Suresh v. Canada (Minister of Citizenship and Immigration)
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| Suresh v. Canada (Minister of Citizenship and Immigration) | |||||
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| Hearing: May 22, 2001 Judgment: January 11, 2002 |
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| Court membership | |||||
| Chief Justice: Beverley McLachlin C.J. Puisne Justices: Claire L'Heureux-Dubé, Charles Gonthier, Frank Iacobucci, John C. Major, Michel Bastarache, Ian Binnie, Louise Arbour, and Louis LeBel J.J. |
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| Reasons given | |||||
| Unanimous decision by: The Court | |||||
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 is a leading constitutional decision of the Supreme Court of Canada. 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 tortured.
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[edit] Background
Suresh, a Convention refugee from Sri Lanka, applied for immgrant 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. CSIS had claimed that he was a supporter and fundraiser for the Liberation Tigers of Tamil Eelam, an alleged 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 to Canada under section 53(1)(b) of the Immigration Act and consequently should be deported. Suresh had presented written and documentary evidence to the Mininster, however, he did not have the chance to get a copy of the memorandum of the immigration officer and did not get a chance to respond to it.
Due to this inability to respond Suresh applied for judicial review 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 7, 2(b), and 2(d) of the Charter.
The application was dismissed by the Federal Court, which was upheld by the Federal Court of Appeal. The decision was appealed to the Supreme Court.
[edit] Opinion of the Court
The unanimous decision of the Supreme Court was written By the Court|.
[edit] 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 liberty and security of person. The primary issue was whether the deprevation was in accordance with the principles of fundamental justice.
The Court identified fundamental justice to be "the basic tenents 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 terrrorism 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.
[edit] 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, 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.
The Court finds that the word "terrorism" is constitutional as well. 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 Supression of the Financing of Terrrorism, which defines it as
- 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.
[edit] Expression
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[edit] Fairness
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