Date:
20121122
Docket:
T-1385-11
Citation:
2012 FC 1351
Ottawa, Ontario,
November 22, 2012
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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JOHN McLEOD
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Applicant
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and
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THE ATTORNEY GENERAL
OF CANADA
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
combined effect of subsection 50(b) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (IRPA) and subsections 99(1) and
128(3) the Corrections and Conditional Release Act, SC 1992, c 20 (CCRA),
is that foreign nationals, incarcerated for having committed a criminal
offence, are subject to removal from Canada immediately upon being granted any
form of conditional release. The applicant asks this Court to find these
provisions unconstitutional.
[2]
A
foreign national convicted of serious criminality is deported from Canada when their sentence is complete. Subsection 128(3) of the CCRA provides that
in the case of foreign nationals convicted prior to the coming into force of
the IRPA on June 28, 2002, the sentence is deemed complete immediately
upon being granted any form of conditional release or parole. In contrast, the
sentence of a Canadian prisoner continues until it is fully discharged. The
applicant contends that this divergent treatment offends sections 7, 9 and 15
of the Canadian Charter of Rights and Freedoms (Part I of the Constitution Act, 1982) (Charter).
[3]
Alternatively,
he seeks an order rendering these provisions inoperative in relation to him, so
that if he is granted day parole (DP) or an unescorted temporary absence (UTA)
statutory release or full parole, he will not be removed from Canada by virtue
of the removal order issued against him pursuant to subsection 44(2) of the IRPA.
[4]
For
the reasons that follow the application is dismissed.
Background
[5]
The
applicant, John McLeod, is a citizen of Jamaica. On December 17, 2001 he was
convicted of second degree murder in the killing of his girlfriend. He was
sentenced to life imprisonment with no eligibility for parole for 10 years. On
October 9, 2003, the Ontario Court of Appeal allowed a Crown sentence appeal
and increased the period of parole ineligibility to 12 years. That same day,
the Minister of Citizenship and Immigration issued a removal order against the
applicant under subsection 44(2) of the IRPA, consequent upon a finding
by the Immigration Division that he was inadmissible on grounds of serious
criminality pursuant to paragraph 36(1)(a) of the IRPA.
[6]
On
June 13, 2008 the National Parole Board (NPB) denied his application for UTA
and DP. This decision was upheld by the Appeal Division of the NPB on December
1, 2008. On August 31, 2011 the applicant became eligible for full parole. He
postponed the automatic full parole hearing until March 2012. The hearing did
not take place and he waived his right to it. He remains in custody in a
federal penitentiary.
[7]
Under
the CCRA, offenders become eligible for different kinds of conditional
release over the course of their sentence. DP and UTA are part of a regime of
graduated release intended to assist offenders with rehabilitation and
reintegration into society. Pursuant to sections 115 and 119 of the CCRA,
the applicant was eligible for UTA or DP three years before his full parole
eligibility date (August 31, 2008) and for full parole 12 years from the date
of his arrest (August 31, 2011). The applicant argues that he is deprived of
the benefit of these forms of conditional release because, if granted, they
result in his immediate deportation to Jamaica.
[8]
The
applicant is subject to deportation by reason of his serious criminal conduct.
Pursuant to paragraph 50(b) of the IRPA, however, a removal order is
stayed, inter alia, “in the case of a foreign national sentenced to a
term of imprisonment in Canada, until the sentence is completed”. However, subsection
128(3) deems the sentence of a foreign national to be completed for the
purposes of paragraph 50(b) of the IRPA as soon as any form of
conditional release is granted, including DP and UTA. As noted, under the CCRA,
a Canadian offender’s sentence continues while he or she is on conditional
release.
[9]
Subsection
128(4) of the CCRA provides that foreign nationals convicted subsequent
to the coming into force of the IRPA are not eligible for conditional
release until eligible for full parole. The constitutionality of this
provision was considered and sustained in Capra v Canada (Attorney General), 2008 FC 1212. This provision does not apply to the
applicant:
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Sentence deemed to be completed
128. (3) Despite subsection
(1), for the purposes of paragraph 50(b) of the Immigration and Refugee
Protection Act and section 64 of the Extradition Act, the sentence
of an offender who has been released on parole, statutory release or an
unescorted temporary absence is deemed to be completed unless the parole or
statutory release has been suspended, terminated or revoked, the unescorted
temporary absence is suspended or cancelled or the offender has returned to
Canada before the expiration of the sentence according to law.
Removal Order
(4) Despite this Act, the Prisons
and Reformatories Act and the Criminal Code, an offender against
whom a removal order has been made under the Immigration and Refugee
Protection Act is not eligible for day parole or an unescorted temporary absence
until they are eligible for full parole.
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Cas particulier
128. (3) Pour
l’application de l’alinéa 50b) de la Loi sur l’immigration et la
protection des réfugiés et de l’article 64 de la Loi sur l’extradition,
la peine d’emprisonnement du délinquant qui bénéficie d’une libération
conditionnelle ou d’office
ou d’une permission de sortir sans escorte est, par dérogation au paragraphe
(1), réputée être purgée sauf s’il y a eu révocation, suspension ou cessation
de la libération ou de la permission de sortir sans escorte ou si le
délinquant est revenu au Canada avant son expiration légale.
Mesure de renvoi
(4) Malgré la présente
loi, la Loi sur les prisons et les maisons de correction et le Code
criminel, le délinquant qui est visé par une mesure de renvoi au titre de
la Loi sur l’immigration et la protection des réfugiés n’est
admissible à la semi-liberté ou à la permission de sortir sans escorte qu’à
compter de son admissibilité à la libération conditionnelle totale.
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[10]
To
conclude, I adopt the summary of the legislative scheme as described by counsel
for the Attorney General:
(a) Paragraph 50(b) of IRPA
stays the execution of a removal order until the offender’s sentence is
completed;
(b) CCRA subsection 128(3)
deems the sentence completed, for removal order purposes, as early as the grant
of DP or UTA;
(c) Offenders sentenced
prior to the IRPA retain their original DP and UTA eligibility dates
which are not delayed until their full parole eligibility date; they are also
subject to removal under subsection 128(3) upon being granted DP or UTA;
(d) For offenders
sentenced after the coming into force of the IRPA in 2002, CCRA
subsection 128(4) postpones DP and UTA eligibility for offenders subject to
removal until full parole eligibility;
(e) CCRA subsection 128(6)
limits the operation of subsection 128(4), such that it does not apply where a
removal order cannot be enforced due to a statutory stay arising for reasons
other that the offender’s existing criminal sentence.
[11]
The
consequence of subsection 128(4) is that foreign offenders subject to a removal
order are not eligible for DP or UTA until they are eligible for full parole. The
applicant was sentenced prior to the coming into force of the IRPA and
so he is exempt from this consequence. He remained eligible for DP or UTA
prior to his full parole eligibility. However, he is still subject to removal
from Canada following any form of release. This remains the gravamen
for the constitutional challenge.
[12]
The
applicant asserts that this scheme violates his rights under the Charter.
The thrust of the argument is that the NPB refuses to grant any form of
conditional release unless it considers the offender a candidate for full
parole. The applicant contends that, without the provision deeming his
sentence to be complete, the NPB would be inclined to grant some form of
conditional release, for which he would be entitled to apply, before he was
eligible for full parole. The result, according to the applicant, is that
foreign nationals are denied the benefits of gradual release and reintegration
into society. This, in turn, heightens the risk of recidivism, thus triggering
his interests under section 7 and section 9. He argues that this scheme
violates sections 7, 9, and 15 of the Charter.
No Factual Foundation for Charter
Claim
[13]
The
applicant’s Charter arguments cannot be considered on their merits
because the applicant has not established the factual foundation on which his
arguments are premised. In the Notice of Constitutional Question, the
applicant challenges the constitutional validity or applicability of subsections
128(3) and 99(1) of the CCRA, on the grounds that “the current
legislative regime prevents a deportable person from experiencing certain
rehabilitative measures, namely unescorted temporary absence, and day parole.”
[14]
In
order for the applicant’s Charter arguments to be considered he would
first need to prove that he was denied DP or UTA because of those provisions. In
other words, he needs to establish that he has been denied those forms of
conditional release and that the reason for that denial was that he would be
immediately removable to Jamaica. Without that factual foundation any argument
the applicant makes about the unconstitutional effect of subsections 128(3) or
99(1) is hypothetical.
[15]
The
applicant was refused DP and UTA by the NPB in June 2008, not because it would,
in effect, result in his removal to Jamaica and de facto liberty from
the balance of his sentence, but because he was not a suitable candidate for
any form of release. If he seeks to challenge that decision he is clearly out
of time. If, on the other hand, he seeks to prevent the NPB from making the
same decision in the future, the application is premature. Either way, there
is no factual basis on which to consider his arguments.
[16]
The
NPB found the applicant not to be a suitable candidate for any form of
conditional release for multiple reasons, including his continued denial of
culpability and lack of remorse, his history of violent offences against
intimate partners, the assessment by Corrections Canada that he required considerable
intervention and was at high risk for future domestic violence, his failure to
complete a family violence program and his lack of cooperation with his Case
Management Team (CMT). In sum, his motivation and reintegration potential were
assessed as low, and his release would present an undue risk.
[17]
The
NPB decision was upheld on appeal by the NPB Appeal Division. As the
respondent notes, the applicant has postponed or withdrawn all further
applications for DP or UTA. Furthermore, he has made successive requests to
postpone his automatic full parole review hearing, for which he became eligible
on August 31, 2011.
[18]
The
evidence before this Court is that the applicant remains an unsuitable
candidate for any form of conditional release. In preparation for the
automatic full parole review hearing the applicant’s CMT completed an updated
Correctional Plan in February 2011. The CMT stated that the applicant had not
accepted responsibility for the offence for which he was convicted, nor had he
participated in risk assessments or rehabilitative programs. The CMT noted
there had been no progress regarding his motivation or reintegration potential.
The CMT concluded the Correctional Plan by stating that it was “not in support
of a release, on [unescorted temporary absence,] day parole, or full parole.”
[19]
A
psychological assessment found that the applicant’s “risk for recidivism is
likely too high to be considered for pre-release before he addresses his risk
factors through programs.” The most recent evidence regarding those programs was
that the applicant refused to discuss, or even acknowledge, any past incidents
of family violence, which was a precondition for entering the programs.
[20]
Thus,
the applicant has not presented any evidence that he has been denied
conditional release because it would result in his removal from Canada. Rather, the evidence, unequivocally, is that he has been denied conditional
release because of his refusal to accept responsibility for the murder he was
found to have committed and for his failure to participate in the recommended
rehabilitative programs. In other words, he has not been denied the benefit of
graduated release because of the legislation, but rather by his own conduct.
[21]
To
conclude, there is no factual foundation on which the Charter argument
can be advanced. There is no nexus between the applicant’s continued detention
and the provisions of the CCRA which he seeks to impugn. The facts
therefore do not support a constitutional challenge to subsections 128(3) or
99(1) of the CCRA, and the application is dismissed.
[22]
I
will nonetheless, lest this finding be incorrect, address the Charter
arguments in the alternative.
The Legislation is
Charter Compliant
[23]
The
applicant contends that his sections 7, 9 and 15 Charter rights are
violated by the provisions of the CCRA, subsections 99(1) and 128(3). The
effect of the legislation is to deny, to a foreign national convicted of an
offence and who is also subject to an inadmissibility finding, access to
Canadian society for the purposes of rehabilitation.
[24]
It
is clear that these provisions form a complete scheme which seeks to address
the policy considerations arising from the interaction between the IRPA
and the CCRA, and, more particularly, the parole eligibility of foreign
nationals serving sentences of imprisonment and who are subject to a removal
order. They seek to balance, as the Attorney General argues, the question as
to when, having regard to the parole eligibility of Canadian offenders, it
would be fair to release foreign nationals, against the objectives of paragraph
3(1)(h) of the IRPA, namely, protecting the safety of Canadians and paragraph
3(1)(i), the promotion of international justice and security.
[25]
The
legislative scheme also reflects the reality that a foreign national, once
removed from Canada, is no longer subject to any form of Canadian supervision.
The objective of promoting international justice and security prescribed by
Parliament in paragraph 3(1)(i) of the IRPA would not be furthered by
removing foreign nationals immediately upon conviction. In balancing these
considerations, Parliament chose eligibility for UTA, DP or statutory release, or
in post 2002 cases, the date of eligibility for full parole, as the time at
which the foreign national’s sentence would be considered complete. This
avoids the incongruity arising from a foreign offender having no ongoing
supervision on return to the home country, while a Canadian would remain
subject to control and supervision.
[26]
The
applicant’s claim under sections 7, 9 and 15 of the Charter assumes a
lawful entitlement to remain in Canada and access Canadian society. It thus
proceeds on a legal premise that has been roundly rejected by the Supreme Court
of Canada (SCC). Only citizens have the right to enter, remain in and leave Canada: Canada (Minister of Employment and Immigration) v Chiarelli, [1992] 1 S.C.R. 711.
Parliament has the right to prescribe the conditions under which foreign
nationals who are convicted in Canada will be removed from Canada.
[27]
Although
incorporated in corrections legislation, subsection 128(3) of the CCRA
is directed to the interface between immigration and corrections policy,
specifically when a convicted foreign national will be removed from Canada. As the applicant has no right to remain in Canada, he has no right to access
Canadian society under terms and conditions that are available to Canadian
citizens; hence no Charter issue arises from the decision by Parliament
to link the removal to the completion of sentence, namely the first date of
some form of parole eligibility. Similarly, the objectives of promoting
international security are furthered by maintaining the offender in custody until
the parole eligibility date. Were offenders removed immediately after
conviction, they would serve shorter sentences than a Canadian convicted for
the same crime. The objectives of sentencing, both specific and general deterrence,
would be undermined. Coherence and consistency is achieved as it avoids the
situation where a Canadian offender could remain under supervision, but a
foreign national once removed would not.
Section 7
[28]
The
applicant asserts that he is effectively denied the benefits of DP or UTA
because he is subject to deportation should he be granted either form of
release. This argument wrongly presumes an entitlement to those benefits. The
applicant is detained by reason of his conviction and sentence for second
degree murder. His continued detention is a consequence of the decision of the
NPB to deny DP and UTA. There is no suggestion that either of these decisions
were reached in a manner contrary to the principles of fundamental justice.
[29]
As
was the case in Chiarelli, the applicant has violated an essential
condition under which he was permitted to remain in Canada. This applicant is
a convicted murderer and therefore inadmissible to Canada for serious
criminality. Deportation merely gives practical effect to this legal reality.
It does not deprive him of anything he has not, by his own conduct, already
lost. In Medovarski v
Canada (Minister
of Citizenship and Immigration), 2005 SCC 51,
[2005] 2 S.C.R. 539 the SCC held that the
deportation of non-citizens does not itself implicate liberty and security
interests protected by section 7. The section 7 argument fails.
Section 9
[30]
The
applicant contends that the denial of UTA and DP is an arbitrary detention as
it prevents him from “proving himself through gradual release” and so he must
stay incarcerated “indefinitely” until the NPB determines that he is eligible
for full parole.
[31]
Reintegration
is a continuing process that begins immediately upon incarceration and
continues until full release. UTA and DP are only one aspect of the process.
The applicant has access to institutional programming aimed at his
rehabilitation – programming which he has declined.
[32]
Moreover,
the applicant is not being detained by subsections 99(1) and 128(3) of the CCRA.
The applicant remains in detention by reason of the decision of the NPB to deny
DP or UTA. He was eligible for those forms of conditional release, but was not
a suitable candidate. There is nothing arbitrary about that process, and the
decisions of the NPB were taken on a solid evidentiary foundation.
[33]
Finally,
insofar as subsection 128(3) is concerned, Parliament has determined that
foreign offenders must serve a certain minimum amount of their sentence. As
noted, there is nothing arbitrary about the denial of conditional release to
foreign nationals; rather, it is rationally connected to the objectives of
sentencing in an over-arching legal context wherein the offender has no right
to remain in Canada. The section 9 argument fails.
Section 15
[34]
The
crux of the applicant’s argument under section 15 of the Charter is that
he, unlike Canadian citizens convicted of serious Criminal Code
offences, is denied the benefit under the CCRA of a gradual
reintegration into society, thus increasing the chance of recidivism and
re-incarceration. He argues that subsections 99(1) and 128(3) of the CCRA
are directed, in their purpose and object, to correctional policy, and not to
his status as a foreign national. This characterization of subsection 128(3)
is necessary to circumvent Chiarelli and Medovarski.
[35]
Characterization
of legislation or of specific provisions within a statute as being directed to
a single policy objective, while informative, is not determinative of
constitutionality. Policy challenges, in today’s complex society, are rarely uni-dimensional
or fit neatly into a single frame of analysis. This observation is evident
here, where elements of corrections policy, immigration policy, coherence
between the parole treatment of Canadians and foreign nationals, and Canada’s foreign policy objective of promoting international security all intersect.
[36]
It
is, rather than pigeon-holing the legislation as being one “type” or another,
more helpful to proceed from the scope and nature of the constitutional
protection in question, in this case, section 15.
[37]
The
SCC held in Chiarelli, that section 6 permitted Parliament to
discriminate between citizens and non-citizens by determining the terms and
conditions of their right to enter and remain in Canada. Given this legal
foundation, Parliament does not discriminate within the meaning of section 15
when it imposes a minimum time to be served in custody prior to removal. There
is a distinction, true, but it is not a discriminatory distinction. The
reasoning of Pratte JA in Chiarelli v Canada (Minister of Employment and Immigration) (FCA) [1990] FCJ No 157 was adopted by the SCC in Chiarelli
and is apt:
Thus, the Charter impliedly recognizes
the power of Parliament to differentiate between Canadian citizens and
permanent residents by imposing limits on the right of the permanent residents
to remain in Canada. In exercising that power, Parliament is not guilty of
discrimination prohibited by section 15. The situation would be different if
Parliament or a Legislature were to differentiate between permanent residents
and citizens otherwise than by determining the limits of the residents' right
to remain in the country.
[38]
In
this case, subsection 128(3) is directed to when a foreign national will be
removed from Canada. While that objective is situated in, and implemented
through the vehicle of corrections policy, this does not mean that the
underlying legal principle, articulated in Chiarelli, is vitiated or
negated. As noted, policy choices are rarely categorized so neatly, nor does Charter
jurisprudence require the stark characterization of legislation as having a
single purpose as contended by the applicant.
[39]
In
any event, no infringement is established. Not all distinctions are
discriminatory. In Withler v Canada (Attorney General), 2011 SCC 12,
[2011] 1 S.C.R. 396, para 31, McLachlin, CJC, wrote:
Equality is not about sameness and s. 15(1) does not
protect a right to identical treatment. Rather, it protects every
person’s equal right to be free from discrimination. Accordingly, in
order to establish a violation of s. 15(1), a person “must show not only that
he or she is not receiving equal treatment before and under the law or that the
law has a differential impact on him or her in the protection or benefit
accorded by law but, in addition, must show that the legislative impact of the
law is discriminatory” (Andrews, at p. 182; Ermineskin Indian
Band, at para. 188; Kapp, at para. 28).
[40]
The
search is for substantive inequity and the analysis is contextual, not
formalistic. It is grounded in the actual situation of the group and the
potential of the impugned law to worsen their situation; Withler, para
37. The question, therefore, is whether subsections 99(1) and 128(3) violate
the guarantee of substantive equality; Withler, para 39:
Substantive equality, unlike formal equality,
rejects the mere presence or absence of difference as an answer to differential
treatment. It insists on going behind the facade of similarities and
differences. It asks not only what characteristics the different treatment is
predicated upon, but also whether those characteristics are relevant
considerations under the circumstances. The focus of the inquiry is on the
actual impact of the impugned law, taking full account of social, political,
economic and historical factors concerning the group. The result may be to reveal
differential treatment as discriminatory because of prejudicial impact or
negative stereotyping. Or it may reveal that differential treatment is required
in order to ameliorate the actual situation of the claimant group.
[41]
In
sum, the mere identification of distinction does not equate to discrimination.
Since the applicant has no right to remain in Canada there can be no
differential treatment. A Canadian citizen has a right to remain in Canada. Therefore, a foreign national and a national are not, for the purposes of section
15 of the Charter, comparators. More is required beyond the formal
comparison between a mirror comparator group, in this case between a Canadian
and a foreign national serving life sentences. What is required is a
contextual analysis that has as its target, the determination whether the
measure perpetuates a negative stereotype or disadvantage. The provisions in
question fall short of that test. As between immediate removal from Canada or parity of treatment with Canadians, the provisions do not create a substantive
inequity.
[42]
The
question of equality is necessarily contextual, and part of the context is the
legal status of a foreign national. The applicant’s section 15 argument, in
essence, urges the Court to take a de-contextualized approach, and to ignore
this legal position. To examine the applicant’s section 15 interests in
pristine isolation, divorced from the legal attributes of a foreign national,
would be contrary to the analytical framework governing section 15.
[43]
Moreover,
the applicant is not denied the benefits of UTA and DP because of his
citizenship, but rather because of his citizenship combined with his conviction
for second degree murder. Serious criminality is not an immutable personal
characteristic.
[44]
In
any event, even if the threshold question of a discriminatory distinction were
established, the provisions are saved by section 1. Subsection 128(3) of the CCRA
is part of the architecture of a scheme that addresses the question of when
foreign nationals should be deported. It links the removal to the time
sentence is complete and deems the sentence to be complete when the prisoner is
granted any form of parole. He could be removed immediately on conviction, but
Parliament has, in balancing the policy considerations, deferred that removal
to the granting of parole. The objectives of specific and general deterrence
are furthered, and reinforce the IRPA objective of promotion of
international security.
[45]
The
section 15 argument fails.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed. Costs to the respondent.
"Donald J.
Rennie"
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