Docket: IMM-1416-17
Citation:
2017 FC 820
Ottawa, Ontario, September 11, 2017
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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HARDEEP SINGH
BRAR
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
The Applicant seeks judicial review of an
interlocutory decision of the Immigration Division of the Immigration and
Refugee Board (the “ID”), dated March 10, 2017, in which the Member held that
the Applicant’s Charter concerns should not be considered at his
admissibility hearing and that the ID would not entertain Charter
arguments or evidence at that hearing.
II.
Background
[2]
The Applicant is a natural of India who became a
permanent resident of Canada in 1998 at the age of 15. He is not a Canadian
citizen.
[3]
The Applicant plead guilty to criminal charges
in the United States for conspiracy to distribute cocaine, and was sentenced to
a 24-month term of imprisonment. This criminal conviction involved 15 kilograms
of cocaine, destined for Canada. Upon completion of his sentence, US
authorities deported the Applicant to India. Upon his return to Canada, he gave
details of his criminality to the Canada Border Services Agency (“CBSA”) at the
Vancouver International airport.
[4]
Further salient background facts relevant to
this application are clearly set out in paragraphs 8 to 12 of the related
judicial review of the referral decision to determine the Applicant’s
admissibility to Canada, the decision of Justice Anne Mactavish in Brar v
Canada (Minister of Safety and Emergency Preparedness), 2016 FC 1214 [Brar]:
8 Mr. Brar
was subsequently given notice that reports may be prepared declaring him to be
inadmissible to Canada for serious criminality, organized criminality and
transnational crime. He was then interviewed by a CBSA Inland Enforcement
Officer, and was given the opportunity to provide written submissions to the
Officer prior to a decision being made as to whether to refer him for an
admissibility hearing. In support of his request not to be referred to an
admissibility hearing, Mr. Brar and his counsel provided the Officer with
several sets of submissions and supporting materials over a three and a half
year period.
9 Among
other things, Mr. Brar submitted that even though his offence was serious, it had
not involved violence or firearms. Several years had passed since his one
criminal offence, and he had not engaged in any further criminal activity. A
psychologist's report provided by Mr. Brar had, moreover, indicated that he
posed a low risk of re-offending. Mr. Brar also noted that he had come to
Canada as a child, that he had lived in Canada for many years, and that he had
minimal ties to India. All of Mr. Brar's immediate family, including his wife,
were in Canada, and he was gainfully employed.
10 An
initial decision to refer Mr. Brar to an admissibility hearing was set aside on
consent, after he sought judicial review of that decision. After receiving
further submissions from Mr. Brar, the Inland Enforcement Officer once again
recommended that he be referred for an admissibility hearing in relation to his
serious criminality, as well as his involvement in organized criminality and
transnational crime. A Minister's Delegate subsequently adopted that
recommendation, and referred Mr. Brar's case to the Immigration Division of the
Immigration and Refugee Board, and it is this decision that underlies this
application for judicial review.
11 Mr. Brar
has never claimed that he would be at risk if he were returned to India. He
further concedes that he is inadmissible to Canada as a result of his American
drug conviction, and that he would inevitably be found to be inadmissible by
the Immigration Division. He notes, however, that if his case goes to an
admissibility hearing, the Immigration Division would have no equitable
jurisdiction to consider humanitarian and compassionate factors before issuing
a removal order against him.
12 Moreover,
because the punishment for Mr. Brar's offence could have exceeded 10 years, had
the offence been committed in Canada, he is not entitled to appeal the
Immigration Division's finding to the Immigration Appeal Division of the
Immigration and Refugee Board. Mr. Brar is also permanently barred from seeking
humanitarian and compassionate relief under section 25 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27, because he is inadmissible to Canada
under section 37 of the Act for organized criminality and transnational crime.
Consequently, the only place where Mr. Brar's humanitarian and compassionate
considerations can be considered is at the referral stage.
[5]
On July 13, 2015, the Minister's Delegate
referred the Applicant for an admissibility hearing on all three provisions -
s. 36(1)(a), s. 36(l)(b) and s. 37(1)(b) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA] - pursuant to his (the
Minister's Delegate's) three s. 44(2) reports.
[6]
The Applicant sought judicial review of the s.
44(2) referral to an admissibility hearing.
[7]
In seeking judicial review of the s. 44(2)
referral, the Applicant conceded that he is inadmissible, but argued that his rights
under s. 7 of the Canadian Charter of Rights and Freedoms, Part I of the
Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11. [Charter]
had been violated due to an (alleged) lack of a “proportionality
assessment”.
[8]
The Honourable Madam Justice Mactavish, in Brar
above, dismissed the Applicant’s judicial review application on the basis that:
- The Applicant conceded he was
inadmissible due to his drug conviction, and considered it inevitable that
the ID would find him inadmissible, unless he obtained discretionary
relief at the s. 44 stage;
- In reliance upon the jurisprudence,
including from the Supreme Court of Canada, the Court declined to find the
Applicant’s s. 7 Charter rights were engaged; alternatively, the
Court found no breach of fundamental justice;
- The discretionary consideration and
weighing of personal circumstances at the s. 44 stage in this case was
found to equate with a “proportionality
assessment”, taking into account the Applicant’s Charter and
international law arguments;
- The decision to refer the Applicant to an
admissibility hearing before the ID “was entirely
reasonable”. The Applicant was given an opportunity to make
submissions as to his personal circumstances warranting sympathetic
consideration, and made numerous, lengthy submissions; he did not point to
anything else he would have wanted to be considered. The Court observed
that simply re-weighing the evidence was beyond the scope of judicial
review.
[9]
No question was certified for appeal.
[10]
In proceeding to an admissibility hearing before
the ID, the Applicant again raised s. 7 Charter arguments. The
Minister’s counsel objected to the Applicant asking the tribunal to re-litigate
the same Charter issue already determined by Madam Justice Mactavish of
this Court, and further sough to hold the Applicant to his admissions of
inadmissibility.
[11]
The ID determined that neither s. 7 of the Charter
nor s. 12 of the Charter is engaged at the admissibility stage of the
process and declined to allow the Applicant to proceed further with his Charter
arguments.
[12]
It is this March 10, 2007 interlocutory decision
of the ID that is the subject of the Applicant’s current leave application.
III.
Issues
Preliminary objections:
- Is the Applicant
entitled to seek judicial review of an interlocutory Order?
- By seeking this
judicial review, is the Applicant collaterally attacking the Judgment of
Madam Justice Mactavish of November 2, 2016?
Issues
if Preliminary Objections are overcome:
- Did the Member
err in law because he denied the Applicant the right to adduce evidence to
establish that section 7 of the Charter was engaged in the
admissibility proceedings against the Applicant?
- Is it
appropriate to consider the substantive engagement of section 12 of the Charter
at the stage of determining admissibility to Canada?
IV.
Standard of Review
[13]
Subject to the preliminary objections being
overcome, the standard of review for leave in respect of this matter is whether
any of the Applicant’s arguments relating to the applicability of sections 7
and 12 of the Charter at the admissibility hearing raises a reasonably
arguable case.
[14]
Questions of interpreting a home statute are
dealt with on the standard of reasonableness and determining a constitutional
question is looked at on a correctness standard.
V.
Analysis
[15]
The Applicant argues that if one carefully
reviews the relevant jurisprudence, when the issue before the Court is an
assertion that the Applicant will suffer torture or other forms of cruel,
inhumane and degrading treatment, the proper place for an assessment of the
section 7 Charter issues is either at the Pre-Removal Risk Assessment
(“PRRA”) stage, or in the case of a Convention Refugee, when the danger opinion
is decided. I agree.
[16]
However, the Applicant also argues that in a
case such as this one, where the issues do not relate to torture upon removal,
but rather relate to the question of the impact of deportation on a long term
resident who does not have the right to make a humanitarian and compassionate
application or a right to appeal to the Immigration Appeal Division, then the
sole place where Charter issues can be adjudicated is before the
Immigration Division. In this case, section 7 of the Charter is engaged
by the deportation process and the Applicant should be able to adduce evidence before
the ID on this issue.
[17]
Similarly, the Applicant submits section 12 of
the Charter should also be considered by the ID, as it would be grossly
disproportionate to remove him to a country that he has not lived in since he
was a young child, given that it would remove him from his family, his support
network, and the country he has lived in for many years, resulting in cruel and
unusual treatment or punishment.
[18]
The Applicant acknowledges that if I determine
the case of Canada (Minister of Employment and Immigration) v Chiarelli,
[1992] 1 S.C.R. 711 [Chiarelli], should be followed, then the section 12 Charter
argument must fail.
[19]
The Respondent argues that the law is clear that
a determination of substantive section 7 or section 12 Charter rights at
the referral stage in an admissibility proceeding is premature, as a matter
concerning an interlocutory decision; has already been decided by Justice
Mactavish in this case and therefore is a collateral attack on her decision; in
any event has already been determined to be premature by both the Federal Court
of Appeal and Supreme Court of Canada; and would be futile, as Justice
Mactavish has already determined, after conducting a full judicial review that
a “proportionally assessment has been adequately and
reasonably conducted”.
A.
Preliminary Objections – Section 7
[20]
As I indicated to counsel for the Applicant
during the course of the hearing, I agree with the Respondent that Justice
Mactavish rejected the Applicant’s section 7 Charter argument, if not
expressly then implicitly, in finding that she had serious doubts that section
7 of the Charter is engaged at the admissibility referral stage, based
upon well-established jurisprudence (Brar, above, at paras 21-26; B010
v Canada (Citizenship and Immigration), 2015 SCC 58 at paras 74, 75; JP
v Canada (Minister of Public Safety and Emergency Preparedness), 2013 FCA 262
at paras 120-125).
[21]
I therefore find that raising the section 7 Charter
argument now is a collateral attack on Justice Mactavish’s decision (Hardy
Estate v Canada (Attorney General), 2015 FC 1151 at paras 74-75; Farhadi
v Canada, 2014 FC 926 at paras 31-32).
[22]
Moreover, even if the section 7 Charter
argument being raised here does not amount to a collateral attack, it is in any
event not engaged at the admissibility referral stage in this case – Justice
Mactavish has already determined there is no breach of fundamental justice on
this front.
[23]
Given my section 7 Charter decision on
this basis, I need not consider the issue of whether there can be judicial
review of an interlocutory matter as it relates to the section 7 Charter
issue.
B.
Section 12
[24]
Section 12 of the Charter was not raised
before Justice Mactavish and therefore I find that there is no collateral
attack on her decision by raising this argument before me now. However, it begs
the question as to why this issue is now being raised when it could have been
raised before Justice Mactavish in the first instance?
[25]
The ID held that the section 12 Charter
arguments were premature, for the same reason that the section 7 Charter
argument is premature: in the deportation context, both section 7 and section
12 are directed to the consequences of removal, and to having a “proportionality assessment prior to removal”.
[26]
The Respondent argues that the ID is correct in
this approach, and that in any event, the Applicant had a fully canvassed
proportionality assessment prior to removal, which was found by Justice
Mactavish to be adequate and reasonable (Brar, at paras 27, 31-33):
27 In this
case, Mr. Brar had a face-to-face interview with the Inland Enforcement
Officer. He was repeatedly afforded the opportunity to provide written
submissions in support of his request not to be referred for an admissibility
hearing, and he provided the Officer with copious submissions that had been
prepared with the assistance of counsel. Mr. Brar was provided with draft
recommendations prepared by the Inland Enforcement Officer for consideration by
a Minister's Delegate, and he was given the right to comment on them. Any errors
in the draft reports that were identified by Mr. Brar were corrected, and a
thorough analysis of Mr. Brar's case was provided to the Minister's Delegate.
This analysis is considered to be part of the Minister's Delegate's reasons: Huang
v. Canada (Public Safety and Emergency Preparedness), 2015 FC 28 at para.
88, 473 F.T.R. 91.
31 Mr. Brar
has not identified any further information that he was unable to provide to
either the Inland Enforcement Officer or the Minister's Delegate that could
possibly have assisted his case. Nor has he identified any principle of
fundamental justice that was not complied with in relation to the Minister's
Delegate's determination that Mr. Brar should be referred to the Immigration
Division for an admissibility hearing.
32 In essence,
what Mr. Brar says is that the Minister's Delegate gave too much weight to the
seriousness of his criminal conviction and not enough weight to his
humanitarian and compassionate factors, and that this breached principles of
fundamental justice. It is not, however, this Court's role to usurp the role of
the Minister's Delegate and reweigh the evidence to reach a different
conclusion.
33 Mr. Brar
also argued in his memorandum of fact and law that the Minister's Delegate made
certain findings of fact that were unsupported by the evidence. The
respondent's memorandum of fact and law identified the evidence in the record
that supported the findings in question, and no reviewable error has been
demonstrated by Mr. Brar in this regard. Indeed, the fact that evidence from
the psychologist's report was referred to in the Inland Enforcement Officer's
analysis simply confirms the thoroughness that was applied to the review of Mr.
Brar's submissions.
[27]
The Applicant argues that even if I find that
the section 7 Charter argument must fail, it is open to the Court to
consider a different contextual approach as to whether section 12 of the Charter
can be considered at the admissibility referral stage. However, this view is
qualified by whether Chiarelli should still govern my decision as
binding jurisprudence against such a finding.
[28]
The Applicant draws a number of factors to the
Court’s attention in arguing against the continued applicability of Chiarelli
since it was decided 25 years ago:
- Section 12 of the Charter must be
applied in light of relevant international law (Saskatchewan Federation
of Labour v Saskatchewan, [2015] 1 S.C.R. 245 at pars 62-64; Health
Services and Support -- Facilities Subsector Bargaining Assn v British
Columbia, [2007] 2 S.C.R. 391 at paras 78-79; Ontario (Attorney
General) v Fraser, 2011 SCC 20 at para 92) [Fraser]);
- Section 12 relates to a “treatment” as cruel and unusual treatment, and
the act of deportation is a treatment from beginning to end, not to be
segmented into its various stages and is to be looked at from the
perspective of the person subjected to it (Chiarelli, at para 29; Canepa
v Canada (Minister of Employment and Immigration), [1992] 3 FCR 270
(FCA) at para 19);
- When considering the section 12 Charter
right, the Court must look at whether the legal consideration for
admissibility – criminality or serious criminality - versus the law’s
effect on the individual by deportation, is grossly disproportionate. The
rule against gross proportionality has evolved since Chiarelli, but
only applies in extreme cases where the seriousness of deportation
(effects on the individual) are totally out of sync with the objective of
the deportation (here, public safety) (Canada (Attorney General) v
Bedford, [2013] 3 S.C.R. 1101 at paras 105, 120-122; Carter v Canada
(Attorney General), [2015] 1 S.C.R. 331 at paras 89-90; R v Nur,
[2015] 1 S.C.R. 773 at paras 65, 118; Canada (MCI) v Harvey, [2013]
FCJ No 806 at paras 52-54);
- In considering whether the state
objective of deportation, when criminality or serious criminality may
affect public safety, may be grossly disproportionate to the Applicant’s
individual assessment of consequences, if deported, the Court needs to
bear in mind that:
- In determining whether treatment or
punishment is “cruel and unusual”, the
Court must consider whether that treatment is “so
excessive as to outrage [our] standards of decency”, and that
there must be some active state process in operation, involving an
exercise of state control over the individual (R v Smith, [1987] 1
SCR 1045 at para 83 [Smith]; Rodriguez v British Columbia
(Attorney General), [1993] 3 S.C.R. 519 at para 182);
- The Court will look at a number of
factors as part of a kind of “cost/benefit”
analysis: does the treatment go beyond what is necessary to achieve a
legitimate aim; are there adequate alternatives; is the treatment
arbitrary; does the treatment have a value or social purpose; does it
accord with public standards of decency or propriety; is it unusually
severe and hence degrading to human dignity and worth (Smith, at para
44; Canadian Doctors for Refugee Care v Canada (Attorney General),
2014 FC 651 at paras 583-585, and 612-614);
- In this case, the Applicant has accepted
that he is inadmissible; his sole defence is that the admissibility hearing
violates the principles of fundamental justice. Here, the Applicant has
no right of appeal before the IAD, no right to seek a H&C
consideration, and no right to a PRRA (he did not assert a risk upon
return to India) and given the specific allegations against him under
sections 36 and 37, there is no remedy available to him prior to removal
other than to have the ID consider the issues raised at the admissibility
hearing – those issues are that to remove him to a country where he has
not lived since he was a young child, from his family and support network
in Canada where he has lived for a long time, would be grossly
disproportionate to the state goal of public safety, given that the
Applicant received an unconditional release following service of his
sentence in the United States, and the evidence shows he does not pose a
risk to security or public safety.
[29]
Once again the Respondent argues that the
consideration of the section 12 Charter issue at the admissibility stage
of this proceeding is premature – it is purely a timing issue. Until there is a
removal order, the Court can only speculate what the outcome of the
admissibility hearing will be and the consequences of removal when no removal,
order has been made. It is also improper for the Applicant to seek judicial
review of an interlocutory order.
[30]
Moreover, the Applicant had his proportionality
assessment conducted over a three year period, and his concerns have already
been addressed and determined. Furthermore, international law was considered in
the Applicant’s proportionality assessment, which Justice Mactavish found to be
reasonable and represented a proportionate balancing of the competing interests
at stake.
[31]
Even if I was to find that the Applicant may
seek judicial review of an interlocutory order, which I need not do here, I
agree with the Respondent that the section 12 Charter argument is
premature when, as is this case, it remains uncertain, albeit very likely, that
the Applicant will be found to be inadmissible and in fact may probably be
removed.
[32]
I agree that the Applicant cannot invoke section
12 of the Charter before the final stage of deportation (Norouzi v
Canada (Minister of Immigration, Refugees and Citizenship), 2017 FC 368 at
paras 33-36 [Norouzi], relying on Barrera v Canada (Minister of
Employment and Immigration), [1993] 2 FCR 3 (FCA) [Barrera]).
[33]
I also agree that the proportionality assessment
by Justice Mactavish, while not specifically dealing with the section 12 Charter
argument, did deal with the merits of the Applicant’s personal circumstances,
which he tries to rely upon, as the underpinning for both his section 7 and
section 12 Charter arguments, and were found to be largely due to the
typical consequences of removal.
[34]
Moreover, I disagree with the Applicant that
given my decision, the Applicant would be barred from raising the section 12 Charter
issue – in finding the argument premature, he is not precluded from doing so if
the chooses to seek a judicial review of any removal order, or in seeking a
stay of the removal in conjunction with that judicial review, again if he
chooses to do so.
[35]
Accordingly, I dismiss the application for
judicial review.
[36]
The Applicant at the hearing raised three
questions for certification:
- Is it appropriate to consider the
substantive engagement of section 12 of the Charter at the stage of
determining admissibility to Canada?
- Is the deportation of a long term
permanent resident a treatment within the meaning of section 12 of the Charter?
- If so, are there circumstances where the
deportation might be grossly disproportionate so as to be a breach of
section 12?
- Is section 7 engaged in the case of the
deportation of a permanent resident who has admitted he is inadmissible
under sections 36 and 37?
[37]
At the end of the hearing, the Applicant’s
counsel agreed that only one question should be considered for certification:
- Is it appropriate to consider the
substantive engagement of section 12 of the Charter at the stage of
determining admissibility to Canada?
[38]
The Respondent relies on the cases of Norouzi
and Barrera, above, to argue that this existing jurisprudence has
already established that section 12 Charter arguments are premature when
the prospect of removal is uncertain, particularly when the applicant has not
yet been found inadmissible, much less subject to a removal order.
[39]
As such, no question should be certified.
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