A-935-88
Giosue Canepa (Appellant)
v.
The Minister of Employment and Immigration
(Respondent)
INDEXED AS: CANEPA,V. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION) (CA.)
Court of Appeal, Mahoney, MacGuigan and Linden
JJ.A.—Toronto, May 25; Ottawa, June 8, 1992.
Immigration — Deportation — Appellant permanent resi
dent in Canada since age 5 — Repeatedly convicted of break,
enter and theft — Deportation order issued as person
described under s. 27(1) — Arguing common law category of
"denizen" giving immigrant establishing "sufficiently substan
tial connection with Canada" de facto citizenship — "Deni-
zen" more akin to citizen — No precedent for de facto status —
No breach of Charter, ss. 7, 12 — Board entitled to note crimes
committed in neighbourhood where grew up without prior
notice to appellant — Knowledge of streets common to any
Torontonian — "Having regard to all the circumstances"
including person in total context, i.e. good of society as well as
that of individual.
Constitutional law — Charter of Rights — Criminal process
— Appellant permanent resident in Canada since age 5 —
Repeatedly convicted of break, enter and theft — Deportation
order issued as person described under Immigration Act, 1976
s. 27(1) — Deportation neither cruel and unusual nor punish
ment — To determine whether cruel and unusual treatment,
challenged sanction to be assessed from perspective of person
subjected to it, balancing gravity of offence with circumstances
of offence and personal characteristics of offender — If sanc
tion so grossly disproportionate as to outrage decency, prima
facie violation of s. 12 — Immigration Appeal Board correctly
taking equitable, not legalistic approach.
Constitutional law — Charter of Rights — Life, liberty and
security — Appellant permanent resident in Canada since age
5 — Repeatedly convicted of serious offences against rights of
property — Deportation order issued as person described
under s. 27(1)— Arguing Charter, s. 7 conferring intermediate
status of de facto citizen — S. 27 qualifications on right of per
manent resident to remain in Canada not contravening princi-
pies of fundamental justice — Deportation for serious offences
not deprivation of liberty.
This was an appeal from the decision of the Immigration
Appeal Board dismissing an appeal from a deportation order.
The appellant, who had come to Canada with his family as a
permanent resident at the age of five, has a substantial record
of convictions for breaking, entering and theft for which
sentences ranging from one day to two years less a day have
been imposed. He never applied for Canadian citizenship, and
in 1985 was the subject of a report under Immigration Act,
1976, subparagraphs 27(1)(d)(i) and (ii). At the ensuing
inquiry, an adjudicator found that he was a permanent resident
described in subsection 27(1) and issued a deportation order
under subsection 32(2). Paragraph 72(1) provided for an
appeal from a removal order "having regard to all the circum
stances of the case".
The appellant argued that Charter, sections 7 and 12 confer
the intermediate status of "non-expellable aliens" or "de facto
citizens" on immigrants who have established a "sufficiently
substantial connection" with Canada, i.e. those who have been
admitted as permanent residents at a very early age, who have
developed a deep-rooted connection with Canada by taking
their schooling here, and who have no continuing ties with
their native lands. It was also contended that there was a com-
mon-law basis for such a category in the "denizens" distin
guished by Blackstone from "aliens" and "natives". Blackstone
defined a "denizen" as "an alien born, but who has obtained ex
donations regis letters patent to make him an English subject".
It was further argued that the Board erred in law in taking
judicial notice of the fact that several of the appellant's crimes
were committed in the neighbourhood where he had grown up.
It was submitted that this was a matter requiring strict proof,
since it was not information of a general nature acquired in
common with members of the general public. The Court was
urged to find that the Board had a duty to inform the appellant
that it intended to take judicial notice of the information so that
he could adequately respond. Finally, the appellant suggested
that the Board's statement that it was required to "weigh the
interests of Canadian society against the interests of the indi
vidual" was a different test than that mandated by paragraph
72(1)(b), viz. whether "having regard to all the circumstances
of the case, the person should not be removed from Canada".
Held, the appeal should be dismissed.
Arguments as to a violation of Charter, sections 7 and 12
were precluded by authority. The Supreme Court of Canada
held in Chiarelli v. Canada (Minister of Employment and
Immigration) that the subsection 27(1) qualifications on the
right of permanent residents to remain in Canada do not con
travene the fundamental principles of justice in section 7.
Moreover, the Federal Court of Appeal has held that deporta
tion for serious offences is not a deprivation of liberty under
section 7.
The Supreme Court of Canada also held in Chiarelli that
deportation is neither a punishment nor cruel and unusual con
trary to Charter, section 12. The Federal Court has also held
that deportation is not a punishment. Assuming that the ques
tion of whether deportation under subsection 32(2) is cruel and
unusual treatment is still open, according to Gonthier J. in R. v.
Goltz, the challenged sanction should first be looked at from
the perspective of the person subjected to it, "balancing the
gravity of the offence in itself with the particular circumstances
of the offence and the personal characteristics of the offender".
If the challenged provision would impose on the offender a
sanction so "grossly disproportionate as to outrage decency in
those real and particular circumstances, then it will amount to a
prima facie violation of s. 12." The Appeal Board's reasons
indicated a careful and balanced examination of the appellant's
claim to remain in Canada from an equitable rather than a legal
point of view. It was the very kind of inquiry mandated in
Goltz. The deportation order provided for by subsection 32(2)
is only an apparent minimum. The provision by paragraph
72(1)(b) for an appeal on equitable grounds renders the order a
reversible one, depending upon an assessment of the appel
lant's personal merits and demerits. That is what the statute
mandates, and this is the treatment the appellant received.
Deportation of the appellant is not cruel and unusual treatment.
A denizen, like a naturalized person, is more properly analo-
gized to a present-day citizen than to a non-citizen immigrant.
There is nothing here of a de facto, as opposed to a de jure
status, and so there is no precedent for the de facto category
contended for, even if Blackstone could ipso facto be consid
ered good law today.
The Board did not go beyond the common knowledge of any
informed Torontonian of the City streets. It merely drew an
inference from this common knowledge, which it was entitled
to do without notice.
"Having regard to all the circumstances of the case" does
not mean that a tribunal should abstract the appellant from the
society in which he lives. It does not refer only to the circum
stances of the person, but rather to the circumstances of the
case, which must include the person in his total context, and
bring into play the good of society as well as that of the indi
vidual.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44] ss. 1, 7, 12.
Immigration Act, 1976, S.C. 1976-77, c. 52, ss.
27(1)(d)(i),(ii), 32(2), 45(1), 47(3), 72(1)(b) (as am. by
S.C. 1988, c. 35, s. 18).
International Covenant on Civil and Political Rights,
[1976] Can. T.S. No. 47.
CASES JUDICIALLY CONSIDERED
APPLIED:
Chiarelli v. Canada (Minister of Employment & Immigra
tion) (1992), 16 Imm. L.R. (2d) 1 (S.C.C.); Hoang v.
Canada (Minister of Employment & Immigration) (1990),
13 Imm. L.R. (2d) 35; 120 N.R. 193 (F.C.A.); Hurd v.
Canada (Minister of Employment and Immigration),
[1989] 2 F.C. 594; (1988), 90 N.R. 31 (C.A.); Chiarelli v.
Canada (Minister of Employment and Immigration),
[1990] 2 F.C. 299; (1990), 67 D.L.R. (4th) 697; 42
Admin. L.R. 189; 10 Imm. L.R. (2d) 137; 107 N.R. 107
(C.A.); R. v. Goltz, [1991] 3 S.C.R. 485; (1991), 61
B.C.L.R. (2d) 145; 67 C.C.C. (3d) 481; 8 C.R. (4th) 82.
CONSIDERED:
R. v. Smith (Edward Dewey), [1987] 1 S.C.R. 1045;
(1987), 40 D.L.R. (4th) 435; [1987] 5 W.W.R. 1; 15
B.C.L.R. (2d) 273; 34 C.C.C. (3d) 97; 58 C.R. (3d) 193;
31 C.R.R. 193; 75 N.R. 321; National Corn Growers
Assn. v. Canada (Import Tribunal), [ 1990] 2 S.C.R. 1324;
(1990), 74 D.L.R. (4th) 449; 45 Admin. L.R. 161; 114
N.R. 81; Grewal v. Canada (Minister of Employment and
Immigration), [1992] 1 F.C. 581; (1991), 85 D.L.R. (4th)
166 (C.A.); Kaur v. Canada (Minister of Employment and
Immigration), [1990] 2 F.C. 209; (1989), 64 D.L.R. (4th)
317; 104 N.R. 50 (C.A.); R. v. Seaboyer; R. v. Gayme,
[1991] 2 S.C.R. 577; (1991), 7 C.R. (4th) 117; 128 N.R.
81.
REFERRED TO:
Berrehab, 3/1987/126/177; Djeraud, 3 4 / 1 990/225/289;
Moustaquim, 31/1989/191/291; Gonzalez v. Minister of
Employment and Immigration, [1981] 2 F.C. 781 (C.A.).
AUTHORS CITED
Sprague, William C. Abridgement of Blackstone's Com
mentaries, 3rd ed., Detroit, Michigan, 1895.
APPEAL from the Immigration Appeal Board's
dismissal of an appeal against a deportation order.
Appeal dismissed.
COUNSEL:
Pia Zambelli and Barbara Jackman for appel
lant.
Neelam Jolly for respondent.
SOLICITORS:
Hoppe, Jackman & Associates, Montréal, for
appellant.
Deputy Attorney General of Canada for respon
dent.
The following are the reasons for judgment ren
dered in English by
MAcGuIGAN J.A.: The appellant was born in Italy
in 1962 and came to Canada as a permanent resident
with his family at the age of five. As a teenager, he
became a drug addict, and, to support his addiction,
turned to a life of crime. Between 1978 and 1987, he
was convicted of 37 offences, 27 of them for break
ing and entering and theft. His sentences ranged from
one day to two years less a day.
He never applied for Canadian citizenship, and in
1985 was the subject of a report under subparagraphs
27(l )(d)(i) and (ii) of the Immigration Act, 1976, S.C.
1976-77, c. 52 ("the Act") as a person convicted of
an offence under an Act of Parliament for which a
term of imprisonment both of (i) more than six
months has been imposed and (ii) five years or more
may be imposed. At the ensuing inquiry an adjudica
tor made a deportation order against him under sub
section 32(2) of the Act.
These provisions of the Act are as follows:l
27. (1) Where an Immigration officer or peace officer has in
his possession information indicating that a permanent resident
is a person who
(d) has been convicted of an offence under any Act of Par
liament for which a term of imprisonment of
(i) more than six months has been imposed, or
(ii) five years or more may be imposed,
1 The identically-numbered provisions of the Immigration
Act, R.S.C., 1985, c. I-2, are almost identical in wording.
he shall forward a written report to the Deputy Minister setting
out the details of such information.
32....
(2) Where an adjudicator decides that a person who is the
subject of an inquiry is a permanent resident described in sub
section 27(1), he shall, subject to subsections 45(1) and 47(3),
make a deportation order against that person.
The appellant appealed the deportation order to the
Immigration Appeal Board ("the Board") which dis
missed his appeal on March 30, 1988, because the
deportation order was in accordance with the law,
and because, having regard to all the circumstances
of the case, there were insufficient grounds why the
appellant should not be removed from Canada.
I
In this Court the appellant's argument was based
principally on the notion that sections 7 and 12 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.) [R.S.C., 1985,
Appendix II, No. 44]] confer the intermediate status
of "non-expellable aliens" or "de facto citizens" on
immigrants who have established a "sufficiently sub
stantial connection" with Canada. Such persons were
said to be those who have been admitted as perma
nent residents at a very early age, who have devel
oped a deep-rooted connection with Canada by taking
their schooling here, and who have no continuing ties
with their native lands.
It was contended that there was even a common-
law basis for such a category in the "denizens" dis
tinguished by Blackstone from "aliens" and
"natives": Blackstone, Commentaries on the Laws of
England, [abridgement] 3rd ed. by W. C. Sprague,
1895, at page 65, defines a denizen as "an alien born,
but who has obtained ex donatione regis letters patent
to make him an English subject: a high and incom-
municable branch of the royal prerogative." How
ever, even though naturalization is recognized by
Blackstone as a separate process under the control of
Parliament, it is clear that a denizen, like a natural
ized person, is more properly to be analogized to a
present-day citizen rather than to a non-citizen immi
grant. Both denizens and naturalized persons were
incapable of being members of the Privy Council or
of Parliament, or of holding any office of trust or any
grant of lands from the Crown. Both were so created
by a formal act, the former by a high and incommu-
nicable branch of the royal prerogative, the latter by
an Act of Parliament. There is nothing at all here of a
de facto, as opposed to a de jure status, and so there
is no precedent whatsoever for the de facto category
contended for in the case at bar, even if Blackstone
could ipso facto be considered good law today. The
appellant's case, if it is to be supported, must be
founded on the Charter.
Sections 7 and 12 of the Charter read as follows:
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in accor
dance with the principles of fundamental justice.
12. Everyone has the right not to be subjected to any cruel
and unusual treatment or punishment.
At the hearing before us, the Court was unani
mously of the view that section 7 of the Charter could
provide no foundation for such a claim and the
respondent was excused from replying to the section
7 argument. We were of that view because of the
recent decision of the Supreme Court in Chiarelli v.
Canada (Minister of Employment & Immigration)
(1992), 16 Imm. L.R. (2d) 1, where Sopinka J. con
cluded for the full Court (at pages 20-21):
Thus, in determining the scope of principles of fundamental
justice as they apply to this case, the court must look to the
principles and policies underlying immigration law. The most
fundamental principle of immigration law is that non-citizens
do not have an unqualified right to enter or remain in the coun
try. At common law an alien has no right to enter or remain in
the country....
The distinction between citizens and non-citizens is recog
nized in the Charter. While permanent residents are given the
right to move to, take up residence in, and pursue the gaining
of a livelihood in any province, in s. 6(2), only citizens are
accorded the right "to enter, remain in and leave Canada," in s.
6(1).
Thus, Parliament has the right to adopt an immigration pol
icy and to enact legislation prescribing the conditions under
which non-citizens will be permitted to enter and remain in
Canada. It has done so in the Immigration Act. Section 5 of the
Act provides that no person other than a citizen, permanent
resident, Convention refugee or Indian registered under the
Indian Act has a right to come to or remain in Canada. The
qualified nature of the rights of non-citizens to enter and
remain in Canada is made clear by s. 4 of the Act. Section 4(2)
provides that permanent residents have a right to remain in
Canada except where they fall within one of the classes in s.
27(1). One of the conditions Parliament has imposed on a per
manent resident's right to remain in Canada is that he or she
not be convicted of an offence for which a term of imprison
ment of five years or more may be imposed. This condition
represents a legitimate, non-arbitrary choice by Parliament of a
situation in which it is not in the public interest to allow a non-
citizen to remain in the country. The requirement that the
offence be subject to a term of imprisonment of five years indi
cates Parliament's intention to limit this condition to more seri
ous types of offences. It is true that the personal circumstances
of individuals who breach this condition may vary widely. The
offences which are referred to in s. 27(l)(d)(ii) also vary in
gravity, as may the factual circumstances surrounding the com
mission of a particular offence. However, there is one element
common to all persons who fall within the class of permanent
residents described in subsection 27(l)(d)(ii). They have all
deliberately violated an essential condition under which they
were permitted to remain in Canada. In such a situation, there
is no breach of fundamental justice in giving practical effect to
the termination of their right to remain in Canada. In the case
of a permanent resident, deportation is the only way in which
to accomplish this. There is nothing inherently unjust about a
mandatory order. The fact of a deliberate violation of the con
dition imposed by s. 27(1)(d)(ii) is sufficient to justify a depor
tation order. It is not necessary, in order to comply with funda
mental justice, to look beyond this fact to other aggravating or
mitigating circumstances.
The Supreme Court has therefore squarely decided
that the qualifications on the right of permanent
residents to remain in Canada which Parliament has
imposed in the classes of subsection 27(1) of the Act
do not contravene the fundamental principles of jus
tice in section 7.
Moreover, although the Supreme Court, in decid
ing the issue on the basis of fundamental justice, left
open the question whether deportation for serious
offences can be conceptualized as a deprivation of
liberty under section 7, this Court has already decided
that it cannot, and is bound by its previous decisions:
Hoang v. Canada (Minister of Employment & Immi
gration) (1990), 13 Imm. L.R. (2d) 35; Hurd v.
Canada (Minister of Employment and Immigration),
[1989] 2 F.C. 594.
In our view at the hearing, therefore, arguments as
to a violation of section 7 were precluded by author
ity.
We found the same to be true as well of section 12
of the Charter with respect to cruel and unusual pun
ishment.
Again, the issue has been decided by the Supreme
Court in Chiarelli, where Sopinka J. wrote (at pages
21-22):
(b) Section 12
The respondent alleges a violation of s. 12 for essentially the
same reasons that he claims s. 7 is infringed. He submits that
the combination of s. 27(1)(d)(ii) and 32(2) constitutes cruel
and unusual punishment because they require that deportation
be ordered without regard to the circumstances of the offence
or the offender. He submits that in the case at bar the deporta
tion order is grossly disproportionate to all the circumstances
and, further, that the legislation in general is grossly dispropor
tionate, having regard to the many "relatively less serious
offences" which are covered by s. 27(1)(d)(ii).
I agree with Pratte J.A. that deportation is not imposed as a
punishment. In Reference re Effect of the Exercise of the Royal
Prerogative of Mercy upon Deportation Proceedings, [ 1933]
S.C.R. 269, 59 C.C.C. 301, [1933] 2 D.L.R. 348, Duff C.J.C.
observed that deportation provisions were "not concerned with
the penal consequences of the acts of individuals" (at p. 278
[S.C.R.]). See also Hurd v. Canada (Minister of Employment &
Immigration) (1988), [1989] 2 F.C. 594, 90 N.R. 31 (C.A.), at
pp. 606-607 [S.C.R.] [sic], and Hoang v. Canada (Minister of
Employment & Immigration) .... Deportation may, however,
come within the scope of a "treatment" in s. 12. The Oxford
(Concise) Dictionary (1990) defines treatment as "a process or
manner of behaving towards or dealing with a person or
thing ... " It is unnecessary, for the purposes of this appeal, to
decide this point, since I am of the view that the deportation
authorized by ss. 27(1)(d)(ii) and 32(2) is not cruel and unu
sual.
The general standard for determining an infringement of s.
12 was set out by Lamer J., as he then was, in the following
passage in R. v. Smith, [1987] 1 S.C.R. 1045, [1987] 5 W.W.R.
1, 75 N.R. 321, 15 B.C.L.R. (2d) 273, 58 C.R. (3d) 193, 34
C.C.C. (3d) 97, 40 D.L.R. (4th) 435, 31 C.R.R. 193 [at p. 1072
S.C.R.]:
"The criterion which must be applied in order to determine
whether a punishment is cruel and unusual within the mean
ing of s. 12 of the Charter is, to use the words of Laskin C.J.
in Miller and Cockriell, supra, at p. 668, `whether the pun
ishment prescribed is so excessive as to outrage standards of
decency'. In other words, though the state may impose pun
ishment, the effect of that punishment must not be grossly
disproportionate to what would have been appropriate."
The deportation of a permanent resident who has deliber
ately violated an essential condition of his or her being permit
ted to remain in Canada by committing a criminal offence pun
ishable by imprisonment of five years or more, cannot be said
to outrage standards of decency. On the contrary it would tend
to outrage such standards if individuals granted conditional
entry into Canada were permitted, without consequence, to
violate those conditions deliberately.
There can be no question that the Supreme Court
here held that deportation is not a cruel and unusual
punishment under section 12 of the Charter because it
is neither a punishment nor cruel and unusual. More
over, this Court has held in Hoang, supra, and Hurd,
supra, and Chiarelli v. Canada (Minister of Employ
ment and Immigration), [1990] 2 F.C. 299, that it is
not correctly conceptualized as a punishment. As far
as this Court is concerned, the issue appears to be still
open as to cruel and unusual treatment.
II
It may be thought to have been equally firmly
decided by the Supreme Court that the deportation
occurring under subsection 32(2) of the Act is not
cruel and unusual treatment. Certainly the Court
found it not to be cruel and unusual. But it was
argued by the appellant that this decision must be
read in the light of R. v. Smith (Edward Dewey),
[ 1987] 1 S.C.R. 1045 and R. v. Goltz, [1991] 3 S.C.R.
485. 2 In Smith the Supreme Court, in striking down a
seven-year minimum sentencing provision, held that
"[t]he test for review under s. 12 of the Charter is
one of gross disproportionality, because it is aimed at
punishments that are more than merely excessive"
(per Lamer J., as he then was, at page 1072).
Lamer J. continued (at pages 1073-1074):
2 In light of the sufficiency of Canadian law on the subject, I
do not find it necessary to refer to the American jurisprudence
cited by the appellant.
In assessing whether a sentence is grossly disproportionate,
the court must first consider the gravity of the offence, the per
sonal characteristics of the offender and the particular circum
stances of the case in order to determine what range of
sentences would have been appropriate to punish, rehabilitate
or deter this particular offender or to protect the public from
this particular offender. The other purposes which may be pur
sued by the imposition of punishment, in particular the deter
rence of other potential offenders, are thus not relevant at this
stage of the inquiry. This does not mean that the judge or the
legislator can no longer consider general deterrence or other
penological purposes that go beyond the particular offender in
determining a sentence, but only that the resulting sentence
must not be grossly disproportionate to what the offender
deserves. If a grossly disproportionate sentence is "prescribed
by law", then the purpose which it seeks to attain will fall to be
assessed under s. 1. Section 12 ensures that individual offend
ers receive punishments that are appropriate, or at least not
grossly disproportionate, to their particular circumstances,
while s. 1 permits this right to be overridden to achieve some
important societal objective.
One must also measure the effect of the sentence actually
imposed. If it is grossly disproportionate to what would have
been appropriate, then it infringes s. 12. The effect of the
sentence is often a composite of many factors and is not lim
ited to the quantum or duration of the sentence but includes its
nature and the conditions under which it is applied. Sometimes
by its length alone or by its very nature will the sentence be
grossly disproportionate to the purpose sought. Sometimes it
will be the result of the combination of factors which, when
considered in isolation, would not in and of themselves amount
to gross disproportionality. For example, twenty years for a
first offence against property would be grossly disproportion
ate, but so would three months of imprisonment if the prison
authorities decide it should be served in solitary confinement.
Finally, I should add that some punishments or treatments will
always be grossly disproportionate and will always outrage our
standards of decency: for example, the infliction of corporal
punishment, such as the lash, irrespective of the number of
lashes imposed, or, to give examples of treatment, the
lobotomisation of certain dangerous offenders or the castration
of sexual offenders.
The approach of Lamer C.J.C. was expressly
approved by Gonthier J., speaking for the majority in
Goltz, where the Court upheld a minimum sentence
of seven days' imprisonment for driving while pro
hibited. He said (at pages 505-506):
There are two aspects to the analysis of invalidity under s.
12. One aspect involves the assessment of the challenged pen
alty or sanction from the perspective of the person actually
subjected to it, balancing the gravity of the offence in itself
with the particular circumstances of the offence and the per
sonal characteristics of the offender. If it is concluded that the
challenged provision provides for and would actually impose
on the offender a sanction so excessive or grossly dispropor
tionate as to outrage decency in those real and particular cir
cumstances, then it will amount to a prima facie violation of s.
12 and will be examined for justifiability under s. 1 of the
Charter. There may be no need to examine hypothetical situa
tions or imaginary offenders. This was not the case in Smith,
and for that reason the Court was obliged to examine other rea
sonably imaginable circumstances in which the challenged law
might violate s. 12.
If the particular facts of the case do not warrant a finding of
gross disproportionality, there may remain another aspect to be
examined, namely, a Charter challenge or constitutional ques
tion as to the validity of a statutory provision on grounds of
gross disproportionality as evidenced in reasonable hypotheti
cal circumstances, as opposed to far-fetched or marginally
imaginable cases. (See generally C. Robertson, "The Judicial
Search for Appropriate Remedies Under the Charter: The
Examples of Overbreadth and Vagueness" in R. Sharpe, Char
ter Litigation (1987).)
The appellant also buttressed his argument by an
appeal to article 7 of the International Covenant on
Civil and Political Rights, [[1976] Can. T.S. No. 47],
a convention which Canada has ratified, and to the
jurisprudence under the European Convention on
Human Rights: Berrehab ( 3 / 1 987/126/177),
Djeraud (34/1990/225/289), and Moustaquim
(31/1989/191/291), decided by the European Court of
Human Rights. Canada is not a party to the European
Convention, but presumably decisions of the Euro-
pean Court on a human rights charter similar to
Canada's have some persuasive value. The Supreme
Court has also decided in National Corn Growers
Assn v. Canada (Import Tribunal), [1990] 2 S.C.R.
1324, at page 1371, that "it is reasonable to make ref
erence to an international agreement at the very out
set of the inquiry to determine if there is any ambigu
ity, even latent, in the domestic legislation" (per
Gonthier J.).
I am prepared to assume, for the sake of argument,
that the issue as to whether deportation under subsec
tion 32(2) of the Immigration Act, 1976 constitutes
cruel and unusual treatment under section 12 of the
Charter, is still open to us, and that the question
should first be looked at from the perspective of the
person subjected to it, as specified by Gonthier J. in
Goltz.
If in that perspective this deportation order under
subsection 32(2) of the Act were found to contravene
section 12, and the statutory provisions were not
saved by section 1 of the Charter, presumably the
deportation order would receive a "constitutional
exemption" or "reading out", leaving subsection
32(2) in force, as proposed by this Court in Grewal v.
Canada (Minister of Employment and Immigration),
[1992] 1 F.C. 581; and Kaur v. Canada (Minister of
Employment and Immigration), [1990] 2 F.C. 209,
although the notion of constitutional exemption was
queried by McLachlin J. in R. v. Seaboyer; R. v.
Gayme, [1991] 2 S.C.R. 577, at pages 627-630.
Turning, then, to subsection 32(2) of the Act, I set
forth again the provision itself:
32....
(2) Where an adjudicator decides that a person who is the
subject of an inquiry is a permanent resident described in sub
section 27(1), he shall, subject to subsections 45(1) and 47(3),
make a deportation order against that person.
Subsection 45(1) and subsection 47(3) relate to Con
vention refugee claimants and so have no application
to the case at bar.
Subsection 32(2) must be read in conjunction with
subsection 72(1) of the 1976 Act [as am. by S.C.
1988, c. 35, s. 18] (now subsection 70(1)) which
reads as follows:
72. (1) Subject to subsection (3), where a removal order or
conditional removal order is made against a permanent resi
dent or against a person lawfully in possession of a valid
returning resident permit issued to that person pursuant to the
regulations, that person may appeal to the Apeal Division on
either or both of the following grounds, namely,
(a) on any ground of appeal that involves a question of law
or fact, or mixed law and fact; and
(b) on the ground that, having regard to all the circum
stances of the case, the person should not be removed from
Canada.
In order to judge the process to which the appellant
was subjected, it is necessary to set forth the unani
mous reasons of the three members of the Appeal
Division of the Immigration Appeal Board at some
length (Appeal Book, at pages 279-281):
The appellant gave evidence, as did his parents, three other
relatives and his Probation Officer. The evidence was positive
in terms of his success in kicking his drug habit, his improved
attitude towards work and the miraculous turn around in his
life. There was evidence tendered, too, of the emotional dis
tress and dislocation his removal from Canada would cause to
his closely-knit family.
The evidence before the Board is that the appellant has offi
cially resided at his parents' home for almost all his life, except
for a period when he had a relationship with a girlfriend. Dur
ing his long period of criminal activity he left and returned
home intermittently, finally returning to reside permanently at
his parents' home about two years prior to the appeal hearing.
His father testified that he had first hand knowledge of his
son's drug habits, but his mother said that she did not, although
she had learned from the police about it. Neither of them had
been able to exercise the necessary control over their son to
curb either his drug abuse or his criminal conduct. Given his
periods of incarceration, the work record of the appellant is
understandably spotty; there was evidence that he was now
working as a general labourer in the construction field but he
was hoping for a better paying job so he could one day buy a
house and a car.
The appellant had been ordered by the court to take drug
counselling but had excused himself from the program because
he felt that he had overcome his drug problem and did not need
the assistance of a drug counselling agency. No independent
evidence was therefore available from any such agency to cor
roborate evidence with respect to his success in overcoming
his drug problem.
The onus is on the appellant to show why, in all the circum
stances of the case, he ought not to be removed from Canada.
Quite apart from the appalling criminal record of the appellant,
there is the fact that even after the deportation order was made
he went out and committed a further criminal offence, namely,
trafficking in cocaine. Furthermore, the Board takes judicial
notice of the fact that several of the break and entering
offences for which he was convicted involved homes in the St.
Clair Avenue area of Toronto, around the neighbourhood
where the appellant grew up and associated with bad company.
The scenario emerging from the record is that of an appellant
fairly terrorizing his neighbourhood over a prolonged period.
The Board considers it a reasonable inference to draw from the
evidence that, considering the appellant's comings and goings,
his association with friends in his neighbourhood, the large
number of offences and convictions and the prolonged time
span of his activities, he could not help but have achieved
some notoriety among his peers.
In these cases the Board is required to carefully weigh the
interests of Canadian society against the interests of the indi
vidual. The Board cannot but be cognizant of the devastating
effect of the drug culture on the health, financial resources, and
the moral fibre of Canadian society. Although the appellant has
in the past helped his parents financially when they needed it,
they are not dependent on him. Although he has no close rela
tives in Italy he is a toughened street-wise twenty-six-year-old
adult who is in no different a predicament than many immi
grants are when they emigrate to Canada. Although he is not
now fluent in Italian, he has resided in a family setting where
Italian is spoken and he ought to be able to achieve reasonable
facility in that language soon after his return to Italy.
In summary therefore: the appellant's lengthy drug-related
criminal record and the particular circumstances surrounding
it, his commission of a serious drug offence even after the
deportation order, the absence of dependants, the less-than-
convincing evidence that he has completely overcome his drug
dependency and that he would not revert to criminal activity,
and the lack of any redeeming features of his twenty years in
Canada, far outweigh the distress and dislocation which
removal would undoubtedly cause to the appellant and his fam
ily.
The foregoing indicates a careful and balanced
examination of the appellant's claim to remain in
Canada from an equitable rather than a legal point of
view. It seems to me that it is the very kind of inquiry
mandated by Gonthier J. in Goltz [at page 505],
involving an "assessment of the challenged penalty
or sanction from the perspective of the person actu
ally subjected to it, balancing the gravity of the
offence in itself with the particular circumstances of
the offence and the personal characteristics of the
offender." I find nothing "grossly disproportionate as
to outrage decency in those real and particular cir
cumstances."
It must be remembered that Smith and Goltz were
both criminal cases involving minimum sentences
from which there was no possible relief. The deporta
tion order provided for by subsection 32(2) is only an
apparent minimum. In fact, the provision by para
graph 70(1)(b) of the present Act for an appeal on
equitable grounds renders the order in effect a revers
ible one, depending precisely upon an assessment of
the appellant's personal merits and demerits. That is
what the statute mandates, and this is the treatment
the appellant received. In my view, it is far from
cruel and unusual treatment, and so cannot contra
vene section 12.
III
The appellant raised two other objections to the
Board's decision, one as to judicial notice, and one as
to the Board's failure to address its mind to the
proper question to be answered on the appeal.
The argument as to judicial notice referred to the
Board's taking "judicial notice of the fact that several
of the break and entering offences for which he was
convicted involved homes in the St. Clair Avenue
area of Toronto, around the neighbourhood where the
appellant grew up and associated with bad company."
This led to the inference that, not only was the appel
lant a criminal, but that he had in fact been terror
izing his own neighbourhood and community over a
prolonged period. It was contended that the Board
erred in law by taking judicial notice of a matter of
which strict proof was necessary, since it was not
information of a general nature acquired in common
with members of the general public. It was said that
this was a denial of natural justice, and that the Board
had a duty to inform the appellant that it intended to
take judicial notice of the information so that he
could adequately respond: Gonzalez v. Minister of
Employment and Immigration, [1981] 2 F.C. 781
(C.A.).
Whether or not the Board correctly used the term
"judicial notice", it seems to me that it did not go
beyond the common knowledge of any informed
Torontonian of the City streets. The Board merely
drew an inference from this common knowledge,
which it was entitled to do without notice.
The second objection had to do with the Board's
statement that "in these cases the Board is required to
carefully weigh the interests of Canadian society
against the interests of the individual." This, it is sub
mitted, is a different test from that mandated by stat
ute, viz., whether "having regard to all the circum
stances of the case, the person should not be removed
from Canada."
I cannot accept that the 'phrase "having regard to
all the circumstances of the case" means that a tribu
nal should, to make such a judgment, abstract the
appellant from the society in which he lives. The stat
utory language does not refer only to the circum
stances of the person, but rather to the circumstances
of the case. That must surely be taken to include the
person in his total context, and to bring into play the
good of society as well as that of the individual per
son. I cannot accept that the social considerations had
been taken account of once and for all by the order of
deportation itself. In my view paragraph 70(1)(b) of
the Act requires that they be considered again, but
this time along with every extenuating circumstance
that can be adduced in favour of the deportee. Both
the law and the treatment received under it in my
view meet the standards of section 12.
IV
In the result the appeal must be dismissed.
MAHONEY J.A.: I agree.
LINDEN J.A.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.