It is difficult to scan recent Canadian news without encountering strong statements regarding the influx of asylum seekers entering Canada. Recently, Ontario has withdrawn its support for resettling asylum seekers, pointing to the Federal government as being the reason for increased “illegal” border crossings, and accordingly the party that should be held financially responsible. The debate regarding the refugee process reveals a need to revisit our obligations to individuals asking Canada for asylum.
Now is as good a time as any to go back to the Supreme Court of Canada’s decision in Singh v Canada (MEI),  1 SCR 177 [Singh], and examine what Canadian law says on this point. While Canada has obligations towards asylum claims rooted in both Canadian and international law, the Singh decision concerns solely the former.
The Singh decision is over 30 years old, yet still stands for the proposition that a claimant’s right to a refugee hearing is provided by section 7 rights to security of the person and to fundamental justice. The decision is significant because it held that the Canadian Charter of Rights and Freedoms[Charter] applies to asylum claimants even though they do not yet have status in Canada. This case is still cited as setting the bar for what is procedurally required when Canada considers applications for refugee protection.
In Singh, the Appellants were seven separate cases consolidated into one appeal before the Supreme Court. The cases had much in common procedurally. Each Appellant asserted a claim to Convention refugee status as defined in subsection 2(1) of the Immigration Act, 1976. Each of those claims were refused. The Appellants then applied for redeterminations of their claims by the Immigration Appeal Board. Pursuant to subsection 71(1) of the Immigration Act, 1976, the Board refused to allow the applications to proceed on the grounds that there were no “reasonable grounds to believe that a claim could, upon hearing of the application, be established…”. Those determinations were made without an oral hearing. Each Appellant sought judicial review of the IAB’s refusal, all of which were denied by the Federal Court of Appeal.
The Appellants asked the Supreme Court to decide on three issues:
1. Are refugee claimants who are physically present in Canada entitled to protection of section 7 of the Charter?
2. If so, does subsection 71(1) of the Immigration Act, 1976 (replaced by the Immigration and Refugee Protection Act in 2002) deny the Appellants’ rights under section 7 of the Charter?
3. If any such rights are denied pursuant to subsection 71(1), are such limitations justified pursuant to section 1 of the Charter?
Issue 1: Charter applies to asylum seekers inside Canada
At the outset, the Court stated that the application of subsection 71(1) indeed meant that a redetermination hearing only proceeded if the Board was of the opinion that it is more likely than not that the claimant will be able to establish his/her claim successfully at the hearing (para 29). As such, the question was not whether the Board failed to properly follow the procedures set out in Immigration Act, 1976. Rather, the Court asked whether the Charter requires the Court to override parliament’s decision to exclude the procedural fairness sought by the appellants – namely, their right to a hearing (para 33).
To decide this point, the Court had to first decide whether the Charter even applied to the Appellants. Section 7 of the Charter states:
“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”.
The Court considered that other sections of the Charter, such as section 3, refer specifically to “citizen of Canada”, whereas section 7 applies to “everyone”. As such, the Court accepted that “everyone” is sufficiently broad to encompass “every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law” (para 35).
This answered the first issue before the Court, and solidified that individuals claiming refugee protection in Canada are entitled to the protection of the Charter.
Issue 2: Outcomes of refugee determinations touch on section 7 of the Charter
The Appellants argued that, given their ability to benefit from the Charter, their section 7 rights were infringed when they were denied an oral hearing of their claims. Conversely, the Minister argued that the exclusion or removal of the appellants from Canada did not infringe their right to life, liberty and security of the person.
The Court considered that the Act at the time provided Convention refugees with the right to a determination from the Minister based on proper principles as to whether a permit should issue entitling them to remain in Canada; the right not to be returned to a country where his/her life or freedom would be threatened; and the right to appeal a removal order or deportation order (para 41). The question was then whether the deprivation of these rights constituted a deprivation of the right to life, liberty and security of the person within the meaning of the Charter’s section 7. The Court held that it did. Specifically, the Court interpreted the meaning of “security of the person” to encompass freedom from the threat of physical punishment or suffering, including freedom from such punishment itself. Under section 55 of the Immigration Act, 1976, no person was to be “removed from Canada to a country where his life or freedom would be threatened”. The Court stated that the denial of such a right necessarily amounts to deprivation of security of the person (para 47).
Having decided the above, the Court set to determine whether the system at the time provided claimants with the opportunity to state their case and know the case to be met. It found that in cases where credibility is at issue, fundamental justice required an oral hearing (para 59). With respect to rederminations, the Court opined that the refugee redetermination procedures were highly adversarial, constituting a determination – one that decides whether the person seeking redetermination is a Convention refugee – based partly on information and policies to which the applicant had no means of access. The Court held that as a matter of fundamental justice, a claimant would be entitled to discovery of the Minister’s case prior to any hearing (para 62).
Issue 3: No limitation justified by section 1 of the Charter
Having decided that the refugee determination system at that time did not accord with principles of fundamental justice and were incompatible with section 7 of the Charter, the Court decided whether such procedural shortcomings could be justified pursuant to section 1 of the Charter.
Section 1 states that the Charter:
“guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society“.
The Court considered the Minister’s arguments, which were largely based on the fact that refugee hearings were not administratively convenient and represented a considerable expenditure of time and money. The Court was unconvinced, instead holding that any cost was not so prohibitive that would justify denying the Appellants’ section 7 rights (para 73).
Justice Wilson summarized the Court’s analysis succinctly at para 74:
To recapitulate, I am persuaded that the appellants are entitled to assert the protection of s. 7 of the Charter in the determination of their claims to Convention refugee status under the Immigration Act, 1976. I am further persuaded that the procedures under the Act as they were applied in these cases do not meet the requirements of fundamental justice under s. 7 and that accordingly the appellants’ rights under s. 7 were violated. Finally, I believe that the respondent has failed to demonstrate that the procedures set out in the Act constitute a reasonable limit on the appellants’ rights within the meaning of s. 1 of the Charter. I would accordingly allow the appeals.
On that basis, the Court set aside the Federal Court of Appeal’s decisions and those of the Immigration Appeal Board, and remanded all seven cases for hearings on their merits. The Court concluded that subsection 71(1) was of no force and effect given its inconsistency with the principles of fundamental justice set out in section 7 of the Charter.
What Singh means, and why that still matters
This 1985 decision led to the creation of the Immigration and Refugee Board by 1989. As Canada’s quasi-judicial administrative body, it holds oral hearings of refugee and immigration matters. The decision was met with some controversy, as well as concerns by some that the result would overburden Canada’s immigration system. However, the decision does not speak to the right of asylum claimants to remain in Canada.
The decision only provides that hearings be held so that the claims can be decided through a fair and impartial process. There is no automatic granting of refugee status by entering Canada, regardless of how one arrives here. However, once on Canadian soil, everyone is entitled to due process, a fair hearing, and the proper application of the rule of law.