OTTAWA — A Federal Court judge raised an “inappropriate,” “unwarranted” and “unrelated” issue when he suspended a U.K. citizen’s deportation over questions whether the use of gender-neutral pronouns in a single government document violated the man’s Charter rights.
On Thursday, the Federal Court of Appeal issued the uncommonly critical ruling overturning an order last summer by now retired Federal Court judge Richard Bell that raised eyebrows in the legal community.
In their ruling, the appeal judges admitted the case in front of them was borne from a “rather unusual” question.
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 in front of Bell attempting a last-ditch effort to have his expulsion delayed due to a medical issue after years of costly and lengthy legal battles.
Ewen was first ordered expelled from Canada in 2019 over an assault conviction he received while still living in the U.K. that made him ineligible to stay in the country.
As Bell began the hearing, he warned Ewen and government lawyer Nathan Joyal that he wanted to raise a completely new issue of his own, without any prompting by either the government or Ewen, who was self-represented.
The judge told them he noticed that the government occasionally used gender-neutral pronouns “they/them” along with the male pronouns “he/him” pronouns in a document filed on a tight deadline the day before.
Speaking to Crown lawyer Joyal, Bell asked if this constituted a case of misgendering Ewen, which “some social scientists say” is akin to committing violence against them, he said.
After exchanging with an evidently perplexed Joyal and Ewen, who was self-represented, Bell announced he was adjourning the hearing and suspending Ewen’s deportation, ordering that both parties submit arguments on whether the use of gender-neutral pronouns had violated Ewen’s Charter rights. The government appealed that order.
Writing on behalf of the panel of three judges, the appeals court Chief Justice Yves de Montigny said Bell took a “flawed” course of action and went far beyond his powers when raising the Charter question.
“It is obvious that (Bell) put an issue to the parties that was of particular interest to him, and that he knew such issue would come as a surprise to the parties,” the ruling said.
Bell’s decision to suspend Ewen’s deportation to “inquire into whether the Government of Canada’s use of gender-neutral pronouns in its submissions infringed (Ewen’s) Charter rights has no basis” in immigration laws, reads the ruling. By introducing it, the judge therefore “exceeded his jurisdiction and overstepped his role as an independent and impartial judicial decision-maker.”
“He could be seen as going ‘in search of a wrong to right’,” De Montigny wrote.
Furthermore, had Ewen been profoundly affected by the pronouns in the government document, he should and could have raised the issue himself, the appeals judges ruled.
“I appreciate that (Ewen) is self-represented, but if he felt that his dignity was affected or imperiled by the use of gender-neutral pronouns, it was for him to raise it,” it continued.
Because Bell’s order forced the government to miss its planned deportation date for Ewen, immigration authorities must now secure a new deportation date for Ewen.
To that point, the appeals judges made sure to list every step in the process necessary to enforce a new future removal order against Ewen and the new possibilities available to him to postpone his deportation.
“If the (government)t were to choose to take these steps, (Ewen) would have an opportunity to make a request for deferral of removal. He could apply for leave and for judicial review of a negative deferral decision and could once again seek an urgent stay of removal on the basis of a fresh evidentiary record and of an updated set of circumstances,” De Montigny wrote.
Ewen did not respond to a request for comment by deadline.
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