How the Charter Has Failed Non-Citizens in Canada: Reviewing Thirty Years of Supreme Court of Canada Jurisprudence
Dauvergne, Catherine, McGill Law Journal
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
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.
I. 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 to their conclusions. (13) Justice Beetz, with whom Justices Estey and McIntyre concurred, decided Singh on the basis of the Canadian Bill of Rights. (14) This undoubtedly came as a great surprise to many, given that by 1985, the Bill of Rights was widely regarded as almost entirely ineffectual. (15) Counsel had not argued the case on the basis of the Bill of Rights, but seven months after the initial hearing, the Court contacted the parties and requested written submissions regarding how the Bill of Rights would apply to the matter at hand. Justice Beetz "refrain[ed] from expressing any views on the question of whether the Canadian Charter of Rights and Freedoms is applicable at all." (16) But aside from this, he offered little to explain this puzzling choice. He limited himself to stating that other rights instruments ought not to fall into disuse, especially when "almost tailor-made for certain factual situations such as those in the cases at bar." (17) In response, Justice Wilson (writing on behalf of Chief Justice Dickson and Justice Lamer) stated simply, "[S]ince I believe that the present situation falls within the constitutional protection afforded by the Canadian Charter of Rights and Freedoms, I prefer to base my decision upon the Charter." (18) Justice Beetz's stance did not lead to a resurgence of Bill of Rights decision making by the Supreme Court of Canada, nor did it lead to a different result. It faded into the background as Singh became a cornerstone of Charter mythology, undoubtedly aided by the leading roles played by Justices Wilson and Lamer, and Chief Justice Dickson in the early years of Charter jurisprudence. However, in looking back at Singh in light of the subsequent trajectory of decision making regarding non-citizens, it is useful to remember that only three members of the Court ever signed on to the strong position taken.
It is Justice Wilson's judgment that has stood the test of time and crystallized into what Singh stands for. In addition to the vital holding that the Charter applies to every person physically in Canada, she also concluded that the rights and interests at stake in refugee determination were sufficiently serious that deprivation of those rights "must amount to deprivation of security of the person within the meaning of s. 7." (19) She further stated that, as a principle of fundamental justice, serious issues of credibility must be determined on the basis of an oral hearing. (20) It was this requirement for an oral hearing (with which Justice Beetz agreed, but without comment on the question of "security of the person") that meant the existing procedure failed scrutiny. (21) Justice Wilson also sharply dismissed the government's section 1 argument that oral hearings would be too resource intensive to be practicable. (22)
Importantly, in terms of how non-citizens in Canada access international human rights norms, Justice Wilson drew on international standards in two ways. While there was no issue of interpretation of the Refugee Convention at stake, she did turn to the Refugee Convention and cited its preamble in assessing the importance of the rights at stake. (23) In developing this reasoning, she relied explicitly on the Immigration Act's objective of fulfilling Canada's international legal obligations. (24) Even more importantly, in developing her understanding of the substance of "security of the person", she turned to the Universal Declaration of Human Rights, concerning article 25's statement regarding the necessaries of life. (25) This interpretive move is important because it draws a direct linkage between international human rights and the Charter and, in a different way, because it establishes a very expansive paradigm for security of the person. Justice Wilson did acknowledge that this breadth of interpretation was hot necessary on the facts in Singh, but she introduced the broad parameters nonetheless. (26) In sum, the Singh decision brought non-citizens, regardless of immigration status, within the protection of the Charter and linked that protection in the broadest possible way to international human rights law, even the unenforceable Universal Declaration.
The second Charter decision that addressed the rights of non-citizens went even further. Andrews v. Law Society of British Columbia (27) was the Supreme Court of Canada's first ruling on the section 15 equality rights, and its lore is even greater than that of Singh because of the broad applicability of equality rights. (28) The core of this ruling was to mark out the Court's "substantive" approach to equality and to clearly establish that grounds of discrimination "analogous" to those enumerated in section 15 could receive Charter protection. (29) The very first analogous ground of protection to be recognized was that of non-citizenship. Mr. Andrews was a permanent resident of Canada and a British citizen, who had been barred from practising law in British Columbia because he was not a Canadian citizen. While the dissentients found this limitation to be a reasonable one and thus would have seen it saved by section 1 of the Charter, all members of the panel agreed that equality protections must protect non-citizens. (30)
Unlike the Singh ruling, there is no reference in the Andrews reasons to international human right standards. The Court did look beyond Canadian borders, to engage seriously with the American constitutional equality jurisprudence, but did not adopt an American approach in full. Importantly for this analysis of non-citizens' rights, the ruling commented directly on the vulnerability of non-citizens. In Justice Wilson's words:
Relative to citizens, non-citizens are a group lacking in political power and as such vulnerable to having their interests overlooked and their rights to equal concern and respect violated. They are among "those groups in society to whose needs and wishes elected officials have no apparent interest in attending." Non-citizens, to take only the most obvious example, do not have the right to vote. Their vulnerability to becoming a disadvantaged group in our society is captured by John Stuart Mill's observation in Book III of Considerations on Representative Government that "in the absence of its natural defenders, the interests [sic] of the excluded is always in danger of being overlooked...." I would conclude therefore that non-citizens fall into an analogous category to those specifically enumerated in s. 15. I emphasize, moreover, that this is a determination which is not to be made only in the context of the law which is subject to challenge but rather in the context of the place of the group in the entire social, political and legal fabric of our society. While legislatures must inevitably draw distinctions among the governed, such distinctions should not bring about or reinforce the disadvantage of certain groups and individuals by denying them the rights freely accorded to others. (31)
Justice La Forest acknowledged the history in Canada of discrimination in employment on the basis of nationality and noted the close linkage between discrimination on the basis of citizenship and discrimination on the named Charter grounds of national or ethnic origin. (32) He concluded in a commonsensical tone, '"If we allow people to come to live in Canada, I cannot see why they should be treated differently from anyone else." (33)
There is nothing in the Andrews ruling to foreshadow anything other than a very promising rights environment for non-citizens in the Charter era. The absence of international norms as reference points here is not surprising given that international human rights law does in fact support a distinction on the basis of citizenship in the case of public sector employment, which might have been arguable on these facts. (34) At the very most, we can remark that Andrews is not an immigration case; it has nothing at all to do with crossing borders, and so it is distinct from many of the types of claims to which citizenship becomes relevant. Indeed, the Court goes to some length to focus on the vulnerability and democratic exclusion of non-citizens, despite being presented with a claimant who had many markers of privilege.
The fact that the very first equality challenge of the Charter era involved the rights of a non-citizen, and especially a well-educated permanent resident with citizenship rights in another prosperous Western democracy, fits squarely within the trend--identified by a number of scholars--of human rights eclipsing citizenship rights as an aspect of contemporary globalization. (35) Saskia Sassen has argued that the rise of human rights protections now means that the most meaningful distinction in rights protections is not between citizens and non-citizens, but rather between those with a secure immigration status and those without status. (36) Her analysis fits closely with Justice La Forest's conclusion that he could not see any basis for treating permanent residents differently "from anyone else". David Jacobson explored this argument in detail in Rights Across Borders: Immigration and the Decline of Citizenship (37) and added empirical heft to this analysis with his study of judicial decision making. (38) In very broad terms, both Sassen and Jacobson can be cast as viewing this development positively. Assessing the same phenomenon, the success of non-citizens in making rights claims in national courts, Christian Joppke and Gary Freeman each concluded that the strength of human rights claims has risen to the extent that national immigration policy-making (although, in both cases, the authors are talking primarily about the United States) is constrained by the tendency of courts to extend rights protections to immigrants. (39) With varying emphases, Joppke and Freeman both evaluate this turn negatively. Possibly, following the Andrews decision, the Law Society of British Columbia would have agreed.
From the perspective of non-citizens' rights protections, the rulings in Singh and Andrews fit squarely within the trend of reducing the role of citizenship as an important rights marker. Justice Wilson in Andrews went so far as to state that citizenship "may not even be rationally connected" to the objective of ensuring that lawyers are familiar with Canadian institutions. (40) And the Singh ruling extended the Charter to persons "physically present" in Canada in a way that eclipses even Sassen's analysis of the importance of legal immigration status. But the trajectory since that time suggests that we are now a long way from this high-water mark. It is no coincidence that this scholarly trend peaked in the 1990s, shortly after the Singh and Andrews rulings. Since that time, citizenship has experienced a resurgence, including steps by a number of Western governments to ensure that the "rational connection" Justice Wilson was skeptical about will be strengthened. (41)
The primary objective of this paper is to examine and explain the experience of non-citizens before the Supreme Court of Canada in the time since these seminal rulings. In part, the Canadian experience fits into a worldwide trend driven forward by globalizing forces and the politics of securitization, but in some key areas, access to international human rights norms has been markedly worse for non-citizens in Canada than elsewhere. The explanation for this discrepancy is subtly rooted in the Charter jurisprudence itself, a point I explore after presenting an overview of the cases. Ultimately, what matters is that individuals' rights claims are appropriately vindicated. The legal vehicle for achieving this goal is not important. In Canada, however, the key rights sources of the constitution and of international law are intertwined because of the Supreme Court's early Charter jurisprudence. (42) Non-citizens asserting rights claims are therefore required to make their arguments first and foremost in Charter terms and only secondarily in international human rights terms. This puts non-citizens in Canada in a different position than those in England, Australia, New Zealand, and even in some circumstances, the United States. This different position has become a worse position over time. The requirement that international rights claims must be heard through the vehicle of the Charter has reached the point at which the term "Charter hubris" is apt. This phenomenon can be observed in the relationship between Charter rights and international human rights in the non-citizens' cases presented here.
II. Methodology: Which Cases Matter and Why
The data set for this study is all the Supreme Court of Canada decisions, since the Charter came into effect, that adjudicate rights claims made by non-citizens. I have selected decisions that deal with the claims of individuals (43) made in situations where non-citizenship is somehow relevant to the legal issues at stake. I have focused on non-citizenship because I am interested in the group of people who are not Canadian, rather than in distinctions that are made between non-Canadians (for example, in refugee claims where one's state of nationality is of primary importance). The focus on non-citizenship as legally relevant means that the majority of the decisions deal with issues originating in the former Immigration Act or the current Immigration and Refugee Protection Act. (44) There will certainly be any number of cases where the rights of a non-citizen are at stake but in which citizenship is irrelevant to the legal issue at hand. For example, I have not included cases where someone without Canadian citizenship was involved in a criminal matter or a family law matter and the issue of citizenship was hot relevant to the case. (45) I have taken a broad approach to the question of what counts as a "rights claim" and therefore have included any claim that could be cast in rights terms, whether or not the Court treated it either as a Charter case or as a rights case more generally. As rights are the basic building blocks of contemporary legal language, this criterion did not lead to any cases being eliminated from the set that would otherwise have been included.
With these parameters, and eliminating the double counting that arises because of companion cases, the data set includes twenty-four decisions, two of which are Singh and Andrews. I have included one decision that at first blush appears at the margin of my parameters. This is Ontario (Attorney General) v. Fraser, (46) which I have included because an important issue of non-citizens' rights was raised before the Court, although this is not reflected in the decision. During the time frame of this study, the Supreme Court of Canada made 2,755 decisions. (47) It is difficult to get an accurate count of how many of these would be considered Charter decisions, although 490 is a reasonable estimate. (48) In any case, the number of Charter cases would not be an appropriate comparator, because my data set includes a number of cases where the decision does not engage with Charter rights in any way. This is helpful in understanding why I describe the case set as "rights claims by non-citizens during the Charter era."
It is impossible to say precisely whether twenty-four cases is a "high" or "low" number of decisions. Non-citizens now face two important structural barriers in reaching the Supreme Court of Canada, in addition to the usual barriers of time, money, and a requirement to seek leave. The first of these is that, beginning in 1992, it became necessary to seek leave from the Federal Court, Trial Division (as it then was), in order to have most decisions under the Immigration Act judicially reviewed. (49) The second is that appealing a judicial review from the Federal Court to the Federal Court of Appeal requires that the judge at first instance "certify" that the case raises a serious question of general importance. (50) Some perspective on the twenty-four cases comes from looking at other jurisdictions. Between 1982 and 2011, the High Court of Australia decided 103 cases involving refugee law matters alone. (51) My data set includes only four cases involving refugee law matters. The numbers are high in Australia, in part because the High Court of Australia has an original jurisdiction for judicial review, (52) but by contrast, Australia's population is thirty per cent smaller than Canada's and Australia has received approximately one-fifth of the refugee claimants Canada has received over this time frame. It could be argued that the Australian government was more aggressive toward refugees during this time, but in light of the other factors, this is at best a partial explanation. An alternative comparator is the Supreme Court of the United States, which decided twenty-one refugee cases in the same time frame. (53)
There are three groups of cases that I have not included. The first of these is cases that have adjudicated the boundaries of Canadian citizenship. These cases have, in one way or another, focused on who should be considered a Canadian citizen. The focus is not on the rights that non-citizens have but rather on the boundaries of the category. As these cases do not speak to how non-citizens in Canada access rights, they are excluded. (54) The second group is cases that address the reach of the Charter beyond Canadian borders. These cases are principally about the conduct of Canadian officials. (55) While they do sometimes involve questions of how the Charter applies to non-citizens, they are not about how people in Canada can make rights claims. These cases are about things that happen outside of Canada, and on that basis, they have been excluded. Extradition cases are not included in the data set, as citizenship is not a central focus of these proceedings, but they are canvassed later in the paper because of the interesting counterpoint they raise.
III. Mapping the Jurisprudence
Apart from Singh and Andrews, the Supreme Court of Canada assessed a non-citizen's rights claim on twenty-two occasions in the first thirty years of the Charter. Logically enough, the cases raise diverse issues and can be grouped together in any number of ways. Fifteen of the decisions deal with individuals facing removal from Canada, five deal with people seeking admission, and two have nothing to do with the border setting. Of the fifteen removal cases, four are cases involving refugees or refugee claimants and the central issue involves interpretation of the Refugee Convention. These cases form a distinct subset in that they are directly concerned with international law and they deal with the Charter only in passing. I discuss this distinct group separately. Of the remaining eighteen cases, nine could squarely be considered Charter cases. (56) In six of the cases, there is at least some discussion of international human rights law. Most cases discussing international human rights law are also Charter cases. The one exception to this twinning is Baker v. Canada (Minister of Employment and Immigration), (57) which was emphatically not a Charter case. In only one case, Mugesera, the outcome relies directly on international law as a source of direct obligation rather than as an interpretive tool for the Charter. In two other cases, Lavoie and Baker, international law could fairly be said to influence the outcome, although this level of gradation is difficult to be precise about. It is possibly notable that, in both Mugesera and Lavoie, the non-citizen lost at the Supreme Court of Canada level.
With such a small group of cases, the numbers are not particularly meaningful and serve more to introduce the area than anything else. It is important to notice that non-citizens' cases are most likely to reach the Supreme Court when there is a removal issue at stake. This core issue of a right to remain, on the one hand, pitted against the state's right to expel, on the other, is at the heart of all immigration law. The right to remain is also central to international refugee law, because the Refugee Convention's protection against non-refoulement is the oldest and most widely applied constraint, at international law, on a sovereign state's power to expel non-citizens. (58) Interestingly, separating the removal cases into matters raised by permanent residents and those raised by foreign nationals without permanent status did not prove to be analytically helpful, as will become clear below. To address the substance of both Charter analysis and international human rights engagement, I will discuss three groups of cases. I will first present the ten nonrefugee cases where Charter or international human rights feature in the decision. Following this analysis, I will examine the eight nonrefugee cases where the Court's response was not cast in rights terms. I will then turn to the group of four refugee law cases. These three groups comprise the data set for the study. (59) Following this presentation, I consider briefly three sets that are outside my selection parameters: cases that were refused leave by the Supreme Court, extradition cases, and cases directly linked to non-citizens. These latter two groups merit a brief canvass in order to fill in the picture of non-citizens' rights claims in the Charter era.
A. Rights Questions and Rights Answers
Following the ruling in Andrews, the next question of a non-citizen's rights claim to reach the Supreme Court was Chiarelli in 1992. (60) The central issue was the deportability of a permanent resident who had been convicted of serious crimes in Canada and who was suspected of involvement in organized crime. The Court's unanimous ruling, and its approach, set in place key principles for non-citizens' claims that have predominated since. The two most important of these principles were to draw attention to the distinction between citizens and others in section 6 of the Charter and to establish that the relevant context for interpreting section 7 principles of fundamental justice is an immigration context.
Given that the right of a state to deport non-citizens is unchallengeable except in cases of refugee status or a risk of torture, the Chiarelli argument focused on the procedural aspects of reaching a deportation decision. The facts in the case were ideal for raising the distinction between permanent residents and citizens that has been key to the human rights and globalization thesis. Giuseppe Chiarelli had come to Canada as a teenager. As an Italian citizen, he was facing deportation to a prosperous, Western country with a well-developed legal system and a standard of living broadly similar to Canada's. Furthermore, given his age on emigration, the Court could assume that life in Italy would be familiar to him. Having pleaded guilty to a drug-trafficking charge, as well as a charge of uttering threats to cause injury, he was subject to clear societal condemnation. In short, there was nothing on the facts to cloud a straightforward consideration of the procedural steps required for his removal. An appeal against this order was then possible both on law and fact, as well as on compassionate grounds. The appeal could be suspended if a security review committee, which had the option of holding closed hearings and of keeping evidence secret, decided there were reasonable grounds to believe the person in question would engage in organized criminal activity.
Although the Federal Court of Appeal had split on its assessment of the constitutionality of the scheme, the Supreme Court had little difficulty in deciding that all aspects of the scheme were constitutional. Indeed, the Court did not need to address the question of whether there was any deprivation of life, liberty, or security of the person, because it decided that, in all respects, there was no breach of principles of fundamental justice. Drawing on earlier decisions that the principles of fundamental justice were to be determined by context, the Court considered the immigration context for the first time here. The core of that context was summarized this way: "The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country." (61) The Court supported this reasoning by looking to extradition jurisprudence, to the need to keep Canada from becoming a haven for criminals, (62) and to the Charter's distinction between citizens and non-citizens. With these framing principles in place, it was a short step to finding that "deportation is not imposed as a punishment." (63) While deportation may come within the scope of "treatment" in section 12 of the Charter's protection against cruel and unusual treatment or punishment, it is not cruel and unusual. Indeed, the Court turned its test for the cruel and unusual standard on its head, stating that
[t]he deportation of a permanent resident who has deliberately violated an essential condition of his or her being permitted to remain in Canada by committing a criminal offence punishable by imprisonment of five years or more, cannot be said to outrage standards of decency. On the contrary it would tend to outrage such standards if individuals granted conditional entry into Canada were permitted, without consequence, to violate those conditions deliberately. (64)
Chiarelli was therefore an important starting point for separating citizens from non-citizens in Charter reasoning. The "immigration context" language is important, as the data set shows that almost all Supreme Court cases to which citizenship was relevant are linked in some way to immigration. This step, more than any other, may be the key to understanding how the Court moved away from the promise of Singh and Andrews: those cases are atypical in that they do not fall squarely in the immigration context, as developed by the Court.
The Chiarelli decision is also notable for what it did not say. Importantly, a potential equality rights argument was passed over very quickly, in part because counsel had not made any submissions on the issue. (65) Given this, the Court limited its remarks to agreeing with the Federal Court of Appeal that there was not a section 15 violation and that the Charter specifically provides for "differential treatment of citizens and permanent residents in this regard." (66) This characterization could be argued to stretch the Charter language somewhat, as the Charter does not explicitly address deportation but rather accords to "citizen[s]" the "right to enter, remain in and leave Canada." (67) Under the contemporary Canadian approach to equality rights, the requirement of a "comparator group" analysis is challenging for any claim involving immigration legislation, as it is difficult to formulate a comparator group of citizens. In other jurisdictions, however, the fact that legislation applies solely to non-citizens has been an essential basis of a finding of discrimination. (68) Chiarelli also makes no reference to international human rights standards, which could have been adduced to bolster arguments on either side of the central issue. (69)
The Chiarelli approach flowed directly into the next decision to reach the Court, Dehghani (70) Here, the issue was whether a person who was required to undergo a "secondary" immigration examination upon entering Canada and claiming refugee status, was "detained" so as to trigger the right to counsel provisions of section 10(b) of the Charter. The case followed two high-profile decisions regarding detention and the right to counsel. (71) Mr. Dehghani had been required to wait "approximately four hours" for his secondary interview. (72) The interviewer made extensive notes that were later entered as evidence at what was then called a credible basis hearing. A key issue at that hearing was that Mr. Dehghani had not disclosed, at the airport, the facts this refugee claim would be based on but had instead said that he was making a refugee claim because he wanted to work in Canada and to provide for his children's futures. Justice Iacobucci, writing for the Court, anchored his analysis with the Chiarelli principle that there is no right for non-citizens to enter Canada and that the "most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country." (73) From this starting point, it was a short journey to the conclusion that neither section 10(b) nor the more capacious section 7 was breached in this case. (74)
As in Chiarelli, no international human rights law appears in Dehghani. Here, however, this absence is more remarkable, as there is directly applicable international law on point. The Court's reasoning in Dehghani merges refugee law and its international rights-based framework directly into the immigration context that began developing in Chiarelli. Unlike immigrants, however, refugee claimants do have a right to enter at international law. (75) In Canada, refugee law and immigration law are linked together in one statutory framework. Refugee law comes directly from international human rights law, and immigration law does not. The Court viewed Dehghani as a case about routine procedure at airports rather than a case about refugee claimants. (76) Beginning from the refugee law frame, however, leads in a completely different direction, as the dissenting voice in the court below demonstrated. Justice Heald stated, "In the case of a refugee claimant such as this claimant, assuming that even a portion of his factual assertions are true, the consequences of his enforced return to Iran could well include incarceration, torture and even death." (77) Dehghani was an important step in drawing procedural aspects of refugee claims into the evolving immigration context and away from international law. This manoeuvre also served to starkly limit the jurisprudential influence of the Singh decision, which had taken a very different approach to procedural matters involving refugees. (78)
The next case where the Court engaged directly with a rights claim by a non-citizen was the fabled Baker decision handed down in 1999. (79) Baker is the anomaly in this first group of cases, as the decision does not rely directly on either the Charter or on international human rights to arrive at its conclusions. It does, however, fit the parameters of this first group of cases because of its forthright engagement with arguments on both of these grounds and because of the relationship it establishes between Canadian domestic law and international human rights law. The tension between the majority and minority views about this relationship may be partially responsible for the ensuing pattern of engagement with international human rights.
Mavis Baker was poor and mentally ill and had been living in Canada for many years without immigration status when she was ordered eported in 1992. She made an application on humanitarian and compassionate grounds to remain in Canada and to be exempted from various provisions of the Immigration Act. The immigration officer who reviewed her file wrote a negative recommendation about it to his supervisor in terms that can at best be called prejudicial and unprofessional. The Supreme Court's response became the leading statement on the parameters of the duty of procedural fairness. Ms. Baker had eight children, four of who had be