Asylum and the Rule of Law in Canada ~ the Audibility of the Asylum Seeker in Canadian Law

Asylum and the Rule of Law in Canada ~ the Audibility of the Asylum Seeker in Canadian Law

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The current refugee determination system in Canada owes its origin to the 1985 landmark decision of Justice Wilson in Singh. Prior to Singh, it was possible for an asylum seeker’s claim to be rejected without an opportunity to appear in person before the decision maker or to see all the evidence relied upon by the decision maker. Singh was one of the first cases decided under the 1982 Canadian Charter of Rights and Freedoms (‘Charter’). The majority of the Court had little trouble concluding that the legislative scheme was sufficiently comprehensive to exclude the common law principle of natural justice. Instead they turned to the ‘fundamental justice’ provision in s. 7 of the Charter to fill the gap.

Wilson, speaking for the majority, quickly moved to the question of whether the extant process violated s. 7 of the Charter, which states as follows:
"Everyone has the right to life, liberty and security of the person, and the right not to be deprived thereof, except in accordance with fundamental justice".

In order to determine the content of the asylum seekers’ constitutional rights, the Court had to consider first whether asylum seekers, qua noncitizens, were included in the term ‘everyone’. It also considered whether a ‘life, liberty or security’ interest was implicated by a process for determining whether the removal of a person from Canada would expose her/him to a serious risk of persecution in another country, and if so, whether the deprivation accorded with principles of fundamental justice.

Wilson’s reasoning disclosed a series of moves that manage to counterpoise the universalist impulse of a post-World War II human rights instrument with the positivist strain in Canadian common law jurisprudence. On the question of whether ‘everyone’ includes asylum seekers, Wilson wrote that the term is broad enough to encompass ‘every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law’. While sufficient to resolve the application of s. 7 to asylum seekers in Canada, the dictum leaves dangling the issue of whether the Charter applies extraterritorially to the conduct of Canadian officials abroad who act under authority of Canadian law – in visa posts, on the high seas, in interrogation rooms, or on the battlefield. Does the rule of law follow the exercise of power, or does it stop at the border?

The government advanced two arguments in support of the proposition that the Canadian refugee determination process did not implicate the Canadian state in any infringement of the life, liberty or security of an asylum seeker. The first relied on the the claim that rights to life, liberty and security of person protected by the Charter concerned conduct by Canada, not by foreign governments. Persecution, if perpetrated at all, would be at the hands of another state, and so the denial of the s. 7 rights could not be attributed to Canada. Whereas the judgment defers on the extraterritorial reach of the Charter, Wilson’s response to this argument implicitly confirms the role of the Charter in constraining otherwise lawful conduct by state actors within Canada where such actions facilitate extraterritorial violations of fundamental rights to life and liberty.

The second argument invoked the traditional common law dichotomy of right versus privilege as the determinant of procedural entitlements. Since immigration is not a right, but rather a privilege extended by the state, asylum seekers as non-citizens possess no right to any particular procedural protections in the exercise of the state’s sovereign discretion.

At the same time, Wilson ultimately relied on the statutory basis for asylum. Her assessment of the impact of a negative refugee determination presupposed that ‘if the appellants had been found to be Convention refugees as defined in s. 2(1) of the Immigration Act, 1976 they would have been entitled as a matter of law to the incidents of that status provided for in the Act’. The existence of a statutory right did not require the Court to consider whether asylum itself is a human right protected by the Charter. The articulation of refugee status as a statutory right (predicated on meeting the UN refugee definition) also facilitated more vigorous judicial scrutiny than a challenge to the vague wording or explicit grants of executive discretion involved in humanitarian and compassionate applications and decisions to expel refugees on grounds of criminality or security. In these respects, resolution of the Singh case did not test the judiciary’s fidelity to parliamentary supremacy and executive authority.

Having established a deprivation of a right to security of person, the Court then considered whether the existing procedure was consistent with the principles of fundamental justice. Wilson ruled that fundamental justice included, at a minimum, the common law principles of procedural fairness. The existing process failed to accord the claimants an opportunity to know the case against them, because evidence relied\ upon by the decision maker was not disclosed to the claimants. It did not let them respond to the case against them, or state their own case insofar as a claim could be rejected, without an oral hearing before the decision maker. Wilson concluded that: ‘I am of the view that where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing’.

The final stage in a Charter analysis considers whether, under s. 1, a violation of a Charter right or freedom is a ‘reasonable limit’ that is ‘demonstrably justified in a free and democratic society’. The judgment in Singh pre-dates the Supreme Court’s articulation of the test under s. 1, and so the Court’s analysis is fairly perfunctory. However, Wilson expressed a pointed lack of sympathy for the government’s contention that the administrative and financial burden of providing an oral hearing to every refugee claimant would be unreasonably onerous. Not only had the government failed to provide empirical evidence in support of its claim, but Wilson expressed scepticism that a utilitarian cost–benefit analysis could suffice to justify a denial of fundamental justice:

"Certainly the guarantees of the Charter would be illusory if they could be ignored because it was administratively convenient to do so. No doubt considerable time and money can be saved by adopting administrative procedures which ignore the principles of fundamental justice but such an argument, in my view, misses the point of the exercise under s. 1. The principles of natural justice and procedural fairness which have long been espoused by our courts, and the constitutional entrenchment of the principles of fundamental justice in s. 7, implicitly recognize that a balance of administrative convenience does not override the need to adhere to these principles."

International law that use in this reference :

- Susan Kneebone, 2009. REFUGEES ASYLUM SEEKERS AND THE RULE OF LAW Comparative Perspectives. Cambridge University Press: New York.
international law reference

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