Certified Question on Section 7 Charter Rights

13th Feb 2012 Comments Off on 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,

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