Docket: IMM-24134-24
Citation: 2026 FC 144
Toronto, Ontario, January 30, 2026
PRESENT: The Honourable Justice Battista
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BETWEEN: |
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JAMES ROLAND JACKSON |
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Applicant |
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and |
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THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS |
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Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicant challenges the determination by the Immigration Division (ID) of the Immigration and Refugee Board that his rights under the Canadian Charter of Rights and Freedoms, [Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11] (Charter) were not breached by the issuance of a deportation order against him.
[2] For the reasons below, the application is dismissed because the Charter challenge has not been properly constituted. The ID did not have the legislative discretion to refrain from issuing the deportation order, and the appropriate target for the Applicant’s Charter claim was the legislation, not the administrative conduct.
II. Background
[3] The Applicant is a 33-year-old British citizen who arrived in 2009 and obtained Canadian permanent residence in 2012. Since his youth, the Applicant has had a history of drug addiction and self-harm. In 2017, the Applicant was convicted for the forgery of a drug prescription and imprisoned for 6 months.
[4] The Applicant’s conviction and sentence are defined as serious criminality under section 36(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. The task of the ID was to verify the facts related to the Applicant’s identity, his status in Canada, and conviction, and to determine whether the Applicant was inadmissible under that provision, leading to the issuance of a deportation order.
[5] The Applicant requested that the ID not issue a deportation to him because the deportation order would violate his rights under sections 7 and 12 of the Charter. Section 7 of the Charter protects the rights to life, liberty and the security of the person, and section 12 of the Charter prohibits cruel and unusual treatment or punishment imposed by the state.
[6] The ID acknowledged that the Applicant’s Charter arguments were a request for relief from the application of section 36(1)(a) of the IRPA in his circumstances rather than an attack on the constitutionality of the provision. Because the legislation was not challenged, no “Notice of Constitutional Question”
was required pursuant to Rule 47 of the Immigration Division Rules, SOR/2002-229.
[7] The ID’s decision consisted of two parts. The first part determined that the Applicant was inadmissible under section 36(1)(a) based on the evidence provided by the Minister.
[8] The second part of the decision analyzed and dismissed the Applicant’s Charter arguments and found that a deportation should be issued. The ID found no breaches of section 7 or section 12 of the Charter.
III. Issues and Standard of Review
[9] No independent challenge was made to the reasonableness of the ID’s decision. As discussed below, the ID’s Charter findings were not required for its decision and no standard of review is required.
IV. Analysis
[10] The starting point for Charter claimants is the identification of the source of the alleged Charter violation (Little Sisters Book and Art Emporium v Canada (Minister of Justice), 2000 SCC 69 at para 108). In the administrative context, the Charter may be enforced by either challenging a decision maker’s conduct or discretionary decision (Canadian Council for Refugees v Canada (Citizenship and Immigration), 2023 SCC 17, at para 61; Doré v Barreau du Québec, 2012 SCC 12 at para 24), or by challenging the legislation under which the decision maker operates (Charter, s. 52(1)). As stated by the Federal Court of Appeal:
A Charter remedy will be given only for state action that causes a Charter infringement. Where the state action is legislation and the effect of the legislation is to infringe Charter rights in an unjustifiable way, the legislation is liable to be struck. But if, in reality, administrative action under the legislation is alone responsible for the unjustified Charter infringement, the Charter challenge must focus on the administrative action or inaction, not the legislation.
(Canada (Citizenship and Immigration) v Canadian Council for Refugees 2021 FCA 22 at para 84)
[11] A Charter challenge to an administrative decision maker’s conduct or decision implies that the decision maker had a constitutional option and an unconstitutional option but chose the unconstitutional option. This challenge first requires that the decision maker’s governing legislation provides the discretion to choose between the constitutional option and the unconstitutional option (Schachter v Canada, 1992 CanLII 74 (SCC), [1992] 2 S.C.R. 679, at 719-720). If the governing legislation does not provide this discretion, then the legislation is the source of the alleged Charter inconsistency, not the administrative decision or conduct.
[12] The Applicant was before the ID for the purpose of determining his inadmissibility under section 36(1)(a) of the IRPA. The Applicant did not contest his inadmissibility, but he asked the ID not to issue the removal order.
[13] However, once the ID determined the Applicant to be inadmissible, the only option available was to make the applicable removal order (IRPA, section 45(d)). In the Applicant’s circumstances this was a deportation order (Immigration and Refugee Protection Regulations, SOR/2002-227, s 229(1)(c)). The ID could not refrain from issuing the deportation order without being offside of its legislative authority.
[14] Therefore, the legislation rather than the ID’s decision was the appropriate target for the Charter challenge because the ID did not have the legislative authority to offer the remedy for the proposed Charter breach (R. v Conway 2010 S.C.C. 22 at para 82).
[15] As a “court of competent jurisdiction,”
the ID had the power to decide a Charter challenge to the legislation (Obazughanmwen v Canada (Public Safety and Emergency Preparedness), 2023 FCA 151 at paras 52-53 citing Torres Victoria v Canada (Public Safety and Emergency Preparedness), 2011 FC 1392 at para 38). However, the Applicant did not advance such a challenge.
[16] The ID’s opinion on the impact of the deportation order on the Applicant’s Charter rights was not relevant to the only decisions it was statutorily authorized to make, which were first whether the Applicant was inadmissible, and second, if he was inadmissible, which type of removal order should be issued. It is therefore unnecessary to review the ID’s Charter findings.
V. Conclusion
[17] The application must be dismissed because it concerns a constitutional challenge that was improperly constituted. No discretion was available to the ID after it determined that the Applicant was inadmissible. If the deportation order infringed the Applicant’s Charter rights, the IRPA and not the ID was the cause.
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