Stewart v Canada

Parties (including notable third parties)

Stewart (author and alleged victim); Canada (state party)

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Summary of Facts

The author is a British citizen that was born in Scotland in December 1960. At the age of seven, he emigrated to Canada with his family and resided there ever from that time.  Although the author claims he considers himself a Canadian citizen, he never requested Canadian citizenship and is legally only a permanent resident.

The author’s family which currently reside in Canada include his mother, who is in poor health; his brother, who is mentally disabled and suffers from chronic epilepsy; and his ex-wife, with which he has two young twin children who live with their mother. The author cannot contribute financially to his family, but helps his ailing mother and brother around the home when possible.

Between September 1978 and May 1991, the author was convicted on 42 separate occasions. The majority of these convictions were for petty offences, including traffic violations. Specific convictions include possession of marijuana seeds, possession of a prohibited martial arts weapon, and one conviction for assault causing bodily harm, committed in September 1984 against his former girlfriend.

In 1990, an immigration inquiry was initiated under Section 27(1) of the Canadian Immigration Act. Under this section, permanent residents may be ordered deported if convicted of certain enumerated offences. An adjudicator ordered the author’s deportation on account of his criminal convictions. The author appealed this decision to the Immigration Appeal Division, which dismissed his appeal.  There is no further right of appeal or leave to appeal available within the Canadian judicial system. Accordingly, the author has exhausted all effective domestic remedies.

If the author is deported, he would be prohibited from returning to Canada without express ministerial consent, as required by Sections 19(1)(i) and 55 of the Immigration Act. Additionally, his criminal history renders him inadmissible under Section 19(2)(a), further complicating any potential reapplication for residency.

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Legal Arguments

Legal arguments by the Author

Article 7 ICCPR:

The author submitted that his deportation would amount to cruel, inhuman and degrading treatment within the meaning of Art 7 ICCPR given: (a) he has resided in Canada since the age of seven; (b) all members of his immediate family reside in Canada; (c) his criminal record does not indicate he is a danger to public safety; (d) he has taken voluntary steps to control his substance-abuse problems; (e) deportation would effectively and permanently sever all his ties in Canada; and (f) the prison terms he has served already constitute adequate punishment.

Article 9 ICCPR:

The author argued that Art 9 applies not only to a deprivation of physical freedom but applies in a broader sense.  The author submitted there has been a violation of Art 9 as his deportation from Canada would violate his liberty of movement within Canada and within his community.

Article 12(4) ICCPR:

The author submitted that Art 12(4) ICCPR applies as Canada is his “own country” and his deportation would result in an absolute statutory bar from re-entering Canada.  Counsel for the author argued that the U.K. is no longer the author’s  “own country” since he left it at the age of seven and his entire life is now centred upon his family in Canada.

Article 13 ICCPR:

The author argued that the judicial review of his deportation by the Immigration Appeal Division does not satisfy Art 13 ICCPR as the Court is only required to consider all the circumstances of the case, which is insufficient to balance the hardship caused by removal against the public interest.

Article 17 ICCPR:

The author argued that his home and privacy have been interfered with as his “home” is Canada and his privacy includes the fact of being able to live in this community without arbitrary or unlawful interference.  The author submitted that Canadian law does not protect aliens against such interference on basis that the Immigration Appeal Division does not need to take such considerations into account in its decision.

Article 23 ICCPR:

The author submitted that there is no clear legislative recognition in Canada for the protection of the family.  In the absence of such legislation which ensures that family interests would be given due weight in administrative proceedings such as, for example, those before the Immigration and Refugee Board, the author claimed that there is a prima facie issue as to whether Canadian law is compatible with the requirement of protection of the family in Art 23 ICCPR.

Remedy:

The author requested the Committee to find that his deportation from Canada would be a violation of the ICCPR.

Legal arguments by the State Party

Article 7, 9, 12 and 13 ICCPR:

The State contended that the author had failed to substantiate its allegations of violations of Arts 7, 9, 12 and 13 ICCPR.  It recalled that international and domestic human rights law states that the right to remain in a country and not be expelled from it is confined to nationals of that state other than in exceptional circumstances of which there are none in this case.

The State also argued that Art 13’s purpose is to prevent arbitrary expulsions and that the application of the Immigration Act satisfied its requirements.  The author was represented by counsel and given the opportunity to present evidence as to whether he should be permitted to remain in Canada.

Articles 17 and 23 ICCPR:

The State argued that its immigration laws, regulations and policies are compatible with Arts 17 and 23. In particular, the Immigration Act allows for the exemption of persons from any regulations or the admission into Canada of persons where there exist compassionate or humanitarian considerations.

The State affirmed that the author had failed to substantiate violations of ICCPR rights and was in fact claiming a right to remain in Canada.

Outcome

Admissibility

The Committee found the claims under Arts 7 and 9 inadmissible as the author had not substantiated his claim that deportation would amount to cruel or inhuman treatment or that it would violate his right to liberty and security. The Committee also found the claim under Art 13 inadmissible as the deportation was ordered pursuant to a decision adopted in accordance with law and it was not apparent that the assessment was reached arbitrarily.  However, the claims under Arts 12(4), 17 and 23 were admissible.

Art 12(4)

The Committee noted that the phrase “his own country” in Art 12(4) is broader than the concept of “country of his nationality”. Therefore, “his own country” as a concept applies to nationals and certain categories of individuals who, while not nationals, are also not “aliens” within the meaning of Art 13. The Committee considered that it would embrace an individual who because of his special ties to or claims in relation to a given country cannot be considered to be a mere alien.

• “Since the concept “his own country” is not limited to nationality in a formal sense, that is, nationality acquired on birth or by conferral, it embraces, at the very least, an individual who, because of his special ties to or claims in relation to a given country cannot there be considered to be a mere alien. This would be the case, for example, of nationals of a country who have there been stripped of their nationality in violation of international law and of individuals whose country of nationality has been incorporated into or transferred to another national entity whose nationality is being denied them. In short, while these individuals may not be nationals in the formal sense, neither are they aliens within the meaning of article 13. The language of article 12, paragraph 4, permits a broader interpretation, moreover, that might embrace other categories of long-term residents, particularly stateless persons arbitrarily deprived of the right to acquire the nationality of the country of such residence.” (para 12.4)

However, the Committee concluded that Canada cannot be regarded as the author’s “country” for the purposes of Art 12(4) as he had the opportunity to become a national and chose not to.

Arts 17 and 23

The Committee acknowledged that the author’s deportation would interfere with his family relations, but the question was whether such interference was unlawful or arbitrary. The author had had the opportunity to put forward evidence of his family connections in Canada and the State had determined these connections did not justify revoking his deportation order and that the deportation was proportionate.

• The Committee is of the opinion that the interference with Mr. Stewart's family relations that will be the inevitable outcome of his deportation cannot be regarded as either unlawful or arbitrary when the deportation order was made under law in furtherance of a legitimate state interest and due consideration was given in the deportation proceedings to the deportee's family connections.” (para 12.10)

Therefore, there was no violation of Arts 17 and 23.

Eckart Klein agreed with the Committee’s finding that there was no violation of Art 12(4), or Arts 17 and 23. However, Klein took issue with the Committee’s approach to the relationship between Art 12(4) and Art 13. Klein explained that the category of persons who are not “nationals in the formal sense” but also not “aliens within the meaning of Art 13” was problematic. Klein held that Art 13 applies to all aliens to be expelled and deals with the procedure to expel aliens. While Art 12(4) may bar deportation for substantive reasons. The relationship between Art 12(4) and Art 13 is not exclusive as both Arts 12(4) and 13 can apply simultaneously. Art 12(4) can apply to those who are “aliens” under Article 13.

Laurel B. Francis also agreed with the Committee’s finding of no violation of Arts 17 and 23 but did not agree with the Committee’s restricted application of his “own country” concept in Art 12(4). Francis did not agree with the Committee’s view that “an alien lawfully in the territory of a State party” under Art 13 could not acquire “own country” status under Art 12(4). Francis held that the legal significance of being “lawfully in the territory” should be related to the broader context of Art 12, which includes all persons lawfully present, not just nationals. Francis suggested that Mr Stewart, as a permanent resident, had acquired “own country” status in Canada, and that the State’s decision to expel him suspended rather than terminated his status.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
International	International Covenant on Civil and Political Rights 1966	Arts 7, 9, 12, 13, 17 and 23
Domestic	Canada Immigration Act, 1990	Ss 19(1)(i), 27(1), 55, 114(2)

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Ryan Liss, ‘Right to Belong: Legal Protection of Sociological Membership in the Application of Article 12(4) of the ICCPR’ (2013) 46 University Journal of International Law and Politics 1097

• The author pointed out that the ruling indicated that Art 12(4) only extended protection to non-nationals who were either denied or stripped of nationality on the basis of unlawful or arbitrary conduct by the state of residence. The Committee established that whether or not an individual had a right to treat a particular country as his or her “own” did not turn on one’s sociological membership in the national community, but on one’s legal ties to the scope.
• The author discussed that there were notable dissenting opinions, including that of Evatt et al. which contended the Committee failed to consider the raison d’etre of Art 12(4). That is, individuals cannot be deprived of the right to enter their own country “because it is deemed unacceptable to deprive any person of close contact with his family, or his friends”. In the dissenting members view, when assessing whether an individual can consider a given country his or her own, the existence of a formal link to the State is irrelevant. The dissenting members opined, which was later adopted by the majority in Warsame and Nystrom that other factors which establish close and enduring connections between a person and a country must be considered such as long standing residence, close personal and family ties and intentions to remain.

Yael Ronen, ‘The Ties that Bind: Family and Private Life as Bars to the Deportation of Immigrants’ (2012) 8(2) International Journal of Law in Context 283

• The author argues that the Stewart jurisprudence was very controversial and the minority opinion was that a state is “one’s own country” not be virtue of formal ties, but by virtue of “the web of relationships that form his or her social environment.”
• The author referred to the case of Canepa v Canada, in which Mr Scheinin critiqued Stewart and added as a category of persons entitled to protection under Article 12(4) “if the person is stateless or if it would be impossible or clearly unreasonable for him or her to integrate into the society corresponding to his or her de jure nationality.” This merged the minority view (the factual situations) with that of the majority view (requiring inability to deport) in certain instances.