraph 45(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, against a permanent resident of Canada convicted of criminal offences and punished by a term of imprisonment of two years or more, and the removal scheme enacted under the Immigration and Refugee Protection Act ("IRPA") for such a person as a whole, engage liberty interest and section 7 of the Canadian Charter of Rights and Freedoms (the "Charter")?

(b) If the answer to the first question is yes, does the statutory scheme enacted under the IRPA, including the removal provisions of paragraph 45(d), for the deportation of a permanent resident from Canada convicted of a criminal offence and punished by a sentence of two years or more, on the particular facts with this matter, comply with the requirements of section 7 of the Charter?

FACTS

[3] The appellant arrived in Canada from Jamaica in 1987. He became a permanent resident in 1993. In 1997, he was convicted of entering Canada by false means. In 1998, he was sentenced to two years less a day on counts of possessing narcotics for the purpose of trafficking and possession of the proceeds of crime. On May 20, 2001, he was convicted of seven counts of trafficking in cocaine and sentenced to a term of imprisonment of ten years and six months.

[4] He has three children who, at the relevant time were now ages 21, 28 and 9 years of age.

ISSUES

[5] The appellant says that removal affects his liberty interests under section 7 of the Charter. Before issuance of a removal order under paragraph 45(d) of the IRPA, he says a permanent resident has the constitutional right under section 7 of the Charter to have his individual interest in remaining in Canada weighed against Canadian society's interest in having him removed. Because paragraph 45(d) does not provide for such balancing, it is in violation of the requirements of fundamental justice under section 7.

ANALYSIS

[6] I will assume, without deciding, that the appellant's liberty interests are engaged by removal from Canada. I turn then to the question of fundamental justice.

[7] The appellant concedes that in the balancing that he says is required, the test is whether the remedy of removal is grossly disproportional in relation to the harm to the individual and his family. See, for example, R. v. Malmo-Levine; R. v. Caine, [2003] 3 S.C.R. 571 at paragraphs 160, 169, and Canepa v. Canada (MEI), [1992] 3 F.C. 270 at 279.

[8] However, there was disagreement between the parties as to whether fundamental justice requires the free-standing balancing that the appellant says is mandatory or whether the balancing is only considered when deriving or construing the content and scope of the principles of fundamental justice under section 7 themselves. The appellant relies on cases such as Cunningham v. Canada, [1993] 2 S.C.R. 143 at 151-152, and Romans v. Canada (MCI), 2001 FCA 272, (2001), 281 N.R. 357 at paragraph 4. The Crown relies on R.v. Malmo-Levine, supra, at paragraphs 95-98, 112, 113 and R. v. Demers, [2004] 2 S.C.R. 489 at paragraphs 44, 45.

[9] Although I am doubtful as to the correctness of the appellant's position, I will assume, without deciding, that the balancing test relied upon by the appellant is required in order that principles of fundamental justice are met. Even so, I am unable to agree with him that the process under the IRPA violates those principles.

[10] Under subsection 25(1) of the IRPA , the appellant is entitled to ask the Minister for an exemption from removal on the basis of humanitarian and compassionate ("H & C") considerations. If the H & C decision is issued before he is removed, I think that the balancing he says is required is carried out.

[11] If the H & C decision is not issued, it is open to the appellant to ask the removals officer executing his deportation order to have regard to his personal circumstances. The Court was told that such requests are frequently denied. Such determinations are discretionary and approval or denial will depend on the merits of each case.

[12] Should an individual be of the opinion that a removals officer has failed to consider relevant evidence or otherwise failed to exercise discretion in accordance with the law, the individual may seek judicial review and a stay of removal. Should the individual satisfy the Federal Court of the serious issue, irreparable harm and balance of convenience tests, a stay may be granted pending judicial review. If there is merit to the judicial review, the matter will be remitted for redetermination.

[13] Having regard to the existing remedies available to an individual subject to a removal order, I have not been persuaded that the appellant is denied a balancing of his individual interests against those of the government. I see nothing grossly disproportional in the scheme for removal under the IRPA as it pertains to individuals who are found to be criminally inadmissible under paragraph 36(1)(a) of the IRPA.

[14] The certified questions should be dealt with as follows:

(a) for purposes of this appeal, it is not necessary to decide whether removal from Canada engages the appellant's liberty interest under section 7 of the Charter; and

(b) for purposes of this appeal and assuming without deciding that the appellant's liberty interest is engaged, the scheme of the IRPA which may result in the removal of the appellant does not violate principles of fundamental justice.

[15] The appeal should be dismissed.

"Marshall Rothstein"

J.A.

"I agree

A. M. Linden"

"I agree

Marc Noël"

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-549-04

STYLE OF CAUSE: HYLROY CHARLES POWELL

Appellant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: MAY 25, 2005

REASONS FOR

JUDGMENT BY: ROTHSTEIN J.A.

CONCURRED IN BY: LINDEN J.A.

NOËL J.A.

DATED: MAY 27, 2005

APPEARANCES BY:

Mr. Ronald Poulton

FOR THE APPELLANT

Ms. Marianne Zoric

Ms. Angela Marinos

FOR THE RESPONDENT

SOLICITORS OF RECORD:

Ronald Poulton

Barrister & Solicitor

Toronto, Ontario

FOR THE APPELLANT

John H. Sims, Q.C.

Deputy Attorney General of Canada

FOR THE RESPONDENT

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Powell v. Canada (Minister of Citizenship and Immigration), 2005 FCA 202

Citations2005 FCA 202

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2005 FCA 202