Immigration Law and Human Rights
| Author | Donald Galloway |
| Pages | 47-78 |
LiKKnMMMI^H
IMMIGRATION
LAW
AND
HUMAN
RIGHTS
A. THE
CANADIAN CHARTER
OF
RIGHTS
AND
FREEDOMS
In
1982,
the
Canadian Constitution
was
redesigned
to
include
the
Canadian Charter
of
Rights
and
Freedoms,
which identifies
and
guar-
antees
a set of
fundamental rights.
In one
sense,
the
impact
of the
Charter
on the
practice
of
immigration
law has
been quite signifi-
cant:
a
substantial number
of
legal challenges
on
behalf
of
those
who
have been subject
to
negative decisions have been founded
on
Char-
ter
grounds. However,
in
immigration law, unlike other areas
of law
such
as
criminal law, Charter challenges have
not met
with much
success.
The
courts have shown
a
marked reluctance
to
scrutinize,
critique,
and
reshape
the
policies
of the
federal
government
in
this
area
of
decision making.
After
an
early decision that required
the
restructuring
of the
refugee
determination process,
the
courts have,
in
general, avoided liberal interpretations
of the
Charter
and
have
settled into
a
pattern
of
decision making characterized
by a
rather
narrow
and
restrictive approach
to the
rights
of
immigrants
and
ref-
ugee claimants. This attitude
has led to the
search
for
other mecha-
nisms
to
protect
the
human rights
of
non-citizens.
47
48
IMMIGRATION
LAW
1)
Extra-Territorial
Application
of the
Charter
The
Charter claims
to
protect individuals only
from
rights violations
by
the
government.1
Two
problematic issues arise
from
this
claim. First,
there
is the
problem
of
identifying criteria
for
determining whether
the
government
has
been involved
in a
matter,
and for
distinguishing
such
a
matter
from
a
purely private
dispute.2
This issue
has not
arisen
in the
area
of
immigration law,
and is
unlikely
to do so. The
second problem
that
has
clear relevance
to
immigration decision making
is
that
of
deter-
mining
who is
protected
by the
Charter's
provisions.
The
document
itself
provides that some rights
are
vested
in
citizens, others
in
perma-
nent residents,
and
still others
in
"everyone"
or
"every individual."
The
uncertainty
has
been engendered
by the
query whether
any
qualifica-
tions should
be
implied into
the
text, specifically qualifications relating
to
territorial application.
If
the
Charter protects individuals only
as
long
as
they
are
physically
present
in
Canada,
an
individual applying
for a
visa
from
outside
the
country would,
as a
result,
not be
protected. This issue
of the
ambit
of
the
Charter
has
been raised
in a
number
of
important cases.
The
most significant
is
Singh
v.
Canada
(Minister
of
Employment
&>
Immigration),3
which
was the
first
case
in
which
the
applicability
o
f the
Charter
to
non-citizens
was
recognized.
While
all six
judges
who
heard
the
case
in the
Supreme Court
of
Canada concurred
in the
result,
two
quite
different
reasons
for
decision
were given, each adopted
by
three
judges. While Wilson
J.
relied upon
the
Charter,
Beetz
J.
chose instead
to
base
his
decision
on the
Canadian
Bill
of
Rights.4
Wilson
J.
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."5
Since
the
appellants were found
to be
physically present
in
Canada, there
was no
need
for
Wilson
J. to
1
Section 32(1)
of the
Canadian
Charter
of
Rights
and
Freedoms,
Part
I of the
Constitution
Act, 1982, being Schedule
B to the
Canada
Act
1982
(U.K.),
1982,
c. 11,
states
that
it
"applies
to the
Parliament
and
government
of...
Canada
in
respect
of
all
matters within
the
authority
of
Parliament [and]
to the
legislature
and
government
of
each province
in
respect
of all
matters within
the
authority
of the
legislature
of
each province."
2 See
R.W.D.S.U.
v.
Dolphin
Delivery
Hill
v.
Church
of
Scientology
of
Toronto,
1130.
3
[Singh].
4 For
discussion
of the
continuing relevance
of the
Canadian
Bill
of
Rights,
see
below,
at
67.
5
Singh,
above note
3 at
202.
Immigration
Law and
Human
Rights
49
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.
Wilson
J.
did, however,
clarify
one
important point.
When
defining those
in
whom
Charter
rights
are
vested,
she did not
dis-
tinguish between those
who are at a
port
of
entry
and
those
who
have
been admitted into Canada. Such
a
fictional distinction
has
been recog-
nized
in the
United States, with constitutional protection being
afforded
only
to
those
who
have been
admitted.6
In two
immigration cases since
Singh
it has
been 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.
Canada
(Min-
ister
of
Employment
&
Immigration),7
MacGuigan
J.A.,
offering
no
a
rgu-
ment
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
admission,
and
therefore beyond
the
scope
of the
Charter."8
In
Ruparel
v.
Canada
(Minister
of
Employment
&
Immigration),9
the
applicant argued that
a
section
of the
Immigration
Act
which placed greater
restrictions
on
immigrants over
the age of
twenty-one than
on
those under
that
age
discriminated against
him
contrary
to
section 15(1)
of the
Charter.
In
the
Trial Division
of the
Federal Court, Muldoon
J.
stated that
the
appli-
cant could
not
"have
the
remedies which
he so
justly seeks" because
he was
not
physically present
in
Canada. Muldoon
J.
considered
but
rejected
the
argument
that since
the
applicant
was in the
Canadian High Commission
in
London when
he
made
his
application,
he was
dejure
in
Canada.
He
con-
cluded 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
J.A.
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
law or
physical presence
in
Canada which
is
determinative,
but
also neither judgment
offers
a
reason
for not
applying
the
Charter
to
visa applicants. Furthermore,
a
strong theoretical case
for
applying
the
Charter
to
visa applicants
can be
constructed.10
6
Ibid,
at
210-12.
7
[1990]
2 EC. 534
(C.A.),
rev'd
on
other
grounds
236.
8
Ibid,
at
563.
9
[1990]
3
EC.
615(T.D.).
10 See D.
Galloway,
"The
Extraterritorial
Application
ol
the
Charter
to
Visa
Applicants"
(1991)
23
Ottawa
L.
Rev. 335.
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