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

• Author: Dauvergne, Catherine
• Position: III. Mapping the Jurisprudence B. Cases Without Rights: Making Sense of Rights Claims in the Province of Administrative Law through IV. Trends, Explanations, Conclusions, with footnotes, p. 703-728

2. Cases Without Rights: Making Sense of Rights Claims in the Province of Administrative Law

   The second group of cases is where a rights claim of some sort was presented to the Supreme Court of Canada and the Court responded without relying on either the Charter or international human rights law. All of these cases began with a claim related to Canada's immigration legislation, and thus the terrain covered here is that of administrative law, with its rich array of procedural rights. It is, of course, the case that some procedural claims, such as the one in Singh, have been considered as principles of fundamental justice under section 7 of the Charter. This set of cases, therefore, serves to illustrate the types of claims that have neither become Charter claims nor have triggered an engagement with international human rights. There is a Charter story to be told by noting which potential Charter arguments fail to have any resonance at all.

   There is, of course, much shared terrain between this group and the first one. Seven of the nine cases above were challenges to immigration provisions. One of those cases, Baker, has become a cornerstone of Canadian administrative law and is very much part of the landscape of administrative rights protections. Beyond Baker, a number of the non-citizens' right claims that the Court did respond to in human rights terms also include significant administrative law implications. My explicit focus on investigating whether international human rights norms serve as an alternative to Charter rights does tend to exaggerate the distinction between these two groups, making a hard line appear where a blurred and porous border is more appropriate.

   The dominant theme in this group is the ambit of discretion for bureaucratic immigration decision makers at various levels. Chronologically, the first case involving the discretion of immigration officers was the Jiminez-Perez ruling, where the Court affirmed the duty to consider applications made on humanitarian and compassionate grounds and that such consideration could be compelled by the courts. (155) This brief decision predates all of those in the first set, including Singh. The second decision was Prassad, where the Court ruled that an adjudicator conducting an inquiry leading to a deportation order was not required to adjourn and wait for the conclusion of other applications under the Immigration Act. (156) The majority held that whether to adjourn was a matter completely in the hands of the adjudicator. (157) In the 1995 Chen ruling, the Court endorsed the dissentient below in a one-paragraph ruling. (158) At issue was the range of permissible considerations for a visa officer when assessing whether the "points system" score adequately reflects an economic migrant's likelihood of successful establishment in Canada. The result confined the relevant factors to those connected to making a living in Canada. (159) In the final decision concerning bureaucratic decision makers, Hilewitz v. Canada (Minister of Citizenship and Immigration), the Court ruled in 2005 that it was permissible to consider the personal wealth of an economic-class permanent residency applicant when assessing a question of health inadmissibility on the grounds of anticipated high demand on social services. (160) Intervenors in this case had argued that the statute must be interpreted in light of both the Charter and international human rights, but neither majority nor dissenting judgments approached the case in this way. (161)

   A second cluster of cases concerns the roles of immigration tribunals. The first of these, Kwiatkowsky, was argued within weeks of the Charter coming into effect in 1982. (162) Neither party made Charter arguments, and the appellant's factum was filed before the Charter was in force. The issue was the standard of proof on a preliminary assessment of a refugee redetermination proceeding, and the analysis was a brief and tight]y structured statutory interpretation. (163) Interestingly, Justice Wilson drew on this decision in building her Charter argument in Singh. (164) The next case involving immigration tribunals' roles came twenty years later in the 2002 Chieu ruling. Here, the Court examined the scope of the discretionary jurisdiction of the Immigration Appeal Division (IAD) of the Immigration and Refugee Board. (165) Under both the former and the current legislation, the IAD has the power to allow a permanent resident who is faced with removal from Canada to remain in the country even though the removal order is correct in both fact and law. This capacity to take other factors into account has become known as the IAD's "equitable" jurisdiction, in recognition of its fundamental, nonlegal basis. (166) The specific issue was whether the IAD could consider hardships an individual would face in the place to which they would be returned, or whether there was a requirement to limit consideration to "domestic" hardships. The Court upheld the broader view of this provision. (167) In 2009, this equitable jurisdiction was again considered by the Court in Khosa. (168) The key differences were that the legislative description of the power had been changed (169) and that the crucial Dunsmuir ruling concerning standards of review had been handed down in 2008. (170) In Khosa, the Court ruled that IAD decision makers were entitled to a high degree of deference, so need not be "correct" when exercising their equitable jurisdiction. (171) The plurality judgment authored by Justice Binnie chided the Federal Court of Appeal for retrying the case: "[C]learly, the majority felt that the IAD disposition was unjust to Khosa. However, Parliament saw fit to confide that particular decision to the IAD, not to the judges." (172) Substantively and procedurally, Chieu and Khosa cement the breadth of the IAD's discretion under both legislative formulations.

   The final decision in this group is not about the breadth of discretion but shares a theme with Khosa as the central issue was who got to decide. The 1994 ruling in Reza originated with a refugee claimant who was rejected at an early stage in the process on the basis that his claim had no "credible basis". (173) Mr. Reza was ordered deported, and he sought leave for judicial review (under the pre-1992 procedure (174)) by the Federal Court of Appeal. When the Federal Court of Appeal denied his application for leave, Mr. Reza turned to the Ontario courts, arguing that deportation would breach his Charter rights. He also sought unique Charter remedies. The Supreme Court ruled that the Ontario courts could not rehear what the Federal Court of Appeal had denied leave to hear. The ruling notes the Charter arguments raised, but does not address them. (175)

   This group of cases illustrates that the range of crucial decisions for non-citizens in Canada extends beyond the frameworks of the Charter and international human rights. This observation leads to a number of conclusions. Paramount among these is that discretionary decision making, which occurs outside a legal framework, is enormously important for non-citizens. Several of these cases point directly to key aspects of immigration discretion. For example, the "humanitarian and compassionate" requests at issue in Jiminez-Perez account for approximately ten thousand admissions annually over the past five years. (176) There is no legal standard for these admissions, and the criteria are highly malleable. (177) Similarly, the so-called equitable jurisdiction of the IAD is outside of legal parameters. While there is more shape to this jurisdiction in the Immigration and Refugee Protection Act than under the earlier legislation, a decision maker still has recourse to "all the circumstances" of the case. The only decision in this set where the Court ruled to restrict discretionary decision making in any way was Chen, where the Court confined itself to endorsing the dissentient below. While in some circumstances, such as Suresh and Baker, the scope of discretion has been shaped by Charter or international rights, this did not occur in any of these cases.

   While all bureaucratic decision makers have some measure of discretion, a number of studies have confirmed that the ambit of discretion is broader in immigration law and have traced this executive power to the strong role for the executive in admission to the state generally. (178) This discretionary space is in turn linked to potential weaknesses of rights claims: once discretionary space is asserted, a rights claim cannot gain any traction. It becomes irrelevant. This is the shift described by Justice Iacobucci, writing for a unanimous Court in Chieu:

   In my view, this appeal can be decided by applying principles of administrative law and statutory interpretation, as was the case in this Court's decision in Baker v. Canada. It is not necessary to address directly the scope and content of ss. 7 and 12 of the Canadian Charter of Rights and Freedoms. (179) It is therefore true that this set of cases establishes that Charter and human rights concerns will not be relevant for this range of concerns. Charter principles have, however, extended their reach into some areas of administrative law, and thus these responses from the Court could not have been a foregone conclusion. (180)

   Finally, while these cases show areas where explicit rights arguments will not take root, it is important not to overlook the powerful remedy provided by procedural rights. A number of these cases were important "wins" for non-citizens. They also serve to confirm the access of non-citizens to the courts and to rule of law principles, both of which are enshrined in important international human rights documents. (181)

   C Refugee Law: An International Human Rights Claim

   The third group of cases is those where the Court's principal ruling involved an interpretation of the Refugee Convention. (182) There are four decisions in the group (with one additional...