Appeal Division considered the evidence presented
but it came to the conclusion that Mr. Stewart's
family connections in Canada did not justify
revoking the deportation order. 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. There is therefore no violation of
articles 17 and 23 of the Covenant.
to do so on his own. The fact is, however, that he
never attempted to acquire such nationality.
Furthermore, even had he applied and been denied
nationality because of his criminal record, this
disability was of his own making. It cannot be said
that Canada's immigration legislation is arbitrary or
unreasonable in denying Canadian nationality to
individuals who have criminal records.
12.7 This case would not raise the obvious human
problems Mr. Stewart's deportation from Canada
presents were it not for the fact that he was not
deported much earlier. Were the Committee to rely
on this argument to prevent Canada from now
deporting him, it would establish a principle that
might adversely affect immigrants all over the world
whose first brush with the law would trigger their
deportation lest their continued residence in the
country convert them into individuals entitled to the
protection of article 12, paragraph 4.
13. The Human Rights Committee, acting under
article 5, paragraph 4, of the Optional Protocol to the
International Covenant on Civil and Political Rights,
is of the view that the facts before the Committee do
not disclose a violation of any of the provisions of
the International Covenant on Civil and Political
Rights.
12.8 Countries like Canada, which enable
immigrants to become nationals after a reasonable
period of residence, have a right to expect that such
immigrants will in due course acquire all the rights
and assume all the obligations that nationality
entails. Individuals who do not take advantage of
this opportunity and thus escape the obligations
nationality imposes can be deemed to have opted to
remain aliens in Canada. They have every right to do
so, but must also bear the consequences. The fact
that Mr. Stewart's criminal record disqualified him
from becoming a Canadian national cannot confer on
him greater rights than would be enjoyed by any
other alien who, for whatever reasons, opted not to
become a Canadian national. Individuals in these
situations must be distinguished from the categories
of persons described in paragraph 12.4 above.
APPENDIX I
Individual opinion submitted by Mr.Eckart Klein pursuant
to rule 94, paragraph 3, of the Committee’s rules of
procedure, concerning the Views of the Committee on
communication No 538/1993,
Charles Stewart v. Canada
Being in full agreement with the finding of the
Committee that the facts of the case disclose neither a
violation of article 12, paragraph 4, nor of articles 17 and
23 of the Covenant, for the reasons given in the view, I
cannot accept the way how the relationship between
article 12, paragraph 4, and article 13 has been
determined. Although this issue is not decisive for the
outcome of the present case, it could become relevant for
the consideration of other communications, and I therefore
feel obliged to clarify this point.
12.9 The Committee concludes that as Canada
cannot be regarded as Mr. Stewart's country”, for the
purposes of article 12, paragraph 4, of the Covenant,
there could not have been a violation of that article
by the State party.
The view suggests that there is a category of
persons who are not “nationals in the formal sense”, but
are also not “aliens within the meaning of article 13"
(paragraph 12.4). While I clearly accept that the scope of
article 12, paragraph 4, is not entirely restricted to
nationals but may embrace other persons as pointed out in
the view, I nevertheless think that this category of persons
- not being nationals, but still covered by article 12,
paragraph 4 - may be deemed to be “aliens” in the sense of
article 13. I do not believe that article 13 deals only with
some aliens. The wording of the article is clear and
provides for no exceptions, and aliens are all nonnationals. The relationship between article 12, paragraph
4, and article 13 is not exclusive. Both provisions may
come into play together.
12.10 The deportation of Mr. Stewart will
undoubtedly interfere with his family relations in
Canada. The question is, however, whether the said
interference can be considered either unlawful or
arbitrary. Canada's Immigration Law expressly
provides that the permanent residency status of a
non-national may be revoked and that that person
may then be expelled from Canada if he or she is
convicted of serious offences. In the appeal process
the Immigration Appeal Division is empowered to
revoke the deportation order “having regard to all the
circumstances of the case”. In the deportation
proceedings in the present case, Mr. Stewart was
given ample opportunity to present evidence of his
family connections to the Immigration Appeal
Division. In its reasoned decision the Immigration
I therefore hold that article 13 applies in all cases
where an alien is to be expelled. Article 13 deals with the
procedure of expelling aliens, while article 12, paragraph
4, and, under certain circumstances, also other provisions
of the Covenant may bar deportation for substantive
reasons. Thus, article 12, paragraph 4, may apply even
though it concerns a person who is an “alien”.
57
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