2019 FCA 262, 2019 FCA 262

Editor’s Note: A correction was made by the Court to the reasons for judgment on December 11, 2023. The correction has been made to the present document. A-316-17 2019 FCA 262 David Roger Revell ( Appellant ) v. The Minister of Citizenship and Immigration ( Respondent ) and Chinese and Southeast Asian Legal Clinic (CSALC) and South Asian Legal Clinic of Ontario (SALCO) ( Interveners ) Indexed as: Revell v. Canada (Citizenship and Immigration) Federal Court of Appeal, Stratas, Near and de Montigny JJ.A.—Vancouver, January 16; Ottawa, October 18, 2019.

Citizenship and Immigration — Exclusion and Removal — Inadmissible Persons — Appeal from Federal Court decision dismissing judicial review of Immigration and Refugee Board, Immigration Division (ID) decision determining that appellant inadmissible on grounds of serious criminality under Immigration and Refugee Protection Act — Appellant, permanent resident, in Canada since age of ten but never applying for citizenship — Found guilty of various criminal charges — Canada Border Services Agency officer making Act , s. 44(1) reports for inadmissibility under Act , ss. 36(1) (a), 37(1) (a) — ID finding, inter alia, that appellant’s Canadian Charter of Rights and Freedoms ( Charter ), s. 7 rights engaged but that deprivation of those rights made in accordance with principles of fundamental justice — Rejecting appellant’s submission to reassess Canada (Minister of Employment and Immigration) v.

Chiarelli — Federal Court finding, inter alia, that ID erring in finding that Charter, s. 7 could be engaged by inadmissibility adjudication process — Holding that even if s. 7 engaged, fundamental justice observed in appellant’s case — Whether Charter, s. 7 engaged at admissibility hearing stage; whether stare decisis precluding Court from reconsidering Chiarelli; whether impugned legislative scheme consistent with principles of fundamental justice; whether impugned legislative scheme infringing appellant’s Charter, s. 12 rights — Federal Court not erring in dismissing appellant’s s. 7 arguments as premature — S. 7 rights not infringed by deportation per se —Rights protected by Charter, s. 7 triggered at later stage when removal actually contemplated — Foreign nationals, appellant having access to other administrative processes to challenge removal — Number of safety valves ensuring deportation process in accordance with principles of fundamental justice — Inadmissibility proceedings not criminal or quasi-criminal in nature — Cannot be analogized to extradition law or criminal law for purposes of determining when s. 7 rights coming into play — S. 7 rights considered at removal or pre-removal detention stage — Foregoing reasons sufficient to dispose of matter — Remaining issues nevertheless addressed — Appeal dismissed.

Constitutional Law — Charter of Rights — Life, Liberty and Security — Federal Court dismissing judicial review of Immigration and Refugee Board, Immigration Division (ID) decision determining that appellant inadmissible on grounds of serious criminality under Immigration and Refugee Protection Act — Appellant, permanent resident, in Canada since age of ten but never applying for citizenship — Found guilty of various criminal charges — Reported pursuant to Act , s. 44(1) for inadmissibility under Act , ss. 36(1) (a), 37(1) (a) — ID finding, inter alia, that appellant’s Charter , s. 7 rights engaged but that deprivation of those rights made in accordance with principles of fundamental justice — Rejecting appellant’s submission to reassess Canada (Minister of Employment and Immigration) v.

Chiarelli — On judicial review, Federal Court finding, inter alia, that ID erring in finding that Charter , s. 7 could be engaged by inadmissibility adjudication process — Holding that even if s. 7 engaged, fundamental justice observed in applicant’s case — Appeal from Federal Court decision dismissed — Federal Court not erring in dismissing appellant’s s. 7 arguments as premature — S. 7 rights not infringed by deportation per se — Rights protected by Charter , s. 7 triggered at later stage when removal actually contemplated — Foreign nationals, appellant having access to other administrative processes to challenge removal — Number of safety valves ensuring deportation process in accordance with principles of fundamental justice — Inadmissibility proceedings not criminal or quasi-criminal in nature — Cannot be analogized to extradition law or criminal law for purposes of determining when s. 7 rights coming into play — S. 7 rights considered at removal or pre-removal detention stage — Even if Charter , s. 7 engaged, Supreme Court of Canada decision in Medovarski v.

Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration) binding: deportation, attendant psychological stresses not engaging s. 7 security of the person interest.

Constitutional Law — Charter of Rights — Criminal Process — Federal Court dismissing judicial review of Immigration and Refugee Board, Immigration Division (ID) decision determining that appellant inadmissible on grounds of serious criminality under Immigration and Refugee Protection Act — Appellant, permanent resident, in Canada since age of ten but never applying for citizenship — Found guilty of various criminal charges — Reported pursuant to Act , s. 44(1) for inadmissibility under Act , ss. 36(1) (a), 37(1) (a) — ID finding that deportation order against appellant not violating Charter , s. 12 — Federal Court dismissing judicial review of that decision — Appeal dismissed — Appellant not making out s. 12 breach — Impugned treatment having to be more than merely disproportionate or excessive with regard to its purpose — While deportation of appellant may be “slightly disproportionate” if appellant at low risk of reoffending, this not reaching high bar for finding of cruel or unusual treatment.

This was an appeal from a Federal Court decision dismissing an application for judicial review of a decision of the Immigration Division

(ID) of the Immigration and Refugee Board determining that the appellant was inadmissible on the grounds of serious criminality under paragraph 36(1)(

a) and organized criminality under paragraph 37(1) (

a) of the Immigration and Refugee Protection Act ( Act ). The appellant, a British citizen and permanent resident living in Canada since the age of ten, never applied for Canadian citizenship. In 2008, the appellant was found guilty of drug possession and drug trafficking charges. In 2013, the appellant pleaded guilty to assault with a weapon and assault causing bodily harm. A Canada Border Services Agency officer made subsection 44(1) of the Act reports for inadmissibility under paragraph 36(1)(

a) for the 2013 convictions, and under paragraph 37(1)(

a) for the 2008 convictions. The respondent Minister’s delegate referred the appellant to the ID for an admissibility hearing. Relying on the Federal Court’s decision in Romans v. Canada (Minister of Citizenship and Immigration) , the ID found that the appellant’s

section 7 rights under the Canadian Charter of Rights and Freedoms ( Charter ) were engaged, but that the deprivation of his

section 7 rights was in accordance with the principles of fundamental justice. The ID rejected the appellant’s submission that the Supreme Court decision in Canada (Minister of Employment and Immigration) v. Chiarelli ( Chiarelli ) should be reassessed in light of recent trends in international law. It also found that the deportation order against the appellant did not violate

section 12 of the Charter . The Federal Court found, inter alia , that the ID erred at step one of the analysis, both in finding that

section 7 could be engaged by the inadmissibility adjudication process, and in finding that

section 7 was engaged in the applicant’s circumstances. However, it held that the ID was correct to conclude that even if

section 7 of the Charter were to be engaged, the principles of fundamental justice were observed in the applicant’s case. The Federal Court was of the view that the threshold for departing from the Chiarelli decision was not met here, and that the ID did not err in finding it was bound by this decision. It held that Chiarelli did not, as argued by the appellant, conflate the

section 7 analysis with the

section 1 justification and that, while the idea of gross disproportionality had not yet been articulated at that time, the Supreme Court still addressed a “concept analogous to that which underlies [it]” in its fundamental justice analysis. The Federal Court certified one question pertaining to the moment where

section 7 of the Charter is engaged, and one pertaining to the binding character of Chiarelli . The main issues were whether

section 7 of the Charter is engaged at the admissibility hearing stage and whether

section 7 is engaged by the uprooting of a long-term permanent resident absent persecution or torture in the country of nationality; whether the principle of stare decisis precludes the Court from reconsidering Chiarelli and whether the impugned legislative scheme is consistent with the principles of fundamental justice; and whether the impugned legislative scheme infringes upon the appellant’s rights under

section 12 of the Charter . Held , the appeal should be dismissed. The Federal Court did not err in dismissing the applicant’s

section 7 arguments as being premature and in finding that an inadmissibility determination does not engage

section 7. There is extensive case law to the effect that the rights enshrined in

section 7 are not infringed by deportation per se . There is also extensive case law from the Court establishing that an inadmissibility finding is distinct from effecting removal and that a finding of inadmissibility does not automatically, or immediately, result in deportation, therefore not engaging

section 7. The rights protected by

section 7 are triggered at a later stage, when removal is actually contemplated. The Supreme Court decision in Canada (Attorney General) v. Bedford ( Bedford ) stands for the proposition that there must be a sufficient link between the impugned legislation (or state action) and the infringement of an individual’s right for

section 7 to be engaged. Bedford speaks to the cause of the prejudice, not to its foreseeability, as was the case herein. That decision has not displaced the extensive case law affirming that an inadmissibility finding is distinct from effecting removal. Foreign nationals in the appellant’s position have access to other administrative processes to challenge their removal.

At every step, an applicant is entitled to make submissions and to be represented by counsel, may challenge any decision by way of an application for judicial review before the Federal Court, and may seek a stay of removal pending the determination of such an application. The Federal Court has more leeway than an enforcement officer when considering a request for a stay. There are thus a number of safety valves in the Act ensuring that the deportation process as a whole is in accordance with the principles of fundamental justice.

Inadmissibility proceedings are not criminal or quasi-criminal in nature and cannot be analogized to extradition law or criminal law for the purposes of determining when

section 7 rights come into play. The procedural aspects of

section 7 are engaged as soon as a person’s right to life, liberty or security are put at risk by state action. A person who is liable to be removed constitutionally is entitled to a fair hearing, with an opportunity to make representations, before an impartial decision maker. However, this is not the same as saying that a person’s substantive rights to life, liberty, and security must be considered at every step of the process. The case law is clear:

section 7 rights are considered at the removal or pre-removal detention stage. While the foregoing reasons were sufficient to dispose of the matter, the remaining issues were addressed to provide a complete answer to the certified questions. The predicaments that the appellant would face if deported would not amount to a deprivation of his right to security under

section 7 of the Charter . The ID erred in law in relying on the reasoning of the Federal Court in Romans , as this reasoning runs counter to the approach adopted by the Supreme Court in Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration) ( Medovarski ). The appellant did not demonstrate that the consequences of his deportation on his liberty interests were more significant than the consequences generally associated with deportation, which have been found not to engage

section 7. Charter cases should not be considered in a factual vacuum: the applicant could not rely on mere speculation to make out a deprivation under

section 7. While there was evidence tending to show that the stresses the appellant would experience if removed to his country of origin would be far greater than the normal consequences of deportation, the decision in Medovarski remains: deportation and its attendant psychological stresses do not engage the

section 7 security of the person interest. The Court herein was bound to follow the decisions in Chiarelli and Medovarski . The Supreme Court has set a high threshold for a lower court to reconsider settled precedents from a higher court. The initial step in the overbreadth analysis is to ascertain the purpose of the law. The statement of purpose should be both precise and succinct. When the

section 7 analysis in Chiarelli is read as a whole, it seems clear that the Supreme Court interpreted the purpose of the Act as to prevent non-citizens convicted of serious offences from remaining in the country and, more generally, to prevent Canada from “becom[ing] a haven for criminals and others whom we legitimately do not wish to have among us”. This purpose is indeed consistent with the stated objectives relating to immigration as found in the Act itself. The statement of purpose articulated by the Supreme Court in Chiarelli meets the requirements of a proper objective.

Section 7 requires an individualized analysis, and a grossly disproportionate, overbroad, or arbitrary effect on one person is sufficient to establish a breach of

section 7. As well, the approach to the principles of fundamental justice has significantly evolved since the birth of the Charter and the Chiarelli decision. However, the high threshold to depart from the Chiarelli and Medovarski line of cases was not met herein. It is clear

that the Supreme Court in Chiarelli turned its mind to the proportionality of the legislative scheme pursuant to which non-citizensconvicted of an offence punishable by a term of imprisonment of five years or more may be deported. While the notion of “grossdisproportionality” may not have been as refined then as it is now, the Supreme Court was clearly alive to its substance. The SupremeCourt did not overlook the need to approach the principles of fundamental justice through a personalized analysis. The reasoning of theSupreme Court is, if anything, even more applicable today.

As a result, the Federal Court did not err by declining to revisit Chiarelli.The appellant did not raise a new legal issue, the parameters of the debate have not shifted, and the reasoning in Chiarelli (and inMedovarski) is for all intents and purposes equivalent to the “gross disproportionality” analysis later developed in Bedford. The Courtwas loath to reconsider these cases and to feel free not to follow them, especially where the Supreme Court’s recent jurisprudence has notdemonstrated a willingness to depart from them. The same conclusion applied with respect to

section 12 of the Charter. Even if the Court was not bound to follow Chiarelli and Medovarski, paragraphs 36(1)(

a) and 37(1)(

a) of the Act do not offend theprinciples of fundamental justice, when read in the context of the whole legislative scheme with respect to the removal of inadmissiblepersons. The availability of the numerous safety valves provided by the Act provide a genuine opportunity for an individual’scircumstances to be considered. These safety valves save the paragraphs in question from any charge of overbreadth by effectivelynarrowing their scope.

The exercise by the Minister of his discretion to refer the matter to the Immigration Division for an admissibilityhearing is reviewable on both substantive and procedural grounds. The mere fact that this process allows for some discretion is not a barto its acting as a safety valve to ensure that unconstitutional results will be avoided. While the possible consequences of deportation areserious for the appellant, they are not “totally out of sync” with the objective of the scheme. The appellant’s deportation did not rise tothe level of being grossly disproportionate. The appellant did not make out a breach of

section 12 of the Charter. The bar for establishing a breach of

section 12 is high. For this barto be met, the impugned treatment “must be more than merely disproportionate or excessive” with regard to its purpose. While it may be“slightly disproportionate” to deport the appellant if he is at low risk of reoffending, this did not reach the high bar for a finding of cruelor unusual treatment. The Chiarelli decision should not be reconsidered simply because it did not consider international human rightsnorms, which have allegedly evolved to recognize limits on a state’s ability to remove non-citizens. While principles of international lawmay inform the

interpretation of the Charter, international developments are not sufficient, in and of themselves, to justify departing fromthe principles established in Canadian law. International law may be useful after it is decided that a binding precedent should berevisited, but it should only play a minor role in determining whether to revisit them. 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, 7, 12. Criminal Code, R.S.C., 1985, c. C-46, s. 95(1). Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3(1)(h),(i), 24, 25, 27(1)(d)(ii), 36(1), 37(1), 42.1, 44, 45, 46(1)(c), 48,49(1), 64(1), 96, 97, 98, 112, 113, 196. 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. International Covenant on Civil and Political Rights, 19 December 1966, [1976] Can. T.S. No. 47, Arts. 17, 23(1).

United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1F(b). CASES CITED FOLLOWED: Canada (Minister of Employment and Immigration) v. Chiarelli, (SCC), [1992] 1 S.C.R. 711, (1992), 135 N.R. 161;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. NOT FOLLOWED: Romans v. Canada (Minister of Citizenship and Immigration), 2001 FCT 466, 203 F.T.R.108, affd 2001 FCA 272, 281 N.R. 357.

APPLIED: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Thomson v. Canada (AttorneyGeneral), 2016 FCA 253, 365 C.R.R. (2d) 180, 272 A.C.W.S. (3d) 230; Febles v. Canada (Citizenship and Immigration), 2014 SCC 68,[2014] 3 S.C.R. 431; R. v. Moriarty, 2015 SCC 55, [2015] 3 S.C.R. 485; R. v. Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180. CONSIDERED: Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289; Moretto v. Canada (Citizenship andImmigration), 2019 FCA 261, [2020] 2 F.C.R. 422; Charkaoui v.

Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R.350; B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704; United States of America v. Cobb, 2001 SCC19, [2001] 1 S.C.R. 587; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307; Godbout v.Longueuil (City), (SCC), [1997] 3 S.C.R. 844, (1997), 152 D.L.R. (4th) 577; Rodriguez v. British Columbia (AttorneyGeneral), (SCC), [1993] 3 S.C.R. 519, (1993), 107 D.L.R. (4th) 342; New Brunswick (Minister of Health andCommunity Services) v.

G. (J.), (SCC), [1999] 3 S.C.R. 46, (1999), 177 D.L.R. (4th) 124; Kazemi Estate v. Islamic

Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R. 176; Stables v. Canada (Citizenship and Immigration), 2011 FC 1319, [2013] 3 F.C.R.240, 400 F.T.R. 135; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; Kindler v. Canada (Minister of Justice), (SCC), [1991] 2 S.C.R. 779, (1991), 84 D.L.R. (4th) 438; R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342; R. v. Lloyd,2016 SCC 13, [2016] 1 S.C.R. 130; R. v. Smith (Edward Dewey), (SCC), [1987] 1 S.C.R. 1045, (1987), 40 D.L.R. (4th)435; R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754 ; Canada (Attorney General) v.

PHS Community Services Society, 2011 SCC44, [2011] 3 S.C.R. 134; R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599, 429 D.L.R. (4th) 583; R. v. Morrisey, 2000 SCC 39,[2000] 2 S.C.R. 90; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; Steele v. Mountain Institution, (SCC), [1990] 2S.C.R. 1385, (1990), 121 N.R. 198; Reference Re Public Service Employee Relations Act (Alta.), (SCC), [1987] 1 S.C.R.313, (1987), 38 D.L.R. (4th) 161; Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC27, [2007] 2 S.C.R. 391; Saskatchewan Federation of Labour v.

Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245; United States v.Burns, 2001 SCC 7, [2001] 1 S.C.R. 283; A.B v. Canada, Communication No. 2387/2014, U.N. Doc. CCPR/C/117/D/2387/2014 (July15, 2016). REFERRED TO: Lewis v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 130, [2018] 2 F.C.R. 229; Dunsmuir v. New Brunswick, 2008SCC 9, [2008] 1 S.C.R. 190; Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395; Begum v. Canada (Citizenship andImmigration), 2018 FCA 181, [2019] 2 F.C.R. 488, 297 A.C.W.S. (3d) 622; Sawyer v.

TransCanada Pipeline Limited, 2017 FCA 159,413 D.L.R. (4th) 755, 281 A.C.W.S. (3d) 413; Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85, [2005] 3F.C.R. 487; J.P. v. Canada (Public Safety and Emergency Preparedness), 2013 FCA 262, [2014] 4 F.C.R. 371; Torre v. Canada(Citizenship and Immigration), 2016 FCA 48, 263 A.C.W.S. (3d) 729, leave to appeal to S.C.C. refused, [2016] 1 S.C.R. xviii;Tapambwa v. Canada (Citizenship and Immigration), 2019 FCA 34, [2020] 1 F.C.R. 699, leave to appeal to S.C.C. refused, 38589 (11July 2019); Kreishan v.

Canada (Citizenship and Immigration), 2019 FCA 223, [2020] 2 F.C.R. 299; Covarrubias v. Canada (Ministerof Citizenship and Immigration), 2006 FCA 365, [2007] 3 F.C.R. 169; Baron v. Canada (Minister of Public Safety and EmergencyPreparedness), 2009 FCA 81, [2010] 2 F.C.R. 311; Shpati v. Canada (Public Safety and Emergency Preparedness), 2011 FCA 286,[2012] 2 F.C.R. 133; Atawnah v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 144, [2017] 1 F.C.R. 153;Savunthararasa v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 51, sub nom. Peter v.

Canada (Public Safety andEmergency Preparedness), [2017] 1 F.C.R. 318; Hurd v. Canada (Minister of Employment and Immigration), (FCA),[1989] 2 F.C. 594, (1988), 90 N.R. 31 (C.A.); Solis v. Canada (Minister of Citizenship and Immigration), sub nom. Haghighi v. Canada(Minister of Citizenship and Immigration), (FCA), [2000] 4 F.C. 407, (2000), 189 D.L.R. (4th) 268 (C.A.); R. v.Malmo-Levine; R. v. Caine, 2003 SCC 74, [2003] 3 S.C.R. 571; Association of Justice Counsel v. Canada (Attorney General), 2017 SCC55, [2017] 2 S.C.R. 456; R. v.

Morgentaler, (SCC), [1988] 1 S.C.R. 30, (1988), 44 D.L.R. (4th) 385; Mackay v.Manitoba, (SCC), [1989] 2 S.C.R. 357, (1989), 61 D.L.R. (4th) 385; Ernst v. Alberta Energy Regulator, 2017 SCC 1,[2017] 1 S.C.R. 3; Powell v. Canada (Minister of Citizenship and Immigration), 2005 FCA 202, 255 D.L.R. (4th) 59; Toussaint v.Canada (Attorney General), 2011 FCA 213, [2013] 1 F.C.R. 374, 343 D.L.R. (4th) 677; Canadian Doctors for Refugee Care v. Canada(Attorney General), 2014 FC 651, [2015] 2 F.C.R. 267, 458 F.T.R. 1; Reference re ss. 193 and 195.1(1)(

c) of the Criminal Code (Man.), (SCC), [1990] 1 S.C.R. 1123, (1990), 68 Man. R. (2d) 1; Mouvement laïque Québécois v. Saguenay (City), 2015 SCC16, [2015] 2 S.C.R. 3; Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters, 2009 SCC 53, [2009] 3 S.C.R. 407; R. v.Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; Brar v. Canada (Public Safety and Emergency Preparedness), 2016 FC 1214, 273 A.C.W.S.(3d) 603; R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167; Sharma v. Canada (Public Safety and Emergency Preparedness), 2016FCA 319, [2017] 3 F.C.R. 492; Barrera v.

Canada (Minister of Employment and Immigration), (FCA), [1993] 2 F.C.3, (1992), 99 D.L.R. (4th) 264 (C.A.); Francis v. The Queen, (SCC), [1956] S.C.R. 618, (1956), 3 D.L.R. (2d) 641;Ahani v. Canada (Attorney General), [2002] O.J. No. 31 (QL), (2002), (ON CA), 58 O.R. (3d) 107 (C.A.). AUTHORS CITED Heckman, Gerald. “Revisiting the Application of

Section 7 of the Charter in Immigration and Refugee Protection” (2017), 68U.N.B.L.J.312. Stewart, Hamish. Fundamental Justice:

Section 7 of the Canadian Charter of Rights and Freedoms, Toronto: Irwin Law, 2012. APPEAL from a Federal Court decision (2017 FC 905, [2018] 3 F.C.R. 255) dismissing the applicant’s application for judicial review ofa decision of the Immigration Division of the Immigration and Refugee Board ([2016] I.D.D. No. 44 (QL)) determining that he wasinadmissible on the grounds of serious criminality under paragraph 36(1)(

a) and organized criminality under paragraph 37(1)(

a) of theImmigration and Refugee Protection Act. Appeal dismissed. APPEARANCES Lorne Waldman, Steven Blakey and Peter D. Larlee for appellant. Banafsheh Sokhansanj, Marjan Double and Helen Park for respondent. Avvy Yao-Yao Go for intervener Chinese and Southeast Asian Legal Clinic. Shalini Konanur for intervener South Asian Legal Clinic of Ontario. SOLICITORS OF RECORD Larlee Rosenberg, Vancouver, and Waldman & Associates, Toronto, for appellant. Deputy Attorney General of Canada for respondent. South Asian Legal Clinic of Ontario, Toronto, for interveners.

The following are the reasons for judgment rendered in English by [ 1 ] de Montigny J.A. : The appellant, Mr. Revell, appeals from a decision of the Federal Court (Justice Kane) dated October 12, 2017 ( Revell v. Canada (Citizenship and Immigration ), 2017 FC 905 , [2018] 3 F.C.R. 255 (F.C. Reasons)), which dismissed his application for judicial review of a decision of the Immigration Division (ID) of the Immigration and Refugee Board (I.R.B.), dated July 28, 2016 ( Canada (Minister of Public Safety and Emergency Preparedness) v. Revell , [2016] I.D.D. No. 44 (QL) (ID Decision)). The ID determined he was inadmissible to Canada on the grounds of serious criminality under paragraph 36(1) (

a) and organized criminality under paragraph 37(1) (

a) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (the Act or IRPA ), and issued a deportation order. [ 2 ] The Federal Court certified the two following serious questions of general importance: a. Is

section 7 [of the Canadian Charter of Rights and Freedoms ] engaged at the stage of determining whether a permanent resident is inadmissible to Canada and if so, would

section 7 be engaged where the deprivation of the right to liberty and security of the person of a permanent resident arises from their uprooting from Canada, and not from possible persecution or torture in the country of nationality? b.

Does the principle of stare decisis preclude this Court from reconsidering the findings of the Supreme Court of Canada in Chiarelli , which established that the deportation of a permanent resident who has been convicted of serious criminal offence, despite that the circumstances of the permanent resident and the offence committed may vary, is in accordance with the principles of fundamental justice?

In other words, have the criteria to depart from binding jurisprudence been met in the present case? [ 3 ] For the reasons that follow, I am of the view that the Federal Court Judge did not err in answering these two questions in the negative, and would accordingly dismiss the appeal without costs. I. Background [ 4 ] A permanent resident may be found inadmissible to Canada on various grounds. Of particular relevance on this appeal are paragraphs 36(1) (

a) and 37(1) (

a) of the Act , which provide as follows: Serious criminality 36

(1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for (

a) having been convicted in Canada of an offence under

an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under

an Act of Parliament for which a term of imprisonment of more than six months has been imposed; … Organized criminality 37

(1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for (

a) being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under

an Act of Parliament by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence , or engaging in activity that is part of such a pattern; … [ 5 ] Inadmissibility on either of these bases (i.e., serious criminality and organized criminality) can lead to loss of status and removal from Canada.

The Act outlines a comprehensive scheme for the adjudication and enforcement of allegations that a permanent resident is inadmissible. [ 6 ] Subsection 44(1) of the Act provides that if a Canada Border Services Agency (CBSA) officer is of the view that a permanent resident is inadmissible, that officer may prepare a report setting out the relevant facts and transmit it to the Minister of Public Safety and Emergency Preparedness (the Minister).

If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the ID, under subsection 44(2) of the Act , for an admissibility hearing. However, even if the Minister is of the opinion that the report of the CBSA officer is well-founded, he or she still retains some discretion not to refer it to the ID (see, notably, Tran v. Canada (Public Safety and Emergency Preparedness) , 2017 SCC 50 , [2017] 2 S.C.R. 289 ( Tran ), at paragraph 6 ). [ 7 ] If the Minister does refer the report to the ID, an admissibility hearing is held for the permanent resident.

The ID must then recognize that person’s right to enter Canada, authorize him or her to enter Canada for further examination, or make a removal order against that person ( IRPA, paragraphs 45 (a), (

c) and (d)). Inadmissibility decisions by the ID are generally appealable to the Immigration Appeal Division (IAD). However, there is no right to appeal by a foreign national or permanent resident who has been found to be inadmissible on grounds of serious criminality or organized criminality ( subsection 64(1) ). When there is no right to appeal, a removal order comes into force on the day of its issuance ( paragraph 49(1) (a)). The permanent resident loses his or her status and reverts to being

a foreign national ( paragraph 46(1) (c)). [ 8 ] If the foreign national who has been found inadmissible on grounds of serious criminality or organized criminality wishes to remain in Canada, three avenues remain open to them: a temporary residence permit, a humanitarian and compassionate discretionary exemption, and a Ministerial declaration.

Section 24 allows foreign nationals found inadmissible to apply to an officer for an exceptional temporary resident permit allowing them to remain in Canada for a finite period of time. [ 9 ]

Section 25 allows foreign nationals found inadmissible to apply to the Minister of Citizenship and Immigration for a discretionary exemption from their inadmissibility on humanitarian and compassionate (H&

C) grounds. Unlike the temporary residence permit, the exemption allows them to remain in Canada permanently. Although it is available to foreign nationals who are inadmissible for subsection 36(1) serious criminality irrespective of their sentence, it is not available to those who are inadmissible under subsection 37(1) organized criminality. [ 10 ]

Section 42.1 provides that the Minister of Public Safety and Emergency Preparedness may declare that subsection 37(1) organized criminality does not constitute inadmissibility in respect of a foreign national if he or she is satisfied that this exception is not contrary to the national interest. This declaration may be made on his or her own initiative or on the basis of an application.

Under subsection 42.1(3), in determining whether or not to make this declaration the Minister may only consider “national security and public safety considerations” but he or she “is not limited to considering the danger that the foreign national presents to the public or the security of Canada” in the analysis. When

section 42.1 relief is granted, the foreign national becomes eligible to make an H&C application under

section 25 . [ 11 ] Before a removal order is enforced, a foreign national can apply for a pre-removal risk assessment (PRRA) ( sections 112 –113). This process seeks to determine whether the removal of a person to his or her country of nationality would subject that person to a danger of torture, to a risk to their life or, in certain circumstances, to a risk of cruel and unusual treatment (subsection 97(1)). A positive PRRA stays removal from Canada. [ 12 ] While

section 48 of the Act directs that removal orders be enforced as soon as possible, the person concerned may request that it be deferred. CBSA retains a limited discretion to defer (see Lewis v. Canada (Public Safety and Emergency Preparedness) , 2017 FCA 130 , [2018] 2 F.C.R. 229 ( Lewis ), at paragraph 54 ). [ 13 ] The particular facts underpinning the present case are aptly summarized by the Federal Court at paragraphs 16 to 25 of the decision below.

As a result, I shall only mention the most salient of these facts. [ 14 ] The appellant is a 55-year-old British citizen who immigrated to Canada in 1974 at the age of ten. Since that time, he has lived in Canada as a permanent resident and has never applied for Canadian citizenship. The appellant has three adult children residing in Canada. He claims that he has not maintained any significant ties to England and has no friends or family there, except for one elderly aunt.

He lives and works in Provost, Alberta, where he is employed as an oil well technician. [ 15 ] In March 2008, the appellant was charged with possessing cocaine for the purposes of trafficking, committing that offence at the direction of or in association with a criminal group, and trafficking cocaine. The charges followed an investigation into the activities of the East End Hells Angels

chapter in Kelowna, B.C. The appellant was ultimately found guilty of the drug possession and drug trafficking charges, and was acquitted of the criminal organization charge. The appellant was sentenced to five years in prison, and was released on parole once eligible. [ 16 ] In June 2008, a CBSA officer reported the appellant under subsection 44(1) of the Act for serious criminality. The appellant then made submissions, with the assistance of counsel, as to why a removal order should not be made against him.

On February 16, 2009, the Minister’s Delegate decided, upon consideration of the appellant’s personal circumstances at the time, to exercise his discretion under subsection 44(2) of the Act . The report was not referred to the ID for an admissibility hearing. It appears, however, that due to an oversight, the appellant did not receive a letter warning him that his 2008 conviction could be revisited for the purposes of removal if he were to reoffend. [ 17 ] In 2013, the appellant pleaded guilty to assault with a weapon and assault causing bodily harm arising from allegations by his then girlfriend.

Both offences carry a maximum sentence of ten years in prison. He ultimately received a suspended sentence and two years of probation. [ 18 ] In October and November 2014, a CBSA officer notified Mr. Revell that CBSA was considering subsection 44(1) reports against him for inadmissibility for serious criminality under paragraph 36(1)(

a) as a result of his assault convictions, and for engaging in organized crime under paragraph 37(1)(

a) as a result of revisiting his 2008 conviction. The CBSA officer sought submissions from the appellant as to whether he should be referred to an admissibility hearing; the appellant made submissions, with the assistance of his counsel. [ 19 ] On February 3, 2015, the CBSA officer made subsection 44(1) reports against Mr. Revell for inadmissibility under paragraph 36(1) (

a) for the 2013 convictions, and under paragraph 37(1) (

a) for the 2008 convictions. Having considered the appellant’s submissions and countervailing factors, the CBSA officer suggested that the subsection 44(1) reports be referred to the ID for an admissibility hearing. [ 20 ] On February 6, 2015, the Minister’s delegate found the CBSA officer’s report to be well-founded and referred the appellant to an admissibility hearing pursuant to subsection 44(2) of the Act . The appellant’s request for reconsideration was denied.

He then sought leave for judicial review of both the referral decision and the decision to refuse reconsideration, but was unsuccessful. [ 21 ] In February 2016, a third subsection 44(1) report was filed against the appellant on the basis of inadmissibility under paragraph 36(1) (

a) of the Act in relation to the 2008 drug trafficking convictions. The appellant again made new submissions regarding why a removal order should not be issued against him. The Minister’s delegate considered these submissions before referring the matter to the ID for an admissibility hearing.

[22] On February 9 and 10, 2016, the ID held a hearing regarding the three subsection 44(1) reports. II. Decisions Below A. The Immigration Division’s Decision [23] Before the ID, the appellant conceded he was inadmissible on the basis of organized criminality and serious criminality, butclaimed abuse of process. He further argued that sections 44 and 45 of the Act unjustifiably infringed his right under sections 7 and 12 ofthe 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] (the Charter). Life, liberty and security of person 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. … Treatment or punishment 12.

Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. [24] The ID rejected the appellant’s submission that the immigration authorities’ failure to issue a warning letter following the firstinvestigation in 2009 constituted an abuse of process. While of the view that a letter should have been sent, the ID nonetheless found thatthe failure to do so was “not of such an egregious nature to lead to a finding of abuse of process” (ID Decision, at paragraph 20). [25] Moving on to the Charter arguments, the ID noted that the application of

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

section 7 is engaged, and second, to determine if the alleged deprivation is in accordance with principles offundamental justice (ID Decision, at paragraph 20, at paragraph 28). Relying on the Federal Court’s decision in Romans v. Canada(Minister of Citizenship and Immigration), 2001 FCT 466, 203 F.T.R. 108 (Romans F.C.) affd 2001 FCA 272, 281 N.R. 357 (RomansF.C.A.), the ID found, in light of the evidence, that the appellant’s

section 7 rights are engaged “as he will be deprived of the right tomake a personal choice of where to establish his home, free from state interference” (ID Decision, at paragraph 31). [26] In the second step of the analysis, the ID then considered whether this deprivation of

section 7 rights was in accordance with theprinciples of fundamental justice. In light of Romans F.C. and Canada (Minister of Employment and Immigration) v. Chiarelli, (SCC), [1992] 1 S.C.R. 711, (1992), 135 N.R. 161 (Chiarelli), the ID answered this question in the affirmative (ID Decision,at paragraph 35).

It further rejected the appellant’s submission that the Chiarelli decision should be reassessed in light of recent trends ininternational law, as it found these trends to be inconsistent with the established Canadian jurisprudence on the matter (ID Decision, atparagraph 34). [27] Lastly, the ID found, again on the basis of Chiarelli, that the deportation order was not cruel and unusual because it did notoutrage standards of decency. It therefore did not violate

section 12 of the Charter (ID Decision, at paragraph 41). B. The Federal Court’s Decision [28] Applying the correctness standard of review (F.C. Reasons, at paragraphs 53 –54), the Judge found that the ID erred at step oneof the analysis, both in finding that

section 7 could be engaged by the inadmissibility adjudication process (F.C. Reasons, at paragraph114), and in finding that

section 7 was engaged in Mr. Revell’s circumstances (F.C. Reasons, at paragraph 130). She noted that it is onlyat the later stages of the deportation process that

section 7 may be engaged (F.C. Reasons, at paragraph 99). She also found that Mr.Revell had not established any risk of persecution, torture or detention if deported, and that his circumstances fell short of establishinghis claim that he would suffer serious psychological harm if he were to return to England. [29] The Judge held, however, that the ID was correct at the second stage of the analysis. It was right to conclude that even if section7 of the Charter were to be engaged, the principles of fundamental justice were observed in Mr. Revell’s case (F.C. Reasons, atparagraph 143).

The Judge was of the view that the threshold for departing from the Chiarelli decision was not met here, and that the IDdid not err in finding it was bound by this decision (F.C. Reasons, at paragraph 184). [30] Lastly, the Judge also held that, if deportation is indeed a “treatment” under

section 12 [of the Charter], it is not cruel andunusual due to gross disproportionality in this case (F.C. Reasons, at paragraph 226). III. Issues [31] As previously mentioned, the Federal Court certified one question pertaining to the moment where

section 7 of the Charter isengaged, and one question pertaining to the binding character of Chiarelli. In my view, and based on the parties’ submissions, the presentappeal turns on six questions, which can be formulated as follows: A. Is

section 7 of the Charter engaged at the admissibility hearing stage? B. If so, is

section 7 engaged by the uprooting of a long-term permanent resident absent possible persecution or torture in the countryof nationality? C. Does the principle of stare decisis preclude this Court from reconsidering the findings of the Supreme Court of Canada inChiarelli? In other words, have the criteria to depart from binding jurisprudence been met in the present case? D. If so, is the impugned legislative scheme consistent with the principles of fundamental justice?

E. Does the impugned legislative scheme infringe upon the appellant’s rights under

section 12 of the Charter ? F. Would these infringements be justified under

section 1 of the Charter ? [ 32 ] Some of these issues were also raised, albeit in a slightly different factual setting, in a companion case in which judgment is also being delivered today ( Moretto v. Canada (Citizenship and Immigration) , 2019 FCA 261 , [2020] 2 F.C.R. 422 ( Moretto )). The appeals in these cases were heard one after the other by the same panel of the Court. IV. Standard of review [ 33 ] On appeal from a decision of the Federal Court sitting in judicial review of a decision of an administrative decision maker, the applicable framework is that of Agraira v.

Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 , [2013] 2 S.C.R. 559, at paragraphs 45–47 . This framework requires this Court to “step into the shoes” of the Federal Court to determine whether it identified the appropriate standard of review and whether it applied this standard properly. [ 34 ] While I do not subscribe to the whole of the Federal Court’s reasoning with respect to standard of review, I nevertheless find it properly identified the applicable standard of review as that of correctness.

A tribunal’s analysis as to whether a law is Charter compliant attracts a correctness standard ( Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190, at paragraph 58 ; Doré v. Barreau du Québec , 2012 SCC 12 , [2012] 1 S.C.R. 395, at paragraphs 36 , 43; Begum v. Canada (Citizenship and Immigration) , 2018 FCA 181 , [2019] 2 R.C.F. 488, 297 A.C.W.S. (3d) 622 ( Begum ), at paragraph 36 ). As this Court noted in Thomson v.

Canada (Attorney General) , 2016 FCA 253 , 365 C.R.R. (2d) 180, 272 A.C.W.S. (3d) 230, at paragraph 24 , “the case law recognizes that, with the exception of discretionary decisions, the correctness standard applies to reviews of tribunals’ adjudications of constitutional issues, including Charter claims” (see also Sawyer v. TransCanada Pipeline Limited , 2017 FCA 159 , 413 D.L.R. (4th) 755, 281 A.C.W.S. (3d) 413, at paragraphs 7–8 ). V. Analysis A. Is

section 7 of the Charter engaged at the admissibility hearing stage? [ 35 ] Mr. Revell argues that his

section 7 rights are engaged at the inadmissibility adjudication stage. In support of that contention, he points to the fact that a removal order comes into force on the day of its issuance if no right of appeal is available ( IRPA , at paragraph 49(1) (a)). He claims that the inadmissibility adjudication stage is therefore sufficiently proximate to deportation to engage

section 7. [ 36 ] He further submits that the Judge erred in determining that

section 7 cannot be engaged at the inadmissibility stage so long as other steps remain available prior to removal. In his view, the Judge applied an incorrect “necessary link” test in arriving at this determination. He submits that the correct test is that articulated in Canada (Attorney General) v. Bedford , 2013 SCC 72 , [2013] 3 S.C.R. 1101 ( Bedford ). Following Bedford ,

section 7 of the Charter is engaged once a “sufficient causal connection” can be established between the state-caused effect and the prejudice allegedly suffered. In the appellant’s view, on a proper application of the Bedford standard the ID’s adjudicative process in this case is not too remote to trigger

section 7. The IAD appeals and H&C applications are not available to Mr. Revell, and the PRRA officer lacks jurisdiction to consider his uprooting and its attendant psychological stress. Thus, the ID process is especially proximate to removal in his case. Finally, the appellant also claims that the Judge’s approach is inconsistent with the Supreme Court’s approach in criminal and extradition law, where

section 7 is said to permeate the whole process. [ 37 ] The Judge was justified to find that there is extensive case law to the effect that the rights enshrined in

section 7 of the Charter are not infringed by deportation per se , without more. I shall return to that point when dealing with the second issue raised in this appeal. Suffice it to say for now that ever since the decision 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 ), the Supreme Court has consistently held that the mere fact of removing an individual to his or her country of origin is not sufficient to breach the right to life, liberty or security of that person. [ 38 ] The Judge was similarly right to note, at paragraphs 83 and following of her reasons, that there is extensive case law from this Court establishing that an inadmissibility finding is distinct from effecting removal and that, as other steps remain in the process, a finding of inadmissibility does not automatically or immediately result in deportation and therefore does not engage

section 7 of the Charter . Despite some conflicting decisions in the early days following the decision of the Supreme Court in Chiarelli , this Court has consistently held since Medovarski and Charkaoui v. Canada (Citizenship and Immigration) , 2007 SCC 9 , [2007] 1 S.C.R. 350 ( Charkaoui ) that

section 7 is not engaged at the stage of determining inadmissibility (see Poshteh v. Canada (Minister of Citizenship and Immigration) , 2005 FCA 85 , [2005] 3 F.C.R. 487, at paragraph 63 ; J.P. v. Canada (Public Safety and Emergency Preparedness) , 2013 FCA 262 , [2014] 4 F.C.R. 371 ( J.P. ), at paragraphs 123 , 125, reviewed on other grounds in B010 v. Canada (Citizenship and Immigration) , 2015 SCC 58 , [2015] 3 S.C.R. 704 ( B010 ); Torre v.

Canada (Citizenship and Immigration) , 2016 FCA 48 , 263 A.C.W.S. (3d) 729, at paragraph 4 , leave to appeal to S.C.C. refused, 36936 [[2016] 1 S.C.R. xviii] (21 August 2016); Tapambwa v. Canada (Citizenship and Immigration) , 2019 FCA 34 , [2020] 1 F.C.R. 699, 304 A.C.W.S. (3d) 376, at paragraphs 81–82 , leave to appeal to S.C.C. refused, 38589 (11 July 2019); Kreishan v. Canada (Citizenship and Immigration) , 2019 FCA 223 , [2020] 2 F.C.R. 299, at paragraphs 118–127 ). [ 39 ] In Febles v. Canada (Citizenship and Immigration) , 2014 SCC 68 , [2014] 3 S.C.R. 431 ( Febles ), the Court considered

section 98 of the IRPA , which excludes from refugee protection all persons referred to in

Article 1F(

b) of the United Nations Convention Relating to the Status of Refugees , July 28, 1951, [1969] Can. T.S. No. 6 (Refugee Convention), namely all persons who have “committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee” (at paragraph 60). At issue was whether, as argued by Mr. Febles, the exclusion was confined to fugitives from justice and whether post-crime events like rehabilitation or expiation were relevant, or whether, as submitted by the Minister, a broader

interpretation should be adopted such that the

Article 1F(

b) serious criminality exclusion is triggered whenever the refugee claimant has committed a serious non-political crime before coming to Canada. [ 40 ] It is true that the majority in Febles did not expressly find that

section 7 of the Charter has no role to play in the context of

section

98 of the IRPA because the life or security of excluded persons is not engaged at that stage. A careful reading of paragraph 67, however, inescapably leads to the conclusion that the rights protected by

section 7 of the Charter are triggered at a later stage, when removal is actually contemplated. In my view, there is no other way to read the following comments: There is similarly no role to play for the Charter in interpreting s. 98 of the IRPA . … Moreover, as the Court of Appeal held, s. 98 of the IRPA is consistent with the Charter . As stated at para. 10 of these reasons, even if excluded from refugee protection, 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 or punishment if removed to that place ( ss. 97 , 112 , 113 ( d )(

i) and 114(1) (

b) of the IRPA ). On such an application, the Minister would be required to balance the risks faced by the appellant if removed against the danger the appellant would present to the Canadian public if not removed ( s. 113 (

d) of the IRPA ).

Section 7 of the Charter may also prevent the Minister from issuing a removal order to a country where Charter -protected rights may be in jeopardy…. [ 41 ] This reading of Febles is borne out by the obiter comments of the Chief Justice (writing for a unanimous Court) one year later in B010 . Having concluded that the appellants in that case were not caught by paragraph 37(1) (

b) of the IRPA , because that provision was meant to target people smugglers, i.e., “procuring illegal entry in order to obtain, directly or indirectly, a financial or other material benefit in the context of transnational organized crime” , as opposed to those who “merely aided in the illegal entry of other refugees or asylum-seekers in the course of their collective flight to safety” (at paragraph 72), the Court [in B010 ] went on to address the alternative argument that paragraph 37(1) (

b) was overbroad in the following terms (at paragraph 75): The argument [that para. 37(1)(

b) is overbroad and violates s. 7 of the Charter ] is of no assistance in any event, as s. 7 of the Charter is not engaged at the stage of determining admissibility to Canada under s. 37(1) . This Court recently held in [ Febles ] … that a determination of exclusion from refugee protection under the IRPA did not engage s. 7, because “even if excluded from refugee protection, 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 or punishment if removed to that place” (para. 67).

It is at this subsequent pre-removal risk assessment stage of the IRPA ’s refugee protection process that s. 7 is typically engaged. The rationale from Febles , which concerned determinations of “exclusion” from refugee status, applies equally to determinations of “inadmissibility” to refugee status under the IRPA . [ 42 ] The appellant does not directly address this jurisprudence in his submissions. Rather, he argues that its underlying principle runs counter to the low causation standard for engaging

section 7 set out in Bedford . This thesis is best explained by Professor Gerald Heckman in “Revisiting the Application of

Section 7 of the Charter in Immigration and Refugee Protection” (2017), 68 U.N.B.L.J. 312 (at page 351): ….The argument [of prematurity] appears to be that s. 7 is not engaged at [the ID stage] because there are steps later in the process more directly and foreseeable linked to a deprivation of a non-citizen’s s. 7 interests where the person’s circumstances can be scrutinized to ensure that this deprivation complies with the principles of fundamental justice. This reasoning implies a standard of causation more onerous than the “sufficient causal connection” standard adopted by the Supreme Court in Bedford .

It requires that state action be a foreseeable and necessary cause of the prejudice to the person’s s. 7 interests - a standard expressly rejected in Bedford …. [ 43 ] I note, first, that this very same argument was raised and squarely rejected by this Court in J.P. , and also dismissed on appeal (albeit in obiter ) in B010 (at paragraph 75 ). The decision of the Supreme Court in that case and in Febles postdate Bedford , and it is fair to assume that the Court was aware of its previous decision and did not see any inconsistency between its holdings.

There are, indeed, compelling and principled reasons to find no such inconsistency. [ 44 ] First, the statements from Bedford relied upon by the appellant and Professor Heckman in his paper deal with whether there is a sufficient causal connection between the state action and a deprivation of rights, so as to determine whether the state (as opposed to third parties or other states) is responsible for the deprivation. At issue in that case was the constitutionality of the Criminal Code [R.S.C., 1985, c.

C-46 ] provisions preventing prostitutes from implementing certain safety measures (such as hiring security guards or screening potential clients) that could protect them from violence. The Attorney General had argued

section 7 was not engaged because there was no “'active and foreseeableˈ” and “’direct'” causal connection between these provisions and the risks faced by the prostitutes. It is in this particular context that the Supreme Court came to the conclusion that the proper standard for causation was not the one urged by the Attorney General, but the “'sufficient causal connection'” test [ Bedford , at paragraph 74] . Applying that test, the Court found that

section 7 of the Charter was engaged because the prohibitions at issue imposed dangerous conditions on prostitution by preventing people engaged in a risky but legal activity from taking steps to protect themselves from those risks. [ 45 ] I take Bedford to stand for the proposition that there must be a sufficient link between the impugned legislation (or state action) and the infringement of an individual’s right for

section 7 to be engaged. In other words, Bedford speaks to the cause of the prejudice, not to its foreseeability, as is the case here. What is uncertain here is not whether the state will eventually be responsible for the deportation if it actually occurs, but whether the likelihood of it is real enough to take it outside the realm of pure speculation and engage the rights protected by

section 7 of the Charter . The Supreme Court and this Court have held in a long line of cases that the nexus between the ineligibility determination and deportation is not close enough to trigger the right to life, liberty, and security. As mentioned earlier, an admissibility hearing is but one step in a complex, multi-tiered inadmissibility determination and removal regime under the IRPA .

Section 7 of the Charter cannot be interpreted as requiring that an assessment of a person’s right be made at every step of the process. In a nutshell, I am of the view that Bedford has not displaced the extensive jurisprudence affirming that an inadmissibility finding is distinct from effecting removal. [ 46 ] The appellant claims that inadmissibility findings are especially proximate to deportation for permanent residents like him, for whom Parliament has eliminated the possibility of an IAD appeal and has barred H&C applications.

Indeed, once the ID determines that a permanent resident is inadmissible, such individuals revert to “foreign national” status and become legally vulnerable to an enforceable removal order pursuant to paragraph 49(1) (

a) of the IRPA . That being said, foreign nationals in Mr. Revell’s position have access to other administrative processes to challenge their removal, as mentioned in paragraphs 10 to 12 of these reasons. [ 47 ] Of particular relevance in this case is subsection 42.1(1) of the IRPA , which allows a permanent resident who has been found inadmissible for having engaged in organized crime to apply to the Minister of Public Safety and Emergency Preparedness for

discretionary relief from that inadmissibility on the basis that such relief is not contrary to the national interest.

The Minister may also,on his own initiative, declare that the ground of organized criminality of a foreign national does not constitute inadmissibility if he issatisfied that it is not contrary to the national interest (subsection 42.1(2)); in determining whether to make such declaration, the Ministermay consider national security and public safety considerations, including, but not limited to, the danger that the applicant presents to thepublic in Canada (subsection 42.1(3)). [48] If such relief is granted, a foreign national is then eligible to make an H&C application under

section 25 of the IRPA. If the reliefis not granted, the foreign national may nevertheless apply for an exceptional temporary resident permit allowing him or her to remain inCanada for a finite period of time; this permit is discretionary and may be renewed (the IRPA,

section 24). [49] Even if declared inadmissible, a foreign national may still apply for a PRRA to determine whether they would be at risk in thecountry of return, including exposure to a risk of torture, risk to their life, or risk of cruel and unusual treatment or punishment. Ifpositive, the PRRA decision has the effect of staying the applicant’s removal order (sections 96–97, 112–113 of the IRPA; Covarrubiasv. Canada (Minister of Citizenship and Immigration), 2006 FCA 365, [2007] 3 F.C.R. 169 (Covarrubias), at paragraphs 16–18.

In thecase at bar, this mechanism was of no avail to the appellant, since his assertion of psychological harm resulting from his deportation fallsoutside the scope of a PRRA officer’s jurisdiction. [50] Finally, the person subject to removal may request that it be deferred. Admittedly, the CBSA officer to whom such a request ismade has only limited discretion to determine when it is possible, pursuant to

section 48 of the IRPA, for a removal order to be executed.The circumstances that will typically be taken into consideration include illness or other impediments to removal, the short-term bestinterests of children, or the existence of pending immigration applications that were made on a timely basis. Removal may also bedeferred where it will expose the applicant to the risk of death, extreme sanction or inhumane treatment (see Lewis, at paragraphs 55, 58;Baron v. Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81, [2010] 2 F.C.R. 311, at paragraphs 49–51;Shpati v.

Canada (Public Safety and Emergency Preparedness), 2011 FCA 286, [2012] 2 F.C.R. 133 (Shpati), at paragraphs 43–44). [51] At each and every step of this process, an applicant is entitled to make submissions and to be represented by counsel, maychallenge any decision by way of an application for judicial review before the Federal Court, and may seek a stay of removal pending thedetermination of such an application. More importantly for Mr. Revell, this Court has made it clear that the Federal Court has moreleeway than an enforcement officer when considering a request for a stay.

Upon judicial review of a decision by an enforcement officernot to defer removal, the Federal Court is empowered to (and in my view must) assess any risk of harm that has been overlooked by theenforcement officer in order to determine whether the rights protected by

section 7 of the Charter are engaged (see Shpati, at paragraphs49–51; Atawnah v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 144, [2017] 1 F.C.R. 153, at paragraphs 18–23;Savunthararasa v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 51, sub nom. Peter v. Canada (Public Safety andEmergency Preparedness), [2017] 1 F.C.R. 318 (Savunthararasa), at paragraph 26). [52] There are thus a number of safety valves in the IRPA ensuring that the deportation process as a whole is in accordance with theprinciples of fundamental justice.

The admissibility hearing before the ID is clearly not the last step in that complex process, and everyperson, including the applicant, is provided with an opportunity to have his or her Charter rights fully assessed before being removedfrom Canada. The Judge did not err in finding that Mr. Revell could reiterate the submissions that could not be entertained by the PRRAofficer if and when he seeks a deferral of his removal at a later stage of his deportation process (F.C.

Reasons, at paragraph 110). [53] Relying once again on Professor Heckman’s article, the appellant submits that the approach to the engagement of

section 7 in thecontext of deportation does not sit well with the reasoning of Canadian courts in the related areas of extradition law and criminal law. Inthese areas,

section 7 rights are engaged from the outset of proceedings where there is a possibility of detention (see also HamishStewart, Fundamental Justice:

Section 7 of the Canadian Charter of Rights and Freedoms (Toronto: Irwin Law, 2012), at page 81). Onthis point, I would make two observations. [54] First, one must never forget that Charter rights take their colour from the context. It bears repeating that the most fundamentalprinciple of immigration law is that “non-citizens do not have an unqualified right to enter or remain in the country” (Chiarelli, at page733).

Therefore Parliament can impose conditions on a permanent resident’s right to remain in Canada, and can legitimately remove apermanent resident from the country if they have deliberately violated an essential condition under which they were permitted to enterand remain in Canada. A finding of inadmissibility is an administrative determination that a non-citizen failed to respect the conditionsunder which he or she was permitted to remain in Canada.

Inadmissibility proceedings are therefore not criminal or quasi-criminal innature, and courts have consistently held that the deportation of a person found criminally inadmissible to Canada is not imposed as apunishment (see Tran, at paragraph 43; Chiarelli, at pages 735–736; Hurd v. Canada (Minister of Employment and Immigration), (FCA), [1989] 2 F.C. 594 [pages 604–607], (1988), 90 N.R. 31 (C.A.), at paragraphs 22–27; Solis v. Canada (Minister ofCitizenship and Immigration) [sub nom. Haghighi v.

Canada (Minister of Citizenship and Immigration), (FCA),[2000] 4 F.C. 407, (2000)] 189 D.L.R. (4th) 268 (C.A.), at paragraph 25). In contrast, the extradition process is meant to assist a foreignstate to bring an individual to trial when there is sufficient evidence to justify committal for trial in Canada. It comes closer to criminallaw than to administrative law, and cannot be analogized to deportation under the IRPA for the purposes of determining when

section 7rights come into play. [55] My second observation relates to the nature of the

section 7 rights to be considered. There is no doubt that the procedural aspectsof

section 7 are engaged as soon as a person’s right to life, liberty or security are put at risk by state action. In other words, the processleading to the potential infringement of these rights must be fair and in accordance with the basic tenets of our judicial system. It is in thatsense that

section 7 can be said to permeate the entire extradition and criminal process, and the same can probably be said of theinadmissibility and removal process under the IRPA. As a result, the fact that a person is liable to be removed constitutionally entitlesthat person to a fair hearing, with an opportunity to make representations, before an impartial decision maker. [56] However, this is not the same as saying that a person’s substantive rights to life, liberty, and security must be considered at everystep of the process. The jurisprudence in the immigration context is clear:

section 7 rights are considered at the removal or pre-removaldetention stage. The Supreme Court drew a similar distinction in the extradition context in United States of America v. Cobb, 2001 SCC19, [2001] 1 S.C.R. 587, at paragraph 34:

Section 7 permeates the entire extradition process and is engaged, although for different purposes, at both stages of the proceedings. After committal, if a committal order is issued, the Minister must examine the desirability of surrendering the fugitive in light of many considerations, such as Canada’s international obligations under the applicable treaty and principles of comity, but also including the need to respect the fugitive’s constitutional rights.

At the committal stage, the presiding judge must ensure that the committal order, if it is to issue, is the product of a fair judicial process. [ 57 ] For all of the foregoing reasons, I am of the view that the Judge did not err in dismissing Mr. Revell’s

section 7 arguments as being premature and in finding that an inadmissibility determination does not engage

section 7. This finding is sufficient to dispose of the appeal. I will nevertheless address the questions identified above in order to provide a complete answer to the certified questions. B. If so, is

section 7 engaged by the uprooting of a long-term permanent resident absent possible persecution or torture in the country of nationality? [ 58 ] The appellant claims that, while deportation per se does not engage

section 7 liberty and security rights ( Medovarski ), it may still do so when coupled with sufficiently serious consequences to the person ( Charkaoui ). Relying on Blencoe v. British Columbia (Human Rights Commission) , 2000 SCC 44 , [2000] 2 S.C.R. 307 ( Blencoe ), the appellant argues that the exceptional psychological harm associated with his uprooting from Canada amounts to such sufficiently serious consequences that his

section 7 security interests are engaged. He also appears to consider that his liberty interests are infringed by the finding of inadmissibility. [ 59 ] The respondent counters these arguments by noting that, in Medovarski , the Court explicitly rejected the idea that the interference with a permanent resident’s “liberty to make fundamental decisions” and the “state-imposed psychological stress” accompanying deportation amount to a deprivation of liberty and/or security under

section 7 of the Charter ( Medovarski , at paragraph 45 ). In the respondent’s view, the record in this case does not disclose the kind of psychological harm that would go beyond the normal consequences of deportation. Deportation of a permanent resident will inevitably “uproot” them from their life in Canada, but it is well settled that such “uprooting” does not engage the rights covered by

section 7. [ 60 ] To establish an infringement of his

section 7 rights, Mr. Revell bears the burden of showing, first, that the impugned law or state action interferes or could interfere with one of his rights (the “engagement” stage), and, second, that such interference is not in accordance with the principles of fundamental justice. At the first step of the analysis, it is not necessary to demonstrate a direct causal connection, but only a “ sufficient causal connection” [emphasis in original] ( Bedford , at paragraph 75 ).

As explained by the Supreme Court, “[a] sufficient causal connection standard does not require that the impugned government action or law be the only or the dominant cause of the prejudice suffered by the claimant, and is satisfied by a reasonable inference, drawn on a balance of probabilities” ( Bedford , at paragraph 76 ).

The Supreme Court went on to add that a sufficient causal connection must be “sensitive to the context of the particular case” and must be based on a real, as opposed to a speculative, link ( Bedford , at paragraph 76 ). [ 61 ] In Medovarski , the claimant had similarly argued that deportation would remove “her liberty to make fundamental decisions that affect her personal life, including her choice to remain with her partner” , and that her security would also be infringed “by the state- imposed psychological stress of being deported” (at paragraph 45).

At issue in that case was the discontinuance of the right to appeal a removal order resulting from serious criminality following the enactment of the IRPA .

The Court flatly rejected the claimant’s argument in the following terms (at 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 ]….Thus the deportation of a non-citizen in itself cannot implicate the liberty and security interests protected by s. 7 of the Canadian Charter of Rights and Freedoms . (See also Lewis , at paragraph 63 .) [ 62 ] The reasoning followed in the above-quoted excerpt is somewhat unsatisfactory.

As noted by the Judge, the Supreme Court in Chiarelli did not determine whether deportation per se triggers the interests protected in

section 7 and amounted to a deprivation of life, liberty or security of the person, because it found no breach of the principles of fundamental justice. Be that as it may, the Court never resiled from that reasoning and applied it unwaveringly in subsequent cases (see Febles and B010 ). At the most, the Court qualified its statement and clarified that Medovarski does not stand for the proposition that proceedings related to deportation in the immigration context will never infringe

section 7 rights. As the Court stated in Charkaoui , at paragraphs 16–17 : ….The government argues, relying on [ Medovarski ], … that s. 7 does not apply because this is an immigration matter. The comment from that case on which the government relies was made in response to a claim that to deport a non-citizen violates s. 7 of the Charter . In considering this claim, the Court … noted … that “[t]he most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in Canada”.

The Court added: “Thus the deportation of a non-citizen in itself cannot implicate the liberty and security interests protected by s. 7 ” …. Medovarski thus does not stand for the proposition that proceedings related to deportation in the immigration context are immune from s. 7 scrutiny.

While the deportation of a non-citizen in the immigration context may not in itself engage s. 7 of the Charter , some features associated with deportation, such as detention in the course of the certificate process or the prospect of deportation to torture, may do so. [Emphasis in the original.] [ 63 ] Relying on this last sentence from the Supreme Court’s decision in Charkaoui [at paragraph 17] , the appellant argues that the psychological harm associated with the “uprooting” of a permanent resident of more than 40 years to a country with which he has no ties is one such “feature associated with deportation” that could engage

section 7 . The alleged consequences of the appellant’s removal on his

section 7 liberty and security interests must therefore be considered to determine whether they go beyond the “typical” consequences of removal.

(1) Liberty [ 64 ] In Blencoe , the Supreme Court held that “[t]he liberty interest protected by s. 7 of the Charter is no longer restricted to mere

freedom from physical restraint” (at paragraph 49). Rather, it is engaged whenever “state compulsions or prohibitions affect importantand fundamental life choices” (at paragraph 49). However, this right is not unlimited, nor does it include every personal decision anindividual may wish to make (Begum, at paragraph 96). Only those choices that are “̒ fundamentally or inherently personal̓” fall withinthe ambit of the right to liberty. As the Supreme Court made clear in Godbout v.

Longueuil (City), (SCC), [1997] 3S.C.R. 844, (1997), 152 D.L.R. (4th) 577, at paragraph 66: … the right to liberty enshrined in s. 7 of the Charter protects within its ambit the right to an irreducible sphere of personal autonomywherein individuals may make inherently private choices free from state interference. … I do not by any means regard this sphere ofautonomy as being so wide as to encompass any and all decisions that individuals might make in conducting their affairs.

Indeed, such aview would run contrary to the basic idea … that individuals cannot, in any organized society, be guaranteed an unbridled freedom to dowhatever they please. Moreover, I do not even consider that the sphere of autonomy includes within its scope every matter that might,however vaguely, be described as “private”.

Rather, as I see it, the autonomy protected by the s. 7 right to liberty encompasses only thosematters that can properly be characterized as fundamentally or inherently personal such that, by their very nature, they implicate basicchoices going to the core of what it means to enjoy individual dignity and independence. (See also R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, [2003] 3 S.C.R. 571 (Malmo-Levine), at paragraph 85; Association of JusticeCounsel v. Canada (Attorney General), 2017 SCC 55, [2017] 2 S.C.R. 456, at paragraph 49; R. v.

Morgentaler, (SCC),[1988] 1 S.C.R. 30, (1988), 44 D.L.R. (4th) 385 (Morgentaler).) [65] In the present case, grounding its decision on that of the Federal Court in Romans F.C. (at paragraph 22), the ID found that theappellant’s

section 7 liberty right is engaged “as he will be deprived of the right to make a personal choice of where to establish hishome, free from state interference” (ID Decision, at paragraph 31). The Judge overturned the ID’s conclusion in this regard, on the basisthat the Romans F.C. decision did not accord with the holding in Medovarski that deportation of a non-citizen does not, in itself,implicate the liberty interests protected by

section 7 (F.C. Reasons, at paragraph 130). [66] I see no reason to interfere with this conclusion of the Judge. The ID erred in law in relying on the reasoning of the Federal Courtin Romans F.C., as this reasoning runs counter to the approach adopted by the Supreme Court in Medovarski. The appellant has notdemonstrated, nor really argued before this Court, that the consequences of his deportation on his liberty interests are more significantthan the consequences generally associated with deportation, which have been found not to engage

section 7. Apart from the fact that hewould leave behind his children, his grandchildren, and his partner, and that he is a “stranger” to England, Mr. Revell has not establishedany particular circumstances that would go beyond the typical impacts of removal. The limits that would be imposed on the appellant’sability to make a choice about where to live are no greater, in my view, than those imposed on the claimant’s ability in Medovarski tochoose to remain with her partner in Canada. This case is thus dispositive. [67] The appellant suggests that the

section 7 liberty interests could be engaged in a hypothetical case where the deportation wouldprevent a non-resident from nurturing or caring for their minor children or accessing medical treatment with potentially life-threateningconsequences. Yet these circumstances have no evidentiary foundation or bearing here. Charter cases should not be considered in afactual vacuum (Mackay v. Manitoba, (SCC), [1989] 2 S.C.R. 357, at pages 361–362, (1989), 61 D.L.R. (4th) 385).

Theappellant bears the burden of proving facts that establish that his Charter rights are implicated, and of doing so based on an actualevidentiary record (Ernst v. Alberta Energy Regulator, 2017 SCC 1, [2017] 1 S.C.R. 3, at paragraph 22; Savunthararasa, at paragraphs16, 22). He cannot rely on mere speculation to make out a deprivation under

section 7 of the Charter. [68] It is also worth pointing out that, while this Court affirmed the decision of the Federal Court in Romans F.C., it expresslydeclined to make a determination as to whether

section 7 of the Charter was engaged (Romans F.C.A., at paragraph 1). It simply foundthat the judge had been right not to intervene, as the deportation was in accordance with the principles of fundamental justice (RomansF.C.A., at paragraph 4). A similar approach was followed in Powell v. Canada (Minister of Citizenship and Immigration), 2005 FCA202, 255 D.L.R. (4th) 59. [69] To the extent that Mr. Revell tries to ground his

section 7 claim on his need to access medical tr

[…]