Premature to determine whether deportation infringed Charter when stay of removal was cancelled

Immigration and Citizenship - Constitutional issues - Charter of Rights and Freedoms

Immigration Appeal Division determined that applicant's stay of removal from Canada was cancelled by operation of s. 68(4) of Immigration and Refugee Protection Act because of conviction for “serious criminality” within meaning of s. 36(1)(a) of Act during period when he was subject to stay of removal. Applicant's application for judicial review was dismissed. Applicant appealed. Appeal dismissed. Application of s. 68(4) of Act could not, in and of itself, engage ss. 7 or 12 of Canadian Charter of Rights and Freedoms. Cancellation of stay of Immigration Division's inadmissibility determination pursuant to s. 68(4) of Act did not engage s. 7 of Charter, and even if it did, deportation of applicant in specific circumstances of case would not infringe his s. 7 right to liberty or security. Criteria to depart from binding jurisprudence had not been met, and court was therefore bound to conclude that s. 68(4) of Act was consistent with s. 7 of Charter. It was premature to determine whether deportation infringed s. 12 of Charter at stage where stay of removal was cancelled. Application of s. 68(4) of Act did not violate s. 2(d) of Charter.

Moretto v. Canada (Citizenship and Immigration) (2019), 2019 CarswellNat 5583, 2019 FCA 261, David Stratas J.A., D.G. Near J.A., and Yves de Montigny J.A. (F.C.A.); affirmed (2018), 2018 CarswellNat 133, 2018 CarswellNat 385, 2018 FC 71, 2018 CF 71, Ann Marie McDonald J. (F.C.).

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