Canadian Immigration Law and International Law

Section 3(f) of Canada’s Immigration and Refugee Protection Act states that Canadian immigration law is to be construed and applied in a manner which complies with international human rights instruments to which Canada is a signatory.

In de Guzman v. Canada (Minister of Citizenship and Immigration)the Federal Court of Appeal articulated the following principles for what this means:

  • While previously international conventions to which Canada was party to did not give rise to rights and duties enforceable in Canadian courts, this is no longer the case.
  • The values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review.
  • Canadian immigration law does not incorporate into it “international human rights instruments to which Canada is signatory” but merely directs that the law be construed and applies in a manner that complies with them.
  • The words “shall be construed and applied in a manner that complies with” are mandatory and appear to direct courts to give the international human rights instruments in question more than persuasive or contextual significance in the interpretation of the Canadian immigration legislation.
  • Canadian immigration law must only be construed and applied in a manner that complies with international law where Canada has signed the international instrument creating it.
  • It is not necessary that each and every provision of Canadian immigration legislation comply with international law.  Rather, the question is whether an impugned statutory provision, when considered holistically with others, results in the law complying with international law.
  • A legally binding international human rights instrument to which Canada is signatory is determinative of how Canadian immigration legislation must be interpreted and applied, in the absence of a contrary legislative intention.
  • If a provision of immigration legislation contravenes international laws to which Canada has agreed to, then a clear enabling provision by Parliament authorizing the departure is required.

Section 7 of the Charter and Canadian Immigration Law

Section 7 of the Canadian Charter of Rights and Freedoms (the “Charter“) provides that:

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.

There have been several Supreme Court of Canada (the “Supreme Court“) and Federal Court of Appeal decisions involving s. 7 of the Charter and Canadian immigration law.

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