Constitutional Challenges

AuthorJamie Chai Yun Liew; Donald Galloway
Pages636-671
636
CHAPTER 17
CONSTITUTIONAL
CHALLENGES
A. THE
CHARTER
RIGHTS OF NON-CITIZENS
Throughout this text, reference has been made to the probability of
future constitutional challenges aimed at recently introduced amend-
ments that have rendered the status of both non-citizens and citizens
more insecure and have restricted their substantive rights and access
to legal forums in which full consideration could be given to their con-
cerns and interests. In this f‌inal chapter a foundation for such chal-
lenges is laid by considering the application of the Canadian Charter of
Rights and Freedoms1 to the immigration process.
B. THE AMBIT OF THE
CHARTER
The text of the Charter reveals that some rights are vested in citizens,
others in permanent residents, and still others in “everyone” or “every
individual.” It also states that it has a limited application — section 32
provides:
32. (1) This Charter appl ies
1 Part I of the Constitution Act, 1982, being Sche dule B to the Canada Act 1982
(UK), 1982, c 11.
Constitutional Challenges637
a) to the Parliament and government of Canada in respect of all
matters within the authority of Parliament including all matters
relating to the Yukon Territory a nd Northwest Territories; and
b) to the legislature and government of each province in respect of
all matters w ithin the authority of the legisl ature of each province.
The implication of this provision, rendered explicit in caselaw, is
that the Charter does not place constraints on private individuals who
are not agents of government. A person’s constitutional rights are held
against the government. Although the text identif‌ies both the benef‌ici-
aries of the Charter and those subject to its constraints, it is silent on
the question of its geographical application. In early decisions, some
judges inferred that the Charter has a limited geographical application
protecting only individuals who are within Canada from government
action.
A foundation for such an inference was laid in Singh v Canada (Min-
ister of Employment and Immigration),2which was the f‌irst ca se in which
the Charter was held to be applicable to non-citizens. Although all six
judges who heard the case in the Supreme Court of Canada concurred
in the result, two quite different sets of reasons were given, each adopt-
ed by three judges. While Wilson J relied upon the Charter, Beetz J
chose, instead, to base his decision on the Canadian Bill of Rights.3
Justice Wilson held that section 7 of the Charter granted rights to
“every human being who is physically present in Canada and by virtue
of such presence amenable to Canadian law.”4 Since the appellants were
found to be physically present in Canada, there was no need for Wil-
son J to elaborate any further, neither to elucidate what she meant by
“amenability” nor to specify whether it is the amenability to Canadian
law or the physical presence that is the dominant consideration. These
important questions were left open. She did, however, clarify one im-
portant point. When def‌ining those in whom Charter rights are vested,
she did not distinguish between those who are at a port of entry and
those who have been admitted into Ca nada. Such a f‌ictional distinction
has been recognized in the United States, with constitutional protec-
tion being afforded only to those who have been admitted.5
In two lower court decisions subsequent to Singh, it was held that
the Charter does not protect individuals who are outside the country
and who are seeking to immigrate. In Canadian Council of Churches v
2 [1985] 1 SCR 177 [Singh].
3 SC 1960, c 44, reprinted in R SC 1985, App III (Bill of Rights). See Section E,
below in thi s chapter.
4 Singh, above note 2 at 202 [emphasis add ed].
5 Ibid at 210 –12.
IMMIGRATION L AW638
Canada (Minister of Employment and Immigration),6 MacGuigan JA, of-
fering no argument by way of justif‌ication, denied that a case founded
on a Charter argument constituted a reasonable cause of action, “since
the claimants affected would all be non-citizens outside Canada with
no claim to admis sion, and therefore beyond the scope of the Charter.7
In Ruparel v Canada (Minister of Employment and Immigration),8 the
applicant argued that a section of the Immigration Act, 19769 (the legis-
lation then in force), which placed greater restrictions on immigrants
over the age of twenty-one than on those under that age, discrim inated
against him contrary to section 15(1) of the Charter. In the Trial Div-
ision of the Federal Court, Muldoon J stated that the applicant could
not “have the remedies which he so justly seeks” because he was not
physically present in Canada. Justice Muldoon considered but rejected
the argument that since the applicant was in the Canadian High Com-
mission in London, England, when he made his application, he was de
jure in Canada. He concluded that the use of such a legal f‌iction could
not be countenanced in the face of the clear statement from Wilson
J in Singh and the statement of MacGuigan JA in Canadian Council of
Churches.
These interpretations of Singh are not well grounded. As noted
above, not only does Wilson J not specify whether it is amenability to
Canadian l aw or physical presence in Can ada that is determinative, but,
also, neither judgment offers a reason for not applying the Charter to
visa applicants or others who are subject to negative decisions by off‌i-
cials with in the immigration system. Furthermore, a strong theoretic al
case for applying the Charter to visa applicants can be constructed.10
The issue also surfaced i n a case dealing with c itizenship. In Creasev
Canada (Minister of Multiculturism & Citizenship),11 a Charter challenge
to a provision of the Citizenship Act was mounted by a non-citizen who
was also a non-resident. In a thorough judgment, Wetston J accepted
the proposition that such an individual may be protected by the Char-
ter on the basis of an interpretation of Wilson J’s holding that stresses
the factor of amenability to Can adian law rather than physical presence
in Canada. Nevertheless, Wetston J rejected the applicant’s claim that
the Citizenship Act had violated the applicant’s equality rights.
6 [1990] 2 FC 534 (CA), rev’d on other grounds [1992] 1 SCR 236 [Canadian
Council of Chur ches].
7 Ibid at 563 (CA).
8 [1990] 3 FC 615 (TD).
9 SC 1976-77, c 52.
10See Don ald Galloway, “The Extraterritor ial Application of the Charter to Vi sa
Applicants” (1991) 23 Ottawa Law Review 335.
11[1994] 3 FC 480 (TD) [Crease].

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