Date: 20040813
Docket: IMM-4964-03
Citation: 2004 FC 1120
BETWEEN:
HILROY CHARLES POWELL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
INTRODUCTION
[1] These reasons follow the hearing of an application for judicial review of a decision of a Member of the Immigration Division of the Immigration and Refugee Board (the "Member") wherein the Member determined Hilroy Charles Powell (the "Applicant") to be inadmissible to Canada on grounds of serious criminality, pursuant to paragraph 36(1)(a) of the Immigration and Refugee Protection Act[1] ("IRPA") and issued a deportation order against him. The decision under review is dated the 12th of June, 2003.
BACKGROUND
[2] The Applicant was born in Jamaica on the 13th of August, 1962. He first arrived in Canada as an agricultural worker in June of 1987 on a temporary visa. He remained in Canada and was granted permanent resident status in January of 1993. He never became a Canadian citizen.
[3] In October of 2001, the Applicant was convicted of conspiracy to traffic in a narcotic and two (2) counts of trafficking in a narcotic. He was sentenced to an aggregate of ten and one half (10 ½) years of imprisonment, in addition to eighteen (18) months of time already served.
THE DECISION UNDER REVIEW
[4] None of the foregoing factual background was in dispute before the Member. Rather, the issue before him was whether the issuance of a deportation order against the Applicant would violate section 7 of the Canadian Charter of Rights and Freedoms[2] (the "Charter"), and is not saved by section 1 of the Charter, because the issuance of the deportation order engages life, liberty and security of the person interests without providing safeguards that accord with the principles of fundamental justice. The Member described the issues before him in the following terms:
... one, whether the Immigration Division has jurisdiction to hear and determine the constitutional question (and, as a related issue, whether this Division is the "appropriate" forum for this particular determination); two, whether section 7 of the Canadian Charter of Rights and Freedoms ("Charter") would be violated by the issuance of the removal order pursuant to s. 45(d) [of IRPA]; and third, whether or not such a violation would constitute "a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society" under s. 1 of the Charter.
[5] The Member determined that the Immigration Division had jurisdiction to hear and determine the constitutional question that was before him and that the Immigration Division was the "appropriate forum" to determine the constitutional question. He then went on to analyse whether or not the issuance of a deportation order against the Applicant would violate the Applicant's section 7 Charter rights. Essentially on the authority of Chiarelli v. Canada (Minister of Employment and Immigration)[3] ("Chiarelli"), he determined that the Applicant's section 7 Charter rights were not engaged. He thus answered the constitutional question which was before him in the negative and was not required to turn to the question of whether any violation of the Applicant's section 7 Charter rights would be saved by section 1 of the Charter.
THE STATUTORY SCHEME
[6] The relevant provisions of IRPA and of the Charter are set out in a Schedule to these reasons.
[7] In summary, a permanent resident such as the Applicant here is considered inadmissible to Canada if convicted of an offence or offences under an Act of Parliament for which a term of imprisonment of ten (10) years or more may be imposed or for which a term of imprisonment of six (6) months or more has been imposed. Where a report is prepared by immigration officials alleging that inadmissibility circumstances have come into play with respect to a permanent resident in Canada, the report is forwarded to the Immigration Division of the Immigration and Refugee Board for determination. Such a report gave rise to the decision of the Member that is here under review. Given the determination made on the facts of this matter by the Member, the appropriate form of removal order, that is to say, a deportation order, issued. Because by virtue of section 64 of IRPA, the Applicant had no right of appeal against the deportation order to the Immigration Appeal Division, the deportation order came into force on the day it was made.
THE ISSUE
[8] In a further Memorandum of Argument submitted on behalf of the Applicant, the sole issue on this application for judicial review is stated in the following terms:
Whether the issuance of a deportation order against this Applicant pursuant to s. 45(d) of the Immigration and Refugee Protection Act breaches liberty in s. 7 of the Charter in a manner which does not comply with the requirements of fundamental justice.
[9] Counsel for the Respondent restates the issue before the Court in substantially the following terms: is it constitutionally permissible to preclude an appeal to the Immigration Appeal Division from a removal order made against a person who has been convicted of serious criminality?
ANALYSIS
[10] I am satisfied that the Member was correct in his reliance on Chiarelli, at least as a starting point in any analysis on the issue here before the Court. That being said, Chiarelli was decided in the context of an earlier legislative scheme that included a broad-based appeal for persons in the situation of the Applicant. While the basis of appeal is carried forward into IRPA, it is eliminated by section 64 for persons such as the Applicant.
[11] In the decision under review, the Member emphasizes the following passages from Chiarelli:
...The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country. ...[4]
...
Thus Parliament has the right to adopt an immigration policy and to enact legislation prescribing the conditions under which non-citizens will be permitted to enter and remain in Canada. ... One of the conditions Parliament has imposed on a permanent resident's right to remain in Canada is that he or she not be convicted of an offence for which a term of imprisonment of five years or more may be imposed. This condition represents a legitimate, non-arbitrary choice by Parliament of a situation in which it is not in the public interest to allow a non-citizen to remain in the country. The requirement that the offence be subject to a term of imprisonment of five years indicates Parliament's intention to limit this condition to more serious types of offences.[5]
...
...there is one element common to all persons who fall within the class of permanent residents describe in s. 27(1)(d)(ii). 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 s. 27(1)(d)(ii) 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.[6]
...
...In my view s. 7 [of the Charter] does not mandate the provision of a compassionate appeal from a decision which, as I have already concluded, comports with principles of fundamental justice.[7]
...
...there has never been a universally available right of appeal from a deportation order on "all the circumstances of the case". Such an appeal has historically been a purely discretionary matter. Although it has been added as a statutory ground of appeal, the executive has always retained the power to prevent an appeal from being allowed on that ground in cases involving serious security interests.
If any right of appeal from the deportation order in s. 32(2) is necessary in order to comply with principles of fundamental justice, a "true" appeal which enables the decision of the first instance to be questioned on factual and legal grounds clearly satisfies such a requirement. The absence of an appeal on wider grounds than those on which the initial decision was based does not violate s.7.[8]
[12] Once again it is worthy of note, in relation to the last quoted extract, that on the legislative scheme that was under consideration in Chiarelli, there was a right of appeal from a deportation order on "all the circumstances of the case" subject to a right in the executive to prevent an appeal from being allowed on that ground in cases involving serious security interests. That is not the case with the current legislative scheme. Rather, the right of appeal on "all the circumstances of the case" for persons such as the Applicant has been eliminated in absolute terms. The "right of appeal" on "factual and legal grounds" that remains is only through the avenue of judicial review in this Court.
[13] Counsel for the Applicant urged that a removal order made against an individual such as the Applicant who has been in Canada for many years impacts a wide range of interests of the individual including, potentially, interests reflected in international instruments to which Canada is a signatory. In this regard, counsel refers specifically to the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child. He notes that the range of interests impacted and the severity of the impact will vary with the particular circumstances of each individual. Thus, he urges, that an appeal on "all of the circumstances of the case" is essential to ensure compliance with the principles of fundamental justice.
[14] The Member, in an extensive footnote to his reasons[9] rejected this submission on the basis of a series of decisions of the Federal Court of Appeal culminating with Williams v. Canada (Minister of Citizenship and Immigration)[10] where Justice Strayer, for the Court, wrote at paragraphs [23] and [24]:
The jurisprudence of this Court on this subject has not been entirely consistent. There is one line of authority in which it has been clearly held that deportation is not a deprivation of liberty and therefore section 7 is not engaged. There have been some views to the contrary. When Chiarelli was before this Court the judges all found there to be a potential deprivation of liberty in the deportation of a permanent resident, although the Supreme Court in reversing the decision on other grounds found it unnecessary to address this issue. In Nguyen v. Canada (Minister of Employment and Immigration) Marceau J.A. at one point stated that a declaration that a person is ineligible to make a refugee claim does not in itself affect life, liberty or security of the person. He later says that when this declaration is combined with the requirement that non-citizens who commit serious crimes be deported, the overall scheme concerns the "deprivation of liberty". It is not clear to what extent this observation depends on the person in question being a refugee claimant who would, by definition, be able to assert a potential danger to himself in returning home. It also appears that such findings were unnecessary as the Court found there to be no breach of fundamental justice.
Without purporting to decide the question in respect to refugees, I have difficulty understanding how the refusal of a discretionary exemption from a lawful deportation order, as applied to a non-refugee who has no legal right to be in the country, must be seen as involving a deprivation of liberty. Unless "liberty" is taken to include the freedom to be anywhere one wishes, regardless of the law, how can it be "deprived" by the lawful execution of a removal order?
[15] I wish to emphasize two (2) points from the foregoing quotation: first, Justice Strayer acknowledges that the jurisprudence from the Federal Court of Appeal on this issue has "not been entirely consistent" and notes that when Chiarelli was before the Federal Court of Appeal, the judges all found there to be a potential deprivation of liberty in the deportation of a permanent resident. He also notes that the Supreme Court in reversing that decision on other grounds simply did not address the "deprivation of liberty" issue; and secondly, what was before the Court in Williams was "the refusal of a discretionary exemption from a lawful deportation order" deriving from the issuance of a "danger opinion" which followed an opportunity for Mr. Williams to make representations regarding all of the circumstances of his situation that mitigated against the issuance of the danger opinion.
[16] The Federal Court of Appeal had a more recent opportunity to confront the issue in Medovarski v. Canada (Minister of Citizenship and Immigration)[11] but while acknowledging the issue, found that it was not necessary to address it directly. Justice Evans, for the Court, wrote at paragraph [58] of his reasons:
Since, I am of the opinion that section 196 is not contrary to the principles of fundamental justice, I need not decide if Ms. Medovarski's removal from Canada would engage section 7 of the Charter by depriving her of the right to liberty or security of the person. I shall assume for present purposes that it does.
[17] I support counsel's submission that removal from Canada impacts a range of interests of the person affected and conceivably of other persons who are dependant on him or her. I am satisfied that that range of interests extends to the liberty interest of the person affected and that thus section 7 of the Charter is engaged.
[18] At the level of the Federal Court of Appeal in Chiarelli[12], Justice Pratte concluded that Mr. Chiarelli's liberty interest would be interfered with by deportation.[13]
[19] In Al Yamani v. Canada (Minister of Citizenship and Immigration)[14], I wrote at paragraph [59]:
I adopt the view of Mr. Justice Pratte that, on the facts of this matter, "...deportation necessarily implies an interference with the liberty of the [applicant]...". Parenthetically, though perhaps not relevant for the purposes of determining whether or not section 7 is engaged, the impact of deportation of the applicant on his wife and his children is potentially dramatic.
[20] I am not prepared, on the facts on this matter, to resile from the position I adopted in Al Yamani. That being said, not much was made of the impact that the Applicant's deportation from Canada might have on those closest to him here in Canada.
[21] The issue then becomes whether it can be said that the impending deprivation of that interest would be accomplished in accordance with the principles of fundamental justice.
[22] The Member concluded his reasons on the issue of whether or not the Applicant's section 7 Charter rights had been violated in the following terms:
After careful and thorough consideration of the principles enunciated in Chiarelli, I cannot agree with [the Applicant's] counsel's contention that there is a meaningful difference between the issues raised in the instant case and those addressed in Chiarelli. [The Applicant's] valiant attempt to distinguish this authority cannot succeed because, ..., the Supreme Court in Chiarelli, at p. 747 ... addressed and answered substantively the same question as the one posed in this case. In the course of its analysis, as is evident from the lengthy quotations above, the Court also dealt comprehensively with all the related issues - the nature of permanent resident status, the mandatory deportation order, the absence of a constitutional requirement to provide an appeal on "all the circumstances of the case" in the immigration context, and the executive's lawful authority to limit or eliminate the availability of such an appeal. The Court in Chiarelli was also alive to the wide variations in the individual circumstances of the offence and the offender, an issue [Applicant's counsel] raises ..., and still upheld the statutory framework that is not different from the current one in any significant respect. Thus whether Chiarelli is or is not "the last word on fundamental justice" is not the issue, as [Applicant's counsel] frames it, because it remains the most authoritative pronouncement in the immigration context. On the authority of Chiarelli, therefore, s. 7 is not engaged in the circumstances of [the Applicant's] case and the answer to the constitutional question is negative.[15] [citations omitted]
[23] Before me, counsel for the Applicant urged that the Member erred in the foregoing passage in failing to clearly distinguish whether he determined section 7 not to be engaged or whether, though engaged, the Applicant's liberty interest, though impaired, was impaired in accordance with the principles of fundamental justice.
[24] Both counsel who appeared before the Member cited Blencoe v. British Columbia (Human Rights Commission)[16] and, indeed, in his reasons, the Member quoted from that decision. At paragraph [47] of his reasons in Blencoe, Justice Bastarache, writing for the majority, wrote:
...Thus, before it is even possible to address the issue of whether the respondent's s. 7 rights were infringed in a manner not in accordance with the principles of fundamental justice, one must first establish that the interest in respect of which the respondent asserted his claim falls within the ambit of s. 7. These two steps in the s. 7 analysis have been set out by La Forest J. in R. v. Beare, ..., as follows:
To trigger its operation there must first be a finding that there has been a deprivation of the right to "life, liberty and security of the person" and, secondly, that the deprivation is contrary to the principles of fundamental justice.
Thus, if no interest in the respondent's life, liberty or security of the person is implicated, the s. 7 analysis stops there. ... [citation omitted]
[25] The Member, I am satisfied, quite properly distinguished Blencoe on its facts. However, having found, as I have, that the Applicant's liberty interest is engaged, I am obliged to turn to the question of whether or not, on the facts of this matter, the deprivation is in accord with the principles of fundamental justice. This analysis involves a weighing of the Applicant's personal interests that are affected by the deprivation of his liberty interest against the interests of the state that are inherent in the legislative scheme set out in the provisions of IRPA that are here at issue.
[26] Substantial guidance in this regard can be gathered from the elements of the reasoning in Chiarelli that are earlier reflected in these reasons. First, persons such as the Applicant, that is to say permanent residents of Canada, do not have an unqualified right to enter and remain in Canada. That reality, and the distinction in mobility rights between those of Canadian citizens and those with the status of permanent residents of Canada is entrenched in section 6 of the Charter. Thus, as noted in a quotation from Chiarelli that appears earlier in these reasons:
...Parliament has the right to adopt an immigration policy and to enact legislation prescribing the conditions under which non-citizens will be permitted to enter and remain in Canada. ...
[27] The Applicant has been found to have deliberately violated an essential condition under which he is permitted to remain in Canada. Counsel for the Applicant to the contrary, I am satisfied that, while the protection against arbitrary deprivation of his right to remain in Canada, and indeed of additional rights to which he might have a legitimate claim and that might be reflected in international instruments to which Canada is a party, is far from absolute it continues in existence despite the fact that the avenue of relief through appeal to the Immigration Appeal Division has been eliminated by IRPA.
[28] As previously noted, the Applicant is afforded a degree of protection on factual and legal grounds through his right to judicial review that is reflected in this proceeding. Further, he continues to have a right under IRPA to an assessment of the risk that he would face if removed from Canada to Jamaica and, in the event that such risk were determined to be significant and to outweigh the public interest in his removal from Canada, then he would be entitled to relief.
[29] Finally, the Applicant is not without the opportunity to seek relief against removal on the basis of "humanitarian and compassionate" circumstances of his case pursuant to section 25 of IRPA. Counsel for the Applicant urges that this latter form of relief is more illusory than real since, pending such a review, in the absence of a judicial stay of removal granted by this Court, the Applicant would remain subject to removal since there is no statutory stay of removal pending determination of an application for humanitarian and compassionate grounds relief. I am satisfied that, while matters coming before this Court tend, in the view of this judge, to demonstrate that consideration and disposition of applications for humanitarian and compassionate grounds relief can sometimes take an inordinately long time, such experience in this Court is purely anecdotal. There is nothing in the Tribunal record to indicate that evidence to support the allegation of illusory relief was placed before the Member. Further, there appears to be no evidence before the Court that, since the date of the deportation order issued against the Applicant, namely the 12th of June, 2003, an application for humanitarian and compassionate relief against removal has been filed on his behalf.
[30] In the circumstances, against the factual and analytical guidance provided in Chiarelli, assuming a deprivation of the Applicant's liberty interest, I nonetheless conclude that that deprivation has occurred through action of Parliament in a total context that has preserved consistency with the principles of fundamental justice.
[31] In light of my conclusions thus far, I am satisfied that it is unnecessary to turn to the issue of whether or not Parliament's legislative action leading to an abrogation of the Applicant's liberty interest is saved by section 1 of the Charter in that it constitutes a reasonable limit on section 7 rights that can be demonstrably justified in a free and democratic society.
[32] Further, once again in light of my conclusions to this point, I do not propose to turn to the issue of what might have been an appropriate remedy or remedies in favour of the Applicant, assuming success on his part on this application for judicial review. The question of remedies was not addressed on the hearing of this matter. Rather, the parties provided written submissions on that issue following the hearing. I thank counsel for those submissions. Given the result on this application for judicial review, I will not turn to them.
CONCLUSION
[33] This application for judicial review will be dismissed.
[34] Copies of these reasons will be distributed and counsel will be provided an opportunity to make written submissions on whether or not a serious question of general importance arises out of this matter that would warrant certification of a question. Counsel for the Applicant will have seven (7) days from the date of distribution of these reasons to serve and file any written submissions. Thereafter, counsel for the Respondent will have seven (7) days to serve and file responding submissions. Finally, counsel for the Applicant will have a further seven (7) days to serve and file any reply submissions. Only thereafter will an order issue dismissing this application for judicial review and addressing any certification submissions.
____________________________
J.F.C.
Ottawa, Ontario
August 13, 2004
SCHEDULE
PART I
The Immigration and Refugee Protection Act
3. (1) The objectives of this Act with respect to immigration are
...
(h) to protect the health and safety of Canadians and to maintain the security of Canadian society;
(i) to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks; and
...
3. (1) En matière d'immigration, la présente loi a pour objet_:
...
h) de protéger la santé des Canadiens et de garantir leur sécurité;
i) de promouvoir, à l'échelle internationale, la justice et la sécurité par le respect des droits de la personne et l'interdiction de territoire aux personnes qui sont des criminels ou constituent un danger pour la sécurité;
...
25. (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister's own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations.
...
25. (1) Le ministre doit, sur demande d'un étranger interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s'il estime que des circonstances d'ordre humanitaire relatives à l'étranger - compte tenu de l'intérêt supérieur de l'enfant directement touché - ou l'intérêt public le justifient.
...
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;
...
36. (1) Emportent interdiction de territoire pour grande criminalité les faits suivants_:
a) être déclaré coupable au Canada d'une infraction à une loi fédérale punissable d'un emprisonnement maximal d'au moins dix ans ou d'une infraction à une loi fédérale pour laquelle un emprisonnement de plus de six mois est infligé;
...
45. The Immigration Division, at the conclusion of an admissibility hearing, shall make one of the following decisions:
...
45. Après avoir procédé à une enquête, la Section de l'immigration rend telle des décisions suivantes_:
...
(d) make the applicable removal order against a foreign national who has not been authorized to enter Canada, if it is not satisfied that the foreign national is not inadmissible, or against a foreign national who has been authorized to enter Canada or a permanent resident, if it is satisfied that the foreign national or the permanent resident is inadmissible.
...
d) prendre la mesure de renvoi applicable contre l'étranger non autorisé à entrer au Canada et dont il n'est pas prouvé qu'il n'est pas interdit de territoire, ou contre l'étranger autorisé à y entrer ou le résident permanent sur preuve qu'il est interdit de territoire.
...
46. (1) A person loses permanent resident status
...
(c) when a removal order made against them comes into force; or
...
46. (1) Emportent perte du statut de résident permanent les faits suivants_:
...
c) la prise d'effet de la mesure de renvoi;
...
49. (1) A removal order comes into force on the latest of the following dates:
(a) the day the removal order is made, if there is no right to appeal;
...
49. (1) La mesure de renvoi non susceptible d'appel prend effet immédiatement; celle susceptible d'appel prend effet à l'expiration du délai d'appel, s'il n'est pas formé, ou quand est rendue la décision qui a pour résultat le maintien définitif de la mesure.
64. (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.
(2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least two years.
...
64. (1) L'appel ne peut être interjeté par le résident permanent ou l'étranger qui est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux, grande criminalité ou criminalité organisée, ni par dans le cas de l'étranger, son répondant.
(2) L'interdiction de territoire pour grande criminalité vise l'infraction punie au Canada par un emprisonnement d'au moins deux ans.
...
SCHEDULE
PART II
The Charter
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
...
1. La Charte canadienne des droits et libertés garantit les droits et libertés qui y sont énoncés. Ils ne peuvent être restreints que par une règle de droit, dans des limites qui soient raisonnables et dont la justification puisse se démontrer dans le cadre d'une société libre et démocratique.
...
6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.
(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right
a) to move to and take up residence in any province; and
b) to pursue the gaining of a livelihood in any province.
(3) The rights specified in subsection (2) are subject to
a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and
b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.
...
6. (1) Tout citoyen canadien a le droit de demeurer au Canada, d'y entrer ou d'en sortir.
(2) Tout citoyen canadien et toute personne ayant le statut de résident permanent au Canada ont le droit :
a) de se déplacer dans tout le pays et d'établir leur résidence dans toute province;
b) de gagner leur vie dans toute province.
(3) Les droits mentionnés au paragraphe (2) sont subordonnés :
a) aux lois et usages d'application générale en vigueur dans une province donnée, s'ils n'établissent entre les personnes aucune distinction fondée principalement sur la province de résidence antérieure ou actuelle;
b) aux lois prévoyant de justes conditions de résidence en vue de l'obtention des services sociaux publics.
...
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 the principles of fundamental justice.
7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les principes de justice fondamentale.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4964-03
STYLE OF CAUSE: HILROY CHARLES POWELL v. MCI
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: July 17, 2004
REASONS FOR ORDER: Gibson J.
DATED: August 13, 2003
APPEARANCES:
Mr. Donald Poulton FOR APPLICANT
Ms. Marianne Zoric FOR RESPONDENT
SOLICITORS OF RECORD:
Mamann & Associates
Barristers & Solicitors
74 Victoria St. Suite 303
Toronto, Ontario FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Department of Justice
130 King Street West
Suite 3400, Box 36
Toronto, Ontario M5X 1K6 FOR RESPONDENT
[1] S.C. 2001, c. 27.
[2] Part I of the Constitutional Act, 1982 (R.S.C. 1985, Appendix II, No. 44), being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
[3] [1992] 1 S.C.R. 711.
[4] Chiarelli, supra, note 3, at page 733.
[5] Chiarelli, supra, note 3, pages 733-4. To this extract, the Member added the following footnote:
The provision discussed by the Court contemplated an offence punishable by five or more years of imprisonment; serious criminality under the IRPA means a crime that was punished by at least two years. In my respectful view, the cogency of the Court's analysis remains unassailable notwithstanding the passage of time and the enactment of a new statute, especially in the circumstances of an individual such as [the Applicant] who was sentenced to more than ten years' imprisonment. [emphasis in the original]
[6] Chiarelli, supra, note 3, page 734.
[7] Chiarelli, supra, note 3, page 739.
[8] Chiarelli, supra, note 3, pages 741-2.
[9] Footnote 23, Applicant's Application Record, page 18.
[10] [1997] 2 F.C. 646 (C.A.).
[11] (2004), 238 D.L.R. (4th) 328.
[12] [1990] 2 F.C. 299.
[13] Pages 318-19.
[14] [2000] 3 F.C. 433.
[15] Applicant's Application Record, page 20.
[16] [2000] 2 S.C.R. 307.