Medovarski v. Canada;Esteban v. Canada

Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), [2005] 2 SCR 539, 2005 SCC 51 (CanLII)

• At issue was s. 196 IRPA, a provision bridging transition from the Immigration Act to IRPA.

• Court concludes that the transitional provision discontinues appeals to the IAD for serious criminality (where appellants had received sentences above the then two-year sentence threshold [now six months]) in cases where stays of removal were granted automatically on application to the IAD, and only preserves the appeal right in cases where stays of removal were actively granted

• Court goes on to make some broad comments about immigration law, citing Chiarelli at paras 46 and 47. Note that Chiarelli explicitly did not answer the question as to whether the s. 7 liberty interests of a non-citizen deportee were engaged by deportation, preferring to hold only that it was not a violation of fundamental justice. Medovarski goes further and says that s. 7 liberty and security interests of a non-citizen deportee are not engaged by deportation:

46 The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in Canada: Chiarelli v. Canada (Minister of Employment and Immigration), 1992 CanLII 87 (SCC), [1992] 1 S.C.R. 711, at p. 733. Thus the deportation of a non-citizen in itself cannot implicate the liberty and security interests protected by s. 7 of the Canadian Charter of Rights and Freedoms.
• Court engages in statutory interpretation, comparing the English and the French versions. Court has held that if inconsistency between French and English versions, shared meaning to be used. Here the French meaning would have rendered the provision redundant and meaningless.

Medovarski in other case-law

• See Charkaoui I at paragraph 17 – the deportation of a non-citizen in itself may not engage s. 7, but some circumstances (detention, prospect of torture) may engage it

• Also, see the SCC decision in Agraira at para 77:
The respondent is correct in saying that the IRPA is concerned with national security and public safety. In fact, the Court recognized this in Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539:
The objectives as expressed in the IRPA indicate an intent to prioritize security….Viewed collectively, the objectives of the IRPA and its provisions concerning permanent residents, communicate a strong desire to treat criminals and security threats less leniently than under the former Act. [para. 10]