REVISITING THE APPLICATION OF SECTION 7 OF THE CHARTER IN IMMIGRATION AND REFUGEE PROTECTION.

• Author: Heckman, Gerald
• Position: Canada

1. Introduction

   Section 7 of the Canadian Charter of Rights and Freedoms states that "everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." (1) To establish an infringement of s. 7, it is necessary to establish first, that state action has resulted in depriving an individual of their life, liberty or security of the person and second, that this deprivation was achieved in a manner inconsistent with one or more principles of fundamental justice. This article focuses on the first step of the analysis: whether proceedings under Canada's immigration and refugee protection laws engage the life, liberty or security of the person of non-citizens.

   The very first case decided by the Supreme Court of Canada involving a s. 7 claim outside of the criminal context was Singh v Canada (Minister of Employment and Immigration). (2) Three of six judges recognized that the denial of a Convention refugee's right under the Immigration Act, 1976 not to be removed from Canada to a country where his life or freedom would be threatened amounted to a deprivation of his security of the person within the meaning of s. 7. Justice Bertha Wilson's judgment in Singh is remarkable in several ways. (3) It established that the word "everyone" in s. 7 applies to "every human being physically present in Canada and by virtue of such presence amenable to Canadian law." It recognized that "security of the person" encompasses not only freedom from physical punishment or suffering but freedom from the threat of such punishment. In determining whether s. 7 of the Charter applied to government acts, it refused to embrace the distinction between acts said to impact "rights" and those affecting "mere privileges", focusing instead on their consequences for the affected person's s. 7 interests.

   Over thirty years later, significant questions remain about the application of s. 7 in the sphere of immigration and refugee law. Following over a decade of inconsistent Federal Court of Appeal decisions on whether the right to liberty was engaged by immigration and refugee proceedings, the Supreme Court laconically declared that "the deportation of a non-citizen in itself cannot implicate the liberty and security interests protected by s. 7 of the Canadian Charter of Rights and Freedoms." (4) Two years later, it adjusted its position, holding that "[wjhile the deportation of a non-citizen in the immigration context may not in itself engage s. 7 of the Charter, some features associated with deportation, such as detention in the course of the [security] certificate process or the prospect of deportation to torture, may do so." (5) More recently, the Supreme Court appeared to endorse, in obiter, the view that liberty and security of the person are not engaged in the earlier decision making stages of the immigration and refugee protection regime so long as these interests can be considered in proceedings that immediately precede removal. (6) Thus, s. 7 was not engaged at the stage of determining whether a refugee claimant was inadmissible to Canada because the claimant had access to a subsequent pre-removal risk assessment where the risk of removal to face death, torture or cruel and unusual treatment or punishment would be considered and s. 7 would be engaged. (7) In a recent decision, the Federal Court of Appeal held that to decide whether a bar on pre-removal risk assessments filed within a year of the rejection of a refugee protection claim violated a non-citizen's s. 7 right to security of the person, it would be necessary to revisit the reasoning underlying the thirty-year-old Singh judgment. (8)

   In this article, I provide a brief and general overview of the Supreme Court's jurisprudence on the application of s. 7. Against this background, I take stock of and critically assess, in historical context, the current state of the law on the engagement of liberty and security of the person in immigration and refugee proceedings. I conclude that in the refugee and immigration context, Canadian courts have adopted a narrow approach to the engagement of s. 7 that is inconsistent with their approach in the cognate areas of criminal law and extradition law and for which they have failed to articulate a transparent and principled justification.

   I examine four aspects of the s. 7 engagement jurisprudence that illustrate this inconsistency and cry out for a principled reappraisal by the Supreme Court. First, the Federal Court of Appeal's inconsistent early jurisprudence on whether s. 7 is engaged in immigration and refugee proceedings was marked by persistent confusion between two distinct components of s. 7 analysis: whether these proceedings engage non-citizens' life, liberty and security of the person and whether, viewed in their statutory context, they offend principles of fundamental justice. The Federal Court and Federal Court of Appeal have continued to rely on some of these early decisions, which are ripe for re-examination. Second, the Supreme Court's bald assertion in Medovarski that the deportation of non-citizens does not, in itself, implicate their liberty and security of the person fails to address key arguments, some grounded in the Court's own s. 7 jurisprudence, that support s. 7 engagement. As recognized in some Federal Court of Appeal judgments, immigration and refugee protection proceedings involve the threat of detention incidental to forced removal. The possibility of detention engages liberty in the extradition and penal contexts which, with the advent of "crimmigration"--the convergence of criminal law and immigration law--are not far removed from the context of removal proceedings. Deportation can also engage non-citizens' liberty by preventing them from making fundamental personal choices, such as nurturing or caring for their Canadian-born children, that go beyond the bare assertion of mobility rights. Interference with such profoundly intimate choices could also produce an effect on non-citizens' psychological integrity serious and profound enough to engage their security of the person. Third, more than thirty years after Singh, uncertainty persists on whether non-citizens' security of the person is engaged in any circumstance where deportation places them at risk of persecution, torture or cruel and unusual punishment or whether s. 7 engagement hinges on non-citizens' ability to establish a violation of their statutory rights. While the Supreme Court has hinted in some of its judgments that non-citizens' right not to be deprived of their security of the person except in accordance with the principles of fundamental justice is a freestanding constitutional right, it has not yet expressly and unequivocally addressed this fundamental aspect of s. 7 engagement. Finally, by opining that s. 7 does not apply to determinations of exclusion or inadmissibility because these proceedings are not sufficiently proximate to removal, the Supreme Court has without justification imposed in the immigration and refugee protection context a standard of causation more onerous than that which it applies for s. 7 engagement generally.

   In my concluding remarks, I briefly address how a principled approach to s. 7 engagement in immigration and refugee protection decision making could make a real difference for non-citizens who seek to challenge their removal from Canada. Abandoning the narrow approach to s. 7 engagement in this context would shift the courts' focus to the crucial question of whether the state has interfered with non-citizens' liberty and security of the person in a manner rationally connected and proportionate to the objectives of Canada's immigration laws, as required by our fundamental constitutional values.

2. The scope of application of section 7 of the Charter: a brief overview

   To demonstrate a violation of s. 7, one must establish, first, that a law or state action interferes with or deprives natural persons (9) present in Canada and thus subject to Canadian law (10) of their life, liberty or security of the person (11) and, second, that this deprivation is not in accordance with the principles of fundamental justice. (12) This part summarizes the state of the law on the question of whether s. 7 is engaged, the first of these issues, through a review of leading cases decided in a variety of contexts touching on the administration of justice.

   1. State action implicating the administration of justice

      The dominant strand of jurisprudence on s. 7 sees its purpose as guarding against the kinds of deprivation of life, liberty and security of the person "that occur as a result of an individual's interaction with the justice system and its administration," (13) a term which refers to "the state's conduct in the course of enforcing and securing compliance with the law." (14) Thus, s. 7 protects against measures that can be attributed to state action implicating the "administration of justice," (15) broadly interpreted by the Court as extending beyond processes operating in the criminal law sphere (16) to the investigation of complaints of discrimination under human rights legislation, (17) parental rights in relation to state-imposed medical treatment (18) and in the child custody process (19) and the right to refuse state-imposed addiction treatment. (20) Canada's conduct in enforcing and securing non-citizens' compliance with its immigration laws falls well within this concept of administration of justice.

   2. Life, Liberty and Security of the Person

      (a) Life

      The right to life under s. 7 is engaged where a law or state action imposes death or an increased risk of death on a person, either directly or indirectly. (21) State measures that interfere with patients' timely access to potentially life-saving medical care have been found to engage the right to life. (22) Deporting a refugee "where there are grounds to believe that this...