Canadian Refugee Procedure/Charter of Rights and Freedoms

Charter of Rights and Freedoms

Selected provisions of the Canadian Charter of Rights and Freedoms applicable to refugee procedure follow:

The Canadian Charter of Rights and Freedoms

Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:

Divisions of the IRB have the competency to determine matters related to the Charter of Rights and Freedoms

Divisions of the IRB are endowed with the power to decide questions of law, and accordingly have the authority to resolve constitutional questions that are inextricably linked to matters properly before them. See: Canadian Refugee Procedure/RPD Rule 66 - Notice of Constitutional Question.

Guarantee of Rights and Freedoms
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Fundamental Freedoms
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; 
(c) freedom of peaceful assembly; and
(d) freedom of association.

Section 6: Mobility Rights

Mobility Rights
6.(1) Every citizen of Canada has the right to enter, remain in and leave Canada.
(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right
 (a) to move to and take up residence in any province; and
 (b) to pursue the gaining of a livelihood in any province.
(3) The rights specified in subsection (2) are subject to
 (a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and
 (b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.
(4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.

Section 7: Legal Rights, including life, liberty and security of the person

Legal Rights
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Deportation of a non-Citizen does not in and of itself infringe the right to liberty or security of the person

The deportation of a non-citizen does not in and of itself infringe the right to liberty guaranteed in section 7 of the Charter, because the liberty guaranteed in this section does not include "the freedom to be anywhere one wishes, regardless of the law." The answer is the same when security of the person is considered, as the Supreme Court of Canada held in Medovarsky v. Canada: "the most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in Canada...[and that]...deportation of a non-citizen in itself cannot implicate the liberty and security interests protected by s. 7 of the Canadian Charter of Rights and Freedoms". The answer to this may of course differ where an individual anticipates ill-treatment upon their return to their country of origin.

Deportation of a parent of a Canadian-born child does not violate the child's section 7 rights

The Federal Court of Appeal held in Langner v. Canada that "the deportation of the parents of Canadian-born children violated the section 7 rights of neither the parents nor their children." This was so as the separation of parents from their children was the result of the parents’ decision not to take their children with them when removed from Canada.

An individual is not facing deportation at the time of their hearing before the RPD or RAD

At times, applicants argue that a decision of a Division violates sections 7 of the Charter as they have a real and justifiable fear of torture or inhumane or degrading treatment upon return to their country. As the Federal Court held in Singh v. Canada, individuals before the RPD or RAD are not currently facing deportation, and so their arguments that deportation would violate the Charter are premature. Such arguments are best addressed at the stage of later proceedings where they can apply to stay their deportation.

This principle applies to exclusion and inadmissibility from the refugee regime as well. In the words of the Federal Court of Appeal, as the determination of exclusion or inadmissibility does not engage section 7, it necessarily follows that section 7 is not engaged by the denial of a section 96 risk assessment. A non-citizen is not legally entitled ‘to be recognized as a political refugee under either the common law or any international convention to which Canada has adhered’.

The right to liberty relates to the right to freedom of movement in the Refugee Convention

Section 7 of the Canadian Charter of Rights and Freedoms specifies that everyone has the right to liberty. Refugee Convention Article 31(1) states that "The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence". The Refugee Convention then protects such refugees from restrictions on their freedom of movement ‘other than those which are necessary’, and only ‘until their status in the country is regularized or they obtain admission into another country’.

Liberty is at stake in a detention review under the IRPA

Since liberty is at stake in a detention review under the IRPA, there is no issue that section 7 of the Charter is engaged where an individual is having a hearing before the Immigration Division about their detention.

Section 8: Unreasonable search or seizure

8. Everyone has the right to be secure against unreasonable search or seizure.

Searches at the border

Many refugee claims make a claim at a port of entry, at which point a Canada Border Services Agency officer may search their person or belongings in some cases. The Supreme Court of Canada has held that routine searches under the Customs Act, such as searches of suitcases, do not require reasonable grounds and are consistent with section 8 of the Charter. More intrusive searches, such as strip searches, require reasonable grounds: R v Simmons. The Customs Act cannot be read to permit broad, suspicionless searches of electronic devices during routine border screening as an unlimited and suspicionless search of a device would breach the Charter. Similarly, while some provisions of the IRPA authorize searches at the time that an individual makes a refugee claim, searches solely to look for criminality are not permitted. See also: Canadian Refugee Procedure/140 - Seizure.

Section 9: Arbitrary detention or imprisonment

9. Everyone has the right not to be arbitrarily detained or imprisoned.

Section 10: Rights on arrest or detention

10. Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right

See: Canadian Refugee Procedure/RPD Rules 14-16 - Counsel of Record#Canadian Charter of Rights and Freedoms.

Section 12: Cruel and unusual treatment or punishment

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

An individual is not facing deportation at the time of their hearing before the RPD or RAD

At times appellants will argue that a failure to accept their claim means that the RPD or RAD's decision is in violation of section 12 of the Charter. For details on how such arguments have been treated, see: Canadian Refugee Procedure/Charter of Rights and Freedoms#An individual is not facing deportation at the time of their hearing before the Division.

Section 13: Self-incrimination

13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

Section 14: Right to the assistance of an interpreter

14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

Commentary

For commentary, see the section below on sections 14 and 16-22 of the Charter.

Section 15: Equality rights

Equality Rights
15.(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

It is generally the responsibility of the parties to raise section 15 Charter issues, not the tribunal

The Federal Court of Appeal has cautioned that an administrative tribunal should not raise a new section 15 Charter issue on its own initiative.

Section 15 grounds and the constitutionality of IRPA provisions

Many section 15 challenges have been advanced against particular provisions of the IRPA. One object of challenge has been the provisions in the IRPA which restrict appeals to those who entered Canada pursuant to exemptions to the Safe Third Country Agreement. In Rodriguez v. Canada, the court held that the applicant had not established that a refugee claimant’s choices with respect to his or her travel into Canada is a personal characteristic that is immutable or the basis of historical prejudices or stereotypes within the meaning of section 15. See: Canadian Refugee Procedure/110-111 - Appeal to Refugee Appeal Division#110(2)(d): No appeal may be made by claimants who are allowed to make a refugee claim pursuant to an exception to the Safe Third Country Agreement.

Deportation of a permanent resident is not a breach of s. 15 based on citizenship

In Canada v Chiarelli, Sopinka J. held that deportation of a permanent resident was not a breach of s. 15 based on citizenship.

Sections 14 a that nd 16-22: Official Languages of Canada

14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

***

Official Languages of Canada
16.(1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.
(2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick.
(3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.
16.1(1) The English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges, including the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities.
(2) The role of the legislature and government of New Brunswick to preserve and promote the status, rights and privileges referred to in subsection (1) is affirmed.

17.(1) Everyone has the right to use English or French in any debates and other proceedings of Parliament.
(2) Everyone has the right to use English or French in any debates and other proceedings of the legislature of New Brunswick.

18.(1) The statutes, records and journals of Parliament shall be printed and published in English and French and both language versions are equally authoritative.
(2) The statutes, records and journals of the legislature of New Brunswick shall be printed and published in English and French and both language versions are equally authoritative.

19.(1) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by Parliament.
(2) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court of New Brunswick.

20.(1) Any member of the public in Canada has the right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament or government of Canada in English or French, and has the same right with respect to any other office of any such institution where
(a) there is a significant demand for communications with and services from that office in such language; or
(b) due to the nature of the office, it is reasonable that communications with and services from that office be available in both English and French.
(2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French.

21. Nothing in sections 16 to 20 abrogates or derogates from any right, privilege or obligation with respect to the English and French languages, or either of them, that exists or is continued by virtue of any other provision of the Constitution of Canada.

22. Nothing in sections 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Charter with respect to any language that is not English or French.

RPD Rules concerning language of proceedings, interpreters, and language of documents

For discussion of these provisions, see the commentary to RPD Rules 17 and 18, which concern language of proceedings (Canadian Refugee Procedure/Language of Proceedings), RPD Rule 19, which concerns interpreters (Canadian Refugee Procedure/Interpreters), and RPD Rule 32 which concerns language of documents (Canadian Refugee Procedure/Documents#RPD Rule 32 - Language of Documents), and RPD Rule 67 and this commentary on the language of decisions (Canadian Refugee Procedure/Decisions#In what language or languages must the reasons for decisions be made available where they are publicly released?).

Section 24: Enforcement

***

Enforcement
24.(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

General
25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including
(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and
(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.
26. The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.
27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.
28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.
29. Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.
30. A reference in this Charter to a province or to the legislative assembly or legislature of a province shall be deemed to include a reference to the Yukon Territory and the Northwest Territories, or to the appropriate legislative authority thereof, as the case may be.
31. Nothing in this Charter extends the legislative powers of any body or authority.

Application of Charter
32.(1) This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
(2) Notwithstanding subsection (1), section 15 shall not have effect until three years after this section comes into force.
33.(1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.
(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.
(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
(4) Parliament or a legislature of a province may re-enact a declaration made under subsection (1).
(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).

Citation
34. This Part may be cited as the Canadian Charter of Rights and Freedoms.