Judgments

[1993] 2 F.C. 3

A-449-90

Restaurado Barrera (Applicant)

v.

Minister of Employment and Immigration (Respondent)

Indexed as: Barrera v. Canada (Minister of Employment and Immigration) (C.A.)

Court of Appeal, MacGuigan, Linden and Robertson JJ.A.—Toronto, November 26; Ottawa, December 14, 1992.

Citizenship and Immigration — Exclusion and removal — Deportation order against Convention refugee convicted and sentenced to seven years' imprisonment for rape, gross indecency, assault causing bodily harm — Appeal Division of Immigration and Refugee Board refusing to exercise humanitarian or compassionate discretion as circumstances of offence so contrary to norms of human decency — Considered work record, family, possibility of deportation to home country — Whether deportation of Convention refugee to homeland cruel and unusual treatment not determined as premature — Under Immigration Act, s. 53 only Minister can decide to return Convention refugee to homeland — Must consider person danger to Canadian public — No such ministerial decision yet made — Determining constitutionality of s. 53 also premature.

Constitutional law — Charter of Rights — Criminal process — Deportation order against Convention refugee convicted of rape, gross indecency, assault causing bodily harm — Deportation not punishment — Review of S.C.C. cases indicating issues of whether (1) “cruel and unusual” (2) “treatment” to deport Convention refugee to homeland still open — Premature to decide issue as no ministerial decision yet to deport to country where appellant's life or freedom threatened.

Constitutional law — Charter of Rights — Life, liberty and security — Deportation of Convention refugee convicted of serious offences not contrary to Charter, s. 7 — Deportation not deprivation of liberty.

This was an appeal from a deportation order. The appellant was recognized as a Convention refugee in 1985. He is married to a Canadian citizen and has three children. He was convicted and sentenced to seven years' imprisonment for having beaten a sixteen-year-old boy unconscious, sodomized him and raped his thirteen-year-old girlfriend. He was ordered deported, despite his Convention refugee status, because he fell within the exception in the former Immigration Act, 1976, subparagraph 4(2)(b)(i) as a person convicted of an offence for which a term of imprisonment of more than six months had been imposed. The Immigration and Refugee Board refused to exercise its compassionate or humanitarian discretion, because the circumstances of the offence were so contrary to the norms of human decency. It considered the appellant's work record and his family. The Board did not consider the constitutionality of paragraph 53(1)(b) (permitting the deportation of Convention refugees to a country where his life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion where he is a member of an inadmissible class or has been convicted of an offence for which a term of imprisonment of ten years or more may be imposed, and the Minister is of the opinion that he constitutes a danger to the Canadian public) because there was no certainty that the appellant would be deported to Chile as the Minister had not yet decided whether he posed a danger to the Canadian public.

The issues were whether Charter, sections 7 (right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice) and 12 (right not to be subjected to cruel and unusual treatment or punishment) had been violated, and if so whether the effect of section 12 on the repatriation of the appellant should be dealt with at this time.

Held, the appeal should be dismissed.

Deportation is not a deprivation of liberty. Therefore, Charter, section 7 was not violated. Neither is it a punishment.

A Convention refugee has already established a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion. Therefore there is a serious possibility that such a person, if returned, will be subject to unjust imprisonment, and possibly even to torture and death. Since corporal punishment has been held to violate our standards of decency even when imposed in the course of lawful imprisonment, potential torture or death inflicted during imprisonment contrary to the rule of law and even the risk of imprisonment unlawful according to our standards of decency, must also raise questions relating to section 12. It has been held that the test for review under section 12 is one of gross disproportionality. None of the Supreme Court of Canada cases dealing with whether deportation contravened section 12 has concerned a Convention refugee. The issue as to both “treatment” and “cruel and unusual” is still open.

The effect of section 12 on the deportation of Convention refugees to their homeland should not be dealt with on this appeal as premature. The appellant's argument had been brought against the wrong decision maker at the wrong stage. Only a return to Chile could put the appellant in any section 12 danger, and only the Minister has the statutory power under section 53 to subject him to that danger. The Minister could not make a decision as to the country of removal until the issue of deportation is settled by the Board. In order to conclude that a person poses a danger to the Canadian public, the Minister must be satisfied that the crime committed was “particularly serious”. This involves a consideration of proportionality of the offence vis-à-vis the nature of the consequences likely to befall the returned refugee. Section 12 requires a concrete consideration of the treatment the appellant claims awaits him in Chile, of what the conditions in the country are at this time, and of whether the change of regime in that country might affect his reasonable fear of persecution, all measured against the callous crimes he committed in this country.

Appellant's case could only rest on a challenge to section 53—the only provision whereunder he could be returned to Chile. But that Charter issue was not ripe for adjudication as there had been no ministerial decision to deport and in the absence of full oral argument on the subject.

The appellant argued that the Board placed too great an emphasis on the nature of the offence when exercising its discretion. While the Board could have been more specific about the factors it considered, it did refer to the appellant's family, work history, and that it had considered anything favourable shown on the appellant's behalf. There could be no quarrel with the Board's refusal to exercise its discretion given the circumstances of the offence.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

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], ss. 7, 11(h), 12, 24.

Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52.

Criminal Code, R.S.C. 1970, c. C-34.

Immigration Act, R.S.C., 1985, c. I-2, ss. 2(1) (as am. by R.S.C., 1985 (4th) Supp.), c. 28, s. 1), 4(2.1)(a) (as am. idem, s. 3), 19(1)(c), 27(2)(d), (3),(4), 32(6) (as am. idem, s. 11), (7) (as am. idem), 46.06(1) (as am. idem, s. 14), 53(1)(b) (as am. idem, s. 17), 70 (as am. idem, s. 18).

Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 4(2)(b)(i), (ii), 19(1)(c),(2)(d),(3),(4), 27(2)(d), 32(6)(a),(b), 47(3), 55(a),(c), 72(1) (as am. by S.C. 1984, c. 21, s. 81), (b), (2)(a),(b),(d).

United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 33.

CASES JUDICIALLY CONSIDERED

APPLIED:

Hoang v. Canada (Minister of Employment & Immigration) (1990), 13 Imm. L.R. (2d) 35; 120 N.R. 193 (F.C.A.) (as to deportation for serious offences not affecting ss. 7, 12 rights).

NOT FOLLOWED:

Hoang v. Canada (Minister of Employment & Immigration) (1990), 13 Imm. L.R. (2d) 35; 120 N.R. 193 (F.C.A.) (as to adjudicating Charter issues absent ministerial decision to deport refugee to home country).

DISTINGUISHED:

Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; (1992), 90 D.L.R. (4th) 289; 2 Admin. L.R. (2d) 125; 8 C.R.R. (2d) 234; 16 Imm. L.R. (2d) 1; 135 N.R. 161.

CONSIDERED:

Hurd v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 594; (1988), 90 N.R. 31 (C.A.); Canepa v. Canada (Minister of Employment and Immigration), [1992] 3 F.C. 270; (1992), 10 C.R.R. (2d) 248 (C.A.); R. v. Smith (Edward Dewey), [1987] 1 S.C.R. 1045; (1987), 40 D.L.R. (4th) 435; [1987] 5 W.W.R. 1; 15 B.C.L.R. (2d) 273; 34 C.C.C. (3d) 97; 58 C.R. (3d) 193; 31 C.R.R. 193; 75 N.R. 321; R. v. Goltz, [1991] 3 S.C.R. 485; (1991), 11 W.A.C. 161; 61 B.C.L.R. (2d) 145; 5 B.C.A.C. 161; 67 C.C.C. (3d) 481; 8 C.R. (4th) 82; 7 C.R.R. (2d) 1; 31 M.V.R. (2d) 137; 131 N.R. 1; Gagliardi v. Canada (Minister of Employment and Immigration), A-1142-87, Heald J.A., judgment dated 9/1/90, F.C.A., not reported; Argentina v. Mellino, [1987] 1 S.C.R. 536; (1987), 80 A.R. 1; 40 D.L.R. (4th) 74; [1987] 4 W.W.R. 289; 52 Alta. L.R. (2d) 1; 33 C.C.C. (3d) 334; 28 C.R.R. 262; 76 N.R. 51.

REFFERED TO:

Schachter v. Canada, [1992] 2 S.C.R. 679; (1992), 93 D.L.R. (4th) 1; 10 C.R.R. (2d) 1; 139 N.R. 1.

AUTHORS CITED

Goodwin-Gill, Guy S. The Refugee in International Law, Oxford: Clarendon Press, 1983.

Hathaway, James C. The Law of Refugee Status, Toronto: Butterworths Co., 1991.

APPEAL by Convention refugee against decision of Appeal Division of Immigration and Refugee Board denying appeal of a deportation order. Appeal dismissed.

COUNSEL:

Lorne Waldman and Marissa Bielski for applicant.

Robert F. Goldstein for respondent.

SOLICITORS:

Lorne Waldman, Toronto, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for judgment rendered in English by

MacGuigan J.A.: This appeal raises a question as to the Charter [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]] rights of already-determined refugees not to be deported to the country from which they fled.

In the case at bar the order of deportation was made by an immigration adjudicator on October 8, 1985, under subsection 32(6) of the then-in-force Immigration Act, 1976 [S.C. 1976-77, c. 52] (“the former Act”) as a person described in paragraph 27(2)(d), other than a Canadian citizen or permanent resident, who has been convicted of an offence under the Criminal Code [R.S.C. 1970, c. C-34]. Subsection 32(6) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 11] and paragraph 27(2)(d) of the present Immigration Act, R.S.C., 1985, c. I-2, (“the present Act”) are for all practical purposes identical. The present Act was in force at the time of the Board's decision, the former Act when the adjudicator made the order of deportation.

The appellant is married to a Canadian citizen, has three children, and was recognized as a Convention refugee from Chile on May 15, 1985. He was ordered deported despite his Convention refugee status because he was held to fall within the exception in subparagraph 4(2)(b)(i) of the former Act (for all practical purposes identical with paragraph 4(2.1)(a) [as am. idem, s. 3] of the present Act) as a person convicted of an offence for which a term of imprisonment of more than six months has been imposed.

His conviction in Canada in 1983 was for having beaten a sixteen-year-old boy unconscious, sodomizing him, and raping his thirteen-year-old girlfriend. His sentence was increased by the Ontario Court of Appeal to five years for rape, with consecutive penalties of one year for gross indecency and assault causing bodily harm, for a total term of seven years.

The appellant's appeal to the Appeal Division of the Immigration and Refugee Board (“the Board”) was heard after his release from imprisonment. The Board found the deportation order valid and dismissed the appeal on April 4, 1990.

The relevant part of the Board's reasons for decision is as follows (Appeal Book, Vol. III, at pages 333-335):

The appellant appeals from the deportation order both in law and in equity.

While the appellant has clearly established family roots in Canada, the circumstances of this offence are so contrary to the norms of human decency as to render it extremely difficult to see what compassionate or humanitarian factors can possibly be brought to bear in this matter. Despite this, it is the Appeal Division's duty to consider anything favourable that might be shown on the appellant's behalf and it has done so: we have considered the appellant's work record, his family, and the possibility that the appellant might be deported to Chile where his fear of persecution has been accepted as well-founded. The Appeal Division has not been persuaded to allow this appeal under its special powers.

Counsel for the appellant has argued that, by reason of section 15 of the Charter, the Appeal Division should use the test set out in paragraph 70(1)(b) of the Immigration Act, [as enacted by R.S.C. 1985 (4th Supp.), c. 28, s. 18] that is: “having regard to all the circumstances of the case, the person should not be removed from Canada.”, rather than the test set out in paragraph 70(3)(b) of the Immigration Act limited to “the existence of compassionate or humanitarian considerations.” While the Board disagrees with counsel in this respect, the faint possibility that the appellant may be correct exists, and, using the test requested by counsel, we do not believe that the circumstances of this case warrant any kind of stay of the appellant's removal from Canada.

The appellant advanced several arguments attacking the constitutional validity of subparagraph 53(1)(b) of the Act. It is not my intention to submit these arguments to detailed examination since, in my view, they are premature. There is no certainty that the appellant will be removed to Chile, since before such an order can be made, the Minister must find that the appellant “constitutes a danger to the public in Canada”.

This is what the Associate Chief Justice of the Federal Court of Canada had to say in the case of Donosco and Panz [T-2301-88, July 13, 1989]:

In my opinion, when Mr. Donosco would in fact be facing the possibility of a return to Chile he would be entitled to rely on s. 7 of the Charter.... Here there is no such certainty that Mr. Donosco will be returned to Chile.

Secondly, the Appeal Division's powers in law under section 70 of the Immigration Act are limited to consideration of an appeal from a removal order. There is no express or implied power either in this section or anywhere else in the Immigration Act which permits the Appeal Division to sit in judicial review of a provision outlining a duty imposed by Parliament upon the Minister to form an opinion as to whether an appellant “constitutes a danger to the public in Canada”. Even if the Appeal Division had such a power, the Minister's power has not yet been invoked nor exercised. As was stated by La Forest, J. [Republic of Argentina v. Mellino (1987), 40 D.L.R. (4th) 74 at p. 93] in an extradition case, but equally applicable in this matter:

Finally, in exercising jurisdiction over executive action, a Court must firmly keep in mind that it is in the Executive that the discretion to surrender a fugitive is vested. Consequently, barring obvious or urgent circumstances, the Executive should not be preempted.

Thirdly, the Board is unable to comprehend the appellant's fear of the Minister's discretion in respect to section 53 of the Act. After all, the Minister was required to make an earlier determination as to whether the appellant was a Convention refugee and it can hardly be said that this decision was made unfairly against him. What reason has been given to assume that the duty thrust upon the Minister by law will, in respect to the selection of the country to which the appellant is to be deported, be exercised unfairly or capriciously? Neither the Minister nor the appellant need be reminded that the duty set out in section 53 of the Act must be exercised in accordance with these words of Rouleau, J. [Kindler v. Canada (1987) 2 F.C. 145 at p. 152]:

The basic objective of the duty to act fairly is to ensure that an individual is provided with a sufficient degree of participation necessary to bring to the attention of the decision-maker any fact or argument of which a fair minded decision-maker would need to be informed in order to reach a rational conclusion.

The relevant provisions of the two Immigration Acts are as follows:

1976 Act

[Ss. 4(2)(b)(i),(ii), 19(1)(c), 27(2)(d),(3),(4), 32(6)(a),(b), 47(3), 55(a),(c), 72(1) (as am. by S.C. 1984, c. 21, s. 81), (b), (2)(a),(b),(d)]

4. ...

(2) Subject to any other Act of Parliament, a Canadian citizen, a permanent resident and a Convention refugee while lawfully in Canada have a right to remain in Canada except where

...

(b) in the case of a Convention refugee, it is established that that person is a person described in paragraph 19(1)(c) ... or a person who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of

(i) more than six months has been imposed, or

(ii) five years or more may be imposed.

...

19. (1) No person shall be granted admission if he is a member of any of the following classes:

...

(c) persons who have been convicted of an offence that, if committed in Canada, constitutes or, if committed outside Canada, would constitute an offence that may be punishable under any Act of Parliament and for which a maximum term of imprisonment of ten years or more may be imposed, except persons who have satisfied the Governor in Council that they have rehabilitated themselves and that at least five years have elapsed since the termination of the sentence imposed for the offence;

...

27. ...

(2) Where an immigration officer or peace officer has in his possession information indicating that a person in Canada, other than a Canadian citizen or a permanent resident, is a person who

...

(d) has been convicted of an offence under the Criminal Code or of an offence that may be punishable by way of indictment under any Act of Parliament other than the Criminal Code or this Act,

...

he shall forward a written report to the Deputy Minister setting out the details of such information unless that person has been arrested without warrant and held in detention pursuant to section 104.

(3) Subject to any order or direction of the Minister, the Deputy Minister shall, on receiving a report pursuant to subsection ... (2), and where he considers that an inquiry is warranted, forward a copy of that report and a direction that an inquiry be held to a senior immigration officer.

(4) Where a senior immigration officer receives a copy of a report and a direction pursuant to subsection (3), he shall, as soon as reasonably practicable, cause an inquiry to be held concerning the person with respect to whom the report was made.

...

32. ...

(6) Where an adjudicator decides that a person who is the subject of an inquiry is a person described in subsection 27(2), he shall, subject to subsections 45(1) [adjournment of inquiry if subject makes a refugee claim] and 47(3), make a deportation order against the person unless, in the case of a person other than a person described in paragraph 19(1)(c) ... he is satisfied that

(a) having regard to all the circumstances of the case, a deportation order ought not to be made against the person, and

(b) the person will leave Canada on or before a date specified by the adjudicator,

in which case he shall issue a departure notice to the person specifying therein the date on or before which the person is required to leave Canada.

...

47. ...

(3) Where an adjudicator determines that a Convention refugee is a Convention refugee described in subsection 4(2), he shall, notwithstanding any other provision of this Act or the regulations, allow that person to remain in Canada.

...

55. Notwithstanding subsections 54(2) and (3), a Convention refugee shall not be removed from Canada to a country where his life or freedom would be threatened on account of his race, religion, nationality, membership in a particular social group or political opinion unless he is

(a) a member of an inadmissible class described in paragraph 19(1)(c) ...

...

(c) a person who has been convicted in Canada of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed,

and the Minister is of the opinion that the person should not be allowed to remain in Canada.

...

72. (1) Subject to subsection (3), where a removal order is made against a permanent resident or against a person lawfully in possession of a valid returning resident permit issued to him pursuant to the regulations, that person may appeal to the Board on either or both of the following grounds, namely,

...

(b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada.

(2) Where a removal order is made against a person who

(a) has been determined by the Minister or the Board to be a Convention refugee but is not a permanent resident, or

(b) seeks admission and at the time that a report with respect to him was made by an immigration officer pursuant to subsection 20(1) was in possession of a valid visa,

that person may, subject to subsection (3), appeal to the Board on either or both of the following grounds, namely,

...

(d) on the ground that, having regard to the existence of compassionate or humanitarian considerations, the person should not be removed from Canada.

1985 Act

[Ss. 4(2.1) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 3), 19(1)(c), 27(2)(d),(3),(4), 32(6) (as am. idem, s. 11), (7) 46.06(1) (as am. idem, s. 14), 53(1)(b) (as am. idem, s. 17), (as am. idem), 70 (as am. idem, s. 18)]

4. ...

(2.1) Subject to any other Act of Parliament, a person who is finally determined under this Act, or determined under the regulations, to be a Convention refugee has, while lawfully in Canada, a right to remain in Canada except where it is established that that person is a person described in paragraph 19(1)(c) ... or a person who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of

(a) more than six months has been imposed; or

(b) five years or more may be imposed.

...

19. (1) No person shall be granted admission who is a member of any of the following classes:

...

(c) persons who have been convicted of an offence that, if committed in Canada, constitutes or, if committed outside Canada, would constitute an offence that may be punishable under any Act of Parliament and for which a maximum term of imprisonment of ten years or more may be imposed, except persons who have satisfied the Governor in Council that they have rehabilitated themselves and that at least five years have elapsed since the termination of the sentence imposed for the offence;

...

27. ...

(2) Where an immigration officer or peace officer is in possession of information indicating that a person in Canada, other than a Canadian citizen or permanent resident, is a person who

...

(d) has been convicted of an offence under the Criminal Code or of an offence that may be punishable by way of indictment under any Act of Parliament other than the Criminal Code or this Act,

...

the immigration officer or the peace officer shall forward a written report to the Deputy Minister setting out the details of such information unless that person has been arrested without warrant and held in detention pursuant to section 103.

(3) Subject to any order or direction of the Minister, the Deputy Minister shall, on receiving a report pursuant to subsection ... (2), and where the Deputy Minister considers that an inquiry is warranted, forward a copy of that report and a direction that an inquiry be held to a senior immigration officer.

(4) Where a senior immigration officer receives a copy of a report and a direction pursuant to subsection (3), the officer shall, as soon as reasonably practicable, cause an inquiry to be held concerning the person with respect to whom the report was made.

...

32. ...

(6) Where an adjudicator decides that a person who is the subject of an inquiry is a person described in subsection 27(2), the adjudicator shall, subject to subsections 7 and 32.1(5), make a deportation order against that person.

(7) Where the person referred to in subsection (6) is a person other than a person described in paragraph 19(1)(c) ... the adjudicator shall, subject to subsection 32.1(5), issue to that person a departure notice specifying the date on or before which that person is required to leave Canada, if the adjudicator is satisfied that

(a) having regard to all the circumstances of the case, a deportation order ought not to be made against the person; and

(b) that person will leave Canada on or before the date specified in the notice.

...

46.06 (1) Where, pursuant to subsection 46.05(6), an adjudicator determines that a person does not have a right under subsection 4(2.1) to remain in Canada, the adjudicator shall

(a) confirm the order made against that person; or

(b) quash the order made against that person and take the appropriate action under section 32 with respect to that person.

...

53. (1) Notwithstanding subsections 52(2) and (3), no person who is finally determined under this Act, or determined under the regulations, to be a Convention refugee nor any person who has been determined not to be eligible to have a claim to be a Convention refugee determined by the Refugee Division on the basis that the person is a person described in paragraph 46.01(1)(a) shall be removed from Canada to a country where the person's life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion unless

...

(b) the person is

(i) a member of an inadmissible class described in paragraph 19(1)(c), or

(ii) a person who has been convicted in Canada of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed,

and the Minister is of the opinion that the person constitutes a danger to the public in Canada.

...

70. (1) Subject to subsection (4), where a removal order or conditional removal order is made against a permanent resident or against a person lawfully in possession of a valid returning resident permit issued to that person pursuant to the regulations, that person may appeal to the Appeal Division on either or both of the following grounds, namely,

...

(b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada.

(2) Subject to subsections (3) and (4), an appeal lies to the Appeal Division from a removal order or conditional removal order made against a person who

(a) has been determined under this Act or the regulations to be a Convention refugee but is not a permanent resident;

...

(3) An appeal to the Appeal Division under subsection (2) may be based on either or both of the following grounds:

...

(b) on the ground that, having regard to the existence of compassionate or humanitarian considerations, the person should not be removed from Canada.

At the hearing before us, the parties were requested to submit further written arguments as to the exact disposition to be made in the event of a finding of unconstitutionality, under subsection 52 of the Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] or section 24 of the Canadian Charter of Rights and Freedoms.

I

The most strongly raised issues were whether the actions of the Board and the text of the Act violate the requirements of sections 7 and 12 of the Charter. These sections read as follows:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

...

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

The appellant's argument was particularly directed to section 12 and to the prohibition of cruel and unusual treatment, which may be broken down into separate questions concerning “cruel and unusual” and “treatment.” The appellant conceded in argument that it was no longer open to this Court to hold that deporting Convention refugees to their homelands constitutes cruel and unusual punishment.

The earliest of the relevant Court of Appeal decisions is Hurd v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 594, where it was held that the deportation of a permanent resident with a serious criminal record did not violate paragraph 11(h) of the Charter, which proscribes double punishment for the same offence, for the reason that deportation is not a punishment.

Hurd did not involve a Convention refugee, but Hoang v. Canada (Minister of Employment & Immigration) (1990), 13 Imm. L.R. (2d) 35 (F.C.A.), did. In that case I wrote for the Court (at page 41) that “deportation for serious offences affects neither s. 7 nor s. 12 rights, since it is not to be conceptualized as either a deprivation of liberty or a punishment.” In my view, this pronouncement that deportation is not a deprivation of liberty entirely disposes of the appellant's contention in the case at bar of a violation of section 7, and in fact the appellant did not press this contention in oral argument.

The respondent argued that Hoang should also be taken as precluding any section 12-based contention, but in my view the principal clause in the sentence from the decision quoted above is restricted by the subordinate one. It seems clear that no argument was made in Hoang on cruel and unusual treatment, and that the dictum above should not be interpreted as going beyond disposing of argument based on cruel and unusual punishment.

In fact, that was the purport of the following statement in my reasons for this Court in Canepa v. Canada (Minister of Employment and Immigration), [1992] 3 F.C. 270 when I wrote (at page 279), “As far as this Court is concerned, the issue appears to be still open as to cruel and unusual treatment” [Emphasis added.] I went on to assume for the sake of argument that the issue was also left open to us by higher authority (at pages 281-282). The time has now come to consider this latter question.

The principal Supreme Court decisions in this area are R. v. Smith (Edward Dewey), [1987] 1 S.C.R. 1045; R. v. Goltz, [1991] 3 S.C.R. 485 and Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711.

In Smith the Court struck down a seven-year minimum sentencing provision. Lamer J. (as he then was) speaking for two of the five judges in the majority held (at page 1072 that “test for review under s. 12 of the Charter is one of gross disproportionality, because it is aimed at punishments that are more than merely excessive.”

The approach of Lamer C.J.C. in Smith was expressly approved by Gonthier J., speaking for six of the nine judges, in Goltz, where the battle lines were drawn over a seven-day minimum term of imprisonment. Gonthier J. said (at pages 505-506):

There are two aspects to the analysis of invalidity under s. 12. One aspect involves the assessment of the challenged penalty or sanction from the perspective of the person actually subjected to it, balancing the gravity of the offence in itself with the particular circumstances of the offence and the personal characteristics of the offender. If it is concluded that the challenged provision provides for and would actually impose on the offender a sanction so excessive or grossly disproportionate as to outrage decency in those real and particular circumstances, then it will amount to a prima facie violation of s. 12 and will be examined for justifiability under s. 1 of the Charter. There may be no need to examine hypothetical situations or imaginary offenders. This was not the case in Smith, and for that reason the Court was obliged to examine other reasonably imaginable circumstances in which the challenged law might violate s. 12.

If the particular facts of the case do not warrant a finding of gross disproportionality, there may remain another aspect to be examined, namely, a Charter challenge or constitutional question as to the validity of a statutory provision on grounds of gross disproportionality as evidenced in reasonable hypothetical circumstances, as opposed to far-fetched or marginally imaginable cases.

The Court came to a different conclusion in Goltz from that in Smith, both because the seven-day minimum was lighter than it first appeared (it could be served on weekends as well as limited by earned remission) and because the hypothetical situations or imaginary offenders were not reasonably imaginable. The three judges in the minority disagreed with the majority, and would have followed even more closely the approach of Lamer C.J.C. in Smith. For them [at page 523] “Gonthier J. holds that one particular application ... does not violate the Charter, while admitting that other applications ... might infringe the Charter.”

In Chiarelli the permanent resident whose deportation was sought by the Government for the commission of serious offences was not a Convention refugee but was being returned to Italy. Sopinka J., speaking for a unanimous Court, deals with the section 12 argument, including the treatment aspect, in apparently unequivocal terms (at pages 735-736):

(b)  Section 12

The respondent alleges a violation of s. 12 for essentially the same reasons that he claims s. 7 is infringed. He submits that the combination of s. 27(1)(d)(ii) and 32(2) constitutes cruel and unusual punishment because they require that deportation be ordered without regard to the circumstances of the offence or the offender. He submits that in the case at bar, the deportation order is grossly disproportionate to all the circumstances and further, that the legislation in general is grossly disproportionate, having regard to the many “relatively less serious offences” which are covered by s. 27(1)(d)(ii).

I agree with Pratte J.A. that deportation is not imposed as a punishment. In Reference as to the effect of the Exercise of the Royal Prerogative of Mercy upon Deportation Proceedings, [1933] S.C.R. 269, Duff C.J. observed at p. 278 that deportation provisions were “not concerned with the penal consequences of the acts of individuals”. See also Hurd v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 594 (C.A.), at pp. 606-07, and Hoang v. Canada (Minister of Employment & Immigration), supra. Deportation may, however, come within the scope of a “treatment” in s. 12. The (Concise) Oxford Dictionary (1990) defines “treatment” as “a process or manner of behaving towards or dealing with a person or thing ....” 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.

The general standard for determining an infringement of s. 12 was set out by Lamer J., as he then was, in the following passage in R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1072:

The criterion which must be applied in order to determine whether a punishment is cruel and unusual within the meaning of s. 12 of the Charter is, to use the words of Laskin C.J. in Miller and Cockriel, supra, at p. 668, “whether the punishment prescribed is so excessive as to outrage standards of decency”. In other words, though the state may impose punishment, the effect of that punishment must not be grossly disproportionate to what would have been appropriate.

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 standards of decency. On the contrary it would tend to outrage such standards if individuals granted conditional entry into Canada were permitted, without consequence, to violate those conditions deliberately.

Sopinka J. here specifically left open the issue as to what constitutes “treatment” under section 12, and on the issue of “cruel and unusual,” relying on Lamer C.J.C. in Smith, he took the view that deportation for serious offences is not cruel and unusual since it does not outrage our standards of decency.

Nevertheless, on the basis of Smith, I must believe that what Sopinka J. had in mind was only the deportation of permanent residents for serious offences, and respectfully distinguish from that the deportation of Convention refugees to their homeland (refoulement). I come to this conclusion on the basis of what Lamer C.J.C. said in Smith (at pages 1073-1074):

One must also measure the effect of the sentence actually imposed. If it is grossly disproportionate to what would have been appropriate, then it infringes s. 12. The effect of the sentence is often a composite of many factors and is not limited to the quantum or duration of the sentence but includes its nature and the conditions under which it is applied. Sometimes by its length alone or by its very nature will the sentence be grossly disproportionate to the purpose sought. Sometimes it will be the result of the combination of factors which, when considered in isolation, would not in and of themselves amount to gross disproportionality. For example, twenty years for a first offence against property would be grossly disproportionate, but so would three months of imprisonment if the prison authorities decide it should be served in solitary confinement. Finally, I should add that some punishments or treatments will always be grossly disproportionate and will always outrage our standards of decency: for example, the infliction of corporal punishment, such as the lash, irrespective of the number of lashes imposed, or, to give examples of treatment, the lobotomisation of certain dangerous offenders or the castration of sexual offenders. [Emphasis added.]

Now, in order to recognize a person as a Convention refugee, the Government of Canada has already had to make the decision that that person is subject to “a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion” (subsection 2(1) of the present Act [as am. by R.S.C., 1985 (4th Supp.) c. 28, s. 1]). As a consequence, there is a serious possibility that such a person, if returned, will be subject to unjust imprisonment, and possibly even to torture and death. In fact, the very language of subsection 53(1) of the present Act is a legislative admission of this: “removed from Canada to a country where the person's life or freedom would be threatened” But Lamer C.J.C. in Smith has found corporal punishment to violate our standards of decency even when imposed in the course of lawful imprisonment. How could potential torture, or potential death, inflicted during imprisonment contrary to the rule of law, not also raise questions relating to section 12? How could even the risk of mere imprisonment which is by our standards of decency unlawful not do the same? There is a real question, it seems to me, whether section 12 can countenance extra-legal treatment to a refugee's detriment.

In the words of Gonthier J. in Goltz (at page 513), “Smith states that the effect of the [statute] must … be measured for gross disproportionality.” He had already spoken [at page 505] of the necessity of “balancing the gravity of the offence in itself with the particular circumstances of the offence and the personal characteristics of the offender.” The whole of this measuring for gross disproportionality, I think, might reasonably be characterized as a balancing requirement, and that may be the constitutional standard imposed by the “cruel and unusual treatment” prohibition in section 12, unless justified by section 1 of the Charter. I can conclude only that the issue as to both “treatment” and “cruel and unusual” is still open after Chiarelli.

II

The issue as to the effect of section 12 on the refoulement of Convention refugees being still open, the next question is whether it ought to be dealt with on this appeal. My view is that it should not, since I agree with the Board that the appellant's argument is brought prematurely, against the wrong decision maker at the wrong stage.

In its reasons for decision as set out above, the Board pointed to the Minister's sole power under section 53 of the present Act to remove a Convention refugee “to a country where the person's life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion”. The Minister's power was the same under section 55 of the previous Act. But there is a significant difference between the two versions of the Act with regard to the character of the Minister's opinion:

1976 Act

55. ...

and the Minister is of the opinion that the person should not be allowed to remain in Canada.

1985 Act

53. ...

and the Minister is of the opinion that the person constitutes a danger to the public in Canada.

The later version responds to the requirements of the United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6 which provides as follows in Article 33:

Article 33

prohibition of expulsion or return (“refoulement”)

1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particular serious crime, constitutes a danger to the community of that country.

Hathaway, The Law of Refugee Status, points out (at page 226) that “it is not enough that the crime committed have been ‘serious’, but it must rather be ‘particularly serious’ and sustain the conclusion that the offender ‘constitutes a danger to the community’”. Goodwin-Gill, The Refugee in International Law urges (at page 96) that the categorizing of an offence as a particular serious crime must involve a consideration of proportionality of the offence vis-à- vis the nature of the consequences likely to befall the returned refugee:

It is unclear to what extent, if at all, one convicted of a particularly serious crime must also be shown to constitute a danger to the community. The jurisprudence is sparse, and the notion of “particularly serious crime” is not a term of art, but principles of natural justice and due process of law require something more than mere mechanical application of the exception. An approach in terms of the penalty imposed alone will always be somewhat arbitrary, and the application of Article 33(2) ought always to involve the question of proportionality, with account taken of the nature of the consequences likely to befall the refugee on return. The offence in question and the perceived threat to the community would need to be extremely grave if danger to the life of the refugee were to be disregarded, although a less serious offence and a lesser threat might justify the return of an individual likely to face only some harassment or discrimination.

Whether or not such a balancing would be forced on the Minister by the U.N. Convention, he may well have to reflect on the exigencies of section 12 of the Charter, in the light of Smith and Goltz.

There was a difference of opinion between the parties as to whether the Board might be considered to have already engaged in the required balancing on the basis of its words: “we have considered ... the possibility that the appellant might be deported to Chile where his fear of persecution has been accepted as well-founded.”[1]

This is perhaps an indication that the Board had the appellant's fate in Chile generally in mind, but what is required by section 12, if anything is required, would certainly be more specific: for example, a concrete consideration of the treatment the appellant claims would await him in Chile, of what the country conditions are at this time, and of whether the change of regime in that country might affect his reasonable fear of persecution, all measured against the callous crimes he committed in this country.

But, in any event, it is only a return to Chile which could conceivably put the appellant in any section 12 danger, and it is only the Minister who has the statutory power to subject him to that danger. The Minister cannot even make a decision as to the country of removal until the issue of deportation is settled by the Board.

For this reason I take the view that the appellant cannot succeed in overturning subsection 27(2) or section 32. His case must therefore rest on a challenge to section 53, which is the only provision that can put the appellant's section 12 rights in jeopardy, because it is the only provision that allows him to be returned to Chile. In coming to the same conclusion, the Board relied upon the authority of Argentina v. Mellino, [1987] 1 S.C.R. 536, where La Forest J. said (at pages 558-559):

Finally, in exercising jurisdiction over executive action, a court must firmly keep in mind that it is in the executive that the discretion to surrender a fugitive is vested. Consequently, barring obvious or urgent circumstances, the executive should not be pre-empted. In cases where the feared wrong may be avoided by interstate arrangements, it may be doubted that the courts should ordinarily intervene before the executive has made an order of surrender. As already mentioned, the primary responsibility for the conduct of external relations must lie with the executive. The executive may well be able to obtain sufficient assurances from the foreign country to ensure compliance with the requirements of fundamental justice. It would, of course, be open to the courts to review any such arrangements to ensure compliance with Charter requirements.

Whether such assurances from the foreign country would in a given case satisfy Charter exigencies is a matter for decision in a proper factual context.

However, I cannot agree with the appellant's contention that a judicial review of the Minister's exercise of discretion would unduly circumscribe the appellant's case, since as I see it, it is the constitutionality of section 53 which is at the heart of his case, and it may be supposed that his counsel will put this issue before a Court in relation to the ministerial decision. The ex post facto nature of the review (as far as the ministerial decision is concerned) could also be relevant, as urged by the appellant, to the question of whether the Minister provided an opportunity for a hearing, as well as to the psychological trauma which, it was said, accompanies an order of refoulement.

It is true that, in response to the same consideration that the Charter issues were not ripe for adjudication absent a ministerial decision to deport the refugee to his home country, this Court nevertheless proceeded in Hoang to deal with the ultimate issue, saying (at page 39):

Without deciding that issue [as to the prematurity of the challenge], we prefer to assume for purposes of argument that that decision has been made, so as to avoid a multiplicity of proceedings in an area where there is already a sufficiency of uncertainty.

However, in Hoang the Court was able to decide the issue rather straight-forwardly in the light of the law as it then was. The law is now complicated by Goltz and Chiarelli. Moreover, the disposition to be made, if a finding of unconstitutionality occurs, is a formidable task in the light of the recent Supreme Court decision in Schachter v. Canada, [1992] 2 S.C.R. 679, decided on July 9, 1992, and one which, I venture to think, should be argued directly. Although we have received written submissions subsequent to the oral argument as to disposition, that is less satisfactory than full oral argument on the subject. The practical considerations, it seems to me, militate against deciding more than is strictly necessary in the case at bar.

III

Apart from the constitutional issues, the appellant also argued that the Board placed too great an emphasis on the nature of the offence when exercising its humanitarian discretion. It was said that the appellant had already served a lengthy period of incarceration as a result of the offence, that there was no evidence before the Board to indicate that he posed a danger to society and that there was a likelihood of further occurrences, that there was evidence that he was making efforts to deal with the offence and to successfully integrate into society, and that the Board failed to take into account the impact of the deportation on the appellant's wife and three children.

It would certainly have been desirable for the Board to have spelled out more fully the factors it weighed in exercising its compassionate or humanitarian discretion. Nevertheless, it did specify that it had considered the appellant's work record and his family, and it observed that it was its “duty to consider anything favourable that might be shown on the appellant's behalf and it has done so” [Emphasis added.] Moreover, humanly speaking, I find it hard to quarrel with the Board's final judgment that “the circumstances of this offence are so contrary to the norms of known decency as to render it extremely difficult to see what humanitarian or compassionate factors can possibly be brought to bear in this matter.”

The appeal must therefore be dismissed.

Linden J.A.: I agree.

Robertson J.A.: I agree.

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