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.