Last updated on July 22nd, 2020
Last Updated on July 22, 2020 by Steven Meurrens
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), 2019 FCA 262
Here, the Federal Court of Appeal determined that an inadmissibility determination does not engage section 7 of the Charter, and even if it does, the deportation of the appellant in the specific circumstances of this case would not infringe his section 7 right to liberty or security or be inconsistent with the principles of fundamental justice.
Moretto v. Canada (Citizenship and Immigration), 2018 FC 71
Here, the Federal Court of Appeal determined that the cancellation of the stay of an ID’s inadmissibility determination pursuant to subsection 68(4) of the IRPA does not engage section 7 of the Charter.
The issue in this case was whether the Safe Third Country Agreement violates s. 7 of the Charter. Under the agreement, most refugee claimants arriving from the United States at ports of entry who are not American are turned back. Evidence was presented to show that most claimants are detained upon re-entry to the USA for several weeks to months, often in solitary confinement. The Federal Court found that this engaged s. 7. The Court also found that the Safe Third Country Agreement was overbroad, on the grounds that it applies to all claimants, and that there is no assessment of risk prior to removal. Madam Justice Macdonald wrote:
As noted above, there is an important distinction between the removal cases and the facts here. Here, the Applicants have not had the merits or the substance of their refugee protection claims considered in any manner in Canada, nor have they had their risks assessed. In the “removals” cases, such as Suresh and Revell, the Courts found that there were sufficient consideration of the merits of the claims and “safety valves” to assess claims for protection. The Applicants here – ABC, DE, FG, Ms. Mustefa and the Homsi/Al-Nahass family – did not benefit from any such consideration of their claims for protection.
She further wrote that Canada could not turn a blind eye to these consequences for administrative convenience.
The risks of detention and loss of security of the person, which are facilitated by the STCA, are grossly disproportional to the administrative benefits of the STCA, which was intended to help Canada and the US share responsibility for refugees in a way that complies with the Refugee Convention (CCR 2008 at para 75). In my view, the impact of being found ineligible under the STCA is grossly disproportionate, and out of sync with the objective of the legislation (Bedford at para 120). Responsibility sharing cannot be positively balanced against imprisonment or the deleterious effects of cruel and unusual detention conditions, solitary confinement, and the risk of refoulement. In my view, to find otherwise would be “entirely outside the norms accepted in our free and democratic society” (Bedford at para 120).