McGill Law Journal ~ Revue de droit de McGill
HOW THE CHARTER HAS FAILED NON-CITIZENS IN
CANADA: REVIEWING THIRTY YEARS OF SUPREME
COURT OF CANADA JURISPRUDENCE
Catherine Dauvergne*
This article reviews the Supreme Court of
Canadas treatment of claims by non-citizens
since the introduction of the Canadian Charter
of Rights and Freedoms. While the early deci-
sions in Singh and Andrews were strongly sup-
portive of rights for non-citizens, the subse-
quent jurisprudence has been strikingly disap-
pointing. This study shows that the decline in
rights protections for non-citizens is a predicta-
ble consequence of some of the Courts early in-
terpretative positions about the Charter. This
study considers all Supreme Court of Canada
decisions in the thirty-year time frame. The
analysis is rounded out by a consideration of
cases that were not granted leave and cases
that engage directly with an issue of non-
citizens rights even where a non-citizen was not
a party. The concluding section shows that non-
citizens in Canada now have less access to
rights protections than do non-citizens in some
key comparator countries.
Cet article examine la manire dont la
Cour suprme du Canada a trait des revendi-
cations de non-citoyens depuis lintroduction de
la Charte canadienne des droits et liberts. Alors
que les dcisions Singh et Andrews protgeaient
fermement les droits des non-citoyens, la juris-
prudence est depuis extrmement dcevante.
Cette tude dmontre que la protection dcrois-
sante des droits des non-citoyens est une cons-
quence prvisible de certaines interprtations
de la Charte effectues par la Cour dans les an-
nes suivant son adoption. Cette tude se base
sur toutes les dcisions de la Cour suprme du
Canada des trente dernires annes. Lanalyse
prend aussi en considrations certaines affaires
dont la demande dautorisation dappel fut reje-
te, de mme que dautres affaires qui, bien
quaucun non-citoyen ny tait partie, soule-
vaient nanmoins directement des enjeux rela-
tifs aux droits des non-citoyens. La dernire
partie illustre que les non-citoyens au Canada
bnficient dsormais dune moins grande pro-
tection de leurs droits que les non-citoyens
dautres pays.
* This work was supported by a Standard Research Grant from the Social Sciences and
Humanities Research Council of Canada. I am grateful to Robert Russo for his excellent
research work over the past two years and to Daphne Chu for her work in the home
stretch. I am also grateful to the Trudeau Foundation for the award of a fellowship as
this article was being prepared for print.
Citation: (2013) 58:3 McGill LJ 663 ~ Rfrence : (2013) 58 : 3 RD McGill 663
Catherine Dauvergne 2013
664 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Introduction
I.
In the Beginning: Singh and Andrews
II.
Methodology: Which Cases Matter and Why
III.
Mapping the Jurisprudence
A. Rights Questions and Rights Answers
B. Cases Without Rights: Making Sense of Rights
Claims in the Province of Administrative Law
C. Refugee Law: An International Human Rights
Claim
D. Choosing Not to Decide
E. Extradition: One Story Worth Telling
F. Two Cases Directly Adjacent
IV.
Trends, Explanations, Conclusions
665
668
675
678
680
703
708
715
718
720
722
HOW THE CHARTER HAS FAILED NON-CITIZENS IN CANADA 665
Introduction
After thirty years of decision making under the Canadian Charter of
Rights and Freedoms,1 it is now clear that the Charter has been a disap-
pointment for non-citizens in Canada. What is worse, during the Charter
era, Canada has fallen behind many other Western democracies in provid-
ing access for non-citizens to international human rights protections. This
conclusion is not a surprise to anyone who has been working in the mi-
grant advocacy trenches over the past quarter century, but it is a jarring
contrast to the reputation that Canada has sought for itself as an immi-
grant-welcoming international human rights leader, and it flies in the
face of scholarship asserting that human rights have eclipsed citizenship
rights.
On the face of it, Canada ought to be as good as it gets for non-citizens
human rights protections. Canada is a party to most of the major interna-
tional human rights conventions2 and is among a handful of states that
1 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK),
1982, c 11 [Charter].
2 There are nine core international human rights instruments listed by the Office of the
United Nations High Commissioner for Human Rights (Monitoring the Core Interna-
tional Human Rights Treaties (2013), online: Office of the United Nations High Com-
missioner for Human Rights
seven, namely the International Covenant on Economic, Social and Cultural Rights, 16
December 1966, 993 UNTS 3, Can TS 1976 No 46 (entered into force 3 January 1976,
accession by Canada 19 May 1976); International Covenant on Civil and Political
Rights, 19 December 1966, 999 UNTS 171, Can TS 1976 No 47 (entered into force 23
March 1976, accession by Canada 19 May 1976); International Convention on the Elim-
ination of All Forms of Racial Discrimination, 7 March 1966, 660 UNTS 195, Can TS
1970 No 28 (entered into force 4 January 1969, ratification by Canada 14 October 1970);
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, 10 December 1984, 1465 UNTS 85, Can TS 1987 No 36 (entered into force
26 June 1987, ratification by Canada 24 June 1987) [Torture Convention]; Convention
on the Rights of the Child, 20 November 1989, 1577 UNTS 3, Can TS 1992 No 3 (en-
tered into force 2 September 1990, ratification by Canada 13 December 1991); Conven-
tion on the Elimination of All Forms of Discrimination Against Women, 18 December
1979, 1249 UNTS 13, Can TS 1982 No 31 (entered into force 3 September 1981, ratifica-
tion by Canada 10 December 1981); Convention on the Rights of Persons with Disabili-
ties, 13 December 2006, 2515 UNTS 3, Can TS 2010 No 8 (entered into force 3 May
2008, ratification by Canada 11 March 2010). Canada also voted in favour of ratifying
the Universal Declaration of Human Rights (GA Res 217(III), UNGAOR, 3d Sess, UN
Doc A/810 (1948) 71 [Universal Declaration]), which is not considered one of the core in-
struments because of its declaratory status.
Of the nine core instruments, the two in which Canada does not participate are the
International Convention on the Protection of the Rights of All Migrant Workers and
Members of their Families (18 December 1990, 2220 UNTS 3, 30 ILM 1517 (entered into
force 1 July 2003) [Migrant Workers Convention]) and the International Convention for
the Protection of All Persons from Enforced Disappearance (GA Res 61/177, UNGAOR,
666 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
have committed themselves to a series of optional protocols allowing indi-
viduals to bring complaints against it.3 Canada has a long-standing pro-
gram for permanent immigration, and immigration is embedded in its na-
tional mythology. It is one of the few Western states where survey data
continue to show that the population is supportive of immigrants.4 Indeed,
Canada has recently celebrated the twenty-fifth anniversary of the award
to The People of Canada of the United Nations High Commissioner for
Refugees Nansen Medal for service to refugees.5 In addition to all of this,
Canada has a strong and contemporary constitutional statement of rights.
For all of these reasons, the failure of the Charter to deliver on its promise
of human rights protections for non-citizens is counterintuitive.
This paper presents a study of all of the Supreme Court of Canadas
Charter-era jurisprudence addressing the rights of non-citizens. It traces
the jurisprudential evolution from early decisions strongly supportive of
non-citizens rights claims to more recent rulings where non-citizens
rights claims are rejected, sidelined, or even ignored. Patterns in decision
making are discernible, and the decline in protections for non-citizens fol-
61st Sess, UN Doc A/RES/61/177, (2006)). The first of these is of particular importance
for non-citizens but has yet to be ratified by any predominantly migrant-receiving state
in the global North.
3 The optional protocols that Canada has ratified (and the total number of parties to each
protocol as of 30 March 2013) include Optional Protocol to the International Covenant
on Civil and Political Rights, 19 December 1966, 999 UNTS 171, Can TS 1976 No 47
(114 parties); Optional Protocol to the Convention on the Elimination of All Forms of
Discrimination Against Women, 6 October 1999, 2131 UNTS 83, 39 ILM 281 (104 par-
ties); Optional Protocol to the Convention on the Rights of the Child on the Involvement
of Children in Armed Conflict, 25 May 2000, 2173 UNTS 222, Can TS 2002 No 5 (151
parties); Optional Protocol to the Convention on the Rights of the Child on the Sale of
Children, Child Prostitution and Child Pornography, 25 May 2000, 2171 UNTS 227, 39
ILM 1285 (163 parties); Second Optional Protocol to the International Covenant on Civil
and Political Rights, Aiming at the Abolition of the Death Penalty, 15 December 1989,
1642 UNTS 414, Can TS 2006 No 25 (73 parties).
4 The population survey conducted by Transatlantic Trends (Transatlantic Trends: Im-
migration, Key Findings (2010), online: Transatlantic Trends
still more supportive of immigration across a range of indicators than all other coun-
tries in North America and Europe. The study also shows that the Canadian population
is less supportive of immigration than in earlier years. See also Nicholas Keung, Im-
migrants Fitting In Well (Mostly), Canadians Say: But Survey Shows Split over How
Successfully Muslims Integrating into Society, The Toronto Star (4 February 2011)
A16.
5 The Nansen Medal, now called the Nansen Refugee Award, is named after the first
League of Nations High Commissioner for Refugees and is awarded annually by the
United Nations High Commissioner for Refugees. The Canadian people received the
award in 1986 in recognition of their support for refugees fleeing the Indochinese crisis:
see generally UNHCR, Nansen Refugee Award (2012), online: UNHCR: The UN Refu-
gee Agency
HOW THE CHARTER HAS FAILED NON-CITIZENS IN CANADA 667
lows logically enough from a series of interpretive stances made relatively
early on. There is evidence here of what I have termed Charter hubris.
This is a leading factor in explaining the current state of affairs, and it
works alongside other explanations such as the traditionally broad ambit
of discretion in immigration matters and the securitization of all immigra-
tion matters in the early twenty-first century. The Supreme Court of
Canada is not, of course, the entire story for non-citizens rights in Cana-
da. Very few cases ever make it to this pinnacle venue and disproportion-
ately fewer involving non-citizens. But focusing on the Supreme Court is
always justified because of its leadership role. To complement this analy-
sis, I have also completed a companion study of international human
rights norms in the jurisprudence of Immigration and Refugee Board of
Canada (Immigration and Refugee Board), which makes approximately
fifty thousand decisions annually concerning non-citizens.6
The paper begins by outlining the early promise of the Singh and An-
drews decisions, setting them in the context of scholarship on globaliza-
tion, citizenship rights, and human rights. I then turn to a brief explana-
tion of the methodology for the rest of the study. The next section presents
the Supreme Court of Canadas Charter-era non-citizen jurisprudence in
three thematic groups: cases treated by the Court as rights cases, cases
treated as non-rights cases, and refugee rulings. The analysis is rounded
out by a brief look at the issue of extradition, some highlights of the un-
successful applications for leave to appeal, and two cases that do not tech-
nically address non-citizens but that have had important implications for
non-citizen advocacy. This presentation lays the groundwork for the con-
cluding section, which offers explanations for the trajectory of the juris-
prudence and contrasts this trajectory with leading decisions elsewhere.
The argument that the Charter has failed to deliver on its early prom-
ise for non-citizens is made out at several levels. Most directly, non-
citizens Charter claims have rarely been successful. Second, the Supreme
Court of Canada has relied exclusively on the Charter even in cases where
applicable international human rights may have provided stronger pro-
tections for non-citizens. Third, a number of cases that were argued in
human rights terms have not been treated as rights claims by the Court.
Finally, very few non-citizens rights claims have reached the Supreme
Court of Canada. In sum, during the Charter era, non-citizens have had
6 Catherine Dauvergne, International Human Rights in Canadian Immigration Law:
The Case of the Immigration and Refugee Board of Canada (2012) 19:1 Ind J Global
Legal Stud 305 [Dauvergne, International Human Rights]. The Immigration and Ref-
ugee Boards total number of decisions annually has ranged from 34,673 to 62,301 over
the nine years … [surveyed in the article], 2002 to 2010. The annual average during this
period was 48, 752 (ibid at 309, n 16).
668 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
little success in making Charter rights claims and even less success in ac-
cessing alternative sources of rights protections, the most important and
logical of which is international human rights law. This result is especial-
ly disappointing as other jurisdictions have made some important ad-
vancements in international human rights for non-citizens during this
thirty-year time frame.
I. In the Beginning: Singh and Andrews
The Charter era opened with two rulings that made vitally important
statements for the rights of non-citizens. The Charter came into force on
April 17, 1982. The section 15 equality provisions were delayed to give
governments time to bring their legislation into compliance and took ef-
fect three years later, on April 17, 1985. In the case of both the generally
applicable rights and the equality provisions in particular, the first deci-
sion to fully grapple with non-citizens rights claims marked an important
victory.
This first ruling came in Singh v. Canada (Minister of Employment
and Immigration),7 which challenged the existing refugee status determi-
nation procedure on the grounds that it did not provide refugee claimants
an oral hearing by a decision maker at any point during the multi-layered
process. The Court ruled that this was a breach of principles of fundamen-
tal justice, and the government responded with a complete overhaul of the
refugee determination process and the introduction of a tribunal process
for first-instance refugee determination that was, for two decades, widely
regarded as one of the fairest refugee determination processes in the
world.8 From a Charter point of view, the key holding was that the Char-
ters section 7 protections apply to every human being who is physically
present in Canada.9 The Court explicitly rejected a distinction that would
have hinged Charter protection to citizenship and similarly rejected a dis-
tinction, based on US law, between those present in the country and those
seeking entry.10
Singh has become part of the mythic foundation of Canadian refugee
law. The anniversary of its handing down is celebrated annually as Refu-
7 [1985] 1 SCR 177, (sub nom Re Singh and Minister of Employment and Immigration)
17 DLR (4th) 422 [Singh cited to SCR].
8 The system was recently transformed when Bill C-31 of 2012 came into effect on De-
cember 15, 2012, as first-instance decisions will no longer be made by quasi-
independent decision makers: see Protecting Canadas Immigration System Act, SC
2012, c 17.
9 Singh, supra note 7 at 202, Wilson J.
10 Ibid at 210.
HOW THE CHARTER HAS FAILED NON-CITIZENS IN CANADA 669
gee Rights Day in Canada by the advocacy community.11 And for those
who feel that refugees have too much legal protection in Canadian law,
the Singh ruling is the emblem of all that is wrong with the law.12 In situ-
ating Singh as the starting point of the Courts Charter-era engagement
with non-citizens, I must scrutinize the ruling in a way that is discomfit-
ing for mythology but that I hope will affirm the strength of the ruling
nonetheless.
The most important observation about Singhlost in its mythology
is that only three of the six members of the panel used the Charter in
coming to their conclusions.13 Justice Beetz, with whom Justices Estey
and McIntyre concurred, decided Singh on the basis of the Canadian Bill
of Rights.14 This undoubtedly came as a great surprise to many, given that
by 1985, the Bill of Rights was widely regarded as almost entirely ineffec-
tual.15 Counsel had not argued the case on the basis of the Bill of Rights,
but seven months after the initial hearing, the Court contacted the parties
and requested written submissions regarding how the Bill of Rights would
apply to the matter at hand. Justice Beetz refrain[ed] from expressing
any views on the question of whether the Canadian Charter of Rights and
Freedoms is applicable at all.16 But aside from this, he offered little to ex-
plain this puzzling choice. He limited himself to stating that other rights
instruments ought not to fall into disuse, especially when almost tailor-
made for certain factual situations such as those in the cases at bar.17 In
11 See Canadian Council for Refugees, Refugee Rights Day: April 4th, online: Canadian
Council for Refugees
12 See e.g. Jeffrey Simpson, Solutions Exist to Overhaul the Cumbersome Refugee Pro-
cess, The Globe and Mail (7 January 1998) A14 (stating that [e]ver since the Supreme
Courts Singh decision, which requires an oral hearing upon entry into Canada for
claimants, the system is too layered, time-consuming and legalistic).
13 Justice Ritchie heard the appeal but retired from the Court before the decision was
handed down and before the request for arguments addressing the Bill of Rights was
made.
14 Being Part I of An Act for the Recognition and Protection of Human Rights and Funda-
mental Freedoms, SC 1960, c 44 [Bill of Rights].
15 See e.g. WS Tarnopolsky, Discrimination and the Law in Canada (1992) 41 UNBLJ
215; Berend Hovius, The Legacy of the Supreme Court of Canadas Approach to the
Canadian Bill of Rights: Prospects for the Charter (1982) 28:1 McGill LJ 31.
16 Singh, supra note 7 at 223-24.
17 Ibid at 224. In full, Justice Beetz wrote:
Section 26 of the Canadian Charter of Rights and Freedoms should be
kept in mind. It provides:
26. The guarantee in this Charter of certain rights and freedoms
shall not be construed as denying the existence of any other rights or
freedoms that exist in Canada.
670 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
response, Justice Wilson (writing on behalf of Chief Justice Dickson and
Justice Lamer) stated simply, [S]ince I believe that the present situation
falls within the constitutional protection afforded by the Canadian Char-
ter of Rights and Freedoms, I prefer to base my decision upon the Char-
ter.18 Justice Beetzs stance did not lead to a resurgence of Bill of Rights
decision making by the Supreme Court of Canada, nor did it lead to a dif-
ferent result. It faded into the background as Singh became a cornerstone
of Charter mythology, undoubtedly aided by the leading roles played by
Justices Wilson and Lamer, and Chief Justice Dickson in the early years
of Charter jurisprudence. However, in looking back at Singh in light of the
subsequent trajectory of decision making regarding non-citizens, it is use-
ful to remember that only three members of the Court ever signed on to
the strong position taken.
It is Justice Wilsons judgment that has stood the test of time and
crystallized into what Singh stands for. In addition to the vital holding
that the Charter applies to every person physically in Canada, she also
concluded that the rights and interests at stake in refugee determination
were sufficiently serious that deprivation of those rights must amount to
deprivation of security of the person within the meaning of s. 7.19 She fur-
ther stated that, as a principle of fundamental justice, serious issues of
credibility must be determined on the basis of an oral hearing.20 It was
this requirement for an oral hearing (with which Justice Beetz agreed,
but without comment on the question of security of the person) that
meant the existing procedure failed scrutiny.21 Justice Wilson also sharply
dismissed the governments section 1 argument that oral hearings would
be too resource intensive to be practicable.22
Thus, the Canadian Bill of Rights retains all its force and effect, together with
the various provincial charters of rights. Because these constitutional or quasi-
constitutional instruments are drafted differently, they are susceptible of producing
cumulative effects for the better protection of rights and freedoms. But this benefi-
cial result will be lost if these instruments fall into neglect. It is particularly so
where they contain provisions not to be found in the Canadian Charter of Rights
and Freedoms and almost tailor-made for certain factual situations such as those in
the cases at bar (ibid).
18 Ibid at 185.
19 Ibid at 207.
20 Ibid at 213-14.
21 Ibid at 229.
22 Ibid at 218-19. Section 1 of the Charter states, The Canadian Charter of Rights and
Freedoms guarantees the rights and freedoms set out in it subject only to such reasona-
ble limits prescribed by law as can be demonstrably justified in a free and democratic
society.
HOW THE CHARTER HAS FAILED NON-CITIZENS IN CANADA 671
Importantly, in terms of how non-citizens in Canada access interna-
tional human rights norms, Justice Wilson drew on international stand-
ards in two ways. While there was no issue of interpretation of the Refu-
gee Convention at stake, she did turn to the Refugee Convention and cited
its preamble in assessing the importance of the rights at stake.23 In devel-
oping this reasoning, she relied explicitly on the Immigration Acts objec-
tive of fulfilling Canadas international legal obligations.24 Even more im-
portantly, in developing her understanding of the substance of security of
the person, she turned to the Universal Declaration of Human Rights,
concerning article 25s statement regarding the necessaries of life.25 This
interpretive move is important because it draws a direct linkage between
international human rights and the Charter and, in a different way, be-
cause it establishes a very expansive paradigm for security of the person.
Justice Wilson did acknowledge that this breadth of interpretation was
not necessary on the facts in Singh, but she introduced the broad parame-
ters nonetheless.26 In sum, the Singh decision brought non-citizens, re-
gardless of immigration status, within the protection of the Charter and
linked that protection in the broadest possible way to international hu-
man rights law, even the unenforceable Universal Declaration.
The second Charter decision that addressed the rights of non-citizens
went even further. Andrews v. Law Society of British Columbia27 was the
Supreme Court of Canadas first ruling on the section 15 equality rights,
and its lore is even greater than that of Singh because of the broad ap-
plicability of equality rights.28 The core of this ruling was to mark out the
23 Singh, supra note 7 at 193; Convention Relating to the Status of Refugees, 28 July 1951,
189 UNTS 137, Can TS 1969 No 6 [Refugee Convention].
24 Singh, supra note 7 at 192; Immigration Act, RSC 1985, c I-2, s 3(g), as repealed by
Immigration and Refugee Protection Act, SC 2001, c 27, s 274 [IRPA].
25 Singh, supra note 7 at 207; Universal Declaration, supra note 2 at 76. Article 25, para-
graph 1 of the Universal Declaration states:
1. Everyone has the right to a standard of living adequate for the health
and well-being of himself and of his family, including food, clothing, housing
and medical care and necessary social services, and the right to security in
the event of unemployment, sickness, disability, widowhood, old age or other
lack of livelihood in circumstances beyond his control.
26 This ruling predates Chief Justice Dicksons statement in Reference Re Public Service
Employee Relations Act (Alta) ([1987] 1 SCR 313 at 348-49, (sub nom Reference Re Pub-
lic Service Employee Relations Act, Labour Relations Act and Police Officers Collective
Bargaining Act) 38 DLR (4th) 161 [Reference Re Public Service Employee Relations Act])
regarding the linkage between international human rights and the Charter. See 725,
below.
27 [1989] 1 SCR 143, 56 DLR (4th) 1 [Andrews cited to SCR].
28 See e.g. Anne F Bayefsky, A Case Comment on the First Three Equality Rights Cases
Under the Canadian Charter of Rights and Freedoms: Andrews, Workers Compensa-
672 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Courts substantive approach to equality and to clearly establish that
grounds of discrimination analogous to those enumerated in section 15
could receive Charter protection.29 The very first analogous ground of pro-
tection to be recognized was that of non-citizenship. Mr. Andrews was a
permanent resident of Canada and a British citizen, who had been barred
from practising law in British Columbia because he was not a Canadian
citizen. While the dissentients found this limitation to be a reasonable one
and thus would have seen it saved by section 1 of the Charter, all mem-
bers of the panel agreed that equality protections must protect non-
citizens.30
Unlike the Singh ruling, there is no reference in the Andrews reasons
to international human right standards. The Court did look beyond Cana-
dian borders, to engage seriously with the American constitutional equali-
ty jurisprudence, but did not adopt an American approach in full. Im-
portantly for this analysis of non-citizens rights, the ruling commented
directly on the vulnerability of non-citizens. In Justice Wilsons words:
Relative to citizens, non-citizens are a group lacking in political
power and as such vulnerable to having their interests overlooked
and their rights to equal concern and respect violated. They are
among those groups in society to whose needs and wishes elected of-
ficials have no apparent interest in attending. Non-citizens, to take
only the most obvious example, do not have the right to vote. Their
vulnerability to becoming a disadvantaged group in our society is
captured by John Stuart Mill’s observation in Book III of Considera-
tions on Representative Government that in the absence of its natu-
ral defenders, the interests [sic] of the excluded is always in danger
of being overlooked . . . . I would conclude therefore that non-
citizens fall into an analogous category to those specifically enumer-
ated in s. 15. I emphasize, moreover, that this is a determination
which is not to be made only in the context of the law which is sub-
ject to challenge but rather in the context of the place of the group in
the entire social, political and legal fabric of our society. While legis-
latures must inevitably draw distinctions among the governed, such
distinctions should not bring about or reinforce the disadvantage of
tion Reference, Turpin (1990) 1 Sup Ct L Rev (2d) 503; Mary Eaton, Andrews v. Law
Society of British Columbia, Case Comment (1990) 4:1 CJWL 276; C Lynn Smith,
Adding a Third Dimension: The Canadian Approach to Constitutional Equality Guar-
antees (1992) 55:1 Law & Contemp Probs 211.
29 The enumerated grounds are race, national or ethnic origin, colour, religion, sex, age, or
mental or physical disability.
30 The panel consisted of Chief Justice Dickson, as well as Justices McIntyre, Lamer, Wil-
son, La Forest, and LHeureux-Dub. Justice Le Dain heard the case but retired from
the Court before the decision was handed down. The dissenting judges were Justices
McIntyre and Lamer.
HOW THE CHARTER HAS FAILED NON-CITIZENS IN CANADA 673
certain groups and individuals by denying them the rights freely ac-
corded to others.31
Justice La Forest acknowledged the history in Canada of discrimination
in employment on the basis of nationality and noted the close linkage be-
tween discrimination on the basis of citizenship and discrimination on the
named Charter grounds of national or ethnic origin.32 He concluded in a
commonsensical tone, If we allow people to come to live in Canada, I
cannot see why they should be treated differently from anyone else.33
There is nothing in the Andrews ruling to foreshadow anything other
than a very promising rights environment for non-citizens in the Charter
era. The absence of international norms as reference points here is not
surprising given that international human rights law does in fact support
a distinction on the basis of citizenship in the case of public sector em-
ployment, which might have been arguable on these facts.34 At the very
most, we can remark that Andrews is not an immigration case; it has
nothing at all to do with crossing borders, and so it is distinct from many
of the types of claims to which citizenship becomes relevant. Indeed, the
Court goes to some length to focus on the vulnerability and democratic ex-
clusion of non-citizens, despite being presented with a claimant who had
many markers of privilege.
The fact that the very first equality challenge of the Charter era in-
volved the rights of a non-citizen, and especially a well-educated perma-
nent resident with citizenship rights in another prosperous Western de-
mocracy, fits squarely within the trendidentified by a number of schol-
arsof human rights eclipsing citizenship rights as an aspect of contem-
porary globalization.35 Saskia Sassen has argued that the rise of human
rights protections now means that the most meaningful distinction in
31 Andrews, supra note 27 at 152 [reference omitted], citing John Hart Ely, Democracy
and Distrust: A Theory of Judicial Review (Cambridge, Mass: Harvard University
Press, 1980) at 151, John Stuart Mill, Considerations on Representative Government
(Chicago: Henry Regnery, 1962) at 59.
32 Ibid at 195.
33 Ibid at 201.
34 The International Covenant on Civil and Political Rights (supra note 2, art 25) provides
a right for citizens to have equal access to public service employment. See 690-92, below.
35 Chiarelli, whose case is discussed below at 680-83, was also an EU citizen, but this citi-
zenship did not include full labour mobility rights until after the 1992 Maastricht Trea-
ty came into effect in 1993: see EC, Treaty on European Union, [1992] OJ C 191/1 at 23,
31 ILM 253 [Maastricht Treaty], amending Treaty Establishing the European Economic
Community, 25 March 1957, 298 UNTS 3, reprinted in European Union, Consolidated
Versions of the Treaty on European Union and the Treaty Establishing the European
Community (Luxembourg: Office for Official Publications of the European Communi-
ties, 2003) at 35.
674 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
rights protections is not between citizens and non-citizens, but rather be-
tween those with a secure immigration status and those without status.36
Her analysis fits closely with Justice La Forests conclusion that he could
not see any basis for treating permanent residents differently from any-
one else. David Jacobson explored this argument in detail in Rights
Across Borders: Immigration and the Decline of Citizenship37 and added
empirical heft to this analysis with his study of judicial decision making.38
In very broad terms, both Sassen and Jacobson can be cast as viewing this
development positively. Assessing the same phenomenon, the success of
non-citizens in making rights claims in national courts, Christian Joppke
and Gary Freeman each concluded that the strength of human rights
claims has risen to the extent that national immigration policy-making
(although, in both cases, the authors are talking primarily about the
United States) is constrained by the tendency of courts to extend rights
protections to immigrants.39 With varying emphases, Joppke and Free-
man both evaluate this turn negatively. Possibly, following the Andrews
decision, the Law Society of British Columbia would have agreed.
From the perspective of non-citizens rights protections, the rulings in
Singh and Andrews fit squarely within the trend of reducing the role of
citizenship as an important rights marker. Justice Wilson in Andrews
went so far as to state that citizenship may not even be rationally con-
nected to the objective of ensuring that lawyers are familiar with Cana-
dian institutions.40 And the Singh ruling extended the Charter to persons
physically present in Canada in a way that eclipses even Sassens analy-
sis of the importance of legal immigration status. But the trajectory since
that time suggests that we are now a long way from this high-water
mark. It is no coincidence that this scholarly trend peaked in the 1990s,
shortly after the Singh and Andrews rulings. Since that time, citizenship
has experienced a resurgence, including steps by a number of Western
36 Losing Control? Sovereignty in an Age of Globalization (New York: Columbia Universi-
ty, 1996).
37 (Baltimore: Johns Hopkins University Press, 1996).
38 David Jacobson & Galya Benarieh Ruffer, Courts Across Borders: The Implications of
Judicial Agency for Human Rights and Democracy (2003) 25:1 Hum Rts Q 74.
39 Christian Joppke, Citizenship and Immigration (Cambridge, UK: Polity, 2010); Gary P
Freeman, The Decline of Sovereignty? Politics and Immigration Restriction in Liberal
States in Christian Joppke, ed, Challenge to the Nation-State: Immigration in Western
Europe and the United States (Oxford: Oxford University Press, 1998) 86.
40 Andrews, supra note 27 at 156.
HOW THE CHARTER HAS FAILED NON-CITIZENS IN CANADA 675
governments to ensure that the rational connection Justice Wilson was
skeptical about will be strengthened.41
The primary objective of this paper is to examine and explain the ex-
perience of non-citizens before the Supreme Court of Canada in the time
since these seminal rulings. In part, the Canadian experience fits into a
worldwide trend driven forward by globalizing forces and the politics of
securitization, but in some key areas, access to international human
rights norms has been markedly worse for non-citizens in Canada than
elsewhere. The explanation for this discrepancy is subtly rooted in the
Charter jurisprudence itself, a point I explore after presenting an over-
view of the cases. Ultimately, what matters is that individuals rights
claims are appropriately vindicated. The legal vehicle for achieving this
goal is not important. In Canada, however, the key rights sources of the
constitution and of international law are intertwined because of the Su-
preme Courts early Charter jurisprudence.42 Non-citizens asserting rights
claims are therefore required to make their arguments first and foremost
in Charter terms and only secondarily in international human rights
terms. This puts non-citizens in Canada in a different position than those
in England, Australia, New Zealand, and even in some circumstances, the
United States. This different position has become a worse position over
time. The requirement that international rights claims must be heard
through the vehicle of the Charter has reached the point at which the
term Charter hubris is apt. This phenomenon can be observed in the re-
lationship between Charter rights and international human rights in the
non-citizens cases presented here.
II. Methodology: Which Cases Matter and Why
The data set for this study is all the Supreme Court of Canada deci-
sions, since the Charter came into effect, that adjudicate rights claims
made by non-citizens. I have selected decisions that deal with the claims
of individuals43 made in situations where non-citizenship is somehow rel-
evant to the legal issues at stake. I have focused on non-citizenship be-
cause I am interested in the group of people who are not Canadian, rather
than in distinctions that are made between non-Canadians (for example,
41 See e.g. Catherine Dauvergne, Citizenship with a Vengeance (2007) 8:2 Theor Inq L
489; Kim Rubenstein, The Lottery of Citizenship: The Changing Significance of Birth-
place, Territory and Residence to the Australian Membership Prize (2004) 22:2 Law in
Context 45; Citizenship in a Globalized World: Perspectives from the Immigrant Democ-
racies (special issue) Migration Studies (edited by Ayelet Shachar & Geoffrey Brahm
Levey [forthcoming 2013].
42 See discussion at 725, below.
43 I have not included corporations in the data set.
676 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
in refugee claims where ones state of nationality is of primary im-
portance). The focus on non-citizenship as legally relevant means that the
majority of the decisions deal with issues originating in the former Immi-
gration Act or the current Immigration and Refugee Protection Act.44
There will certainly be any number of cases where the rights of a non-
citizen are at stake but in which citizenship is irrelevant to the legal issue
at hand. For example, I have not included cases where someone without
Canadian citizenship was involved in a criminal matter or a family law
matter and the issue of citizenship was not relevant to the case.45 I have
taken a broad approach to the question of what counts as a rights claim
and therefore have included any claim that could be cast in rights terms,
whether or not the Court treated it either as a Charter case or as a rights
case more generally. As rights are the basic building blocks of contempo-
rary legal language, this criterion did not lead to any cases being elimi-
nated from the set that would otherwise have been included.
With these parameters, and eliminating the double counting that
arises because of companion cases, the data set includes twenty-four deci-
sions, two of which are Singh and Andrews. I have included one decision
that at first blush appears at the margin of my parameters. This is Ontar-
io (Attorney General) v. Fraser,46 which I have included because an im-
portant issue of non-citizens rights was raised before the Court, although
this is not reflected in the decision. During the time frame of this study,
the Supreme Court of Canada made 2,755 decisions.47 It is difficult to get
an accurate count of how many of these would be considered Charter deci-
sions, although 490 is a reasonable estimate.48 In any case, the number of
Charter cases would not be an appropriate comparator, because my data
set includes a number of cases where the decision does not engage with
44 The Immigration Act (supra note 24), was repealed by the Immigration and Refugee
Protection Act (supra note 24), which came into effect on June 28, 2002.
45 An important qualifier here is that I have left this determination to the Court. While an
individual non-citizen may have felt that their lack of Canadian citizenship was in some
way relevant to the proceedings, if the Court did not comment on citizenship or stated
that it was irrelevant, the case was not included.
46 2011 SCC 20, [2011] 2 SCR 3 [Fraser].
47 This number was obtained from the Supreme Court Reports, beginning when the Char-
ter came into force and concluding at the end of 2011.
48 This number is the result of combining two sources, the count provided by F.L. Morton,
Peter H. Russell and Michael J. Withey (The Supreme Courts First One Hundred
Charter of Rights Decisions: A Statistical Analysis (1992) 30:1 Osgoode Hall LJ 1),
supplemented by a manual count from the Judgments of the Supreme Court databases
Supreme Court bulletins: Resources (2013), online: Judgments of the Supreme Court
HOW THE CHARTER HAS FAILED NON-CITIZENS IN CANADA 677
Charter rights in any way. This is helpful in understanding why I describe
the case set as rights claims by non-citizens during the Charter era.
It is impossible to say precisely whether twenty-four cases is a high
or low number of decisions. Non-citizens now face two important struc-
tural barriers in reaching the Supreme Court of Canada, in addition to
the usual barriers of time, money, and a requirement to seek leave. The
first of these is that, beginning in 1992, it became necessary to seek leave
from the Federal Court, Trial Division (as it then was), in order to have
most decisions under the Immigration Act judicially reviewed.49 The sec-
ond is that appealing a judicial review from the Federal Court to the Fed-
eral Court of Appeal requires that the judge at first instance certify that
the case raises a serious question of general importance.50 Some perspec-
tive on the twenty-four cases comes from looking at other jurisdictions.
Between 1982 and 2011, the High Court of Australia decided 103 cases
involving refugee law matters alone.51 My data set includes only four cas-
es involving refugee law matters. The numbers are high in Australia, in
part because the High Court of Australia has an original jurisdiction for
judicial review,52 but by contrast, Australias population is thirty per cent
smaller than Canadas and Australia has received approximately one-fifth
of the refugee claimants Canada has received over this time frame. It
could be argued that the Australian government was more aggressive to-
ward refugees during this time, but in light of the other factors, this is at
best a partial explanation. An alternative comparator is the Supreme
49 On February 1, 1992, amendments to the Federal Courts Act (RSC 1985, c F-7) gave the
trial division original jurisdiction in the judicial review procedure and created the leave
provision: see Federal Court, History (31 December 2012), online: Federal Court
recent decade, leave has been granted in approximately fifteen per cent of cases: see
Federal Court, Statistics (23 August 2012), online: Federal Court
50 See Federal Courts Immigration and Refugee Protection Rules, SOR/93-22, s 18.
51 Given the complexity of including or eliminating cases, for this quick comparison, I
have selected only refugee cases, as those are the easiest to identify. The raw count of
cases with refugee or asylum as keywords in the AustLII high court database for the
relevant years was 141, which I reduced to 104 after screening headnotes for relevancy.
52 Between the 1999 ruling in Abebe v. The Commonwealth of Australia ([1999] HCA 14,
197 CLR 510) and the 2003 ruling in Plaintiff S157/2002 v. The Commonwealth of Aus-
tralia ([2003] HCA 2, 211 CLR 476), many judicial review cases involving refugees went
directly to the high court under this provision, accounting for approximately one-third
of my total count.
678 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Court of the United States, which decided twenty-one refugee cases in the
same time frame.53
There are three groups of cases that I have not included. The first of
these is cases that have adjudicated the boundaries of Canadian citizen-
ship. These cases have, in one way or another, focused on who should be
considered a Canadian citizen. The focus is not on the rights that non-
citizens have but rather on the boundaries of the category. As these cases
do not speak to how non-citizens in Canada access rights, they are exclud-
ed.54 The second group is cases that address the reach of the Charter be-
yond Canadian borders. These cases are principally about the conduct of
Canadian officials.55 While they do sometimes involve questions of how
the Charter applies to non-citizens, they are not about how people in Can-
ada can make rights claims. These cases are about things that happen
outside of Canada, and on that basis, they have been excluded. Extradi-
tion cases are not included in the data set, as citizenship is not a central
focus of these proceedings, but they are canvassed later in the paper be-
cause of the interesting counterpoint they raise.
III. Mapping the Jurisprudence
Apart from Singh and Andrews, the Supreme Court of Canada as-
sessed a non-citizens rights claim on twenty-two occasions in the first
thirty years of the Charter. Logically enough, the cases raise diverse is-
sues and can be grouped together in any number of ways. Fifteen of the
decisions deal with individuals facing removal from Canada, five deal
with people seeking admission, and two have nothing to do with the bor-
der setting. Of the fifteen removal cases, four are cases involving refugees
or refugee claimants and the central issue involves interpretation of the
Refugee Convention. These cases form a distinct subset in that they are
directly concerned with international law and they deal with the Charter
only in passing. I discuss this distinct group separately. Of the remaining
eighteen cases, nine could squarely be considered Charter cases.56 In six of
53 The same method was used for the US Supreme Court, employing the LexisNexis data-
base. Here again, given the complexity of counting cases involving non-citizens, I used
only refugee cases as the basis for an approximate comparison.
54 See e.g. Benner v Canada (Secretary of State), [1997] 1 SCR 358, 143 DLR (4th) 577;
Benner v Canada (Secretary of State), [1997] 3 SCR 389 (available on CanLII); Canada
(Minister of Citizenship and Immigration) v Tobiass, [1997] 3 SCR 391, 151 DLR (4th)
119.
55 The current leading case in this category is R v Hape, 2007 SCC 26, [2007] 2 SCR 292.
56 The list is Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1
SCR 350 [Charkaoui (2007)]; Charkaoui v Canada (Citizenship and Immigration), 2008
SCC 38, [2008] 2 SCR 326 [Charkaoui (2008)]; Chiarelli v Canada (Minister of Em-
HOW THE CHARTER HAS FAILED NON-CITIZENS IN CANADA 679
the cases, there is at least some discussion of international human rights
law. Most cases discussing international human rights law are also Char-
ter cases. The one exception to this twinning is Baker v. Canada (Minister
of Employment and Immigration),57 which was emphatically not a Charter
case. In only one case, Mugesera, the outcome relies directly on interna-
tional law as a source of direct obligation rather than as an interpretive
tool for the Charter. In two other cases, Lavoie and Baker, international
law could fairly be said to influence the outcome, although this level of
gradation is difficult to be precise about. It is possibly notable that, in
both Mugesera and Lavoie, the non-citizen lost at the Supreme Court of
Canada level.
With such a small group of cases, the numbers are not particularly
meaningful and serve more to introduce the area than anything else. It is
important to notice that non-citizens cases are most likely to reach the
Supreme Court when there is a removal issue at stake. This core issue of
a right to remain, on the one hand, pitted against the states right to ex-
pel, on the other, is at the heart of all immigration law. The right to re-
main is also central to international refugee law, because the Refugee
Conventions protection against non-refoulement is the oldest and most
widely applied constraint, at international law, on a sovereign states
power to expel non-citizens.58 Interestingly, separating the removal cases
ployment and Immigration), [1992] 1 SCR 711, 90 DLR (4th) 289 [Chiarelli cited to
SCR]; Dehghani v Canada (Minister of Employment and Immigration), [1993] 1 SCR
1053, 101 DLR (4th) 654 [Dehghani cited to SCR]; Suresh v Canada (Minister of Citi-
zenship and Immigration), 2002 SCC 1, [2002] 1 SCR 3 [Suresh]; Lavoie v Canada,
2002 SCC 23, [2002] 1 SCR 769 [Lavoie]; Medovarski v Canada (Minister of Citizenship
and Immigration), 2005 SCC 51, [2005] 2 SCR 539 [Medovarski]; Mugesera v Canada
(Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 SCR 100 [Mugesera];
Fraser, supra note 46.
57 [1999] 2 SCR 817, 174 DLR (4th) 193 [Baker cited to SCR].
58 The non-refoulement provision is set out in article 33 of the Refugee Convention (supra
note 23):
Prohibition of Expulsion or Return (Refoulement)
1. No Contracting State shall expel or return (refouler) a refugee in
any manner whatsoever to the frontiers of territories where his life or free-
dom would be threatened on account of his race, religion, nationality, mem-
bership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by
a refugee whom there are reasonable grounds for regarding as a danger to
the security of the country in which he is, or who, having been convicted by a
final judgment of a particularly serious crime, constitutes a danger to the
community of that country.
As states are only required to admit their own citizens, the non-refoulement provision
translates into an effective but unstated right to remain for people who have refugee
680 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
into matters raised by permanent residents and those raised by foreign
nationals without permanent status did not prove to be analytically help-
ful, as will become clear below. To address the substance of both Charter
analysis and international human rights engagement, I will discuss three
groups of cases. I will first present the ten nonrefugee cases where Char-
ter or international human rights feature in the decision. Following this
analysis, I will examine the eight nonrefugee cases where the Courts re-
sponse was not cast in rights terms. I will then turn to the group of four
refugee law cases. These three groups comprise the data set for the
study.59 Following this presentation, I consider briefly three sets that are
outside my selection parameters: cases that were refused leave by the Su-
preme Court, extradition cases, and cases directly linked to non-citizens.
These latter two groups merit a brief canvass in order to fill in the picture
of non-citizens rights claims in the Charter era.
A. Rights Questions and Rights Answers
Following the ruling in Andrews, the next question of a non-citizens
rights claim to reach the Supreme Court was Chiarelli in 1992.60 The cen-
tral issue was the deportability of a permanent resident who had been
convicted of serious crimes in Canada and who was suspected of involve-
ment in organized crime. The Courts unanimous ruling, and its approach,
set in place key principles for non-citizens claims that have predominated
since. The two most important of these principles were to draw attention
to the distinction between citizens and others in section 6 of the Charter
and to establish that the relevant context for interpreting section 7 prin-
ciples of fundamental justice is an immigration context.
Given that the right of a state to deport non-citizens is unchallengea-
ble except in cases of refugee status or a risk of torture, the Chiarelli ar-
gument focused on the procedural aspects of reaching a deportation deci-
sion. The facts in the case were ideal for raising the distinction between
permanent residents and citizens that has been key to the human rights
and globalization thesis. Giuseppe Chiarelli had come to Canada as a
teenager. As an Italian citizen, he was facing deportation to a prosperous,
Western country with a well-developed legal system and a standard of liv-
status. The Torture Convention (supra note 2, art 3) also contains a non-refoulement
provision. It came into force in 1987 and was ratified by Canada the same year.
59 As I was completing this paper, the Supreme Court of Canada had reserved judgment
in one further non-citizens rights claim, Agraira v. Canada (Public Safety and Emer-
gency Preparedness) (2011 FCA 103, 96 Imm LR (3d) 20). Until this decision becomes
available, it is impossible to predict whether this ruling will fall into the first or the sec-
ond group in my analysis.
60 Supra note 56.
HOW THE CHARTER HAS FAILED NON-CITIZENS IN CANADA 681
ing broadly similar to Canadas. Furthermore, given his age on emigra-
tion, the Court could assume that life in Italy would be familiar to him.
Having pleaded guilty to a drug-trafficking charge, as well as a charge of
uttering threats to cause injury, he was subject to clear societal condem-
nation. In short, there was nothing on the facts to cloud a straightforward
consideration of the procedural steps required for his removal. An appeal
against this order was then possible both on law and fact, as well as on
compassionate grounds. The appeal could be suspended if a security re-
view committee, which had the option of holding closed hearings and of
keeping evidence secret, decided there were reasonable grounds to believe
the person in question would engage in organized criminal activity.
Although the Federal Court of Appeal had split on its assessment of
the constitutionality of the scheme, the Supreme Court had little difficulty
in deciding that all aspects of the scheme were constitutional. Indeed, the
Court did not need to address the question of whether there was any dep-
rivation of life, liberty, or security of the person, because it decided that,
in all respects, there was no breach of principles of fundamental justice.
Drawing on earlier decisions that the principles of fundamental justice
were to be determined by context, the Court considered the immigration
context for the first time here. The core of that context was summarized
this way: The most fundamental principle of immigration law is that
non-citizens do not have an unqualified right to enter or remain in the
country.61 The Court supported this reasoning by looking to extradition
jurisprudence, to the need to keep Canada from becoming a haven for
criminals,62 and to the Charters distinction between citizens and non-
citizens. With these framing principles in place, it was a short step to find-
ing that deportation is not imposed as a punishment.63 While deporta-
tion may come within the scope of treatment in section 12 of the Char-
ters protection against cruel and unusual treatment or punishment, it is
not cruel and unusual. Indeed, the Court turned its test for the cruel and
unusual standard on its head, stating that
[t]he deportation of a permanent resident who has deliberately
violated an essential condition of his or her being permitted to re-
main in Canada by committing a criminal offence punishable by im-
prisonment of five years or more, cannot be said to outrage stand-
ards of decency. On the contrary it would tend to outrage such
standards if individuals granted conditional entry into Canada were
61 Ibid at 733.
62 Ibid.
63 Ibid at 735.
682 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
permitted, without consequence, to violate those conditions deliber-
ately.64
Chiarelli was therefore an important starting point for separating citi-
zens from non-citizens in Charter reasoning. The immigration context
language is important, as the data set shows that almost all Supreme
Court cases to which citizenship was relevant are linked in some way to
immigration. This step, more than any other, may be the key to under-
standing how the Court moved away from the promise of Singh and An-
drews: those cases are atypical in that they do not fall squarely in the
immigration context, as developed by the Court.
The Chiarelli decision is also notable for what it did not say. Im-
portantly, a potential equality rights argument was passed over very
quickly, in part because counsel had not made any submissions on the is-
sue.65 Given this, the Court limited its remarks to agreeing with the Fed-
eral Court of Appeal that there was not a section 15 violation and that the
Charter specifically provides for differential treatment of citizens and
permanent residents in this regard.66 This characterization could be ar-
gued to stretch the Charter language somewhat, as the Charter does not
explicitly address deportation but rather accords to citizen[s] the right
to enter, remain in and leave Canada.67 Under the contemporary Cana-
64 Ibid at 736.
65 Ibid.
66 Ibid [emphasis added].
67 Section 6 of the Charter states:
Mobility of citizens
6. (1) Every citizen of Canada has the right to enter, remain in and leave
Canada.
Rights to move and gain livelihood
(2) Every citizen of Canada and every person who has the status of a
permanent resident of Canada has the right
(a) to move to and take up residence in any province; and
(b) to pursue the gaining of a livelihood in any province.
Limitation
(3) The rights specified in subsection (2) are subject to
(a) any laws or practices of general application in force in a province
other than those that discriminate among persons primarily on
the basis of province of present or previous residence; and
(b) any laws providing for reasonable residency requirements as a
qualification for the receipt of publicly provided social services.
Affirmative action programs
HOW THE CHARTER HAS FAILED NON-CITIZENS IN CANADA 683
dian approach to equality rights, the requirement of a comparator group
analysis is challenging for any claim involving immigration legislation, as
it is difficult to formulate a comparator group of citizens. In other jurisdic-
tions, however, the fact that legislation applies solely to non-citizens has
been an essential basis of a finding of discrimination.68 Chiarelli also
makes no reference to international human rights standards, which could
have been adduced to bolster arguments on either side of the central is-
sue.69
The Chiarelli approach flowed directly into the next decision to reach
the Court, Dehghani.70 Here, the issue was whether a person who was re-
quired to undergo a secondary immigration examination upon entering
Canada and claiming refugee status, was detained so as to trigger the
right to counsel provisions of section 10(b) of the Charter. The case fol-
lowed two high-profile decisions regarding detention and the right to
counsel.71 Mr. Dehghani had been required to wait approximately four
hours for his secondary interview.72 The interviewer made extensive
notes that were later entered as evidence at what was then called a credi-
ble basis hearing. A key issue at that hearing was that Mr. Dehghani had
not disclosed, at the airport, the facts this refugee claim would be based
on but had instead said that he was making a refugee claim because he
wanted to work in Canada and to provide for his childrens futures. Jus-
tice Iacobucci, writing for the Court, anchored his analysis with the Chi-
(4) Subsections (2) and (3) do not preclude any law, program or activity
that has as its object the amelioration in a province of conditions of
individuals in that province who are socially or economically disad-
vantaged if the rate of employment in that province is below the rate
of employment in Canada.
68 In the Belmarsh decision (A v Secretary of State for the Home Department, [2004]
UKHL 56, [2005] 2 AC 68 [Belmarsh]), the House of Lords found that a detention re-
gime embedded in immigration legislation and applying only to non-citizens was im-
permissibly discriminatory.
69 The International Covenant on Civil and Political Rights (supra note 2, art 14) has a de-
tailed provision relating to rights to a fair trial, which could have been used to dispute
the secrecy provisions. The covenant also contains explicit protection against expulsion
(ibid, art 13).
70 Supra note 56.
71 See R v Therens, [1985] 1 SCR 613, 18 DLR (4th) 655 (holding that subsection 235(1) of
the Criminal Code (RSC 1970, c C-34), as it was thenallowing a police officer to de-
mand a Breathalyzer testviolated the accuseds right to retain counsel under section
10(b) of the Charter); R v Simmons, [1988] 2 SCR 495, 55 DLR (4th) 673 (holding that a
customs search conducted without notification of right to counsel according to section
10(b) violated the accuseds Charter rights, but that it would not necessarily lead to ex-
clusion of evidence obtained through the search).
72 Dehghani, supra note 56 at 1057.
684 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
arelli principle that there is no right for non-citizens to enter Canada and
that the most fundamental principle of immigration law is that non-
citizens do not have an unqualified right to enter or remain in the coun-
try.73 From this starting point, it was a short journey to the conclusion
that neither section 10(b) nor the more capacious section 7 was breached
in this case.74
As in Chiarelli, no international human rights law appears in
Dehghani. Here, however, this absence is more remarkable, as there is di-
rectly applicable international law on point. The Courts reasoning in
Dehghani merges refugee law and its international rightsbased frame-
work directly into the immigration context that began developing in Chi-
arelli. Unlike immigrants, however, refugee claimants do have a right to
enter at international law.75 In Canada, refugee law and immigration law
are linked together in one statutory framework. Refugee law comes direct-
ly from international human rights law, and immigration law does not.
The Court viewed Dehghani as a case about routine procedure at airports
rather than a case about refugee claimants.76 Beginning from the refugee
law frame, however, leads in a completely different direction, as the dis-
senting voice in the court below demonstrated. Justice Heald stated, In
the case of a refugee claimant such as this claimant, assuming that even a
portion of his factual assertions are true, the consequences of his enforced
return to Iran could well include incarceration, torture and even death.77
Dehghani was an important step in drawing procedural aspects of refugee
claims into the evolving immigration context and away from international
law. This manoeuvre also served to starkly limit the jurisprudential influ-
73 Ibid at 1070-71, citing Chiarelli, supra note 56 at 733.
74 Dehghani, supra note 56 at 1074, 1078.
75 This right was contested for a number of years, but it is now generally considered to be
settled law: see James C Hathaway, The Rights of Refugees Under International Law
(Cambridge, UK: Cambridge University Press, 2005) at 279-370.
76 Dehghani, supra note 56 at 1072-73. Justice Iacobucci stated:
Clearly, there is no stigma associated with a referral to a secondary examina-
tion. For instance, Canadian citizens who are not able to demonstrate their
identity are often referred to a secondary examination for confirmation of
their citizenship. In addition, persons who are unable or unwilling to answer
questions, applicants for permanent resident status, and Canadian citizens
in possession of an emergency passport issued by a Canadian embassy offi-
cial abroad to facilitate their return to Canada are habitually referred to a
secondary examination (ibid).
77 Dehghani v Canada (Minister of Employment & Immigration), [1990] 3 FCR 587 at 600,
72 DLR (4th) 58 (FCA).
HOW THE CHARTER HAS FAILED NON-CITIZENS IN CANADA 685
ence of the Singh decision, which had taken a very different approach to
procedural matters involving refugees.78
The next case where the Court engaged directly with a rights claim by
a non-citizen was the fabled Baker decision handed down in 1999.79 Baker
is the anomaly in this first group of cases, as the decision does not rely di-
rectly on either the Charter or on international human rights to arrive at
its conclusions. It does, however, fit the parameters of this first group of
cases because of its forthright engagement with arguments on both of
these grounds and because of the relationship it establishes between Ca-
nadian domestic law and international human rights law. The tension be-
tween the majority and minority views about this relationship may be
partially responsible for the ensuing pattern of engagement with interna-
tional human rights.
Mavis Baker was poor and mentally ill and had been living in Canada
for many years without immigration status when she was ordered eported
in 1992. She made an application on humanitarian and compassionate
grounds to remain in Canada and to be exempted from various provisions
of the Immigration Act. The immigration officer who reviewed her file
wrote a negative recommendation about it to his supervisor in terms that
can at best be called prejudicial and unprofessional. The Supreme Courts
response became the leading statement on the parameters of the duty of
procedural fairness. Ms. Baker had eight children, four of who had been
born in Canada, and these children became central to the international
human rights arguments made in the case. Because Canada had ratified
the Convention on the Right of the Child in 1991, counsel for Ms. Baker,
as well as a number of intervenors, argued that the rights of Ms. Bakers
children ought to be taken into account in deciding how to respond to her
application for exceptional treatment on humanitarian grounds.80 Despite
its ratification, the Convention on the Rights of the Child had never been
implemented into Canadian law and thus could not have any direct appli-
cation to the case under the Canadian, dualist approach to international
law.81
78 Singh, supra note 7 at 199-200.
79 Baker, supra note 57. With regard to Bakers importance to Canadian administrative
and constitutional law, see David Dyzenhaus, ed, The Unity of Public Law (Portland,
Or: Hart, 2004).
80 The Canadian Foundation for Children, Youth and the Law; Defence for Children In-
ternational-Canada; the Canadian Council for Refugees; the Charter Committee on
Poverty Issues; and the Canadian Council of Churches all intervened before the Su-
preme Court of Canada.
81 See Baker, supra note 57 at paras 70-75.
686 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Justice LHeureux-Dub, writing for the majority, fashioned a re-
sponse that provided a role for the ratified international human rights
provisions. She ruled that Canadas ratification of the convention was a
relevant consideration in the statutory determination exercise undertak-
en to determine the meaning of humanitarianism and compassion in the
Immigration Act. Specifically, she wrote:
Another indicator of the importance of considering the interests
of children when making a compassionate and humanitarian deci-
sion is the ratification by Canada of the Convention on the Rights of
the Child, and the recognition of the importance of childrens rights
and the best interests of children in other international instruments
ratified by Canada. … Its provisions therefore have no direct applica-
tion within Canadian law.
Nevertheless, the values reflected in international human rights
law may help inform the contextual approach to statutory interpre-
tation and judicial review. …
The values and principles of the Convention recognize the im-
portance of being attentive to the rights and best interests of chil-
dren when decisions are made that relate to and affect their future.
In addition, the preamble, recalling the Universal Declaration of
Human Rights, recognizes that childhood is entitled to special care
and assistance. A similar emphasis on the importance of placing
considerable value on the protection of children and their needs and
interests is also contained in other international instruments. The
United Nations Declaration of the Rights of the Child (1959), in its
preamble, states that the child needs special safeguards and care.
The principles of the Convention and other international instru-
ments place special importance on protections for children and
childhood, and on particular consideration of their interests, needs,
and rights. They help show the values that are central in determin-
ing whether this decision was a reasonable exercise of the H & C
power.82
This creative response was a key aspect of the Courts favourable ruling
on Ms. Bakers behalf, and it provided an avenue for looking at interna-
tional human rights law, even when it had not been implemented in do-
mestic law.83 What it did not do, however, was create a rights platform, ei-
ther within the Charter or within international law. Justice LHeureux-
Dub opted not to respond to the Charter arguments put before the Court,
stating [As] the issues raised can be resolved under the principles of ad-
ministrative law and statutory interpretation, I find it unnecessary to
82 Ibid at paras 69-71, citing Convention on the Rights of the Child, supra note 2, Pream-
ble, para 2, and UN Declaration of the Rights of the Child, GA Res 1386 (XIV),
UNGAOR, 14th Sess, Supp No 16, UN Doc A/4354 (1959).
83 This was the point of disagreement between the majority and minority opinions.
HOW THE CHARTER HAS FAILED NON-CITIZENS IN CANADA 687
consider the various Charter issues raised.84 While in other instances,
such as Singh, core administrative law principles have found constitu-
tional backbone in section 7s principles of fundamental justice, in this
case, constitutional rights arguments were raised but not answered. Iron-
ically, in Baker, avoiding the constitution made it easier to engage directly
with international law in a statutory interpretation context. However, be-
cause this engagement was necessarily indirect, it also meant that Baker
was decided wholly on the murky terrain of administrative law and statu-
tory interpretation, and did not lead to a hard, rights-based statement on
behalf of non-citizens. Empirically, the Baker decision has been shown to
have had little influence in the actual outcomes of applications based on
humanitarian and compassionate grounds.85
Coming a decade after Andrews, Baker was another high-water mark
for non-citizens before the Supreme Court of Canada. And it was an un-
doubted win for Mavis Baker. But the substantive content of the decision
meant that it was not a Charter victory for non-citizens. Indeed, Baker
implicitly rejected what was, by 1999, an established paradigm of turning
to international human rights statements to interpret Charter rights. The
opportunity afforded by this paradigm was lost in this case. The statutory in-
terpretationbased argument, which had such immense potential as
penned in 1999, has not provided much traction, proving just as Justice
LHeureux-Dub asserted, that this approach was hardly revolutionary in
the Canadian paradigm of statutory interpretation. Justice Iacobucci, in
his minority reasons, averred to the lost opportunity, but it is impossible
to do any more than imagine what he would have done with it.86
If Baker can still be read as a peak of sorts in the trajectory of non-
citizen jurisprudence, Suresh, which came next chronologically in the first
group, is definitely a trough.87 Manickavasagam Suresh came to Canada
84 Baker, supra note 57 at para 11.
85 See Catherine Dauvergne, Humanitarianism and Compassion in the Federal Court:
An Empirical Review of 500 Judicial Review Decisions [unpublished, archived with au-
thor].
86 Baker, supra note 57. Justice Iacobucci stated:
I am mindful that the result may well have been different had my colleague
concluded that the appellants claim fell within the ambit of rights protected
by the Canadian Charter of Rights and Freedoms. Had this been the case,
the Court would have had an opportunity to consider the application of the
interpretive presumption, established by the Courts decision in Slaight
Communications Inc. v. Davidson, and confirmed in subsequent jurispru-
dence, that administrative discretion involving Charter rights be exercised in
accordance with similar international human rights norms (ibid at para 81
[reference omitted]).
87 Suresh, supra note 56.
688 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
from Sri Lanka in 1990 and was granted refugee status in 1991. As most
refugees do, he applied for permanent residency. While this application
was being processed, the Canadian government discovered information
indicating that Mr. Suresh was associated with, or at least acted as a
fundraiser for, the Liberation Tigers of Tamil Eelam (LTTE). The gov-
ernment sought to deport him to Sri Lanka on security grounds. Mr.
Suresh argued against this deportation on the basis that he would likely
be tortured or killed by Sri Lankan authorities if he returned to Sri
Lanka. The facts were not disputed before the Supreme Court: the LTTE
was a terrorist organization, and the human rights record of the Sri
Lankan government included widespread use of torture, especially
against LTTE members and sympathizers.88
The central question in Suresh was whether the Canadian govern-
ment could deport a refugee to face a risk of torture. The answer, albeit
qualified, was yes. Because the Suresh Court spent little time interpreting
the Refugee Convention,89 I have included this case in the present group
rather than in the group of cases that are primarily about interpreting in-
ternational refugee law for Canada. Suresh is primarily about the Torture
Convention and how it is to be applied in Canada. Mr. Sureshs own refu-
gee status was near to irrelevant at the Supreme Court level, given the
Courts focus on the non-refoulement provision of the Torture Conven-
tion.90
The focus of the reasoning in Suresh was whether his deportation
would be a breach of the section 7 guarantee of no deprivation of life, lib-
erty, and security of the person save according to principles of fundamen-
tal justice. After finding that, while torture would not be carried out by
the Canadian government, the government would still bear responsibility,
the analysis focused on the content of the principles of fundamental jus-
tice. The Court articulated both a Canadian perspective and an interna-
tional perspective on the question of whether such deportation would
breach fundamental principles. This strategy draws a distinction between
88 The Court discusses the prima facie risk of torture ibid at paras 127-30.
89 Ibid at paras 69-71.
90 The court below had concluded that article 33 of the Refugee Convention allows deporta-
tion on national security grounds and thus that the Torture Conventions prohibition on
deportation (supra note 2, art 3) must be derogable in the case of refugees. The Su-
preme Court clearly rejected this invidious reasoning, stating:
[T]he Refugee Convention itself expresses a profound concern for refugees and its
principal purpose is to assure refugees the widest possible exercise of … fundamen-
tal rights and freedoms. This negates the suggestion that the provisions of the Ref-
ugee Convention should be used to deny rights that other legal instruments make
universally available to everyone (Suresh, supra note 56 at para 72 [reference omit-
ted], citing Refugee Convention, supra note 23, Preamble).
HOW THE CHARTER HAS FAILED NON-CITIZENS IN CANADA 689
the two and also ensures a useful focus on the relationship between inter-
national law and the Charter. Here, as in Baker, the Court was dealing
with a ratified convention that had not been directly implemented into
Canadian law. The Court described the relationship between the Charter
and the international principles as follows:
Insofar as Canada is unable to deport a person to torture where
there are substantial grounds to believe he or she would be tortured
on return, this is not because Article 3 of the [Torture Convention] …
directly constrains the actions of the Canadian government, but be-
cause the fundamental justice balance under s. 7 of the Charter gen-
erally precludes deportation to torture when applied on a case-by-
case basis. We may predict that it will rarely be struck in favour of
expulsion where there is a serious risk of torture. However, as the
matter is one of balance, precise prediction is elusive.91
While stopping short of pronouncing on whether a prohibition against de-
portation to a country where an individual will face torture has become a
peremptory, or jus cogens, norm within international law, the Court did
conclude that international law rejects deportation to torture, even
where national security interests are at stake. This is the norm which
best informs the content of the principles of fundamental justice under s.
7 of the Charter.92
In Suresh, the Court followed its established method of using interna-
tional human rights norms to discern the content of Charter rights, but it
concluded that the two kinds of rights are not the same. While interna-
tional law clearly, possibly even to the point of a jus cogens norm, rejects
deportation to torture, the Charter will permit it under particular, if rare,
circumstances. Accordingly, Suresh is a clear statement that protection
against deportation to face torture is lesser in Canada than it is at inter-
national law. Non-citizens in Canada will be protected against deportation
to a prima facie risk of torture when, on balance, the minister exercises
her or his discretion accordingly.
In Canada, the balance struck by the Minister must conform to the
principles of fundamental justice under s. 7 of the Charter. It fol-
lows that insofar as the Immigration Act leaves open the possibility
of deportation to torture, the Minister should generally decline to
deport refugees where on the evidence there is substantial risk of
torture.93
91 Suresh, supra note 56 at para 78 [emphasis added].
92 Ibid at para 75.
93 Ibid at para 77.
690 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Following Suresh, ministerial discretion to deport is framed by the consti-
tution, which itself looks to, but does not necessarily follow, international
law.
Overall, this is a bad result for non-citizens in Canada. It is not the
worst possible result, and Mr. Suresh himself won at the Supreme Court
level because he had not been accorded sufficient procedural protections.94
But the principle it establishesof possible deportation to tortureis
damaging. And the method of establishing itprising apart Charter
rights and international rights, and introducing to immigration law the
device of constitutionalized ministerial discretionholds the promise of
worse to come. It is notable that in the companion case, an Iranian citizen
who raised the same argument was found to be deportable because he had
been accorded adequate procedural rights and because the finding that he
did not face a prima facie risk of torture was reasonable.95 It is legally ir-
relevant but impossible to ignore that Suresh was argued in May 2001
and the decision was handed down in January 2002. The Court deliberat-
ed throughout the horror of the 9/11 attacks and their aftermath. This
was the worst possible time for an individual suspected of raising funds
for terrorists to be before any court. Interestingly, despite its origins in
the immigration legislation, the section 7 interpretation here did not
make reference to an immigration context. Indeed, while the context here
was unnamed, the decision shares much with the security context that
emerged in subsequent immigration cases to come to the Court.
The next case to arise, however, was Lavoie96 one of only two in the
data set dealing squarely with a rights claim by a non-citizen that has
nothing to do with the border. Lavoie was handed down eight weeks fol-
lowing Suresh and settled a challenge to the provisions of the Public Ser-
vice Employment Act,97 which establish a preference for Canadian citizens
in some types of public-service employment competitions. The Court up-
held this limitation, with four judges finding an equality rights infringe-
ment saved by the reasonable limitation analysis of section 1 of the
94 See ibid at para 121.
95 Ahani v Canada (Minister of Citizenship and Immigration), 2002 SCC 2, [2002] 1 SCR
72. It is important to note that, to the best of my knowledge, the Canadian government
has not used the discretion open to it under Suresh to deport anyone to face torture af-
ter having concluded that there was a prima facie risk.
96 Supra note 56.
97 RSC 1985, c P-33, as repealed by SC 2003, c 22.
HOW THE CHARTER HAS FAILED NON-CITIZENS IN CANADA 691
Charter98 and two additional judges finding no equality rights infringe-
ment.99
Justice Bastarache, with whom the larger group agreed, reasoned that
The plurality judges differed sharply on the effect of the provisions.
the claimants in this case felt legitimately burdened by the idea
that, having made their home in Canada, … their professional de-
velopment was stifled on the basis of their citizenship status. Their
subjective reaction to the citizenship preference no doubt differed
from their reaction to not being able to vote, sit in the Senate, serve
on a jury, or remain in Canada unconditionally.100
Arguing from the proposition that work and employment are fundamen-
tal aspects of this society, he concluded that [d]iscriminination in these
areas has the potential to marginalize immigrants from the fabric of Ca-
nadian life and exacerbate their existing disadvantage in the Canadian
labour market.101 In assessing whether this limitation is justifiable, Jus-
tice Bastarache called attention both to the prevalence of similar provi-
sions in the legislation of other jurisdictions and to the International Cov-
enant on Civil and Political Rights, which protects the access of citizens to
public-service employment.102 He also noted that the existing provision is
a preference, not a bar, which applies only to open competitions. In con-
trast to this approach, Justices Arbour and LeBel, in separate opinions,
would have found that there was no equality infringement. As Justice
LeBel summarized, The citizenship preference does not affect the essen-
tial dignity of non-citizens. It is but a stage in an open process of integra-
tion in a fully shared citizenship.103
The dispute among the plurality judges was over the terrain of citi-
zenship and equality. Justice Bastaraches judgment elevates the im-
portance of work to human dignity and social participation over the other
98 Justice Bastarache, with whom Justices Gonthier, Iacobucci, and Major concurred.
99 Justices Arbour and LeBel.
100 Lavoie, supra note 56 at para 52.
101 Ibid.
102 Ibid at para 56. See International Covenant on Civil and Political Rights, supra note 2,
art 25(c):
Every citizen shall have the right and the opportunity, without any of the
distinctions mentioned in article 2 and without unreasonable restrictions:
…
country.
(c) To have access, on general terms of equality, to public service in his
103 Lavoie, supra note 56 at para 124. Justice Arbour shared this view and argued strongly
that equality rights infringements ought never to be saved by the section 1 provisions
(ibid at paras 86-95).
692 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
citizenship privileges of formal political participation. This analysis is a
strong endorsement of a robust social citizenship reminiscent of the clas-
sic T.H. Marshall conception.104 The reasoning is potentially further
reaching than that in Andrews but has been lost because of the ultimate
finding in the case. It is also instructive to see how the facts here are dis-
tinguished from the Andrews reasoning. It is clear that public-service em-
ployment is different from, and more publicly valuable to the state than,
working as a lawyer. It is precisely on this point that the dissentients dis-
agree with all of the plurality judges, finding instead that this case is in-
distinguishable on the question of discrimination from Andrews.105 In
terms of access to international human rights norms, in Lavoie, the inter-
national instrument was not used in directly interpreting the content of
Charter rights, but instead was marshalledsomewhat indirectlyas ev-
idence against the non-citizen claim in the section 1 analysis.
Lavoie joins Andrews as one of only two cases that are centrally fo-
cused on the rights claims of permanent resident non-citizens and are dis-
tinct from the border-crossing context of immigration law. The other case
that considers a nonborder situation, Fraser, does not address non-
citizenship directly, but rather, it is relevant only because of the missed
opportunity to do so.
The next non-citizen claim to reach the Supreme Court was
Mugesera.106 The central issues before the court were the appropriate
standard of review for Immigration and Refugee Board findings of fact
and the standards to be met in issuing a deportation order, and thus they
were almost entirely in the province of administrative law.107 As was the
case in Baker, the Court did not use the Charter in framing its analysis.
Indeed, the only reference to the Charter in the decision appears in the
discussion of the Federal Court of Appeals decision below.108 What is no-
table, however, is that the Court responded to Mr. Mugeseras arguments
with a detailed engagement with international law.
Lon Mugesera was a Rwandan citizen who, along with his family, ob-
tained permanent residency in Canada in 1993. Two years later, the Ca-
104 TH Marshall, Citizenship and Social Class in Citizenship and Social Class and Other
Essays (Cambridge, UK: Cambridge University Press, 1950) 1.
105 Lavoie, supra note 56 at para 1, McLachlin CJC & LHeureux-Dub J.
106 Supra note 56.
107 The ruling in Mugesera shares much with that in Khosa (for a discussion of Khosa, see
infra note 168-72 and accompanying text). The key distinction between these two is
that Mugesera predated the Courts important ruling in Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 SCR 190 [Dunsmuir]. Thus, Khosa presented an opportunity to
clarify the effect of Dunsmuir on the Immigration and Refugee Board.
108 Mugesera, supra note 56 at para 31.
HOW THE CHARTER HAS FAILED NON-CITIZENS IN CANADA 693
nadian government became aware that he had delivered a speech at the
outset of the Rwandan genocide that arguably incited murder, hatred, and
genocide, and was therefore a crime against humanity. The Supreme
Court ultimately upheld the Immigration and Refugee Boards finding
that Mr. Mugesera was inadmissible because reasonable grounds existed
to believe that he had committed a crime against humanity prior to enter-
ing Canada.109
The Court in Mugesera issued a unanimous judgment, attributed
jointly to all eight members of the panel, and this ruling was the Courts
first opportunity to comment on subsection 318(1) of the Criminal Code,
which implements the Genocide Convention.110 As well, it was a rare op-
portunity to interpret the 2000 Crimes Against Humanity and War
Crimes Act.111 As befits this context, the reasoning was meticulous, includ-
ing a brief summary of Rwandas history and a full reproduction of a
translated version of Mr. Mugeseras speech. The Court echoed Bakers
reasoning, despite the distinction that here the international standards in
question had been explicitly implemented:
The importance of interpreting domestic law in a manner that ac-
cords with the principles of customary international law and with
Canadas treaty obligations was emphasized in Baker v. Canada. In
this context, international sources like the recent jurisprudence of
international criminal courts are highly relevant to the analysis.112
The result is the most thorough and nuanced engagement with interna-
tional law in any Supreme Court case involving the claim of a non-citizen.
There is some irony in this fact, given that the international standards
are here used against the claims of the non-citizen, but the Courts ap-
proach is wholly admirable in its detailed use of a range of domestic, for-
eign, and international sources. Mugesera is also distinguishable from
many cases in this data set in that the Charter argument that had been
influential below was based on section 2(b) free speech protections, and
thus this was not a case of turning to international law to interpret the
Charter itself. These features make the Mugesera decision stand out de-
109 Mr. Mugesera lost his final bid to avoid deportation when the Federal Court dismissed
a last-minute motion for a stay of deportation: Mugesera v Canada (Minister of Citizen-
ship and Immigration), 2012 FC 32, 7 Imm LR (4th) 316. On January 23, 2012, he was
put on a plane headed for Kigali, Rwanda.
110 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December
1948, 78 UNTS 277, Can TS 1949 No 27 [Genocide Convention]. Section 318 of the
Criminal Code (RSC 1985, c C-46) was adopted by Parliament in 1970.
111 SC 2000, c 24. This was the first case in which this act was interpreted by the Supreme
Court of Canada.
112 Mugesera, supra note 56 at para 82 [reference omitted].
694 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
spite its commonality with the majority of the cases in the set: at its core,
it is an argument by a non-citizen for a right to remain in Canada.
A few months later, the Court ruled in Medovarski.113 The reach of this
decision is limited because it interpreted a transitional provision of the
2002 Immigration and Refugee Protection Act, and thus its specific hold-
ing can only apply to other non-citizens whose circumstances overlap the
time frames of two pieces of legislation, the Immigration and Refugee Pro-
tection Act and its predecessor, the Immigration Act. What the Medovar-
ski decision did do, however, was reiterate and extend the Courts ap-
proach to section 7 of the Charter. Two individuals stand behind the
Medovarski ruling. Both were non-citizens who had been convicted of
crimes in Canada and sentenced to more than two years in jail. As such,
under the Immigration and Refugee Protection Act, they were not entitled
to a merits appeal to the Immigration and Refugee Board of their deporta-
tion orders.114 Both appellants argued that Charter rights were engaged
because deportation threatens liberty and security of the person. This ar-
gument was dismissed with a brief reference to Chiarellis ruling that de-
portation in itself cannot implicate the liberty and security interests pro-
tected by s. 7 of the Canadian Charter of Rights and Freedoms.115 The
Court further held that, even if liberty and security interests were en-
gaged and even if the transition between the two statutes operated unfair-
ly, any unfairness … [did] not reach the level of a Charter violation.116
Writing for the Court, Chief Justice McLachlin also found that the new
legislation indicated an intent to prioritize security and that [t]his
[marked] … a change from the focus in the predecessor statute, which em-
phasized the successful integration of applicants more than security.117
This is, therefore, the first ruling that explicitly names security as an im-
migration objective. As such, it foreshadows directly the ruling in Char-
kaoui v. Canada (Citizenship and Immigration) (Charkaoui),118 which
came seventeen months later.
The Supreme Court of Canadas ruling in Charkaoui is the most im-
portant case postdating Singh and Andrews because of the range of rights
it dealt with and because those rights are at the core of democratic gov-
ernance and the rule of law. While both Singh and Andrews set unique
113 Supra note 56.
114 See IRPA, supra note 24, s 64. Under the former Immigration Act, such an appeal was
available to those who, like the appellants, were sentenced to more than two years.
115 Medovarski, supra note 56 at para 46.
116 Ibid at para 47.
117 Ibid at para 10.
118 Charkaoui (2007), supra note 56.
HOW THE CHARTER HAS FAILED NON-CITIZENS IN CANADA 695
and vital precedents for non-citizens before the courts in Canada, Char-
kaoui strongly delineated the limits of both equality and liberty, as well as
the limits of the rule of law as applied to non-citizens.119 At issue in Char-
kaoui were the provisions of the Immigration and Refugee Protection Act
that allow for the long-term detention without trial of some non-citizens
awaiting deportation on the basis of evidence that the state is entitled to
keep secret.120 Adil Charkaoui had been detained in 2003 and, at the time
of the hearing, had been recently released on very strict conditions.121
Hassan Almrei and Mohamed Harkat, whose appeals were joined with
Mr. Charkaouis, had been jailed even longer.122 All three men were sus-
pected of terrorist links and activities.123 Reflecting the importance of the
issues at stake, the Court heard the case over three full hearing days, a
rare departure from its half-day-per-matter norm and comparable to the
four-day hearing for the Quebec secession reference in 1998.124 Further-
more, eighteen parties were granted intervenor status, which is similarly
exceptional.
Charkaoui raised two interrelated issues. The first was to what extent
the state is entitled to rely on evidence that it is not willing to make
available to the individual concerned because of concerns about national
security and to security arrangements shared with other countries. The
119 Not surprisingly, the ruling has attracted extensive commentary: see e.g. Christiane
Wilke & Paula Willis, The Exploitation of Vulnerability: Dimensions of Citizenship
and Rightlessness in Canadas Security Certificate Legislation (2008) 26:1 Windsor YB
Access Just 25; Alex Schwartz, The Rule of Unwritten Law: A Cautious Critique of
Charkaoui v. Canada (2008) 13:2 Rev Const Stud 179; Rayner Thwaites, Discriminat-
ing Against Non-citizens Under the Charter: Charkaoui and Section 15 (2009) 34:2
Queens LJ 669.
120 The relevant provisions make up division 9 of the IRPA (supra note 24, ss 76-87.2).
121 Mr. Charkaoui was released on February 18, 2005, on $50,000 bail. The conditions of
his release included a daily curfew beginning at 8:00 p.m. and lasting to 8:30 a.m.; re-
strictions on movement outside of his residence during the permitted hours (i.e., accom-
paniment by one of his parents or his wife for any movement outside of his residence);
prohibition on any movement outside of the Island of Montreal; surrender of his pass-
port; monitoring through the use of an electronic bracelet; police access to his residence
at all times and without a warrant; and complete prohibitions on the use of any com-
puter, fax machine, cellular telephone, or any other electronic communication device,
with the exception of a single residential telephone: see Charkaoui (Re), 2005 FC 248 at
para 86, 252 DLR (4th) 601.
122 Mr. Harkat had been detained in 2002 and was released on May 23, 2006, on conditions
that the Court considered to be harsher than those applied to Charkaoui: see Char-
kaoui (2007), supra note 56 at paras 103-104). Mr. Almrei was detained in 2001 and
had not been released at the time of the hearing.
123 As the evidence on which the certificates were based has never been publicly aired,
there is little more that can be said about the basis for detention.
124 See Reference re Secession of Quebec, [1998] 2 SCR 217, 161 DLR (4th) 385.
696 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
second is what to do with individuals who cannot be deported because
they face a risk of torture, death, or other forms of severe harm if re-
turned to their country of nationality (and, of course, no other country will
take them). The second issue picks up directly from the Suresh ruling and
examines the consequences of a decision that a person is not deportable. If
that person is considered to be dangerous, states have limited options.
The provisions challenged in Charkaoui provided for long-termarguably
indefinitedetention in Canada, without trial, for the rare individual who
would fall within these provisions and would therefore be subject to what
Canadian immigration law calls a security certificate.125 These two is-
sues are not faced by Canada alone, and in the final section of the paper, I
will consider the varying responses in other common law jurisdictions. It
is worth pointing out that there was never (at least publicly) any serious
discussion of prosecuting any of these three men, leaving open the distinct
possibility that the government had evaluated the evidence and concluded
that it would not withstand the level of scrutiny required by a criminal
trial.
The most remarkable observation about Charkaoui, in assessing ac-
cess for non-citizens in Canada to international human rights protections,
is that the unanimous ruling penned by the Chief Justice did not make
reference to a single international human rights instrument that is appli-
cable in Canada.126 This is particularly important in light of the fact that
the core liberty rights at issue here are reflected in the most well-
established and long-standing international instruments127 and, as such,
have also been interpreted and commented upon by a range of courts and
international bodies. This interpretive stance indicates that, by 2007, the
Court viewed the content of Charter rights as being fully domesticated,
capable of being interpreted and adapted on the basis of Canadian in-
sights alone. There are some references to jurisprudence elsewhere, for
example, in discussing the United Kingdoms special advocate procedure
as a potential model for Canada,128 in referencing US and UK decisions
concerning indefinite detention of non-nationals,129 and in commenting on
the European Court of Human Rights landmark ruling regarding cruel
125 The basic framework for security certificates was introduced into Canadian law in 1991:
see Immigration Act, supra note 24, s 40. Since that time, thirty-one certificates have
been issued, concerning twenty-seven individuals.
126 Reference was made, in discussing UK jurisprudence, to the Convention for the Protec-
tion of Human Rights and Fundamental Freedoms (4 November 1950, Eur TS 5).
127 See e.g. International Covenant on Civil and Political Rights, supra note 2, art 9 (which
also stipulates the right to know the case against oneself). See also Universal Declara-
tion, supra note 2 at 73.
128 Charkaoui (2007), supra note 56 at paras 80-84.
129 Ibid at paras 124-27.
HOW THE CHARTER HAS FAILED NON-CITIZENS IN CANADA 697
and unusual punishment in the case of the death row phenomenon in
the United States.130 These references make up only 10 of the judgments
143 paragraphs, and none of them engage with the contents of particular
rights. The US and UK cases on indefinite detention are those that would
be potentially applicable in Charkaoui, but the Court both distinguishes
them131 and asserts that its ruling is consistent with them.132 The ruling
does not consider the Refugee Convention, despite both Mr. Harkat and
Mr. Almrei having refugee status.
The Charkaoui argument comprised an array of Charter challenges to
all aspects of the security certificate procedure.133 The Court found for the
appellants on two points: first, allowing no access to the central evidence
was a breach of fundamental principles of justice (section 7) that was not
justifiable because it was neither minimally impairing nor the least intru-
sive option; and second, that allowing no review of detention for 120 days
for foreign nationals was a breach of protections against arbitrary deten-
tion (sections 9 and 10(c)) and should be brought in line with the forty-
eight-hour review provision applicable to permanent residents. Overall,
the ruling is disappointing for non-citizens. Most importantly, the Court
found that, because regular reviews of detention are provided for in the
legislation and because guidelines have been developed by the courts, the
detention is constitutional, despite the fact that it can continue for an in-
determinate amount of time. Reaching this conclusion without reference
to international law is doubly surprising.
The Charkaoui ruling made several important statements that may
flow into other rulings related to non-citizens. While the issues in Char-
kaoui were firmly in the province of immigration law, the Court described
the context for section 7 rights analysis as a security context rather than
an immigration context.134 This context is a marked departure from that
130 Ibid at para 98. The case in question is Soering v United Kingdom (1989), 161 ECHR
(Ser A) 4, 11 EHRR 439.
131 The IRPA, unlike the UK legislation under consideration in Re A, does not authorize
indefinite detention and, interpreted as suggested above, provides an effective review
process that meets the requirements of Canadian law (Charkaoui (2007), supra note
56 at para 127).
132 These conclusions are consistent with English and American authority (ibid at para
124).
133 The Court answered twelve constitutional questions: see ibid at para 143.
134 Ibid at paras 19 ff. The tone is clearly set by the opening paragraph of the judgment:
One of the most fundamental responsibilities of a government is to en-
sure the security of its citizens. This may require it to act on information that
it cannot disclose and to detain people who threaten national security. Yet in
a constitutional democracy, governments must act accountably and in con-
formity with the Constitution and the rights and liberties it guarantees.
698 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
described in Chiarelli. Whether all immigration issues have become secu-
rity issues remains to be seen, but this possibility was certainly signalled
in Medovarski. In quickly dismissing the equality rights arguments about
differential treatment of non-citizen terror suspects, the Court stated that
s. 6 of the Charter specifically allows for differential treatment of citizens
and non-citizens in deportation matters.135 This is a broad stretch from
the wording of section 6, which says nothing about deportation and is
primarily directed to entry rights for citizens and mobility rights between
provinces for citizens and permanent residents.136 Such an extension of
the content of what might previously have been argued to be a statement
of a straightforward positive right does not augur well for future distinc-
tions between citizens and non-citizens and cuts directly against the in-
clusive interpretive spirit of Singh. Indeed, in the UK, the distinction be-
tween citizen and non-citizen terror suspects has been found impermissi-
ble once deportation is seen as a remote possibility.137 In Charkaoui, the
Court instead found that, despite the lengthy detention and no evidence of
impending deportation, the provisions remained meaningfully tied to de-
portation and therefore permissible.138 In addition, while the Court found
that foreign nationals ought to benefit from the same detention review
These two propositions describe a tension that lies at the heart of modern
democratic governance. It is a tension that must be resolved in a way that re-
spects the imperatives both of security and of accountable constitutional gov-
ernance (ibid at para 1).
135 Ibid at para 129
136 Section 6 of the Charter says in full:
(1) Every citizen of Canada has the right to enter, remain in and leave
(2) Every citizen of Canada and every person who has the status of a
Canada.
permanent resident of Canada has the right
(a) to move to and take up residence in any province; and
(b) to pursue the gaining of a livelihood in any province.
(3) The rights specified in subsection (2) are subject to
(a) any laws or practices of general application in force in a province
other than those that discriminate among persons primarily on the
basis of province of present or previous residence; and
(b) any laws providing for reasonable residency requirements as a
qualification for the receipt of publicly provided social services.
(4) Subsections (2) and (3) do not preclude any law, program or activity
that has as its object the amelioration in a province of conditions of individuals
in that province who are socially or economically disadvantaged if the rate of
employment in that province is below the rate of employment in Canada.
137 See Belmarsh, supra note 68.
138 Charkaoui (2007), supra note 56 at para 131.
HOW THE CHARTER HAS FAILED NON-CITIZENS IN CANADA 699
provisions as permanent residents, the heft of the decisionright from
the joining of the cases of two foreign nationals with that of one perma-
nent residentputs permanent residents firmly on the side of outsiders
and thus cuts against what might have been read into Andrews.139
The most positive statement for non-citizens in Charkaoui may prove
to be the clarification that, despite Medovarski and even Chiarelli, the
conditions surrounding deportation may engage section 7 rights:
Medovarski thus does not stand for the proposition that proceed-
ings related to deportation in the immigration context are immune
from s. 7 scrutiny. While the deportation of a non-citizen in the im-
migration context may not in itself engage s. 7 of the Charter, some
features associated with deportation, such as detention in the course
of the certificate process or the prospect of deportation to torture,
may do so.140
Following Charkaoui, the government altered the legislation to intro-
duce a special advocate procedure and to bring both the review schedule
and the burden of proof for foreign nationals in line with those for perma-
nent residents. What remains in Canadian law is a procedure whereby
non-citizens can be detained for an indeterminate amount of time on the
basis of evidence that they can never see.141 While it is too soon to see
what the full reach of Charkaoui will be, the next opportunity is looming,
139 Foreign national is defined in IRPA (supra note 24, s 2(1)) as a person who is neither a
citizen nor a permanent resident. Mr. Charkaoui had permanent resident status; the
others did not, but were refugees.
140 Charkaoui (2007), supra note 56 at para 17.
141 As for the three appellants themselves, none of them have been deported from Canada.
The security certificate against Mr. Charkaoui was quashed by a federal judge in Octo-
ber 2009 (Charkaoui (Re), 2009 FC 1030, [2010] 4 FCR 448), following the federal gov-
ernments refusal to disclose certain information allegedly relating to him on the
grounds that it would endanger national security. After his security certificate was
quashed, Mr. Charkaoui called on the government to apologize and to compensate him
for time spent in detention. In 2010, he sued the government for damages, and litiga-
tion is in process with the government denying any claim for compensation. His appli-
cation for citizenship, filed in 1999, is still under review. As of April 2012, the federal
government has neither apologized nor offered any compensation.
Mr. Almreis security certificate was quashed by the Federal Court in December
2009: Almrei (Re), 2009 FC 1263, [2011] 1 FCR 163. He is currently suing the federal
government for false imprisonment, negligent investigation, negligence, misfeasance in
public office, and breach of his section 7, 9, and 12 Charter rights. Mr. Harkat is still
fighting his deportation order. In February 2012, he appealed from a December 2010
Federal Court decision upholding the security certificate against him. The Federal
Court of Appeal allowed this appeal in part and returned the matter to the Federal
Court for a new assessment of the reasonableness of the certificate in light of the appel-
late ruling on evidentiary questions: Harkat v Canada (Citizenship and Immigration),
2012 FCA 122, 429 NR 1.
700 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
with the introduction of a new detention scheme that proposes to sharply
reduce detention review rights for some refugee claimants.142
A follow-up matter, also styled Charkaoui v. Canada (Citizenship and
Immigration),143 was argued two years after the first hearing. This time,
the narrow issues before the Court were the questions of appropriate
remedy for destruction and late disclosure of information by the Canadian
Security Intelligence Service. The Court held that liberty and security in-
terests protected by the Charter were engaged because of the seriousness
of the security certificate procedure.144 This conclusion follows logically
from the first Charkaoui ruling. The Court distinguished the duty of dis-
closure required in this setting from that in a criminal trial and used the
Charter as a guide to develop the duty.145 In regard to the policy of de-
stroying original notes, the Court stated that the destruction by CSIS of-
ficers of their operational notes compromises the very function of judicial
review.146 Despite this, however, there was no additional remedy for Mr.
Charkaoui beyond the postponement that he had already been granted.
The Court rejected the application for a stay that would have brought the
security certificate proceedings to an end, on the basis that what was at
issue was an interlocutory, rather than a final, ruling and that a stay
would only be appropriate in the clearest of cases. Instead, the Court
ruled that the designated judge would need to take the Charter breach in-
to account in ultimately ruling on the reasonableness of the certificate.147
The final case in this section is Fraser.148 This was a challenge to the
2002 Ontario Agricultural Employees Protection Act, which established a
separate labour-relations regime for farm workers in Ontario who were
excluded from the Labour Relations Act.149 The new legislation was chal-
lenged on the basis that it infringed association rights by restricting bar-
gaining and on equality grounds for treating agricultural workers differ-
ently from other workers. The case raised an important non-citizens
rights claim because of the high number of non-citizens in the agricultural
sector in Ontario and because of the role of Canadas Seasonal Agricultur-
142 See Protecting Canadas Immigration System Act, supra note 8.
143 Charkaoui (2008), supra note 56.
144 Ibid at para 50.
145 Ibid at para 53.
146 Ibid at para 62.
147 Ibid at para 77.
148 Supra note 46.
149 Agricultural Employees Protection Act, 2002, SO 2002, c 16; Labour Relations Act, 1995,
being Schedule A to the Labour Relations and Employment Statute Law Amendment
Act, 1995, SO 1995, c 1.
HOW THE CHARTER HAS FAILED NON-CITIZENS IN CANADA 701
al Worker Program (SAWP).150 The non-governmental organization Justi-
cia for Migrant Workers was granted intervenor status in the case. In its
joint factum with the Industrial Accident Victims Group of Ontario, Justi-
cia for Migrant Workers summarized its argument by saying that the in-
terests of migrant agricultural workers, other temporary foreign workers
and undocumented workers should be further considered and contextual-
ized in the interpretation of these Charter rights.151 Its argument directly
addressed the vulnerabilities of non-citizen workers and the high levels of
risk involved in agricultural work. The ruling in Fraser was a clear
statement that rights were breached, but without a clear statement on
remedy, its impact is considerably weakened.
Fraser differs from the other cases in the data set because its rights
claim was not brought exclusively by non-citizens. Despite this, however,
the case must be counted here for two reasons. First, the effect of the im-
pugned provisions on non-citizens was put directly before the Court, and
second, it will be difficult for non-citizen agricultural workers to bring a
separate challenge to the Court given this ruling. The role of foreign
workers in the agricultural sector is well-known, and the facts and argu-
ments on this ground would not have been a surprise to the Court. Never-
theless, all four sets of reasons were silent with regard to non-citizen farm
workers. The non-citizenship status of many agricultural workers appears
only in Justice Abellas dissenting reasons in a citation from David Beat-
tys work.152 The majority judges overturned the decision of the Ontario
Court of Appeal and upheld the legislation. The ruling draws explicitly on
international rights statements in some detail, including two Internation-
al Labour Organization conventions, the International Covenant on Civil
and Political Rights and the International Covenant on Economic, Social
and Cultural Rights. In short, there is a greater engagement with inter-
national human rights in this case than in the more recent cases that ex-
plicitly concern non-citizens. Justice Deschamps, in her separate opinion,
concurring in the result, did voice the concern of many advocates that it
150 The total number of SAWP workers in Ontario for 2010 was 18,325: see Human Re-
sources and Skills Development Canada, Temporary Foreign Worker Program: Labour
Market Opinion (LMO) Statistics; Annual Statistics, 2007-2010 (30 June 2011), table 9
(annual), online: Human Resources and Skills Development Canada
mately the same number of migrant workers on Ontario farms came from outside the
SAWP, through the agricultural or low-skilled stream of the Temporary Foreign Work-
ers Program.
151 Fraser, supra note 46 (Factum of the Intervener, Justicia for Migrant Workers and In-
dustrial Accident Victims Group of Ontario at para 1).
152 Fraser, supra note 46 at para 348, citing David M Beatty, Putting the Charter to Work:
Designing a Constitutional Labour Code (Kingston: McGill-Queens University Press,
1987). The citation refers to the barriers to migrant workers political participation.
702 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
had become very difficult to have new grounds of discrimination recog-
nized under section 15.153 As non-citizenship was recognized as a protect-
ed ground as long ago as Andrews, it is perhaps, in hindsight, unfortunate
for migrant agricultural workers that the challenge arose in this setting,
where the interests of citizens and non-citizens were combined as the in-
terests of agricultural workers.
Fraser is the final case where non-citizens rights claims were present-
ed to the Court and where the Court responded in rights terms, drawing
on the Charter, international standards, or both. Over a thirty-year peri-
od, the majority of cases that fit within this framework involved a ques-
tion of deportation. In a deportation setting, rights language is often inef-
fectual for individuals, as the right of a sovereign state to control its bor-
ders typically emerges as the ultimate trump right.154 This trend is ap-
parent in this data set. Equally, the argument of a number of scholars
that permanent residents have rights protections equivalent to those of
citizens was less apparent over time in this data set. Permanent residency
was a failing argument in Lavoie and Medovarski, and it was irrelevant
as a distinction in Charkaoui. Ironically, only in Fraser were citizens and
non-citizens treated similarly, to the likely detriment of a discrete non-
citizens claim. In sum, then, the Supreme Court of Canada rights juris-
prudence shows either that the trend toward human rights overwhelming
citizen rights has ended or that it was never observable in Canada, Singh
and Andrews notwithstanding. This group of cases also demonstrates that
the jurisprudence has sharply departed from the promise of Singh and
Andrews. None of the subsequent non-citizens cases feature a successful
equality analysis, in part because of the difficulty of framing a comparator
group affected by the Immigration and Refugee Protection Act. In the case
of section 7 rights, the broad reach of Singh to extend these rights to eve-
ryone and the importance of procedural rights for meaningful refugee pro-
tection have vanished into what is now a security context.
These cases, as a group, are the measure of non-citizens rights claims
before the Supreme Court of Canada in the Charter era. They demon-
strate both the extent of rights protections developed explicitly for non-
citizens and the capacity of non-citizens to benefit from the protection of
international human rights norms. They do not, however, provide the full
picture of how non-citizens have fared before the Supreme Court of Cana-
da during the Charter era. To complete the picture, I next address the
remaining case groups, before turning to consider what might explain
153 Fraser, supra note 46 at para 319.
154 See Catherine Dauvergne, Humanitarianism, Identity, and Nation: Migration Laws of
Australia and Canada (Vancouver: University of British Columbia Press, 2005) ch 7
[Dauvergne, Humanitarianism, Identity, and Nation].
HOW THE CHARTER HAS FAILED NON-CITIZENS IN CANADA 703
these outcomes, which in important ways, put international human rights
protections out of reach for non-citizens in Canada.
B. Cases Without Rights: Making Sense of Rights Claims in the Province of
Administrative Law
The second group of cases is where a rights claim of some sort was
presented to the Supreme Court of Canada and the Court responded
without relying on either the Charter or international human rights law.
All of these cases began with a claim related to Canadas immigration leg-
islation, and thus the terrain covered here is that of administrative law,
with its rich array of procedural rights. It is, of course, the case that some
procedural claims, such as the one in Singh, have been considered as
principles of fundamental justice under section 7 of the Charter. This set
of cases, therefore, serves to illustrate the types of claims that have nei-
ther become Charter claims nor have triggered an engagement with in-
ternational human rights. There is a Charter story to be told by noting
which potential Charter arguments fail to have any resonance at all.
There is, of course, much shared terrain between this group and the
first one. Seven of the nine cases above were challenges to immigration
provisions. One of those cases, Baker, has become a cornerstone of Cana-
dian administrative law and is very much part of the landscape of admin-
istrative rights protections. Beyond Baker, a number of the non-citizens
right claims that the Court did respond to in human rights terms also in-
clude significant administrative law implications. My explicit focus on in-
vestigating whether international human rights norms serve as an alter-
native to Charter rights does tend to exaggerate the distinction between
these two groups, making a hard line appear where a blurred and porous
border is more appropriate.
The dominant theme in this group is the ambit of discretion for bu-
reaucratic immigration decision makers at various levels. Chronologically,
the first case involving the discretion of immigration officers was the
Jiminez-Perez ruling, where the Court affirmed the duty to consider ap-
plications made on humanitarian and compassionate grounds and that
such consideration could be compelled by the courts.155 This brief decision
predates all of those in the first set, including Singh. The second decision
was Prassad, where the Court ruled that an adjudicator conducting an in-
quiry leading to a deportation order was not required to adjourn and wait
155 Canada (Minister of Employment and Immigration) v Jiminez-Perez, [1984] 2 SCR 565,
14 DLR (4th) 609 [Jiminez-Perez].
704 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
for the conclusion of other applications under the Immigration Act.156 The
majority held that whether to adjourn was a matter completely in the
hands of the adjudicator.157 In the 1995 Chen ruling, the Court endorsed
the dissentient below in a one-paragraph ruling.158 At issue was the range
of permissible considerations for a visa officer when assessing whether the
points system score adequately reflects an economic migrants likelihood
of successful establishment in Canada. The result confined the relevant
factors to those connected to making a living in Canada.159 In the final de-
cision concerning bureaucratic decision makers, Hilewitz v. Canada (Min-
ister of Citizenship and Immigration), the Court ruled in 2005 that it was
permissible to consider the personal wealth of an economic-class perma-
nent residency applicant when assessing a question of health inadmissi-
bility on the grounds of anticipated high demand on social services.160 In-
tervenors in this case had argued that the statute must be interpreted in
light of both the Charter and international human rights, but neither ma-
jority nor dissenting judgments approached the case in this way.161
A second cluster of cases concerns the roles of immigration tribunals.
The first of these, Kwiatkowsky, was argued within weeks of the Charter
coming into effect in 1982.162 Neither party made Charter arguments, and
the appellants factum was filed before the Charter was in force. The issue
was the standard of proof on a preliminary assessment of a refugee rede-
termination proceeding, and the analysis was a brief and tightly struc-
156 Prassad v Canada (Minister of Employment and Immigration), [1989] 1 SCR 560, 57
DLR (4th) 663 [Prassad cited to SCR]. The applicant had applied for a ministers permit
under section 37 of the former Immigration Act (supra note 24) and also for permanent
residence on humanitarian grounds.
157 Prassad, supra note 156 at 578. Justice LHeureux-Dub penned a strongly worded dis-
senting opinion reasoning that, since the minister is not allowed to issue a permit under
section 37 once a deportation order has been made, allowing the inquiry to go ahead
would have the effect of ending the section 37 application without examining its merits.
158 Chen v Canada (Minister of Employment and Immigration), [1995] 1 SCR 725, 123
DLR (4th) 536, revg [1994] 1 FC 639, 109 DLR (4th) 560 [Chen]. The dissenting opinion
from the Federal Court of Appeal judgment that carried the day in the Supreme Court
was written by Justice Robertson.
159 This test has been overtaken by the adaptability provisions of the Immigration and
Refugee Protection Regulations, SOR/2002-227, ss 83, 104-105.
160 2005 SCC 57, [2005] 2 SCR 706.
161 Ibid (Factum of the Intervener, Canadian Association for Community Living and Eth-
no-Racial People with Disabilities Coalition) [unpublished, archived at the Supreme
Court of Canada Registry].
162 Kwiatkowsky v Canada (Minister of Employment and Immigration), [1982] 2 SCR 856,
(sub nom Re Kwiatkowsky and Minister of Manpower & Immigration) 142 DLR (3d) 385
[Kwiatkowsky].
HOW THE CHARTER HAS FAILED NON-CITIZENS IN CANADA 705
tured statutory interpretation.163 Interestingly, Justice Wilson drew on
this decision in building her Charter argument in Singh.164 The next case
involving immigration tribunals roles came twenty years later in the
2002 Chieu ruling. Here, the Court examined the scope of the discretion-
ary jurisdiction of the Immigration Appeal Division (IAD) of the Immigra-
tion and Refugee Board.165 Under both the former and the current legisla-
tion, the IAD has the power to allow a permanent resident who is faced
with removal from Canada to remain in the country even though the re-
moval order is correct in both fact and law. This capacity to take other fac-
tors into account has become known as the IADs equitable jurisdiction,
in recognition of its fundamental, nonlegal basis.166 The specific issue was
whether the IAD could consider hardships an individual would face in the
place to which they would be returned, or whether there was a require-
ment to limit consideration to domestic hardships. The Court upheld the
broader view of this provision.167 In 2009, this equitable jurisdiction was
again considered by the Court in Khosa.168 The key differences were that
the legislative description of the power had been changed169 and that the
crucial Dunsmuir ruling concerning standards of review had been handed
163 Mr. Kwiatkowsky had argued that the redetermination procedure was unfair because
of the differences that resulted when the refugee claim originated in an inadmissibility
inquiry rather than as an original claim. His argument was rejected. Factums from the
case are on file with the author.
164 Justice Wilson wrote:
I agree with these remarks. The issue directly before this Court in Kwiatkowsky
was not whether there had been a denial of natural justice but whether the Immi-
gration Appeal Board had applied the wrong test in exercising its power under s.
71(1). It is implicit in the Courts decision, however, that the Act imposes limitations
on the scope of the hearing afforded to refugee claimants which it is difficult to rec-
oncile with the principles of natural justice (Singh, supra note 7 at 200).
165 Chieu v Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 SCR
84. This case was handed down with its companion ruling Al Sagban v Canada (Minis-
ter of Citizenship and Immigration), 2002 SCC 4, [2002] 1 SCR 133.
166 See Immigration Act, supra note 24, s 70(1); IRPA, supra note 24, s 67(c). The former
provision referred to the consideration of all the circumstances of the case. The pre-
sent provision refers to humanitarian and compassionate considerations and the best
interests of a child directly affected by the decision, as well as all the circumstances of
the case.
167 The Court also specifically addressed the argument that considering foreign hardship
would amount to creating a backdoor to refugee status and explicitly rejected this view:
Chieu, supra note 165 at paras 84-86.
168 Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339 [Kho-
sa].
169 See the description of the new Immigration and Refugee Protection Act provision supra
note 166.
706 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
down in 2008.170 In Khosa, the Court ruled that IAD decision makers were
entitled to a high degree of deference, so need not be correct when exer-
cising their equitable jurisdiction.171 The plurality judgment authored by
Justice Binnie chided the Federal Court of Appeal for retrying the case:
[C]learly, the majority felt that the IAD disposition was unjust to Khosa.
However, Parliament saw fit to confide that particular decision to the
IAD, not to the judges.172 Substantively and procedurally, Chieu and
Khosa cement the breadth of the IADs discretion under both legislative
formulations.
The final decision in this group is not about the breadth of discretion
but shares a theme with Khosa as the central issue was who got to decide.
The 1994 ruling in Reza originated with a refugee claimant who was re-
jected at an early stage in the process on the basis that his claim had no
credible basis.173 Mr. Reza was ordered deported, and he sought leave for
judicial review (under the pre-1992 procedure174) by the Federal Court of
Appeal. When the Federal Court of Appeal denied his application for
leave, Mr. Reza turned to the Ontario courts, arguing that deportation
would breach his Charter rights. He also sought unique Charter remedies.
The Supreme Court ruled that the Ontario courts could not rehear what
the Federal Court of Appeal had denied leave to hear. The ruling notes
the Charter arguments raised, but does not address them.175
This group of cases illustrates that the range of crucial decisions for
non-citizens in Canada extends beyond the frameworks of the Charter and
international human rights. This observation leads to a number of conclu-
sions. Paramount among these is that discretionary decision making,
which occurs outside a legal framework, is enormously important for non-
citizens. Several of these cases point directly to key aspects of immigra-
tion discretion. For example, the humanitarian and compassionate re-
quests at issue in Jiminez-Perez account for approximately ten thousand
admissions annually over the past five years.176 There is no legal standard
170 Dunsmuir, supra note 107.
171 The majority judges differed considerably in their standard of review analyses, but a
standard of reasonableness was the consensus. Justice Fish, in dissent, agreed with
the reasonableness standard but found the IADs conclusion to be unreasonable.
172 Khosa, supra note 168 at para 17.
173 Reza v Canada, [1994] 2 SCR 394, 116 DLR (4th) 61 [Reza].
174 For a description of the changes made in 1992, see supra note 49.
175 Reza, supra note 173 at 398-99.
176 See Citizenship and Immigration Canada, Facts and Figures 2011: Immigration Over-
view; Permanent and Temporary Residents, online: Citizenship and Immigration Cana-
da
the series of tables titled Permanent Residents by Gender and Category, 1987-2011,
HOW THE CHARTER HAS FAILED NON-CITIZENS IN CANADA 707
for these admissions, and the criteria are highly malleable.177 Similarly,
the so-called equitable jurisdiction of the IAD is outside of legal parame-
ters. While there is more shape to this jurisdiction in the Immigration
and Refugee Protection Act than under the earlier legislation, a decision
maker still has recourse to all the circumstances of the case. The only
decision in this set where the Court ruled to restrict discretionary decision
making in any way was Chen, where the Court confined itself to endors-
ing the dissentient below. While in some circumstances, such as Suresh
and Baker, the scope of discretion has been shaped by Charter or interna-
tional rights, this did not occur in any of these cases.
While all bureaucratic decision makers have some measure of discre-
tion, a number of studies have confirmed that the ambit of discretion is
broader in immigration law and have traced this executive power to the
strong role for the executive in admission to the state generally.178 This
discretionary space is in turn linked to potential weaknesses of rights
claims: once discretionary space is asserted, a rights claim cannot gain
any traction. It becomes irrelevant. This is the shift described by Justice
Iacobucci, writing for a unanimous Court in Chieu:
In my view, this appeal can be decided by applying principles of
administrative law and statutory interpretation, as was the case in
this Courts decision in Baker v. Canada. It is not necessary to ad-
dress directly the scope and content of ss. 7 and 12 of the Canadian
Charter of Rights and Freedoms.179
humanitarian and compassionate admissions are represented by the other immi-
grants figures.
177 See Citizenship and Immigration Canada, IP 5: Immigrant Applications in Canada
Made on Humanitarian or Compassionate Grounds at 7, online: Citizenship and Immi-
gration Canada
The purpose of H&C discretion is to allow flexibility to approve deserving
cases not covered by the legislation. This discretionary tool is intended to up-
hold Canadas humanitarian tradition. Use of this discretion should not be
seen as conflicting with other parts of the Act or Regulations but rather as a
complementary provision enhancing the attainment of the objectives of the
Act.
The humanitarian or compassionate grounds decision-making process is a highly dis-
cretionary one that considers whether a special grant of an exemption from a require-
ment of the Act is warranted. It is widely understood that invoking subsection 25(1) is
an exceptional measure and not simply an alternate means of applying for permanent
resident status in Canada. I have analyzed this discretionary provision in detail in
Dauvergne, Humanitarianism, Identity, and Nation, supra note 154, ch 6.
178 See ibid; Stephen H Legomsky, Immigration and the Judiciary: Law and Politics in
Britain and America (Oxford: Clarendon Press, 1987).
179 Chieu, supra note 165 at para 19 [reference omitted].
708 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
It is therefore true that this set of cases establishes that Charter and hu-
man rights concerns will not be relevant for this range of concerns. Char-
ter principles have, however, extended their reach into some areas of ad-
ministrative law, and thus these responses from the Court could not have
been a foregone conclusion.180
Finally, while these cases show areas where explicit rights arguments
will not take root, it is important not to overlook the powerful remedy
provided by procedural rights. A number of these cases were important
wins for non-citizens. They also serve to confirm the access of non-
citizens to the courts and to rule of law principles, both of which are en-
shrined in important international human rights documents.181
C. Refugee Law: An International Human Rights Claim
The third group of cases is those where the Courts principal ruling in-
volved an interpretation of the Refugee Convention.182 There are four deci-
sions in the group (with one additional companion ruling). This group is
distinct for two reasons. The first is because the central provision of the
Refugee Convention, the definition of a refugee, has been incorporated di-
rectly into Canadian legislation.183 This means that access to the interna-
tional norm is not mediated by Charter interpretation. The second distinc-
tion is the uneasy relationship of the Refugee Convention to international
human rights law.184 Refugee law has grown closer to the core of interna-
tional human rights law over the past two decades, but there is still a gap
between the two paradigms.185 For these reasons, the way the Court ap-
180 For discussion, see Evan Fox-Decent, The Charter and Administrative Law: Cross-
Fertilization in Public Law in Colleen M Flood & Lorne Sossin, eds, Administrative
Law in Context (Toronto: Emond Montgomery, 2008), 169.
181 See International Covenant on Civil and Political Rights, supra note 2, art 9; Refugee
Convention, supra note 23, art 16; International Convention on the Protection of the
Rights of All Migrant Workers and Members of their Families, supra note 2, art 16. See
also the unenforceable provisions in articles 68 of the Universal Declaration, supra
note 2 at 73.
182 Supra note 23.
183 See IRPA, supra note24, ss 95-96; Immigration Act, supra note 24, s 2(1), Convention
refugee.
184 See Catherine Dauvergne, Making People Illegal: What Globalization Means for Migra-
tion and Law (Cambridge, UK: Cambridge University Press, 2008) at 50-68 [Dau-
vergne, Making People Illegal]; Catherine Dauvergne Refugee Law and the Measure of
Globalisation (2005) 22:2 Law in Context 62; Michelle Foster, International Refugee
Law and Socio-economic Rights: Refuge from Deprivation (Cambridge, UK: Cambridge
University Press, 2007).
185 The Refugee Convention is still not listed by the UN as a core human rights instrument:
see Core International Human Rights Treaties, supra note 2.
HOW THE CHARTER HAS FAILED NON-CITIZENS IN CANADA 709
proaches refugee law cannot be taken as a proxy for the Courts approach
to international human rights.
It is also important to point out that these cases are not the only cases
in the data set to concern refugees. The group is based on an engagement
with the Refugee Convention. A number of key cases discussed above did,
of course, concern refugees, refugee claimants, or permanent residents
who were originally refugees.186 In one of the cases in the first group,
Suresh, the Court did engage with the Refugee Convention in some detail.
This engagement, however, was not determinative, and the centerpiece of
the rights analysis there was the Convention Against Torture. Justice
Wilsons opinion in Singh did make use of the Refugee Convention but was
not a ruling on its interpretation. Singh demonstrated how the Refugee
Convention could influence the interpretation of Charter rights, a juris-
prudential feat that has not been repeated.
The first refugee case was Ward, handed down in 1993.187 Ward re-
mains the most important Canadian ruling on interpretation of the refu-
gee definition, and over the intervening two decades, it has been applied
almost daily in first-instance refugee decision making at the Immigration
and Refugee Board. Ward has also influenced refugee decision makers
throughout the common law world.188
The Ward Court explicitly embraced an international law approach to
interpreting the definition contained in the then Immigration Act. Justice
La Forest considered the Refugee Conventions travaux prparatiores, the
views of publicists, the United Nations High Commissioner for Refugees
Handbook, and decisions from both within and outside Canada.189 Most
importantly, Justice La Forest began his reasoning with a clear commit-
ment to international law, stating that, [a]t the outset, it is useful to ex-
186 These cases are Singh, Dehghani, Suresh, Mugesera, Reza, Kwiatkowsky, and two of the
appellants in Charkaoui.
187 Canada (Attorney General) v Ward, [1993] 2 SCR 689, 103 DLR (4th) 1 [Ward cited to
SCR].
188 Ward established an influential approach to the interpretation of particular social
group in the Refugee Convention definition (supra note 23, art 1A(2)). It was also the
first high-level appellate decision to clarify that the risk of being persecuted by private
actors could bring an individual within the ambit of the Refugee Conventions protec-
tion.
189 Ward, supra note 187 at 721, 733-739, citing UNHCR, Handbook on Procedures and
Criteria for Determining Refugee Status Under the 1951 Convention and the 1967
the Status of Refugees, January 1992, UN Doc
Protocol Relating
HCR/IP/4/Eng/REV.1 at paras 37-38, online: UNHCR: The UN Refugee Agency
unanimous decision for what ended up being a four-person Court following Justice Ste-
vensons retirement in June 1992.
to
710 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
plore the rationale underlying the international refugee protection re-
gime.190 He concluded with a clear statement about the object and pur-
pose of the Refugee Convention, stating that [u]nderlying the Convention
is the international communitys commitment to the assurance of basic
human rights without discrimination.191 Justice La Forest did not refer to
international instruments beyond the Refugee Convention, but his inter-
pretive approach followed established treaty-interpretation rules. Charter
arguments were only briefly addressed in the Ward reasons in response to
the intervening Canadian Council for Refugees argument that section 15
equality jurisprudence ought to determine the interpretation of particu-
lar social groups in the refugee definition. Justice La Forest found it un-
necessary to engage with this argument, given that he had rejected the
narrow approach of the court below for other reasons. Despite this explicit
ruling, he did turn to Charter reasoning to guide his antidiscrimination
approach, drawn from international law and applied to the particular so-
cial group standard.192
The Ward decision set a clear direction for the Supreme Courts en-
gagement with the Refugee Convention. Undoubtedly influenced by the
refugee definitions direct incorporation into Canadian domestic law, the
Court looked to international sources and methods in interpreting the def-
inition. This approach did not include looking at human rights instru-
ments beyond the Refugee Convention, but this international trend in ref-
ugee law interpretation was not nearly so well established in 1993 as it is
now. The Charter atmosphere of the early 1990s provided a close parallel
to Justice La Forests view of the Refugee Conventions purpose as an as-
surance of basic human rights without discrimination, and the idea of
an influential atmosphere probably best describes how he turns to Char-
ter jurisprudence without directly engaging the Charter. This is not a case
of access to international standards mediated by the Charter. This deci-
sion established a pattern in Canadian refugee law of direct access to in-
ternational interpretations. This approach has shown considerable endur-
ance, in part because the Supreme Court has taken so few opportunities
to engage with the Refugee Convention.193
190 Ward, supra note 187 at 709.
191 Ibid at 733.
192 Ibid at 738. Justice La Forest turns to the analogous grounds approach to section 15
of the Charter, as outlined in Andrews.
193 Direct recourse to international materials and methods is less common at the Immigra-
tion and Refugee Board, the Federal Court, and the Federal Court of Appeal. An analy-
sis of the tribunal-level jurisprudence is presented in Dauvergne, International Hu-
man Rights, supra note 6.
HOW THE CHARTER HAS FAILED NON-CITIZENS IN CANADA 711
The next Refugee Convention case to reach the Court illustrates this
point. With only four rulings that hinged on interpreting the Convention
over the thirty-year period, Chan v Canada (Minister of Employment and
Immigration) is most notable for what it did not do.194 The appellant in
this case was a Chinese national, allegedly fleeing persecution in the form
of forced sterilization as a consequence of breaching the PRCs notorious
one-child policy. The majority judges decided on the basis of what they
identified as an evidentiary shortcoming at the first instance.195 In sum,
Justice Major wrote that [t]he appellant failed to adduce any evidence to
establish on a balance of probabilities that his alleged fear of forced steri-
lization was objectively well-founded.196 The majority reasons focused en-
tirely on the evidentiary question. Justice Major did make use of the
UNHCR Handbook in his reasons, but he did not interpret key aspects of
the refugee definition that were potentially at issue. Indeed, the Refugee
Convention is silent on evidentiary matters. On the key questions of
whether forced sterilization fit within the interpretation of persecution
and whether the appellant was a member of a particular social group,
Justice Major assumed, without deciding, that a related case in the Fed-
eral Court of Appeal was correct on these points.197 This approach meant
that the Supreme Court of Canada never ruled on these questions, which
were key issues for refugee decision makers around the world.198
Justice La Forest penned a strongly worded dissent in which he em-
phasized that the consideration of basic human rights [is] the appropri-
ate focus of a refugee inquiry.199 He followed the interpretive approach he
had elaborated in Ward and explored definitions of both persecution and
particular social group.200
194 [1995] 3 SCR 593, 128 DLR (4th) 213 [Chan cited to SCR].
195 Justice Major wrote for a majority that included Justices Sopinka, Cory, and Iacobucci.
196 Chan, supra note 194 at 672.
197 Justice Major wrote:
For the purpose of this appeal I am assuming (without deciding) that Cheung
[involving a woman fleeing forced sterilization] was rightly decided and that
the appellant is a member of a particular social group within the meaning of
s. 2(1). However, the appellant cannot attempt to rely upon the Cheung deci-
sion unless he has established that he has a well-founded fear of sterilization
(ibid at 658).
198 See the High Court of Australias ruling in Applicant A v Minister for Immigration and
Ethnic Affairs, [1997] HCA 4, 190 CLR 225. In the United States, there has been specif-
ic statutory recognition that forced abortion and sterilization can constitute persecution
in US law: 8 USC 1101(a)(42) (2006).
199 Chan, supra note 194 at 635. See also generally ibid 634-36.
200 Ibid at 637-46. Justices LHeureux-Dub and Gonthier concurred in the dissent.
712 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Three years later, the Court ruled in Pushpanathan, a case interpret-
ing the provisions of the Refugee Convention that exclude people from ref-
ugee protection based on categories of bad behaviour.201 Mr. Pushpana-
than was facing deportation because of a drug-trafficking conviction, and
the Court was asked to determine whether drug trafficking was contrary
to the purposes and principles of the United Nations so as to exclude him
from refugee protection. Writing for the majority, Justice Bastarche began
his substantive discussion of the Refugee Convention with a review of the
principles of treaty interpretation.202 This approach is, therefore, even
more explicit regarding reliance on international law than was Ward, but
Justice Bastarche also carefully illustrated that his approach is consonant
with Ward on this point.203 Justice Bastarche discussed the antecedents of
the Refugee Convention, the travaux prparatiores, and a range of other
international treaties in considerable detail. He concluded that the court
below erred because it did not take the correct approach to treaty inter-
pretation.204 His analysis followed the Vienna Conventions interpretation
rules and focused closely on the object and purpose of both the Refugee
Convention and the explicit exclusion provision at issue.205 This analysis
led to a focus on the human rights purpose of the Refugee Convention, as
stipulated in Ward, and to the conclusion that drug trafficking, while the
subject of serious international condemnation, is not central to the pur-
poses of the United Nations. Leaving open the possibility of a future shift
in this positioning, he concluded by saying:
Until the international community makes clear its view that drug
trafficking, in one form or another, is a serious violation of funda-
201 Pushpanathan v Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982,
160 DLR (4th) 193 [Pushpanathan cited to SCR]. The refugee exclusions are set out in
article 1F of the Refugee Convention (supra note 23):
whom there are serious reasons for considering that:
The provisions of this Convention shall not apply to any person with respect to
(a) he has committed a crime against peace, a war crime, or a crime against human-
ity, as defined in the international instruments drawn up to make provision in re-
spect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge pri-
or to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United
Nations.
202 Justices LHeureux-Dub, Gonthier, and McLachlin concurred in this judgment.
203 Pushpanathan, supra note 201 at paras 51-54.
204 Ibid at para 55.
205 The basic rules of treaty interpretation are codified in the Vienna Convention on the
Law of Treaties, 23 May 1969, 1155 UNTS 331, art 31, Can TS 1980 No 37.
HOW THE CHARTER HAS FAILED NON-CITIZENS IN CANADA 713
mental human rights amounting to persecution, then there can be
no rationale for counting it among the grounds of exclusion.206
Justice Cory, in dissent, would have found that drug trafficking was a
central purpose of the United Nations but did not disagree with Justice
Bastarache regarding either the interpretive principles at issue or the
purposes of the Refugee Convention.207 Pushpanathan affirmed Wards
approach to interpreting aspects of the Refugee Convention implemented
in Canadas domestic immigration law as belonging firmly to the interna-
tional treaty-interpretation framework. It also reaffirmed the Courts view
that the Refugee Convention has a human rights purpose.
It would be twelve years before the Court returned to Refugee Conven-
tion as a central issue.208 Early in 2010, the Court ruled in Nmeth, ad-
dressing the possibility of extraditing refugees. The decision was handed
down with a companion ruling, Gavrila.209 Both Mr. Nmeth and Mr.
Gavrila had obtained refugee protection in Canada because of their risk of
being persecuted as ethnic Roma in their respective home countries, Hun-
gary and Romania. In each case, the country of nationality sought extra-
dition on the basis of low-level fraud offences (sums of less than $5,000
were involved in each case) committed prior to departure from the home
country, and which included, in Mr. Gavrilas case, a conviction in absen-
tia.210 The result in each case was a win for the refugee, as the extradi-
tion order was found to have been improperly made. But the reasoning
draws away from the Ward and Pushpanathan approach, especially by
drawing away from international law and from treaty-interpretation prin-
ciples.
While the Refugee Convention establishes a comprehensive reply to
the question of when a refugee can be extradited,211 in its decision, the
206 Pushpanathan, supra note 201 at para 74.
207 Ibid at paras 78-158. See ibid at para 128 (regarding the purpose of the Refugee Con-
vention). Justice Major concurred with Justice Cory.
208 As mentioned, the Court did briefly interpret the Refugee Convention in Suresh in 2002.
There, the Court concluded that refugee status was not a bar to deporting some indi-
viduals to face a risk of torture. The decision was primarily concerned with the Conven-
tion Against Torture and canvassed international law reasonably well in that analysis:
see discussion at 688-90, above.
209 Nmeth v Canada (Justice), 2010 SCC 56, [2010] 3 SCR 281 [Nmeth]; Gavrila v Cana-
da (Justice), 2010 SCC 57, [2010] 3 SCR 342 [Gavrila].
210 Mr. Nmeth (along with his wife and co-accused) had become a law-abiding permanent
resident in Canada. His experience in Hungary included a series of violent crimes
against him. Mr. Gavrila had not been able to become a permanent resident in Canada
because of a series of criminal convictions (all property crimes) in Canada.
211 This framework is set out in articles 32 and 33 of the Refugee Convention (supra note
23).
714 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Court gave primacy to Canadas Extradition Act over the international
framework.212 Having decided that Canadas non-refoulement obligation
toward refugees is met through the Extradition Act rather than by apply-
ing provisions of the Immigration and Refugee Protection Act,213 the Court
proceeded to analyze the extradition question with only brief engagement
with the Refugee Convention. Justice Cromwell stated that the grounds of
protection in the domestic legislation implemented those in the Refugee
Convention despite the fact that the two lists are not the same.214 The
Court referenced Pushpanathan and its embrace of the human rights
purpose of the Refugee Convention, but did not follow Pushpanathans
methodology.215 Instead, interpretation of the Conventions provisions was
guided primarily by domestic Canadian decision making. Most important-
ly, Justice Cromwell concluded that the question of whether a person is,
in his words, entitled to refugee status is to be re-asked at the point of
considering an extradition request. This procedure therefore upends the
Refugee Conventions approach and puts the article 1F provisions ahead of
the article 33 provisions explicitly directed at expulsion of those with ref-
ugee status.216 In addition to being the Courts most recent statement on
how to approach the Refugee Convention, Nmeth is also the only case in
this group that was heard by the full, nine-member Court.217
These four cases mark a unique subset of the Supreme Courts en-
gagement with the international human rights of non-citizens during the
Charter era. The refugee cases have been decided with scant reference to
the Charter. And cases involving refugees but not the refugee definition
have scarcely looked at the Refugee Convention since the Singh ruling,
despite the conventions rich refugee-rights text, which extends well be-
yond the core definition of a refugee. The early approach was to turn di-
rectly to international law and international treaty-interpretation meth-
212 In Nmeth, Justice Cromwell wrote:
In the next section I will explain why in my view, the appellants central con-
tention that the power to surrender for extradition is subject to the refugee
process under the IRPA cannot be accepted. In the following section, I will
address the respondents position, which I largely accept, that protection
against refoulement is addressed in the extradition context by the mandatory
and discretionary bars of surrender in the EA [Extradition Act] (Nmeth, su-
pra note 209 at para 12, citing Extradition Act, SC 1999, c 18).
213 Nmeth, supra note 209 at para 41.
214 Ibid at para 83.
215 Ibid at para 86.
216 Ibid at para 114. I have written in detail about this case in Catherine Dauvergne, The
Troublesome Criminalization of Refugee Law in Mary Bosworth & Katja Franko Aas,
eds, The Criminology of Immigration, Oxford University Press [forthcoming in 2013].
217 Justice Cromwell wrote the reasons for the unanimous Court.
HOW THE CHARTER HAS FAILED NON-CITIZENS IN CANADA 715
ods. The Court departed from this direction in Nmeth, but it is too soon
to tell whether this direction will be sustained outside the extradition con-
text. While Nmeth is a regrettable departure from international legal
standards, it is too soon to judge whether it indicates that the refugee law
cases are following the pattern of the first group, where a strong start at
the outset of Charter determination has given way, in more recent cases,
to an insular, domestic focus on rights interpretation. As this paper was in
its final preparation in the spring of 2012, the Court granted leave in Ezo-
kola v Canada.218 Thus the Courts next opportunity to interpret the Refu-
gee Convention is on the near horizon.
This group of cases concludes the picture of the Courts treatment of
rights claims by non-citizens during the thirty-year life of the Canadian
Charter of Rights and Freedoms. Before stepping back and offering some
possible explanations of this worrisome jurisprudence, there are three
more clusters of rulings to mention briefly, which complete the story of
the Courts approach to non-citizens. These clusters concern cases in
which the Court refused leave, extradition (outside the refugee context),
and two cases where the claims brought by citizens were directly linked to
those of non-citizens: Canadian Council of Churches219 and Mavi.220
D. Choosing Not to Decide
The Supreme Court does not give reasons for declining to grant leave,
and leave is denied in close to ninety per cent of cases.221 Nor is it possible
to make meaningful comparisons in grant rates in varying areas of law.222
Finally, it is difficult to accurately count the number of applications for
leave that would correspond to my data set in this paper, in part because
of the methodological considerations discussed above and in part because
218 2011 FCA 224, leave to appeal to SCC granted, [2012] 1 SCR viii (available on CanLII).
219 Canadian Council of Churches v Canada (Minister of Employment and Immigration),
[1992] 1 SCR 236, (sub nom Canadian Council of Churches v Canada) 88 DLR (4th) 193
[Canadian Council of Churches cited to SCR].
220 Canada (Attorney General) v Mavi, 2011 SCC 30, [2011] 2 SCR 504 [Mavi].
221 Leave was granted in response to 11.8 per cent of leave applications between 2002 and
2012: Supreme Court of Canada, Statistics, 2001 to 2011 (2012) at 4, online: Supreme
Court of Canada
2011].
222 A greater number of criminal law cases are heard by the Supreme Court because of the
provision in the Criminal Code for an appeal as of right to the Supreme Court when
there is a dissent in a provincial court of appeal: Criminal Code, supra note 110, s
691(1)(a). Between 2001 and 2011, the average number of appeals as of right per year
was fifteen: see SCC Statistics, 2001 to 2011, supra note 221 at 4.
716 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
of unevenness in how the information is made available.223 In short, it is
important not to make too much of this group of cases.224 It helps complete
the picture, however, to look briefly at matters that the Court has deliber-
ately chosen not to hear, as these cases are indicators both of issues that
are unlikely to come before the Court in the short term and of issues that
received considerable attention in the advocacy community.
Since the advent of the Immigration and Refugee Protection Act, the
Supreme Court has denied leave in two cases that were directly tied to
the question of non-citizens access to international human rights norms.
In De Guzman,225 the argument involved the Immigration and Refugee
Protection Acts provision for interpretation in a manner that … complies
with international human rights instruments to which Canada is signato-
ry.226 Advocates had high aspirations for this provision, which the Feder-
al Court of Appeal interpreted as a codification of the Supreme Courts
Baker approach and nothing more.227 In 2007, the Canadian Council for
223 See infra note 236 and accompanying text.
224 For a thoughtful discussion of Supreme Court of Canada decisions not to grant leave,
see Kent Roach, The Supreme Court of Canada at the Bar of Politics: The Afghan De-
tainee and Omar Khadr Cases (2010) 28:1 NJCL 115.
225 De Guzman v Canada (Minister of Citizenship and Immigration) (FCA), 2005 FCA 436,
[2006] 3 FCR 655 [De Guzman], leave to appeal to SCC refused, [2006] 1 SCR vii (avail-
able on CanLII).
226 IRPA, supra note 24, s 3(3)(f).
227 De Guzman, supra note 225 at paras 87-89. Justice Evans, for a unanimous court,
wrote:
Paragraph 3(3)(f) should be interpreted in light of the modern develop-
ments in courts use of international human rights law as interpretative aids.
Thus, like other statutes, IRPA must be interpreted and applied in a manner
that complies with international human rights instruments to which Cana-
da is signatory that are binding because they do not require ratification or
Canada has signed and ratified them. These include the two instruments on
which counsel for Ms de Guzman relied heavily in this appeal, namely, the
International Covenant on Civil and Political Rights, and the Convention on
the Rights of the Child. Thus, a legally binding international human rights
instrument to which Canada is signatory is determinative of how IRPA must
be interpreted and applied, in the absence of a contrary legislative intention.
However, paragraph 3(3)(f) also applies to non-binding instruments to which Cana-
da is signatory. Because the only international instruments relevant to this case are le-
gally binding on Canada, it is not necessary to decide here the effect of paragraph 3(3)(f)
with respect to non-binding international human rights instruments.
However, in view of the considerations outlined above regarding such instruments,
I am inclined to think that Parliament intended them to be used as persuasive and con-
textual factors in the interpretation and application of IRPA, and not as determinative.
Moreover, of these non-binding instruments, not all will necessarily be equally persua-
sive. This view of paragraph 3(3)(f) also derives support from the Supreme Court of
Canadas jurisprudence, to the extent that in the Public Service Employee Relations,
HOW THE CHARTER HAS FAILED NON-CITIZENS IN CANADA 717
Refugees, the Canadian Council of Churches, and Amnesty International
brought a challenge to Canadas Safe Third Country Agreement with the
United States to the Federal Court.228 At the trial level, this challenge was
successful, and the judgment involved a detailed engagement with both
the Charter and international law. The Federal Court of Appeal, however,
circumvented the rights questions raised and instead overturned the rul-
ing primarily on the basis of what it called the absence of a factual basis
upon which to assess the alleged Charter breaches.229 A Supreme Court
of Canada ruling on one or both of these cases would have contributed
significantly to the picture of non-citizens access to international human
rights protections during the Charter era.
Other high-profile cases that did not make it to the Supreme Court in-
clude Satiacum, in which an American citizen and hereditary chief of the
Puyallup Indians had been found at first instance to be a refugee;230
Thamotharem, a challenge to significant procedural changes in refugee
determinations;231 Hinzman, where a member of the US military sought,
and was denied, refugee status on the basis of his objections to the Ameri-
can role in Iraq;232 Villafranca, which set the standard for state protec-
Slaight Communications, Baker, and Spraytech cases, the Court indicated that it was
prepared to give a persuasive and contextual role to non-binding international human
rights law in the interpretation of domestic law. In view of Parliaments directive in
paragraph 3(3)(f), the concerns expressed by Cory and Iacobucci JJ. in Baker are of less
significance in the present context (ibid).
228 Canadian Council for Refugees v Canada (FCA), 2008 FCA 229, [2009] 3 FCR 136 [Ca-
nadian Council for Refugees], leave to appeal to SCC refused, [2009] 1 SCR vi (available
on CanLII). This agreement requires that refugee claimants claim in the first country
that they arrive in, whether Canada or the United States, subject to a lengthy set of ex-
ceptions.
229 Ibid at para 103. Since this decision, it has not proven possible to establish the factual
basis the Federal Court of Appeal envisioned, because individuals subject to the Safe
Third Country Agreement are either outside of Canada or reluctant to come forward,
or both.
230 Minister of Employment and Immigration v Satiacum (1989), 99 NR 171 (available on
WL Can) (FCA) [Satiacum]. The first instance finding was reversed by the Federal
Court of Appeal before leave to appeal to the Supreme Court was refused: [1989] 2 SCR
xi.
231 Thamotharem v Canada (Minister of Citizenship and Immigration) (FCA), 2007 FCA
198, [2008] 1 FCR 385 [Thamotharem], leave to appeal to SCC refused, [2007] 3 SCR
xvi (available on CanLII).
232 Hinzman v Canada (Minister of Citizenship and Immigration), 2007 FCA 171, 282
DLR (4th) 413 [Hinzman], leave to appeal to SCC refused, [2007] 3 SCR x (available on
CanLII).
718 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
tion analysis in refugee determinations;233 Langner, affirming that de-
porting the parents of citizen children did not raise any Charter issues;234
and most recently, Toussaint, a challenge to fee provisions for humanitar-
ian and compassionate applications.235 This list is partial, and it is diffi-
cult to develop a complete list as the publicly available databases only
have a complete list of leaves denied from 1997 onward.236
E. Extradition: One Story Worth Telling
The Supreme Court of Canadas extradition jurisprudence is not part
of the data set, because citizenship is not a central criterion in most ex-
tradition matters.237 Factually, of course, because extradition involves al-
leged criminal activity in another country, the targets of extradition pro-
ceedings are frequently non-citizens. Since 1982, thirty-five extradition
matters have come before the Supreme Court of Canada. Two of these rul-
ings, Nmeth and Gavrila, discussed above, raised the question of when a
refugee can be extradited and thus involved analysis of the Refugee Con-
vention.238 Of the remaining thirty-three rulings, fourteen concerned Ca-
nadian citizens, four concerned non-citizens, and fifteen judgments did
not mention the citizenship of the individual.239
233 Canada (Minister of Employment and Immigration) v Villafranca (1992), 99 DLR (4th)
334, (sub nom Minister of Employment and Immigration v Villafranca) 150 NR 232
(FCA) [Villafranca], leave to appeal to SCC refused, [1993] 2 SCR xi.
234 (Langer v Ministre de lEmploi et de limmigration et al) (1995), 184 NR 230, (sub nom
Langner v Canada (Minister of Employment and Immigration)) 29 CRR (2d) 184 (FCA)
[Langer], leave to appeal to SCC refused, [1995] 3 SCR vii.
235 Toussaint v Canada (Minister of Citizenship and Immigration) (FC), 2009 FC 873,
[2010] 3 FCR 452 [Toussaint], leave to appeal to SCC refused, [2011] 3 SCR xi (availa-
ble on CanLII).
236 This list is derived from the Supreme Court Bulletin, which is complete from 1997 on-
ward. The most recent edition of Lorne Waldmans Canadian Immigration & Refugee
Law Practice, 2012 (Markham, Ont: LexisNexis, 2011) comments on thirty-five cases in
which leave to appeal was denied by the Supreme Court of Canada.
237 It is established law that the Charters section 6 protection of the right of citizens to re-
main in Canada is not a bar to extradition: United States of America v Cotroni; United
States of America v El Zein, [1989] 1 SCR 1469, 96 NR 321 [Cotroni].
238 See discussion at 713-14, above. In one further case, the person concerned had been
granted refugee status in Canada, but perhaps surprisingly, refugee law was not dis-
cussed in the judgment: Argentina v Mellino, [1987] 1 SCR 536, 40 DLR (4th) 74.
239 Cases involving Canadian citizens are United States of America v Leon, [1996] 1 SCR
888, 134 DLR (4th) 17; R v Parisien, [1988] 1 SCR 950, 85 NR 60; Canada v Schmidt,
[1987] 1 SCR 500, (sub nom Schmidt v R) 39 DLR (4th) 18; Lake v Canada (Minister of
Justice), 2008 SCC 23, [2008] 1 SCR 761; Cotroni, supra note 237; United States v
Burns, 2001 SCC 7, [2001] 1 SCR 283 [Burns]; United States of America v Ferras; Unit-
ed States of America v Latty, 2006 SCC 33, [2006] 2 SCR 77; United States of America v
HOW THE CHARTER HAS FAILED NON-CITIZENS IN CANADA 719
The Supreme Courts work on extradition has, however, produced one
important story that provides a fitting counterpoint in my narrative of
non-citizens, the Charter, and international human rights norms. The
most important extradition case in the Charter era to date is Burns.240
Burns is important because of its forthright reversal of the Courts ruling
in Kindler, a mere ten years earlier.241 The ruling is a courageous and uni-
fied stance by the Court, directly confronting the possibility of extraditing
an individual to face capital punishment in the United States. The Court
concluded that assurances that an extradited individual will not be put to
death are constitutionally required in all but exceptional cases.242 The
Court explicitly rejected the easy route of deviating from the Kindler con-
clusion because Mr. Burns and his co-accused, Mr. Rafay, were Canadian
citizens and Messrs. Kindler and Ng were not.243 In reaching its conclu-
sion, the Court considered an array of sources, including international law
and foreign law from several jurisdictions, and drew particular attention
Kwok, 2001 SCC 18, [2001] 1 SCR 532; United States of America v Doyer, [1993] 4 SCR
497, (sub nom Doyer v Downs (Juge) et autres) 159 NR 397; United States of America v
Cobb, 2001 SCC 19, [2001] 1 SCR 587; United States of America v Tsioubris, 2001 SCC
20, [2001] 1 SCR 613; United States of America v Shulman, 2001 SCC 21, [2001] 1 SCR
616; R v Harrer, [1995] 3 SCR 562, 128 DLR (4th) 98; United States of America v Dynar,
[1997] 2 SCR 462, 147 DLR (4th) 399.
Cases involving non-citizens are R v Cook, [1998] 2 SCR 597, 164 DLR (4th) 1; Ar-
gentina v Mellino, supra note 238; Kindler v Canada (Minister of Justice), [1991] 2 SCR
779, 84 DLR (4th) 438 [Kindler]; Reference Re Ng Extradition (Can), [1991] 2 SCR 858,
84 DLR (4th) 498 [Ng].
Cases in which citizenship is not known are McVey (Re); McVey v United States of
America, [1992] 3 SCR 475, 97 DLR (4th) 193; Canada v Barrientos (1996), [1997] 1
SCR 531, (sub nom United States of America v Barrientos) 209 NR 2; United States of
America v Desfosss, [1997] 2 SCR 326, 147 DLR (4th) 193; United States of America v
Jamieson, [1996] 1 SCR 465, (sub nom Jamieson v Canada (Minister of Justice)) 197
NR 1; United States of America v Whitley, [1996] 1 SCR 467, 132 DLR (4th) 575; United
States v Allard, [1991] 1 SCR 861, (sub nom United States of America v Allard and
Charette) 122 NR 352; Washington (State of) v Johnson, [1988] 1 SCR 327, (sub nom
Washington (State) et al v Johnson) 83 NR 1; United States of America v Ross, [1996] 1
SCR 469, (sub nom Ross v United States) 132 DLR (4th) 383; United States of America v
Lpine, [1994] 1 SCR 286, 111 DLR (4th) 31; Canada (Justice) v Fischbacher, 2009 SCC
46, [2009] 3 SCR 170; Schreiber v Canada (Attorney General), 2002 SCC 62, [2002] 3
SCR 269; Idziak v Canada (Minister of Justice), [1992] 3 SCR 631, 97 DLR (4th) 577;
Named Person v Vancouver Sun, 2007 SCC 43, [2007] 3 SCR 253; United Mexican
States v Ortega; United States of America v Fiessel, 2006 SCC 34, [2006] 2 SCR 120;
United States of America v Anekwu, 2009 SCC 41, [2009] 3 SCR 3.
240 Supra note 239.
241 Kindler, supra note 239. This case was handed down with the companion case Ng, su-
pra note 239.
242 Burns, supra note 239 at para 8. The judgment was issued per curiam.
243 Ibid at paras 39-49.
720 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
to shifting international initiatives over the preceding decade.244 In this
regard, the Burns decision in 2001 is a paradigmatic reflection of the the-
sis that international human rights have become more important than cit-
izen rights. This ruling is a strong reflection of the Supreme Court of
Canadas embrace of international human rights law and shows an exten-
sive reliance on an international framework for interpreting the Charter
and on shifts within that framework, almost twenty years into the Char-
ter era.245
From the point of view of my central argument here, however, the de-
cision in Burns is deeply ironic. It is impossible not to remark the embrace
of international human rights in a case where citizenship rights could
have led to the same conclusion and equally impossible not to remark that
citizenship was the key factual distinction in this high-profile and direct
reversal. The Kindler Court had been marked by a strong dissent, with
opposing judgments deploying competing rhetoric about Canadian values
and Canadian identity.246 The decision in Burns, while standing staunchly
for identical rights and treatment for citizens and non-citizens, provides a
hint, to which I shall return in the concluding analysis, that this may not
generally be the case before the Supreme Court of Canada.
F. Two Cases Directly Adjacent
There are two additional cases that require some brief comment. Nei-
ther case directly involved a non-citizens rights claim before the Court,
but both are closely linked to non-citizens rights, and were supported by
the immigration and refugee advocacy community in Canada for that rea-
son. The first of these cases is Canadian Council of Churches, handed
down in 1992.247 The Canadian Council of Churches sought to challenge
new legislative provisions introducing changes to Canadas refugee de-
termination system on the first day that the legislation was in force, argu-
ing that public interest standing was appropriate given the potential
harms of the legislation and the time it would take for an affected indi-
vidual to bring a claim. The government challenged the councils standing
to bring such a claim, and the Supreme Court upheld that challenge. This
ruling endured as the limit line for public interest standing throughout
244 Ibid at paras 79-92.
245 The crux of the decision relied on section 7 of the Charter: see Burns, supra note 239 at
para 132.
246 I have written about this decision at more length in Dauvergne, Humanitarianism,
Identity, and Nation, supra note 154 at 203-206.
247 Canadian Council of Churches, supra note 219.
HOW THE CHARTER HAS FAILED NON-CITIZENS IN CANADA 721
most of the Charter era, until late 2012.248 It has proven a particularly
important line for those who are outside of the country and thus is argua-
bly more important for non-citizens than for citizens.249
The second case is Mavi, handed down in 2011.250 Mavi was a chal-
lenge brought on behalf of a group of individuals who had sponsored fami-
ly members to immigrate to Canada, and those family members had later
received a variety of social-assistance payments.251 The payments resulted
in sponsorship debt obligations. The facts underlying the eight joined
cases were compelling, including sponsors who had not known that the
payments had been received, sponsors who had become destitute them-
selves, and sponsors who had actively tried to prevent the payments to
their relatives. The Court ruled that the debt was partially contractual
and partially statutory. As such, debt collection attracted some measure of
procedural fairness but could not be waived.252 Canadian Council of
Churches and Mavi each tell part of the story of advocacy on behalf of
non-citizens before the Supreme Court of Canada.
This completes the review of the Supreme Court of Canadas engage-
ment with non-citizens rights claims over the past thirty years. Overall,
the arc of this jurisprudence is disappointing. Despite the strong state-
ments at the outset, in Singh and Andrews, non-citizens have had few vic-
tories at the Supreme Court of Canada, and crucially, these victories have
relied on very few strong statements of Charter rights and even fewer as-
sertions of international human rights. The protection of section 7s prin-
ciples of fundamental justice has been limited by an immigration, and
most recently a security, context, and the reach of the Refugee Convention
has, post-Singh, been narrowed to the refugee definition only. The inclu-
sion of non-citizen status as an analogous ground of equality protection
has not led to any successful arguments following Andrews. What re-
mains, then, is to consider what factors might explain this outcome.
248 As I was completing final revisions on this paper, the Court handed down its ruling in
Downtown Eastside Sex Workers United Against Violence Society v Canada (AG) (2012
SCC 45, 352 DLR (4th) 587), which broadened the public interest standing test.
249 This was a key issue for the Canadian Council for Refugees in its bid to challenge the
Safe Third Country Agreement: see Canadian Council for Refugees, supra note 228 (in
which a John Doe applicant was found for the proceedings).
250 Mavi, supra note 220.
251 Citizens and permanent residents may sponsor family members. The judgment does
not say whether the eight sponsors in the case were citizens or not.
252 Mavi, supra note 220 at paras 72, 79.
722 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
IV. Trends, Explanations, Conclusions
Several possible explanations for this trajectory in the jurisprudence
come to mind on quick reading. One argument that has had some traction
elsewhere is Legomskys seminal work, demonstrating that the highest
courts of the United States and the United Kingdom have been extraordi-
narily deferential to executive decision making in matters of immigra-
tion.253 In the same vein, Aleinikoff has argued, in the American context,
that immigration is one of the areas that the Supreme Court has viewed
as being a particular repository of sovereignty.254 This is an analysis that I
have developed and tested in the Canadian and Australian contexts in
earlier work.255 Another argument that has recently held sway is that law
and policy directed toward non-citizens has been influenced by the securi-
ty turn in global politics following the terrorist attacks of 9/11.256 It is
largely since the security turn that the argument that human rights have
overtaken citizenship rights has become less prevalent. The Supreme
Court of Canadas jurisprudence reflects this argument in part, particu-
larly in the shift from an immigration context to a security context for sec-
tion 7 analyses.
Both of these arguments do contribute part of the explanation for the
observable trends in the Supreme Court of Canadas jurisprudence. For
example, the Court, on several occasions, issued a response that constitu-
tionalized a space for discretionary decision making, rather than make a
hard, rights-based response (Suresh, Baker, Chieu, Charkaoui). This de-
vice fits squarely into the exceptional deference pattern. It is certainly the
case that the Suresh ruling, as well as Charkaoui and Medovarski, do con-
tain strong security discourses, corresponding to a global swing toward
regarding non-citizens through a securitized lens. But neither of these ac-
counts offers a fully satisfying explanation for the Canadian jurispru-
dence. In the first case, the deference argument was most clearly articu-
lated elsewhere in the mid-1980s, as the Court was penning Singh and
Andrews. These rulings that launched the Charter era were not at all def-
erential. The security argument has been most persuasive elsewhere in
explaining executive, rather than judicial, actions, whereas if this argu-
ment is to have explanatory power for the Supreme Court of Canadas rul-
ings, it would need to be adapted to a judicial setting. In the United States
253 Legomsky, supra note 178.
254 T Alexander Aleinikoff, Semblances of Sovereignty: The Constitution, the State, and
American Citizenship (Cambridge, Mass: Harvard University Press, 2002).
255 Dauvergne, Humanitarianism, Identity, and Nation, supra note 154.
256 See Scott D Watson, The Securitization of Humanitarian Migration: Digging Moats and
Sinking Boats (London, UK: Routledge, 2009); Dauvergne, Making People Illegal, supra
note 184 at 93-118.
HOW THE CHARTER HAS FAILED NON-CITIZENS IN CANADA 723
and the United Kingdom, however, the contours of this argument point to
tensions between the executive and the judiciary. Adding these familiar
explanations together can give an account of a number of the cases, but
not of a majority of the data set.
It is also the case that the jurisprudence shows some traces of the ar-
gument that the distinction between citizenship and permanent residency
is waning in importance. In Andrews and Burns, this pattern was discern-
ible. But, as with the first two points, this is not a clear trend. Charkaoui
and Lavoie cut in precisely the opposite direction.
What is most striking in this jurisprudence, however, is the ways in
which the Canadian Court is out of step with leading decisions on very
closely parallel decisions in other, similar jurisdictions. In addition, look-
ing more closely at this dissonance, it appears to be attributable to a dif-
ferent approach to international human rights standards. These two
trends are closely interrelated and can be explained at least in part by the
Courts jurisprudential stance toward international human rights norms
in the Charter era. It is the explanatory value of how the Court has used
the Charter to translate international human rights that emerges most
clearly when looking at the whole body of this jurisprudence over the thir-
ty-year period. Broadly speaking, the more recent decisions have less
space for international law, and this seems to impoverish their reason-
ing in some ways. All of this requires more detailed attention, to which I
now turn to conclude this analysis.
First is the observation that, on some key issues, the Supreme Court
has been out of step with other similar jurisdictions. Two vital examples
are the questions of deportation to a risk of torture and indefinite deten-
tion. The Suresh conclusion that Canada can, in some limited circum-
stances, deport individuals to torture varies from the conclusion of the
[then] House of Lords and the Supreme Court of New Zealand.257 Both of
these courts held themselves bound by the international law. The Su-
preme Court of Canada clearly agreed about the effect of the international
law, but nonetheless left a space for Canadian decision makers to depart
from it. On the question of indefinite detention, the House of Lords ruled
that once deportation could no longer reasonably be viewed as immi-
nent, detention was impermissible.258 The Supreme Court of the United
States made an almost identical ruling on the question of indefinite de-
257 Belmarsh (supra note 68 at para 9) affirmed the judgment of the European Court of
Human Rights Chahal v. United Kingdom ((1996), 22 Eur Commn HR DR 1832, 23
EHRR 413) and applied its holding to the United Kingdom. For New Zealand, see Zaoui
v Attorney-General (No 2), [2005] NZSC 38 90-93, [2006] 1 NZLR 289.
258 See Belmarsh, supra note 68.
724 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
tention, albeit in a case where a risk of torture had not been estab-
lished.259 The Supreme Court of New Zealand went even further, hinging
its condemnation of indefinite detention to the provisions of the Refugee
Convention.260 Each of these rulings differs from Charkaoui, where the
Court held that a review of detention once every six months ensures that
detention will not be indefinite, but stopped short of limiting detention to
a particular time or to the feasibility of deportation.
This is not to say that, in every instance or on every issue, non-citizens
have encountered more favourable outcomes in the United Kingdom and
New Zealand. Such a conclusion would require a detailed consideration of
those courts, paralleling the work of this study. Rather, my point is that
in two key, high-profile issues, the outcomes differed markedly.
It is also the case that, in issues concerning non-citizens, other courts
have tended to draw more directly on international law. This is certainly
in the case with the House of Lords and Supreme Court of New Zealand
judgments discussed above. Similarly, in a key ruling addressing treat-
ment of non-citizens detained at Guantnamo Bay, the US Supreme
Court drew directly on international law in support of rulings against the
special military tribunals initially established.261 All of these rulings de-
pended directly on international human rights norms to assess the rights
of non-citizens. This turn toward international human rights is something
that the Supreme Court of Canada has not done, aside from in interpret-
ing the Refugee Convention. It is no coincidence that these decisions of the
House of Lords, the Supreme Court of New Zealand, and the US Supreme
Court have all been recognized as significant rights victories for non-
citizens. They have also advanced the international law jurisprudence to
new circumstances.
Aside from the Refugee Convention cases, the Supreme Court of Cana-
da has not made a single ruling in the Charter era that directly applies an
international human rights norm to a non-citizen in Canada. This would
be important, but not legally relevant, if Canada were not a state party to
key international human rights instruments.262 But it is. This would not
be important if the Charter were being used to reach the results that in-
259 See Clark v Martinez, 543 US 371, 125 S Ct 716 (2005) (holding that indefinite deten-
tion of inadmissible aliens cannot be justified, including for those considered to be a risk
to the community).
260 See Zaoui v The Attorney-General, [2005] 1 NZLR 577 at 661 (available on QL) (SC).
261 See Hamdan v Rumsfeld, 548 US 557, 126 S Ct 2749 (2006).
262 Notably, Canada is not a party to the Migrant Workers Convention, supra note 2. If it
were, there would be an even greater array of cases in which international human
rights norms would potentially be applicable.
HOW THE CHARTER HAS FAILED NON-CITIZENS IN CANADA 725
ternational norms would provide. But it is not. As I stated at the outset, if
rights are vindicated, the precise legal tool used is far less important than
the outcome. In essence, this principle is reflected in the paradigm for
Charter rights interpretation: international law will inform Charter rights
interpretation, and thus Charter protection will be at least equal to, and
possibly better than, what is provided at international law.
This approach was clearly elaborated in early Charter rulings, begin-
ning with Reference Re Public Service Employee Relations Act in 1987,
where Chief Justice Dickson wrote, The content of Canadas internation-
al human rights obligations is, in my view, an important indicia of the
meaning of the full benefit of the Charters protection. I believe that the
Charter should generally be presumed to provide protection at least as
great as that afforded by similar provisions in international human rights
documents which Canada has ratified.263 In the Slaight Communications
ruling two years later, Chief Justice Dickson reiterated this point and
went further, saying, Canadas international human rights obligations
should inform not only the interpretation of the content of the rights guar-
anteed by the Charter but also the interpretation of what can constitute
pressing and substantial s. 1 objectives which may justify restrictions upon
those rights.264 The Court has not deviated from this commitment over
time, reiterating, in 2010, in the specific context of section 7 rights, The
principles of fundamental justice are to be found in the basic tenets of our
legal system: … [t]hey are informed by Canadian experience and juris-
prudence, and take into account Canadas obligations and values, as ex-
pressed in the various sources of international human rights law by which
Canada is bound.265
But this review of the non-citizens cases shows that, at least in this
setting, the Courts interpretative paradigm is not delivering on its prom-
ise. It also demonstrates that non-citizens attempts to make arguments
directly based on international human rights have not had any traction
whatsoever.266 The more recent cases tend to have shorter discussions of
international human rights norms (Charkaoui, Fraser) or depart overtly
from what international law would mandate (Suresh, Nmeth). Earlier
263 Supra note 26 at 349 [underlining added, italics in original], citing R v Big M Drug
Mart Ltd, [1985] 1 SCR 295, 18 DLR (4th) 321.
264 Slaight Communications Inc v Davidson, [1989] 1 SCR 1038 at 1056-57, 59 DLR (4th)
416 [Slaight Communications].
265 Canada (Prime Minister) v Khadr, 2010 SCC 3 at para 23, [2010] 1 SCR 44, citing Ref-
erence Re BC Motor Vehicle Act, [1985] 2 SCR 486, 24 DLR (4th) 536.
266 My conclusions would be quite different if international human rights law and Charter
rights were simply running on separate tracks and non-citizens had opportunities to ac-
cess both. This is not the case, however.
726 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
decisions did tend to refer somewhat more routinely to international
norms (Singh, Baker).267 One possible explanation of the current state of
affairs is that, in the early years of Charter interpretation, the Court was
working out the contents of Charter rights and therefore needed to draw
more directly on international standards. As the Charter matured, there-
fore, less engagement with international human rights would be antici-
pated. As logical as this may seem, this theory of the linkage between
Charter rights and international rights would isolate non-citizens in Can-
ada from progressive developments in international law. This trend is ob-
servable in even my brief canvass of high-profile decisions in parallel ju-
risdictions, but it cannot be doctrinally desirable. By contrast with the
non-citizen cases, in some of the rulings adjacent to the data set, we find
examples of missed opportunities. In Burns, there was a robust engage-
ment with international law to interpret and update the Charter. In Ca-
nadian Council for Refugees (the Safe Third Country Agreement decision),
the Federal Court had fully canvassed international sources at first in-
stance.
What is observable in this analysis of the non-citizens rights claims in
the Charter era is a kind of Charter hubris: a jurisprudence that implicitly
takes the position that the Charter delivers all the human rights protec-
tions that any individual could need. This would be fine, even ideal, if it
seemed to be working. That is, if the Charter rights did include, at a min-
imum, to any new advance in the international sphere, both the law and
the range of venues that an individual would need to approach would be
simplified. (Indeed, as difficult as it is to reach the Supreme Court of Can-
ada, the hurdles pale in comparison to those involved in getting an im-
plementable outcome from an international body.) Importantly, this pro-
gressive incorporation may be precisely how Charter rights and interna-
tional human rights fit together in other areasthe majorityof the
Courts decision making.268 This study has not attempted to look beyond
267 This is not uniformly the case. International human rights law had a limited role in
Andrews: see discussion at 671-73, above.
268 Although other assessments suggest that this is not the case and that the conclusion
that international human rights are not fully reflected in Charter jurisprudence is in-
deed generalizable: see e.g. Anne Warner La Forest, Domestic Application of Interna-
tional Law in Charter Cases: Are We There Yet? (2004) 37:1 UBC L Rev 157; Louise
Arbour & Fannie Lafontaine, Beyond Self-Congratulation: The Charter at 25 in an In-
ternational Perspective (2007) 45:2 Osgoode Hall LJ 239. William A Schabas and St-
phane Beaulac state that, although the Supreme Court has referred to international
human rights law sources in scores of cases, the theoretical approach set out by the
Chief Justice in 1987 has been largely ignored (International Human Rights and Ca-
nadian Law: Legal Commitment, Implementation and the Charter, 3d ed (Toronto:
Thomson Carswell, 2007) at 436). They go on to argue that abandoning this approach
opens other avenues for international human rights law to influence domestic law.
HOW THE CHARTER HAS FAILED NON-CITIZENS IN CANADA 727
the claims brought by non-citizens, and therefore, it has focused on a tiny
fraction of the Courts jurisprudence. A key impetus for this inquiry was
to assess and document the extent to which non-citizens in Canada have
been able to make use of international human rights. At least at the Su-
preme Court of Canada level, this study shows that the ability to make
arguments drawing on international rights is starkly limited. This conclu-
sion is bolstered by some recent victories in international forums holding
that Canada has breached international human rights commitments to
non-citizens.269 It also dovetails with my study of Immigration and Refu-
gee Board decision making, which showed scant attention to international
human rights law in that tribunal.270
There is certainly more work to be done to fully theorize what this ju-
risprudence demonstrates and to push forward the consequences of this
analysis. But regardless of where the work drawing on these data will
lead, it is provocative and doctrinally important to set the cases end to
end and to define the terms of the Supreme Court of Canadas engage-
ment with rights claims made by non-citizens.
Rights protection for non-citizens in Canada is more important now
than at any other time in the Charter era. The Canadian government has
moved to tighten the boundaries of citizenship, inscribing strong distinc-
tions between citizens and permanent residents.271 Since the 2002 Immi-
gration and Refugee Protection Act, permanent residents have been more
vulnerable to deportation, and new legislation introduced in June 2012
will increase this vulnerability.272 Beginning in 2009, there has been a
marked increase in the number of temporary foreign workers admitted to
Canadaindividuals who will not have the protections of permanent res-
269 For two recent examples, see generally UNHCR, Communication No 1763/2008, Pillai
v Canada, reprinted in Report of the Human Rights Committee, UNGAOR, 66th Sess,
Supp No 40, UN Doc A/66/40, vol II, part 1, (2011) annex VI.OO; John Doe v Canada
(2011), Inter-Am Comm HR, No 24/11, Annual Report of the Inter-American Commis-
sion on Human Rights: 2011, OEA/Ser.L/V/II.141/Doc 29.
270 Dauvergne, International Human Rights, supra note 6.
271 The Canadian government amended the Citizenship Act (RSC 1985, c C-29) with Bill C-
37 of 2007, which made it harder to pass on citizenship to children born outside the
country: Bill C-37, An Act to amend the Citizenship Act, 2nd Sess, 39th Parl, 2007-2008
(assented to 17 April 2008), SC 2008, c 14. In 2010, the government introduced a new
Bill C-37 that would have brought into effect the Strengthening the Value of Canadian
Citizenship Act: Bill C-37, An Act to Amend the Citizenship Act and to make consequen-
tial amendments to another Act, 3rd Sess, 40th Parl, 2010. This bill died on the Order
Paper prior to the last election, but there is some indication that the re-elected govern-
ment, which is now in a majority position, will reintroduce it.
272 See Bill C-43, An Act to amend the Immigration and Refugee Protection Act, 1st Sess,
41st Parl, 2011-2012 (first reading 20 June 2012).
728 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
idency.273 In 2012, the decision-making framework for refugee protection
in Canada was fundamentally altered.274 All of these shifts mean that
non-citizens in Canada are more vulnerable to rights abuses than at any
point in the previous thirty years. Non-citizens need the robust protection
of both the Charter and international human rights norms. It is time to
bring these two bodies of law back into harmony.
273 Preliminary figures on temporary foreign workers from 2007 to 2011 are available at
Citizenship and Immigration Canada, Preliminary Tables: Permanent and Temporary
Residents, 2011, online: Citizenship and Immigration Canada
274 See Protecting Canadas Immigration System Act, supra note 8; Senate, Standing
Committee on Social Affairs, Science and Technology, Thirteenth Report (21 June 2012)
(Chair: Kelvin K Ogilvie).
