Section 7 of the Canadian Charter of Rights and Freedoms (the “Charter“) provides that:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
There have been several Supreme Court of Canada (the “Supreme Court“) and Federal Court of Appeal decisions involving s. 7 of the Charter and deportation.
Chiarelli was the landmark Supreme Court decision in which the Supreme Court affirmed that non‑citizens do not have an unqualified right to enter or remain in the country, and that Parliament would be afforded a wide range of discretion with regards to what would be in the public interest as to which non‑citizens would be allowed to remain in the country. Furthermore, the Supreme Court determined that, in the context of deportation, a person’s individual circumstances do not have to be considered. The central issue in Chiarelli was whether Parliament’s decision that anyone who committed a certain type of offence, regardless of the circumstances or mitigating factors of the offence, violated the Charter.
The Supreme Court held that it did not, writing that: (edited for ease of reading)
It is true that the personal circumstances of individuals who breach [the requirement not to commit certain offences] may vary widely. The offences which are referred to [as resulting in deportation] also vary in gravity, as may the factual circumstances surrounding the commission of a particular offence. However there is one element common to all persons who fall within the class of permanent residents [who commit certain types of crimes]. They have all deliberately violated an essential condition under which they were permitted to remain in Canada. In such a situation, there is no breach of fundamental justice in giving practical effect to the termination of their right to remain in Canada. In the case of a permanent resident, deportation is the only way in which to accomplish this. There is nothing inherently unjust about a mandatory order. The fact of a deliberate violation of the condition imposed by[immigration legislation] is sufficient to justify a deportation order. It is not necessary, in order to comply with fundamental justice, to look beyond this fact to other aggravating or mitigating circumstances.
Chiarelli was also significant because the Supreme Court determined that the regulatory scheme involving deportation did not have the same Charter protections as in the criminal sphere, and that the right to an appeal to prevent deportation was not a principle of a fundamental justice.
In Medovarski, the Supreme Court had to determine, amongst other things, whether the removal of appeal rights for permanent residents convicted of certain offences from being deported violated s. 7 of the Charter.
The Supreme Court found that it did not.
Citing Chiarelli, the Supreme Court reiterated that the deportation of a non-citizen in itself cannot implicate the liberty and security interests protected by s. 7 of the Charter. The Supreme Court then noted that even if the removal of appeal rights engaged s. 7 of the Charter, the unfairness was inadequate to constitute a breach of the principles of fundamental justice, and that principles of fundamental justice do not mandate the provision of a compassionate appeal from a decision to deport a permanent resident for serious criminality.
The Supreme Court further stated that:
There can be no expectation that the law will not change from time to time, nor did the Minister mislead Medovarski into thinking that her right of appeal would survive any change in the law. Thus for these reasons, and those discussed earlier, any unfairness wrought by the transition to new legislation does not reach the level of a Charter violation.
Before someone is removed from Canada they must be determined to be inadmissible. In Poshteh, the Federal Court of Appeal determined that a finding of inadmissibility does not engage an individual’s section 7 Charter rights. This is because a number of proceedings may yet take place between an inadmissibility determination and an individual’s removal from Canada.