Singh v. Canada: The Charter Applies to Refugee Claimants

In today’s Toronto Sun, Ezra Levant writes that:

In a 1985 case called Singh v. Minister of Employment and Immigration, the court ruled that our Charter of Rights applied to foreigners, not just Canadian citizens.

Foreigners overseas could now use the Charter to enforce their “rights” against our country.

The six judges hearing that case were split on the subject, three against three. But a tie is broken by the Chief Justice. So one, unelected man changed Canada’s immigration system, granting foreigners the right to sue their way into our country, from wherever they might be in the world.

This description of how the Court was divided in Singh is misleading. While the court was split on whether to apply the Charter or the Canadian Bill of Rights to the refugees, all six justices found that the refugee claimants in that case had a right to a hearing.

Paragraphs 34-62 of the judgment set out the analysis of whether the Charter applies to refugee claimants.

Wilson J’s analysis began by noting that s. 32(1)(a) of the Charter states that:

32. (1) This Charter applies

(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament…

Given that immigration is a matter falling within the authority of Parliament, then it naturally follows that the creation and administering of immigration rules are subject to the Charter.

Since immigration is clearly a matter falling within the authority of Parliament under s. 91(25) of the Constitution Act, 1867, the Immigration Act, 1976 itself and the administration of it by the Canadian government are subject to the provisions of the Charter.

He then noted the wording of section 7 of the Charter compared to other sections. Some of these sections were:

6(1) Every citizen of Canada has the right to enter, remain in and leave Canada.

7(1) 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.

The appellants argued that use of the word “everyone” as opposed to “every citizen” means that s. 7 applies to a broader class of persons than citizens and permanent residents.  The government conceded this point (something that I’m sure would shock Mr. Levant).

Thus, Wilson J found that section 7 of the Charter applies to every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law.

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