Constitutional Challenges
| Author | Jamie Chai Yun Liew; Donald Galloway |
| Pages | 636-671 |
636
CH A PTE R 17
CONSTITUTIONAL
CHALLENGES
A. THE
CHA RTER
RIGHTS OF NON-CITIZENS
Throughout this text, reference has been made to t he probability of
future constitutional cha llenges aimed at recently introduced amend-
ments that have rendered the statu s of both non-citizens and citizens
more insecure and have restricted their substantive rights and acces s
to legal forums in which full consideration could be given to their con-
cerns and interest s. In this final chapter a foundation for such chal-
lenges is laid by considering t he application of the Canadian Charter of
Rights and Freedo ms1 to the immigration process.
B. THE AMBIT OF THE
CHA RTER
The text of the Charter reveal s that some rights are vested in citizen s,
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 Challenges 637
a) to the Parliament and gover nment of Canada in respect of al l
matters with in the authority of Parliament includi ng all matters
relating to the Yukon Territory a nd Northwest Territorie s; and
b) to the legi slature and government of each province in re spect of
all matters w ithin the authority of the legisl ature of each province.
The implication of this provision, rendered explicit in c aselaw, 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 Charte r and those subject to its constraints, it is silent on
the question of its geographical application. In early decisions, some
judges inferred that the Ch arter 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),2 which was the first ca se in which
the Charte r 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 h is decision on the Canadian Bill of Rights.3
Justice Wilson held that section 7 of the Char ter granted rights to
“every human being who is physically present in Canada and by virt ue
of such presence amenable to Canadian law.”4 Since the appellant s were
found to be physically present in Canad a, 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 t he amenability to Canadian
law or the physical presence that is the dominant consideration. These
important questions were left open. She did, however, clarif y one im-
portant point. When defining t hose in whom Charter rights are vested,
she did not distinguish bet ween those who are at a port of entry and
those who have been admitted into Ca nada. Such a fictional distinction
has been recogni zed in the United States, with constitutional protec-
tion being afforded only to those who have been adm itted.5
In two lower court decisions subsequent to Singh, it wa s 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
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.
IMM IGRATION 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 claimant s affected would all be non-citizens outside Canada w ith
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 contrar y 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” becaus e he was not
physically present in Canada. Justice Muldoon considered but rejected
the argument that since t he applicant was in the Canadian High Com-
mission in London, England, when he made his application, he was de
jure in Can ada. 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 Cana dian Council of
Churches.
These interpretations of Singh are not well grounded. As noted
above, not only does Wilson J not specify whether it is amen ability 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 Charte r to visa applicants can be constructed.10
The issue also surfaced i n a case dealing with c itizenship. In Crea se v
Canada (Minister of Mult iculturism & 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 inter pretation 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 r ights.
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.
10 See 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].
To continue reading
Request your trial