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REMOVAL AND DEPORTATION - Criminal inadmissibility - Removal order - Stay of

Wednesday, December 04, 2019 @ 7:58 AM  


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Appeal by 50-year-old Moretto from a decision of the Federal Court that dismissed his application for judicial review of a decision of the Immigration Appeal Division (“IAD”). The appellant immigrated to Canada from Italy as an infant and became a permanent resident. The appellant had mental health and addiction issues and a lengthy criminal record. In 2009, a deportation order was issued after the appellant was convicted of several thefts and breaking and entering offences. In 2011, the removal order was conditionally stayed. In 2014, the appellant was charged with four additional criminal offences. In 2016, the appellant was convicted of robbery. The IAD determined the appellant’s stay of removal from Canada was cancelled by operation of s. 68(4) of the Immigration and Refugee Protection Act (Act) because of his conviction for serious criminality during the period when he was subject to the stay of removal.

HELD: Appeal dismissed. The application of s. 68(4) of the Act did not, in and of itself, engage ss. 7 or 12 of the Canadian Charter of Rights and Freedoms (Charter) and did not violate s. 2(d) of the Charter. An inadmissibility finding was distinct from effecting removal and did not engage s. 7 of the Charter. Lifting the conditional stay in circumstances where the appellant, a non-citizen, had been convicted of a further serious crime, was neither overbroad nor grossly disproportionate. The appellant was given access to the full spectrum of individualized processes within the Act’s broader inadmissibility scheme before the automatic operation of s. 68(4). The operation of s. 68(4) was one process in a complex, multi-tiered inadmissibility determination and removal regime. The appellant could still avail himself of further processes to avoid being removed. There was nothing draconian about giving effect to the appellant’s obligation to behave lawfully while in Canada by lifting the stay of removal and rendering him inadmissible to Canada. The right to freedom of association under s. 2(b) of the Charter did not extend to association with family members.

Moretto v. Canada (Minister of Citizenship and Immigration), [2019] F.C.J. No. 1194, Federal Court of Appeal, D.W. Stratas, D.G. Near and Y. de Montigny JJ.A., October 18, 2019. Digest No. TLD-December22019008