Digests

Powell v. Canada (Minister of Citizenship and Immigration)

IMM-4964-03

2004 FC 1120, Gibson J.

13/8/04

18 pp.

Judicial review of Immigration and Refugee Board's (Board) decision applicant inadmissible to Canada on grounds of serious criminality pursuant to Immigration and Refugee Protection Act, s. 36(1)(a)--Board then issued deportation order against him--Applicant born in Jamaica--Arrived in Canada in 1987 on temporary visa--Granted permanent resident status in 1993, but never became a citizen--In 2001 convicted of conspiracy to traffic in narcotic, trafficking in narcotic--Sentenced to 10[frac12] years' imprisonment in addition to time served--Essentially on authority of Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711 (Chiarelli), Board determined applicant's Charter, s. 7 rights not engaged--Whether issuance of deportation order breaches applicant's right to liberty in Charter, s. 7, in manner not complying with requirements of natural justice--Board correctly relying on Chiarelli as starting point for analysis, although decided under different legislative scheme that included broad-based appeal for persons in applicant's situation--Under current legislative scheme, right of appeal in "all the circumstances of the case" for persons such as applicant eliminated in absolute terms--Right of appeal on factual and legal grounds that remains is only through avenue of judicial review--Removal from Canada impacts range of interests of person affected and conceivably of other persons dependent on applicant--Range of interests extends to liberty interest of person affected-- Charter, s. 7 engaged--Issue then becoming whether impending deprivation of that interest would be accomplished in accordance with principles of natural justice--Necessary to weigh applicant's personal interests affected by deprivation of liberty against state's interests inherent in legislative scheme --Permanent residents not having unqualified right to enter, remain in Canada--Applicant deliberately violated essential condition under which permitted to remain in Canada-- Protection against arbitrary deprivation of right to remain in Canada continuing despite elimination of right to appeal to Immigration Appeal Division--Applicant having right to judicial review, right under IRPA to assessment of risk if removed to Jamaica--Also can seek humanitarian and compassionate relief--Deprivation occurred through action of Parliament in total context that has preserved consistency with principles of fundamental justice--Application dismissed-- Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 36(1)(a)--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.