A U.K. citizen set to be deported because of “serious criminality” gets to stay in Canada for at least a bit longer because a judge, unprompted by either the Crown or the defendant, wondered if the use of gender-neutral pronouns in a single government document violated the man’s Charter rights.
On June 6, the day before he was set to be deported from Canada, Colin James Ewen, who is male and uses he/him pronouns, was at the Federal Court attempting a last-ditch effort to have his expulsion delayed after years of legal battles.
Ewen’s wish was ultimately granted by Justice Richard Bell that day, but for a reason neither he nor government lawyer Nathan Joyal expected, and that appears to have raised eyebrows amidst lawyers and the Federal Court of Appeal.
Ewen was first ordered to be expelled from the country by the Immigration and Refugee Board (IRB) in October 2019 over the fact that he had been convicted of assault causing bodily harm while he still lived in the U.K. The tribunal determined his conviction reached the threshold of “serious criminality” in Canada, making him ineligible to stay in the country. Ewen has unsuccessfully argued that the charge should not be taken into account since it was considered “spent” in the U.K.
He was also arrested for assault by Ontario Provincial Police in March 2022.
As Bell began the June 6 hearing, he warned Ewen and Joyal that he wanted to bring up an issue that “will come as a bit of a surprise” as it had not been raised by either the government or Ewen, who was self-represented, according to a transcript of the hearing.
The senior justice, who was appointed by Stephen Harper in 2015 and is also the chief justice of the Court Martial Appeal Court, said he noticed that in a document filed the day before, the government occasionally used gender-neutral pronouns “they/them” alongside male “he/him” pronouns.
“One of my questions is this: is gender identification a protected right under the Charter of Rights and Freedoms,” Bell asked Joyal.
“If one reads the social science literature on this whole issue of gender identity, some authors go so far as to call this, this misnaming of identity as being a violence committed towards somebody, which is quite shocking to me, but that’s what some of the social scientists say,” the judge later added.
Joyal quickly responded that he did not believe there was a violation of Ewen’s rights because “it is a gender neutral term, the use of it would thereby not violate the applicant’s gender identification in the circumstances.
“I don’t believe that this is a live issue in this matter, respectfully,” he added.
Bell then turned to Ewen to ask him how he felt about the occasional use of “they/them” in the document. Ewen first complained that it was “a little bit confusing” to read and that “it’s not very direct.”
It was only when Bell asked if he felt it affected his dignity that Ewen responded, “kind of, yes.”
That’s when Bell announced he would adjourn the hearing and request that both Ewen and the government provide their arguments as to if they believed the use of gender neutral pronouns had violated his Charter rights. He also stayed Ewen’s deportation scheduled for the next day, meaning he would be allowed to stay in Canada until the new Charter question was resolved.
Bell’s decision to stay the deportation over a question that none of the parties raised regarding the government’s use of “they/them” gender neutral pronouns appears to be raising eyebrows amongst government lawyers as well as the Federal Court of Appeal.
In an interview, veteran immigration lawyer Stéphane Handfield, who is not involved in the case, said he’d never seen anything like it.
“In 31 years of practice, I have never been confronted with a situation where the judge, during a hearing, brought up an argument that neither of the parties had raised in their memorandums,” said the Montreal-based lawyer.
Shortly after Bell suspended Ewen’s deportation, government lawyers appealed the judge’s order and asked the Federal Court of Appeal to set it aside or declare the “new constitutional issue” he raised to be irrelevant.
The appeal argues the Federal Court “exceeded its jurisdiction by raising a new Charter issue” that “does not arise from, and is unrelated to, the matters which were under review” and that “has no factual foundation” in the case.
According to the appeal, the fact that the order made Ewen miss his scheduled flight out of Canada meant that the government will likely have to restart the removal process, creating further delays to his expulsion from the country.
“Any subsequent attempt to remove (Ewen) will require a new removal process and a new date for removal, which would be subject to a fresh application for judicial review and stay motion, should (Ewen) so decide,” reads the document.
Neither Ewen nor Joyal responded to emailed requests for comment by deadline.
On June 29, the Federal Court of Appeal agreed to expedite the case in a ruling that appears to question Bell’s ruling.
“The Federal Court has taken an immigration matter that in the public interest requires a prompt hearing and determination, and has transformed it into a section 15 Charter matter unrelated to any immigration issues whatsoever,” reads the order by Federal Court of Appeal judge David Stratas.
“And for good measure, through its June 6, 2023 interim stay order, the Federal Court has prevented the immigration matter from continuing,” Stratas adding, noting the “unusual circumstances” of the case.
The Federal Court of Appeal case is scheduled to be heard in mid-September.
Source: National Post
