CITIZENSHIP AND IMMIGRATION
Exclusion and Removal
Removal of Permanent Residents
Appeal on questions certified by Gibson J. (2004 FC 1120) dismissing judicial review application of deportation order—Appellant had been found inadmissible for serious criminality—Question 1: whether issuance of deportation order under Immigration and Refugee Protection Act (IRPA), s. 45(d) against permanent resident convicted of criminal offences punished by two years or more, IRPA removal scheme engaging Charter, s. 7; question 2: if so, whether statutory scheme, on facts of this case, complying with s. 7—Appellant arriving in Canada from Jamaica in 1987, become permanent resident in 1993—In 1997, convicted of entering Canada by false means—In 1998, given two years less day for possession of narcotics for purpose of trafficking, possession of proceeds of crime—In 2001, given ten years and six months on seven counts of cocaine trafficking—Arguing that, under s. 7, as permanent resident has right to have interest in remaining weighed against society’s interest in removal—Submitting failure of s. 45(d) to provide for balancing constitutes violation of s. 7 fundamental justice requirements—Assuming appellant’s liberty interests engaged by removal, Court turning to fundamental justice question— Appellant conceding test whether remedy of removal grossly disproportional to harm to individual—Whether fundamental justice requires mandatory free‑standing balancing or whether balancing considered only when construing content, scope of fundamental justice principles under s. 7 themselves— Assuming, without deciding, balancing test required to satisfy fundamental justice, process under IRPA not violating those principles—Under IRPA, s. 25(1), appellant can request removal exemption on humanitarian and compassionate (H&C) grounds and that involves balancing said to be required—If H&C decision not issued in time, removals officer can be asked to have regard to personal circumstances—If deportee of view removals officer failed to exercise discretion in accordance with law, judicial review, stay of removal may be sought—If Federal Court satisfied as to serious issue, irreparable harm, balance of convenience, stay may be granted pending judicial review—Thus, no denial of individual interests against those of government—Certified questions answered as follows: (1) for purposes of this appeal, unnecessary to decide whether removal engages appellant’s Charter, s. 7 liberty interest; (2) for purposes of this appeal, IRPA scheme not violating fundamental justice principles— Appeal dismissed—Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 25(1), 45(d)—Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 7.
Powell v. Canada (Minister of Citizenship and Immigration) (A‑549‑04, 2006 FCA 202, Rothstein J.A., judgment dated 27/5/05, 5 pp.)