** Convention refugee --- found by CSIS to be a member of LTTE
** Deportation hearing found that S was not engaged in terrorism, but should be deported for being a member of a terrorist organization [now s.34(1)(f)]
** Opinion issued that S was a danger to Canada and could be deported under [now s.115(2)(b)], which allows for refoulement of refugees
** 1. whether the Charter precludes deportation to a country where the refugee faces torture or death;
** 2. whether deportation on the basis of mere membership in an alleged terrorist organization unjustifiably infringes the Charter rights of free expression and free association;
** 3. whether "terrorism" and "danger to the security of Canada" are unconstitutionally vague;
** 4. whether the deportation scheme contains adequate procedural safeguards to ensure that refugees are not expelled to a risk of torture or death
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 LLSOP. 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 procedures for deportation under the [now IRPA], when applied properly and in line with the safeguards outlined above, conforms to the Charter.
Parliament’s challenge is to draft laws that effectively combat terrorism but that also meet Canada’s constitutional and international requirements.
Standard of review: Parliament intended to grant the Minister a broad discretion in issuing a s. 53(1)(b) opinion [now s.115(2)(b)], reviewable only where the Minister makes a patently unreasonable decision
** If minister considered appropriate factors in conformity with the legislation, then the court must uphold the decision even if they would have weighed the factors differently
1. Charter and risk of torture: Canada is not just an involuntary intermediary--- 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
** comes down to balancing state interest in combating terrorism with constitutional commitment and protecting public security
** despite art. 33 of the Refugee Convention, the better view is that international law rejects deportation to torture (in line with the ICCPR and CAT), even where national security interests are at stake. This is the norm which best informs the content of the principles of fundamental justice under s. 7 of the Charter
** art 3 of CAT does not directly constrain Canadian gov't, but should be considered as part of fundamental justice under s.7--- but still need balancing even though the balance will rarely come down in favour of expulsion to risk of torture
2. ‘danger to the security’ of Canada must be interpreted flexibly; ‘terrorism’ is defined well enough in Convention Against Terrorist Financing --- neither are unconstitutionally vague
3. membership and s.2(b) and (d): violence is not protected--- so membership in a violent organization is not unconstitutional under s.53
** but [now s.34] must be read as permitting a refugee to establish that continued residence in Canada will not be detrimental to Canada even if they are a member of a terrorist organization--- because could be innocent/ignorant of terrorist part of the org
4. Procedural protections: from Baker, procedural protections to be provided involves consideration of the following factors:
** (1) the nature of the decision made and the procedures followed in making it that is, "the closeness of the administrative process to the judicial process"; --- can’t be overly strong nor weak procedural safeguards for this type of decision
** (2) the role of the particular decision within the statutory scheme; --- statutory scheme suggests a need for strong procedural safeguards, particularly given the lack of fairness and meaningful participation provided under s.53(1)(b) [now s.115(2)(b)
** (3) the importance of the decision to the individual affected; --- risk of torture, fact that he is refugee who has been here a long time, financial and emotional consequences all require strong safeguards
** (4) the legitimate expectations of the person challenging the decision where undertakings were made concerning the procedure to be followed; and
** (5) the choice of procedure made by the agency itself --- do not require a full oral hearing or a complete judicial process, but S needs more than the nothing that he got
** given that Canadian executive bound itself to CAT it should afford strong procedural safeguards--- particularly at the s.53(1)(b) stage, so that S. could demonstrate the ‘substantial grounds’
Fundamental justice requires that written submissions be accepted from the subject of the order after the subject has been provided with an opportunity to examine the material being used against him or her. The Minister must then consider these submissions along with the submissions made by the Minister's staff.
** If the refugee establishes that torture is a real possibility, the Minister must provide the refugee with all the relevant information and advice she intends to rely on, provide the refugee an opportunity to address that evidence in writing, and after considering all the relevant information, issue responsive written reasons. This is the minimum required to meet the duty of fairness and fulfill the requirements of fundamental justice under s. 7 of the Charter.
Despite the legitimate purpose of s.53(1)(b), the lack of procedural protections afforded to S. were not justified under s.1 [because the Minister has the discretion to determine the procedures under this provision, while s.7 is violated, the section does not allow for a prima facie determination of whether it is saved by s.1--- this will be determined in each individual case where the minister exercises discretion for procedures, weighed by the facts on both sides]
** valid objectives alone cannot justify limitations on rights--- must also be connected to objective and proportional (minimal impairment)
Deportation of a refugee to face a substantial risk of torture will generally violate s.7
Deportation to face torture is generally unconstitutional
** some of the procedures followed in Suresh's case did not meet the required constitutional standards --- entitled to a new hearing.