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November
2010
the Supreme Court of Canada released a
judgment giving effect to non-refoulement
from the 1951 Convention relating to the
status of refugees under the Extradition
Act. There
is a summary at para. 114 of the
judgment. Unfortunately, the case avoids
other international treaty rights and
the due process which should be
attracted when expulsion could, for
example, lead to torture or to cruel or
unusual treatment or punishment. The
Minister’s discretion in balancing
factors is preserved and he or she is to
act fairly. A court’s role remains
limited to a review of the
reasonableness of the Minister’s
decision and a court is to be
deferential to the Minister. The case involves the request for extradition to Hungary of the Némeths, a Roma family from that country who were determined to be refugees by Canada in 2002 and were permanent residents when their case was heard. The charge in Hungary was of fraud on allegations they leased for C$2,700 a flat which they did not have the right to lease. It is shocking that refugees living in Canada for some 8 years could face extradition for so little. The notion behind extradition is that a person should normally expect to be tried where he or she committed a crime. Refugee status does not per se preclude extradition. That said, migrants are not just “people” in extradition. International human rights bodies have now found that migrants are a vulnerable population and so deserve special attention and care. Moreover, asylum seekers and refugees are among the most vulnerable migrants. Also, this case is special in that the effect of extradition would be refoulement directly to the Némeths’ home country, from which they were found to be refugees. Little sense of special vulnerability comes across in the Németh judgment. It is disturbing that the Supreme Court limited its reasoning to reconciling 1951 Convention Art. 33 non-refoulement and extradition, (para. 11). That some rights might be at issue was raised, but in a very secondary way and in passing. Liberty and security of the person are mentioned as at issue when the Minister may consider the conduct of the requesting state either under Extradition Act s.44(1)(a) or Charter s. 7 - and whether the consequences of the extradition for the person offends the principles of fundamental justice, (para. 73). However, the judgment puts its main emphasis on s. 44(1)(b). In this case the Supreme Court was aware that the UN Model Treaty on Extradition has provisions precluding extradition in some circumstances. At the time of Kindler the Court did not consider the provision 4(d) referring to the then highly pertinent death penalty and need for assurances. In Németh the Court failed to give effect to either that 4(d) provision or to the explicit provision 3(f) for mandatory refusal to extradite. Art. 3(f) is highly relevant because it involves Canada’s Covenant on Civil and Political Rights treaty obligations which relate to Canadian Charter rights: “(f) If the
person whose extradition is requested has
been or would be subjected in the
requesting State to torture or cruel,
inhuman or degrading treatment or
punishment or if that person has not
received or would not receive the
minimum guarantees in criminal
proceedings, as contained in the
International Covenant on Civil and
Political Rights, article 14;”
This mandatory preclusion of refoulement has two parts, each relating to an international treaty right. As I see it, the Extradition Act s.44(1) requires at least two corresponding and related questions: (1) Is there a substantial probability of cruel, inhuman or degrading treatment or punishment? (2) Will the person get a fair trial if extradited? For a refugee, unless there have been significant changes in the home country situation, refoulement will be per se cruel, inhuman or degrading treatment. Unfortunately the Németh judgment is not clear on this. In Németh the Supreme Court also refers to the report on a February 2007 workshop session at the OSCE ODIHR on non-refoulement led by William Schabas. But the Court draws selectively from the report. The non-refoulement session was largely concerned with human rights obligations beyond the 1951 Convention. The report was concerned with: “non-refoulement with respect to the right to life, torture and other cruel or inhuman treatment or punishment, enforced disappearance, right to liberty and security, other violations causing irreparable harm”, (ODIHR para. 14). Thus non-refoulement now involves international rights in treaties which Canada has ratified. and the Immigration and Refugee Protection Act 2002 recognises this by providing for a `protected person` as well as refugee status. The international rights link with Canadian Charter rights which should inform Extradition Act s. 44(1). Moreover, in his subsequent book War Crimes and Human Rights: essays on the Death Penalty, Justice and Accountability (Cameron, 2008) Schabas, in a chapter on non-refoulement discusses non-refoulement and the absolute protection which treaty bodies are applying. This ``surrogate`` protection stems from Convention against Torture Art. 3 and corresponding provisions of the general human rights treaties. Schabas observes: “… the human rights regime governing non-refoulement has largely overtaken that of the Refugee Convention which is gradually becoming superfluous” (Schabas p. 1135). While the documents considered by the Supreme Court clearly show that several international treaty rights are engaged when expulsion is contemplated, the Court considers only 1951 Convention Art. 33 non-refoulement. It draws selectively on the ODIHR workshop, the UN Model Extradition Treaty, UNHCR and scholarly books. The Court does give some limited effect in Canadian law to non-refoulement in extradition and finds the burden of proof falls on the Minister and that the threshold for 1951 Convention non-refoulement is the same as for Art.1 status determination, (See the Court’s Summary at para. 114) .That said, the Court’s approach based only on the 1951 Convention is simply inadequate and behind the times. Ignoring the rights at issue in Németh avoids facing the required due process. The European Court of Human Rights has established that refoulement of an asylum seeker to a third country can violate the right to protection from torture or cruel or inhuman treatment or punishment. Rigorous independent scrutiny is required. See MSS v Belgium & Greece 21 January 2011 paras. 293, 386 - 389. Our own Supreme Court in the 1985 Singh et al decision said the right to a refugee’s security of the person was threatened by expulsion and thus a refugee claimant must be given at least one oral hearing by the then independent tribunal – the Immigration Appeal Board - to determine if he or she was a refugee. The UN Committee against Torture has repeated the view that ensuring protection from torture or cruel or inhuman treatment or punishment itself requires “… effective, independent and impartial review.” See Agiza v Sweden 24 May 2005, para. 13.8, also Falcon Rios v Canada 17 December 2004, para. 7.3. So a court review on the merits is required when expulsion is contemplated to a plausible serious probability of torture or cruel or inhuman treatment or punishment. In contrast the Supreme Court describes the third or surrender phase of the Canadian extradition process, at issue in Németh,, as political and discretionary (Para. 64 and 65).: “64 … At the
surrender stage, the extradition process
is essentially political in nature; the
Minister must take into account the
requirements of good faith and honour of
Canada in responding to the request under
an extradition treaty and must weigh the
political and international relations
ramifications of the decision whether or
not to surrender.”
These are not acceptable concepts for a process which may have to ensure an individual’s fundamental international human rights. Within the inadequate due process, the Minister is the decision-maker whom any reviewing court is to treat with deference. Moreover for the Supreme Court in Németh, the Minister and a court reviewing his or her reasonableness are called upon to balance a grab bag of factors they chose from the circumstances of the case including, among others, international treaty rights and the Canadian Charter in order to decide whether to extradite or not. Such balancing is inappropriate for ensuring fundamental rights. In the 2007 ODIHR workshop on non refoulement, to which the Court refers, there is an explicit reference to the inappropriateness of balancing to reconcile interests of national security and those of human rights, (See ODIHR Para. 10). This is surely equally inappropriate for balancing extradition requests and human rights. It is surprising that the Court fails to raise any of the Charter rights and due process concerns since these arose in the Court`s earlier extradition and refugee case law. In Pushpanathan, there were judges who questioned the limited due process relating to decisions affecting key rights. In the extradition case of Burns the Court discussed at length Charter s. 7 and Charter s. 12. In Baker, Judge Iaccobucci opined that the outcome might have been different had the arguments been raised in the context of the Charter. In Németh there is no serious discussion about these rights, the Charter or due process. I do not accept that a Supreme Court responsible for upholding a Constitution with rights and freedoms must wait for someone to tell it what rights are at issue and what should be done before it can act. The Court can in principle act to protect the rights of the individual. The highest court has enough wit to see that fundamental international and Charter rights are at issue and it should give them effect as the rights they are. Especially when fundamental rights of members of a vulnerable population in Canada are at issue, the Extradition Act and its intentions should not be the starting point of the reflection. The Extradition Act is a local law which must be made to comply with the Charter and the wider international treaty rights which the Charter was, in its early days, intended to import. Adjudication of Charter rights should require at least one independent and impartial tribunal hearing. As the UN Committee against Torture has repeated, nothing short of an independent and impartial review of the merits is adequate to ensure the obligation to protect persons from exposure to a plausible risk of torture or cruel or inhuman treatment or punishment. In the Extradition Act, the review court’s test of “reasonable” has to become the test of “correct.” The context has to become one of determining a serious probability of violation of fundamental rights, not a balancing act. Instead of deference to the Minister, we need deference to the Constitution when an individual’s fundamental rights are at issue. In sum, I cannot find much in the Németh decision about the 1951 Convention and protections in refugee extradition which would move Canada significantly closer to the harmony with international human rights treaty obligations which my 2006 book Singh to Suresh explored. Rather, the gap is widening. The more recent 2010 and 2011 international human rights case law shows higher standards of due process. are required. The Inter-American Commission on Human Rights has reinforced the need for an independent tribunal hearing for deportation decisions. Refoulement of an asylum seeker can be a violation of the right to protection from torture or cruel or unusual treatment. The European Court on Human Rights has reinforced the need for full independent scrutiny of the substance of the right in decisions when a plausible violation of the right to protection from torture or cruel or inhuman treatment would be a foreseeable consequence. Top Click:  |
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