T-1178-85
T-801-85
Irene Williams (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Trial Division, Strayer J.—Toronto, September 3;
Ottawa, October 25, 1985.
Constitutional law — Charter of Rights — Equality rights
— Illegal migrant apprehended after four years seven months
in Canada — Applicant considered ineligible for Long Term
Illegal Migrants Programme requiring five years without
apprehension — Allegation of contravention of s. 15 of Chart
er not basis for prohibition order as validity of deportation
order not questioned — Court not to interfere with duty of
Minister to execute order under s. 50 of Act — S. 15 not
available to set aside decision refusing to consider applicant's
case within programme as decision made before s. 15 coming
into force — No conflict with s. 15 as not denial of equality to
arbitrarily fix time limit as dividing line where passage of time
relevant — Canadian Charter of Rights and Freedoms, being
Part I of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), s. 15 — Immigration Act, 1976, S.C.
1976-77, c. 52, ss. 9, 37, 50, 115.
Constitutional law — Charter of Rights — Life, liberty and
security of person — Illegal migrant allegedly fearing violence
of children's father if deported — Fear of violence by
individual in home country in violation of laws different from
fear of persecution by state to which obliged to return — Singh
et al. v. Minister of Employment and Immigration, 119851 1
S.C.R. 177 distinguished — Canadian Charter of Rights and
Freedoms, being Part I of the Constitution Act, 1982, Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.), s. 7.
Immigration — Long Term Illegal Migrants Programme —
Committee to review situation of migrants remaining unde
tected for five years prior to apprehension — Applicant
apprehended after four years seven months in Canada
Deportation order issued — Guidelines for programme subse
quently changed — Not appropriate case for interlocutory
injunction on principles enunciated in Attorney General of
Canada v. Gould, /19841 1 F.C. 1133 (C.A.) — No contraven
tion of Charter rights — No denial of fundamental justice
Deportation order lawfully made.
This is an application for an interlocutory injunction to
prevent the execution of a deportation order pending the trial of
an action, and for an injunction restraining the applicant's
removal until she has received full consideration under a "fair
and just long term illegal migrant programme". The other
motion is for certiorari to quash a decision of the immigration
authorities, refusing to consider the applicant's case under the
Long Term Illegal Migrants Programme, mandamus requiring
the authorities to consider her application, and an order for
prohibition prohibiting the authorities from executing the
deportation order. The programme provided for the review of
the situation of persons who had remained undetected for five
years or more prior to apprehension or seeking consideration
thereunder.
The committee could recommend that the Minister exercise
his discretion under section 37 to issue a permit to come into or
remain in Canada. The applicant did not apply as she had not
been in Canada for five years. Apprehended after being in
Canada for four years and seven months, she was ordered
deported in June 1984. The date for deportation was subse
quently deferred to April, 1985. The Federal Court of Appeal
upheld the deportation order in November 1984. The applicant
was considered ineligible for the programme because at the
time she did not have five years of illegal residence in Canada.
In February, 1985 the guidelines for the programme were
changed. To be eligible, an illegal migrant must have applied
prior to apprehension, but it would be sufficient if he had been
in Canada for five years by the time that the programme
elapsed, even if he had not been in Canada for five years at the
time of apprehension or application.
The applicant attacks the refusal to consider her case under
the programme on the grounds that this is a denial of rights
under sections 7 and 15 of the Charter.
Held, the applications are dismissed.
On the principles enunciated in Attorney General of Canada
v. Gould, [1984] 1 F.C. 1133 (C.A.), this is not an appropriate
case for interlocutory injunction.
Section 7 does not apply to this situation. There is no threat
to the "life, liberty and security of the person" of the applicant.
The applicant was allegedly afraid that if deported she might
suffer violence at the hands of the father of her children. Fear
of violence by an individual in violation of the laws of the home
country is not the same as fear of persecution by the state to
which one is obliged to return. There is no denial of fundamen
tal justice as a deportation order was lawfully made and upheld
by the Federal Court of Appeal. The applicant has no further
rights with respect to remaining in Canada. The procedure she
wishes to invoke is purely discretionary. The requirement of
fairness in the exercise of the Minister's discretion is minimal.
Nor has any denial of fairness been established. The applica
tion was not referred to the committee because the applicant
did not come within the terms of either the old or new
programme.
Even if section 15 were contravened, this could not form the
basis for a writ of prohibition, as the validity of the deportation
order is not in issue. The duty of the Minister under section 50
is to execute such an order and there is no basis upon which the
Court can prevent the execution of a valid order once made.
Section 15 cannot be invoked to set aside the decision refusing
to consider the applicant's case within the programme. Such
decision was made before April 17, 1985, the date when section
15 came into effect. The critical date for determining which
criteria applied was the date of apprehension of the applicant.
The fact that she had been apprehended before five years of
illegal residence in Canada disentitled her to consideration
under the programme. The deportation order was made and
upheld well before new criteria were adopted. She cannot take
the benefit of any changes in the programme unless they are
made specifically retroactive. The criteria in force from July,
1983 to February, 1985 are not in conflict within section 15.
Where some dividing line is essential and the passage of time is
a relevant consideration, it is not a denial of equality to fix
arbitrarily a certain time limit.
The decision with respect to ineligibility for the programme
was made well before April 17, 1985. Thus it is not necessary to
consider whether the revision in the guidelines creates a distinc
tion which would amount to a denial of equality.
CASES JUDICIALLY CONSIDERED
APPLIED:
Attorney General of Canada v. Gould, [1984] I F.C.
1133 (C.A.).
DISTINGUISHED:
Singh et al. v. Minister of Employment and Immigra
tion, [1985] 1 S.C.R. 177.
REFERRED TO:
Kellawan v. Ministry of Employment and Immigration,
judgment dated December 7, 1983, Federal Court, Trial
Division, T-2619-83, not reported; Mathews v. Diaz, 426
U.S. 67 (Stevens, Associate Justice 1976).
COUNSEL:
H. Schwartz and Barbara L. Jackman for
applicant.
M. W. Duffy for respondent.
SOLICITORS:
Chiasson, Jackman, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
STRAYER J.: Two applications brought by the
same applicant were argued together in this
matter. One application is for an interlocutory
injunction to prevent the execution of a deporta
tion order issued against the applicant on June 8,
1984 pending the trial of an action commenced by
her for a declaration that the Long Term Illegal
Migrants Programme is invalid as presently con
stituted, and for an injunction restraining her re
moval until she has received full consideration
under the "terms of a fair and just long term
illegal migrant programme". The request for the
interlocutory injunction was not pressed. The other
motion, brought in the proceeding, number
T-1178-85, is for certiorari to quash a decision
taken by the respondent's officials refusing to con
sider the applicant's case under the Long Term
Illegal Migrants Programme and for mandamus
requiring those officials to consider her applica
tion, together with an order for prohibition prohib
iting the respondent and her officials from execut
ing the said deportation order until Irene
Williams' application for consideration under the
Long Term Illegal Migrants Programme has been
considered.
On the principles enunciated by a majority of
the Federal Court of Appeal in Attorney General
of Canada v. Gould, [1984] 1 F.C. 1133, I do not
think this would be an appropriate case for an
interlocutory injunction. I think it must succeed or
fail as a motion for the prerogative relief described
above. I have also concluded, however, that the
applicant cannot succeed on the substance of her
application, and therefore it is not a matter of
great importance which remedy would be more
appropriate: both depend on the same substantive
issues.
The applicant was born in Jamaica in 1948. She
is unmarried and has five children, all of whom
apparently live in Jamaica. She arrived in Canada
as a visitor for three weeks on September 29, 1979.
She has apparently worked fairly regularly since
that time.
In July, 1983 the Minister of Employment and
Immigration released guidelines for a Long Term
Illegal Migrants Programme. This involved the
establishment of a committee of senior officials at
national headquarters of the Commission, which
committee was assigned the task of automatically
reviewing the situations of a certain category of
illegal migrants. This category included all such
persons who had remained "underground", that is
without detection by officials, for five years or
more prior to apprehension or seeking consider
ation under this programme. As explained to me,
the result of favourable consideration by the com
mittee would be a recommendation that the Minis
ter exercise his discretion under section 37 of the
Immigration Act, 1976 [S.C. 1976-77, c. 52] to
issue a permit allowing such a person to come into
or remain in Canada. If there was already a
removal order made against such person then by
subsection 37(2) the Minister could not issue a
permit until such person was removed. In such
cases, at least those in the Toronto area, the person
would undertake what is known as the "Buffalo
shuffle": that is, he would go to Buffalo, thus
complying with the removal order, and then be
provided with the Minister's permit for re-entry to
Canada. Persons given Minister's permits under
such circumstances could then be granted, through
the exercise by the Governor in Council of its
regulation-making power under section 115 of the
Immigration Act, 1976, an exemption from the
requirement of section 9 of that Act that applica
tions for landing must be made from outside the
country.
After the announcement of this programme, the
applicant herein sought the advice of a lawyer late
in 1983 as to whether she would be able to make
application under the programme. She was advised
by her lawyer that, as the programme then stood,
she was not eligible to apply until she had been in
Canada five years. As a result she did not make
any application. On May 29, 1984 she was
apprehended by Immigration officers. She was
ordered deported on June 8, 1984. She sought
judicial review of this order in the Federal Court
of Appeal which dismissed her application on
November 3, 1984. She was scheduled for removal
on December 14, 1984 but according to her this
removal was deferred in order that Immigration
officials at national headquarters could review her
case to see if she qualified under the Long Term
Illegal Migrants Programme. She had apparently
never received any written decision from the Com
mission in this respect but she was called in for
removal in April, 1985. Her lawyer then had con
versations with Immigration Commission officials
and an official in the office of the Minister, all of
which indicated that the applicant had apparently
been considered ineligible for the Long Term Ille
gal Migrants Programme because, at the time she
was apprehended in May, 1984 she only had some
four years and seven months of illegal residence in
Canada, less than the five years then required by
the programme.
In the meantime, on February 25, 1985 new
guidelines were issued with respect to this pro
gramme. A cut-off date of July 3, 1985 was estab
lished. In one respect the requirements of the
programme were made more stringent: to be eli
gible it would be necessary that the illegal migrant
have made application under the programme
"whether anonymously or voluntarily" prior to
apprehension. In another respect it was made more
generous: it would be sufficient if the illegal
migrant would have been in Canada five years by
the time the programme elapsed, July 3, 1985,
even if he or she had not been in Canada for five
years at the time of apprehension or of application
under the programme.
The applicant attacks the refusal by the
respondent or officials to consider the applicant's
case under the Long Term Illegal Migrants Pro
gramme, on the grounds that this is a denial of
rights under section 7 and section 15 of the
Canadian Charter of Rights and Freedoms [being
Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)].
I have concluded that section 7 does not apply to
this situation. There is no threat to the "life,
liberty and security of the person" of the applicant
here. The only matter of this nature is her alleged
fear that she might suffer violence at the hands of
the father of her three youngest children if she
returns to Jamaica. While it appears to have been
accepted by three judges in Singh et al. v. Minister
of Employment and Immigration, [1985] 1 S.C.R.
177, at page 207 that the fear of physical persecu
tion by the state to which one is obliged to return
may be a threat to the "security of the person", I
assume that such a proposition could not be
extended to cover fears of private violence which
might be practiced against one by other private
individuals in one's home country in violation of
the laws of that country. Moreover the evidence of
such fear or its justification is very slight in this
case. Further, I am unable to discern any denial of
fundamental justice in so far as the procedure here
is concerned. It must be kept in mind that a
deportation order has lawfully been made against
the applicant and that such order has been
reviewed by the Federal Court of Appeal. Unlike
in the Singh case where Convention refugees, once
they establish their status as such, have certain
rights specified in the Immigration Act, 1976, the
applicant here has no further rights with respect to
remaining in Canada. She has been lawfully
ordered deported. The procedure she now wishes to
invoke is a purely discretionary one in the hope
that she might be granted a Minister's permit to
stay. This is not a benefit to which she is legally
entitled nor is there any denial of vested rights
involved. In such circumstances any requirement
of fairness in the exercise of the Minister's discre
tion must be minimal indeed: see Kellawan v.
Ministry of Employment and Immigration, judg
ment dated December 7, 1983, Federal Court,
Trial Division, T-2619-83, not reported. Nor has
any specific denial of fairness been established.
The application was not referred to the committee
because the applicant did not come within the
terms of either the old or new programme and
there is no dispute as to the correctness of that
conclusion.
With respect to the contention that the Long
Term Illegal Migrants Programme contravenes
section 15 of the Charter, I should first observe
that this, even if made out, could not form the
basis for a writ of prohibition as requested prevent-
ing the execution of the deportation order. Such a
contention in no way brings into question the
validity of the deportation order. The duty of the
Minister pursuant to section 50 of the Immigra
tion Act, 1976 is to execute such an order and
there is no basis upon which this Court can prevent
the execution of a valid order once made. It
remains to consider, however, whether section 15
of the Charter can be invoked to set aside the
"decision" of the officers of the respondent refus
ing consideration of the applicant's case within the
Long Term Illegal Migrants Programme and
requiring them to consider her case thereunder. In
my view it cannot. The evidence put before me is
very imprecise as to the content and date of any
"decision" taken by the respondent's officers. But
it seems amply clear to me that such decision as
was taken was made before April 17, 1985. This is
germane to the question of whether section 15 of
the Charter, which came into effect on that date,
can apply. It appears to me that it cannot. In fact,
it appears that the relevant criteria for determin
ing whether the applicant was entitled to be con
sidered by the special committee in relation to the
Long Term Illegal Migrants Programme are those
set out in the guidelines of July, 1983 which were
not altered until February 25, 1985. In my view
the critical date for determining which criteria
applied was the date of apprehension of the appli
cant, namely May 29, 1984. According to the
criteria then applicable, the mere fact that she had
been apprehended before five years of illegal resi
dence in Canada disentitled her to consideration
under the programme. She was ordered deported
in June, 1984 and that order was upheld by the
Federal Court of Appeal in November, 1984 well
before the new criteria were adopted. The deferral
of her removal in December, 1984 on the under
standing that her case would be reviewed to see if
she might be entitled to one of the programmes for
illegal migrants surely must be understood as an
undertaking to consider her case within the context
of criteria then being applied. I fail to see how she
can assert her right to take the benefit of any
changes in the law or programmes unless they are
made specifically retroactive to cover her situation.
Even if section 15 were applicable because of
the effect on the applicant which continues past
the coming into force of the Charter, I do not
accept that the criteria in force from July, 1983 to
February, 1985 are in conflict with section 15. I
am prepared to assume that a frankly discrimina
tory policy expressed in the guidelines for such a
programme could amount to a denial of "equal
benefit of the law" or "equal protection ... of the
law" as the law would thereby be achieving a
discriminatory effect. But a policy which simply
requires that illegal migrants must have been
within the country for a fixed length of time before
apprehension in order to merit consideration for a
special dispensation from the normal laws is not on
its face a denial of equality prohibited by section
15. Where some dividing line is essential, and the
passage of time is a relevant consideration, it is not
a denial of equality to fix arbitrarily a certain time
limit. See, e.g., Mathews v. Diaz, 426 U.S. 67
(Stevens, Associate Justice 1976).
Even if the new criteria for the programme
announced on February 25, 1985 should have been
applied to the case of the applicant, I believe it is
quite clear that her case was rejected for review
before April 17, 1985 the day of the coming into
force of section 15 of the Charter. In her affidavit
she says "In April, I was called in for removal
although I had not heard the results of the review.
I was scheduled to leave Canada on April 19th,
1985...." Although her affidavit is silent on the
point, it is obvious that she then contacted her
lawyer as she attaches to her affidavit a letter from
her lawyer dated April 19, 1985 which describes
various inquiries which she had made on behalf of
the applicant. From all this it appears that the
decision with respect to the applicant's ineligibility
for the programme must have been made well
before April 17 since the letter treats it as an
accomplished fact. This being the case I need not
consider whether the revision in the guidelines,
requiring as it does that an illegal migrant must
have been in contact with Immigration authorities
voluntarily prior to apprehension, creates a distinc
tion which would amount to a denial of equality
within the meaning of section 15.
The applications are therefore dismissed. The
respondent is entitled to costs if she so demands.
ORDER
It is hereby ordered and adjudged that the
motions for certiorari, mandamus and prohibition
in T-1178-85 and the motion for an interlocutory
injunction in T-801-85 be dismissed with costs to
the respondent for one motion if so demanded.
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