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 Canadian immigration law.
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. The Court stated that:
Here, all that is being determined is whether Mr. Poshteh is inadmissible to Canada on the grounds of his membership in a terrorist organization. The authorities are to the effect that a finding of inadmissibility does not engage an individual’s section 7 Charter rights. (See, for example, Barrera v. Canada (Minister of Employment and Immigration), 1992 CanLII 2420 (FCA),  2 F.C. 3 (C.A.).) A number of proceedings may yet take place before he reaches the stage at which his deportation from Canada may occur. For example, Mr. Poshteh may invoke subsection 34(2) to try to satisfy the Minister that his presence in Canada is not detrimental to the national interest. Therefore, fundamental justice in section 7 of the Charter is not of application in the determination to be made under paragraph 34(1)(f) of the Act.
To the extent that a person’s section 7 interests may be affected by deportation, they must be examined against the panoply of options for relief that are available under the Immigration Refugee and Protection Act and cannot be assessed in isolation.
Regulation 117(9)(d) of the Immigration and Refugee Protection Regulations provides that a person cannot be sponsored by a Canadian citizen or permanent resident if the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined. It most typically arises in the context of a prospective immigrant not disclosing the existence of a spouse or child and then trying to sponsor that person to immigrate to Canada after they do.
In de Guzman, Ms. de Guzman’s counsel argued that by preventing her from sponsoring her children, and keeping her apart from them, regulation 117(9)(d) deprived her of the right to liberty because it restricted her right to make fundamental personal choices, and also that regulation 117(9)(d) deprived her of her right to security of the person by subjecting her to the psychological stress of being separated from close family members.
The Federal Court of Appeal disagreed, and found that s. 7 of the Charter was not engaged because regulation 117(9)(d) was not the cause of Ms. de Guzman’s 12 year separation from her children. Rather, her decision to immigrate to Canada without them, and to lie during her immigration process, was the cause. In sum, Ms. de Guzman had not established that she was the victim of the “serious state-imposed psychological stress” to which s. 7 of the Charter applies.
Furthermore, the court held that the children were free to make H&C applications.
Revell v. Canada (Citizenship and Immigration), 2017 FC 905
The Federal Court has certified the following two questions related to this issue:
- Is section 7 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?
- 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?
Moretto v. Canada (Citizenship and Immigration), 2018 FC 71
In addition to the two questions certified in Revell, the Federal Court has certified the following additional question related to this issue:
- Is a s.12 determination premature at the stage where a permanent resident’s stay of removal is automatically cancelled pursuant to s.68(4)?
Section 12 of the Charter provides that the Canadian government should not subject people to cruel and unusual punishment.