Federal court | Immigration and Citizenship | Constitutional issues | Charter of Rights and Freedoms
Applicant was Italian citizen and permanent resident in Canada. Immigration Division (ID) issued removal order against applicant resulting from conviction for break and enter but stay of removal granted by Immigration Appeal Division (IAD) on conditions. Applicant was convicted of robbery and IAD dismissed his appeal and lifted stay. At IAD applicant argued that s. 68(4) of Immigration and Refugee Protection Act was unconstitutional but IAD held that it lacked jurisdiction to rule on the constitutionality of s. 68(4). Applicant applied for judicial review. Application dismissed. Associational activities protected by s. 2(d) of Charter do not envision the family as constitutionally protected unit. While international law instruments signed and ratified by Canada can inform constitutional interpretation, they cannot supplant Charter and domestic law. International law cannot effectively “read in” provision into the Charter respecting the family. Three of five questions certified. Question whether s. 7 of Charter engaged where deprivation of right to liberty and security of person of permanent resident arises from their uprooting from Canada, and not from possible persecution or torture in the country of nationality certified. Question whether criteria to depart from binding jurisprudence met in present case certified in keeping with principle of comity. Question relating to prematurity issues under s. 12 of Charter certified as unclear whether distinction between admissibility and deportation. Question relating to consequences of deportation as it relates to psychological, social, and linguistic impacts too broad and did not transcend interests of parties. Question whether family is “association” under s. 2(d) of Charter, and deportation could infringe right to associate with family too broad to be certified.
Moretto v. Canada (Citizenship and Immigration) (2018), 2018 CarswellNat 133, 2018 CarswellNat 385, 2018 FC 71, 2018 CF 71, Ann Marie McDonald J. (F.C.); application for judicial review refused (2016), 2016 CarswellNat 9865, 2016 CarswellNat 9866, George Pemberton Member (Imm. & Ref. Bd. (App. Div.)).
