2017 FC 905, 2017 FC 905

IMM-3411-16 2017 FC 905 David Roger Revell ( Applicant ) v. The Minister of Citizenship and Immigration ( Respondent ) and BC Civil Liberties Association (Intervener) Indexed as: Revell v. Canada (Citizenship and Immigration) Federal Court, Kane J.—Vancouver, May 11; Ottawa, October 12, 2017.

Citizenship and Immigration — Exclusion and Removal — Removal of Permanent Residents — Judicial review of decision by Immigration and Refugee Board of Canada, Immigration Division (ID) determining that applicant inadmissible on grounds of serious, organized criminality — Applicant, permanent resident, member of Hells Angels, convicted of several crimes — Canada Border Services Agency (CBSA) officer reporting applicant pursuant to Immigration and Refugee Protection Act, s. 44(1) on basis of inadmissibility pursuant to Act , ss. 36(1) (a), 37(1) (a) — Minister’s delegate referring applicant to admissibility hearing — ID issuing deportation order — ID concluding, inter alia, deportation order depriving applicant of Charter, s. 7 rights but doing so in accordance with principles of fundamental justice; Supreme Court of Canada decision in Chiarelli v.

Canada (Minister of Employment and Immigration) binding; order not violating Charter, s. 12 — Applicant submitting, inter alia, removal grossly disproportionate; Chiarelli should be reconsidered — Whether ID erring in determining applicant inadmissible, in issuing deportation order — ID erring in finding applicant’s s. 7 rights engaged at admissibility stage — S. 7 rights arising only when enforcing deportation order — Applicant not facing imminent deportation, consequences not significant enough — ID’s error not requiring that its decision be quashed, redetermined — ID not erring in relying on Chiarelli to find that deprivation of applicant’s s. 7 rights in accordance with principles of fundamental justice — Deportation process in accordance with principles of fundamental justice — ID not erring in finding that deportation not cruel or unusual — Issuance of deportation order not “so excessive as to outrage standards of decency” — ID not erring in finding that Chiarelli should not be reconsidered — Applicant not meeting threshold to depart from Chiarelli — Questions certified — Application dismissed.

Constitutional Law — Charter of Rights — Life, Liberty and Security — Applicant inadmissible on grounds of serious, organized criminality — Applicant, permanent resident, member of Hells Angels, convicted of several crimes — Immigration and Refugee Board of Canada, Immigration Division (ID) issuing deportation order — Whether applicant’s s. 7 rights infringed; whether current deportation regime, procedure consistent with principles of fundamental justice — ID erring in finding applicant’s s. 7 rights engaged at admissibility stage — S. 7 rights arising only when enforcing deportation order — Case law clearly establishing inadmissibility finding not engaging s. 7 because other stages remaining in process — Applicant not facing imminent deportation — ID not addressing distinction between inadmissibility finding, deportation order — Failing to turn its mind to subsequent steps in deportation process — ID erring in relying only on Romans v.

Canada (Minister of Citizenship and Immigration) — Not addressing case law finding that deportation per se not engaging s. 7 — Consequences of deportation having to be significant to engage s. 7 — Consequences applicant facing herein not significant enough — ID not erring in relying on Chiarelli v.

Canada (Minister of Employment and Immigration) to find that any deprivation of applicant’s s. 7 rights in accordance with principles of fundamental justice — Not erring in finding that deportation process in accordance with principles of fundamental justice — Pre-removal access to ministerial relief not principle of fundamental justice — Supreme Court of Canada’s contextual analysis in Chiarelli not too narrow — Principles of fundamental justice in general, concepts underlying proportionality (or gross disproportionality) addressed in Chiarelli — Principles of fundamental justice squarely addressed in more recent case law — Recognition of gross disproportionality as distinct principle of fundamental justice not requiring that Chiarelli be reconsidered — Developments in international law not requiring that principles of fundamental justice be reinterpreted in context of deportation — International trends not trumping domestic law.

Constitutional Law — Charter of Rights — Legal rights — Cruel and unusual treatment or punishment — Applicant inadmissible on grounds of serious, organized criminality — Applicant, permanent resident, member of Hells Angels, convicted of several crimes — Immigration and Refugee Board of Canada, Immigration Division (ID) issuing deportation order — Whether ID erring in finding that deportation process not violating applicant’s s. 12 rights — ID not erring in finding that deportation not cruel or unusual — While deportation constituting “treatment”, issuance of deportation order not “so excessive as to outrage standards of decency” — Not grossly disproportionate or cruel, unusual — Evidence regarding psychological impact on applicant of uprooting from Canada falling far short of establishing serious harm.

Judges and Courts — Stare decisis — Applicant inadmissible on grounds of serious, organized criminality — Applicant, permanent resident, member of Hells Angels, convicted of several crimes — Immigration and Refugee Board of Canada, Immigration Division (ID) issuing deportation order — Concluding, inter alia, Supreme Court of Canada decision in Chiarelli v.

Canada (Minister of Employment and Immigration) binding — Applicant submitting Chiarelli should be reconsidered — Whether ID erring in finding that it remained bound by stare decisis to apply Chiarelli — ID not erring in finding that Chiarelli should not be reconsidered — ID having authority to depart from otherwise binding case law if high threshold to depart from it met — This threshold not met herein.

This was an application for judicial review of a decision by the Immigration Division (ID) of the Immigration and Refugee Board of Canada determining that the applicant was inadmissible on the grounds of serious criminality and organized criminality. The applicant, a long-time permanent resident and member of the Hells Angels, was convicted of several crimes for which he was imprisoned, including possession for the purposes of trafficking and of trafficking in cocaine, and assault with a weapon.

A Canada Border Services Agency (CBSA) officer determined that the applicant should be reported pursuant to subsection 44(1) of the Immigration and Refugee Protection Act on the basis of inadmissibility pursuant to paragraphs 36(1)(

a) and 37(1)(a). The Minister’s

delegate found the CBSA officer’s report to be well founded and referred the applicant to an admissibility hearing pursuant to subsection 44(2) of the Act. Before the ID, the applicant adduced evidence of the impact that deportation would have on him and his family. His extensive written submissions and post-hearing written submissions were considered by the ID. The ID found the applicant inadmissible and issued a deportation order. As a result, he had no right of appeal to the Immigration Appeal Division, nor could he make an H&C application for an exemption from the requirements of the Act.

Relying on Chiarelli v. Canada (Minister of Employment and Immigration) ( Chiarelli ) and Romans v. Canada (Minister of Citizenship and Immigration) ( Romans ), the ID concluded that while the deportation order deprived the applicant of his

section 7 Charter rights, it did so in accordance with the principles of fundamental justice. The ID found that the international case law was inconsistent with the established Canadian case law and that Chiarelli remains the binding precedent. The ID also found that the deportation order would not violate

section 12 of the Charter. The applicant submitted, inter alia , that his removal would be grossly disproportionate to the intent of the Act . He argued that Chiarelli should be reconsidered, as the threshold to derogate from binding case law has been met. He also submitted that there were novel legal issues to be considered as a consequence of significant developments in the law, including developments in international law and its role in Charter

interpretation; amendments to the Act; the recognition of gross disproportionality as a distinct principle of fundamental justice under

section 7 of the Charter; and evolving values and standards of decency which inform the notion of cruel and unusual treatment under

section 12 of the Charter. The main issues were whether: (1) the applicant’s

section 7 rights were infringed by the ID’s finding of inadmissibility and issuance of a deportation order; (2) the ID erred in finding that it remained bound by stare decisis to apply Chiarelli ; (3) the current deportation regime and procedure is consistent with the principles of fundamental justice; (4) the ID erred in finding that the deportation process would not violate the applicant’s

section 12 rights. Held , the application should be dismissed.

(1) The ID erred in finding that the applicant’s

section 7 rights were engaged at the admissibility stage and failed to acknowledge the case law that has established that

section 7 is not engaged at the stage of determining inadmissibility. The consideration of

section 7 arises only at the stage of implementing, i.e., enforcing, the deportation order. Savunthararasa v. Canada (Public Safety and Emergency Preparedness) , sub nom. Peter v. Canada (Public Safety and Emergency Preparedness) ( Savunthararasa ) guides the Court to consider whether—at the stage of removal—the risks asserted would be considered by the enforcement officer considering a request for deferral of removal, and whether these other risks, including broader claims of security of the person, would engage

section 7. Savunthararasa does not derogate from the Federal Court of Appeal and Supreme Court of Canada case law, nor does it direct or suggest that the individual’s broad security of the person interests should be assessed at an earlier stage of the deportation process. The case law clearly establishes that an inadmissibility finding does not engage

section 7 because other stages remain in the process. The applicant was found inadmissible and a deportation order was issued, but he was not facing imminent deportation. The applicant appeared to equate his inadmissibility finding with his deportation because, in his view, deportation was inevitable and the other steps in the process would not assess the type of consequences he faces and would not assess proportionality. The ID did not address the distinction between an inadmissibility finding and issuing a deportation order and deportation in the sense of removal. The ID did not indicate whether its finding that

section 7 was engaged in the circumstances was based on an assumption that the subsequent steps in the deportation process would not prevent the applicant’s deportation. The ID may have failed to turn its mind to the subsequent steps and simply equated the inadmissibility finding with deportation. In finding that the applicant’s circumstances engaged

section 7, the ID erred in relying only on Romans and in finding that in the circumstances, the finding of inadmissibility engaged the applicant’s liberty and security of the person rights. The ID did not address the case law that has found that deportation per se does not engage

section 7 and that

section 7 may be engaged where the consequences are more significant (e.g. where there is a risk of detention, torture or persecution). There will always be consequences of deportation beyond the fact of removal to the country of origin which are adverse and unwanted by the person affected and those that they may be leaving behind in Canada. However, the nature and degree of the consequences of deportation must go significantly beyond the typical consequences of deportation to engage

section 7 . The case law which has found that

section 7 may be engaged by deportation highlights the consequences of deportation must be significant and focuses on risks of detention, torture and persecution. These were not the type of risks faced by the applicant. The ID’s error in finding that

section 7 could be engaged at the admissibility stage, and its error in finding that

section 7 was engaged in the applicant’s circumstances, did not require the decision to be quashed and remitted for redetermination given that the ID did not err in relying on Chiarelli to find that any deprivation of the applicant’s

section 7 rights would be in accordance with the principles of fundamental justice. Although the ID did not refer to the more recent case law, its reliance on Chiarelli was further supported by the more recent case law. The fact that H&C relief was not available to the applicant did not undermine the Court’s finding in Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration) ( Medovarski ) that deportation does not breach principles of fundamental justice. Pre-removal access to ministerial relief is not a legal principle or principle of fundamental justice.

(2) The ID did not err in finding that Chiarelli should not be reconsidered in light of international trends and that the domestic law prevailed. The ID has the jurisdiction to decide questions of law and would have the authority to depart from otherwise binding case law if it were to find that the high threshold to depart from it is met. The Supreme Court of Canada’s (S.C.C.) contextual analysis in Chiarelli was not too narrow and did not rely only on one common law principle to identify the scope of the principles of fundamental justice.

The S.C.C. did not rely on a societal interest justification (i.e., the need to keep Canadian society safe from criminals) to find that there was no breach of the principles of fundamental justice. The S.C.C. did not conflate the

section 7 analysis with a

section 1 of the Charter justification. The applicant did not raise a new legal issue. The principles of fundamental justice in general and the same concepts underlying proportionality (or gross disproportionality) were addressed in Chiarelli and Medovarski . The principles of fundamental justice, which subsequently recognized gross proportionality as such a principle, have been squarely addressed in more recent case law. The subsequent recognition of gross disproportionality as a distinct principle of fundamental justice does not require Chiarelli to be revisited.

Chiarelli should not be reconsidered because the S.C.C. therein did not consider international human rights norms, which have subsequently evolved to recognize limits on a state’s ability to remove non-citizens, despite their serious criminality. 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. A high threshold must be met to derogate from bindingcase law. This threshold was not met herein. It is not a new legal issue to argue that deportation that engages

section 7 of the Charter isnot in accordance with the principles of fundamental justice, including gross disproportionality. The “parameters of the debate” have notfundamentally shifted. The context remains immigration law and policy and the criteria for the deportation of a permanent resident whois found inadmissible for organized crime and/or serious criminality. Although international trends suggest that an assessment of thecircumstances of a long-term permanent resident should be conducted, international trends do not trump domestic law.

(3) The ID did not err in finding that the deportation regime was in accordance with the principles of fundamental justice. In theapplicant’s case, the assessment made under

section 44 of the Act was very thorough. Recent case law has established that thedeportation process as a whole is in accordance with the principles of fundamental justice.

(4) The ID did not err in finding that regardless of whether deportation is a “treatment”, it is not cruel or unusual. Although the standardsof decency have evolved, the issuance of a deportation order by the ID would not be considered “so excessive as to outrage standards ofdecency”. While the deportation order may appear harsh, and perhaps slightly disproportionate, this does not rise to the level of beinggrossly disproportionate or cruel and unusual.

Although the applicant will be uprooted from his life and family in Canada and returned tothe U.K., these are the unfortunate, but generally typical, consequence of deportation. The evidence regarding the psychological impactof his uprooting from Canada fell far short of establishing that the applicant would come to some serious psychological harm or that hewould harm himself. Questions were certified as to whether

section 7 is engaged at the stage of determining whether a permanent resident is inadmissible toCanada, and whether the principle of stare decisis preclude this Court from reconsidering the findings of the S.C.C. in Chiarelli. STATUTES AND REGULATIONS CITED Canadian Charter of Rights and Freedoms, being

Part I of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)[R.S.C., 1985, Appendix II, No. 44], ss. 1, 2(b),(d), 6, 7, 12, 24(1). Controlled Drugs and Substances Act, S.C. 1996, c. 19. Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3(3)(f), 25, 36(1), 37, 44, 45, 64. TREATIES AND OTHER INSTRUMENTS CITED Convention for the Protection of Human Rights and Fundamental Freedoms, November 4, 1950, 213 U.N.T.S. 221, Arts. 3, 8. CASES CITED FOLLOWED: Chiarelli v. Canada (Minister of Employment and Immigration), (SCC), [1992] 1 S.C.R. 711, (1992), 90 D.L.R. (4th)289. APPLIED: Canada (Attorney General) v.

Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Medovarski v. Canada (Minister of Citizenship andImmigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539; Blencoe v. BritishColumbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307; B010 v. Canada (Citizenship and Immigration), 2015 SCC58, [2015] 3 S.C.R. 704; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331. CONSIDERED: Romans v. Canada (Minister of Citizenship and Immigration), 2001 FCT 466, 86 C.R.R. (2d) 139, [2001] F.C.J. No. 740 (QL), affd2001 FCA 272, 17 Imm.

L.R. (3d) 34, [2001] F.C.J. No. 1416 (QL); Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395;Powell v. Canada (Minister of Citizenship and Immigration), 2004 FC 1120, 262 F.T.R. 47, [2004] F.C.J. No. 1538 (QL), affd 2005FCA 202, 255 D.L.R. (4th) 59; Singh v. Minister of Employment and Immigration, (SCC), [1985] 1 S.C.R. 177, (1985),17 D.L.R. (4th) 422; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; Charkaoui v. Canada(Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350; Savunthararasa v.

Canada (Public Safety and EmergencyPreparedness), 2016 FCA 51, sub nom. Peter v. Canada (Public Safety and Emergency Preparedness), [2017] 1 F.C.R. 318; Stables v.Canada (Citizenship and Immigration), 2011 FC 1319, [2013] 3 F.C.R. 240; Brar v. Canada (Public Safety and EmergencyPreparedness), 2016 FC 1214, [2016] F.C.J. No. 1241 (QL); J.P. v. Canada (Public Safety and Emergency Preparedness), 2013 FCA262, [2014] 4 F.C.R. 371; Torre v. Canada (Citizenship and Immigration), 2016 FCA 48, [2016] F.C.J. No. 162 (QL), affg 2015 FC 591,[2015] F.C.J. No. 601 (QL); Ontario (Attorney General) v.

Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3; Charkaoui v. Canada (Citizenshipand Immigration), 2007 FCA 80, 280 D.L.R. (4th) 736, leave to appeal to S.C.C. refused, [2007] 1 S.C.R. vii, ; R. v.Smith (Edward Dewey), (SCC), [1987] 1 S.C.R. 1045, (1987), 40 D.L.R. (4th) 435; Canadian Doctors for Refugee Carev. Canada (Attorney General), 2014 FC 651, [2015] 2 F.C.R. 267; Brar v. Canada (Citizenship and Immigration), 2017 FC 820, 390C.R.R. (2d) 1. REFERRED TO: Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324, [2014] 2 F.C.R. 224, affd 2014 SCC 68, [2014] 3 S.C.R.431; Poshteh v.

Canada (Minister of Citizenship and Immigration), 2005 FCA 85, [2005] 3 F.C.R. 487; Morales v. Canada (Citizenshipand Immigration), 2012 FC 164, [2012] F.C.J. No. 160 (QL); Rodriguez v. British Columbia (Attorney General), (SCC),[1993] 3 S.C.R. 519, (1993), 107 D.L.R. (4th) 342.

APPLICATION for judicial review of a decision ([2016] I.D.D. No. 44 (QL)) by the Immigration Division of the Immigration andRefugee Board of Canada determining that the applicant was inadmissible pursuant to paragraph 36(1)(a) (serious criminality) andparagraph 37(1)(a) (organized criminality) of the Immigration and Refugee Protection Act. Application dismissed. APPEARANCES Lorne Waldman for applicant. Marjan Double and Banafsheh Sokhansanj for respondent. Audrey Macklin and Lobat Sadrehashemi for intervener. SOLICITORS OF RECORD Larlee Rosenberg, Vancouver, for applicant.

Deputy Attorney General of Canada for respondent. Embarkation Law Corporation, Vancouver, for interveners. The following are the reasons for judgment and judgment rendered in English by [1] Kane J.: The applicant, David Revell, seeks judicial review of the decision of the Immigration Division (ID) of the Immigrationand Refugee Board, dated July 28, 2016 [Canada (Minister of Public Safety and Emergency Preparedness) v. Revell, [2016] I.D.D. No.44 (QL)].

The ID determined that he was inadmissible to Canada on the grounds of serious criminality pursuant to paragraph 36(1)(a),and organized criminality pursuant to paragraph 37(1)(a), of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) andissued a deportation order. [2] Mr. Revell does not dispute the allegations of inadmissibility. Rather, he challenges the provisions of the Act that provide for thedeportation of long-term permanent residents like himself on the basis of serious or organized criminality as violating sections 7 and/or12 of the Canadian Charter of Rights and Freedoms, being

Part I of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c.11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] (Charter). He submits that the serious consequences of his deportation—being uprootedfrom his family and life in Canada to be removed to the U.K., a place he left as a child and has no ties—are grossly disproportionate tothe objective of deporting him. [3] Mr. Revell argues, among other things, that: his

section 7 rights are engaged at the admissibility stage (i.e., the hearing todetermine whether he is admissible to Canada) and by the finding of inadmissibility; the deprivation of his liberty and/or security of theperson is not in accordance with the principles of fundamental justice, namely proportionality between the intent of the Act and theconsequences of his deportation; there is no process or forum to conduct this proportionality assessment; and, his inevitable deportationwill constitute cruel and unusual treatment contrary to

section 12. He also argues that the ID erred in finding that it was bound byChiarelli v. Canada (Minister of Employment and Immigration), (SCC), [1992] 1 S.C.R. 711, (1992), 90 D.L.R. (4th)289 (Chiarelli cited to S.C.R.). [4] Mr. Revell submits that the decision of the ID should be quashed. He submits that the issue of his admissibility should beremitted to the ID with a clear direction that the ID is not bound by Chiarelli. He further submits that the ID should be directed first, tofind that

section 7 is engaged by the finding of inadmissibility (as it did in the decision under review) and second, to assess whether thedeprivation of his liberty and/or security of the person is in accordance with the principles of fundamental justice, specificallyproportionality. [5] In addition or alternatively, he submits that the Court should make the following declarations: 1. The combined effect of

section 25, subsections 36(1), 37(1), 44(1), 44(2), sections 45, and 64 of the Act is inconsistent with theprinciples of fundamental justice because it does not provide for a proper assessment as to whether or not the removal of this long-termpermanent resident would be grossly disproportionate; 2. His removal would be inconsistent with the principles of fundamental justice as being grossly disproportionate; (and/or), 3. His removal would be inconsistent with

section 12 of the Charter as it would result in the imposition of “cruel, inhumane anddegrading treatment” (sic). [6] Mr. Revell raises several issues as described more fully below. As this is an application for judicial review, the primary issue iswhether the ID erred. [7] For the reasons that follow I find that the ID erred in finding that

section 7 was engaged at the admissibility stage (i.e.,determining Mr. Revell inadmissible to Canada and issuing a deportation order). Despite the ID’s error in finding that

section 7 wasengaged at the admissibility stage and by Mr. Revell’s circumstances, the ID did not err in finding that any deprivation of Mr. Revell’sliberty and/or security of the person was in accordance with the principles of fundamental justice. [8] The jurisprudence has established that

section 7 is not engaged at the admissibility stage given that other stages remain in thedeportation process. Moreover, the jurisprudence has established that deportation per se (i.e., in itself or without more) does not engagesection 7. [9] The ID did not err in finding that it was bound by Chiarelli to find that any deprivation of Mr. Revell’s liberty or security of the

person is in accordance with the principles of fundamental justice; the high threshold to derogate from binding jurisprudence has not been established. [ 10 ] More generally, the current deportation regime and procedure is consistent with the principles of fundamental justice. [ 11 ] Finally, the ID did not err in finding that Mr. Revell’s deportation would not be cruel and unusual, whether or not it is characterized as treatment, and as a result, would not violate

section 12. I. Background [ 12 ] The provisions of the Act at issue in this application for judicial review govern the deportation of permanent residents in certain circumstances. [ 13 ] If an immigration officer is of the opinion that a permanent resident is inadmissible, the officer may prepare a report pursuant to subsection 44(1) [of the Act ], generally with a recommendation, that is then forwarded to the Minister’s delegate. The Minister’s delegate will consider whether the report is well founded and if so, may refer the matter to the ID pursuant to subsection 44(2) for an admissibility hearing.

This is commonly referred to as the “section 44 Report” or the “report stage”. The ID is required to make a decision pursuant to

section 45 , including issuing a deportation order if satisfied that the permanent resident is inadmissible ( paragraph 45 (d)). [ 14 ] A permanent resident may be found inadmissible to Canada on the ground of serious criminality if convicted of an offence or offences under

an Act of Parliament for which a term of imprisonment of ten years or more may be imposed, or for which a term of imprisonment of six months or more has been imposed ( paragraph 36(1) (a)). In addition, a permanent resident may be found inadmissible to Canada on the ground of organized criminality if he or she is a member of an organization believed on reasonable grounds to be or have been engaged in activity that is part of a pattern of criminal activity planned and organized by a group in furtherance of the commission of an offence punishable under

an Act of Parliament by way of indictment or engaging in activity that is part of such a pattern (paragraph 37(1)(a)). [ 15 ] Pursuant to

section 64 of the Act , there is no right of appeal of the ID decision for a person found inadmissible for organized crime or for serious criminality on the basis of a crime that was punished in Canada by at least six months imprisonment. In addition, a person found inadmissible for organized criminality cannot seek an exemption from the requirements of the Act on humanitarian and compassionate grounds (H&C application) pursuant to

section 25 . [ 16 ] On March 28, 2008, Mr. Revell was convicted of possession for the purposes of trafficking and of trafficking in cocaine, pursuant to the Controlled Drugs and Substances Act [S.C. 1996, c. 19] (CDSA). The charges followed an investigation into the activities of the East End Hells Angels

chapter in Kelowna, B.C. He was sentenced to five years in prison, but released on parole once eligible. [ 17 ] In August 2008, the Canada Border Services Agency (CBSA) reported Mr. Revell pursuant to subsection 44(1) of the Act on the basis of serious criminality. Mr. Revell made submissions with the assistance of counsel regarding whether he should be referred to an admissibility hearing. In February 2009, the CBSA decided not to refer him to an admissibility hearing, although it did not communicate this to him. It appears that, due to an oversight, Mr.

Revell did not receive a letter warning him that his 2008 conviction could be revisited for the purposes of his deportation if he re-offended. (Mr. Revell is not pursuing the argument he made before the ID that this amounted to an abuse of process.) [ 18 ] At the same time, the CBSA was also investigating whether Mr. Revell was inadmissible for organized criminality. However, this investigation was not pursued at that time. [ 19 ] In 2013, Mr. Revell pleaded guilty to assault with a weapon and assault causing bodily harm arising from several allegations by his then girlfriend.

Both offences carry a maximum sentence of ten years imprisonment. Mr. Revell received a suspended sentence and two years of probation. [ 20 ] Following Mr. Revell’s 2013 conviction, the CBSA sought submissions regarding whether he should be referred to an admissibility hearing. He was given an extension of time to retain counsel and make submissions, which he did. The CBSA officer made a detailed report dated February 3, 2015 and determined that Mr. Revell should be reported pursuant to subsection 44(1) of the Act on the basis of inadmissibility pursuant to paragraph 36(1) (

a) for the 2013 assault convictions as well as pursuant to paragraph 37(1) (

a) for the 2008 drug trafficking convictions. The officer recommended that Mr. Revell be referred to a hearing to determine his admissibility to Canada. The officer further recommended that the Minister proceed first on Mr. Revell’s inadmissibility pursuant to paragraph 37(1) (a). [ 21 ] On February 6, 2015, the Minister’s delegate found the CBSA officer’s report to be well founded and referred Mr. Revell to an admissibility hearing pursuant to subsection 44(2). [ 22 ] Mr. Revell’s request for reconsideration of the Minister’s delegate’s decision was denied.

He then sought leave for judicial review of both the decision to refer him to an admissibility hearing pursuant to subsection 44(2) and the decision to refuse reconsideration. Leave was denied in both applications. [ 23 ] The following year, in February 2016, Mr. Revell was reported and referred for an admissibility hearing on the basis of inadmissibility pursuant to paragraph 36(1) (

a) for his 2008 drug trafficking conviction. Mr. Revell provided further submissions. The officer considered the new submissions and noted that the detailed considerations set out in the February 2015 report remained applicable. The officer acknowledged that a decision not to report Mr. Revell had been made in 2009, although no letter had been sent to advise him or warn him of the possible consequences of further convictions. With respect to Mr. Revell’s submissions that pursuing his inadmissibility based on his 2008 conviction was an abuse of process, the officer noted that Mr.

Revell had been represented by counsel at that time, he had been advised of the opportunity to make submissions and of the consequences of a

section 44 report, including referral to an admissibility hearing, and that he had made such submissions. The officer concluded that Mr. Revell would have known of

the consequences of further convictions. [ 24 ] On February 9 and 10, 2016, the ID held a two-day hearing regarding all of the

section 44 referrals. Mr. Revell adduced evidence of the impact that deportation would have on him and his family. His extensive written submissions and post-hearing written submissions were considered by the ID. [ 25 ] Mr. Revell was found inadmissible pursuant to both paragraphs 36(1) (a) (serious criminality) and 37(1)(a) (organized criminality). As a result, he has no right of appeal to the Immigration Appeal Division, nor can he make an H&C application for an exemption from the requirements of the Act . II. The ID decision under review [ 26 ] As noted above, the ID found Mr. Revell inadmissible under both paragraphs 36(1)(

a) and 37(1)(

a) of the Act and issued a deportation order. The ID relied only on Mr. Revell’s 2008 drug trafficking conviction, not on his 2013 assault conviction. [ 27 ] The ID set out the allegations and noted Mr. Revell’s background, including that he is a citizen of England who came to Canada in 1974 at the age of ten and is a permanent resident. [ 28 ] The ID rejected Mr. Revell’s submission that the CBSA’s failure to issue a warning letter, following the first investigation in 2009 (relating to his 2008 drug trafficking charges), constituted an abuse of process.

The ID noted [at paragraph 20] that, ideally, a letter should have been sent, but concluded that the failure to do so was “not of such an egregious nature to lead to a finding of abuse of process”. [ 29 ] With respect to Mr. Revell’s submissions that his

section 7 rights were violated, the ID considered the evidence submitted, including Mr. Revell’s testimony and that of family members, friends and psychologist, Dr. Karl Williams. [ 30 ] The ID found [at paragraph 21] that there “is little question that the consequences of deportation on Mr. Revell would be profound”. The ID noted that: he has lived in Canada for 42 years; he has only known Canada as home; he has no relatives remaining in England; he has a close relationship with his three children and three grandchildren; he works in Provost, Alberta on a

schedule of two weeks on followed by six days off, and regularly returns to Kelowna to be with his family; and, he lives with his girlfriend of two years in Provost. [ 31 ] The ID noted Mr. Revell’s testimony that removal to England would be devastating because he would lose his family connections and his family would lose their father and grandfather. The ID [at paragraph 24] cited Dr. Williams’ report, which stated that there was “no doubt” that the forced separation of Mr. Revell from his family would be “devastating for him”, and that without his family he “would be devoid of direction and purpose”.

The ID also noted [at paragraph 25] that Mr. Revell’s son, daughter, and girlfriend gave similar evidence: that it would “kill him” to be away from his family, that he would face significant depression, and that he may not survive the deportation due to emotional devastation. Mr. Revell testified that without his family and contacts he feared a downward emotional spiral. [ 32 ] The ID noted that the application of

section 7 requires a two-step analysis: first, to determine whether

section 7 is engaged, and second, to determine if any deprivation of the

section 7 right is in accordance with principles of fundamental justice. [ 33 ] The ID relied on Romans v. Canada (Minister of Citizenship and Immigration ) , 2001 FCT 466 , 86 C.R.R. (2d) 139, [2001] F.C.J. No. 740 (QL) ( Romans ), where Justice Dawson (then of the Federal Court Trial Division) found that deportation would deprive Mr. Romans of the right to make a fundamental personal choice and that the profound consequences of his deportation order engaged his

section 7 rights. (Mr. Romans was a 35-year-old citizen of Jamaica and a permanent resident of Canada who had been in Canada since the age of two. He suffered from serious mental illness and a substance abuse disorder, and had been ordered deported for serious criminality based on a lengthy criminal record.) [ 34 ] The ID found that the same reasoning applied to the personal circumstances of Mr. Revell, again noting that he would be removed from his family and returned to England, where he would be a stranger with no safety net, and would face significant emotional and psychological hardship in starting over. The ID stated [at paragraph 31] it had “no hesitation finding that his

section 7 rights are engaged as he will be deprived of the right to make a personal choice of where to establish his home, free from state interference”. [ 35 ] The ID then considered whether this deprivation was in accordance with the principles of fundamental justice. The ID concluded that while the deportation order deprived Mr. Revell of his

section 7 rights, it did so in accordance with the principles of fundamental justice. The ID again relied on Romans , where Justice Dawson found that the deprivation of Mr. Roman’s

section 7 right to security of the person was in accordance with the principles of fundamental justice, relying on Chiarelli . [ 36 ] The ID acknowledged Mr. Revell’s submission that the Chiarelli decision should be reassessed in light of trends in international jurisprudence over the intervening 25 years. The ID found that the international jurisprudence, which generally takes the position that long-term permanent residents have a right to remain in their country of residence, was inconsistent with the established Canadian jurisprudence and that Chiarelli remains the binding precedent. [ 37 ] The ID also found that the deportation order would not violate

section 12 [of the Charter ], in accordance with Chiarelli , which held that the deportation of a permanent resident who had committed a serious criminal offence was not cruel and unusual. III. Overview of the parties’ positions A. The applicant’s position [ 38 ] Mr. Revell submits that the consequences of his deportation engage his

section 7 rights. He claims that his removal to the U.K. would be grossly disproportionate to the intent of the Act , which is to protect public safety, stating that he does not pose such a risk. As a

result, the deprivation of his

section 7 rights is not in accordance with the principles of fundamental justice. [ 39 ] Mr. Revell submits that the ID erred by relying on the Supreme Court of Canada’s decision in Chiarelli . He argues that Chiarelli should be reconsidered as the threshold to do so, as established in Canada (Attorney General) v. Bedford , 2013 SCC 72 , [2013] 3 S.C.R. 1101 ( Bedford ), at paragraph 42 , has been met. He submits that there are novel legal issues to be considered as a consequence of significant developments in the law and a change in the underlying circumstances, in particular: developments in international law and recognition by Canadian courts of its role in Charter

interpretation; amendments to the Act that changed the removal process for permanent residents who are inadmissible; the recognition of gross disproportionality as a distinct principle of fundamental justice under

section 7 of the Charter; and, evolving values and standards of decency in Canadian society which inform the notion of cruel and unusual treatment under

section 12 of the Charter. B. The British Columbia Civil Liberties Association’s (BCCLA) position [ 40 ] The BCCLA submits that the Supreme Court of Canada’s decisions in Chiarelli and subsequently in Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration) , 2005 SCC 51 , [2005] 2 S.C.R. 539 ( Medovarski ) must be revisited because the Court’s reliance on the common law principle that non-citizens do not have an unqualified right to enter or remain in the country to assess whether

section 7 is engaged is inconsistent with contemporary principles of Charter

interpretation. The contextual analysis to determine the scope and application of the principles of fundamental justice should be broader. The scope of the

section 7 right must be determined from the perspective of the “rights-bearer” (in this case, Mr. Revell), not the state. C. The respondent’s position [ 41 ] The respondent submits that the jurisprudence is clear and is binding on the ID:

section 7 is not engaged at the admissibility stage in these circumstances and, in any case, deportation would not be inconsistent with the principles of fundamental justice. The respondent adds that Mr. Revell’s deportation would not violate

section 12. [ 42 ] The respondent argues, in the alternative, that if an assessment of proportionality between the consequences of deportation and the objectives of the Act is required, this has already occurred at least three times at the

section 44 Report stage, which resulted in the decision to refer Mr. Revell to an admissibility hearing. The respondent notes that leave for judicial review of the 2015 decision to refer Mr. Revell to an admissibility hearing and of the refusal to reconsider that decision was denied. The respondent suggests that the present application is a collateral attack on that decision. [ 43 ] The respondent also suggests that Mr. Revell can pursue other options prior to his deportation, including seeking a stay of removal, at which time he could raise his Charter arguments. IV. The issues [ 44 ] Mr.

Revell raised several issues in his written submissions, some of which were slightly modified in his oral submissions. Mr. Revell also proposes several questions for certification (which are set out at the end of these reasons), some of which are general and/or hypothetical questions. [ 45 ] The specific issues raised by Mr. Revell all relate to whether the ID erred in its findings and whether the provisions of the Act at issue, as they apply to the consequences of deportation for Mr.

Revell—a long-term permanent resident who will be uprooted from his home and family, but will not face any risk of persecution or torture in the U.K.—violate his rights to liberty and/or security of the person and to protection from cruel and unusual treatment. [ 46 ] I have slightly restated the issues raised by Mr. Revell based on his written and oral submissions, however, the issues continue to over-lap: 1. Are Mr. Revell’s

section 7 rights infringed by the ID’s finding of inadmissibility and issuance of a deportation order given his circumstances as a long-term permanent resident with no right of appeal and no right to seek an H&C exemption, and who does not assert a risk of persecution in his country of origin? 2. Did the ID err in finding that it remained bound by stare decisis to apply Chiarelli ? 3. If stare decisis does not apply, do the principles of fundamental justice require that an independent tribunal be mandated to conduct a case-by-case assessment of all of the circumstances to determine if the deportation of Mr.

Revell would be grossly disproportionate? 4. More generally, is the current deportation regime and procedure consistent with the principles of fundamental justice, and did the ID err in so finding? 5. Did the ID err in finding that the deportation process would not violate Mr. Revell’s

section 12 rights, as it would not constitute cruel and unusual treatment due to gross disproportionality? V. The standard of review [ 47 ] Mr. Revell submits that the reasonableness standard applies to the findings of facts about the impact of the deportation order on him and whether this impact engages his

section 7 “interests”. He submits that the ID reasonably found that

section 7 was engaged and that the Court should show deference to this finding. He also submits that the ID was correct in this finding. [ 48 ] Mr. Revell submits that questions related to the

interpretation of the Charter and the interaction between the Charter and international law are reviewable on a standard of correctness ( Hernandez Febles v. Canada (Citizenship and Immigration) , 2012 FCA 324 , [2014] 2 F.C.R. 224, at paragraphs 24–25 , affd 2014 SCC 68 , [2014] 3 S.C.R. 431 ( Febles (FCA) ); Doré v. Barreau du Québec ,

2012 SCC 12, [2012] 1 S.C.R. 395 (Doré), at paragraph 43). [49] He submits that the issue of whether the application of

section 7 is in accordance with the principles of fundamental justice (atstage 2) and whether

section 12 has been violated are questions of constitutional law to be determined on the correctness standard. [50] The respondent submits that the standard of review, whether correctness or reasonableness, does not make any difference; thedecision is both reasonable and correct. [51] In my view, both parties’ submissions lack clarity on the applicable standard of review. [52] In Doré, the Supreme Court of Canada stated that when a tribunal is determining the constitutionality of a law the standard ofreview is correctness (at paragraph 43).

The Court noted, however, that this was not necessarily the case when determining whether thetribunal had taken sufficient account of Charter values in making a discretionary decision (at paragraph 43). [53] In this case, Mr. Revell claims that the provisions of the Act, as applied to him, violate his sections 7 and 12 Charter rights. He isnot claiming that Charter values or his Charter interests were not taken into account and were not proportionately balanced by anadministrative decision maker.

The applicable standard of review is correctness because he alleges that his Charter rights have beeninfringed. [54] If Mr. Revell’s

section 7 rights are engaged by the finding of inadmissibility, the determination at the second stage, whichassesses whether any deprivation of liberty or security of the person is in accordance with principles of fundamental justice, is also aquestion of constitutional law reviewed on the correctness standard. VI. Are Mr. Revell’s

section 7 rights infringed by the ID’s finding of inadmissibility and issuance of a deportation order given hiscircumstances as a long-term permanent resident with no right of appeal and no right to seek an H&C exemption, and who does not asserta risk of persecution in his country of origin? [55] This issue requires consideration of three sub-issues: • Whether

section 7 can be engaged at the admissibility stage (the finding of inadmissibility and issuance of a deportation order); • If so, whether

section 7 is engaged in these circumstances; and, • If

section 7 is engaged in these circumstances, whether any deprivation of liberty or security of the person is in accordance with theprinciples of fundamental justice. A. The applicant’s submissions [56] Mr. Revell argues that

section 7 is engaged by the finding of inadmissibility and the issuance of a deportation order in his case.He submits that the jurisprudence does not preclude finding that

section 7 is engaged at an earlier stage than actual deportation. Mr.Revell equates the finding of inadmissibility with his deportation; he appears to view his deportation as inevitable. [57] Mr. Revell argues that the ID’s determination that

section 7 is engaged in his circumstances should be given considerabledeference because it is based on a careful assessment of the facts. [58] Mr. Revell relies on Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 (Blencoe)which establishes that the liberty or security of the person interests can be engaged in a non-criminal context.

In Blencoe, the Court foundthat the liberty interest is not restricted to freedom from physical restraint (such as imprisonment), and is engaged “where statecompulsions or prohibitions affect important and fundamental life choices” (at paragraphs 49–54) and that the security of person interestmay encompass serious state-imposed psychological stress (at paragraphs 56–57). [59] He also relies on Romans, noting that Justice Dawson applied Blencoe to conclude that Mr.

Romans’ liberty interests wereengaged by the deportation process as it prohibited him from making the “fundamental personal choice to remain in Canada”, and thatthe consequences of the deportation order were profound (at paragraph 22). [60] Mr. Revell points out that in Romans v. Canada (Minister of Citizenship and Immigration), 2001 FCA 272, 17 Imm. L.R. (3d)34, [2001] F.C.J. No. 1416 (QL) the Federal Court of Appeal [at paragraph 1] accepted that

section 7 was engaged by deportation “forthe sake of discussion”, although the Court of Appeal also found that the deprivation of the

section 7 right was in accordance with theprinciples of fundamental justice, based on Chiarelli. [61] Mr. Revell notes that in Chiarelli the Supreme Court of Canada did not determine whether deportation engages

section 7 rights.Although the Supreme Court of Canada stated that deportation “in itself” does not engage

section 7 in Medovarski (at paragraph 46), Mr.Revell argues that the Court relied on the existence of an H&C application to find that there was no breach of the principles offundamental justice even if

section 7 were engaged. [62] Mr. Revell submits that the jurisprudence supports his position that

section 7 is engaged by the consequences of his deportation.In addition to Romans, he points to Powell v. Canada (Minister of Citizenship and Immigration), 2004 FC 1120, 262 F.T.R. 47, [2004]F.C.J. No. 1538 (QL), affd 2005 FCA 202, 255 D.L.R. (4th) 59, where Justice Gibson concluded that

section 7 rights were engaged inthe deportation of a permanent resident on the basis of inadmissibility for serious criminality (at paragraph 17). The Federal Court ofAppeal affirmed the decision, but without deciding whether

section 7 was engaged. [63] Mr. Revell also points to several other cases to demonstrate that the

section 7 liberty or security of the person interests may beengaged in a range of circumstances including: the determination of whether a person is a Convention Refugee in Singh v. Minister ofEmployment and Immigration, (SCC), [1985] 1 S.C.R. 177, (1985), 17 D.L.R. (4th) 422 (Singh); the determination of

whether removal places a person at risk of torture upon return to his or her country in Suresh v. Canada (Minister of Citizenship and Immigration) , 2002 SCC 1 , [2002] 1 S.C.R. 3 ( Suresh ); and the impact of a security certificate in Charkaoui v. Canada (Citizenship and Immigration) , 2007 SCC 9 , [2007] 1 S.C.R. 350 ( Charkaoui ). [ 64 ] Mr. Revell notes that in Charkaoui the Supreme Court of Canada clarified that while it had held in Medovarski that deportation “of a non-citizen in itself ” does not engage

section 7 (at paragraph 16, emphasis added in Charkaoui ), that did not mean that deportation in the immigration context was immune from

section 7 scrutiny (at paragraph 17). The Court noted that “some features associated with deportation, such as detention in the course of the certificate process or the prospect of deportation to torture” may engage

section 7 (at paragraph 17). [ 65 ] Mr. Revell acknowledges that in B010 v. Canada (Citizenship and Immigration) , 2015 SCC 58 , [2015] 3 S.C.R. 704 ( B010 ), the Supreme Court of Canada stated that “ s. 7 of the Charter is not engaged at the stage of determining admissibility” (at paragraph 75). However, he submits that this is obiter and, when read in the context of the whole paragraph, the Court is simply affirming that the mere fact that the consequence of an inadmissibility determination is the issuance of a deportation order and is not, in itself, sufficient to engage

section 7; more is required. [ 66 ] Mr. Revell also relies on Savunthararasa v. Canada (Public Safety and Emergency Preparedness) , 2016 FCA 51 , sub nom. Peter v. Canada (Public Safety and Emergency Preparedness) , [2017] 1 F.C.R. 318 ( Savunthararasa ), where the Federal Court of Appeal cautioned that the Federal Court “must be mindful of the need to properly analyze at the first stage of the

section 7 analysis whether the removals scheme imposes limits on the security of the person, thus engaging

section 7 of the Charter ” (at paragraphs 28–30). He submits that, although the Court found that

section 7 is not engaged where there are subsequent proceedings to assess risk, the decision supports the view that an assessment of whether

section 7 is engaged should be conducted at the earlier stage. [ 67 ] Mr. Revell submits that if deportation poses a risk of persecution or torture, then the

section 7 assessment can be conducted before removal at the pre-removal risk assessment (PRRA) stage. However, where there are other consequences which will not be assessed at the later stage, as in his case, the

section 7 assessment must be conducted at an earlier stage and must assess broader risks. He submits that the ID is the appropriate tribunal to conduct a case-by-case assessment of the consequences of deportation and erred in not doing so. [ 68 ] Mr.

Revell notes that he grew up in Canada and all his family and social ties are in Canada; he has no ties or connections in England; he would not be able to return to Canada without permission; he cannot be sponsored by a spouse because he is inadmissible; he is not eligible to seek an exemption from the requirements of the Act on H&C grounds; and, the psychological evidence establishes that he will suffer serious harm upon removal. He argues that his liberty interest is engaged because the decision to stay with his family in the country where he grew up is a fundamental personal choice.

He argues that his security of the person interest is engaged by the serious psychological harm that would be caused by his deportation, which goes beyond the “stress and anxiety” that was found insufficient to engage

section 7 in Blencoe . [ 69 ] Mr. Revell argues that the ID reasonably (and correctly) found that

section 7 was engaged and that this finding should not be disturbed. However, the ID erred in finding that it was bound by Chiarelli and that the deprivation of his liberty and security of the person was in accordance with principles of fundamental justice. Mr. Revell submits that the evidence demonstrates the devastating impact of deportation on him which is grossly disproportionate to the objective of deportation, which is to protect public safety. B. The BCCLA’s submissions [ 70 ] The BCCLA submits that the state inflicted harm of deportation, which will uproot Mr. Revell from his home and life in Canada, impairs his

section 7 rights. Regardless of his citizenship, Canada is his home country. [ 71 ] The BCCLA submits that the scope of the

section 7 right must be considered from the perspective of the “rights-bearer” (in this case, Mr. Revell) and not the state. The BCCLA submits that in Chiarelli , the Court found that the contextual analysis required to determine whether

section 7 is engaged, including the individual’s circumstances and the circumstances of their offences, was not constitutionally relevant. [ 72 ] The BCCLA submits that the Supreme Court’s reliance on a single common law principle in Chiarelli , which the Court [at page 733] characterized as the “most fundamental principle of immigration law”—that “non-citizens do not have an unqualified right to enter or remain in the country”—to determine the scope of the principles of fundamental justice under

section 7 of the Charter is inconsistent with contemporary principles of

section 7

interpretation. Reliance on a common law principle cannot pre-empt an inquiry into the impact of state conduct on the rights of individuals and does not resolve whether deportation, in certain circumstances, violates

section 7 of the Charter. Moreover, Mr. Revell does not assert that non-citizens have an unqualified right to enter Canada. Therefore, reliance on this principle does not respond to his position, which is, that in the particular circumstances of his life and situation, deportation would violate his Charter rights. [ 73 ] The BCCLA submits that both Chiarelli and Medovarski should be revisited. C. The respondent’s submissions [ 74 ] The respondent submits that the ID erred in relying on Romans to find that

section 7 was engaged , despite that the Court had noted in Romans that the question of whether deportation engages

section 7 of the Charter was “unsettled” (at paragraph 16). The law has since been settled. [ 75 ] The respondent emphasizes that deportation per se does not engage

section 7 of the Charter , as held in Medovarski and subsequent decisions. It is the risk of persecution or torture on removal, and not removal itself, that engages

section 7. The respondent further submits that

section 7 of the Charter is not engaged at the admissibility stage and could only possibly come into play at the time of removal.

[76] The respondent submits that Chiarelli remains binding and points to Torre v. Canada (Citizenship and Immigration), 2015 FC591, [2015] F.C.J. No. 601 (QL), affd 2016 FCA 48, [2016] F.C.J. No. 162 (QL) (Torre) and Stables v. Canada (Citizenship andImmigration), 2011 FC 1319, [2013] 3 F.C.R. 240 (Stables) where the Court reviewed the relevant jurisprudence, including Chiarelli andMedovarski and the Federal Court of Appeal’s decision in Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85,[2005] 3 F.C.R. 487 (Poshteh). [77] The respondent notes that the more recent jurisprudence reinforces that

section 7 of the Charter is not engaged at the stage ofdetermining admissibility (Febles (FCA), B010, Poshteh, Stables, Torre and Brar v. Canada (Public Safety and EmergencyPreparedness), 2016 FC 1214, [2016] F.C.J. No. 1241 (QL) (Brar)). [78] The respondent reiterates that “something more” than deportation is required to engage

section 7 and that Mr. Revell’s personalcircumstances would not be sufficient to constitute “something more”. [79] The respondent submits that the ID also erred in relying on the evidence of the psychological impact to find that Mr. Revell’sability to make fundamental life choices was affected and as a result, his liberty and security interests were engaged; this type of impactdoes not engage

section 7. [80] The respondent notes that in Stables, Justice de Montigny applied Blencoe and found that the psychological stress of prospectiveremoval did not engage the security of the person interest, despite the fact that Mr.

Stables immigrated from the United Kingdom toCanada over 40 years previously at the age of seven (at paragraph 42). [81] The respondent also points to Brar, at paragraph 23, where Justice Mactavish distinguished the type of harm that engages section7 of the Charter from the “typical consequences of deportation”, which include “family separation, loss of establishment and the need tobecome re-established in a country left years before”. [82] The respondent submits that although the ID erred in finding that Mr. Revell’s

section 7 rights were engaged at the admissibilitystage, nothing turns on this error because the ID correctly determined at the second stage of the analysis that deportation would be inaccordance with the principles of fundamental justice. D.

Section 7 is not engaged at the admissibility stage (the finding of inadmissibility and issuance of a deportation order) [83] The jurisprudence has established that a two-stage analysis is required to determine whether

section 7 rights have been infringed;first, whether

section 7 is engaged in the circumstances and second, whether any limits on the

section 7 rights are in accordance with theprinciples of fundamental justice. [84] The Supreme Court of Canada stated in Blencoe, at paragraph 47: .… before it is even possible to address the issue of whether the respondent’s s. 7 rights were infringed in a manner not in accordancewith the principles of fundamental justice, one must first establish that the interest in respect of which the respondent asserted his claimfalls within the ambit of s. 7. [85] The starting point is to address whether

section 7 can be engaged by a finding of inadmissibility. A distinction must be drawnbetween an inadmissibility finding and actual deportation. Given that there are several steps in the process, a finding of inadmissibilitydoes not automatically or immediately result in deportation. [86] The more recent jurisprudence from the Supreme Court of Canada and the Federal Court of Appeal has held that aninadmissibility determination does not engage

section 7. The jurisprudence has also firmly established that

section 7 is not engaged by adeportation per se (in itself, without more). In addition, some jurisprudence appears to equate inadmissibility with deportation, and hasblended the two principles from the appellate jurisprudence to find that inadmissibility per se (in itself, without more) does not engagesection 7. [87] In Chiarelli, the Supreme Court of Canada did not determine whether deportation amounted to a deprivation of life, liberty orsecurity of person and thereby engaged

section 7. The Court determined the matter solely on the basis that there was no breach offundamental justice (at page 732). However, the Court agreed that the threshold question was whether deportation per se engages section7, noting at pages 731–732: The essence of the respondent’s position is that ss. 27(1)(d)(ii) and 32(2) are contrary to principles of fundamental justice because theyare mandatory and require that deportation be ordered without regard to the circumstances of the offence or the offender.

The appellantcorrectly points out that the threshold question is whether deportation per se engages s. 7 , that is, whether it amounts to a deprivation oflife, liberty or security of the person. The Federal Court of Appeal in Hoang v. Canada (Minister of Employment & Immigration) (1990),13 Imm. L.R. (2d) 35, held that deportation for serious offences is not to be conceptualized as a deprivation of liberty.

I do not find itnecessary to answer this question, however, since I am of the view that there is no breach of fundamental justice. [88] In 2005, in Medovarski, the Supreme Court of Canada reiterated the principles from Chiarelli and answered the question, statingat paragraph 46: The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in Canada:Chiarelli v. Canada (Minister of Employment and Immigration), (SCC), [1992] 1 S.C.R. 711, at p. 733.

Thus thedeportation of a non-citizen in itself cannot implicate the liberty and security interests protected by s. 7 of the Canadian Charter ofRights and Freedoms. [Emphasis added.] [89] In 2011, in Stables, the applicant, a long-time permanent resident, made similar arguments to those advanced by Mr. Revell. Mr.Stables had arrived in Canada from the U.K. at the age of seven. He was found to be a member of the Hells Angels. The ID found himinadmissible to Canada pursuant to paragraph 37(1)(

a) and issued a deportation order. Mr. Stables did not contest the factual findings of

the ID. Rather, he challenged the constitutionality of paragraph 37(1)(

a) and argued, among other things, that ministerial relief hadbecome illusory and, as a result, the inadmissibility provisions did not comply with paragraph 2(

b) or (

d) or with

section 7 of the Charter. [90] Although the Court found that the application for judicial review could have been dismissed on the basis that Mr. Stables had notraised his Charter arguments before the ID, given that the ID had the jurisdiction to decide questions of law and address the Charterissues (at paragraph 29), the Court proceeded to assess the merits of the Charter arguments. Justice de Montigny framed the issue aswhether

section 37 of the Act deprived Mr. Stables of his right to life, liberty and security of the person in a manner not in accordancewith the principles of fundamental justice. In the present case, Mr. Revell raises the same issue. [91] Justice de Montigny reiterated the established principle and clearly stated that a finding of inadmissibility “in and of itself” doesnot engage

section 7, noting at paragraphs 40–41: It has been held, time and again, that a finding of inadmissibility does not, in and of itself, engage an individual’s

section 7 interests (see,for example, Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85, [2005] 3 F.C.R. 487 (Poshteh), at paragraph63; Barrera v. Canada (Minister of Employment and Immigration), (FCA), [1993] 2 F.C. 3 (C.A.), at pages 15–16.Even if it is true that the applicant, not being a refugee, could be deported while he awaits the processing of his ministerial reliefapplication, it would still not be sufficient to trigger the application of

section 7 rights (Medovarski v. Canada (Minister of Citizenshipand Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539, at paragraph 46;Chiarelli v. Canada (Minister of Employment and Immigration), (SCC), [1992] 1 S.C.R. 711, at page 728; Hoang v.Canada (Minister of Employment and Immigration) (1990), 13 Imm. L.R. (2d) 235 (F.C.A.)). Such a finding is consistent with the basic constitutional foundation of Canadian immigration law, to wit, that only Canadian citizenshave the absolute right to enter and remain in Canada.

Non-citizens do not have an unqualified right to enter or remain in Canada, andtheir ability to do so is strictly dependant on their satisfaction of the admissibility criteria decided by Parliament. [92] Justice de Montigny also referred to Suresh, where the Court found that removal to a country where a person would face tortureengages

section 7, but emphasized that it is the risk of torture and not removal which engages

section 7 (at paragraph 42) and that nosuch risks were advanced by Mr. Stables. [93] Justice de Montigny added (also at paragraph 42) that Mr. Stables did not assert any risks if returned to Scotland and that thestress of his impending removal would not be sufficient to engage his

section 7 rights to security of the person, citing Blencoe, and notingthat there was no evidence of “serious psychological incursion”. [94] In J.P. v. Canada (Public Safety and Emergency Preparedness), 2013 FCA 262, [2014] 4 F.C.R. 371 (J.P.), the Federal Court ofAppeal considered whether paragraph 37(1)(b) (inadmissibility for people smuggling and trafficking in persons) engaged

section 7 byprecluding a refugee determination hearing. The Court agreed that deportation to torture may engage

section 7 of the Charter, but notedthat this issue did not arise in the case before them. [95] Justice Mainville referred to the settled jurisprudence at paragraphs 123–124 which has established that an inadmissibilityfinding does not engage

section 7 because “such a finding is not the equivalent of removal or refoulement”. [96] Justice Mainville explained at paragraph 120 that, “[a]n inadmissibility finding under paragraph 37(1)(

b) does not in itself engagesection 7 of the Charter, though I do not exclude that this Charter provision could eventually be engaged should the Minister exercise hisdiscretion in a manner that leads to the deportation to torture of the concerned foreign national.” [97] Justice Mainville concluded at paragraph 125: As a result, paragraph 37(1)(

b) does not engage

section 7 of the Charter. The issue of whether or not any of the respondents in these caseswill be deported to a jurisdiction which could subject them personally to a danger of torture or to a risk to their life or to a risk of crueland unusual punishment will, if necessary, be determined at a stage in the process under the IRPA which is subsequent to theinadmissibility finding. It is only at this subsequent stage that

section 7 of the Charter may be engaged. [Emphasis added.] [98] In 2015, in B010, the Supreme Court found that the appellants, who were alleged to have engaged in human smuggling and werefound inadmissible to Canada, were entitled to a new hearing based on the proper

interpretation of paragraph 37(1)(

b) of the Act. TheCourt went on to address the appellants’ Charter argument that their

section 7 rights were infringed, clearly stating that

section 7 is notengaged at the admissibility stage as other stages remain, adding at paragraph 75 that

section 7 is “typically” engaged at the PRRA stage: The argument is of no assistance in any event, as s. 7 of the Charter is not engaged at the stage of determining admissibility to Canadaunder s. 37(1). This Court recently held in Febles v.

Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431, that adetermination of exclusion from refugee protection under the IRPA did not engage s. 7, because “even if excluded from refugeeprotection, the appellant is able to apply for a stay of removal to a place if he would face death, torture or cruel and unusual treatment orpunishment if removed to that place” (para. 67). It is at this subsequent pre-removal risk assessment stage of the IRPA’s refugeeprotection process that s. 7 is typically engaged.

The rationale from Febles, which concerned determinations of “exclusion” from refugeestatus, applies equally to determinations of “inadmissibility” to refugee status under the IRPA. [99] Although the Supreme Court of Canada decided the appeal based on the statutory

interpretation issue, the clear statement fromthe Supreme Court of Canada cannot be characterized, as Mr. Revell suggests, as simply obiter that carries less weight. Nor canMr. Revell’s

interpretation of the passage—as simply an affirmation of the principle that more than the issuance of a deportation order isrequired to engage

section 7—be supported. The point is that other stages remain in the deportation process and it is only at the laterstages that

section 7 may be engaged. [100] In 2015, in Torre, Mr. Torre, who was found inadmissible on the grounds of organized criminality, argued, among other things,that paragraph 37(1)(

a) violated

section 7, noting that he had no right of appeal nor was he eligible to seek H&C relief.

[ 101 ] Justice Tremblay-Lamer noted that the same arguments had been made in Stables where the Court had found that “a finding of inadmissibility does not, in and of itself, engage an individual’s

section 7 interests”, rather it is the risk of torture upon removal that would engage

section 7 (at paragraphs 69–70, citing Stables , at paragraphs 40, 42 ). [ 102 ] In Torre , Justice Tremblay-Lamer also relied on J.P. , noting at paragraph 71 : Indeed, more recently, the Federal Court of Appeal confirmed in JP , above, that an inadmissibility hearing did not engage

section 7 of the Charter because the foreign national was not going to be deported to a country that could subject him to a danger of torture. In fact, it is only at a subsequent stage of the inadmissibility finding that

section 7 of the Charter may be engaged : JP at para 125. [Emphasis added.] [ 103 ] In 2016, on appeal of Torre , the Federal Court of Appeal found that the question certified by Justice Tremblay-Lamer regarding one of the other issues raised by Mr. Torre—whether the ID has authority to grant a stay of proceedings—did not to meet the test for certification ( Torre v. Canada (Citizenship and Immigration) , 2016 FCA 48 , [2016] F.C.J. No. 162 (QL) ( Torre (FCA) ). [ 104 ] The [Federal] Court of Appeal went on to address the

section 7 issue and clearly confirmed that the consideration of

section 7 arises only at the stage of implementing, i.e., enforcing, the deportation order, noting at paragraph 4: In this case, the certified question does not meet those requirements. On the one hand, the appellant did not even attempt to demonstrate how his right to life, liberty and security of the person was violated by the investigation before the Immigration Division. A finding of inadmissibility alone does not suffice to infringe upon the rights granted by

section 7 . Only when a deportation order is implemented is it appropriate to determine whether an individual’s right to liberty, security or even life will be put at risk by deporting him to his country of origin . When there is no infringement of any of the rights guaranteed by the Charter , the question whether relief may be granted under subsection 24(1) of this Charter is premature. [Emphasis added.] [ 105 ] More recently, in Brar , Justice Mactavish considered similar arguments to those raised by Mr. Revell, albeit in the context of judicial review of a

section 44 report and referral to an admissibility hearing. Justice Mactavish expressed serious doubts about whether

section 7 was engaged at all, noting the established jurisprudence, at paragraph 21: First of all, I have serious doubts that Mr. Brar’s

section 7 rights were engaged in this process. The jurisprudence is clear that deportation per se does not engage

section 7 of the Charter , and that

section 7 is, moreover, not engaged at the stage of determining admissibility to Canada: see, for example, B010 v. Canada (Citizenship and Immigration) , 2015 SCC 58 at paras. 74-75 , [2015] 3 S.C.R. 704; Torre v. Canada (Citizenship and Immigration) , 2015 FC 591 , [2015] F.C.J. No. 601; Stables v. Canada (Citizenship and Immigration) , 2011 FC 1319 , [2013] 3 F.C.R. 240. [ 106 ] Savunthararasa , relied on by Mr. Revell in support of his submission that

section 7 rights should be considered and can be engaged at an earlier stage of the deportation process, does not, in my view, support that proposition. The [Federal] Court of Appeal’s comments in Savunthararasa focus on the later or last stages of removal—i.e. a request to defer removal. [ 107 ] In Savunthararasa , the [Federal] Court of Appeal considered whether this Court erred in its analysis of whether the removal process, more particularly, restrictions on the PRRA, infringed

section 7 . The [Federal] Court of Appeal stated that the Court should consider which risks will be assessed by the enforcement officer considering a request for a deferral of removal, and with respect to risks that would not be assessed at that stage, to consider whether

section 7 is otherwise engaged. The [Federal] Court of Appeal stated, at paragraphs 25–26: Once the nature and scope of the risk faced has been clearly delineated, a judge should consider and make findings about which, if any, risks faced would not be assessed by an enforcement officer considering a request to defer removal . If an applicant for deferral is found to face a risk of harm that would not be assessed by an enforcement officer, a judge should next consider whether in the circumstances

section 7 of the Charter is engaged. [Emphasis added.] [ 108 ] In Savunthararasa , the [Federal] Court of Appeal noted that in Singh , the Supreme Court of Canada found that security of the person encompassed freedom from the threat of punishment and from punishment, but had left open the question of whether a more expansive view of security of the person should be taken (at paragraph 28). The [Federal] Court of Appeal then stated, at paragraph 29: Because the Court left this question open, in the context of a claim asserting a broader concept of security of the person, the Federal Court must be mindful of the need to properly analyze at the first stage of the

section 7 analysis whether the removals scheme imposes limits on the security of the person, thus engaging

section 7 of the Charter . [ 109 ] Savunthararasa guides the Court to consider whether—at the stage of removal—the risks asserted would be considered by the enforcement officer (i.e . , the officer considering a request for deferral of removal) and whether these other risks, including broader claims of security of the person, would engage

section 7. I do not regard Savunthararasa as derogating from the Federal Court of Appeal and Supreme Court of Canada jurisprudence (e.g. B010 , J.P. , Torre (FCA) ) and directing or suggesting that the individual’s broad security of the person interests should be assessed at an earlier stage. The passage at paragraph 29 must be read in the context of those which precede it which clearly convey that the Court is referring to the removal stage or requests to defer removal. [ 110 ] In the event that Mr.

Revell seeks a deferral of removal at a later stage of his deportation process, he may choose to reiterate his submissions regarding Savunthararasa . [ 111 ] Although some jurisprudence appears to equate a finding of inadmissibility and the issuance of a deportation order with deportation (i.e. removal), or does not note the distinction, the jurisprudence which makes the distinction clearly establishes that an inadmissibility finding does not engage

section 7 because other stages remain in the process. The Supreme Court of Canada confirmed in B010 that an inadmissibility finding does not engage

section 7 . The Federal Court of Appeal made the distinction and the same finding in J.P. and in Torre (FCA) . Moreover, the jurisprudence is clear and consistent in emphasizing that deportation per se —i.e., on its own, in

itself, without more, such as the risk of torture—does not engage

section 7 . [ 112 ] Mr. Revell has been found inadmissible and a deportation order has been issued, but he is not facing imminent deportation. Other steps remain in his deportation process. However, Mr. Revell appears to equate his inadmissibility finding with his deportation because, in his view, deportation is inevitable and the other steps in the process will not assess the type of consequences he faces and will not assess proportionality. [ 113 ] The ID did not address the distinction between an inadmissibility finding and issuing a deportation order and deportation in the sense of removal. The ID did not indicate whether its finding that

section 7 was engaged in the circumstances was based on an assumption that the subsequent steps in the deportation process would not prevent Mr. Revell’s deportation. The ID may have failed to turn its mind to the subsequent steps and simply equated the inadmissibility finding with deportation. [ 114 ] In any event, the ID erred in finding that Mr. Revell’s

section 7 rights were engaged at the admissibility stage. The ID failed to acknowledge the jurisprudence which has established that

section 7 is not engaged at the stage of determining inadmissibility. E. Deportation per se does not engage

section 7 ; the ID erred in finding that Mr. Revell’s circumstances engaged

section 7 [ 115 ] Even if Mr. Revell’s inadmissibility finding and deportation order were presumed to lead to his eventual deportation, or can be equated with deportation,

section 7 may only be engaged if the consequences of the deportation go well beyond “deportation per se ”. [ 116 ] In Charkaoui , the Court clarified that its comment in Medovarski did not mean that proceedings related to deportation in the immigration context are immune from

section 7 scrutiny, as “some features associated with deportation” may engage

section 7 (at paragraph 17). The jurisprudence has established that the prospect of persecution ( Singh ) or torture ( Suresh ), or detention in the course of the security certificate process ( Charkaoui ) may engage

section 7 rights. Significantly more than deportation is required; i.e., removal, on its own, will not engage

section 7 . The consequences or implicat

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