On December 10th the Supreme Court of Canada
issued its decision on Kanthasamy. As usual,
when one considers the case and the evidence
put in by the Canadian Council for Refugees
there are some deeper truths than are at
first apparent.
Kanthasamy (K) is a Sri Lankan Tamil from
the North of Sri Lanka who had been detained
and questioned by the army and police there.
When he was released the family sent him to
be with his uncle in Canada. Canada did not
recognize him as a refugee and he faced
deportation. He applied to remain in Canada
on humanitarian grounds, H&C, with
evidence of Post Traumatic Stress Disorder,
PTSD. A government official has discretion
in making an H&C decision on the factors
put before her to allow a person to remain
in Canada. When successful, this ends the
need for deportation. The official found
there was not enough to warrant K’s
remaining on H&C grounds. The Federal
Court, on judicial review, agreed. The
Federal Court of Appeal, on judicial review,
agreed.
A majority of Supreme Court judges, five,
found that the official had applied the
H&C Guidelines in too literal a manner
that was inconsistent with the intent of the
provision in the law. A flexible equitable
application was called for. Since K was 17
he was technically a child and the principle
of the best interests of the child applied.
These five judges found that the best
interests of a child should take a central
place so that if these are not sufficiently
considered, an H&C decision will be
unreasonable. These judges noted that
deportation personally affects a child and
because children will rarely if ever be
deserving of any hardship, the concept of
“unusual or undeserved hardship” is
“presumptively inapplicable.” The officer
had failed to consider K’s circumstances as
a whole and took a narrow approach to assess
the circumstances. She failed to consider
his youth, his mental health and the
discrimination he would suffer. She had
found the psychiatrist’s evidence rested on
hearsay because the professional had not
directly experienced the circumstances. The
five Supreme Court judges noted that health
professionals in Canada had to work within
such constraints. So the case goes back for
another of these officials to consider the
evidence – onto something I call the
judicial review treadmill!
A minority of two judges disagreed. They
said that while the official’s reasons could
have engaged more fully with the
psychological evidence and while it would
have been helpful had she specifically
addressed the issue of the impact of removal
on K’s mental health, her failure to do so
does not render her decision unreasonable.
The risk has to be personal and the
official’s conclusion that K had failed to
provide sufficient evidence to support his
statements that he would be personally
discriminated against was reasonable. The
consideration of best interests of the child
was also reasonable. K was one day from
turning 18 when he applied for H&C
relief and was a teenager on the verge of
adulthood. Removal to Sri Lanka would not
impair K’s best interests because he would
be returning to his immediate family rather
than being separated from them.
Decision-making under this section of the
law is highly discretionary and is entitled
to deference. “… [T]his Court has no license
to find an officer’s decision unreasonable
simply because it would itself have come to
a different result…”
In deportation-related human rights law,
States are expected to know the situation
into which they plan to deport persons.
Using the facts in the case and general
knowledge, a youth from North Sri Lanka is
from the post-war war-zone of a multi-decade
civil war. Detention and questioning by army
and police means one is of interest to the
war-winning authorities and such events are
known to be associated with probability of
torture or cruel treatment or degrading
treatment. It just doesn’t sound good. And
the PTSD diagnosis suggests something bad
happened. To ensure that there is no torture
or cruel treatment, Canada should not send K
back - end of story. Then, families normally
like to stay together. If the family wants
this son with his uncle in Canada, it is
likely considered by them to be in his best
interest. Of course, it is possible that the
rest of the family wants to come to Canada
too, but that is speculation and another set
of issues. In earlier times, Canada would
have provided special measures to allow
relatives of communities linked to Canada to
join relatives in Canada as if they were
family members after serious human or
natural disasters.
The submission of the Canadian Council for
Refugees, CCR, rightly points out that
Canadian courts argue that the H&C
provides a point for protecting various
rights in expulsion – notably family rights
and children’s rights but also protection
from torture or lesser cruel or degrading
treatment. This is another way of telling
the Supreme Court that the H&C is a
convenient cheap substitute for what should
be serious safeguards to protect
non-citizens’ important rights threatened by
deportation.
And the H&C process no doubt provides a
remedy for some, but it evidently does not
for others like K. There is no sense of fair
play or equal treatment for people in
similar situations. And the timelines for
getting decisions in 3 months or 3 or 4
years are as varied and unpredictable as the
decisions themselves.
More than this, the value of H&C as a
protection for rights in expulsion has been
questioned. The UN Committee against
Torture in Falcon Rios v Canada 2007
repeated concerns from its concluding
Observations on the examination of Canada
that the officials were not independent
decision makers and judicial review was an
inadequate remedy to protect from risk of
torture. In Shakeel v Canada
2013 the UN Human Rights Committee found
that H&C was not a remedy that had to be
exhausted before submitting a complaint
internationally, because there had been no
reply to the H&C application in question
after 4 years and because the H&C
application did not offer protection from
deportation pending a decision.
Contrary to the views of the dissenting two
judges, I think the Supreme Court has a
Constitutional obligation to ensure that
important rights from treaties ratified
using the authoritative Constitutional
process (multi-provincial backing) are
protected by fair trial rights. So as the
majority found, the Supreme Court should
find a decision that fails to uphold a right
an “unreasonable” decision. Moreover a
decision concerning protection of an
important right should be “correct” and if
not, the court should correct it. Judicial
review has passed its due date when
important human rights and deportation are
at issue.
The Supreme Court that claims to shape the
law and is supposed to uphold the
Constitution could ensure the rights by
using its constitutional authority to call
for an appropriate judicial process by an
impartial tribunal for protecting rights
like protection from torture and children’s
rights in expulsion. And it’s time to drop
judicial review as a legitimate appeal
process.
