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EXCLUSION (INADMISSIBLE PERSONS) - Inadmissibility findings

Friday, December 06, 2019 @ 6:25 AM  

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Appeal by Revell from a decision dismissing his application for judicial review of a decision of the Immigration Division determining the appellant, a permanent resident of Canada since 1974, was inadmissible to Canada on the grounds of serious criminality and organized criminality and issuing a deportation order. The Federal Court found that s. 7 of the Canadian Charter of Rights and Freedoms (Charter) was not engaged at the stage of determining whether a permanent resident was inadmissible to Canada and that the criteria to depart from binding jurisprudence was not met in the present case.

HELD: Appeal dismissed. The Federal Court Judge did not err in dismissing the appellant’s s. 7 arguments as being premature and in finding that an inadmissibility determination did not engage s 7. Section 7 was not engaged at the stage of determining inadmissibility. There must be a sufficient link between the impugned legislation or state action and the infringement of an individual’s right for s. 7 to be engaged. The Supreme Court and this Court held in a long line of cases that the nexus between the ineligibility determination and deportation was not close enough to trigger the right to life, liberty, and security. An inadmissibility hearing was only one step in a complex, multi-tiered inadmissibility determination and removal regime under the Immigration and Refugee Protection Act. There were several safety valves in the Act ensuring that the deportation process as a whole was in accordance with the principles of fundamental justice. Even if the appellant succeeded in showing an infringement of his s. 7 rights, he would still bear the burden of showing that the legislative provisions under which he was found inadmissible were not consistent with the principles of fundamental justice. He did not raise a new legal issue, the parameters of the debate had not shifted, and the reasoning in the Supreme Court of Canada case was for all intents and purposes equivalent to the gross disproportionality analysis later developed in the Bedford case. Considering the high threshold that was set to reconsider settled rulings of the Supreme Court, these cases should not be reconsidered by this Court, especially where the Supreme Court’s recent jurisprudence did not demonstrate a willingness to depart from them. The criteria to depart from binding jurisprudence was not met in the present case, and, therefore, this Court was bound to conclude that ss. 36(1)(a) and 37(1)(a) of the Immigration and Refugee Protection Act were consistent with s. 7 of the Charter.

Revell v. Canada (Minister of Citizenship and Immigration), [2019] F.C.J. No. 1195, Federal Court of Appeal, D.W. Stratas, D.G. Near and Y. de Montigny JJ.A., October 18, 2019. Digest No. TLD-December22019014