T-2944-82
In re the Constitution Act, 1981, Schedule B, in re
the Immigration Act, 1976 and in re the execution
of a deportation order made on February 20, 1981,
against Robert Joseph Gittens
Trial Division, Mahoney J.—Toronto, May 10;
Ottawa, May 26, 1982.
Immigration — Deportation order — Applicant's appeal of
deportation order dismissed by Immigration Appeal Board
and leave to appeal refused by Federal Court of Appeal —
Applicant now seeking injunction, habeas corpus, declaration
and order quashing deportation order on basis of infringement
of rights under Canadian Charter of Rights and Freedoms
Whether execution per se of valid deportation order constitutes
infringement of applicant's rights under Charter — Applica
tion dismissed — Immigration Act, 1976, S.C. 1976-77, c. 52,
s. 27(1)(d)(i),(ii) — Canadian Charter of Rights and Freedoms,
being Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.), ss. 1, 2(d), 7, 9, 10(c),
11(h), 12, 24(1).
This is an application based on the Canadian Charter of
Rights and Freedoms, seeking the following relief: (1) an
interim and interlocutory injunction restraining the Canada
Employment and Immigration Commission from acting on a
deportation order; (2) an order releasing the applicant from
detention; (3) an order quashing the deportation order, or in
the alternative, staying it on conditions; and (4) a declaration
that the execution of the deportation order would constitute an
infringement of the applicant's rights and freedoms. The appli
cant came to Canada in 1965 at age five and became a
permanent resident, but not a Canadian citizen. Applicant has
a criminal record. The Immigration Appeal Board dismissed
the applicant's appeal from a deportation order made under the
Immigration Act, 1976 and the Federal Court of Appeal
refused leave to appeal the Board's decision.
Held, the application is dismissed. Regarding paragraph (3)
of the relief sought, the Charter is not retrospective in opera
tion; the deportation order therefore remains valid and cannot
be quashed or stayed. With respect to paragraph (2), which
seeks the applicant's release based on section 9 and paragraph
10(c) of the Charter, the Federal Court Trial Division has no
jurisdiction to grant habeas corpus as contemplated by para
graph 10(c). The Court has the jurisdiction to give relief of the
nature sought in paragraphs (1) and (4). While the Court has
jurisdiction to grant a declaration against the Minister or
Commission in appropriate cases, this is not a proper case, as a
declaration must be sought by action only, not by application,
as here. While the injunction sought under paragraph (1) is
expressed to be interim or interlocutory, in reality a permanent
injunction is being requested and the applicable principles are
therefore those determining whether the Minister or the Com
mission should be permanently restrained from carrying out a
statutory duty. In such a case, an injunction would issue where
the execution of the deportation order was ultra vires or illegal,
as it would be if it were to infringe on the applicant's rights
under the Charter. The execution of the deportation order
would not interfere with the applicant's "freedom of associa
tion" even if family ties could be characterized as such, because
that is a freedom granted subject to "reasonable limits ...
demonstrably justified" under section 1 of the Charter, and the
right of a free and democratic society to deport alien criminals
is demonstrably justified. Paragraph 11(h) of the Charter is not
applicable as deportation is not a second punishment for
offences, the conviction for which has rendered a person liable
to deportation. With respect to section 7 and paragraph 11(h),
it is irrelevant as to the subjective effect the deportation may
have on the applicant's family, as it is his rights and freedoms
which are in issue, not theirs. Also irrelevant are certain other
circumstances in his life such as his background and possible
future rehabilitation. There is no evidence to suggest that
deportation to Guyana would deprive the applicant of his right
to life, liberty and security of the person under section 7 of the
Charter. The words "cruel and unusual" as used in section 12
of the Charter are interacting, colouring each other, and to be
considered together as the expression of a norm. It is not up to
the Court to whittle down the Charter by a narrow construction
of it. In the abstract, execution of a deportation order is not
cruel and unusual treatment, nor did the evidence presented in
two hearsay affidavits suggest that deportation in this case
would be cruel and unusual. The infringement of rights and
freedoms under the Charter is a serious charge and proper
evidence must be led to prove it if the Charter is to be
respected.
CASES JUDICIALLY CONSIDERED
APPLIED:
Latif v. Canadian Human Rights Commission et al.,
[1980] 1 F.C. 687 (F.C.A.); Cardinal Insurance Com
pany v. Minister of Finance et al., [1982] 2 F.C. 527
(F.C.T.D.); Lodge et al. v. Minister of Employment and
Immigration, [1979] 1 F.C. 775 (F.C.A.);' Sherman &
Ulster v. Commissioner of Patents (1974), 14 C.P.R.
(2d) 177 (F.C.T.D.); Reference re the effect of the
exercise of the Royal Prerogative of Mercy on Deporta
tion Proceedings, [1933] S.C.R. 269; Regina v. Bruce et
al. (1977), 36 C.C.C. (2d) 158 (B.C.S.C.); Regina v.
Shand (1976), 30 C.C.C. (2d) 23 (Ont. C.A.).
CONSIDERED:
Miller et al. v. The Queen, [1977] 2 S.C.R. 680; 31
C.C.C. (2d) 177.
REFERRED TO:
Regina v. Miller et al. (1975), 24 C.C.C. (2d) 401
(B.C.C.A.); McCann et al. v. The Queen et al., [1976] 1
F.C. 570 (F.C.T.D.).
APPLICATION.
COUNSEL:
Carter C. Hoppe for applicant.
R. Levine for respondent.
SOLICITORS:
Abraham, Duggan, Hoppe, Niman, Stott,
Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: The applicant came to Canada in
1965 at the age of five. He became a permanent
resident but not a Canadian citizen. A deportation
order was made under subparagraphs 27(1)(d)(i)
and (ii) of the Immigration Act, 1976.' An appeal
against the deportation order was dismissed by the
Immigration Appeal Board on December 17, 1981.
The Federal Court of Appeal refused leave to
appeal the Immigration Appeal Board's decision
under section 84 of the Immigration Act, 1976 on
April 26, 1982. While it has not been properly
proved, I accept for the purposes of this judgment
that, as submitted on behalf of the applicant, he
has completed serving all sentences for his crimi
nal offences and is presently being kept in custody
pending execution of the deportation order.
The applicant seeks the following relief:
I. An interim and interlocutory injunction restraining the
Canada Employment & Immigration Commission from acting
upon the deportation order made with respect to Robert Joseph
Gittens on February 20, 1981, pursuant to The Constitution
Act, 1981, Schedule B, Section 24(1);
' S.C. 1976-77, c. 52.
2. An order releasing Robert Joseph Gittens from detention
pursuant to The Constitution Act, 1981, Schedule B, Sections
9, and 10(c);
3. An order quashing the deportation order made against
Robert Joseph Gittens on February 20, 1981; or in the alterna
tive, an order directing the stay of execution with respect to the
said deportation order, upon such terms as the Court may
direct, pursuant to The Constitution Act, 1981, Schedule B,
Section 24(1);
4. A declaration that the execution of the aforementioned
deportation order would constitute an infringement of the
rights and freedoms of Robert Joseph Gittens as guaranteed by
the Canadian Charter of Rights and Freedoms, Schedule B,
Constitution Act, 1981;
All of the relief is sought on grounds based on the
Canadian Charter of Rights and Freedoms, [now
Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)], hereinafter
the "Charter", which was proclaimed in force on
April 17, 1982. The particular provisions in play
are section 1, paragraph 2(d), sections 7 and 9,
paragraphs 10(c) and 11(h) and section 12. Sub
section 24(1) is relied on as to this Court's juris
diction to grant the relief.
1. The Canadian Charter of Rights and Freedoms guaran
tees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
2. Everyone has the following fundamental freedoms:
(d) freedom of association.
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.
9. Everyone has the right not to be arbitrarily detained or
imprisoned.
10. Everyone has the right on arrest or detention
(c) to have the validity of the detention determined by way of
habeas corpus and to be released if the detention is not
lawful.
11. Any person charged with an offence has the right
(h) if finally acquitted of the offence, not to be tried for it
again and, if finally found guilty and punished for the
offence, not to be tried or punished for it again; ...
12. Everyone has the right not to be subjected to any cruel
and unusual treatment or punishment.
24. (1) Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.
I agree that the Charter is not retrospective in
its operation. The judgment of the Federal Court
of Appeal in Latif v. Canadian Human Rights
Commission et al. 2 on the point is entirely apt and
need not be recited. The relief sought under para
graph 3 is not, therefore, available. The deporta
tion order remains valid. There is no basis upon
which it can be quashed or its execution stayed on
conditions. It is not necessary to deal with the
respondent's objection to jurisdiction in respect of
this relief.
I also agree that this Court has no jurisdiction to
grant the relief sought under paragraph 2. Section
10 of the Charter is express in stipulating that the
validity of detention is to be determined by way of
habeas corpus. This Court has no jurisdiction to
grant habeas corpus. The question of certiorari
does not arise here and I express no view on the
jurisdiction of this Court should habeas corpus
with certiorari in aid be sought pursuant to the
Charter.
What remains is whether the execution per se of
a valid deportation order would constitute an
infringement or denial of any of the applicant's
fundamental rights and freedoms. If so, I believe
that this Court has jurisdiction in the first instance
to entertain an application for an appropriate
remedy. It has the jurisdiction to grant relief of the
nature sought under paragraphs 1 and 4.
As to paragraph 1, once the issue is defined
narrowly in terms of whether the infringement of
rights lies in the execution per se of the deporta
tion order, the application cannot be found to be,
in substance, an application to review or an appeal
from the decision of the Immigration Appeal
Board cloaked in form only to bring it within
section 18 of the Federal Court Act, R.S.C. 1970
2 [1980] 1 F.C. 687 at pp. 702 and ff.
(2nd Supp.), c. 10. 3 While the injunction sought is
expressed to be interim and interlocutory, it is no
such thing. It is a permanent injunction with no
limitation in time. The principles to be applied are
those which determine whether the Minister or
Commission should be permanently restrained
from carrying out a statutory duty. 4 Such an
injunction will issue if the act would be ultra vires
or illegal. Execution of the deportation order
would be illegal if it were to infringe the appli
cant's rights under the Charter.
As to paragraph 4, this Court's jurisdiction to
grant declaratory relief vis-Ã -vis the Commission
or Minister in the appropriate proceedings is
beyond question. 5 However, these proceedings are
not appropriate. Declaratory relief must be sought
in an action; it is not available on an application to
the Court. 6 This objection was not raised at the
hearing and I should not be disposed to rely on it if
it made any practical difference. However, I
cannot conceive that the declaratory relief sought
could properly be granted unless the injunctive
relief could also.
Freedom of association, as envisaged by para
graph 2(d) of the Charter, will not be violated by
execution of the deportation order. The applicant's
deportation will sever immediate links with family,
friends and others. To the extent that they are licit
associations, they are social and familial. Assum
ing that they are of the type of association contem
plated by paragraph 2(d), freedom of association
is guaranteed, as provided in section 1 of the
Charter,
Cardinal Insurance Company v. Minister of Finance et al.,
[1982] 2 F.C. 527.
4 Lodge et al. v. Minister of Employment and Immigration,
[1979] 1 F.C. 775.
5 Federal Court Act, s. 18.
6 Sherman & Ulster v. Commissioner of Patents (1974), 14
C.P.R. (2d) 177.
... subject only to such reasonable limits prescribed by law as
can be demonstrably justified in a free and democratic society.
Execution of the deportation order is prescribed by
law. The reasonableness of the right of a free and
democratic state to deport alien criminals is self-
evident and, therefore, demonstrably justified.
In its relevant parts, paragraph. 11(h) vests the
applicant with the right not to be punished again
for his crimes. Deportation is not punishment for
the offences, his conviction of which has rendered
a person liable to deportation.'
The applicant argues that, in considering
whether execution of the deportation order would
violate his rights under section 7 and paragraph
11(h), the Court ought to take a subjective
approach and to have regard to evidence as to his
family, his background, his chances for
rehabilitation and particularly the fact that
deportation to Guyana would be deportation to a
country foreign to him in all respects but that of
citizenship and a totally unfamiliar culture and
society. The applicant has lived in Canada since
early childhood. The bulk of his last five years
have been spent on probation and in prison. He has
no friends or known relatives in Guyana. The
English spoken there is a dialect with which he is
said not to be familiar. The probative value of the
evidence as to conditions in Guyana does not bear
strict analysis. However, I accept that economic
conditions and prospects are not nearly as
favourable to the individual there as in Canada,
that the human rights of persons politically
opposed to those in power are not generally
respected, and that the government is democratic
in form only, not in substance.
I regard as entirely irrelevant the effect his
deportation may have on other members of his
family. He is an adult; his rights and freedoms, not
theirs, are in issue. The fact that he could have
7 Reference re the effect of the exercise of the Royal Pre
rogative of Mercy on Deportation Proceedings, [1933] S.C.R.
269 at p. 278.
become a Canadian citizen long before he
embarked on his criminal career and the nature of
his crimes; the reasons he fell into a life of crime;
the fact that to the extent a society may be held to
blame for his present situation, it is Canadian, not
Guyanese, society; the support his family and their
friends, churches and the like are prepared to offer
and his prospects and intentions for rehabilitation
if allowed to stay in Canada, are all, likewise
irrelevant.
There is no suggestion that the applicant or his
family has, in any way, been active politically so as
to attract the attention of those in power in
Guyana. There is no reason to suspect that the
treatment he receives there will not depend entire
ly on his conduct there. The evidence simply does
not support the claim that execution of the depor
tation order would deprive the applicant of the
right to life, liberty and security of the person
afforded him by section 7.
It remains whether it would be a "cruel and
unusual treatment or punishment" as proscribed
by section 12. Deportation is not, in my view,
punishment at all; it is, I should think by any
definition, treatment. The question then is whether
execution, per se, of a deportation order is cruel
and unusual treatment in the abstract or whether
deportation to Guyana would be cruel and unusual
treatment in the applicant's case.
The term "cruel and unusual treatment or pun
ishment" as it appears in the Canadian Bill of
Rights 8 has been subject of Canadian judicial
comment, most of which considered the leading
American authorities to which I have been
referred. It is, I think, enough to refer to the
Canadian decisions. There appears to have been
three general approaches:
1. Cruel and unusual may be read disjunctively as
held by McIntyre J.A., as he then was, in his
dissenting judgment in Regina v. Miller et al., 9
and followed by Heald J., in this Court in McCann
et al. v. The Queen et al. 10
8 S.C. 1960, c. 44 [R.S.C. 1970, Appendix III], para. 2(b).
9 (1975), 24 C.C.C. (2d) 401 at p. 465 (B.C.C.A.).
10 [1976] 1 F.C. 570 at p. 601.
2. Cruel and unusual must be read conjunctively
as suggested by Ritchie J., in Miller et al. v. The
Queen."
3. Cruel and unusual are not strictly conjunctive
but are interacting as held by Laskin C.J.C., in the
same case, ' 2 and followed by Toy J., in Regina v.
Bruce et al. ' 3 and the Ontario Court of Appeal in
Regina v. Shand. 14
I take the decision of the Supreme Court of
Canada in Miller et al. v. The Queen to have
foreclosed the first approach. As to the second
approach, the judgment of Ritchie J., concurred in
by Martland, Judson, Pigeon and de Grandpré JJ.,
was the decision of the Court. The issue there was
whether punishment by death for murder was
"cruel and unusual treatment or punishment" as
proscribed by paragraph 2(b) of the Canadian Bill
of Rights and Mr. Justice Ritchie had already
found that it was not, for reasons previously given,
before he observed [at page 706 of the Supreme
Court Reports]:
In my opinion, the words "cruel and unusual" as they are
employed in s. 2(b) of the Bill of Rights are to be read
conjunctively and refer to "treatment or punishment" which is
both cruel and unusual.
That observation was clearly obiter, the issue
having already been decided.
Like Toy J., and the Ontario Court of Appeal, I
prefer the third approach of Laskin C.J.C., who
held, Spence and Dickson JJ., concurring, [at
pages 689-690 of the Supreme Court Reports]:
The various judgments in the Supreme Court of the United
States, which I would not discount as being irrelevant here, do
lend support to the view that "cruel and unusual" are not
treated there as conjunctive in the sense of requiring a rigidly
separate assessment of each word, each of whose meanings
must be met before they become effective against challenged
legislation, but rather as interacting expressions colouring each
11 [1977] 2 S.C.R. 680 at p. 706; 31 C.C.C. (2d) 177 at p.
197.
12 lbid. at p. 690 (S.C.R.) and at p. 184 (C.C.C.).
13 (1977), 36 C.C.C. (2d) 158 (B.C.S.C.).
14 (1976), 30 C.C.C. (2d) 23.
other, so to speak, and hence to be considered together as a
compendious expression of a norm. I think this to be a reason
able appraisal, in line with the duty of the Court not to whittle
down the protections of the Canadian Bill of Rights by a
narrow construction of what is a quasi-constitutional document.
The Charter is a constitutional document, not a
quasi-constitutional one. A fortiori, the duty of the
Court is clear.
There may be countries deportation to which
would constitute cruel and unusual treatment but,
with that proviso, it is the concept of execution of
deportation orders that is to be measured against
the norm of cruel and unusual treatment, not the
execution of a particular deportation order nor the
personal circumstances of the individual to be
deported. In the terminology of the applicant's
argument, the issue is to be determined objective
ly, not subjectively. Execution of any deportation
order must inevitably, to some degree, disrupt the
deportee's life and change his prospects. The dis
ruption may be extreme, involving separation from
family and friends and expulsion, alone and friend
less, to an entirely unfamiliar social, economic and
political milieu. It may also merely entail a return
to the totally familiar. The incidents of deporta
tion, whatever their degree, do not render it cruel
and unusual treatment of an adult.
As a norm, execution of a deportation order is
not, in the abstract, cruel and unusual treatment.
The evidence does not persuade me that deporta
tion of the applicant to Guyana would be cruel and
unusual treatment.
I alluded earlier to the probative value of the
evidence of conditions in Guyana. The evidence is
contained in two affidavits.
The deponent of one is a contemporary of the
applicant who came to Canada from Guyana at
the age of two and does not depose to having been
back since. Her evidence on the point is entirely
hearsay. Hearsay is not evidence. This application
is not interlocutory; it is final. The exception of
Rule 332(1) does not apply. The law requires that
an affidavit in such a proceeding be confined to
such facts as the deponent is able, of his or her
own knowledge, to prove.
The second deponent was a student at law who
exhibited to his affidavit a number of reports, none
of which are entitled to be admitted in evidence
without formal proof. The respondent objected.
The affidavit does not prove more than their exist
ence. It does not, and cannot, prove the truth of
their contents. I have, nevertheless, relied on a
1981 report of the U.S. State Department to
appropriate Congressional Committees as confirm
ing my own impression of conditions in Guyana. I
cannot take judicial notice of those conditions but
neither am I oblivious to current events and could
not, in conscience, find that conditions there are
very similar to those in Canada. The report had
the advantage of apparent objectivity, a quality
not obviously shared by other exhibits to the
affidavit.
I do not expect to find myself in this position
again. I do realize that proper preparation can be
an expensive exercise and that an applicant's
resources are often limited. Nevertheless, if the
Charter is to be respected, an alleged denial or
infringement of the rights and freedoms guaran
teed by it must be regarded as a serious charge
and the Court must insist that it be properly
proved. Unadmitted facts must be established by
acceptable evidence.
JUDGMENT
The application is dismissed with costs.
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