Date: 20000328
Docket: A-360-98
| CORAM: DÉCARY J.A. |
| ROTHSTEIN J.A. |
| MALONE J.A. |
BETWEEN:
EMMANUEL SOLIS
Appellant,
(Applicant)
-and-
THE MINISTER CITIZENSHIP AND IMMIGRATION
Respondent
(Respondent)
REASONS FOR JUDGMENT
(Delivered from the Bench at Winnipeg on Tuesday, March 28, 2000)
ROTHSTEIN, J.A.
[1] This is an appeal from a May 19, 1998 decision1 of Campbell J. on certified questions under subsection 83(1) of the Immigration Act, R.S.C. 1985, c. I-2. The appellant was found by the Minister of Citizenship and Immigration to be a danger to the public pursuant to subparagraph 46.01(1)(e)(iv), paragraph 53(1)(d) and subsection 70(5) of the Immigration Act. Between 1992 and 1995 he had been convicted of ten criminal offences and served time in jail. He has now been deported.
| [2] The first certified question is: |
| Does the word "citizen" in s.6 of the Charter of Rights and Freedoms have a meaning independent from statute? If the answer to this question is yes, does an opinion under s.70(5) of the Immigration Act violate a s.6 right? |
[3] The appellant was a permanent resident under the Immigration Act but not a citizen under the Citizenship Act, R.S.C. 1985, c. C-29. Relying on subsection 6(1) of the Charter, which entitles a citizen to remain in Canada, the appellant argues that for Charter purposes he was a citizen. In other words, notwithstanding the fact that he was not a citizen under the Citizenship Act, he had an independent Charter-based right to be considered a citizen largely because of his family ties and roots in Canada. This alleged common law right to be treated as a citizen is, according to the appellant, in addition to, but not in substitution of, the statutory provisions for citizenship in the Citizenship Act.
[4] We agree with Professor Hogg that the concept of citizenship has no meaning apart from statute.2 Citizenship is a creature of federal statute law. The Citizenship Act is subject to the overriding provisions of the Charter such that if some provision of the Citizenship Act is found by a court to violate the Charter, a Charter remedy is available. However, the appellant here does
not challenge the Citizenship Act as such. He only says there is an additional Charter-based notion of citizenship. For the reasons we have given we cannot agree with this submission.
[5] The answer to question 1 is that the word "citizen" in section 6 of the Charter has no meaning independent from statute.
[6] The second part of question 1 need not be answered as the answer to the first part is in the negative.
[7] Question 2 reads:
| Can s.12 of the Charter of Rights and Freedoms be violated where s.7 of the Charter is not violated? If the answer to this question is yes, does an opinion under s.70(5) of the Immigration Act violate the s.12 right. |
[8] It is not necessary to answer the first part of question 2, as we are of the view that an opinion under subsection 70(5) of the Immigration Act does not violate section 12 of the Charter. The appellant"s argument seems to be based on the procedure under subsection 70(5). The appellant says that before something as serious as deportation may occur, he should have been accorded a balanced examination of the circumstances on an equitable rather than a legal basis. He says subsection 70(5) denied him that right and that he was therefore subjected to cruel and unusual treatment.
[9] Instead of an appeal to the Appeal Division of the Immigration and Refugee Board from a deportation order, subsection 70(5) provides that there shall be no such appeal where the Minister is of the opinion that the person constitutes a danger to the public and has been
determined by an adjudicator to fall within certain inadmissibility sections of the Immigration Act.
[10] Before arriving at a danger opinion, the Minister invites the affected individual, and did invite the appellant in this case, to make submissions to the Minister, including submissions based on humanitarian and compassionate circumstances. The danger opinion is only issued after the individual makes such submissions or fails to do so within the time provided. If the individual is dissatisfied with the danger opinion, he or she may seek judicial review in the Federal Court Trial Division. In view of the opportunity to make submissions, including submissions based on equitable grounds, and the availability of procedural safeguards including judicial review, we cannot agree with the appellant that the procedure under subsection 70(5) is such that it could be considered to be cruel or unusual treatment or punishment.
[11] The appellant also seems to argue that the subsection 70(5) procedure should not be considered in isolation because it leads to a deportation of an individual. Even if that argument were accepted, we are of the view that deportation, as such, does not constitute cruel and unusual treatment or punishment. In Minister of Employment and Immigration v. Chiarelli,3 Sopinka J. stated at page 735:
| I agree with Pratte J.A. that deportation is not imposed as a punishment. . . . Deportation may, however, come within the scope of a "treatment" in s.12... It is unnecessary, for the purposes of this appeal, to decide this point since I am of the view that the deportation authorized by ss.27(1)(d)(ii) and 32(2) is not cruel and unusual. |
And at page 736:
| The deportation of a permanent resident who has deliberately violated an essential condition of his or her being permitted to remain in Canada by committing a criminal offence punishable by imprisonment of five years or more, cannot be said to outrage such standards if individuals granted conditional entry into Canada were permitted, without consequence, to violate those conditions deliberately. |
We are of the opinion that the reasons of Sopinka J. in Chiarelli are dispositive of the issue.
[12] The answer to the second question is that an opinion under subsection 70(5) of the Immigration Act does not violate section 12 of the Charter.
| [13] The appeal will be dismissed. |
"Marshall Rothstein"
J.A.
Winnipeg, Manitoba
March 28, 2000
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
THIS IS AN APPEAL OF A TRIAL DIVISION DECISION DATED MAY 19, 1998
(IMM-4898-96)
COURT FILE NO.: A-360-98
| STYLE OF CAUSE: EMMANUEL SOLIS v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
PLACE OF HEARING: Winnipeg, Manitoba
| DATE OF HEARING: March 28, 2000 |
REASONS FOR JUDGMENT OF
THE HONOURABLE MR. JUSTICE ROTHSTEIN
DATED MARCH 28, 2000
APPEARANCES:
David Matas for the Appellant (Applicant)
Sharlene Telles-Langdon
Department of Justice for the Respondent (Respondent)
301 - 310 Broadway
Winnipeg, Manitoba
R3C 0S6
SOLICITORS OF RECORD:
David Matas for the Appellant (Applicant)
602 - 225 Vaughan Street
Winnipeg, MB R3C 1T7
Morris Rosenberg
Deputy Attorney General of Canada for the Respondent (Respondent)
Date: 20000328
Docket: A-360-98
CORAM: DÉCARY, J.A.
ROTHSTEIN, J.A.
MALONE, J.A.
BETWEEN:
EMMANUEL SOLIS
Appellant,
(Applicant)
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
(Respondent)
Heard at Winnipeg, Manitoba on March 28, 2000
JUDGMENT delivered from the Bench at Winnipeg, Manitoba on March 28, 2000
REASONS FOR JUDGMENT BY: ROTHSTEIN, J.A.
__________________2Peter W. Hogg, Constitutional Law of Canada, 3rd ed. Toronto: Carswell,1992) at page 833.