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Charter - s.7 'Bedford Analysis'. Tan v. Canada (Citizenship and Immigration)
In Tan v. Canada (Citizenship and Immigration) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought against a JR dismissal determining whether: "section 10 of the Citizenship Act [SS: 'CA'], by which citizenship that was obtained by “false representation or fraud or by knowingly concealing material circumstances” may be revoked, violate paragraph 2(e) of the Canadian Bill of Rights".
Here the court considers whether CA s.10 ['Revocation by Minister — fraud, false representation, etc.'] violates Charter s.7 ['life, liberty and security of the person'], using what it calls the 'Bedford' analysis:[105] Section 7 of the Charter provides that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. To succeed in her claim of a violation of section 7, Ms. Tan must establish that (1) her rights under section 7 are engaged by the revocation of citizenship ("“engagement”"), and (2) the deprivation of those rights is not in accordance with the principles of fundamental justice: Canadian Council for Refugees at para. 56, citing Carter v. Canada (Attorney General), 2015 SCC 5 at para. 55 and Canada (Attorney General) v. Bedford, 2013 SCC 72 at paras. 57-58, 90 and 111 (Bedford); Kreishan v. Canada (Citizenship and Immigration), 2019 FCA 223 at para. 80, leave to appeal to SCC refused, 38864 (March 5, 2020) (Kreishan), referencing Ewert v. Canada, 2018 SCC 30 at para. 68 and Bedford at para. 58.
[106] At the first stage of what I will refer to in these reasons as the Bedford analysis, Ms. Tan must establish that her life, liberty or security of the person has been or may be negatively affected or limited by the revocation of her citizenship and that there is a "“sufficient causal connection”" between the revocation and the harm suffered: Canadian Council for Refugees at para. 60; Bedford at paras. 58, 74-76. The causation element need not be direct but must be real and not speculative: Kreishan at para. 83, citing Bedford at para. 76. If Ms. Tan establishes engagement of one or more of her section 7 rights, she must then show that the deprivation of those right(s) is contrary to the principles of fundamental justice: Kreishan at para. 84.
[107] The Supreme Court has considered the meaning of "“causal connection”" in the engagement analysis of section 7 on numerous occasions, including its recent decision in Canadian Council for Refugees, a case challenging the validity of section 159.3 of the Immigration and Refugee Protection Regulations, S.O.R./2002‐227 (IRPRs) and the designation of the United States under that section as a safe third country for purposes of the Safe Third Country Agreement: Agreement between the Government of Canada and the Government of the United States of America for cooperation in the examination of refugee status claims from nationals of third countries, Can. T.S. 2004 No. 2.
[108] Section 159.3 is one part of the statutory regime set out in the IRPA (see sections 101 and 102) and the IRPRs that bars refugee claimants from seeking protection in Canada if they have arrived here from a designated country. Currently, the United States is the only designated safe country under section 159.3. The Supreme Court addressed the requirement of a causal connection as follows:[60] This Court has long recognized that, to succeed, a Charter claim must show a causal link between state action and the violation of the relevant right or freedom (see, e.g., Operation Dismantle Inc. v. The Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441, at p. 447, per Dickson J., as he then was). In Bedford, this Court held that a “sufficient causal connection” must be established, which does not require that the impugned state action “be the only or the dominant cause of the prejudice suffered by the claimant” (para. 76). As a result, the mere fact that other forms of state action may also have a causal connection to the harms alleged does not mean that a challenge to legislation — such as s. 159.3 of the IRPR — is improperly constituted. [109] The second stage of the Bedford analysis requires a determination of whether any deprivation of the section 7 rights engaged by the impugned provision occurred in accordance with the principles of fundamental justice. The principles of fundamental justice have both substantive and procedural elements: Kreishan at para. 85, citing A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30 at para. 138; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 at para. 113. They are not confined to procedural unfairness; they reflect "“the minimum requirements that a law that negatively impacts on a person’s life, liberty, or security of the person must meet”" (Bedford at para. 94) and are concerned with arbitrariness, overbreadth and gross disproportionality of the legislative provision(s) at issue: Bedford at para. 96; Kreishan at para. 87.
[110] Consistent with the foregoing jurisprudence, the Federal Court correctly disagreed with Ms. Tan’s submission that a federal law that is not compliant with paragraph 2(e) of the Bill of Rights is similarly not compliant with section 7 of the Charter: FC Decision at paras. 98-99. The two provisions are not co-extensive: Goodman at para. 6. Paragraph 2(e) of the Bill of Rights is limited to a consideration of whether the application of a federal law would deprive a person of the right to a fair hearing in accordance with the principles of natural justice. Section 7 of the Charter encompasses both substantive and procedural fairness principles tied to "“life, liberty and security of the person”". In other words, a substantive right to life, liberty or security of the person must be engaged before any consideration of the principles of fundamental justice.
[111] Ms. Tan states on appeal that her arguments in relation to paragraph 2(e) and the procedural deficiencies of section 10 are in any event equally applicable to her section 7 Charter challenge but adds that an oral hearing is required in all cases in which section 7 rights are engaged. She also includes in her appeal memorandum very brief submissions referring to the substantive principles of arbitrariness, overbreadth and gross disproportionality.
[112] Ms. Tan’s submissions regarding engagement of section 7 relate primarily to the rights to liberty and to security of the person. Ms. Tan relies on Taylor v. Canada (Minister of Citizenship and Immigration), 2006 FC 1053 at para. 232 (Taylor FC) and Oberlander v. Canada (Attorney General) (2004), 2004 CanLII 15504 (ON SC), 69 OR (3d) 187 (ONSC) at para. 45, in support of her submissions.
[113] Citizenship is not a right guaranteed by the Charter. Indeed, a person who is not automatically a citizen of Canada has no inherent right to citizenship. They must obtain and retain Canadian citizenship in compliance with the relevant statutory provisions of the Citizenship Act which interact in certain cases with provisions of the IRPA. I note in this regard that the Federal Court’s decision in Taylor FC, which focussed on the requirements of due process and the application of historic amendments to the Citizenship Act affecting children "“born out of wedlock”", was appealed and the appeal allowed: Taylor v. Canada (Minister of Citizenship and Immigration), 2007 FCA 349 (Taylor FCA). In Taylor FCA (at para. 50) this Court stated "“Canadian citizenship is a creature of federal statute and has no meaning apart from statute and … in order to be a Canadian citizen, a person must satisfy the applicable statutory requirements.”"
[114] Ms. Tan does not take issue with the preceding paragraph. Instead, she argues that her rights under section 7 are engaged not as a result of the revocation of her citizenship itself but due to consequential harms that have occurred or may befall her, including the loss of ancillary rights either protected by other sections of the Charter or that an individual enjoys because they are a Canadian citizen and permanent resident.
[115] For the following reasons, I do not agree with Ms. Tan’s submissions and find that she has failed to establish the necessary causal connection between the loss of her Canadian citizenship, and the consequential rights and privileges lost and potential harms she describes.
[116] Ms. Tan begins by stating that the right to liberty is defined expansively in the jurisprudence and is not limited to mere freedom from physical restraint: Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 at para. 49 (Blencoe). She submits that Canadian citizens enjoy a series of liberty rights under the Charter which they lose if citizenship is revoked, including the right to vote or hold public office under section 3, their mobility rights and ability to pursue a livelihood under section 6, and their section 23 minority language rights. Ms. Tan argues that there is a sufficient causal link between her loss of citizenship and these otherwise independent Charter rights to engage section 7.
[117] The section 7 liberty interest protects a person’s right to make important and fundamental life choices free from state interference but such autonomy is not synonymous with unconstrained freedom: Blencoe at paras. 49, 54. The Supreme Court has construed the word "“everyone”" in section 7 to include every person who is physically present in Canada and thus amenable to Canadian law: Kreishan at para. 78, citing Singh. In contrast, sections 3, 6 and 23 of the Charter protect distinct rights and privileges, each of which is extended solely to Canadian citizens (and permanent residents under subsection 6(2)). The rights protected by those Charter provisions are not afforded to persons present in Canada but who are not citizens and, for purposes of subsection 6(2), permanent residents. In Kamel v. Canada (Attorney General), 2013 FCA 103 (Kamel), this Court distinguished the right to enter or leave Canada protected by subsection 6(1) of the Charter from the guarantees provided by section 7: Kamel at para. 23. I would similarly distinguish the rights protected by sections 3 and 23 of the Charter from a person’s section 7 rights. I agree with the Federal Court’s observation in Hassouna that "“[t]he purpose of section 7 is not to protect other fundamental rights enshrined in the Charter”": Hassouna at para. 138.
[118] Canadian citizenship is gained and lost through the application of the Citizenship Act. The normal consequence of a loss of citizenship is the forfeiture of certain distinct protected rights and privileges reserved for citizens of Canada. Ms. Tan now fails to meet the statutory condition entitling her to insist on the rights set out in sections 3, 6 and 23 of the Charter and finds herself in the same position as every other person who has never enjoyed the rights enshrined in those sections.
[119] The right to security of the person under section 7 protects against physical punishment and the threat thereof, imprisonment and detention, and serious and profound psychological distress, a requirement far beyond the normal stress and anxiety that may arise because of state action: Canadian Council for Refugees at para. 90; New Brunswick (Minister of Health and Community Services) v. G.(J.), 1999 CanLII 653 (SCC), [1999] 3 SCR 46 at para. 60.
[120] Ms. Tan’s submissions regarding the right to security of the person again centre on the consequences of her loss of citizenship and changes in her immigration status that have occurred or may occur. She submits that, if loss of citizenship is accompanied by loss of permanent residence, the affected person loses the ability to work, to access social services, to study or to otherwise live legally in Canada, all harms that have major impacts on the person’s security. Ms. Tan argues strenuously that the Court must take into account the fact that with the loss of Canadian citizenship, a person may also become stateless and may be subject to indefinite detention and removal under the provisions of the IRPA. This is her situation. If removed, she would be prohibited from re-entering Canada for a period of five years: paragraphs 40(1)(a) and (2)(a) of the IRPA. Ms. Tan describes herself as stuck in Canada in limbo as a "“non-entity”". All of these arguments, according to Ms. Tan, demonstrate that there is no doubt that her life, liberty and security of the person are engaged by the revocation of her Canadian citizenship.
[121] The Federal Court has found that section 7 rights are not engaged by the revocation of a person’s citizenship: Canada (Citizenship and Immigration) v. Houchaine, 2014 FC 342 at para. 69; Montoya v. Canada (Attorney General), 2016 FC 827 at para. 50; Parvez v. Canada (Citizenship and Immigration), 2024 FC 705 at paras. 17-21. This Court has concluded that findings of inadmissibility do not engage section 7: Revell v. Canada (Citizenship and Immigration), 2019 FCA at para. 38, leave to appeal to SCC refused, 38891 (April 2, 2020) (Revell), citing numerous prior Federal Court of Appeal decisions. Revocation under the Citizenship Act and a finding of inadmissibility under the IRPA share one characteristic: both are distinct statutory proceedings that occur independent of and before any deportation or removal from Canada.
[122] Ms. Tan emphasizes that she is at risk of deportation or removal due to the loss of her citizenship (and loss of permanent resident status). She focuses on the fact that she is stateless and has no right to remain in Canada, and that she may be arrested and detained prior to any removal. Ms. Tan has not indicated that she has been arrested and detained or that she has been threatened with removal, nor do those consequences flow inevitably from the loss of citizenship.
[123] Ms. Tan argues that the risk of removal engages section 7 but there is consistent jurisprudence to the contrary.
[124] Section 7 rights are not automatically infringed or engaged by removal without more (for example, the prospect of removal to torture): Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51 at paras. 45-46 (Medovarski); Charkaoui at para. 17; Kreishan at paras. 98-99. In Medovarski, one of the appellants who had been ordered deported from Canada due to serious criminality asserted that deportation engaged section 7 because it removed her freedom to make fundamental life decisions, including the choice to remain with her partner. She also argued that her right to security of the person was infringed due to the psychological stress of being deported. The Supreme Court responded as follows:[46] The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in Canada: Chiarelli v. Canada (Minister of Employment and Immigration), 1992 CanLII 87 (SCC), [1992] 1 S.C.R. 711, at p. 733. Thus the deportation of a non-citizen in itself cannot implicate the liberty and security interests protected by s. 7 of the Canadian Charter of Rights and Freedoms. [125] In Revell, a case addressing inadmissibility and the issuance of a deportation order, this Court stated, "“the decision of ""the Supreme Court in ""Medovarski"" remains: deportation and its attendant psychological stresses do not engage the section 7 security of the person interest”": Revell at para. 78. If removal does not automatically engage section 7, nor does the possibility of removal. There is no basis to accept Ms. Tan’s position that revocation of her citizenship, and potential deportation or removal, satisfies the causal connection required to engage her right to security of the person under section 7.
[126] The Court in Revell spoke to the nature of the causal connection required in the Bedford analysis and the multi-layered processes of the IRPA:[45] …The Supreme Court and this Court have held in a long line of cases that the nexus between the ineligibility determination and deportation is not close enough to trigger the right to life, liberty, and security. As mentioned earlier, an admissibility hearing is but one step in a complex, multi-tiered inadmissibility determination and removal regime under the IRPA. Section 7 of the Charter cannot be interpreted as requiring that an assessment of a person’s right be made at every step of the process. In a nutshell, I am of the view that Bedford has not displaced the extensive jurisprudence affirming that an inadmissibility finding is distinct from effecting removal. [127] The same analysis applies to Ms. Tan’s arguments that seek to establish engagement of section 7 in a process that is completed under the Citizenship Act and occurs independent of the issuance of any removal order under the IRPA. Ms. Tan’s arguments, including her reliance on statelessness, ignore the suite of protections under the IRPA that a person may invoke to delay or prevent removal, including an application for permanent residence based on H&C considerations under section 25 of the IRPA, a pre-removal risk assessment (PRRA) that addresses foreign hardship and non-refoulement immediately prior to removal, a request for deferral of removal and, eventually, a stay of removal from the Federal Court.
[128] I next find that the revocation of citizenship under section 10 of the Citizenship Act does not engage a person’s rights to life, liberty and security of the person under section 7 of the Charter on the basis that the person may subsequently face immigration detention. Ms. Tan has not been detained and her submission is speculative. There is no evidence before the Court that detention will or is likely to result from a loss of citizenship, even where permanent residence is also lost. Apart from raising the spectre of indefinite detention, Ms. Tan has established no link between this possibility and her loss of citizenship. It is also important to bear in mind that, should a person be placed in immigration detention, their detention will be subject to frequent and rigorous review under the relevant provisions of the IRPA, at which stage it may be open to the individual to contest the circumstances of their detention in reliance on section 7 of the Charter: see e.g. Brown v. Canada (Citizenship and Immigration), 2020 FCA 130 at paras. 89 et seq., leave to appeal to SCC refused, 39408 (March 11, 2021); Hemond v. Canada (Citizenship and Immigration), 2024 FC 1980 at para. 36.
[129] Ms. Tan raises the stress that revocation of her citizenship has caused her and her family because of her uncertain status and inability to work legally in Canada and submits that "“the attendant mental stress and anxiety can be assumed to be enormous”". However, there is no medical or psychological evidence or affidavit evidence in the record that provides details of Ms. Tan’s mental state or that demonstrates profound mental distress that exceeds the normal stresses inherent in a change to immigration status. The evidentiary burden of sustaining a Charter challenge is Ms. Tan’s: Canadian Council for Refugees at paras. 56, 159. In the absence of a sufficient evidentiary record, the Court will not assume adverse effects. The psychological stress asserted by Ms. Tan is indistinguishable from the ordinary stresses of uncertain immigration status and fear of removal and does not engage section 7: Kreishan at para. 100, citing Medovarski.
[130] Finally, Ms. Tan submits that her right to security of the person and right to life are engaged by her loss of Canadian citizenship because she is unable to work in Canada, has no access to social services, including health care, and is vulnerable to the actions of the state.
[131] The ancillary impacts listed by Ms. Tan in the form of ability to work and social benefits are not the inevitable consequences of revocation. They result from the change in her status under the IRPA, the statutory requirements of other federal and provincial legislation and the actions of other state entities that determine entitlement to rights and services. Above all, many of the harms alleged are described by Ms. Tan in general terms only and are not supported by a sufficiently robust evidentiary basis on which the Court can or should proceed. For example, Ms. Tan has filed no evidence of her inability to work or to access alternative programs that may permit her to work in Canada on a temporary basis, and no evidence of any denial of health care for her or her family. Having considered the submissions and evidence before the Court, I find that Ms. Tan has failed to demonstrate a sufficient proximate nexus between her loss of citizenship and the risk of loss of social benefits and has not established the causal connection required to engage section 7 of the Charter.
[132] In summary, the nexus between the impugned measure, here section 10 of the Citizenship Act, and the deprivation of a person’s section 7 interests is critical to the engagement analysis: Kreishan at para. 90. Ms. Tan’s causation arguments attempt to broaden the consequences of a loss of citizenship to events that may or may not occur in order to rely on section 7. Her change in citizenship status may eventually lead to adverse consequences that engage her protected section 7 rights but it is not the change in citizenship that engages section 7.
[133] Accordingly, I find that Ms. Tan has not established a sufficient causal connection between the revocation of her Canadian citizenship and the harms or deprivations she alleges sufficient to engage section 7 of the Charter. Ms. Tan’s constitutional challenge to section 10 of the Citizenship Act in reliance on section 7 must fail. I see no error in the Federal Court’s conclusion to the same effect.
[134] As I have concluded that the revocation of Ms. Tan’s Canadian citizenship does not engage her rights to life, liberty and security of the person under section 7, it is not necessary to address whether the revocation process in section 10 deprived Ms. Tan of her citizenship in accordance with the principles of fundamental justice or whether the revocation scheme is justified under section 1 of the Charter.
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