3.4 The author submits that article 12,
paragraph 4, is applicable to his situation since, for
all practical purposes, Canada is his own country.
His deportation from Canada would result in an
absolute statutory bar from reentering Canada. It is
noted in this context that article 12 (4) does not
indicate that everyone has the right to enter his
country of nationality or of birth but only “his own
country”. Counsel argues 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 - thus, although not Canadian in a
formal sense, he must be considered de facto a
Canadian citizen.
Canada would not only require ministerial consent but
also that the author fulfil all the other statutory
admissibility criteria for immigrants. Furthermore,
because of his convictions, the author would be barred
from readmission to Canada under Section 19 (2) (a)
of the Act.
2.7 As the deportation order against the author
could now be enforced at any point in time, counsel
requests the Committee to seek from the State party
interim measures of protection, pursuant to rule 86
of the rules of procedure.
The complaint
3.1 The author claims that the above facts reveal
violations of articles 7, 9, 12, 13, 17 and 23 of the
Covenant. He claims that in respect of article 23, the
State party has failed to provide for clear legislative
recognition of 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, he
claims, there is a prima facie issue as to whether
Canadian law is compatible with the requirement of
protection of the family.
3.5 The author affirms that his allegations under
articles 17 and 23 should also be examined in the
light of other provisions, especially articles 9 and 12.
While article 9 addresses deprivation of liberty, there
is no indication that the only concept of liberty is one
of physical freedom. Article 12 recognizes liberty in
a broader sense: the author believes that his
deportation from Canada would violate “his liberty
of movement within Canada and within his
community”, and that it would not be necessary for
one of the legitimate objectives enumerated in
article 12, paragraph 3.
3.2 The author also refers to the Committee's
General Comment on article 17, according to which
“interference [with home and privacy] can only take
place on the basis of law, which itself must be
compatible with the provisions, aims and objectives
of the Covenant”. He asserts that there is no law
which ensures that his legitimate family interests or
those of the members of his family would be
addressed in deciding on his deportation from
Canada; there is only the vague and general
discretion given to the Immigration Appeal Division
to consider all the circumstances of the case, which
is said to be insufficient to ensure a balancing of his
family interests and other legitimate State aims. In
its decision, the Immigration Appeal Division
allegedly did not give any weight to the disabilities
of the author's mother and brother; instead, it ruled
that “taking into account that the appellant does not
have anyone depending on him and there being no
real attachment to and no real support from anyone,
the Appeal Division sees insufficient circumstances
to justify the appellant's presence in this country”.
3.6 The author contends that the enforcement of
the deportation order would amount to cruel,
inhuman and degrading treatment within the
meaning of article 7 of the Covenant. He concedes
that the Committee has not yet decided whether the
permanent separation of an individual from his/her
family and/or close relatives and the effective
banishment of a person from the only country he
ever knew and in which he grew up may amount to
cruel, inhuman and degrading treatment; he submits
that this is an issue to be determined on its merits.
3.7 In this connection, the author recalls that (a) he
has resided in Canada since the age of seven; (b) at
the time of issue of the deportation order all members
of his immediate family resided in Canada; (c) while
his criminal record is extensive, it does by no means
reveal that he is a danger to public safety; (d) he has
taken voluntary steps to control his substance-abuse
problems; (e) deportation from Canada would
effectively and permanently sever all his ties in
Canada; and (f) the prison terms served for various
convictions already constitute adequate punishment
and the reasoning of the Immigration Appeal
Division, by emphasizing his criminal record,
amounts to the imposition of additional punishment.
3.3 According to the author, the term “home”
should be interpreted broadly, encompassing the
(entire) community of which an individual is a part.
In this sense, his “home” is said to be Canada. It is
further submitted that the author's privacy must
include the fact of being able to live within this
community without arbitrary or unlawful
interference. To the extent that Canadian law does
not protect aliens against such interference, the
author claims a violation of article 17.
Special Rapporteur's request for interim measures of
protection and State party's reaction
4.1 On 26 April 1993, the Special Rapporteur on
New Communications transmitted the communication
to the State party, requesting it, under rule 91 of the
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