Constitutional Challenges

• Author: Jamie Chai Yun Liew; Donald Galloway
• Pages: 636-671

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].