Important decision by Canadian Supreme Court
UNHCR welcomes the recognition by the Canadian Supreme Court of the need for states carefully to balance domestic security concerns with human rights protections. In an important decision released on January 11, 2002 in the case of Manickavasagam Suresh v. Minister of Citizenship and Immigration, the Court held that Mr. Suresh, a Convention refugee from Sri Lanka whom the government was seeking to remove from Canada, was entitled to a new deportation hearing.
At the same time, the Court held that deportation to face torture might be allowed in “extraordinary circumstances”, saying that the “ambit of an exceptional discretion to deport to torture, if any, must await future cases.” In UNHCR’s view, the prohibition of return to torture contained in Article 3 of the Convention against Torture is not subject to exception. The non-derogable nature of that provision makes it all the more important for the international community to develop mechanisms which allow states to bring suspected terrorists and other dangerous individuals to justice.
UNHCR had intervened in this case, outlining the agency’s interpretation of the principle of non-refoulement contained in the 1951 Refugee Convention, and its relationship to Article 3 of the 1984 Convention against Torture.
In its decision, the Court emphasizes that both domestic law and international norms reject torture, and that torture is inconsistent with fundamental justice under Canadian law. It clarifies that Article 3 of the Convention against Torture, which prohibits the deportation of individuals where they would face a substantial risk of torture, complements the protection provided by the 1951 Refugee Convention. The Court stresses that the government’s discretion to deport persons who pose a danger to the security of Canada is not unlimited. Persons being deported are entitled to due process, the Court said. They must be informed of the case against them, and have a possibility to respond. The Court cautioned the government against relying too heavily on a state’s assurances that it will refrain from torture in the future, where it has engaged in torture or allowed others to do so in the past.
Suresh v. Canada (Minister of Citizenship and
Manickavasagam Suresh, appellant;
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.
 S.C.J. No. 3
2002 SCC 1
The judgment of the Supreme Court was rendered on January 11, 2002. In a unanimous decision (9-0), the Supreme Court allowed the appeal, entitled Mr. Suresh to a new deportation hearing and held that the impugned legislation (ss. 53 (1) (b) of the Immigration Act) is constitutional.
FACTS: Mr. Suresh is a Convention refugee from Sri Lanka. In 1995, the Canadian government commenced deportation proceedings on security grounds, based on the opinion of the Canadian Security Intelligence Service ("CSIS") that he was a member and fundraiser of the Liberation Tigers of Tamil Eelam ("LTTE"), an organization alleged to be engaged in terrorist activity in Sri Lanka, and whose members are also subject to torture in Sri Lanka. The Federal Court, Trial Division upheld the s. 40.1 security certificate as reasonable and an adjudicator, following a deportation hearing ordered Mr. Suresh deported. The Minister of Citizenship and Immigration subsequently found Mr. Suresh to be a danger to the security of Canada under s. 53(1)(b) of the Immigration Act and issued the danger opinion on the basis of an Immigration Officer's memorandum. Although the appellant had presented written submissions and documentary evidence to the Minister, he had not been provided with a copy of the Immigration Officer's memorandum, nor was he provided with an opportunity to respond to it orally or in writing. The appellant applied for judicial review to the Federal Court, alleging that: (1) the Minister's decision was unreasonable; (2) the procedures under the Act were unfair; and (3) the Act infringed ss. 7, 2(b) and 2(d) of the Canadian Charter of Rights and Freedoms. The application for judicial review was dismissed on all grounds. The Federal Court of Appeal upheld that decision.
Deportation to torture may deprive a refugee of the right to liberty, security and life as protected by s. 7 of the Charter. The Charter provision would apply also to torture inflicted abroad if there was sufficient causal connection to said torture and the Canadian Government acts. The Court held that in the case of Mr. Suresh, such was the case “without Canada’s action, there would be no risk of torture”.
Determination of whether deprivation of right to liberty, security and life is in accordance with the principles of fundamental justice will require a balancing between Canada’s interest in combatting terrorism and the refugee’s interest in not being deported to torture.
Return to torture: The Court held that deportation to torture is rejected by both Canadian law (where torture is viewed as inconsistent with fundamental justice - s. 12 of the Charter affirms Canada's opposition to government-sanctioned torture by proscribing cruel and unusual treatment or punishment in s. 12) and international norms. Since torture has as its end the denial of a person’s humanity, it lies also outside the legitimate domain of a criminal justice system. The Court held that the prohibition of torture is also an emerging norm of customary international law that cannot be easily derogated from. The Canadian rejection of torture is reflected in the international conventions which Canada has ratified and is prohibited by both the International Covenant on Civil and Political Rights ("ICCPR") and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT"). The Court accepted UNHCR’s argument that Article 33 of the Convention Relating to the Status of Refugees, which on its face does not categorically reject deportation to torture, should not be used to deny rights that other legal instruments make available to everyone (as the FCA had held). It concluded that international law generally rejects deportation to torture, even where national security interests are at stake.
The Court further held that in exercising the discretion conferred by s. 53(1)(b) of the Immigration Act, the Minister must conform to the principles of fundamental justice under s. 7. Insofar as the Act leaves open the possibility of deportation to torture (a possibility which is not excluded by the Court), the Minister should generally decline to deport refugees where on the evidence there is a substantial risk of torture. Applying these principles, s. 53(1)(b) does not violate s. 7 of the Charter.
Although the Court did not exclude the possibility of deportation to torture it clearly states that it can take place only in exceptional circumstances: “It follows that insofar as the Immigration Act leaves open the possibility of deportation to torture, the Minister should generally decline to deport refugees where on the evidence there is substantial risk. We do not exclude the possibility that in exceptional circumstances, deportation to face torture might be justified, either as a consequence of the balancing process mandated by s. 7 or under s. 1 of the Charter (A violation of s. 7 will be saved by s. 1 “only in cases arising out of exceptional circumstances, such as natural disasters, the outbreak of war, epidemics and the like”). Insofar as Canada is unable to deport a person where there are substantial grounds to believe he or she would be tortured on return, this is not because Article 3 of the CAT directly constrains the actions of the Canadian government, but because the fundamental justice balance under s. 7 of the Charter generally precludes deportation to torture when applied on a case-by-case basis. We may predict that it will rarely be struck in favour of expulsion where there is a serious risk of torture. However, as the matter is one of balance, precise prediction is elusive. The ambit of an exceptional discretion to deport to torture, if any, must await future cases.”
The Court held that the terms "danger to the security of Canada" and "terrorism" are not unconstitutionally vague. It distinguished between the terms “danger to the public” and "danger to the security of Canada" and held that in deportation legislation, “danger to the security” must be given a fair, large and liberal interpretation in accordance with international norms. 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, 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", grounded on objectively reasonable suspicion based on evidence, and involving substantial threatened harm. Properly defined, the term "danger to the security of Canada" gives those who might come within the ambit of s. 53 fair notice of the consequences of their conduct, while adequately limiting law enforcement discretion.
The Court also provides for the first time some guidance on defining terrorism. It held that while there is no authoritative definition of the term "terrorism" as found in s. 19 of the Immigration Act, the term is sufficiently settled to permit legal adjudication. Following the International Convention for the Suppression of the Financing of Terrorism, "terrorism" in s. 19 of the Act includes any act intended to cause death or 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 very nature or context, is to intimidate a population, or to compel a government or an international organization to do or abstain from doing any act.
Breach of Charter rights: Section 19 of the Immigration Act, defining the class of persons who may be deported because they constitute a danger to the security of Canada, as incorporated into s. 53 of the Act, does not breach the appellant's constitutional rights of free expression and association. The Minister's discretion to deport under s. 53 is confined to persons who pose a threat to the security of Canada and have been engaged in violence or activities directed at violence. Expression taking the form of violence or terror, or directed towards violence or terror, is unlikely to find shelter under the Charter. Provided that the Minister exercises her discretion in accordance with the Act, the guarantees of free expression and free association are not violated.
Section 7 of the Charter does not require the Minister to conduct a full oral hearing or judicial process. However, a refugee facing deportation to torture under s. 53(1)(b) must be informed of the case to be met. Subject to privilege and other valid reasons for reduced disclosure, the material on which the Minister bases her decision must be provided to the refugee. The refugee must be provided with an opportunity to respond in writing to the case presented to the Minister, and to challenge the Minister's information. The refugee is entitled to present evidence and make submissions: on whether his or her continued presence in Canada will not be detrimental to Canada under s. 19 of the Act; on the risk of torture upon return; and on the value of assurances of non-torture by foreign governments. The Minister must provide written reasons for her decision dealing with all relevant issues. These procedural protections apply where the refugee has met the threshold of establishing a prima facie case that there may be a risk of torture upon deportation. Mr. Suresh is held to have met this threshold. Since he was denied the required procedural safeguards and the denial cannot be justified under s. 1 of the Charter, the case is remanded to the Minister for reconsideration.
The Court held that in this case, it is unnecessary to review the Minister's decisions on deportation. However, where such a review is necessary, the reviewing court should generally adopt a deferential approach to the Minister's decision on whether a refugee's presence constitutes a danger to the security of Canada. This discretionary decision may only be set aside if it is patently unreasonable in the sense that it was made arbitrarily or in bad faith, cannot be supported on the evidence, or the Minister failed to consider the appropriate factors. Likewise, the Minister's decision on whether a refugee faces a substantial risk of torture upon deportation should be overturned only if it is not supported on the evidence or fails to consider the appropriate factors. The court should not reweigh the factors or interfere merely because it would have come to a different conclusion.