A man from the UK ordered deported because of “serious criminality” will be staying in Canada at least a little longer because a Federal Court judge wondered if the use of gender-neutral pronouns in a government document violated the man’s charter rights.
His deportation was set for June 7, 2023, but in a last-ditch appeal by Mr. Ewen, a hearing was held on June 6 in Federal Court.
That’s when the unexpected happened, according to the appeal filed by the Crown on June 14.
“At the start of the stay hearing, the Federal Court, of its own initiative and after confirming that the parties had no preliminary issues, raised a new legal argument that the Respondent’s Charter section 15 equality rights may have been breached by the use of some gender-neutral or gender-inclusive pronouns in the Appellant’s factum,” the appeal states.
“The issue identified by the Court was that the Appellant’s factum, in some instances, referred to the Respondent by the pronouns ’they‘ and ’their’ when the Respondent used ‘he/him’ pronouns when referring to himself in his record.”
The appeal goes on to say the judge, Justice Richard Bell, ordered that both sides submit written arguments by June 30. Questions included whether gender identification is a protected right under Section 15 of the charter and whether Mr. Ewen’s right to gender identification was violated by the use of gender-neutral pronouns in the document. It also asked what the appropriate remedy might be if his rights were violated.
The appeal says the result of Justice Bell’s order was that Mr. Ewen’s deportation had to be cancelled, and a new removal process will need to be scheduled.
“Any subsequent attempt to remove the Respondent 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 the Respondent so decide.”
In the appeal, Crown lawyers argue that the judge erred by raising a new charter issue—gender identity—that was not raised by either the Crown or Mr. Ewen, who was representing himself.
“Gender identity was not an issue in the underlying proceeding. … The Respondent did not raise any section 15 Charter argument in his stay motion or concerns about gender identification by CBSA [Canadian Border Services Agency] or the MPSEP [Minister of Public Security and Emergency Preparedness] in the course of his removal proceedings.”
It adds: “The new issue does not arise from, and is unrelated to, the matters which were under review … The Court went beyond the motion that was before it and instead addressed a different issue which was raised by the Court for the first time at the hearing. ... Further, the Court opined on social science evidence that was not in the record.”
In the appeal, the Crown lawyers ask for the judge’s June 6 order to be set aside. Barring that, they ask for an order declaring that the new constitutional issue about pronouns raised by the judge “is not properly before the Court and does not form part of the record in the motion for stay of removal.” The other option, says the appeal, is to refer the matter back to the Federal Court for a new ruling.
The Federal Court of Appeal has agreed to hear the case in an “expedited” manner. The hearing is set for Sept. 12 in Ottawa.
