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The Globe
& Mail held a week of articles about
the Canadian
Charter of Rights and Freedoms for the
30th year of the Charter beginning
16 April 2012. These were informative
butt conflicted with experiences of the
Charter as applied,
or not applied, to non-citizens in
expulsion proceedings.
An early
central opinion piece was by former head
of the UN Human Rights Council and former
Supreme Court Justice Louise Arbour. She
found the Charter robust, unlike the
earlier Bill of Rights. The
“notwithstanding” clause, which allows any
legislature to opt any law out of Charter
rights, played a role in the success.
She does not note that the notwithstanding
clause conflicts with Canada’s
international human rights treaty
obligations. To say the Charter served as
a model for other countries seems
possible, but developments in other
countries have gone further in
incorporating international rights. South
Africa adopted a constitution which gives
effect to economic social and cultural
rights, and to the environment. The UK
incorporated the European Convention of
Human Rights and Freedoms into British
law. To my mind this makes the Canadian
response to rights and to international
rights look rather lame. On April 17
the Globe had a two page centrepiece about
the court’s important cases. The Oaks
case was mentioned. This established a
principled procedure for judging limits on
Charter
rights known as the Oaks test. The
case is noteworthy because the Court
subsequently moved from this approach for
the crucial Charter
section 7 right. This right promises
life, liberty and security of the person
unless deprived in accordance with the
fundamental principles of justice. In
subsequent case law the Court carried out
a balancing of factors within Charter
section 7 rather than applying an Oaks
test to any of the substantive rights. It
has seldom since used any formal
principled rights adjudication in a
non-citizen expulsion situation and the
Oaks test has not arisen. For
non-citizens the most rights affirming
decision came before the Oaks
case. It was the 1985 Singh
et al in which the perspective of
the intervenor, the Canadian Council of
Churches, largely prevailed. A number of
those early judges were rights affirming,
in particular the then Chief Justice
Dickson. Others, and my book Singh
to Suresh (Trafford, 2006), showed
that over the few years following the Singh
case the Court moved steadily
further from giving effect to Charter
rights or international human rights
treaty rights when non-citizens were
involved. In the 1999
deportation case of Mavis
Baker the court found the principle
of “best interests of the child” from the
Convention on the Rights of the Child must
be considered in deportation related
humanitarian proceedings. However, the
principle is to be applied along with
other factors deemed relevant. Also, the
decision was to be made by a government
official weighing whether humanitarian
factors in a paper submission should
permit residence and thus preclude
deportation. The process does not allow
any formal adjudication of children’s
rights or family rights. With respect to
fairness and safeguards in the procedure,
the court found reasons should be given,
but accepted the official’s scribbled
notes. It found that a reviewing court
should allow the official discretion but
must find the official’s decision
reasonable. In the 2001
proposed deportation of the refugee,
Suresh, the starting point was federal law
and there was no formal analysis of rights
other than to concede that there was a
basis for supposing a risk of torture. It
was found appropriate for the Minister to
adjudicate the right to protection from
torture while at the same time trying to
deport Suresh on grounds of national
security. The right to protection against
torture was carried into the Court’s
analysis of the Charter
section 7 right to life liberty and
security of the person unless deprived in
accordance with the principles of
fundamental justice. The role of a review
Court was to make sure the Minister was
not being patently unreasonable in
supposing a security risk. The Court
referred to fundamental principles of
justice which emanate from Charter
Section 7 and found that the procedure
conforms if the Minister weighs the risk
of torture in her scales with everything
else. Over the years, instead of giving
effect to international treaty substantive
rights to life liberty and security of the
person as well as international fairness
and procedural safeguard rights, Charter
s.7 has become a grab bag of
factors to be weighed by the courts. The Supreme
Court’s starting point in the 2010 Nemeth
refugee extradition case was not Charter
rights at issue but the federal law.
The Court used only the thinking about the
1951 Refugee Convention exclusion clauses
from an international workshop which had
also considered the adjudication of
international rights in deportation. The
Court gave Charter
rights no development. The Court
interpreted federal law to require the
Minister to weigh risk factors like the
risk of torture in applying the Extradition
Act.
In the revised procedure the Minister
had to weigh the risk of torture of a
refugee to be extradited with his need to
extradite; a reviewing court had to
determine if the Minister’s decision was
patently unreasonable or not. This
thinking is not the stuff of Charters
and rights. In 1980
Canada told the UN Human Rights Committee
that the Charter had been influenced
by the Covenant on Civil and Political
Rights and the similar language would
allow it to give effect to these rights.
In her 1992 book on international rights
and the Charter, Bayefsky observed
that the Supreme Court’s use of
international treaty rights appeared to be
selective. Cases were selected to support
a decision already reached. There is still
no principled use of international human
rights case law. The
decisions are well written but appear more
concerned with political convenience than
protecting the individual’s rights. For
example in the 1998 case of Vriend
the Court upholds and advances rights of
homosexuals, setting aside Alberta’s human
rights law which had excluded them. The
Court gratuitously ensured
non-discrimination for a range of social
rights because it rightly thought it would
be unreasonable to expect homosexuals to
litigate for each social right. The
decision came when the public mood was
turning to support including homosexuals
and this has become a distinguishing
feature of advanced human rights for
Western governments. Contrast that with
the earlier but similar situation in the
1992 decision CCC v
Canada. There the Supreme Court saw
no reason to deal with rights issues it
recognized were present in federal law
governing non-citizens. The
Court ruled that individual non-citizens
should raise individual rights issues
before the courts themselves and observed
that they were doing so. The need to
address and adjudicate family and
children’s rights of non-citizens in
deportation proceedings is still largely
unaddressed twenty years later. The Court
knowingly failed to look at the Charter
rights in the deportation case of Mavis
Baker in 1999 and it declined leave
to hear about children’s rights in the
deportation Francis
case of about the same time. On Friday 19
April the Globe was concerned that the
group of judges whom it supposed
rights-supporting were slowly retiring.
For non-citizens, even those judges had
not gone given rights of non-citizens any
significant effect. True, judge Cory was
one of two dissenters in the 1998 case of
Pushpanathan
who felt the test of a judicial review
should be more serious when deportation to
torture could be the consequence – now the
position of the European Court of Human
Rights. On
the
other hand, judge Iacobbuci’s background
as the deputy Minister of Justice at the
time of major 1989 legislative changes to
the Immigration Act 1976 cast some
disquiet over his role as a rights
progressive when it came to non-citizens’
rights. If one likes to believe in
independent rights-protecting courts, the
fact that the “swing from Singh” at the
Supreme Court took place following Justice
Iacobucci’s and a number of other
appointments of about the same time is
worrisome. Reflecting
after the week of Globe articles on the
anniversary of the 1982 Canadian
Charter of Rights and Freedoms, it
is hard to feel the Charter
has been a total success. Human rights
instruments like the Charter
imply a high priority on upholding the
rights of the individual. Yet the Supreme
Court can choose not to fully apply the Charter
to non-citizens in deportation
proceedings. The Charter
was initially intended to give some
effect to Canada’s international treaty
rights. The Court has not developed that.
There is little connecting the Charter
and case law on rights in treaties
ratified by Canada. The Charter
was accepted as the supreme law in
Canada by almost every government in
Canada. So were the ratifications of the
international human rights treaties. The
deference to federal law and decision
making of officials when rights of
non-citizens are at issue and are
threatened is inappropriate.
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