Federal Court

Charter of Rights

Serious criminality is not an immutable personal characteristic

Combined effect of s. 50(1)(b) of Immigration and Refugee Protection Act (Can.) and ss. 99(1) and 128(3) Corrections and Conditional Release Act (Can.) was that foreign nationals, incarcerated for having committed criminal offence, were subject to removal from Canada immediately upon being granted any form of conditional release. Accused, Jamaican citizen serving sentence for second degree murder of his girlfriend, asked court to find those provisions unconstitutional. Accused argued that he was deprived of benefit of day parole (“DP”), unescorted temporary absence (“UTA”) and those forms of conditional release because, if granted, they would result in his immediate deportation to Jamaica and argued foreign nationals were denied benefits of gradual release and reintegration into society. Court found that accused had no factual basis to bring application but decided to entertain Charter arguments in case it was wrong. Application dismissed. SCC held that s. 6 permitted Parliament to discriminate between citizens and non-citizens by determining terms and conditions of their right to enter and remain in Canada given this legal foundation, Parliament did not discriminate within meaning of s. 15 when it imposed minimum time to be served in custody prior to removal; there was distinction but it was not discriminatory distinction. Since accused had no right to remain in Canada there could be no differential treatment. Accused was not denied benefits of UTA and DP because of his citizenship, but rather because of his citizenship combined with his conviction for second degree murder; serious criminality is not immutable personal characteristic. Even if threshold question of discriminatory distinction were established, provisions were saved by s. 1.

McLeod v. Canada (Attorney General) (Nov. 22, 2012, F.C., Rennie J., File No. T-1385-11) 104 W.C.B. (2d) 490.

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