Mental experiment
For personal research and study related to immigration, citizenship, defence, and administrative law and regulations only. Every fact below is completely fictional and based on no real information about the CAF, the federal government, or the Federal Court. This piece is in no way or shape a legal opinion and provides no legal advice.
Facts and Legal History
Bloggins is a citizen of a non-NATO country. Bloggins became a permanent resident (defined in subs. 2(1) of the Immigration and Refugee Protection Act [IRPA]) on June 4, 2023 and joined the Canadian Armed Forces [CAF] on February 15, 2024 at 18 years of age. S3 Bloggins subsequently completed basic, environmental, and occupational training as a boatswain and was posted to His Majesty's Canadian Ship [HMCS] Bowmanville on November 3, 2024.
S3 Bloggins, with HMCS Bowmanville, was deployed on Operation HORIZON and left Esquimalt, BC on February 20, 2025. The ship left Canadian territorial waters on or around the same day.
On June 5, 2025, S3 Bloggins was instructed to do a thing by Petty Officer 2nd Class Wilson, whom received the instructions from Lieutenant (Navy) Gouin, serving as the Deck Officer of the ship. Both PO2 Wilson and Lt(N) Gouin are in the chain of command of S3 Bloggins. S3 Bloggins did not do such thing. On the next day, Lt(N) Gouin conversed directly with S3 Bloggins and articulated the instructions as a formal order. Citing safety concerns, S3 Bloggins expressed refusal of doing such thing. Later that day, a meeting was held among S3 Bloggins, PO2 Wilson, and Lt(N) Gouin. After provided S3 Bloggins with the opportunities to do so, S3 Bloggins failed to sufficiently explain the safety concerns. The conversation at some point evolved into a heated altercation and during which S3 Bloggins grabbed a cup on the table containing hot tea and threatened, verbally, to pour it to Lt(N) Gouin. S3 Bloggins was promptly stopped and apprehended by both superior officers present, and was detained onboard until the ship returns to Esquimalt on July 31, 2025.
On September 14, 2025, three charges were laid against S3 Bloggins: two counts of disobedience of lawful command, contrary to s. 83 of National Defence Act [NDA]; and one count of striking or offering violence to a superior officer contrary to s. 84 of NDA. After the referral of charges, the Director of Military Prosecutions as represented added one count of insubordinate behaviour contrary to s. 85 of NDA in alternate to the charge of striking or offering violence.
S3 Bloggins was found guilty in a Standing Court Martial on February 5, 2026 by military judge Colonel Gill on charges of disobedience of lawful command and insubordinate behaviour, contrary to ss. 83 and 85 of NDA, respectively. On April 9, 2026, S3 Bloggins was sentenced to 30 days of detention and a fine of $2000 by Col Gill, where Col Gill gave full credit of the detention S3 Bloggins already served onboard and satisfied that the detention part of the sentence had been served. In the decision, Col Gill described S3 Bloggins' young age, relatively short time in the Forces, and unfamiliarity of life at sea factors considered for the sentence. Col Gill further stated that S3 Bloggins is highly likely to be rehabilitated and maintained a career in the CAF. S3 Bloggins paid the fine on April 13, 2026, and the sentence is considered served on that day.
S3 Bloggins is cognizant of the undertaking made before enrolment pursuant to article 3.3(b)(i) of DAOD 5002-1 to "become a citizen when immediately able to do so". S3 Bloggins believed that he met the residency requirement prescribed in para. 5(1)(c) of the Citizenship Act on May 19, 2026. On May 20, 2026, S3 Bloggins applied for a grant of Canadian citizenship pursuant to subs. 5(1) of the Citizenship Act. In the online application, S3 Bloggins answered "Yes" for the question "[i]n the 4 years immediately before the date of your citizenship application, have you [b]een convicted of an indictable offence under any Act of Parliament or an offence under the Citizenship Act?" (emphasis added) and elaborated the circumstances about his aforementioned convicted offences in the following question. No representative was designated in this application. The application was received and considered as complete by Case Processing Centre (CPC) Sydney in Sydney, NS on May 30, 2026.
An IRCC officer at CPC Sydney [the Sydney officer] requested additional documents of the offences on July 6, 2026. An interview was conducted in front of an officer at the IRCC office in Edmonton on August 10, 2026. During the interview, when asked by the officer why a Yes was given for the question, S3 Bloggins replied "I didn't fully understand the meaning of 'indictable', but I wanted to be honest and disclose everything. So I chose Yes." No representative was present for the interview.
On September 1, 2026, the Sydney officer delivered a procedural fairness letter (PFL) to S3 Bloggins inviting submission until September 15 as the Sydney officer is prepared to refuse the application for S3 Bloggins having been convicted of indictable offences in the four-year period leading to the date of the application. With the aid of a representative, S3 Bloggins submitted a response on September 15, inserting that the offences under NDA are not expressly named indictable offences, are not naturally considered indictable offences, and shown by the amendments in 2022 and particularly s. 249.27, never intended by Parliament to be considered indictable offences. S3 Bloggins also specifically cited para. 34(1)(b) of the Interpretation Act to support the interpretations.
The Sydney officer nevertheless rendered the decision refusing S3 Bloggins' application pursuant to para. 22(2)(a) of Citizenship Act [citizenship decision] on October 6, 2026. In the refusal reasons, the Sydney officer stated that there are reasonable grounds to believe that both offences constitute indictable offences with the meaning of the Criminal Code and Citizenship Act despite the NDA is silent on whether these offences are indictable as they carry significant maximum sentences, especially in the case of s. 83, up to imprisonment for life. S3 Bloggins filed an application [the Citizenship case] for leave of the refusal decision to Federal Court [FC]. Leave was subsequently granted.
After the citizenship decision, the information related to S3 Bloggins' offences was referred to an officer in the IRCC office in Vancouver [Vancouver officer] for potential inadmissibility findings and procedures. The Vancouver officer prepared a report pursuant to subs. 44(1) of IRPA on November 6, 2026 [A44(1) report] and delivered to a Minister's delegate on the same day. On the A44(1) report, the Vancouver officer alleges that S3 Bloggins is inadmissible to Canada for serious criminality pursuant to paras. 36(1)(a) and (c) of IRPA. On the s. 83 offence, the Vancouver officer has reasonable grounds to believe that para. 36(1)(a) of IRPA applies as the conviction was in Canada and the maximum sentence of the offence is at least ten years. On the s. 85 offence, the Vancouver officer noted that although the offence does not meet the criteria for serious criminality, the act itself, being outside of Canada (not in Canada's territorial seas or internal water, as clarified in subs. 35(1) of the Interpretation Act), constitutes to a crime at where the act was committed (onboard a HMCS, under NDA), and equates to an offence [equated offence] of an Act of Parliament that has a maximum sentence of at least 10 years, on a balance of probabilities constitutes a ground of inadmissibility pursuant to para. 36(1)(c) and 36(3)(d). The equated offence, as the Vancouver officer described, is assault with a weapon or causing bodily harm contrary to para. 267(a) of the Criminal Code, which has a maximum sentence of no more than 10 years.
The Minister's delegate delivered a PFL containing the above information to S3 Bloggins on November 21, 2026, giving S3 Bloggins 15 days to provide a response. An extension of 30 more days was sought by S3 Bloggins on November 31, 2026 and was granted. On January 6, 2027, S3 Bloggins responded with the help of a representative. In reply, S3 Bloggins submitted that the report is of no merit and asked the Minister's delegate to not refer the report to the Immigration Division [ID] of Immigration Refugee Board [IRB] for an admissibility hearing for the reasons of, summarily,
- procedural fairness was breached during the citizenship process that led to this A44(1) report;
- on the 36(1)(a) issue, the s. 83 charge is purely military and the intention of inadmissibility by serious criminality is never to include service offences or infractions that does not affect "public health and safety and the security of Canadian society", texts used in para. 3(1)(h) of IRPA as one of the objectives of the Act;
- on the 36(1)(c) issue,
- interpreting 36(1)(c) to include acts committed onboard a HMCS outside of Canada but eventually led to offences convicted in Canada frustrates the intent and purpose of the paragraph intended by Parliament and is incoherent in logic;
- similarly, equating an offence in one Act of Parliament with another when assessing a matter under 36(1)(c) frustrates and intent and purpose of that paragraph;
- an act that constitute an offence convicted in Canada that does not meet the requirement for 36(1)(a) cannot at the same time being considered for 36(1)(c);
- the equated offence is not a reasonably equated offence;
- the facts presented does not equate to the offence on a balance of probabilities.
Nevertheless, the Minister's delegate referred the A44(1) report to the ID of IRB on January 23, 2027. An admissibility hearing was held on March 16, 2027 in Vancouver, BC. S3 Bloggins advanced the arguments made in reply to the Minister's delegate's PFL and additionally argued that, to find S3 Bloggins, a member of the CAF who voluntarily applied to become a member of the CAF as a permanent resident, inadmissible for only committing service offences, and to issue a deportation order – meaning S3 Bloggins would lose permanent residency (vide infra) and could never return to Canada without prior authorization (subs. 226(1) of the Immigration and Refugee Protection Regulations [IRPR]) – against S3 Bloggins would be fundamental breaches to S3 Bloggins Charter rights, specifically the right to liberty and security prescribed in s. 7, and would shock the conscience of ordinary Canadians.
The Minister of Public Security argues in the admissibility hearing that, summarily,
- Any potential breach of procedural fairness breach during the citizenship process does not concern the decision maker of the inadmissibility process including this hearing;
- The interpretation of 36(1)(a) of IRPA and s. 83 of NDA is reasonable; public safety includes safety among peers and good order and discipline in the Canadian Armed Forces, a public organization in charge of Canada' security. Such interpretation is not contrary to the purposes of IRPA;
- The interpretation of 36(1)(c) of IRPA and s. 267 of Criminal Code is reasonable and the equated offence is appropriately equated;
- The Minister believes on reasonable grounds that S3 Bloggins faces no risk to liberty and security after removal and as such the shock-the-conscience test must not apply.
The sitting Member of ID for the admissibility hearing found S3 Bloggins inadmissible pursuant to 36(1)(a) and (c) of IRPA and issued a deportation order pursuant to para. 229(1)(c) of IRPR in a decision dated March 30, 2027.
S3 Bloggins appealed the deportation order pursuant to subs. 63(3) of IRPA at the end of the admissibility hearing, allowed by rule 14 of Immigration Appeal Division Rules, 2022 [IADR]. In the appeal, S3 Bloggins substantially relied on the same arguments presented in the ID hearing, but also specifically argued that the right to appeal under subs. 63(3) of IRPA is not extinguished by s. 64 as it is grossly unreasonable for the ID to find S3 Bloggins inadmissible under para. 36(1)(c) of IRPA. After the appeal was delivered to IAD, it nevertheless dismisses the appeal due to lack of jurisdiction in its April 16, 2027 decision [IAD decision] as the IAD does not accept S3 Bloggins' argument on the right to appeal and thus found S3 Bloggins does not have a right to appeal.
Although the deportation order is not enforceable pursuant to subs. 48(1) of IRPA, meaning S3 Bloggins face no immediate danger of removal from Canada, S3 Bloggins' permanent resident status was nevertheless lost pursuant to para. 46(1)(c) of IRPA when the deportation order made against S3 Bloggins came into force at the moment the order was made, pursuant to paras. 46(1)(c) and 49(1)(a) of IRPA. The said paragraphs are applicable as the IAD found S3 Bloggins had no right to appeal. As such, S3 Bloggins lost permanent resident status on March 30, 2027.
S3 Bloggins applied for leave for judicial review on both the deportation order and the IAD decision [Removal case] to the FC, and leave was subsequently granted. With the application of leave is an application to stay the removal order, and the stay was granted on the same day.
On April 18, 2027, the CAF initiated processes to release S3 Bloggins from the CAF. Citing item 5(d) of Table to article 15.01 of the King's Regulations and Orders [KR&O], the CAF believes that S3 Bloggins is no longer advantageously employable for reasons beyond S3 Bloggins' control, particularly that S3 Bloggins has ceased to be a permanent resident of Canada, no longer authorized to work in Canada, and is no longer readily deployable. Lieutenant Commander Khan, CO of HMCS Bowmanville, delivered the Notice of Intent for release to S3 Bloggins as the designated authority of release and set the day of release on June 4, 2027.
S3 Bloggins attempted to converse with the chain of command and the CO after the NOI was delivered and eventually filed a Notice of Intent for grievance. Exhausting all channels of communications, S3 Bloggins subsequently filed grievance on the release decision and brought the grievance in writing to LCdr Khan, believes the release decision would be unfair. Addressing each of the reasons given for the release, S3 Bloggins argues that:
- Procedural fairness was breached long before S3 Bloggins lost permanent resident status;
- Judicial reviews were still in process to determine the reasonableness of the decision that renders S3 Bloggins inadmissible and led to S3 Bloggins lost the permanent resident status;
- The requirement of permanent resident status is only found in DAOD 5002-1 (vide supra) and is only for enrolment. There is not a regulatory or administrative directive that a citizen of a country other than Canada has to be released after they lost permanent resident status, directly due to the loss of permanent resident status or indirectly due to their deployability, or generally employability to the CAF;
- With an unenforceable removal order, S3 Bloggins is eligible to, has applied for, and was issued an open work permit pursuant to s. 200 and para. 206(1)(b) of IRPR;
- S3 Bloggins remains readily deployable and no changes were anticipated in travel and travel documents, as S3 Bloggins was never successful on becoming a Canadian citizen.
- The action to release S3 Bloggins based on the lack of permanent residence status is discrimination based on national origin and as such should have no force.
- For the reasons above, S3 Bloggins requested a determination that the release does not conform to all legal, procedural, and regulatory requirements. S3 Bloggins sought the halt of the release process, or if S3 Bloggins had already been released, to amend the release item to 4(c), Voluntary - On request - other causes and to offer compensation for damages due to discrimination.
Bloggins subsequently applied leave for judicial review for the FA's decision and was granted leave for review [release case].
Cases and Parties
There are three cases in front of the Federal Court and was consolidated due to their intertwined nature: the citizenship case, the removal case, and the release case.
(S3) Bloggins is the applicant in all cases. Canada, represented by the Minister of Citizenship and Immigration (MCI), the Minister of Public Safety (MPS), and the Minister of National Defence (MND), who are the respondent for the citizenship case, the removal case, and the release case, respectively. The other Ministers are given intervener status for a particular case if they are not named as the respondent of that case.
Questions
Cases in brackets signifies those relevant to a question. A question generally applies to all three cases if none designated in bracket.
I. Jurisdiction
All parties agree that the FC has competent jurisdiction for the citizenship, removal, and release cases, pursuant to s. 22.1 of the Citizenship Act, s. 72 of IRPA, s. 29.15 of NDA, respectively, and generally s. 18.1 of Federal Courts Act.
II. Standards of Review
Canada (MCI) v. Vavilov, 2019 SCC 65 provides a comprehensive structure for the standards of review in FC. Questions of procedural fairness is reviewed by the standard of correctness while all others are by reasonableness.
All parties agree to these standards.
III. Facts
No party contests the facts laid out above.
IV. Procedural Fairness
(a) Citizenship process
(b) Admissibility and removal process
(c) Release process
(d) Transcendency: citizenship to removal
(e) Transcendency: removal to admissibility
(f) Conclusion
V. Article 3.3(b)(i) of DAOD 5002-1 (citizenship, release cases)
causal relationship and interpretation
VI. Indictable Offence and NDA offences (citizenship case)
(a) General interpretation
(b) s. 83 NDA
(c) s. 84 NDA
(d) s. 85 NDA
(e) Sydney Officer's determination
VII. Serious criminality - s. 83 offence (removal case)
mechanical interpretation not contesting, purely military, objective para 3(1)(h)
VIII. Serious criminality - s. 85 offence (removal case)
(a) "outside Canada"
(b) Offences convicted in Canada
(c) Equate offences between NDA and Criminal Code
(c) Equated offence appropriate
(d) 10 years
(e) "grossly unreasonable"
IX. Right to appeal (removal case)
(a) Extinguishment
(b) Effect
X. s. 7 of Charter (removal case)
(a) Risk to liberty
Non-NATO country
(b) Risk to security
(c) "Shock the conscience" test
(d) s. 1 of Charter
XI. Removal order (removal case)
XII. Pending judicial processes and release (release case)
XIII. Release due to lack of permanent resident status (release case)
(a) No requirement by NDA, KR&O or DOAD
(b) Employability and work permit
(c) Suitability for deployment
(d) Release item 5(d) and "not advantageously employable"
XIV. s. 15 of Charter (release case)
(a) Applicability of s. 15
(b) Enumerated or analogous ground
(c) Disadvantage
(d) s. 1 of Charter
XV. CAF's discretion on release (release)
XVI. Disposition
(a) citizenship case
(b) removal case
(c) release case
XVII. Certified questions (citizenship, removal cases)
XVIII.Costs
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