Refugee Rights Day is
a day by and for refugee-serving agencies
in Canada. It was created by NGOs in
Canada to celebrate and remember the
Supreme Court decision Singh given on 4
April 1985, 30 years ago. The case went
before the Court just two years after the
1982 Constitution with a Charter of Rights
and Freedoms came into effect. At that
time there was little international human
rights case law and at the time there was
no other refugee day either in Canada or
at the UN.
The day offers a special annual time for
stock-taking about rights and non-citizens
in Canada. It remains one of the rare
moments in Canada where NGOs make sure
that rights are seriously discussed.
The Singh decision itself set a benchmark
for what makes a fair hearing for a
refugee asking for protection in Canada.
Back in 1984, the process began with an
Immigration Officer interviewing the
refugee and sending a written report to a
committee set up by the Minister in
Ottawa. The committee looked at the report
and advised the Minister who gave his
decision. The then Immigration Appeal
Board IAB could choose whether to hear an
appeal or not. The decision could involve
information that the refused refugee never
saw. If allowed to appeal, the refugee
could in theory send information to the
Board, but had to prove that the Minister
was wrong without knowing anything about
the Minister’s case beyond the rudimentary
reasons given with the decision. In the
Singh decision Judge Wilson said she found
that this not knowing the case against one
was impossible to reconcile with the
requirements of ‘fundamental justice’.
(paras. 104-5,107).
The Canadian Council of Churches was
allowed to intervene before the Court to
argue that the 1951 Refugee Convention
connects refugee status determination
being made in Canada to a fear of
deprivation of life liberty and security
of person in the refugee’s home country,
outside a Canadian Court’s normal
jurisdiction. This view prevailed.
The Court gave a ruling that seemed self
evident: “Everyone in [Charter] s.7
includes every human being who is
physically present in Canada and by virtue
of such presence amenable to Canadian
law.” So refugee claimants fell under the
Canadian Charter. Their rights at issue
included “the right not to be removed to a
country where life or freedom may be
threatened,” and “… denial of such a right
must amount to a deprivation of security
of person within the meaning of s. 7 [of
the Charter of Rights and Freedoms]."
The Court found that at least one oral
hearing before the decision-maker was
required. Half the judges based their
reasoning on the Canadian Bill of Rights
s. 2e and half on the Canadian Charter of
Rights and Freedoms s. 7.
· Under Bill
s. 2 “… no law [of Canada] shall be
construed or applied so as to … (e)
deprive the person of a fair hearing in
accordance with the principles of
fundamental justice for the determination
of his [or her] rights and obligations.”
· Under
Charter s. 7 “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.”
And the Court made it so. It struck out of
the law the ability of the IAB to choose
whether to hear an appeal. So every
refugee would have at least one hearing
before the IAB where the “principles of
fundamental justice” supposedly applied.
The day the judgment was released a Globe
& Mail article reported: “Immigration
Minister Flora MacDonald said she has
ordered her officials to comply with the
decision and find new procedures for
weeding out those who falsely say they are
refugees.” So began work towards a new law
which provided an Immigration and Refugee
Board. This law and several modifications
to it have included attempts to screen out
or handicap groups of refugee claimants.
The “at least one hearing” from the Singh
judgment led to a process with one hearing
but no meaningful appeal process. There
was just a request to the Federal Court
for permission to have a judicial review
on points of law. International human
rights bodies and the UN High Commissioner
for Refugees prodded away at Canada saying
that they thought that Canada’s
obligations required an appeal on the
merits. A somewhat truncated form of
appeal on the merits was legislated in
2012. There have been measures limiting
the appeal and making the timelines harder
for some groups.
International human rights bodies have
also complained about the “security
certificate” process for some time. The
Supreme Court looked at fair hearing for
Security Certificates and the related
detention in Charkaoui in 2007. The
Immigration and Refugee Protection Act
(IRPA) 2002 allowed Ministers to issue a
certificate declaring that a non-citizen
is “inadmissible” to Canada on grounds of
national security, among other things (s.
77). This automatically led to the
detention and deportation of the
non-citizen.The certificate and the
detention were reviewed by a judge of the
Federal Court, but at that time the
process could hide from the non-citizen
some or all of the information which gave
rise to the certificate (s. 78). This was
similar to the 1984 situation faced by
refugee claimants in the Singh case.
The Charkaoui decision focused on the
detention alone, not the deportation.
The Certificate and the review of
detention engage Charter of Rights s.7 and
that requires a fair trial before an
independent and impartial magistrate and
“the right to know the case put against
one, and the right to answer that case.”
Automatic imprisonment for 6 months with
no review violates Constitutional rights
because there are ways of limiting
information that affect the rights at
issue less. The Court upheld the security
certificate process itself but gave the
government a year to find ways to give the
non-citizen more access to the case
against her. The Court also found that
long periods of imprisonment pending
deportation do not violate rights to
liberty and to no cruel treatment so long
as there was the review of all factors in
the need to imprison and there was a
“searching” judicial review of the
“reasonableness” of the detention as set
out in IRPA 2002.
The Court found that non-citizens don’t
need to get the same treatment as
citizens, who may benefit from the ancient
Habeas Corpus process. The ratioinal was
that the Charter of Rights s. 6 allows
difference in the right to enter and leave
the country. However, the Charter s.6 is
not in line with the corresponding UN
Covenant on Civil and Political Rights
Art. 12.
The Court noted that there were ways of
balancing the hiding of one’s sources of
intelligence information and giving that
information – mentioning the special
advocates used in the UK. However, by this
time there was evidence that this process
in the UK was not adequate (Justice,
Secret Evidence, 2009). The UK
process is what the Canadian authorities
adopted. The UK use of secret evidence has
been recently criticized in National
security and secret evidence in
legislation and before the courts:
exploring the challenges, a 2014 Study for
the LIBE committee of the European
parliament.
The UN Committee against Torture examined
Canada in 2012 and found that the
arrangements after Charkaoui still raised
concerns:
1.
“Special advocates have very limited
ability to conduct cross-examinations or
to seek evidence independently;”
2.
People with security certificates “cannot
properly know the case against them or
make full answer or defence in violation
of the fundamental principles of justice
and due process; … "
The Supreme Court looked at Security
Certificates again in the Harkat case in
2014. In this case the Supreme Court
determined that Candian Security
Intelligence Service had wrongfully
destroyed its evidence, keeping only its
summaries. So there was no information to
provide. That led to no sanction of CSIS
and it didn’t really help Harkat whose
case was sent back for another review. The
Supreme Court hardly touched the security
certificate process. It simply gave
directions to the judge reviewing a
certificate to conduct the process so as
to make it conform with the required fair
hearing – releasing or withholding
information so the person might know the
case against her adequately and be able to
respond to it. Yet in making the process
flexible and relying on the judge to
adjust the access to the information so as
to be fair there comes a point where the
flexibility undermines the predictability
and equal treatment which are also
elements of a fair trial.
In March 2015, the Canadian Council for
Refugees strongly opposed changes to the
IRPA subsequently passed by the Commons in
Bill C51, the anti-terrorism bill. The
Minister may ask for non-disclosure of
evidence beyond the security certificate
process and in any immigration
admissibility hearing, detention review or
appeal before the Immigration Appeal
Division.
Those who research the use of secret
evidence said there is no way it can be
made fair. “Until the criminal justice
system is seen as the primary weapon in
the fight against terrorism, the
government’s desire to resort to secret
and unfair methods is unlikely to abate.”
(Justice, Secret Evidence, 2009, para.
456) The answer is simple. Rely on the
established criminal justice procedures.
This has several advantages: it prosecutes
those who should be prosecuted; it watches
those who should be watched; and it does
not discriminate against non-citizens.
Furthermore, the Inter-American Commission
on Human Rights in its 2010 Report on
Immigration in the United States:
Detention and Due Process, (OAS Doc.
OEA/Ser.L/V/II.Doc. 78/10) found that the
full range of protections from a criminal
trial were a minimum for fair immigration
proceedings when there is any sanction
such as deportation. (para. 57, 58)
It might be supposed
that there is a problem because if there
no prosecution possible or if the case is
dismissed, the person goes free. But that
is exactly how we treat our citizens in
the criminal courts. And we have lived for
years with accused persons whose cases
were dismissed. The government seems to go
out of its way to avoid criminal costs. It
deports or extradites rather than
prosecutes. It is soft on criminals and
cheap on justice. The Singh case had an
answer on cheap justice: “No doubt
considerable time and money can be saved
by adopting … procedures which ignore the
principles of fundamental justice, but
such an argument misses the point of the
exercise under [Charter] s.1.” Because of
Singh we have a refugee hearing without
permission of the tribunal. And now there
is a form of appeal. While Canada seems
cheap on justice, it can quickly enter a
costly war. Yes, Singh got it right -- got
it right for us today. Cost and
convenience are just not valid arguments
against justice and fundamental rights.
Our courts should do their job and tell
the government so again.
