Suresh v. Canada (Minister of Citizenship and Immigration), (2002) 281 N.R. 1 (SCC)

• Judge: McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 22, 2001
• Jurisdiction: Canada (Federal)
• Citations: (2002), 281 N.R. 1 (SCC);2002 SCC 1;208 DLR (4th) 1;281 NR 1;JE 2002-161;37 Admin LR (3d) 159;[2002] ACS no 3;90 CRR (2d) 1;110 ACWS (3d) 1104;[2002] 1 SCR 3;18 Imm LR (3d) 1;[2002] SCJ No 3 (QL)

Suresh v. Can. (M.C.I.) (2002), 281 N.R. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2002] N.R. TBEd. JA.013

Manickavasagam Suresh (appellant) v. The Minister of Citizenship and Immigration and The Attorney General of Canada (respondents) and The United Nations High Commissioner for Refugees, Amnesty International, The Canadian Arab Federation, The Canadian Council for Refugees, The Federation of Associations of Canadian Tamils, The Centre for Constitutional Rights, The Canadian Bar Association and The Canadian Council of Churches (interveners)

(27790; 2002 SCC 1)

Indexed As: Suresh v. Canada (Minister of Citizenship and Immigration)

Supreme Court of Canada

McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.

January 11, 2002.

Summary:

Suresh, a Tamil from Sri Lanka, was granted Convention refugee status. He subsequently became the subject of a secur­ity certificate issued pursuant to s. 40.1 of the Immigration Act on the basis that he was inadmissible to Canada pursuant to ss. 19(1)(e)(iv)(C), 19(1)(f)(ii) and 19(1)(f)(iii)(B) because of his alleged mem­bership in the Liberation Tigers of Tamil Eelam (LTTE), an organization engaged in terrorist activity. The reasonableness of the security certificate was upheld by Teitel­baum, J., who found that the World Tamil Movement, of which Suresh was a fundrais­ing coordinator, supported the LTTE (see 140 F.T.R. 88). A deportation hearing fol­lowed. An adjudicator found no reasonable grounds to conclude that Suresh was directly engaged in terrorism under s. 19(1)(f)(ii), but held that he should be deported on grounds of membership in a terrorist organization under ss. 19(1)(f)(iii)(B) and 19(1)(e)(iv)(C). The Minister of Citizenship and Immigration issued an opinion pursuant to s. 53(1)(b) of the Act that Suresh was a danger to the security of Canada. That finding enabled the Minister to return Suresh to the country from which he sought refuge despite the fact that it might expose him to a risk of torture. Suresh applied for judicial review of the Minister's decision.

The Federal Court of Canada, Trial Divi­sion, in a decision reported at 173 F.T.R. 1; 65 C.R.R.(2d) 344, dismissed the applica­tion. Suresh appealed and moved for an order staying his removal from Canada pending the disposition of his appeal.

The Federal Court of Appeal, per Robertson, J.A., in a decision reported at 249 N.R. 28, granted the motion for a stay.

The Federal Court of Appeal, in a decision reported at [2000] F.C. 592; 252 N.R. 1, dismissed the appeal. Suresh appealed, rais­ing issues regarding: the standard to be applied in reviewing a ministerial decision to deport; whether the Charter precluded de­por­tation to a country where the refugee faced torture or death; whether deportation on the basis of mere membership in an alleged terrorist organization unjustifiably infringed the Charter rights of free express­ion and free association; whether the terms "terrorism" and "danger to the security of Canada" were unconstitutionally vague; and whether the deportation scheme contained adequate procedural safeguards to ensure that refugees were not expelled to a risk of torture or death.

The Supreme Court of Canada allowed the appeal. The court concluded that to deport a refugee to face a substantial risk of torture would generally violate s. 7 of the Charter, but left open the possibility that in an ex­cep­tional case such deportation might be jus­tified either in the balancing approach under s. 7 or s. 1 of the Charter. The court also concluded that the Minister had to exercise her discretion to deport under the Immigra­tion Act accordingly, and that, properly applied, the legislation conformed to the Charter. The court rejected the argu­ments that the terms "danger to the security of Canada" and "terrorism" were unconstitu­tionally vague and that ss. 19 and 53(1)(b) of the Act violated the Charter guarantees of free expression and free association. Apply­ing those conclusions, the court found that Suresh had made a prima facie case showing a substantial risk of torture if deported to Sri Lanka and that he had not been provided with the procedural safeguards required to protect his s. 7 right not to be expelled to a risk of torture. The court remanded the case to the Minister for reconsideration in accor­dance with the procedures set out in the court's reasons.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - [See sixth Aliens - Topic 1645.1 ].

Administrative Law - Topic 3202

Judicial review - General - Scope of review - The Supreme Court of Canada considered the standard of review applic­able to a decision by the Minister of Citi­zenship and Immigration under s. 53(1)(b) of the Immigration Act that a refugee constituted "a danger to the security of Canada" - The court stated that "the re­viewing court should adopt a deferential approach to this question and should set aside the Minister's discretionary decision if it is patently unreasonable in the sense that it was made arbitrarily or in bad faith, it cannot be supported on the evidence, or the Minister failed to consider the appro­priate factors. The court should not reweigh the factors or interfere merely because it would have come to a different conclusion ... the language of the Act (the Minister must be 'of the opinion ' that the person constitutes a danger to the security of Canada) suggests a standard of defer­ence. So, on the whole, do the factors to be considered: (1) the presence or absence of a clause negating the right of appeal; (2) the relative expertise of the decision-maker; (3) the purpose of the provision and the legislation generally; and (4) the nature of the question" - See paragraphs 27 to 38.

Administrative Law - Topic 3202

Judicial review - General - Scope of review - The Minister of Citizenship and Immigration issued an opinion pursuant to s. 53(1)(b) of the Immigration Act that Suresh, a Convention refugee, was a "dan­ger to the security of Canada" - That find­ing enabled the Minister to return Suresh to the country from which he sought ref­uge (Sri Lanka) despite the fact that it might expose him to a risk of tor­ture - The Supreme Court of Canada considered the standard of review appli­cable to the Minis­ter's decision on whether Suresh would face a substantial risk of torture upon his return to Sri Lanka - The court stated that the threshold question of whether there was a substantial risk of torture was large­ly fact driven and involved the consider­ation of issues which were largely outside the realm of expertise of reviewing courts and possessed a negli­gible legal dimension - The court con­cluded that the threshold finding of whether Suresh faced a substan­tial risk of torture attracted defer­ence by the review­ing court - The court could not reweigh the factors considered by the Minister, but could intervene if the deci­sion was not supported by the evidence or failed to consider the appropriate factors - See paragraph 39.

Aliens - Topic 2

Legislation - Interpretation - [See third Aliens - Topic 1645.1 ].

Aliens - Topic 3.2

International Conventions and obligations (incl. incorpora­tion of) - Deportation to torture was pro­hibited by the International Coven­ant on Civil and Political Rights (ICCPR) and the Convention against Tor­ture and other Cruel, Inhuman or Degrad­ing Treat­ment or Punishment (CAT) - Article 33(2) of the Convention Relating to the Status of Refu­gees (Refugee Conven­tion), which per­mitted a country to refoule a refugee who was a danger to the coun­try's secur­ity, appeared to stand in opposi­tion to the categorical rejection of deport­ation to torture in the CAT - Robertson, J.A., attempted to read the two conventions in a way that minimized the contradiction, holding that the anti-deportation provi­sions of the CAT were not binding, but deroga­ble - The Supreme Court of Canada stated that it was not apparent that the clear prohibitions on torture in the CAT were intended to be derogable - The court stated that the prohibition in the ICCPR and the CAT on returning a refugee to face a risk of torture reflected the prevailing interna­tional norm and that the better view was that inter­na­tional law rejected deport­ation to torture, even where national se­curity inter­ests were at stake - See para­graphs 66 to 75.

Aliens - Topic 1565

Exclusion and expulsion - Power to detain and deport - Reasons for decisions - [See seventh Aliens - Topic 1645.1 ].

Aliens - Topic 1645.1

Exclusion and expulsion - Immigration - Deportation - Grounds for - Danger to the security of Canada - [See both Adminis­trative Law - Topic 3202 ].

Aliens - Topic 1645.1

Exclusion and expulsion - Immigration - Deportation - Grounds for - Danger to the security of Canada - Section 53(1)(b) of the Immigration Act provided that a Con­vention refugee could be removed from Canada to a country where the person's life or freedom would be threatened if the person was a member of an inadmissible class described in s. 19(1)(e), (f), (g), (j), (k) or (l), and the Minister was of the opinion that the person constituted a "dan­ger to the security of Canada" - The Supreme Court of Canada held that "gen­erally to deport a refugee, where there are grounds to believe that this would subject the refugee to a substantial risk of torture, would unconstitutionally violate the Char­ter's s. 7 guarantee of life, liberty and security of the person. This said, we leave open the possibility that in an exceptional case such deportation might be justified either in the balancing approach under ss. 7 or 1 of the Charter" - The court con­cluded that in these circumstances, s. 53(1)(b) did not violate s. 7 of the Charter - See paragraphs 78 to 79.

Aliens - Topic 1645.1

Exclusion and expulsion - Immigration - Deportation - Grounds for - Danger to the security of Canada - Section 53(1)(b) of the Immigration Act provided that a Con­vention refugee could be removed from Canada to a country where the person's life or freedom would be threatened if the person was a member of an inadmissible class described in s. 19(1)(e), (f), (g), (j), (k) or (l), and the Minister was of the opinion that the person constituted a "dan­ger to the security of Canada" - The Supreme Court of Canada held that the phrase "danger to the security of Canada" in s. 53(1)(b) was not unconstitutionally vague - The court concluded that while "danger to the security of Canada" must be given a fair, large and liberal interpreta­tion, it nevertheless demanded proof of a potentially serious threat - The court stated that "a person constitutes a 'danger to the security of Canada' if he or she poses a serious threat to the security of Canada, whether direct or indirect, and bearing in mind the fact that the security of one country is often dependent on the security of other nations. The threat must be 'seri­ous', in the sense that it must be grounded on objectively reasonable suspi­cion based on evidence and in the sense that the threatened harm must be substan­tial rather than negligible" - See para­graphs 80 to 92.

Aliens - Topic 1645.1

Exclusion and expulsion - Immigration - Deportation - Grounds for - Danger to the security of Canada - The Minister of Citi­zenship and Immigration issued an opinion pursuant to s. 53(1)(b) of the Immigration Act that Suresh, a Convention refugee, was a danger to the security of Canada - That finding enabled the Minister to return Suresh to the country from which he sought refuge (Sri Lanka) despite the fact that it might expose him to a risk of tor­ture - The Supreme Court of Canada held that Suresh had made a prima facie show­ing that he might be tortured on returning to Sri Lanka and that he was not provided with the procedural safeguards necessary to protect his s. 7 right not to be expelled to torture - The court further stated that "[d]espite the legitimate purpose of s. 53(1)(b) of the Immigration Act in striking a balance between the need to fulfil Cana­da's commitments with respect to refugees and the maintenance of the safety and good order of Canadian society, the lack of basic procedural protections provided to Suresh cannot be justified by s. 1 ... Valid objectives do not, without more, suffice to justify limitations on rights. The limitations must be connected to the objective and be proportional. Here the connection is lack­ing" - See paragraphs 113 to 130.

Aliens - Topic 1645.1

Exclusion and expulsion - Immigration - Deportation - Grounds for - Danger to the security of Canada - Section 53(1)(b) of the Immigration Act provided that a Con­vention refugee could be removed from Canada to a country where the person's life or freedom would be threatened if the person was a member of an inadmissible class described in s. 19(1)(e), (f), (g), (j), (k) or (l), and the Minister of Citizenship and Immigration was of the opinion that the person constituted a "danger to the security of Canada" - The Supreme Court of Canada discussed the procedural pro­tec­tions required by s. 7 of the Charter where a person faced deportation to torture under s. 53(1)(b) - The court stated that "[t]hese procedural protections need not be invoked in every case, as not every case of deporta­tion of a Convention refugee under s. 53(1)(b) will involve risk to an indi­vidu­al's fundamental right to be protected from torture or similar abuses. It is for the refu­gee to establish a threshold showing that a risk of torture or similar abuse exists before the Minister is obliged to consider fully the possibility. This showing need not be proof of the risk of torture to that per­son, but the individual must make out a prima facie case that there may be a risk of torture upon deportation" - See para­graph 127.

Aliens - Topic 1645.1

Exclusion and expulsion - Immigration - Deportation - Grounds for - Danger to the security of Canada - Section 53(1)(b) of the Immigration Act provided that a Con­vention refugee could be removed from Canada to a country where the person's life or freedom would be threatened if the person was a member of an inadmissible class described in s. 19(1)(e), (f), (g), (j), (k) or (l), and the Minister of Citizenship and Immigration was of the opinion that the person constituted a "danger to the security of Canada" - The Supreme Court of Canada discussed the procedural protections required by s. 7 of the Charter where a person faced deportation to torture under s. 53(1)(b) - The Minister was not required to conduct a full oral hearing or a complete judicial process - However, the individual had to be informed of the case to be met and be provided with all of the material on which the Minister based her decision - Further, fundamental justice required that an oppor­tunity be provided to respond to the Minis­ter's case and that written submissions be accepted from the subject of the order after the subject had been provided with an opportunity to examine the material being used against him or her - The Minister also had to provide responsive written reasons for her decision - See paragraphs 113 to 127.

Aliens - Topic 1645.1

Exclusion and expulsion - Immigration - Deportation - Grounds for - Danger to the security of Canada - Section 53(1)(b) of the Immigration Act provided that a Con­vention refugee could be removed from Canada to a country where the person's life or freedom would be threatened if the person was a member of an inadmissible class described in s. 19(1)(e), (f), (g), (j), (k) or (l), and the Minister of Citizenship and Immigration was of the opinion that the person constituted a "danger to the security of Canada" - The Supreme Court of Canada stated that "[t]he Minister must provide written reasons for her decision [under s. 53(1)(b)]. These reasons must articulate and rationally sustain a finding that there are no substantial grounds to believe that the individual who is the subject of a s. 53(1)(b) declaration will be subjected to torture, execution or other cruel or unusual treatment, so long as the person under consideration has raised those arguments. The reasons must also articu­late why, subject to privilege or valid legal reasons for not disclosing detailed infor­ma­tion, the Minister believes the individual to be a danger to the security of Canada as required by the Act. In addition, the rea­sons must also emanate from the person making the decision, in this case the Min­ister" - See paragraph 126.

Aliens - Topic 1747

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of a subversive or terrorist organization - The Supreme Court of Canada held that the word "terrorism" in s. 19 of the Immi­gration Act provided a sufficient basis for adjudication and was not unconstitutionally vague - See paragraphs 93 to 98.

Aliens - Topic 1747

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of a subversive or terrorist organization - Section 53(1)(b) of the Immigration Act provided that a Convention refugee could be removed from Canada to a country where the person's life or freedom would be threatened if the person was a member of an inadmissible class described in s. 19(1)(e), (f), (g), (j), (k) or (l), and the Minister of Citizenship and Immigration was of the opinion that the person consti­tuted a "danger to the security of Canada" - The Minister issued an opinion pursuant to s. 53(1)(b) that Suresh was a danger to the security of Canada based on the ground that he was a member of the Liberation Tigers of Tamil Eelam (LTTE), a terrorist organization - Suresh argued that the order declaring him a danger to the security of Canada under s. 53(1)(b) on the ground that he was a member of the LTTE vio­lated his Charter rights of free expression and free association - He pointed out that he had not been involved in actual terrorist activity in Canada, but merely in fund-raising and support activities - The Supreme Court of Canada held that s. 19 as incorporated into s. 53 did not breach the rights of free expression and associ­ation guaranteed by ss. 2(b) and 2(d) of the Charter - See paragraphs 100 to 111.

Aliens - Topic 1789

Exclusion and expulsion - Deportation of persons in Canada - Refugees - [See Aliens - Topic 3.2 ].

Civil Rights - Topic 660.2

Liberty - Limitations on - Immigration - [See second Aliens - Topic 1645.1 ].

Civil Rights - Topic 1325

Security of the person - Immigration - Deportation - [See second Aliens - Topic 1645.1 ].

Civil Rights - Topic 1854.1

Freedom of speech or expression - Limi­ta­tions on - Membership in terrorist orga­niz­ations - [See sec­ond Aliens - Topic 1747 ].

Civil Rights - Topic 1863

Freedom of speech or expression - Denial of - What constitutes - [See sec­ond Aliens - Topic 1747 ].

Civil Rights - Topic 2159.1

Freedom of association - Limitations on - Associations with terrorist organizations - [See sec­ond Aliens - Topic 1747 ].

Civil Rights - Topic 2204

Freedom of association - Denial of right of - What constitutes - [See second Aliens - Topic 1747 ].

Civil Rights - Topic 3107

Trials - Due process, fundamental justice and fair hearings - Void for vagueness doctrine - [See third Aliens - Topic 1645.1 and first Aliens - Topic 1747 ].

Civil Rights - Topic 3177

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Requirement of a hearing - [See sixth Aliens - Topic 1645.1 ].

Civil Rights - Topic 3192

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Procedure con­trary to fundamental justice - [See fourth Aliens - Topic 1645.1 ].

Civil Rights - Topic 3194

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Right to rea­sons for decision - [See sixth Aliens - Topic 1645.1 ].

Civil Rights - Topic 8306

Canadian Charter of Rights and Freedoms - Application of - Territorial limits - [See Civil Rights - Topic 8344 ].

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice (Charter, s. 7) - In considering the issue of whether deport­ation to a risk of torture would violate s. 7 of the Charter, the Supreme Court of Canada stated that "the guarantee of fun­da­mental justice applies even to depriva­tions of life, liberty or security effected by actors other than our government, if there is a sufficient causal connection between our government's participation and the deprivation ultimately effected. We reaf­firm that principle here. At least where Canada's participation is a necessary pre­condition for the deprivation and where the deprivation is an entirely foreseeable con­sequence of Canada's participation, the government does not avoid the guarantee of fundamental justice merely because the deprivation in question would be effected by someone else's hand" - See paragraph 54.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See second and fourth Aliens - Topic 1645.1 ].

Civil Rights - Topic 8466

Canadian Charter of Rights and Freedoms - Interpretation - Balancing approach - [See second Aliens - Topic 1645.1 ].

Civil Rights - Topic 8470

Canadian Charter of Rights and Freedoms - Interpretation - International law - [See Civil Rights - Topic 8547 ].

Civil Rights - Topic 8547

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Principles of fundamental justice - The Supreme Court of Canada stated that the inquiry into the principles of fun­da­mental justice was informed not only by Canadian experience and jurisprudence, but also by international law, including jus cogens (peremptory norm of customary international law) - See paragraph 46.

Crown - Topic 685

Authority of Ministers - Exercise of - Administrative decisions - Judicial review - [See both Administrative Law - Topic 3202 ].

International Law - Topic 6005

International relations - Prohibition against torture - An argument was made that the absolute prohibition on torture was a per­emptory norm of customary international law, or "jus cogens" - The Supreme Court of Canada stated that "[a]lthough this court is not being asked to pronounce on the status of the prohibition on torture in international law, the fact that such a principle is included in numerous multilat­eral instruments, that it does not form part of any known domestic administrative practice, and that it is considered by many academics to be an emerging, if not estab­lished peremptory norm, suggests that it cannot be easily derogated from" - See paragraphs 61 to 65.

International Law - Topic 6005

International relations - Prohibition against torture - [See Aliens - Topic 3.2 ].

Words and Phrases

Danger to the security of Canada - The Supreme Court of Canada discussed the meaning of the phrase "danger to the sec­urity of Canada" in s. 53(1)(b) of the Immigration Act, R.S.C. 1985, c. I-2 - See paragraphs 80 to 92.

Cases Noticed:

Pushpanathan v. Canada (Minister of Citi­zenship and Immigration), [1998] 1 S.C.R. 982; 226 N.R. 201; 160 D.L.R.(4th) 193, refd to. [para. 30].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22 (S.C.C.), refd to. [para. 31].

Secretary of State for the Home Depart­ment v. Rehman, [2001] 3 W.L.R. 877 (H.L.), refd to. [para. 31].

Pezim v. British Columbia Securities Com­mission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1; [1994] 7 W.W.R. 1; 92 B.C.L.R.(2d) 145; 14 B.C.R.(2d) 217; 22 Admin. L.R.(2d) 1; 114 D.L.R.(4th) 385, refd to. [para. 34].

Superintendent of Brokers v. Pezim - see Pezim v. British Columbia Securities Commission et al.

Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; 213 N.R. 161, refd to. [para. 35].

Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147 (H.L.), refd to. [para. 37].

Sheehan v. Ontario (Criminal Injuries Compensation Board) (1974), 52 D.L.R.(3d) 728 (Ont. C.A.), refd to. [para. 37].

Maple Lodge Farms Ltd. v. Canada and Canada (Minister of Economic Develop­ment), [1982] 2 S.C.R. 2; 44 N.R. 354; 137 D.L.R.(3d) 558, refd to. [para. 37].

Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; 129 N.R. 81; 67 C.C.C.(3d) 1, refd to. [para. 39].

United States of America v. Burns and Rafay, [2001] 1 S.C.R. 283; 265 N.R. 212; 148 B.C.A.C. 1; 243 W.A.C. 1, refd to. [para. 39].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266; 48 C.R.(3d) 289; 23 C.C.C.(3d) 289; [1986] 1 W.W.R. 481; 24 D.L.R.(4th) 536; 36 M.V.R. 240; 18 C.R.R. 30; 69 B.C.L.R. 145, refd to. [para. 45].

Reference Re Compulsory Arbitration, [1987] 1 S.C.R. 313; 74 N.R. 99; 78 A.R. 1; 38 D.L.R.(4th) 161, refd to. [para. 46].

Reference Re Public Service Employee Relations Act (Alta.) - see Reference Re Compulsory Arbitration.

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183; 59 D.L.R.(4th) 416; 26 C.C.E.L. 85; 89 C.L.L.C. 14,031; 40 C.R.R. 100, refd to. [para. 46].

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81; 1 C.R.(4th) 129; 77 Alta. L.R.(2d) 193; [1991] 2 W.W.R. 1; 61 C.C.C.(3d) 1; 3 C.R.R.(2d) 193, refd to. [para. 46].

R. v. Smith (E.D.), [1987] 1 S.C.R. 1045; 75 N.R. 321; 34 C.C.C.(3d) 97; 58 C.R.(3d) 193; 40 D.L.R.(4th) 435, refd to. [para. 51].

Schmidt v. Canada et al., [1987] 1 S.C.R. 500; 76 N.R. 12; 20 O.A.C. 161; 58 C.R.(3d) 1; 28 C.R.R. 280; 39 D.L.R.(4th) 18; 33 C.C.C.(3d) 193, refd to. [para. 53].

Prosecutor v. Furundzija (1998), 38 I.L.M. 317, refd to. [para. 64].

Pinochet, Re, [1999] 2 W.L.R. 827; 237 N.R. 225 (H.L.), refd to. [para. 64].

R. v. Bow Street Metropolitan Stipendiary Magistrate et al; Ex parte Pinochet Ugarte (No. 3) - see Pinochet, Re.

Hat'm Abu Zayda v. State of Israel (1999), 38 I.L.M. 1471, refd to. [para. 74].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 78].

R. v. Nova Scotia Pharmaceutical Society (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91; 74 C.C.C.(3d) 289, refd to. [para. 81].

R. v. Zundel (No. 2), [1992] 2 S.C.R. 731; 140 N.R. 1; 56 O.A.C. 161, refd to. [para. 107].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1; 17 D.L.R.(4th) 422; 14 C.R.R. 13; 12 Admin. L.R. 137, refd to. [para. 113].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81; [1990] 3 W.W.R. 289; 69 D.L.R.(4th) 489, refd to. [para. 115].

Old St. Boniface Residents Association Inc. v. Winnipeg (City) et al., [1990] 3 S.C.R. 1170; 116 N.R. 46; 60 Man.R.(2d) 134; 75 D.L.R.(4th) 385, refd to. [para. 115].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 2(b), sect. 2(d), sect. 7 [para. 24].

Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Can. T.S. 1987 No. 36, art. 3 [para. 68].

Immigration Act, R.S.C. 1985, c. I-2, sect. 19(1)(e), sect. 19(1)(f), sect. 53(1)(b) [para. 24].

Authors and Works Noticed:

Bell, J. Bower, A Time of Terror: How Democratic Societies Respond to Revol­utionary Violence (1978), p. x [para. 94].

Brownlie, Ian, Principles of Public Inter­na­tional Law (5th Ed. 1998), p. 515 [para. 64].

Emanuelli, Claude, Droit international public: Contribution â l'étude du droit international selon une perspective cana­dienne (1998), ss. 251, 1394, 1396 [para. 64].

Farrell, William R., The U.S. Government Response to Terrorism: In Search of an Effective Strategy (1982), p. 6 [para. 94].

Grahl-Madsen, Atle, Commentary on the Refugee Convention, 1951 (1997), p. 236 [para. 86].

Hannikainen, Lauri, Peremptory Norms (Jus Cogens) in International Law: His­torical Development, Criteria, Present Status (1988), pp. 503 [para. 63]; 509 [para. 64]; 723, 724 [para. 61].

Hathaway, James C., and Harvey, Colin J., Framing Refugee Protection in the New World Disorder (2001), 34 Cornell Int'l L.J. 257, pp. 288 [para. 40]; 289, 290 [para. 86].

Hogg, Peter W., Constitutional Law of Canada (Looseleaf), vol. 2, para. 44.20 [para. 113].

Joyner, Christopher C., Offshore Maritime Terrorism: International Implications and Legal Response (1983), 36 Naval War Col. Rev. 16, p. 20 [para. 94].

Kash, Douglas, Abductions of Terrorists in International Airspace on the High Seas (1993), 8 Fla. J. Int'l L. 65, p. 72 [para. 95].

Levitt, Geoffrey, Is "Terrorism" Worth Defining (1986), 13 Ohio N.U.L. Rev. 97, p. 97 [para. 94].

Porras, Ileana M., On Terrorism: Reflec­tions on Violence and the Outlaw (1994), Utah L. Rev. 119, p. 124 [para. 95].

Scarry, Elaine, The Body in Pain: The Making and Unmaking of the World (1985), pp. 27 to 59 [para. 51].

Schachter, Oscar, The Extraterritorial Use of Force against Terrorist Bases (1989), 11 Houston J. Int'l L. 309, p. 309 [para. 94].

Shaw, Malcolm N., International Law (4th Ed. 1997), pp. 203, 204 [para. 64].

United Nations, Committee Against Tor­ture, Conclusions and Recommendations of the Committee Against Torture: Canada, UN Doc. CAT/C/XXV/Concl. 4, para. 6(a) [para. 73].

Counsel:

Barbara Jackman and Ronald Poulton, for the appellant;

Urszula Kaczmarczyk and Cheryl D. Mitchell, for the respondents;

John Terry and Jennifer A. Orange, for the intervener, the United Nations High Commissioner for Refugees;

Written submissions only by Michael F. Battista and Michael Bossin, for the intervener, Amnesty International;

Audrey Macklin, for the intervener, the Canadian Arab Federation;

Jack C. Martin and Sharryn J. Aiken, for the intervener, the Canadian Council for Refugees;

Written submissions only by Jamie Cam­eron, for the intervener, the Federation of Associations of Canadian Tamils;

Written submissions only by David Cole, for the intervener, the Centre for Consti­tutional Rights;

David Matas, for the intervener, the Canadian Bar Association;

Written submissions only by Marlys Ed­wardh and Breese Davies, for the intervener, the Canadian Council of Churches.

Solicitors of Record:

Jackman, Waldman & Associates, Toronto, Ontario, for the appellant;

The Department of Justice, Toronto, Ontario, for the respondents;

Torys, Toronto, Ontario, for the intervener, the United Nations High Commissioner for Refugees;

Wiseman, Battista, Toronto, Ontario, for the intervener, Amnesty International;

The Test Case Centre, Toronto, Ontario, for the intervener, the Canadian Arab Federation;

Refugee Law Office, Toronto, Ontario, for the intervener, the Canadian Council for Refugees;

Jamie Cameron, Toronto, Ontario, for the intervener, the Federation of Associations of Canadian Tamils;

David Cole, Washington, D.C., for the intervener, the Centre for Constitutional Rights;

David Matas, Winnipeg, Manitoba, for the intervener, the Canadian Bar Association;

Ruby & Edwardh, Toronto, Ontario, for the intervener, the Canadian Council of Churches.

This appeal was heard on May 22, 2001, before McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada. The following judgment was delivered by the Supreme Court in both official languages on January 11, 2002.