Case information

Charter of Rights — Right to equality — Immigration — Distinction between citizens and non citizens — Provision of Immigration and Refugee Protection Act deeming conviction for offence that may be prosecuted summarily in context of hybrid offences to be conviction for indictable offence when determining inadmissibility on grounds of serious criminality — Whether s. 36(3)(a) of Immigration and Refugee Protection Act violates s. 15(1) of Canadian Charter, despite s. 6(1) of Canadian Charter, and whether it is therefore of no force or effect under s. 52 of Canadian Charter — Canadian Charter of Rights and Freedoms, ss. 6, 15, 52 — Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 36(3)(a).

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The applicant, Akim Mvana, is originally from the Democratic Republic of the Congo. He arrived in Canada in 2007 and obtained refugee status in November 2008. In 2011, he was convicted of common assault pursuant to s. 266(a) of the Criminal Code, R.S.C. 1985, c. C 46, after pleading guilty to the offence. The applicant then received a conditional sentence and probation conditions, in addition to having to perform 100 hours of community service. The removal order issued against him at that time was stayed in January 2017, with conditions, for a period of three years. In May 2019, the applicant was again charged with criminal offences: driving while impaired, driving with a blood alcohol level exceeding 80 mg in 100 mL of blood, to which an offence of obstruction of a peace officer was added. He was convicted of the offence of driving with a blood alcohol level exceeding 80 mg in 100 mL of blood as set out in s. 320.14(1)(b) of the Criminal Code. Counsel then elected to proceed summarily instead of by way of indictment, resulting in a lower maximum punishment pursuant to s. 320.19(1) of the Criminal Code. He was fined $1,600, and his driver’s licence was confiscated for one year. In December 2020, the respondent, the Minister of Citizenship and Immigration, filed a notice of cancellation by operation of law of the stay of the removal order with the Immigration Appeal Division (IAD) pursuant to s. 68(4) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). According to the respondent, the applicant was convicted of an offence constituting serious criminality within the meaning of s. 36(1)(a) of the IRPA. The applicant informed the IAD of his intention to challenge the constitutionality of that section of the IRPA. In July 2021, the IAD found that s. 36(1)(a) of the IRPA is constitutional in that it does not constitute a violation of s. 15 of the Canadian Charter of Rights and Freedoms. It also cancelled the applicant’s stay, dismissed his appeal and upheld the removal order issued against him. The Federal Court dismissed the application for judicial review of the IAD’s decision, and the Federal Court of Appeal dismissed the appeal.