Suresh v. Canada (Minister of Citizenship and Immigration)
Encyclopedia
Suresh v. Canada, [2002] 1 S.C.R. 3 is a leading decision of the Supreme Court of Canada
in the areas of constitutional law
and administrative law
. The Court held that under the Canadian Charter of Rights and Freedoms
, in most circumstances the government cannot deport someone to a country where they risk being torture
d, however, it was ruled that refugee claimants can be deported to their homelands if they are a serious security risk to Canadian society
.
, applied for immigrant status in Canada. In 1995, the government rejected his application and ordered that he be deported on the basis that he was a security risk. The Canadian Security Intelligence Service
(CSIS) had claimed that he was a supporter and fundraiser for the Liberation Tigers of Tamil Eelam
, a terrorist group in Sri Lanka.
The Federal Court of Canada
upheld the deportation order. Following this the Minister of Citizenship and Immigration issued an opinion that declared him a danger to the security of Canada under section 53(1)(b) of the Immigration Act and consequently should be deported. Suresh had been given an opportunity to present written and documentary evidence to the Minister, however, he was not provided with a copy of the memorandum of the immigration officer and he consequently was not provided with the opportunity to respond to the memorandum.
Due to this inability to respond Suresh applied for judicial review
of the decision. He argued that:
The application was dismissed by the Federal Court. On appeal, the Federal Court of Appeal upheld the decision of the Federal Court, Trial Division
. The decision was then appealed to the Supreme Court.
and security of person
. The primary issue was whether the deprivation was in accordance with the principles of fundamental justice
.
The Court identified fundamental justice to be "the basic tenets of our legal system", and are determined by a contextual approach that considers the "nature of the decision to be made". Here, the Court must balance between the government's interests in preventing terrorism and the refugee's interest in protection from torture. The test proposed by the Court was whether the deprivation would "shock the Canadian conscience
". That is, whether "the conduct fundamentally unacceptable to our notions of fair practice and justice" (this test was first developed in Canada v. Schmidt
, 1987). The Court finds that deportation of a refugee who risks torture is unacceptable.
The Court also considers the "international perspective" and finds that it too is incompatible with the practice of deportation where there is a risk of torture.
In conclusion, the Court finds that the deportation order given by the Minister to be unconstitutional but the provisions of the Immigration Act are constitutional.
Citing R. v. Nova Scotia Pharmaceutical Society
, the Court observes that a vague law will be unconstitutional where it "fails to give those who might come within the ambit of the provision fair notice of the consequences of their conduct" or where "it fails to adequately limit law enforcement discretion". The phrase "danger to the security of Canada" was found not to be vague. The political nature of the term means that the courts should be careful not to interfere. The Court concludes that "danger to the security of Canada" means:
As well, the Court finds that the word "terrorism" is not unconstitutionally vague. Though the word has no clear definition, it is possible to set boundaries to the meaning. The Court adopts the definition from the International Convention for Suppression of the Financing of Terrorism, which defines it as
to determine the level of procedural protection required by s. 7 of the Charter of Rights and Freedoms in this case. The court finds that Suresh was not owed "a full oral hearing or a complete judicial process". That said the court finds that Suresh was owed a level of procedural protection greater than that required by the act (no protection whatsoever) and greater than that which Suresh received. Specifically, the court found that a person facing deportation to torture under s. 53(1)(b) of the Immigration Act
should receive a copy of the material on which the Minister is basing their decision, subject to valid reasons for reduced disclosure such as safeguarding public security documents, and that an opportunity be provided for the person to respond to the case presented to the Minister. Furthermore, the refugee who is being deported has the right to challenge the information of the Minister, including the right to present evidence.
and because he was denied the procedural fairness owed to him by the Canadian Charter of Rights and Freedoms
, the case should be returned to the Minister for reconsideration in accordance with proper procedure.
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
in the areas of constitutional law
Constitutional law
Constitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature and the judiciary....
and administrative law
Canadian administrative law
Canadian administrative law is the body of law that addresses the actions and operations of governments and governmental agencies. That is, the law concerns the manner in which courts can review the decisions of administrative decision-makers such as a board, tribunal, commission, agency or minister...
. The Court held that under the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
, in most circumstances the government cannot deport someone to a country where they risk being torture
Torture
Torture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...
d, however, it was ruled that refugee claimants can be deported to their homelands if they are a serious security risk to Canadian society
Society
A society, or a human society, is a group of people related to each other through persistent relations, or a large social grouping sharing the same geographical or virtual territory, subject to the same political authority and dominant cultural expectations...
.
Background
Suresh, a Convention refugee from Sri LankaSri Lanka
Sri Lanka, officially the Democratic Socialist Republic of Sri Lanka is a country off the southern coast of the Indian subcontinent. Known until 1972 as Ceylon , Sri Lanka is an island surrounded by the Indian Ocean, the Gulf of Mannar and the Palk Strait, and lies in the vicinity of India and the...
, applied for immigrant status in Canada. In 1995, the government rejected his application and ordered that he be deported on the basis that he was a security risk. The Canadian Security Intelligence Service
Canadian Security Intelligence Service
The Canadian Security Intelligence Service is Canada's national intelligence service. It is responsible for collecting, analyzing, reporting and disseminating intelligence on threats to Canada's national security, and conducting operations, covert and overt, within Canada and abroad.Its...
(CSIS) had claimed that he was a supporter and fundraiser for the Liberation Tigers of Tamil Eelam
Liberation Tigers of Tamil Eelam
The Liberation Tigers of Tamil Eelam was a separatist militant organization formerly based in northern Sri Lanka. Founded in May 1976 by Vellupillai Prabhakaran, it waged a violent secessionist and nationalist campaign to create an independent state in the north and east of Sri Lanka for Tamil...
, a terrorist group in Sri Lanka.
The Federal Court of Canada
Federal Court of Canada
The Federal Court of Canada was a national court of Canada that heard some types of disputes arising under the central government's legislative jurisdiction...
upheld the deportation order. Following this the Minister of Citizenship and Immigration issued an opinion that declared him a danger to the security of Canada under section 53(1)(b) of the Immigration Act and consequently should be deported. Suresh had been given an opportunity to present written and documentary evidence to the Minister, however, he was not provided with a copy of the memorandum of the immigration officer and he consequently was not provided with the opportunity to respond to the memorandum.
Due to this inability to respond Suresh applied for judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
of the decision. He argued that:
- the Minister's decision was unreasonable;
- the procedures of the Immigration Act was unfair;
- the Immigration Act infringed sections 7Section Seven of the Canadian Charter of Rights and FreedomsSection Seven of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section, namely the right to life, liberty, and...
, 2(b), and 2(d)Section Two of the Canadian Charter of Rights and FreedomsSection Two of the Canadian Charter of Rights and Freedoms is the section of the Constitution of Canada's Charter of Rights that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or...
of the Charter.
The application was dismissed by the Federal Court. On appeal, the Federal Court of Appeal upheld the decision of the Federal Court, Trial Division
Federal Court (Canada)
The Federal Court is a Canadian trial court that hears cases arising under certain areas of federal law. The Federal Court is a superior court with nationwide jurisdiction...
. The decision was then appealed to the Supreme Court.
Ruling of the Court
The unanimous decision of the Supreme Court was written By the Court.Section 7
The Court first considered the claim for violation of section 7 of the Charter. The Court agreed that the words "everyone" within the provision included refugees. It was further held that deportation to a country where there is a risk of torture deprives the refugee of their right to libertyLiberty
Liberty is a moral and political principle, or Right, that identifies the condition in which human beings are able to govern themselves, to behave according to their own free will, and take responsibility for their actions...
and security of person
Security of person
Security of the person is a basic entitlement guaranteed by the Universal Declaration of Human Rights, adopted by the United Nations in 1948. It is also a human right explicitly mentioned and protected by the Constitution of Canada, the Constitution of South Africa and other laws around the...
. The primary issue was whether the deprivation was in accordance with the principles of fundamental justice
Fundamental justice
Fundamental justice is a legal term that signifies a dynamic concept of fairness underlying the administration of justice and its operation, whereas principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the...
.
The Court identified fundamental justice to be "the basic tenets of our legal system", and are determined by a contextual approach that considers the "nature of the decision to be made". Here, the Court must balance between the government's interests in preventing terrorism and the refugee's interest in protection from torture. The test proposed by the Court was whether the deprivation would "shock the Canadian conscience
Shocks the conscience
Shocks the conscience is a phrase used as a legal standard in the United States and Canada. An action is understood to "shock the conscience" if it is perceived as manifestly and grossly unjust, typically by a judge.-United States:...
". That is, whether "the conduct fundamentally unacceptable to our notions of fair practice and justice" (this test was first developed in Canada v. Schmidt
Canada v. Schmidt
Canada v. Schmidt, [1987] 1 S.C.R. 500, is a decision by the Supreme Court of Canada on the applicability of fundamental justice under the Canadian Charter of Rights and Freedoms on extradition...
, 1987). The Court finds that deportation of a refugee who risks torture is unacceptable.
The Court also considers the "international perspective" and finds that it too is incompatible with the practice of deportation where there is a risk of torture.
In conclusion, the Court finds that the deportation order given by the Minister to be unconstitutional but the provisions of the Immigration Act are constitutional.
Vagueness
The second ground of appeal was whether terms "danger to the security of Canada" and "terrorism" were unconstitutionally vague. The Court held that they were not.Citing R. v. Nova Scotia Pharmaceutical Society
R. v. Nova Scotia Pharmaceutical Society
R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606 is a leading Supreme Court of Canada decision on section 7 of the Canadian Charter of Rights and Freedoms and the doctrine of vagueness...
, the Court observes that a vague law will be unconstitutional where it "fails to give those who might come within the ambit of the provision fair notice of the consequences of their conduct" or where "it fails to adequately limit law enforcement discretion". The phrase "danger to the security of Canada" was found not to be vague. The political nature of the term means that the courts should be careful not to interfere. The Court concludes that "danger to the security of Canada" means:
- 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.
As well, the Court finds that the word "terrorism" is not unconstitutionally vague. Though the word has no clear definition, it is possible to set boundaries to the meaning. The Court adopts the definition from the International Convention for Suppression of the Financing of Terrorism, which defines it as
- an act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.
Procedural Fairness
The court applied the five-question framework from BakerBaker v. Canada (Minister of Citizenship and Immigration)
Baker v. Canada , [1999] 2 S.C.R. 817 is a leading Canadian administrative law decision of the Supreme Court of Canada. The Court provided guidance on the standard of judicial review of administrative decisions...
to determine the level of procedural protection required by s. 7 of the Charter of Rights and Freedoms in this case. The court finds that Suresh was not owed "a full oral hearing or a complete judicial process". That said the court finds that Suresh was owed a level of procedural protection greater than that required by the act (no protection whatsoever) and greater than that which Suresh received. Specifically, the court found that a person facing deportation to torture under s. 53(1)(b) of the Immigration Act
Immigration Act
An Immigration Act is a law regulating immigration. A number of countries have had Immigration Acts including:*Canada**The Immigration Act, 1906**The Chinese Immigration Act of 1923**The Immigration Act, 1952**The Immigration Act, 1978...
should receive a copy of the material on which the Minister is basing their decision, subject to valid reasons for reduced disclosure such as safeguarding public security documents, and that an opportunity be provided for the person to respond to the case presented to the Minister. Furthermore, the refugee who is being deported has the right to challenge the information of the Minister, including the right to present evidence.
Remedy
The court finds that because Suresh made a prima facie case that he would be subject to torture upon being returned to Sri LankaSri Lanka
Sri Lanka, officially the Democratic Socialist Republic of Sri Lanka is a country off the southern coast of the Indian subcontinent. Known until 1972 as Ceylon , Sri Lanka is an island surrounded by the Indian Ocean, the Gulf of Mannar and the Palk Strait, and lies in the vicinity of India and the...
and because he was denied the procedural fairness owed to him by the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
, the case should be returned to the Minister for reconsideration in accordance with proper procedure.
See also
- List of Supreme Court of Canada cases (McLachlin Court)
- Ahani v. Canada (Minister of Citizenship and Immigration)Ahani v. Canada (Minister of Citizenship and Immigration)Ahani v. Canada [2002] 1 S.C.R. 72; 2002 SCC 2 is a significant decision of the Supreme Court of Canada in the areas of constitutional law and administrative law. It is a companion case to Suresh v. Canada , [2002] 1 S.C.R. 3...
, [2002] 1 S.C.R. 72; 2002 SCC 2 - accompanying case to Suresh - non-refoulementNon-refoulementNon-refoulement is a principle in international law, specifically refugee law, that concerns the protection of refugees from being returned to places where their lives or freedoms could be threatened...
External links
- Court documents and more background information The Hague Justice Portal
- Federal Court of Appeal decision