This piece was prepared for the Osgoode Immigration Law Fall 2012 class. The following is not legal advice and should not be treated as such.

In 1758 Swiss jurist and philosopher Emerich de Vattel wrote that foreigners who might cause disorder “hurtful to the public welfare” should be sent elsewhere.[1] The UN Convention on Refugees also permits a country of refuge to deport a refugee “who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”[2] Foreign nationals that are convicted of offences enumerated in s 36 of IRPA can be deported from Canada to their birth country. The issue that I would like to discuss in this paper is whether these deportations contravene s 11(h) of the Charter­ Res Judicata (Double Jeopardy).

A leading case on this issue is Hurd v Canada.[3] In Hurd the Federal Court of Appeal ruled that the deportation of a permanent resident who has been convicted of an offence in Canada does not violate s 11 (h) of the Charter because the Court does not consider deportation a form of punishment. The Court’s decision leans on two arguments in its reasoning. First, it distinguishes between deportation and older criminal sanctions of banishment to a penal colony, saying that deportation to a country of birth is not a penal consequence. Second, it considers it a “grave personal disadvantage” – as distinct from punishment – which is larger-than-merely-personal-disadvantage. The Court uses a loss of job as an example of personal disadvantage.[4]

In its reliance on the first argument, the Court places an undue emphasis on the significance of country of birth. Whereas in the past, for the vast majority of people, their country of birth was also their only domicile and the only domicile of their family, today this is not the case. More than ever, people immigrate and establish their true domicile in other countries – sometimes during childhood – making the connection between a person and their country of birth simply a formality. In other words, deportation to a country of birth is in effect just an exile from the country of current residence. The Court also mentions a penal colony as being an element of punishment in an exile. With respect to Canada, which ranks consistently as a top country to live in even among developed nations, most developing nations are as much a “penal colony” as a designated penal colony was in the past, comparatively.

In its second argument, the Court declares deportation to be a “grave personal disadvantage” rather than a punishment. The example put forth for a personal disadvantage was loss of a job or a license. Personally, I find it difficult to draw analogous lines between loss of a job and deportation. The difference is in the consequences of each case. A loss of a job does not come with the consequences that the uprooting of a person from a country of residence brings in, like breaking up families. A loss of a job does not bar the person from obtaining a similar job, as deportation does for a chance to re-enter Canada. And lastly, a job is not as significant an aspect of a person’s life as his country of residence.

Based on the arguments above, deportation can be looked at as a punishment, if not in current legal terms, definitely in character due to its severely adverse effects on the person. Seeing how the double jeopardy is a fundamental principle of our legal system, such penal characteristics of deportation ought to make one uneasy. On one hand, as a Canadian citizen I would like our immigration system to bring immigrants that share our values to benefit our society. Therefore, an individual that deliberately violates the “essential condition of his or her being permitted to remain in Canada by committing a criminal offence”[5] undermines the essence of Canadian immigration system and by all accounts should not be part of it. How does one reconcile these two competing views?

Perhaps this complication arises when deportation is applied to all non-citizen criminals uniformly. One way to address this question would be to create a system that draws a distinction between when deportation is a form of punishment and when it is in the spirit of Canadian Immigration and for the benefit of the Canadian society. This system would require some sort of a litmus test to discern between various cases factoring consequences of deportation to establish whether it would constitute a punishment. The Court’s reasoning in Hurd about severity of an action assessed the consequence of a punishment from the point of view of a deportee. I propose to adopt the same point of view in reasoning about severity of an action along the following considerations.

One immediate consideration that comes to mind is whether the deportee is likely to be retried for the same crime in the destination country for deportation. In allowing for deportation in these cases, Canada would in effect violate the spirit of the Charter that prohibits double jeopardy.

Another consideration is for the welfare of a deportee in the country of destination. In many countries the situation with human rights, in absolute terms, is abysmal and does not conform to the international standards. Banishing a person to such a country – an act that could endanger the person’s life and well-being – clearly goes beyond a merely “personal disadvantage”.[6]

A third consideration about the adversity of the consequences on the person relates to the degree of connection to Canada’s polity. A person who immigrated at a young age has more connection to life in Canada than in the country of birth. From the point of view of the deportee this is no different that eviction to a penal colony.

Considering some of the consequences of deportation, I am not as confident as the Court in Hurd that deportation is not a form of punishment.

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[1] Emmerich De Vattel, The Law of Nations of the Principle of Natural Law (1758) at para 231.

[2] UNHCR Article 33(2).

[3] [1989] 2 FC 594 [Hurd]

[4] Ibid at 24.

[5] Canada (MEI) v Chiarelli, [1992] 1 SCR 711 at 736.

[6] Hurd, Supranote 3.