#9067 - Charter Application To Irpa - Immigration and Refugee Law

Why use the constitution through litigation strategy?

1. remedy options

2. procedural fairness

3. can assist if appealed

R v Hape 2007 SCC

F: investigation re: money laundering by a CDN citizen in Turks and Caicos islands. Question about unreasonable search and seizure executed by the RCMP. The trial took place in Canada. The search was authorized in TC, but accused alleged that the government cannot enforce Charter extra-territorially.

I: Were the accused’s rights violated through s. 8?

D: No; FT rights not abrogated

Ratio: For charter to be applied extra-territorially, court must ask whether 1) activity falls into activity of 32(1) (whether or not state agent/actor carried the activity out) and 2) whether there is an exception to the principle of sovereignty that would justify Charter application (Ex. human rights violation or consent of the state - rare) 3) should evidence be excluded?

Reasons: The way in which the evidence was obtained does not undermine its reliability. Fair trial rights in Canada is the correct framework to apply rather than considering the applicability of the Charter in another jurisdiction. Generally, you apply the law of the jurisdiction that you are in. In this case, the RCMP were operating under the authority of the law in TC.

Dissent 1 (Bastarache, Rothstein, Abella): Charter should apply, but the context of its application will change depending on the situation. 32(1) defines who acts, not where they act( includes all actions of officers)

Dissent 2 (Binnie): Looks to Cook which requires that act falls within 32(1) and that it interferes with sovereignty authority (producing objectionable extraterritorial effect) – not the case for either here. TC searches were conducted by local police in conformity with local laws.

Canada v Khadr 2010 SCC 3 (Extra Territoriality application) (Case #2)

F: 15 year old Canadian in Afghanistan who allegedly threw a grenade and killed an American solider. Captured in Afghanistan and detained in Guantanamo Bay. Repatriation back to Canada was denied several times, as he was a Canadian citizen. Canadian officials (CSIS and Foreign Affairs) questioned Khadr at Guantanamo, promised secrecy, but handed information over to the US. Was not allowed to sleep for more than 3 hours at a time and had bright lights shining on him the whole time. Canadian authorities were made aware of this cruel and unusual punishment.

I: Were the accused’s s. 7 rights violated? Was Canada complicit in torture? What is the appropriate remedy?

D: declaration ordered; judiciary doesn’t have authority to compel repatriation but government should take steps to rectify

Ratio: Where torture techniques are used contrary to the principles of fundamental justice, the Charter is applicable (essentially an extension of Hape).

Reasons: The remedy must be decided by the government.

Visa Officers acting Abroad:

• technically, the charter does apply to their actions, but it’s limited

• Decisions have been challenged based on sections 16 and 20(1) (Abbasi v Canada 2010 FC 288) but have generally been unsuccessful

Section 6 (Mobility Rights)

• Abdelrazik v Canada 2010 FC: “Charter rights are not dependent on the wisdom of the choices Canadians make, nor their moral character or political beliefs. Foolish persons have no lesser rights under the Charter than those who have made wise choices or are considered to be morally and politically upstanding” – Harrington J

  • “one cannot prove that fairies and goblins do not exist any more than Mr. Abdelrazik or any other person can prove that they are not an Al Qaida associate.”

Abdelrazik v Canada 2010 FC

F: Sudanese- Canadian citizen granted CR status in 1993. While in Canada he associated with 2 individuals that were terrorists but there is no evidence he was involved in any illegal activity. While in Sudan at Canadian embassy fearing torture and detention by authorities, he sought Canada to repatriate him by any safe means at its disposal because his passport expired while he was there. While in Sudan, he was tortured, detained and questioned by CSIS while detained. A global travel ban was listed through UN 1267 CTTEE.

I: Were the accused’s 6(1) rights violated?

D: Yes; application allowed

Ratio: Where citizen outside of Canada, government has a positive obligation to issue emergency passport. Any effort not to do so is regarded as a prima facie s. 6(1) violation unless justifiable.

Reasons: Evidence of bad faith may be considered when invoking remedy under Charter. Canada was not responsible for taking extraordinary means in bringing him to Canada. The government was responsible here because of the bad faith and motive demonstrated. S. 6 only applies to citizens, and not permanent residence. CSIS complicit in detention.

NOTE: He was on the no fly list at the time. He tried many times to abide by conditions government gave him before they issued passport, but they refused to issue the passport.

Divito v Canada 2013 SCC (PRISONER TRANSFER)

F: Canadian citizen who pled guilty to serious drug charges in the US and was sentenced. He applied under ITOPA to be transferred to Canada. Both countries must consent and MPS has discretion. Divito’s request was approved by US, but not by MPS due to offence – said that return would constitute threat to Canada. MPS’s decision was JR’ed – FC dismissed application seeing MPS’ decision as reasonable and not violating s. 6(1).

I: What is the constitutionality of s. 6(1)?

D: appeal dismissed

Ratio: Citizens generally have the right to enter and leave Canada generally but that does not provide the right to serve a sentence in Canada. The ITOPA does not create a constitutional right to serve a sentence in Canada, nor does it create this positive obligation on the government.

Reasons: There was no right for D to return to Canada. The Minister must exercise the discretion reasonably.

Dissent: Citizenship rights should be interpreted generously and consistent with INTL law. ITOPA was designed to do this. The Minister’s discretion is a limitation but it’s justified under s. 1 because thwarting persons involved in terrorism and organized crime is a pressing and substantial objection.

*Note: appeal on MPS’ discretion was not taken to COA and SCC. This point of appeal was dropped. Litigation strategy could have changed this area of law.

Lavoie v Canada 2002 SCC (NATURALIZATION REQUIREMENT FOR PS)

F: L and others applying for public service jobs as foreign nationals PSA gave preference to citizens over non-citizens under s. 16(4)(c).

I: Does the relevant provision violate s. 15 violation?

D: yes; but justified under s. 1

Ratio: The PSA stipulations favouring Canadian citizens encourages naturalization and as such it is justifiable.

Gonthier, Iac, Maj, Bast: Provision conflicts with s. 15 because it deals with an analogous ground (citizenship). The distinction isn’t made on personal differences, but just different legal statuses, but that falls within the Andrews analysis. Non-citizens still suffer from marginalization. This is a reasonable limit because the provision encourages naturalization, rationally connected because most governments prefer their own citizens, minimally impairing because it’s a preference and not an absolute bar.

Arbour: Provision doesn’t offend human dignity not to get a job in the public service. Governments prefer their own citizens. It marginalizes non-citizens from Canadian life and the analogous ground is residency status.

McLachlin: there is a violation of s. 15 and it’s not saved. This marginalizes immigrants from the fabric of life – it bars an entire class of peons from employment solely on grounds of citizenship. Just because someone chooses not to become a CDN citizen, that should not militate against them. Parliament has task to draft law that comply with s. 15(1).

Canada v Singh 1985 SCC (Section 7) – Watershed decision that reformed the entire refugee scheme

F: citizens from India determined not to be refugee claimants. At this time, the appeals were in written submissions and disclosure was different. JR denied to FC and FCA.

I: Do the procedures for the adjudication of refugee status violate s. 7 of the Charter?

D: Yes; all 7 decisions remanded to the board

Ratio: The PFJ apply to refugee determination process so that claimants can meet and know their case, and be able to respond to it.

Reasons: PFJ include right to know a case, and respond to it. Where serious issues of credibility are involved, an oral hearing will assist in determining credibility. Procedural fairness involves the right to an oral hearing. Security of the person includes freedom form the threat of physical punishment or suffering. MCI must exercise discretion fairly. Cannot ignore charter rights when it’s administratively convenient to do so.

Canada v Chiarelli 1992 SCC

F: PR challenging deportation on the grounds that it violates s. 7 and 12 of the Charter. Deportation issued because he had committed trafficking offence under Narcotic Control Act carrying life imprisonment but only sentenced to 6 months. Challenging on constitutional grounds...