Colin James Ewen, a citizen of the United Kingdom facing deportation from Canada due to a criminal record classified as “serious criminality,” has earned a temporary reprieve thanks to a surprising question raised by a judge during his final court hearing- a query about the use of gender-neutral pronouns in a government document. Ewen, who identifies as male, was scheduled for expulsion the day following his last bid to delay the inevitable at the Federal Court. Justice Richard Bell surprised all those present, including Ewen himself, by granting the stay – an issue that emerged as an unexpected point of contention.
Ewen’s troubles started after the Immigration and Refugee Board (IRB) ordered him to leave the country in October 2019 following an assault charge in the U.K. In Canada’s eyes, the crime amounted to “serious criminality”, justifying his removal, despite the charge classified as “spent” in his home country. Ewen, however, argued in vain that this past conviction should not bear upon his fate in Canada.
Complicating matters for Ewen was a subsequent arrest by the Ontario Provincial Police in March 2022 over another assault charge. On June 6, as the proceedings began, Justice Bell presaged an unanticipated issue, not raised by the prosecution or Ewen, who was arguing his case.
Bell revealed that a document filed a day earlier used gender-neutral pronouns “they/them” along with male pronouns “he/him,” and questioned whether this contravened Ewen’s rights under the Charter of Rights and Freedoms.
The exchange that followed anchored on the question of whether the use of gender-neutral pronouns constituted a violation of identity, which within the social sciences is considered by some as a kind of violence. Government lawyer Nathan Joyal swiftly dismissed the theory, asserting that gender-neutral terms did not infringe upon Ewen’s identity rights.
Bell then asked Ewen how he felt about the pronoun usage, to which Ewen replied that it was slightly confusing and that it even affected his dignity. Consequently, Bell adjourned the hearing and prodded both sides to argue if Ewen’s Charter rights had been infringed, and he delayed the scheduled deportation, a move that triggered a ripple of reactions in legal circles.
Bell’s decision stirred discomfort among the government lawyers and the Federal Court of Appeal. Respected immigration lawyer Stéphane Handfield, unconnected to the case, remarked that he had never seen such a development in his three-decade long career. The government soon appealed Bell’s decision, insisting that the new Charter issue was irrelevant and had no basis in the case.
This unexpected twist triggered further delays, with the government having to restart the process if Ewen were to miss his scheduled flight. The escalation of this immigration issue into a section 15 Charter matter invoked criticism from Federal Court of Appeal judge David Stratas, who called the situation unusual. An expedited hearing has been scheduled, with the case to be presented in mid-September.