Date: 20070706
Docket: IMM-5258-06
Citation: 2007 FC 726
BETWEEN:
JOAO
CARLOS RIBEIRO LARANJO
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
ORDER
LUTFY C.J.
[1]
The
applicant, Joao Carlos Ribeiro Laranjo, is a citizen of Portugal. He was born
in 1959. He immigrated to Canada with his parents in 1961. Although he had
the status of a permanent resident, he has never acquired Canadian citizenship.
[2]
In
1981, the applicant was convicted of first degree murder for the sexual assault
and killing of a female hitchhiker. He was sentenced to a term of life
imprisonment without eligibility of parole for 25 years. He had been previously
convicted for alcohol-related offences, fraud, theft and common assault. While
incarcerated, he apparently acknowledged responsibility for two previous sexual
assaults. He was not convicted for these two other incidents.
[3]
In
1983, the applicant was issued a deportation order based on his criminal
record. During the same year, he filed an appeal from his deportation order
with the former Immigration Appeal Board. Shortly thereafter, he withdrew his
appeal. Under the immigration legislation in force at that time, the former
Immigration Appeal Board had a discretionary jurisdiction to allow his appeal
or to stay his removal based on all the circumstances of his case:
Immigration Act, 1976, S.C. 1976-77, c.52, at section 72.
[4]
As
the result of the deportation order and the withdrawal of the appeal from that
order, the applicant lost his permanent resident status in Canada.
[5]
In
late 1991, while he was still incarcerated and subject to a deportation order,
the applicant married a Canadian citizen. His wife was a corrections officer
when they met. According to the tribunal record, she has been supportive of the
applicant throughout their relationship.
[6]
In
2006, the applicant was released under parole.
[7]
The
applicant’s parents, siblings, wife and other relations live in Canada. He previously
worked in his parents’ orchard. He has been employed as a labourer. While incarcerated,
he worked as a welder and fabricator. He has been a volunteer in a thrift store
and is proficient in stained glass work.
[8]
In
January 2006, the applicant received a negative pre-removal risk assessment.
The record discloses no attempt to seek judicial review of this decision.
[9]
On
January 26, 2006, the applicant filed a humanitarian and compassionate
application pursuant to section 25 of the Immigration and Refugee Protection
Act, S.C. 2001, c.27 (IRPA). This application was denied on September 12,
2006. This proceeding is the application for judicial review of that negative
decision.
Analysis
[10]
The
applicant raises four issues.
[11]
During
the hearing in this proceeding, counsel for the applicant abandoned, properly
in my view, a fifth issue to the effect that the decision under review is “a
disguised danger opinion”.
[12]
Also,
the applicant agreed with the respondent that the appropriate standard of
review of the decision to refuse his section 25 application is reasonableness. The
issues concerning the Canadian Charter of Rights and Freedom raised in
this proceeding are questions of law.
[13]
The
applicant’s first argument is that his deportation violates his section 7 Charter
rights because he would be deprived of the National Parole Board programs for
the duration of his sentence to life imprisonment.
[14]
The
factual basis for the applicant’s first argument is straightforward. He is now
on parole but still subject to a term of life imprisonment. Accordingly, he
claims that he has a right to the programs of the National Parole Board and
that the deprivation of his access to these programs would breach his section 7
Charter rights.
[15]
Paragraph
50(b) of the IRPA provides that a removal order is stayed until a foreign
national’s sentence to a term of imprisonment is completed. However, for the
purposes of paragraph 50(b) of the IRPA, the sentence of an offender on parole
is deemed to be completed according to subsection 128(3) of the Corrections
and Conditional Release Act, S.C. 1992, c.20 :
|
128.
…
(3) … for the purposes of paragraph 50(b) of the Immigration and Refugee Protection Act …,
the sentence of an offender who has been released on parole, … is deemed to
be completed ….
|
128.
[…]
(3) Pour l’application de
l’alinéa 50b) de la Loi sur l’immigration et la
protection des réfugiés […], la peine d’emprisonnement du délinquant qui
bénéficie d’une libération conditionnelle d’office […] est, […] réputée être
purgée […].
|
|
|
|
For the
purposes of this legislation, parole includes day parole.
[16]
It
is also my view that the applicant’s reliance on section 7 of the Charter
is misplaced.
[17]
Even
if the applicant established that his deportation engages section 7, a question
I need not decide, there is no breach of fundamental justice in giving
practical effect to the determination of his right to remain in Canada: Canada (Minister of
Employment and Immigration) v. Chiarelli, [1992] S.C.J. No. 27
at paragraph 27:
… 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. … [Such persons] 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. … It is not necessary, in order to comply with
fundamental justice, to look beyond this fact to other aggravating or
mitigating circumstances.
[18]
Similarly,
the deprivation of access to rehabilitation programs, in the circumstances of
the applicant, does not breach “a legal principle about which there is
significant societal consensus that is fundamental to the way in which the
legal system ought fairly to operate”: R. v. Malmo-Levine, 2003 SCC 74 at paragraph 113.
[19]
Finally,
it would be surprising, to say the least, if the applicant, sentenced to a term
of life imprisonment, would have greater rights under section 7 of the Charter
than a person in circumstances similar to his who had completed serving a
shorter, finite term of five, ten or twenty years or, as in Chiarelli, a
sentence of imprisonment for 6 months.
[20]
Parliament’s
enactment of subsection 128(3) is a complete answer, in my view, to the absurd
consequences that would result if the applicant, because of his life sentence,
could be said to have greater constitutional rights than a person in similar
circumstances who had fully served a sentence of twenty years. The applicant
acknowledges that the constitutionality of subsection 128(3) is not in issue in
this proceeding.
[21]
As
his second issue, the applicant argues that, as an immigrant who has spent
virtually all of his life in Canada, he should be afforded protection from
deportation by interpreting the IRPA in accordance with Canada’s
international obligations and other international human rights instruments.
[22]
Here,
the applicant relies on article 3 of the European Convention on Human Rights
(“No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.”) and article 7 of the International Covenant on Civil and Political
Rights (“No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment.”).
[23]
The
applicant acknowledges that, for all intents and purposes, section 12 of the Charter
(“Everyone has the right not to be subjected to any cruel and unusual
treatment or punishment.”) is a restatement of the provisions from the two
international instruments upon which he relies.
[24]
The
Supreme Court of Canada has affirmed that deportation is not a punishment: Chiarelli,
above, at paragraph 29. Also, the deportation of a person in the circumstances
of the applicant cannot be said to outrage the standards of decency: Chiarelli
at paragraph 31.
[25]
In
my view, the applicant has neither distinguished Chiarelli from the
circumstances of this case nor shown that his deprivation of rehabilitation services
is a punishment, let alone one that comes within the scope of section 12.
[26]
Furthermore,
the jurisprudence from the European Court of Human Rights relied upon by the
applicant can be distinguished for the reasons set out in the respondent’s
further memorandum of argument at paragraphs 75 through 79.
[27]
As
his third issue, the applicant challenges the immigration officer’s failure to
assess the impact of his deportation on Portugal, the
receiving state.
[28]
The
applicant relies on a guideline from the National Parole Board Policy Manual.
The guideline provides that when reviewing cases for deportation “… Board
members must take into consideration the criteria of undue risk to society (not
only Canadian society) and the facilitating of the offender’s reintegration
into the community.”
[29]
To
repeat, for the purposes of deportation, the applicant’s sentence is terminated
in law. In any event, the applicant has not demonstrated any legislative or
regulatory provision imposing on the immigration officer, whose decision is
under review in this proceeding, any duty similar to the one suggested by the
guideline for the National Parole Board.
[30]
Again,
it would be surprising if an immigration officer would be required to consider the
impact on the society in the country of citizenship as a factor in assessing
the application of a recidivist drug trafficker, for example, applying for
permanent residence from within Canada. In reaching this view, I have
considered the IP 5 Immigrant Applications in Canada made on
Humanitarian or Compassionate Grounds guideline (Guideline),
including its section 11.3.
[31]
Finally,
the applicant has raised no new issues in his written or oral submissions to
support his fourth argument that the immigration officer’s determination not to
grant the application for humanitarian and compassionate consideration was
unreasonable. Upon my review of the tribunal record, the Guideline and the
decision of the immigration officer, I am satisfied that no reviewable error
has been established.
[32]
In
conclusion, as counsel stated in her reply submissions, the crux of her
argument is that the deportation would infringe the applicant’s Charter
rights by depriving him of rehabilitation services. For the reasons set out
above, I disagree. The issue of returning to their country of citizenship
persons who have lived virtually all their lives in Canada is a matter
of policy enacted by Parliament. The constitutionality of the relevant
provisions of the IRPA which enact this policy was not challenged in this
proceeding.
[33]
In
view of the outcome of this proceeding, it is not necessary to consider the
respondent’s submission that the Court did not have the jurisdiction to
adjudicate the applicant’s Charter arguments and that the applicant has
not served the notice of constitutional question required by section 57 of the Federal
Courts Act, R.S.C. 1985, c F-7. In any event, it was not readily apparent
that either argument was well-founded in the circumstances of this case.
[34]
This
application for judicial review will be dismissed. As indicated during the
hearing, counsel for the applicant will have seven days from the date of these
reasons to suggest the certification of a serious question. The respondent will
have three days from the date of service of the applicant’s submissions to file
a reply.
“Allan
Lutfy”
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