Singh v. Canada: The Charter Applies to Refugee Claimants

Singh v. Minister of Employment and Immigration was a 1985 Supreme Court of Canada decision that is to this day arguably the most significant decision that Canada’s Supreme Court has made in the area of Canadian immigration and refugee law.

The Facts

The Appellants were a mixture of Sikh and Guyanese individuals who sought refugee status in Canada during the late 1970s and early 1980s. At the time, the Immigration and Refugee Board did not yet exist.  Rather, asylum claimants submitted refugee claims directly to Canada’s immigration department, who would determine whether someone was a refugee based on advice received from the Refugee Status Advisory Committee.  If the claimant was unsuccessful, they could appeal to the Immigration Appeal Board.  Both the initial claim and the appeal were based on written submissions, and at the initial petition for asylum a claimant would also be questioned under oath by an immigration officer.  Applicants were not allowed to make oral appeals.  Nor could they respond to arguments made against them by the Refugee Status Advisory Committee.

The Appellants in Singh argued that the lack of a hearing violated Canada’s Charter of Rights and Freedoms. 

The Supreme Court’s Decision

The Supreme Court of Canada’s decision was a split one, although all six justices determined that the previous approach which denied an oral hearing could not stand.  Three of the justices based their decision on the Charter.  Three based it on Canada’s Bill of Rights. 

The key and lasting holdings of the Supreme Court of Canada were  that while non-citizens do not have a right to enter or remain in Canada, a refugee who does not have a safe haven elsewhere is entitled to rely on Canada’s willingness to live up to the obligations it has undertaken as a signatory to the United Nations Convention Relating to the Status of Refugees and that the principles of fundamental justice demand, at a minimum, compliance with the common law requirements of procedural fairness.  In the refugee context, this right to procedural fairness includes access to an oral hearing.

In response to the government’s concern that the Supreme Court of Canada imposing a requirement that every refugee claimant in Canada get a full hearing would be prohibitively expensive, the Supreme Court responded by stating the following (which continues to be cited with concern by those who are worried about the cost of “judicial activism”):

… the guarantees of the Charter would be illusory if they could be ignored because it was administratively convenient to do so. No doubt considerable time and money can be saved by adopting administrative procedures which ignore the principles of fundamental justice but such an argument, in my view, misses the point of the exercise under s. 1 [of the Charter]. The principles of natural justice and procedural fairness which have long been espoused by our courts, and the constitutional entrenchment of the principles of fundamental justice in s. 7 [of the Charter], implicitly recognize that a balance of administrative convenience does not override the need to adhere to these principles. Whatever standard of review eventually emerges under s. 1, it seems to me that the basis of the justification for the limitation of rights under s. 7 must be more compelling than any advanced in these appeals.

….

Even if the cost of compliance with fundamental justice is a factor to which the courts would give considerable weight, I am not satisfied that the Minister has demonstrated that this cost would be so prohibitive as to constitute a justification within the meaning of s. 1. Though it is tempting to make observations about what factors might give rise to justification under s. 1, and on the standards of review which should be applied with respect to s. 1, I think it would be unwise to do so. I therefore confine my observations on the application of s. 1 to those necessary for the disposition of the appeals.

To recapitulate, I am persuaded that the appellants are entitled to assert the protection of 7 of the Charter in the determination of their claims to Convention refugee status under the Immigration Act, 1976. I am further persuaded that the procedures under the Act as they were applied in these cases do not meet the requirements of fundamental justice under s. 7 and that accordingly the appellants’ rights under s. 7 were violated. Finally, I believe that the respondent has failed to demonstrate that the procedures set out in the Act constitute a reasonable limit on the appellants’ rights within the meaning ofs. 1 of the Charter. I would accordingly allow the appeals. In so doing I should, however, observe that the acceptance of certain submissions, particularly concerning the scope of s. 7 of the Charter in the context of these appeals, is not intended to be definitive of the scope of the section in other contexts. I do not by any means foreclose the possibility that s. 7 protects a wider range of interests than those involved in these appeals.

The Aftermath

Four years after the Singh ruling, Canada created the Immigration and Refugee Board, which still exists today.  Refugee claimants are entitled to a hearing before the Refugee Protection Division, and, since 2013, also have an appeal to the Refugee Appeal Division.

 

 


DCO Refugee Claimants and Access to the RAD [Updated – January 5, 2016]

The Federal Court in Y.Z. and the Canadian Association of Refugee Lawyers v. The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness, 2015 FC 892 (“Y.Z.“) has certified the following two questions:

Does paragraph 110(2)(d.1) of the Immigration and Refugee Protection Act (“IRPA“) comply with subsection 15(1) of the Charter?

If not, is paragraph 110(2)(d.1) of the IRPA a reasonable limit on Charter rights that is prescribed by law and can be demonstrably justified under section 1 of the Charter?

The Court also announced that effective immediately refugee claimants from designated countries of origin can access the Refugee Appeal Division (the “RAD“).

Continue reading “DCO Refugee Claimants and Access to the RAD [Updated – January 5, 2016]”


Due Process When Everything is a Crime: Court Strikes Down Human Smuggling Law

The British Columbia Supreme Court (“BCSC“) in R v. Appulonappa has struck down s. 117 of the Immigration and Refugee Protection Act (“IRPA“).  Section 117 theoretically prohibited human smuggling.  Its exact wording was:

117. (1) No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by this Act.

(2) A person who contravenes subsection (1) with respect to fewer than 10 persons is guilty of an offence and liable

(a) on conviction on indictment

(i) for a first offence, to a fine of not more than $500,000 or to a term of imprisonment of not more than 10 years, or to both, or

(ii) for a subsequent offence, to a fine of not more than $1,000,000 or to a term of imprisonment of not more than 14 years, or to both; and

(b) on summary conviction, to a fine of not more than $100,000 or to a term of imprisonment of not more than two years, or to both.

(3) A person who contravenes subsection (1) with respect to a group of 10 persons or more is guilty of an offence and liable on conviction by way of indictment to a fine of not more than $1,000,000 or to life imprisonment, or to both.

(4) No proceedings for an offence under this section may be instituted except by or with the consent of the Attorney General of Canada.

As the BCSC noted, it is legitimate, necessary, and laudable for the Canadian government to attack and criminalize what is commonly referred to as human smuggling.

The problem with the wording of s. 117 of IRPA though is that it was incredibly vague.  Did it make humanitarian workers who provided food to people who came to Canada without the proper documents criminals?  If a refugee claimant who used a smuggler to come to Canada visited a family member then was that family member a criminal?  What about lawyers who represented such individuals in court?

The Canadian government argued that such people were obviously not intended to be prosecuted by the legislation, and that they would never would initiate proceedings against them.  However, while the government’s expressed intention to not prosecute such people was clear, this intention was not written anywhere in Canadian immigration law.  As the BCSC stated:

If the arrival of a legitimate refugee at a port of entry without the required documentation does not attract criminal liability (s. 133 of IRPAand Article 31 of the Refugee Convention), why is it a crime to assist such a refugee to arrive?

It is clear that s. 117 makes no distinction for the persons involved or reasons behind the transport to and entrance into Canada, or whether or not the accused person has profited from the transportation of persons into Canada.  This is different from the definition in the Migrant Smuggling Protocol which indicates that smuggling is an activity which occurs in order to obtain “a financial or other material benefit”.

The Crown points to no valid objective for the section to be so wide that it captures such persons referred to in the hypotheticals.

The overbreadth of the section makes it impossible for persons to know if certain activities (those of humanitarian aid workers and close family members) will result in charges under s. 117, despite Canada’s intention to the contrary.  One of the reasons for the rule against overbroad sections is that persons are entitled to prior notice as to what are the limits of proper behaviour, and what is criminal behaviour.

The BCSC accordingly found that s. 117 of IRPA was overbroad, and struck the law entirely.

The Crown is now appealing.

While it is certainly annoying to watch individuals “get away” with a crime because of poorly drafted legislation, I believe that the problem of overbroad legislation combined with complete prosecutorial discretion is far more serious, and warrants serious attention from the public.   Conservative writer David French recently wrote in the National Review on this issue that:

Can we even speak of the rule of law as a meaningful concept when we combine an explosive regulatory state with near-absolute prosecutorial discretion? As many others have noted, the regulatory state makes ever-more conduct — even benign conduct — unlawful, while absolute discretion grants the prosecutor the right of the King’s pardon. Overlay that legal reality with a stark red/blue divide, and the situation is ripe for the most base forms of political and personal favoritism. Glenn Reynolds (Instapundit) has been all over this issue, and I love his phrasing: “Due process when everything is a crime.”

Glenn Reynolds, author of Instapundit, recently published a short article on this issue.  I encourage you to read it in its entirety.

Reynolds, Glenn Harlan, Ham Sandwich Nation: Due Process When Everything is a Crime (January 20, 2013). Available at SSRN: http://ssrn.com/abstract=2203713


Section 24 of the Charter and Immigration

On June 11, 2010, the Supreme Court of Canada released its decision in R v. Conway, 2010 SCC 22 (“Conway“).  Conway explored the relationship between the Charter, its remedial provisions, and administrative tribunals. 

Sections 24(1) and 24(2) of the Charter deal with remedies. Section 24(1) states that anyone whose Charter rights or freedoms have been infringed upon or denied may apply to a “court of competent jurisdiction” to obtain a remedy that is “appropriate and just in the circumstances”. Section 24(2) states that in those proceedings, a court can exclude evidence obtained in violation of the Charter if its admission would bring the administration of justice into disrepute.

In Conway, the appellant argued that several of his Charter rights were breached when he was detained in mental and health facilities, and sought an absolute discharge as the remedy.   The Ontario Review Board (the “Board“) found that it had no Charter jurisdiction to issue a s. 24(1) remedy.  The Ontario Court of Appeal found that the Board lacked jurisdiction to grant an absolute discharge as a Charter remedy because granting such a discharge would, in the appellant’s case, be a significant threat to the public and frustrate the intent of Parliament.

After reviewing the jurisprudence surrounding the application of s. 24 to administrative tribunals, the Supreme Court of Canada articulated a two-part test to determine whether an administrative tribunal has the jurisdiction to issue a particular s. 24 remedy. The two parts are:

  1. Does the administrative tribunal has explicit or implicit jurisdiction to decide questions of law? If it does, and unless it is clearly demonstrated that the legislature intended to exclude the Charter from the tribunal’s jurisdiction, then the tribunal is a court of competent jurisdiction which can consider and apply the Charter – including its remedies – when resolving the matters properly before it.
  2. Can the tribunal grant the particular remedy sought, given the relevant statutory scheme? In analyzing this, what will be at issue is whether the remedy sought is the kind of remedy that the legislature intended would fit within the statutory framework of the particular tribunal. Relevant factors include the tribunal’s statutory mandate, its structure, and its function.

Applying this test in Conway, the Supreme Court of Canada found that the Board was a quasi-judicial body that was authorized to decide questions of law, and that there was nothing to conclude that Parliament intended to withdraw Charter jurisdiction from the scope of the Board’s mandate.  However, the Court also found that the Criminal Code precluded the Board from granting an absolute discharge, and that the Board therefore could not grant one as part of a s. 24 Charter remedy.

The question that arises is to what extend can either the Immigration and Refugee Board or immigration officers issue Charter remedies?

Continue reading “Section 24 of the Charter and Immigration”


Certified Question on Section 7 Charter Rights

Does the Immigration and Refugee Board (“IRB”) violate the provisions of section 7 of the Canadian Charter of Rights and Freedoms (the “Charter”) if it declines to postpone a hearing based on risk to life where there is a pending humanitarian and compassionate application also based on risk to life?

The above question was certified by the Federal Court in Laidlow v. Canada, 2012 FC 144, released today.  The Federal Court of Appeal will soon answer the question.

The facts in Laidlow giving rise to the question were essentially that an individual had a pending H&C claim which was based on risk to life (availability of medical treatment reasons) at the time that he appeared for his refugee hearing.  He asked that the refugee hearing be adjourned until the H&C application was determined.  The IRB refused to do so, and heard the refugee claim, which was dismissed.

The Court’s answer to the question was that refusing to adjourn the hearing did not breach section 7 of the Charter.  Relying on Poshteh v. Canada, [2005] 3 FCR 487, and Gosselin v. Quebec (Attorney General of Canada), [2005] 4 SCR 429, the Court articulated the following principles:

  • A finding of inadmissibility does not engage an individual’s section 7 Charter rights.  The reason is because a number of proceedings may take place before an individual reaches the stage at which his deportation from Canada may occur.
  • Section 7 does not place upon the state a positive obligation to ensure that each persons enjoys life, liberty or security of the person.  Rather, it restricts the state’s ability to deprive people of these.

Considering that the jurisprudence is fairly settled on the first point, I find it surprising that the Court certified the question that it did.  I also do not see how from a practical standpoint the question can be answered in the affirmative.  Requiring that the IRB postpone refugee hearings every time a claimant files an H&C application based on risk to life would create a scheduling nightmare for the Division.  You could forget about the soon to be introduced 60 day and 90 day deadlines for refugee hearings.  Everyone would take advantage of this.  Indeed, I would probably consider a representative who did not encourage a refugee claimant to file an H&C application in order to buy more time to prepare for the hearing to be negligent.  And it wouldn’t just be limited to medical availability… Lawful sanctions… Generalized risk.. any H&C claim really could be used to buy time.

And that, combined with the established jurisprudence that the existence of further avenues to stay in Canada, and that s. 7 of the Charter does not create positive obligations on the state, is why I would be stunned if the Federal Court of Appeal answered the above question in the affirmative.