Catenacci v. Canada (Attorney General), 2006 FC 539

Date: 20060428

Docket: T-822-05

Citation: 2006 FC 539

Ottawa, Ontario, April 28, 2006

PRESENT:      The Honourable Mr. Justice Phelan

BETWEEN:

MAURIZIO CATENACCI

and NANCY JOAN CATENACCI

Applicants

and

ATTORNEY GENERAL OF CANADAand

THE MINISTER OF PUBLIC SAFETY AND

EMERGENCY PREPAREDNESS

Respondents

REASONS FOR JUDGMENT AND JUDGMENT

I.           OVERVIEW

[1]                Maurizio Catenacci (Catenacci), one of the Applicants (the other is his wife), is a Canadian permanent resident serving a prison sentence in the United States of America. He applied to be transferred to Canada so that he could complete his sentence here. Catenacci was informed that he did not qualify for the prisoner transfer program because he was not a Canadian citizen.

[2]                The International Transfer of Offender Act (ITOA) and the Treaty between Canada and the United States of America on the Execution of Penal Sentences (the Treaty) permit a person incarcerated in the United States to be considered for transfer to a penal institution in Canada. The ITOA, and thus, by extension, the Treaty in respect of Canada, applies only to Canadian citizens.

[3]                The Applicants seek judicial review of the determination that Catenacci was not eligible for transfer to Canada. Specifically, he seeks a declaration that the limitation in the ITOA to Canadian citizens violates s. 15 of the Charter of Rights and Freedoms (the Charter). Section 7 of the Charter was not argued even though it was raised in the Notice of Constitutional Question.

[4]                The Notice of Constitutional Question describes the relief sought, more particularly as:

(a)         a declaration that section 2 and all consequent provisions of the International Transfer of Offenders Act, S.C. 2004, C. 21 is deficient in not including permanent residents of Canada in the category of persons who may be transferred from another state jurisdiction to serve a penal sentence in Canada and as such is contrary to ss. 7 and 15 of the Charter of Rights and Freedoms, 1982 and of no force and effect, as worded, under s. 52 of the Constitution Act, 1982;

(b)         a declaration that Article 2(b) and all consequent provisions of the Treaty between Canada and the United States of America on the Execution of Penal Sentences, CTS 1978, No. 12 is deficient in not including permanent residents of Canada in the category of persons who may be transferred from the United States to serve a penal sentence in Canada and as such is contrary to ss. 7 and 15 of the Charter of Rights and Freedoms, 1982 and of no force and effect, as worded, under s. 52 of the Constitution Act, 1982;

(c)         a declaration that Article 2(b) and all consequent provisions of the Convention on the Transfer of Sentenced Persons, CTS 1985/9 is deficient in not including permanent residents of Canada in the category of persons who may be transferred from another state jurisdiction to serve a penal sentence in Canada and as such contrary to ss. 7 and 15 of the Charter of Rights and Freedoms, 1982 and of no force and effect, as worded, under s. 52 of the Constitution Act, 1982; and

(d)         a declaration that the Applicant, Maurizio Catenacci, has a right to be considered for a transfer from a penal institution in the United States of America to serve the remainder of his sentence in a penal institution in Canada as a just and appropriate remedy under s. 24 of the Charter of Rights and Freedoms, 1982.

II.          FACTUAL BACKGROUND

[5]                Catenacci was born of Italian parents in Italy in 1964 and is an Italian citizen. At the age of two, his family moved to Canada where they have resided ever since. Catenacci is a permanent resident and never applied for Canadian citizenship although his mother and two sisters did so and became citizens. Catenacci's wife, the other Applicant, is a Canadian citizen as are his two teenage sons.

[6]                Catenacci grew up in Canada and continued to live and work in Canada except for those periods when he was abroad playing hockey. From 1983 to 1999, Catenacci played professional hockey in Italy and for other European teams. During the off-season, he returned to Canada for work. After he retired from hockey in March 1999, he returned to Newmarket, Ontario, where he worked in automobile sales and coached minor hockey.

[7]                While Catenacci never applied for a Canadian passport, he did obtain an Italian passport in 1983 after he signed a contract to play professional hockey in Italy. As of 1992, Italy permitted citizens to hold dual citizenship. The number of players (holding dual or foreign citizenship) eligible to play hockey professionally on any Italian team was restricted. Therefore, it was to Catenacci's advantage to hold only Italian citizenship while he pursued his professional hockey career in Italy.

[8]                Catenacci was also employed as a car salesman and, through contacts there, he apparently became engaged in the drug trade. As set out in the Pre-sentence Report prepared for the U.S. District Court, Catenacci served as a courier in a criminal organization, headed by his co-accused, which smuggled large quantities of cocaine from the United States to Canada where it was sold and distributed. During 1998, Catenacci conspired with five others, including his brother-in-law, to purchase, transport and distribute cocaine.

[9]                Catenacci's role in this cocaine trading operation was to transport the U.S. funds from Canada to the United Stateswhere the funds were used to purchase the cocaine which was transported by others to Canada. Catenacci was aware that the funds which he transported to the United States were to be used for the purchase of cocaine.

[10]            Following indictment by a Federal Grand Jury in Virginia, Catenacci was arrested on January 12, 2000 in Canada on charges laid against him in the United States. In May 2003 he consented to his extradition to Virginia.

[11]            Pursuant to plea agreement entered into after Catenacci had been advised that Canadian citizenship was a requirement under ITOA, he pled guilty to one count of conspiracy to possess with intent to distribute and to distribute cocaine - an offence which constitutes serious criminality under the Immigration and Refugee Protection Act (IRPA). On December 19, 2003, he was sentenced to 46 months in custody, less 7½ months for time served, plus three years' supervised release - probation in Canadian terms. He is currently serving his sentence in federal prison in Ohio and is due to be released from custody in August 2006.

[12]            Catenacci made a written request in the form prescribed under ITOA regulations for transfer to Canada to serve the remainder of his sentence. He left the citizenship question blank on that form. Catenacci was then informed in October 2004 that he was not eligible for transfer because he was not a Canadian citizen.

[13]            The Applicants, through new counsel, in January 2005 sought from the Canadian Border Services Agency (CBSA) a "no objection" notice in respect of Catenacci's transfer, effectively Canada's consent to the transfer from the U.S. prison. This was denied principally because neither the Act nor the Treaty covers the transfer of permanent residents. A judicial review application of that decision was commenced and then withdrawn. The judicial review application before this Court is the one filed on May 10, 2005.

III.        ISSUES

[14]            The parties have agreed that the issue of the timeliness of the judicial review application (filed more than 30 days after the impugned decision) and the issue of Mrs. Catenacci's status as a party are not, in view of the declaration sought, necessary for the Court to decide.

[15]            While the issue, as initially framed by the parties, was whether section 2 of the ITOA and Article 11b of the Treaty are discriminatory under section 15 of the Charter, that issue must be resolved by examining three issues:

1)          Is s. 15(1) of the Charter engaged where the legislation is consistent with the rights entrenched in s. 6(1) of the Charter?

2)          If the answer to issue (1) is in the affirmative, is s. 2 of the ITOA in breach of s. 15 of the Charter on the grounds of discrimination?

3)          If the answer to issue (2) is in the affirmative, is s. 2 of the ITOA saved by s. 1 of the Charter?

IV.        APPLICABLE LEGISLATION

[16]            Section 6(1) and (2) of the Charter guarantees to Canadian citizens the right to enter, remain in and leave Canada; whereas permanent residents (along with citizens) only have the right to move to, reside in and work in any province.

[17]            Section 15(1) of the Charter guarantees equality and prohibits discrimination based on both the traditional enumerated grounds found in human rights legislation as well as on analogous grounds.

[18]            Canada was instrumental in leading nations to enter into arrangements for the transfer of prisoners from a foreign state to the prisoner's own state for purposes of completing their sentences. Canada entered into its first transfer treaty in 1978 which was with the United States. It then enacted legislation to govern this prison transfer program, under treaties, in the 1977-78 Transfer of Offenders Act. That legislation was superseded by the current ITOA in May 2004.

[19]            Section 2 of ITOA contains the allegedly offending provision in its definition of "Canadian offender" to whom the benefits of the transfer to Canadian prisons are available:

[20]            The similar provision governing "foreign offenders" extends the definition to include both citizens and "nationals" of the foreign entity.

[21]            A critical provision of the ITOA, upon which there was considerable argument as to its breadth was the purpose clause - s. 3. That clause underlines that the purpose of the ITOA is the administration of justice, and the reintegration and rehabilitation of offenders into the community.

[22]            It was the Respondents' position that the purpose of the ITOA was broader than the words of s. 3 suggest - that the purpose of the legislation is to protect the Canadian public, to foster international co-operation and to encourage naturalization and citizenship. These arguments were raised in the context of s. 1 of the Charter in respect of the objects served by the legislation, specifically, that there was a pressing objective and that there was a rational connection between the objects of the legislation and the limitation on rights and freedoms.

[23]            The system for prisoner transfers requires the consent of the prisoner, the foreign country and Canada. The Minister must consider specific criteria in determining whether to consent to the transfer of a Canadian offender including whether the offender intended to abandon Canada as his or her permanent residence, and whether the offender has social or family ties to Canada.

[24]            To give effect to the legislation, Canada has entered into eleven bilateral and three multi-lateral treaties with foreign states, including, obviously, the United States. A common feature of all of these international agreements is that the treaty is applicable to "nationals" of each state. Each state then defines who is included in the term "national".

[25]            Canada has, by both treaty and domestic legislation, defined "national" as a Canadian citizen. Most states do likewise. However, under the Council of Europe, Convention on Transfer of Sentenced Persons, any state which is a member of the Council can determine who is a "national" - four states have included permanent residents as nationals. Likewise, in the Commonwealth Scheme for the Transfer of Offenders, a national can include a person who has "close ties with the administering country of a kind that may be recognized by that country for purposes of this Scheme". Some countries have recognized permanent residents as nationals.

[26]            Under the Transfer of Offenders Treaty between Canada and the United States, a transfer is available to an offender who is a "citizen of the Receiving State". Article 1(d) states that " "Citizen" includes an Offender who may be a dual national of the Parties and in the case of the United States, also includes nationals".

The evidence is that in the United States a "national" covers people in such territories as American Samoa, Guam and the like. It does not mean permanent residents.

V.         ANALYSIS

A.         Is Section 6 of the Charter Engaged by the ITOA?

[27]            Against this background, it is necessary to consider each of the issues, even if only in the alternative.

[28]            The Applicant's position is that s. 6 is irrelevant and is not engaged in a determination of whether the citizenship limitation in the ITOA complies with the Charter. The basis of this position is that the Applicant is simply seeking an opportunity to be considered for a process operated in Canada. Moreover, the Applicant argues that he is entitled as a permanent resident to enter Canada under the provisions of the IRPA until a determination to deport him is made. Until that time, to exclude him from the ITOA is contrary to s. 15.

[29]            On its face, the citizenship requirement does differentiate between persons on analogous grounds in s. 15. However, s. 6 of the Charter specifically authorizes differentiation based on citizenship with respect to the right to enter, remain and depart from Canada. It also differentiates (in respect of the right to move to and work in Canada) between citizens/permanent residents on the one hand and, on the other, persons in Canada who are here under different status.

[30]            In Adler v. Ontario, [1996] 3 S.C.R. 609 at p. 644, the Court held that one cannot use one part of the Constitution to interfere with rights protected by a different part of the same document. The Court expanded on this principle in Lavoie v. Canada, [2002] 1 S.C.R. 769 at p. 806 where the Court held that where the Charter authorizes differential treatment, a finding of a s. 15(1) violation would amount to a finding that the Charter was in violation of itself.

[31]            The situation is particularly stark where the Charter is specific in its differentiation, both as to class of person and the limited circumstances of differentiation. That differentiation, which is in s. 6, must be contrasted with the more general protection and breadth of grounds found in s. 15(1) to curtail certain types of differentiation.

[32]            The issue in this case is whether the differentiation is truly one of exclusion from entry into Canada. In order to make that determination, the Court must examine the context in which the legislation operates and the true nature of the right which is being asserted.

[33]            The present case is, to some extent, the obverse of the Supreme Court of Canada's decision in Canada(Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711. In Chiarelli, the Court had to deal with the constitutionality of the statutory scheme providing for the deportation of a permanent resident on conviction of a serious criminal offence. More specifically, the question was whether the provisions authorizing a security certificate (ss.82.1 and 83 of the Immigration Act, 1976) violated s. 7 of the Charter (life, liberty and security of the person).

[34]            The Court laid down some principles which are equally applicable (and perhaps more so given the degree of specificity of s. 6 ) to this case. The first is the importance of the contextual approach to the interpretation of provisions of the Charter. The second is that the most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country. The third is that Parliament has the right to bar criminal permanent residents from entering or staying in Canada.

[35]            This last point was expanded upon to affirm that, with respect to those who have violated an essential condition under which they were permitted to remain in Canada, there was no breach of fundamental justice in giving practical effect to the termination of their right to remain in Canada. As Sopinka J. stated in Chiarelli, above, at p. 734:

Thus Parliament has the right to adopt an immigration policy and to enact legislation prescribing the conditions under which non-citizens will be permitted to enter and remain in Canada. It has done so in the Immigration Act. Section 5 of the Act provides that no person other than a citizen, permanent resident, Convention refugee or Indian registered under the Indian Act has a right to come to or remain in Canada. The qualified nature of the rights of non-citizens to enter and remain in Canadais made clear by s. 4 of the Act. Section 4(2) provides that permanent residents have a right to remain in Canadaexcept where they fall within one of the classes in s. 27(1). One of the conditions Parliament has imposed on a permanent resident's right to remain in Canada is that he or she not be convicted of an offence for which a term of imprisonment of five years or more may be imposed. This condition represents a legitimate, non-arbitrary choice by Parliament of a situation in which it is not in the public interest to allow a non-citizen to remain in the country. The requirement that the offence be subject to a term of imprisonment of five years indicates Parliament's intention to limit this condition to more serious types of offences. It is true that the personal circumstances of individuals who breach this condition may vary widely. The offences which are referred to in s. 27(1)(d)(ii) also vary in gravity, as may the factual circumstances surrounding the commission of a particular offence. However there is one element common to all persons who fall within the class of permanent residents described in s. 27(1)(d)(ii). They have all deliberately violated an essential condition under which they were permitted to remain in Canada. In such a situation, there is no breach of fundamental justice in giving practical effect to the termination of their right to remain in Canada. In the case of a permanent resident, deportation is the only way in which to accomplish this. There is nothing inherently unjust about a mandatory order. The fact of a deliberate violation of the condition imposed by s. 27(1)(d)(ii) is sufficient to justify a deportation order. It is not necessary, in order to comply with fundamental justice, to look beyond this fact to other aggravating or mitigating circumstances.

[36]            These principles must have equal applicability to the issue of entrance into Canada of a permanent resident guilty of serious criminality. They must have similar applicability to provisions which allow for entry or upon which entry into Canada is an essential, if not overriding, element.

[37]            While what the Applicant says about his desire to participate in a transfer program and his rights as a permanent resident are true, those rights are not absolute. A permanent resident who has been convicted of an offence which constitutes "serious criminality" is inadmissible to Canada. Having been found inadmissible, the permanent resident may not be able to remain in or enter Canada.

[38]            The process of inadmissibility of a permanent resident requires a report being made to the Minister of the facts of the conviction. This process has been held to be fairly limited and does not accord the officer making the report very much latitude on whether and on what to report. (Correia v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 964 (QL), 2004 FC 782; Lee v. Canada(Minister of Citizenship and Immigration), [2006] F.C.J. No. 260 (QL), 2006 FC 158)

[39]            Following the report, the Minister has, in respect of permanent residents three options: (1) recognise the right to enter; (2) permit entrance for purposes of further examination; and (3) order the person deported.

[40]            Therefore, the Applicant's right to enter and remain in Canada is uncertain and seriously in peril. The critical nature of this right to enter and remain in Canada is clear from the context of the Applicant's circumstances. Quite simply, entry into Canada is the sine qua non of the opportunity to do his three years' probation in Canada.

[41]            When one examines the true nature of the Applicant's request for transfer, it is, at its core, his attempt to enter and remain in Canada for the duration of his prison term and hopefully thereafter. By being accepted for transfer, the Applicant is guaranteed entry - one cannot realistically anticipate that border officials would deny entry when the Minister had authorized that very entry. His deportation hearing having been deferred until the expiry of his probation, the Applicant would have the benefit in any proceeding related to his subsequent deportation, including an appeal (available because the offence at issue was committed outside Canada) or a humanitarian and compassionate application, of reliance on his good conduct during his probation.

[42]            That entry into Canada is the real right or benefit being sought is underscored by the Applicant's dilemma - a dilemma which any similarly situated permanent resident faces. The dilemma is that at the end of his imprisonment in the United States, the U.S. authorities will deport him. There is no assurance that they will deport him to Canada. There is a significant risk that he will be deported to Italy, his place of citizenship. He is therefore prepared to undergo three years' probation in Canada rather than simply end his term in the United States, at which point the U.S. would have no interest in supervising his probation.

[43]            Once in Italy, he argues that he has no assurance that he will be re-admitted to Canada. It was argued that because he does not have a permanent resident card, he cannot get on an airplane (or presumably a ship) to Canada. Further, he cannot secure such a card because he is required to be in Canada to pick up the card. It is difficult to understand this conundrum because the applicable regulations do not impose a requirement to attend in Canada to pick up the card. One would have thought that if a person is truly entitled to a permanent resident's card in accordance with status under IRPA, that person is entitled to secure it outside Canada at an embassy or similar location whether the card has expired, been lost, destroyed or confiscated.

[44]            Whatever the merits of this above proposition, the fact remains that the only means by which a permanent resident in the Applicant's situation can be assured of entry into Canada is by transfer as a prisoner from a foreign country into Canada. The pith and substance of the right or benefit which the Applicant seeks to assert is that of entry into Canada.

[45]            Therefore, the ITOA necessarily engages s. 6 of the Charter. In accordance with the judgment in Chiarelli that deportation of a permanent resident guilty of serious criminality is consistent with the Charter (in that instance s. 7), to deny a permanent resident guilty of serious criminality an opportunity to re-enter Canada must likewise be consistent with the Charter, particularly s. 6.

[46]            While the Court recognizes the somewhat unusual circumstances of Catenacci, that he has been a long-term permanent resident, that most of his ties are to Canada and that he has a loving family here who attended this hearing, the law does not distinguish between long and short-term permanent residence, or those with deep ties or little connection to the country, or those who have something other than a loving family here. It is often the tragedy of criminal behaviour that the family suffer the most. Catenacci chose his course of conduct; he put on and took off his "Canadianism" as it suited him. His rights as a Canadian citizen would have been different from those of a permanent resident as recognized by s. 6.

[47]            For these reasons, I find that s. 2 of the ITOA is in accord with s. 6 of the Charter. As such, it cannot also be contrary to s. 15 of the Charter.

[48]            In the event that Chiarelli is distinguishable or that its application only touches on s. 7 of the Charter or to deportation matters, despite the following quotation from that case, I will consider whether s. 2 of the ITOA is contrary and if so, whether it is saved by s. 1.

Although the constitutional question stated by Gonthier J. raises the issue of whether ss. 27(1)(d)(ii) and 32(2) violate s. 15 of the Charter, the respondent made no submissions on this issue. I agree, for the reasons given by Pratte J.A. in the Federal Court of Appeal, that there is no violation of s. 15. As I have already observed, s. 6 of the Charter specifically provides for differential treatment of citizens and permanent residents in this regard. While permanent residents are given various mobility rights in s. 6(2), only citizens are accorded the right to enter, remain in and leave Canada in s. 6(1). There is therefore no discrimination contrary to s. 15 in a deportation scheme that applies to permanent residents, but not to citizens.

B.          Is Section 2 of ITOA contrary to Section 15(1) of the Charter?

            Introduction

[49]            In Law v. Canada (Minister of Employment and Immigration, [1999] 1 S.C.R. 497, the Supreme Court articulated that the purpose of s. 15(1) is to prevent violation of human dignity and freedom through the imposition of disadvantage, stereotyping or political or social prejudice as to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society equally capable and deserving of concern, respect and consideration.

[50]            The Court underlined that the overriding concern of s. 15 is the protection and promotion of human dignity, and that dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to the individual needs, capacities or merits.

[51]            Therefore, the approach to determining a claim of discrimination under s. 15 is to analyse the following:

1)          Is there differential treatment?

2)          Is the differential treatment based on enumerated or analogous grounds?

3)          Is there substantive discrimination?

            Differential Treatment

[52]            As stipulated in Law, at p. 524, the questions to be addressed under this issue are:

Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantially differential treatment between the claimant and others on the basis of one or more personal characteristics?

[53]            The starting point is to identify the appropriate comparator group with which to compare the circumstances (law, program or activity and its effects) of the group said to be subject to discrimination. The appropriate comparator group was described by Justice Binnie in Hodge v. Canada(Minister of Human Resources Development), [2004] 3 S.C.R. 357 at 368:

The appropriate comparator group is the one that mirrors the characteristics of the claimant (or claimant group) relevant to the benefit or advantage sought except that the statutory definition includes a personal characteristic that is offensive to the Charter or omits a personal characteristic in a way that is offensive to the Charter.

[54]            While the Respondents acknowledge that the definition of "Canadian offender" creates a distinction between Canadian citizens and others, they argue that because of the unique circumstances of the case, it is impossible to identify an appropriate comparator group. They say that this is so because the Applicant is "outside the universe of people potentially entitled to apply for a transfer to serve their sentence in a Canadian prison".

[55]            With respect, the Respondents' position begs the question - the Applicant is beyond the so-called universe of people because the offending language of the statute makes it so. The comparator group is those persons who most closely reflect the Applicant without reference to the offending characteristic.

[56]            The selection of the comparator group is, according to Law, conducted from the perspective of the complainant. While it is somewhat difficult to contemplate that a complainant, in this case a serious criminal chooses the comparator, I take it that this is a presumption but that any choice of comparator must be a reasonable comparator.

[57]            The most narrowly construed comparator group would be permanent residents of Canada serving sentences outside Canada. However, a broader group possessing the similar characteristics would be persons serving sentences outside Canada who have some legal status to be in Canada. Since the enquiry is to seek the "universe of persons" who might be entitled to the benefit being deprived, the appropriate group is this broader one.

[58]            The Applicant referred in its Memorandum to "long-term permanent residents". The length of time that a person is a permanent resident has no relevance to his or her status as a permanent resident. One is either a permanent resident or one is not. Length of residency is not a relevant criterion for the purposes of finding a comparator.

[59]            Therefore, the relevant statutory provision does create differential treatment. It creates a formal distinction, based on one or more personal characteristics, namely, absence of citizenship.

Analogous Grounds

[60]            Given the Supreme Court's decisions in Law Society British Columbia v. Andrews, [1989] 1 S.C.R. 143 and Lavoie, there is no issue that citizenship is an analogous grounds of discrimination.

Substantive Discrimination

[61]            The formal inquiry under the Law decision is:

Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect and consideration?

[62]            The contextual factors engaged in this inquiry of whether the impugned legislation has the effect of demeaning his dignity include:

(a)         pre-existing disadvantage, stereotyping, prejudice or vulnerability;

(b)         correspondence between the grounds claimed and the actual needs, characteristics and circumstances of the claimant and others;

(c)         ameliorative purpose; and

(d)         nature and scope of the interest affected.

            Pre-Existing Disadvantage

[63]            Justice Iacobucci in Law at page 5 underscored that the most compelling factor that a legislative provision may infringe s. 15(1) is that it reflects or reinforces existing inaccurate understandings of the merits, capabilities and worth of particular persons or groups thereby further stigmatizing those persons or groups in their unfair treatment. Examples of race, religion and physical disabilities come easily to mind.

[64]            In Lavoie, dealing with the citizenship requirements for public service employment, the Supreme Court of Canada, at paragraph 45, held that "... it is settled law that non-citizens suffer from political marginalization, stereotyping and historical disadvantage".

[65]            Had it not been for such clear direction from the Supreme Court, I might have had more difficulty concluding that non-citizens, particularly those that are convicted of crimes outside Canada, fall into this area of pre-existing disadvantage. One might well have concluded that any discrimination is based more on their criminal activities than on their status as non-citizens.

[66]            Moreover, non-citizenship is not an immutable characteristic - it can be changed by a combination of time (three years in Canada) and compliance with legislative norms such as filing an application and crime-free behaviour. In the current circumstances, this is even more applicable as Catenacci deliberately chose to remain a permanent resident, and to gain from his Italian citizenship when it was more convenient or beneficial to do so.

[67]            The restriction on prisoner transfers to Canadian citizens does not appear to be based on a conclusion that non-citizens are less worthy of rehabilitation and reintegration. It is clearly linked to the fact that non-citizens do not have an absolute right to enter or remain in Canada; therefore, rehabilitation and reintegration may well be a moot point for those who are subject to deportation.

[68]            Contrary to the Respondents' submission that this is a neutral factor, in view of the settled law, it must be considered as a factor supporting discrimination, even if only marginally.

Correspondence between Grounds and Claimant's Needs, Characteristics and Circumstances

[69]            There is no effort in the legislation to address the rehabilitation and reintegration of the Applicant or his comparator group; their needs are excluded from the scope of the ITOA. While the discrimination may be supported by s. 6 and/or s. 1 of the Charter, for purposes of this analysis, there is no attempt to deal with non-citizens who have the need to be close to their Canadian family or to be able to maintain ties to Canadian society of which they are a member.

[70]            The legislation is per se exclusionary. There is no imperative which prevents non-citizens from inclusion for prisoner transfers. In the Commonwealth Treaty, as well as in some states of the E.U., non citizens/permanent residents are included. The exclusion is a policy choice of Parliament.

Ameliorative Purposes or Effects

[71]            The focus of this consideration is again found in Law, specifically at p. 539:

An ameliorative purpose or effect which accords with the purpose of s. 15(1) of the Charter will likely not violate the human dignity of more advantaged individuals where the exclusion of these more advantaged individuals largely corresponds to the greater need or the different circumstances experienced by the disadvantaged group being targeted by the legislation.

[72]            In my view, this contextual factor is largely neutral. The ITOA and the Treaties are not intended to have a purpose of ameliorating a disadvantage faced by Canadian citizens convicted outside Canada. There is no suggestion of an affirmative action provision or program.

[73]            On the other hand, the purpose of the Act, to rehabilitate and reintegrate targets that group for whom there is certainty that they have the right to return and remain in Canada. Other non-citizens guilty of serious criminality do not have the same assurance of being able to benefit from the purposes of the legislation.

Nature and Scope of Interests Affected

[74]            As held in Egan v. Canada, [1995] 2 S.C.R. 513, if all other things are equal, the more severe and localized the consequences on the affected group, the more likely that the distinction responsible for these consequences is discriminatory within the meaning of s. 15 of the Charter.

[75]            The Applicant is correct in its submissions that there are significant interests at stake in this matter. These include the rehabilitation goal of the transfer of offenders regime and the maintenance of connections to family, home and community.

[76]            However, the underlying interest affected is the ability to serve a criminal sentence in one's country of citizenship. This necessarily invokes the right of entry into Canada. In the instant case, it is the Applicant who is wholly responsible for his limitation on entry; he refused to take out citizenship when he had more than ample opportunity to do so; he committed offences of serious criminality when he was outside Canada.

[77]            As indicated earlier, the effect of Catenacci's transfer into parole in Canada is to effect an "end run" on the provisions of IRPA - to forestall the admissibility hearing until a date more convenient to him. This is the true nature and scope of the interest affected.

[78]            In summary, in my view, there is a significant difference between the type of discrimination contemplated by s. 15, for example on the basis of race or religion, and the limitations put upon non-citizens who commit crimes outside Canada. One's race, religion, sex and some other analogous grounds are largely not matters of choice (or if matters of choice, they are matters which one should be free to select) and are matters which society chooses to protect and defend. The same cannot be said about those who choose to commit crimes, particularly, in this case, outside Canada, or who elect not to become Canadian citizens.

[79]            Therefore, examining all of these factors, I cannot find that the distinction in the legislation is the type which constitutes the discrimination prohibited by s. 15. To the extent that these non-citizens are stereotyped or disadvantaged, it is more related to their criminal conduct than to their citizenship status.

[80]            However, if taking account of the Supreme Court's conclusions that citizenship is an analogous ground as held in Andrews, and in Lavoie, and the ITOA may be said to be discriminatory under s. 15, the issue is then whether the ITOA provision is saved by s. 1 of the Charter.

C.         The Applicability of Section 1 of the Charter

[81]            Even if the provisions of the ITOA do constitute discrimination under s. 15, under s. 1 of the Charter, the provisions can be saved if the limitation is a reasonable limit prescribed by law which can be reasonably justified in a free and democratic society. In order to meet the burden on the government to establish the s. 1 justification, it must meet the following tests in accordance with R. v. Oakes [1986] 1 S.C.R. 103:

·                     the objective of the legislation must be pressing and substantial; and

·                     the means chosen to limit the Charter protection must be proportional.

To meet the proportionality test:

(a)         the rights violation must be rationally connected to the aim of the legislation;

(b)         the impugned provisions must minimally impair the Charter guarantee; and

(c)         the salutary effects of the impugned provision must outweigh its deleterious effects.

[82]            With respect to the evidence to support this justification, the Respondents relied on the evidence of Norman Payette, a government official who outlined the key elements of the bi-lateral and multi-lateral prison transfer treaties and the evidence of Peter Schuck, an American professor of law and a principal expert witness in the Federal Court Trial Division proceedings in Lavoie v. Canada (T.D.), [1995] 2 F.C. 623.

[83]            Professor Schuck's evidence was focused on the underlying purposes of citizenship criteria - that such criteria have important political, emotional and motivational purposes in a society. Much of his evidence, while interesting, concerned sociology more than his purported area of expertise, the law. That evidence must also be approached with certain caution; as the professor candidly acknowledges, Canadian constitutional law and values are neither identical nor comparatively applicable to all aspects of U.S. law.

Pressing and Substantial

[84]            The Respondents have argued that the objectives served by the legislation are (a) the protection of the public, (b) international co-operation, and (c) encouragement of naturalization and citizenship. The Respondents submitted that the purposes of the legislation are broader than those disclosed by s. 3 and that the reference in s. 3 of the ITOA to "rehabilitation and reintegration" are just the means to achieve these objectives.

[85]            However, the objectives of the legislation are, where such a clause exists, set forth in the purpose clause. There is and must be a clear differentiation between the purposes of legislation and the effects of legislation, as reaffirmed in R. v. Big M. Drug Mart Ltd., [1985] 1 S.C.R. 295 at p. 334:

In short, I agree with the respondent that the legislation's purpose is the initial test of constitutional validity and its effects are to be considered when the law under review has passed or, at least, has purportedly passed the purpose test. If the legislation fails the purpose test, there is no need to consider further its effects, since it has already been demonstrated to be invalid. Thus, if a law with a valid purpose interferes by its impact, with rights or freedoms, a litigant could still argue the effects of the legislation as a means to defeat its applicability and possibly its validity. In short, the effects test will only be necessary to defeat legislation with a valid purpose; effects can never be relied upon to save legislation with an invalid purpose.

[86]            It may be that the ITOA serves the goals which the Respondents call objectives but the clearest statement of the objectives, which I take as having the same meaning as "purposes", is to be found in and restricted to s. 3 of ITOA.

[87]            Therefore, the purposes of the legislation are the administration of justice and the rehabilitation and reintegration of citizens by permitting them to serve their sentences in their home country. It is evident that there is a strong element of protection of the public in these purposes. Canadian citizens who commit offences outside Canada must be readmitted into the country at the end of their foreign sentence. If there is legitimacy in the notion that recidivism is reduced by proper rehabilitation and reintegration into society, then there is a very direct and significant concern in ensuring that these offenders have the best chance of contributing to society and not reoffending. That purpose, in and of itself, is a "pressing and substantial objective". If protection of the public through extradition is "pressing" as found in Chiarelli, the same rationale applies to the admission to Canada of convicted criminals.

            Rational Connection

[88]            There is a rational connection between seeking to rehabilitate and reintegrate those offenders whom Canada must accept back and the limitation in the ITOA to Canadian citizens who enjoy the near absolute right of re-entry and residence.

[89]            The citizenship restriction can be seen as part of the overall policy of immigration and citizenship. Canada deliberately limits the rights of non-citizens (permanent residents or others) by considering them inadmissible for serious crimes or subject to deportation. It is therefore rational that Canada impose limits on the return of those non-citizens in respect of their time spent outside Canada, particularly where the conduct, while outside Canada, is criminal and is contrary to Canadian societal norms.

[90]            The ITOA can be seen as part of the package of duties and benefits available to citizens as an incidence of citizenship itself. The legitimacy of distinctions between citizens and non-citizens was acknowledged as having legitimate objectives. (See Lavoie, at pp. 816-820.)

[91]            There are even fewer distinctions between citizens and permanent residents. They come down to such rights as the right to vote, to a passport, to run for federal office or to sit as a judge - not all of these rights would be universally attractive. Therefore, the fewer the distinctions, the greater the importance of those distinctions. Professor Schuck described them as "the carrot and stick" of citizenship policy.

[92]            As held in Lavoie, pp. 818-819, there is a rationale connection and justification under s. 1 in the granting of certain privileges or rights to citizens and not to other persons:

While there is a point at which granting privileges to citizens may be unjustifiable under s. 1 - banning immigrants from social housing, perhaps - that point is not the same as the point at which this Court finds a s. 15(1) violation. Rather, as contemplated by s. 1 of the Charter, Parliament is entitled to some deference as to whether one privilege or another advances a compelling state interest. In this case, Parliament's view is supported by common sense and widespread international practice, both of which are relevant indicators of a rational connection. Short of rejecting Canada's entire citizenship policy, it seems rather speculative to suggest that this privilege is so arbitrary and unreasonable that it detracts from the value of Canadian citizenship.

[93]            It accords with common sense to limit the right of transfer to Canadian prisons to only those whom the country must allow, eventually, to enter and remain here. Parliament might have chosen to address this issue of non-citizenship as part of the exercise of the Minister's discretion to permit a transfer rather than as a precondition for consideration but that is, all other matters being compliant with the Charter, a matter within Parliament's purview.

[94]            It is also relevant under this heading to consider international practices, particularly in respect of other countries which constitute "free and democratic societies". Canada's limitation is consistent with that of the vast majority of countries with whom Canada has transfer of offender treaties. Even within the European Union, with whom Canada has such an agreement, only four (4) states accord the same rights to permanent residents as it does for citizens; the majority of those states in the Union do not.

[95]            In my view, there is a rational connection between the discrimination (assuming that discrimination exists) and the purposes of the legislation.

            Minimal Impairment

[96]            In this regard, this case is significantly different from Lavoie. In Lavoie, the citizenship restriction was not an absolute bar but merely a preference that had limited application to other employment competitions and stages of the competition process.

[97]            However, other factors suggest that the ITOA scheme meets the minimum impairment test. These include the scope of the persons affected (those non-citizens who commit offences outside Canada) who put themselves, through their own actions, at risk. In addition, the status of citizenship is readily achievable in most cases and in a relatively short period of time (three years' residency within the four years immediately preceding the date of a permanent resident's citizenship application). Furthermore, Canada facilitates citizenship status by permitting dual citizenship.

[98]            The issue of minimal impairment is even sharper in the instant case. Catenacci is the maker of his own mischief and he now bears the consequences. He had more than ample opportunity to become a Canadian citizen but he chose, for his own commercial gain, not to do so. Citizenship must be something more than a cloak of convenience to be worn to suit the mood.

[99]            Furthermore, Catenacci deliberately went out to break the law and engaged in the pernicious hard drug trade. He knew or must be taken to have known the consequences of these actions.

            Salutary v. Deleterious Effects

[100]        There was very little argument directed on this issue. There is, no doubt, cost to Catenacci by virtue of separation from his family but that arises principally from his incarceration not from its location. That separation flows from his own conduct.

[101]        There was a suggestion that by being deported to Italy rather than transferred to Canada, his rights as a permanent resident to return and face an admissibility hearing have been compromised. This is said to be caused by the expiry of his permanent resident's card which can only be renewed and picked up in Canada. Being in Italy, he could not be allowed on an aircraft to come to Canada. For reasons earlier given, this is an issue which should be resolvable. It is not the deleterious effects to which s. 1 analysis is directed.

[102]        The salutary effects of the limitation, in addition to the confirmation of the importance of citizenship, serve Canada's interest in abiding by its treaties (where other countries knew of Canada's limitation to citizenship when the respective treaties were concluded) and in excluding persons from entry into Canada who have committed serious crimes.

[103]        It should be noted that this decision turns on the fact of serious criminality. No other and lesser criminality issues were argued or are addressed in these reasons.

VI.        CONCLUSION

[104]        Taking all the tests or factors to be examined under a s. 1 analysis, I find that, to the extent that the citizenship requirement of the ITOA is discriminatory in contravention of s. 15, it amounts to a reasonable limit prescribed by law, demonstrably justified in a free and democratic society.

VII.       SUMMARY

[105]        The Court's conclusion is that:

(a)         s. 2 of the ITOA is in accordance with s. 6 of the Charter and therefore could not infringe s. 15 of the Charter.

(b)         in any event, s. 2 of the ITOA does not infringe s. 15;

(c)         and, to the extent that s. 2 of the ITOA is said to infringe s. 15 of the Charter, it is a reasonable limit in accordance with s. 1 of the Charter.

[106]        For these reasons, the relief sought and described in the Notice of Constitutional Question will not be granted.

[107]        The application for judicial review is dismissed with costs to the Respondents.

JUDGMENT

IT IS ORDERED THAT the application for judicial review is dismissed with costs to the Respondents.

"Michael L. Phelan"

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           T-822-05

STYLE OF CAUSE:                           MAURIZIO CATENACCI AND NANCY JOAN CATENACCI

                                                            and

                                                            ATTORNEY GENERAL OF CANADA AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS

PLACE OF HEARING:                     Toronto, Ontario

DATE OF HEARING:                       March 28, 2006

REASONS FOR JUDGMENT:        PHELAN J.

DATED:                                              April 28, 2006

APPEARANCES:

Ms. Barbara Jackman	FOR THE APPLICANTS
Mr. Barney Brucker Ms. Christine Mohr	FOR THE RESPONDENTS

SOLICITORS OF RECORD:

JACKMAN & ASSOCIATES Barristers & Solicitors Toronto, Ontario	FOR THE APPLICANTS
MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario	FOR THE RESPONDENTS