How the Charter has failed non-citizens in Canada: reviewing thirty years of Supreme Court of Canada jurisprudence.

• Author: Dauvergne, Catherine
• Position: Introduction through III. Mapping the Jurisprudence A. Rights Questions and Rights Answers, p. 663-703

This article reviews the Supreme Court of Canada's treatment of claims by non-citizens since the introduction of the Canadian Charter of Rights and Freedoms. While the early decisions in Singh and Andrews were strongly supportive of rights for non-citizens, the subsequent jurisprudence has been strikingly disappointing. This study shows that the decline in rights protections for non-citizens is a predictable consequence of some of the Court's early interpretative positions about the Charter. This study considers all Supreme Court of Canada decisions in the thirty-year time frame. The analysis is rounded out by a consideration of cases that were not granted leave and cases that engage directly with an issue of non-citizens' rights even where a non-citizen was not a party. The concluding section shows that non-citizens in Canada now have less access to rights protections than do non-citizens in some key comparator countries.

Cet article examine la maniere dont la Cour supreme du Canada a traite des revendications de non-citoyens depuis l'introduction de la Charte canadienne des droits et libertes. Alors que les decisions Singh et Andrews protegeaient fermement les droits des non-citoyens, la jurisprudence est depuis extremement decevante. Cette etude demontre que la protection decroissante des droits des non-citoyens est une consequence previsible de certaines interpretations de la Charte effectuees par la Cour dans les annees suivant son adoption. Cette etude se base sur toutes les decisions de la Cour supreme du Canada des trente dernieres annees. L'analyse prend aussi en considerations certaines affaires dont la demande d'autorisation d'appel fut rejetee, de meme que d'autres affaires qui, bien qu'aucun non-citoyen n'y etait partie, soulevaient neanmoins directement des enjeux relatffs aux droits des non-citoyens. La derniere partie illustre que les non-citoyens au Canada beneficient desormais d'une moins grande protection de leurs droits que les non-citoyens d'autres pays.

Introduction I. In the Beginning: Singh and Andrews II. Methodology: Which Cases Matter and Why III. Mapping the Jurisprudence A. Rights Questions and Rights Answers B. Cases Without Rights: Making Sense of Rights Claims 1b the Province of Administrative Law C. Refugee Law: An International Human Rights Claim D. Choosing Not to Decide E. Extradition: One Story Worth Telling F. Two Cases Directly Adjacent IV. Trends, Explanations, Conclusions Introduction

After thirty years of decision making under the Canadian Charter of Rights and Freedoms, (1) it is now clear that the Charter has been a disappointment for non-citizens in Canada. What is worse, during the Charter era, Canada has fallen behind many other Western democracies in providing access for non-citizens to international human rights protections. This conclusion is not a surprise to anyone who has been working in the migrant advocacy trenches over the past quarter century, but it is a jarring contrast to the reputation that Canada has sought for itself as an immigrant-welcoming international human rights leader, and it flies in the face of scholarship asserting that human rights have eclipsed citizenship rights.

On the face of it, Canada ought to be as good as it gets for non-citizens' human rights protections. Canada is a party to most of the major international human rights conventions (2) and is among a handful of states that have committed themselves to a series of optional protocols allowing individuals to bring complaints against it. (3) Canada has a long-standing program for permanent immigration, and immigration is embedded in its national mythology. It is one of the few Western states where survey data continue to show that the population is supportive of immigrants. (4) Indeed, Canada has recently celebrated the twenty-fifth anniversary of the award to "The People of Canada" of the United Nations High Commissioner for Refugee's Nansen Medal for service to refugees. (5) In addition to all of this, Canada has a strong and contemporary constitutional statement of rights. For all of these reasons, the failure of the Charter to deliver on its promise of human rights protections for non-citizens is counterintuitive.

This paper presents a study of all of the Supreme Court of Canada's Charter-era jurisprudence addressing the rights of non-citizens. It traces the jurisprudential evolution from early decisions strongly supportive of non-citizens' rights claims to more recent rulings where non-citizens' rights claims are rejected, sidelined, or even ignored. Patterns in decision making are discernible, and the decline in protections for non-citizens follows logically enough from a series of interpretive stances made relatively early on. There is evidence here of what I have termed "Charter hubris". This is a leading factor in explaining the current state of affairs, and it works alongside other explanations such as the traditionally broad ambit of discretion in immigration matters and the securitization of all immigration matters in the early twenty-first century. The Supreme Court of Canada is not, of course, the entire story for non-citizens' rights in Canada. Very few cases ever make it to this pinnacle venue and disproportionately fewer involving non-citizens. But focusing On the Supreme Court is always justified because of its leadership role. To complement this analysis, I have also completed a companion study of international human rights norms in the jurisprudence of Immigration and Refugee Board of Canada (Immigration and Refugee Board), which makes approximately fifty thousand decisions annually concerning non-citizens. (6)

The paper begins by outlining the early promise of the Singh and Andrews decisions, setting them in the context of scholarship on globalization, citizenship rights, and human rights. I then turn to a brief explanation of the methodology for the rest of the study. The next section presents the Supreme Court of Canada's Charter-era non-citizen jurisprudence in three thematic groups: cases treated by the Court as rights cases, cases treated as non-rights cases, and refugee rulings. The analysis is rounded out by a brief look at the issue of extradition, some highlights of the unsuccessful applications for leave to appeal, and two cases that do not technically address non-citizens but that have had important implications for non-citizen advocacy. This presentation lays the groundwork for the concluding section, which offers explanations for the trajectory of the jurisprudence and contrasts this trajectory with leading decisions elsewhere.

The argument that the Charter has failed to deliver on its early promise for non-citizens is made out at several levels. Most directly, non-citizens' Charter claims have rarely been successful. Second, the Supreme Court of Canada has relied exclusively on the Charter even in cases where applicable international human rights may have provided stronger protections for non-citizens. Third, a number of cases that were argued in human rights terms have not been treated as rights claims by the Court. Finally, very few non-citizens' rights claims have reached the Supreme Court of Canada. In sure, during the Charter era, non-citizens have had little success in making Charter rights claims and even less success in accessing alternative sources of rights protections, the most important and logical of which is international human rights law. This result is especially disappointing as other jurisdictions have made some important advancements in international human rights for non-citizens during this thirty-year time frame.

1. In the Beginning: Singh and Andrews

   The Charter era opened with two rulings that made vitally important statements for the rights of non-citizens. The Charter came into force on April 17, 1982. The section 15 equality provisions were delayed to give governments time to bring their legislation into compliance and took effect three years later, on April 17, 1985. In the case of both the generally applicable rights and the equality provisions in particular, the first decision to fully grapple with non-citizens' rights claims marked an important victory.

   This first ruling came in Singh v. Canada (Minister of Employment and Immigration), (7) which challenged the existing refugee status determination procedure on the grounds that it did not provide refugee claimants an oral hearing by a decision maker at any point during the multi-layered process. The Court ruled that this was a breach of principles of fundamental justice, and the government responded with a complete overhaul of the refugee determination process and the introduction of a tribunal process for first-instance refugee determination that was, for two decades, widely regarded as one of the fairest refugee determination processes in the world. (8) From a Charter point of view, the key holding was that the Charter's section 7 protections apply to "every human being who is physically present in Canada." (9) The Court explicitly rejected a distinction that would have hinged Charter protection to citizenship and similarly rejected a distinction, based on US law, between those present in the country and those seeking entry. (10)

   Singh has become part of the mythic foundation of Canadian refugee law. The anniversary of its handing down is celebrated annually as Refugee Rights Day in Canada by the advocacy community. (11) And for those who feel that refugees have too much legal protection in Canadian law, the Singh ruling is the emblem of all that is wrong with the law. (12) In situating Singh as the starting point of the Court's Charter-era engagement with non-citizens, I must scrutinize the ruling in a way that is discomfiting for mythology but that I hope will affirm the strength of the ruling nonetheless.

   The most important observation about Singh--lost in its mythology--is that only three of the six members of the panel used the Charter in coming...