Docket: IMM-218-17
Citation:
2018 FC 71
Ottawa, Ontario, January 24, 2018
PRESENT: The
Honourable Madam Justice McDonald
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BETWEEN:
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MASSIMO THOMAS
MORETTO
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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
[1]
At issue in this judicial review are the
provisions of the Immigration and Refugee Act [IRPA] relating to the
cancellation of a stay of removal for a permanent resident cited for serious
criminality. Mr. Moretto’s stay of removal from Canada was cancelled by the
operation of s.68(4) of the IRPA because of a conviction for “serious criminality” during a period when he was
subject to a stay of removal. Mr. Moretto challenges the constitutionality of
s.68(4) of the IRPA. He argues that its automatic application to his
circumstances is contrary to ss. 2(d), 7, and 12 of the Charter of Rights
and Freedoms [the Charter].
[2]
For the reasons below, this judicial review is
dismissed as the Immigration Appeal Division [IAD] did not err in concluding
that s.68(4) applies to Mr. Moretto. Pursuant to s.74(d) of the IRPA, I have
certified three questions of general importance.
I.
Relevant Statutory Provisions
[3]
Section 36 of the IRPA states:
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36 (1) A permanent resident or a foreign national is inadmissible on
grounds of serious criminality for
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36 (1)
Emportent interdiction de territoire pour grande criminalité les faits
suivants :
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(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;
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(a) être
déclaré coupable au Canada d’une infraction à une loi fédérale punissable
d’un emprisonnement maximal d’au moins dix ans ou d’une infraction à une loi
fédérale pour laquelle un emprisonnement de plus de six mois est infligé;
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(b)
having been convicted of an offence outside Canada that, if committed in
Canada, would constitute an offence under an Act of Parliament punishable by
a maximum term of imprisonment of at least 10 years; or
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(b) être
déclaré coupable, à l’extérieur du Canada, d’une infraction qui, commise au
Canada, constituerait une infraction à une loi fédérale punissable d’un
emprisonnement maximal d’au moins dix ans;
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(c)
committing an act outside Canada that is an offence in the place where it was
committed and that, if committed in Canada, would constitute an offence under
an Act of Parliament punishable by a maximum term of imprisonment of at least
10 years.
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(c)
commettre, à l’extérieur du Canada, une infraction qui, commise au Canada,
constituerait une infraction à une loi fédérale punissable d’un
emprisonnement maximal d’au moins dix ans.
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[4]
Section 68(4) of the IRPA states:
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(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.
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(4) Le sursis de la mesure de renvoi pour interdiction
de territoire pour grande criminalité ou criminalité est révoqué de plein
droit si le résident permanent ou l’étranger est reconnu coupable d’une autre
infraction mentionnée au paragraphe 36(1), l’appel étant dès lors classé.
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II.
Factual Background
[5]
Mr. Moretto was born in Italy in 1969 and came
to Canada with his family at nine months of age. He claims to have only
returned to Italy on one occasion. For reasons not explained, Mr. Moretto never
obtained Canadian citizenship. He is a permanent resident.
[6]
Mr. Moretto claims to have a history of
addiction and mental health problems. He also has a history of problems with
the law.
[7]
On April 27, 2009, the Immigration Division [ID]
issued a removal order against Mr. Moretto as a result of his conviction for
break and enter, which is an offence punishable by a maximum sentence of life
in prison. Mr. Moretto was therefore deemed inadmissible for serious
criminality pursuant to section 36(1)(a) of the IRPA. His appeal to the IAD was
dismissed. However a judicial review of this decision was granted, see: Moretto
v Canada (Citizenship and Immigration), 2011 FC 132.
[8]
On March 31, 2011 the IAD granted a stay of his
removal for a three year period subject to Mr. Moretto abiding by certain
conditions. Relevant for the present application was the condition that he not
engage in criminal conduct.
[9]
On May 6, 2015, the IAD orally reconsidered Mr.
Moretto’s stay of his removal. The IAD noted that since the stay was granted in
2011, Mr. Moretto had been charged with four additional criminal offences.
Despite this, on May 21, 2015, the IAD allowed the removal order to be stayed
for a further one year period.
[10]
On September 16, 2016 Mr. Moretto’s stay was
reconsidered. The Minister of Public Safety and Emergency Preparedness provided
evidence to the IAD that on June 2, 2016, Mr. Moretto had been convicted of
robbery contrary to section 344(1)(b) of the Criminal Code. This is a “serious criminality” offence as described in
s.36(1)(a) of the IRPA. As such, s.68(4) applied to Mr. Moretto, cancelling his
appeal to the IAD and lifting the stay of removal.
III.
IAD Decision
[11]
On December 21, 2016 the IAD held: “The stay of the removal order is cancelled by operation of
law and the appeal is dismissed.”
[12]
At the IAD Mr. Moretto argued that s.68 (4) of
the IRPA was unconstitutional. However the IAD held that it did not have the
jurisdiction to rule on the constitutionality of s.68 (4).
[13]
The IAD concluded that s.68 (4) applied to Mr.
Moretto’s circumstances.
IV.
Standard of Review
[14]
As Mr. Moretto challenges the constitutionality
of s.68(4) of the IRPA and its application to his circumstances, the standard
of review is correctness (Dunsmuir v New Brunswick, 2008 SCC 9 at para
58; Doré v Barreau du Québec, 2012 SCC 12 at para 43; Revell v Canada
(Citizenship and Immigration), 2017 FC 905at paras 53-54 [Revell]).
V.
Issues
[15]
In his Notice of Application, Mr. Moretto seeks
the following relief:
- A declaration
pursuant to s.52(1) of the Constitution Act, 1982 that section
68(4) of the IRPA violates ss. 7 and 12 of the Charter in a manner
that cannot be saved under s.1 of the Charter and is therefore of
no force and effect;
- An order
prohibiting the IAD from applying s.68(4) against Mr. Moretto because it
is inconsistent with the Charter and therefore of no force or
effect;
[16]
In his Notice of Constitutional Question, Mr.
Moretto also argues that s.68(4) unjustifiably infringes s.2(d) of the Charter.
[17]
He also poses five questions for certification.
[18]
The issues raised by Mr. Moretto will be
analysed below as follows:
- Discretion to
Reconsider Binding Decisions
- Section 7
- Section 12
- Section 2(d)
- Section 1
- International
Law
- Proposed
Questions for Certification
VI.
Analysis
A.
Discretion to Reconsider Binding Decisions
[19]
In relation to s.7 of the Charter, Mr.
Moretto argues that recent developments in case law, specifically in the
Supreme Court cases of Canada (Attorney General) v Bedford, 2013 SCC 72
[Bedford] and Carter v Canada (Attorney General), 2015 SCC 5 [Carter]
allow this Court to reconsider the binding nature of the Supreme Court of
Canada decision in Canada (Minister of Employment and Immigration) v
Chiarelli, [1992] 1 S.C.R. 711 [Chiarelli]. In Chiarelli, the
Court held that the automatic cancellation of a stay of removal and appeal due
to criminality is constitutional, because “[t]he most
fundamental principle of immigration law is that non-citizens do not have an
unqualified right to enter or remain in Canada” (Chiarelli, at
733).
[20]
Mr. Moretto also relies upon Carter and Bedford
to argue that the Supreme Court of Canada’s decision in Medovarski v Canada
(Minister of Citizenship and Immigration), 2005 SCC 51 [Medovarski]
can be revisited. Medovarski confirmed that the life, liberty, and security
of the person interests in s.7 are not engaged at the stage of determining
admissibility to Canada.
[21]
These cases must be considered against the
backdrop of other cases at the Supreme Court which clearly state that an
inadmissibility finding in itself does not engage s.7: B010 v Canada
(Citizenship and Immigration), 2015 SCC 58 at paras 74-75 (s.7 is not “typically” engaged at the stage of determining
admissibility to Canada); Febles v Canada (Citizenship and Immigration),
2014 SCC 68 at paras 67-69 [Febles].
[22]
In keeping with this Supreme Court authority,
cases in this Court and the Federal Court of Appeal have made the same findings
with respect to s.7 and inadmissibility (Revell; Brar v Canada (Public
Safety and Emergency Preparedness), 2016 FC 1214 at para 21; Torre v Canada
(Citizenship and Immigration), 2015 FC 591, aff’d 2016 FCA 48 at para 4; Stables
v Canada (Citizenship and Immigration), 2011 FC 1319 at paras 40-41 [Stables];
Poshteh v Canada (Minister of Citizenship and Immigration), 2005 FCA 85
at paras 61-63 [Poshteh]).
[23]
Further, deportation per se does not
engage s.7 rights (Medovarski, at para 46). Only deportation to the “prospect of persecution…torture…or detention in the course
of the security certificate process…may engage section 7 rights” (Revell,
at para 116).
[24]
Thus, most of the case law, importantly Chiarelli
and Medovarski, draw a distinction between a finding of inadmissibility
and the act of deportation for constitutional consideration purposes. Only the
deportation itself may, in certain circumstances, engage s.7 considerations.
[25]
Here there is no suggestion that Mr. Moretto is
at risk of persecution, torture or detention in Italy. However, he seeks to
establish that the finding of inadmissibility is alone sufficient to engage s.7
and that the application of s.68(4) to him is disproportionate and arbitrary,
even in absence of deportation to a country of torture or persecution.
[26]
While Chiarelli and Medovarski
would normally be considered binding authority and would require dismissing Mr.
Moretto’s arguments, in Bedford, the Supreme Court outlined the
circumstances in which a lower court can revisit binding precedent. The Court
noted:
[42] In my view, a trial judge can consider
and decide arguments based on Charter provisions that were not raised in the
earlier case; this constitutes a new legal issue. Similarly, the matter may
be revisited if new legal issues are raised as a consequence of significant
developments in the law, or if there is a change in the circumstances or
evidence that fundamentally shifts the parameters of the debate (emphasis
added).
[27]
The threshold to revisit a binding precedent is “not an easy one to reach” (Bedford, at para
44). In Bedford, however, the Supreme Court noted that the trial judge
in that case was permitted to revisit a Supreme Court precedent and was “entitled to rule on whether the laws in question violated
the security of the person interests under s.7 of the Charter” (Bedford,
at para 45). In that case, the trial judge first determined whether she could
revisit the Supreme Court precedent. Concluding that she could, she then
conducted the requisite constitutional analysis.
[28]
In keeping with Bedford then, before
binding precedent can be reconsidered, Mr. Moretto must establish that new
legal issues arise because of changes in the law.
[29]
In this case, Mr. Moretto primarily argues that
the application of s.68(4) engages his right to liberty and security of the
person under s.7. Further, he argues that the deprivation of these rights by
s.68(4) is grossly disproportionate and arbitrary, and therefore contrary to
the principles of fundamental justice. He similarly argues, under s.12, that
s.68(4) is grossly disproportionate. He raises new arguments with respect to
s.2(d) of the Charter, and submits that international law supports his
contentions.
[30]
The section 7 and section 12 Charter
challenges to s 68(4) of the IRPA were unsuccessful in this Court in Dufour
v Canada (Citizenship and Immigration), 2012 FC 580 [Dufour]. On a
strict application of Dufour, Mr. Moretto’s judicial review would be
dismissed. However, the more recent interpretation of s.7 from Bedford
(at paras 125-127) affirms that s.7 and s.1 of the Charter are distinct
so that overriding public goals are not considered in the s.7 analysis. Further,
in Bedford, at para 45, the Supreme Court confirmed that the principles
of fundamental justice—particularly arbitrariness, overbreadth, and gross
disproportionality—have only developed in recent years, after Chiarelli.
Now, an arbitrary, overbroad, or grossly disproportionate impact on one person
is sufficient to establish a breach of s.7 and there is no need to consider
other interests. Further, this change in the law has been interpreted as
impacting the s.1 analysis (R v Michaud, 2015 ONCA 585 at para 83).
[31]
These developments are relevant here as Mr.
Moretto argues that the constitutional flaw in s.68(4) is its automatic
application, which does not permit analysis of individual circumstances.
According to Mr. Moretto, Chiarelli adopts a societal principle into the
s.7 assessment, namely the concept that the government has the right to decide
which non-citizens can remain in Canada, so that Canada does not become a safe
haven for criminals. This is true: Chiarelli, at 733 expressly adopts
this principle. However according to Bedford, this question ought to be
approached from the individual’s perspective in assessing this common law
principle against the Constitution.
[32]
With respect to s.12, Chiarelli, at para
735 left for another day the issue of whether deportation could constitute “treatment” under s.12. Further, in R. v Nur,
2015 SCC 15 at para 71[Nur], the Supreme Court also held that a law
upheld under s.12 can later be challenged by a different claimant, because “stare decisis does not prevent a court from looking at
different circumstances and new evidence that was not considered in the
preceding case.”
[33]
These developments with respect to s.12 Charter
arguments are relevant to the arguments raised in this case.
[34]
Further, based on Bedford, at para 42,
the fact that Mr. Moretto raises a new Charter provision, s.2(d), in
attacking the constitutionality of s.68(4) also weighs in favour of revisiting Chiarelli
and Medovarski.
[35]
As such, I am satisfied that developments in the
case law on the interpretation of ss.7 and 12 of the Charter, and the
raising of s.2(d), permit the revisiting of Chiarelli and Medovarski.
B.
Section 7
(1)
Relevant Legal Principles
[36]
Mr. Moretto argues that his s. 7 Charter
rights to life, liberty, and security of the person are engaged because of the
exceptional circumstances of his case. Namely, he has been in Canada since he
was an infant and Canada is the only country he knows. He also claims to suffer
from mental illness. He relies upon reports from doctors, in particular a
psychologist, Dr. Karl Williams, who states that Mr. Moretto’s forced return to
Italy will be a “life shortening” event.
[37]
Considerations under s.7 are two-fold. First a
claimant must demonstrate that the challenged law deprives him or her of life,
liberty, or security of the person. If so, section 7 is engaged. Once s. 7 is
engaged, the claimant must then demonstrate that the deprivation in question is
not in accordance with the principles of fundamental justice (Carter, at
para 55).
[38]
Applying these principles, Mr. Moretto seeks to
demonstrate that the finding of inadmissibility mandated by s.68(4) engages his
s.7 interests and is contrary to the principles of fundamental justice. In
order to do so, he must demonstrate that recent Supreme Court case law,
particularly the development of the principles of fundamental justice in
Bedford and Carter, mandates a different result under s.7 then the
analysis and result undertaken in Chiarelli, Medovarski and the
cases at this Court.
[39]
As necessary context, s. 7 of the Charter has
not been interpreted to impose positive obligations on the government, much
less to provide a statutory appeal process, to continue a stay of removal
order, or to grant refugee status (Gosselin v Québec (Attorney General),
2002 SCC 84 at para 82; Canadian Doctors for Refugee Care v Canada (Attorney
General), 2014 FC 651 at para 8; Y.Z. v Canada (Citizenship and
Immigration), 2015 FC 892 at para 143; Charkaoui v Canada (Citizenship
and Immigration), 2007 SCC 9 at para 136 [Charkaoui]; Febles,
at para 68).
[40]
Further, this Court in the s.7 context has previously
held that to strike down s.68(4) would, in effect, impose a positive obligation
on the government to provide a statutory appeal (Dufour, at para 5).
This interpretation is relevant to this case, as Mr. Moretto makes the same
argument here in light of the recent developments in the principles of
fundamental justice.
(2)
Engagement
[41]
Mr. Moretto must first demonstrate that one of
the protected interests under s.7 is engaged by the automatic operation of
s.68(4). In his submissions, Mr. Moretto focused on the liberty and security of
the person interests.
[42]
Liberty, under s.7, is described as having both
a physical and personal component (Blencoe v British Columbia (Human Rights
Commission), 2000 SCC 44 at para 49 [Blencoe]). Mr. Moretto’s
submissions focused on the personal component. The personal component provides
that liberty is engaged where state compulsions or prohibitions affect
fundamental life choices (Blencoe, at para 49). The sphere of personal
autonomy afforded by the liberty interest does not “encompass
any and all decisions that individuals might make in conducting their affairs”
(Godbout v Longueuil (City), [1997] 3 S.C.R. 844 at para 66).
[43]
Here, Mr. Moretto has failed to demonstrate what
“fundamental life choice” is engaged by s.68(4).
On principle, the choice to remain in Canada after violating the terms of the
stay order cannot be the sort of fundamental choice protected by the Charter.
Section 68(4) merely lifts a discretionary, statutory stay. As noted above, a
declaration of inadmissibility and deportation are two different mechanisms (Poshteh,
at paras 61-63). Even then, deportation per se does not
affect the liberty interest (Medovarski, at paras 45-46). Mr. Moretto
has not demonstrated how the changes in the s.7 jurisprudence would affect this
conclusion regarding the liberty interest and the fundamental distinction
between inadmissibility and deportation.
[44]
On the other hand, security of the person
considerations under s.7 have a physical and psychological component (Blencoe,
at para 55). Mr. Moretto’s submissions focused on his psychological security of
the person. In order for psychological security of the person to be
constitutionally affected, Mr. Moretto must demonstrate that he is affected by “serious state imposed psychological stress” (Blencoe,
at para 57). Mr. Moretto must also show a “sufficient
causal connection” between government action and the security of the
person violation (Bedford, at para 75).
[45]
Here, Mr. Moretto argues that s.68(4) violates
his psychological security of the person because it does not take account of
his status as a long-time permanent resident, with mental illnesses and
addictions, whose criminality is related to his disability. Mr. Moretto relies
upon the evidence of Dr. Williams and other medical evidence.
[46]
A similar argument was considered and rejected
in the recent case of Revell. Like the situation here, it was argued in Revell
that deportation, given the applicant’s circumstances, would constitute “serious state-imposed psychological stress”
sufficient to impact his psychological security of the person. Justice Kane
considered the evidence offered by Revell, and ultimately concluded that though
the evidence noted that deportation would cause significant stress, the normal
incidences of deportation will not meet the threshold of “serious, state-imposed psychological stress” set out
in Blencoe because there was no risk of persecution, torture, or
detention in the removal of Revell from Canada (as in the cases of Singh v
Minister of Employment and Immigration, [1985] 1 S.C.R. 177, Suresh v
Canada (Minister of Citizenship and Immigration), 2002 SCC 1, and Charkaoui).
[47]
Mr. Moretto’s circumstances are analogous
to those in Revell. As noted, the effect of s.68(4) is to lift a
discretionary statutory stay, which was granted by the IAD in light of the Mr.
Moretto’s particular individual circumstances. However, the distinction between
a finding of inadmissibility and deportation described above applies. Namely,
the lifting of the stay and the bringing into force of a removal order cannot,
according to existing case law, constitute serious, state-imposed psychological
stress. Developments in Supreme Court case law do not change these fundamental
facts of immigration law.
[48]
Accordingly, Mr. Moretto has failed to show a
nexus between the lifting of the stay order and his mental illnesses because,
as noted, the lifting of the stay order and his deportation are two different
processes. The ordinary stresses associated with a declaration of
inadmissibility in immigration law cannot rise to the level of a security of
the person breach (New Brunswick (Minister of Health and Community Services)
v G. (J.), [1999] 3 S.C.R. 46 at para 81).
[49]
For these reasons, I conclude that s.7 is not
engaged on these facts.
(3)
Principles of Fundamental Justice
[50]
Having concluded that s.7 is not engaged on
these facts, it is unnecessary to address the principles of fundamental
justice. However, in any event, Mr. Moretto has failed to establish that
s.68(4) is inconsistent with the principles protecting against gross disproportionality
or arbitrariness.
[51]
In Chiarelli and Medovarski at
para 47, the Supreme Court held that deportation does not breach the principles
of fundamental justice.
[52]
Subsequently, in Bedfordat para 125 the
Court clarified the role of the principles of fundamental justice
(specifically, arbitrariness, overbreadth, and gross disproportionality) in the
s.7 analysis:
All three
principles — arbitrariness, overbreadth, and gross disproportionality — compare
the rights infringement caused by the law with the objective of the law, not
with the law’s effectiveness. That is, they do not look to how well the law
achieves its object, or to how much of the population the law benefits. They do
not consider ancillary benefits to the general population. Furthermore, none of
the principles measure the percentage of the population that is negatively
impacted. The analysis is qualitative, not quantitative. The question under s.
7 is whether anyone’s life, liberty or security of the person has been
denied by a law that is inherently bad; a grossly disproportionate, overbroad,
or arbitrary effect on one person is sufficient to establish a breach of s. 7.
[53]
The question is whether the revised s.7
principles in Bedford mandate a different result than the application of
the principles of fundamental justice in Chiarelli. Mr. Moretto has
failed to demonstrate that there is a grossly disproportionate or arbitrary
effect on anyone created by s.68(4).
(1)
Gross Disproportionality
[54]
Gross disproportionality “only applies in extreme cases” where the seriousness
of the deprivation is totally out of keeping with the objective of the measure
(Bedford, at para 120). A grossly disproportionate effect on one person
is sufficient to found a s.7 violation (Bedford, at paras 120, 122). Mr.
Moretto argues that s.68(4) is grossly disproportionate because it applies
automatically, without any consideration of his particular circumstances.
[55]
In assessing this argument, the Charter
must be interpreted in light of the context in which it is invoked (R v Big
M Drug Mart Ltd., [1985] 1 S.C.R. 295; Edmonton Journal v Alberta (Attorney
General), [1989] 2 S.C.R. 1326 at 1355-56). In fact, the legislative objective
at issue is directly relevant in the assessment of the principles of
fundamental justice, including gross disproportionality: Bedford, at
para 120. In this sense, Chiarelli correctly notes that the overriding
principles of immigration law, as represented in the IRPA, are relevant to the
constitutional analysis.
[56]
Therefore, the constitutional effect of s.68(4)
of the IRPA must be interpreted in light of the larger context of the IRPA and
its objectives.
[57]
Section 68(4) reflects the overall objectives of
the IRPA, which “indicate an intent to prioritize
security” and “communicate a strong desire to
treat criminals and security threats less leniently than under the former Act”
(Medovarski, at paras 10-11).
[58]
At the same time, as noted in Medovarski regarding
other provisions of the IRPA, “[P]rovisions allowing
judicial review mitigate the finality of these provisions, as do appeals under
humanitarian and compassionate grounds and pre-removal risk assessments.”
These comments apply to the effect of s.68(4) as Mr. Moretto has and will
continue to receive the individualized proportionality assessment which he
argues is mandated by the Charter under other provisions of the IRPA.
[59]
In Stables, the Court noted such
individualized legislative “safety valves” which
are built into the IRPA leading up to a deportation order:
[56] I agree with the Respondent that when
considered as a whole, the process by which an applicant could face a finding
of inadmissibility and consequent enforcement of a removal order, reveals that
the process is consistent with the principles of fundamental justice:
• The
Applicant is afforded the opportunity to advance submissions why a s.44 report
should not be prepared or referred to the Immigration Division for assessment;
• The Applicant is afforded a hearing before the Immigration
Division on the merits of the inadmissibility allegation (s.45 IRPA). The
Immigration Division process affords the Applicant a hearing, before an
impartial arbiter, a decision on the facts and the law, and the right to know
and answer the case against him, the very things that fundamental justice would
require in the circumstances;
• Prior to removal, the Applicant is afforded an opportunity to
apply for PRRA to assess any alleged risks in his or her country of origin (s.
112 IRPA);
• Should the PRRA determine that the Applicant is a person in
need of protection, his or her removal cannot proceed unless he or she is found
to be a danger to the public (s.115(2) IRPA);
• Each of the above processes is subject to this Court’s
oversight by way of judicial review.
[60]
While the facts of Stables differ from
the ones here, the principle remains. Mr. Moretto had the full spectrum of
individualized processes noted in Stables available to him in advance of
the automatic operation of s.68(4). Namely:
- Mr. Moretto had
full participatory rights before the ID.
- Mr. Moretto had
the opportunity to appeal the removal order issued by the ID to the IAD
and was able to successfully judicially review the negative IAD decision.
- Mr. Moretto
received a three year stay from the IAD, wherein his personal
circumstances were considered.
- Despite his
convictions for crimes during the period of the stay, Mr. Moretto received
a further one year stay, which was granted on the basis of his compelling
humanitarian and compassionate [H&C] considerations.
[61]
In other words, under the provisions of the
IRPA, Mr. Moretto has already received the proportionate assessments he seeks,
specifically H&C consideration. The IRPA, while prioritizing security, also
has provisions for individualized assessment which protects against gross
disproportionality. For that reason, it cannot be said that the security
objective of the IRPA under s.68(4) is attained by grossly disproportionate
legislative means with respect to Mr. Moretto’s circumstances.
[62]
Further, Mr. Moretto has access to H&C
relief going forward, which means that his circumstances will be further
considered in the context of that discretionary relief, as noted by the Court
in an analogous s.68(4) fact situation: Bhoonahesh Ramnanan v Canada
(Citizenship and Immigration), 2008 FC 404 at para 57. While Mr. Moretto
argues that H&C relief is not a remedy because he may have to file his
application outside of Canada, that is not a bar to the availability of
the discretionary relief, which acts as a safety valve against any gross
disproportionality.
[63]
A similar situation was addressed in Stables,
at para 40. There, the Court held that:
[E]ven if it is true that the Applicant, not
being a refugee, could be deported while he awaits the processing of his
ministerial relief application, it would still not be sufficient to trigger the
application of s.7 rights.
[64]
Following Stables, simply because the
discretionary assessment may occur outside of Canada does not mean it does not
meet constitutional standards.
[65]
I therefore conclude that the IAD did not err in
applying s.68(4) to Mr. Moretto. Any grossly disproportionate effects of the
mandatory lifting of a stay order are mitigated by the availability of a number
of individualized safety valves in the law, which Mr. Moretto has accessed in
the past, and can access in the future.
(2)
Arbitrariness
[66]
Arbitrariness exists where there is no connection
between the objective of a law and its effects on a claimant’s rights (Bedford,
para 98). In this case, a connection exists between the object of s.68(4) in
the context of the IRPA and any effect it imposes on liberty or security of the
person.
[67]
As noted above, the goals of the IRPA in this
context are designed to “prioritize security and to
protect the public” (Medovarski at paras 9-12; Dufour, at
para 41).
[68]
This goal is accomplished by the mandatory
lifting of the stay and termination of appeal under s.68(4). The goal is not
reached by unconstitutional means—again, s.68(4) exists in a statutory scheme
which takes the interests of the individual into consideration.
[69]
Therefore, the provision is not arbitrary.
C.
Section 12
[70]
Mr. Moretto makes similar arguments with respect
to s.12 of the Charter as made with respect to s.7 of the Charter.
He argues that the application of s.68(4) of the IRPA infringes his s.12
Charter rights because the automatic suspension of his stay upon a
finding of serious criminality is cruel and unusual punishment. He argues that
it is grossly disproportionate as there is no consideration of his personal
circumstances such as the gravity of his offences, his blameworthiness, or
mitigating factors. According to Mr. Moretto, it also does not account for the
fact that he has been in Canada since he was an infant, has no family in Italy,
does not speak Italian and has mental health issues.
[71]
There is a two-part test for s.12: (1) is there
treatment? (2) if there is treatment, is the treatment cruel and unusual?
(1)
Is there “treatment”?
[72]
The test for determining treatment under s.12 is
broad. In Chiarelli, the Supreme Court outlined an expansive definition
of treatment “as a process or manner or behaving
towards or dealing with a person or thing.” The Court at para 29 held
that deportation may “come within the scope of
‘treatment’ in s.12.”
[73]
Considering that “treatment”
is to be given an expansive interpretation, and accepting for the sake of this
analysis that Mr. Moretto is subject to the “special
administrative control of the state” (Rodriguez v British Columbia
(Attorney General), [1993] 3 S.C.R. 519 at 611), I accept that the application
of s.68(4) of the IRPA may be considered “treatment”.
(2)
Is the treatment cruel and unusual?
[74]
For “treatment”
to be cruel and unusual under s.12, it must be grossly disproportionate
(Nur, at para 39).
[75]
Mr. Moretto argues that s.68(4) is not “highly individualized” and the lack of discretion in
s.68(4) means that his personal circumstances have not been taken into account.
Therefore according to Mr. Moretto, its application to him is “grossly disproportionate.” Mr. Moretto draws
analogies to mandatory minimum sentences in the criminal context, which have
been struck down under the Charter as being grossly disproportionate.
For example, in Nur at para 43, the Court struck down a mandatory
minimum sentence for gun possession, describing the determination of a
proportionate sentence as a “highly individualized
exercised, tailored to the gravity of the offence, the blameworthiness of the
offender, and the harm caused by the crime.”
[76]
Mr. Moretto’s reliance upon criminal cases
dealing with the imposition of mandatory minimum sentences is misplaced. The
principle of proportionality in criminal sentencing is fundamental: R. v
Ipeelee, 2012 SCC 13 at para 37. Mandatory minimums have the potential to
depart from the principle of proportionality by their very nature (Nur,
para 44). However the considerations underpinning sentencing in the criminal
context are very different from the considerations here. Here what Mr. Moretto
challenges is a discretionary, statutory right of appeal. An individual has a
constitutional right to a proportionate sentence, but he does not have a
constitutional right to a statutory appeal.
[77]
Furthermore, the distinction between a finding
of inadmissibility and deportation itself must be considered. This Court and
the Federal Court of Appeal have found that s.12 can only be engaged at the
stage of deportation itself (Barrera v Canada (Minister of Employment and
Immigration), [1993] 2 FCR 3 (FCA) [Barrera]; Norouzi v Canada
(Immigration, Refugees and Citizenship), 2017 FC 368 at para 36 [Norouzi];
Brar v Canada (Citizenship and Immigration), 2017 FC 820 at para 32 [Brar]).
Even when it comes to deportation, courts have held that s.68(4) is not a form
of “punishment” and deportation itself is not
punishment (Dufour, at paras 41, 43-46; Canepa v Canada (Minister of
Employment and Immigration), [1992] 3 FCR 270 at para 14 (FCA)).
[78]
At this stage, although the previous removal
order is no longer stayed in Mr. Moretto’s favour, deportation proceedings have
not yet been undertaken. Therefore, at this stage, the arguments raised by Mr.
Moretto are premature with respect to s.12 considerations.
[79]
Even if Mr. Moretto’s s.12 arguments were not
premature, Charter arguments must be considered in the context in which
they arise. As noted above regarding s.7 of the Charter, s.68(4) is part
of the broader IRPA legislative scheme, which contains a number of avenues for
Mr. Moretto before and after the determination of inadmissibility by the IAD
(including s.25 H&C relief). These avenues mitigate against any gross
disproportionality in the application of s.68(4).
[80]
While Nur at para 91 explains that the
constitutionality of a law cannot depend on its proper implementation by state
agents, here the individualized proportionality assessment is built into the
IRPA itself in the form of the ID and H&C consideration accessed by Mr.
Moretto. He also had access to special consideration in the form of appeal
rights to the IAD.
[81]
Overall, Mr. Moretto has had the benefit of two
stays of his removal from Canada. His actions in continuing to reoffend
triggered the application of s.68(4) to his circumstances. The application of
s.68(4) in this case is consistent with the security objective of the IRPA, as
noted in Medovarski. Mr. Moretto’s ongoing criminal behaviour militates
against his cruel and unusual punishment arguments.
[82]
As such, I conclude that s.12 of the Charter is
not infringed based upon the facts of this case.
D.
Section 2(d)
[83]
Mr. Moretto argues that s.68(4) of the IRPA
infringes his s.2(d) Charter rights as the effect of his deportation
would be to sever his association with his family. He argues that the intimate
association of the family “is the foundational social
institution” and therefore should enjoy Charter protection. In
support of this argument he relies upon the purposive interpretation of s.2(d)
from Mounted Police Association of Ontario v Canada (Attorney General),
2015 SCC 1 [MPAO], and international law.
[84]
The Charter freedom of association
protection is focused on three sorts of activities: (1) the right to join with
others and form associations; (2) the right to join with others in the pursuit
of other constitutional rights; and (3) the right to join with others to meet
on more equal terms the power and strength of other groups or entities (MPAO,
at para 66).
[85]
Generally the activity protected by s.2(d)
ensures that the state does not substantially interfere with voluntary associations
in their meetings, formation, pursuit of other rights, or activities which
enhance the strength of the association to “achieve
collectively what they could not achieve individually” (MPAO,
para 62).
[86]
Courts have held that the associational activities
protected by s.2(d), as described in MPAO, do not envision the family as
a constitutionally protected unit. In Catholic Children’s Aid Society of
Metropolitan Toronto v S. (T.), [1989] OJ No 754 (Ont CA), the Ontario
Court of Appeal noted that a family’s association with one another is not for
the primary purpose of an economic, political, religious, or social purpose.
[87]
Similarly, the recent s.2(d) case law does not
mandate the inclusion of family. With respect to family associations,
generally, there is no “goal” in common which
families seek to advance; and families do not pursue “activities”
in common in the same way as labour unions, for example. Moreover, there is an
element of voluntariness which arises in the Supreme Court’s definition of
associational rights: s.2(d) protects the right to join with others and form
associations. In this case, Mr. Moretto did not join his family
voluntarily.
[88]
Mr. Moretto’s arguments on s.2 (d), while novel,
do not demonstrate a constitutional infringement.
E.
Section 1
[89]
As I have concluded that Mr. Moretto’s Charter
rights have not been violated, it is not necessary for me to assess the section
1 arguments.
F.
International Law
[90]
Mr. Moretto submits that developments in
international law are relevant to the Charter analysis.
[91]
He relies upon international law for the
proposition that s.2(d) should be interpreted to protect the family unit as an
association.
[92]
Relevant to his ss.7 and 12 submissions, Mr.
Moretto argues that developments in international law, specifically, decisions
of the European Court of Human Rights and the United Nations Human Rights
Committee, require that a “proportionality assessment”
be conducted prior to any removal of a long-term permanent resident. If the
deportation is grossly disproportionate, then deportation should not follow.
Mr. Moretto argues that Chiarelli and Medovarski should be
revisited in light of these international law developments.
[93]
This issue was addressed in Revell, at
paras 130-133 where Justice Kane held that while principles of international
law may inform the interpretation of the Charter, the developments in
international law do not require that the principles of fundamental justice be
reinterpreted in the context of deportation and are not sufficient to justify
departing from the principles established in the domestic law. This is
particularly so because the Federal Court of Appeal held in Charkaoui v
Canada (Citizenship and Immigration), 2007 FCA 80 at para 15 (leave to
appeal ref’d) that the principle in s.3 (3)(f) of the IRPA (providing that the
IRPA be construed and applied in a manner that complies with international
human rights instruments to which Canada is a signatory) does not elevate
international law to that of domestic law.
[94]
Thus, while international law instruments signed
and ratified by Canada can inform constitutional interpretation, they cannot
supplant the Charter and domestic law (De Guzman v Canada (Minister
of Citizenship and Immigration), 2005 FCA 436 at para 87). In relation to
the IRPA, international law does not materially change the proportionality
assessment which already exists under the statute. Further, for the reasons
noted above, international law cannot effectively “read
in” a provision into the Charter respecting the family. As
such, the principles of international law do not change the substantive
outcomes in this case.
G.
Proposed Questions for Certification
[95]
Mr. Moretto proposes the following 5 questions
for certification:
(1) 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?
(2) 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?
(3) 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)?
(4) Can the psychological, social, and linguistic impact of uprooting of
a long term permanent resident be found to be grossly disproportionate in the
context of a deportation?
(5) Is the family an association under s.2(d) of the Charter and,
if so, can deportation infringe the freedom of the family to associate?
[96]
The Respondent opposes certification of the
proposed questions and argues that they do not satisfy the requirements of
s.74(d) of the IRPA which states:
|
74 Judicial review is subject to the
following provisions:
|
74 Les règles suivantes s’appliquent à la
demande de contrôle judiciaire :
|
|
[…]
|
[…]
|
|
(d) subject to section 87.01, an appeal to the Federal
Court of Appeal may be made only if, in rendering judgment, the judge
certifies that a serious question of general importance is involved and
states the question.
|
(d) sous réserve de l’article 87.01, le jugement
consécutif au contrôle judiciaire n’est susceptible d’appel en Cour d’appel
fédérale que si le juge certifie que l’affaire soulève une question grave de
portée générale et énonce celle-ci.
|
[97]
The test for certification was recently restated
in Torre v Canada (Citizenship and Immigration), 2016 FCA 48 at para 3
as follows:
Under subsection
74(d) of IRPA, only a serious question of general importance may be certified
and thus open the possibility of an appeal from a judgment following an
application for judicial review. This requirement has been interpreted by the
Court several times, and the law is now well settled: to be certified, a
question must be dispositive of the appeal and transcend the interests of the
immediate parties to the litigation due to its broad significance: Canada
(Minister of Citizenship and Immigration) v. Liyanagamage [1994], FCJ No.
1637 at paragraph 4, 176 N.R. 4; Zhang v. Canada (Minister of Citizenship
and Immigration), 2013 FCA 168 (CanLII) at paragraph 9, [2013] FCJ No. 764.
In other words, a certified question is not to be a reference of a question to
this Court, and a certified question must have been raised and decided by the
court below and have an impact on the result of the litigation: Zazai v.
Canada (Minister of Citizenship and Immigration), 2004 FCA 89 (CanLII) at
paragraphs 11–12, [2004] FCJ No. 368; Lai v. Canada (Minister of Public
Safety and Emergency Preparedness), 2015 FCA 21 (CanLII) at paragraph 4,
[2015] FCJ No. 125.
[98]
A certified question will only be sufficiently
general and important where the law is unsettled on the question (Mudrak v
Canada (Citizenship and Immigration), 2016 FCA 178 at para 36; Leite v
Canada (Citizenship and Immigration), 2016 FC 1241 at para 28).
[99]
Against this backdrop I will consider each of the
proposed questions.
(1)
Question 1
[100] The proposed question is similar to the question certified in Revell.
Although Justice Kane held that a finding of inadmissibility cannot engage
s.7 as there are further steps in the immigration process, she did note that some
cases do not recognize this distinction (for example, Romans v Canada
(Minister of Citizenship and Immigration), 2001 FCT 466). She therefore
certified a question.
[101] Although there were different provisions of the IRPA at issue in Revell
as compared to this application, the facts of both cases are similar and the
ultimate impact of the relevant provisions of IRPA are the same – namely
deportation of long term permanent residents of Canada, away from their family
and to a country in which they have never or only briefly resided.
[102] Accordingly and in keeping with the principle of comity, I will
certify the same question as follows:
Is section 7 engaged at the stage of
determining whether a permanent resident is inadmissible to Canada 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?
(2)
Question 2
[103] This question is the same as the second question certified in Revell
relating to the principle of stare decisis and the impact of the
Supreme Court of Canada’s decision in Chiarelli on the s.7 and s.12
analysis.
[104] Given my comments about judicial comity above, this question will
also be certified, as follows:
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?
(3)
Question 3
[105] This question relates to the prematurity issues respecting s.12 of
the Charter and the differences which appear to arise in the reported
cases.
[106] In Brar at para 31, Justice Manson relied on existing
case law providing that s.12 Charter arguments were premature prior to
actual removal. In Revell, Justice Kane found that her s.12 conclusions
were not at odds with Brar.
[107] Much of the case law on this matter rests on the distinction between
admissibility and deportation. In Barrera, there was no actual
Ministerial decision made yet to deport a refugee who committed crimes in
Canada, with no assessment of risk in the home country. In Norouzi, a
recent decision, Justice Bell decided that s.12 arguments were premature where
the Refugee Protection Division imposed a cessation of the applicant’s refugee
status, but the applicant had not yet been referred to an admissibility
hearing.
[108] In Santana v Canada (Public Safety and Emergency Preparedness), 2013
FC 477, however, the facts were similar to this case; the applicant was cited
for serious criminality, and was issued a removal order which was appealed to
the IAD. Justice Shore found that the s.12 matter was premature because his
removal was yet to be decided.
[109] However, as noted in Revell, there is uncertainty whether
there is a distinction between a finding of inadmissibility and deportation.
This distinction is relevant in the s.12 context as well. A section 12 analysis
will be premature if there is a distinction between a finding of inadmissibility
and deportation. If there is no distinction, a s.12 challenge will not be
premature.
[110] Here, Mr. Moretto has been subject to a removal order since 2011.
Although he has had the benefit of a stay of his removal, that stay has now
been lifted, bringing into force a previously dormant removal order. This was
not the case in Brar, Norouzi, or Barrera.
[111] Therefore the situation is not hypothetical, and if there is no
distinction between admissibility and deportation, then Mr. Moretto can
challenge the lifting of his removal order under s.12. As such, though this
question was not at issue in Revell, the following question is
appropriate to certify:
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)?
(4)
Question 4
[112] This question relates to the consequences of deportation as it
relates to psychological, social, and linguistic impacts. In Revell,
Justice Kane refused to certify a similar question which asked whether “there are circumstances” in which the deportation of
a permanent resident would violate the principle of gross disproportionality.
She held that this question was too broad.
[113] Here the question posed does not transcend the interests of the
parties. Further the question of Mr. Moretto’s “psychological,
social, and linguistic” circumstances is largely hypothetical.
[114] This question will not be certified.
(5)
Question 5
[115] This question relates to whether the family is an association
contemplated by s.2(d) of the Charter, and whether deportation could
infringe the right of individuals to associate with the family.
[116] In my view, this question is too broad to be certified and it does
not arise from the facts of the case. The main thrust of Mr. Moretto’s s.2(d)
arguments did not relate to whether family was an association within s.2(d) or
whether deportation in all circumstances could infringe s.2(d). Rather, he
argued that s.68(4) violated the s.2(d) right of a long-term permanent
resident, with family ties within Canada, who was to be deported to a country
with no family supports. Mr. Moretto supported these arguments by relying upon
international law which focus on international norms regarding deportation of
long-term permanent residents.
[117] However, Mr. Moretto’s argument regarding s.2(d) was specific to his
circumstances, yet the question sought to be certified is not specific to the
circumstances of this case, and relates to an academic question of whether the
family is a protected unit under the Charter.
[118] For this reason, the s.2(d) question is too broad to be certified.
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