How the Charter Has Failed Non-Citizens in Canada: Reviewing Thirty Years of Supreme Court of Canada Jurisprudence

By Dauvergne, Catherine | McGill Law Journal, March 2013 | Go to article overview

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

Introduction

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. …

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