Suresh was a Sri Lankan born Tamil. He came to Canada in 1990 and made a refugee claim based on fear of persecution by the Sri Lankan government. Suresh was also a supporter of the Tamil Tigers (a listed terrorist organization) and had done some fundraising for them. The Solicitor General and Minster of Immigration filed a certificate under s. 40.1 of the Immigration Act (now s. 77 of the Immigration and Refugee Protection Act) alleging that Suresh was inadmissible to Canada on security grounds. Suresh was detained the following day. The certificate was referred to the Federal Court for determination of whether it was reasonable, and the court agreed with the Minister. He was given a deportation hearing, and the board held that while Suresh was not directly engaged in terrorism, his membership in a terrorist group was sufficient grounds for deportation. Under s. 53(1)(b), the Minister gave notice to Suresh that she was considering issuing an opinion that she considered him to be a danger to the security of Canada, which would permit the Minister to deport him despite the risk of torture. In response, Suresh submitted written and documentary evidence on this topic. An immigration officer, Gautier, considered Suresh's submissions, and found that allowing Suresh to remain in Canada would "run counter to Canada's commitments to fight against terrorism". While he acknowledged the risk of torture Suresh faced upon return to Sri Lanka, this was tempered by Suresh's high profile, and was counterbalanced by his membership in a terrorist group: on balance, there were insufficient humanitarian and compassionate grounds to warrant extraordinary consideration. As a result, the Minister issued an opinion that Suresh constituted a danger to Canada. Suresh never received a copy of the opinion, nor was he given an opportunity to respond to it orally or in writing (no such requirement existed under s. 53(1)(b)).
Suresh brought a claim on substantive, constitutional, and procedural grounds. On the procedural side he argued that in order to make meaningful submissions, he needed disclosure, especially the material/recommendation/opinion written by Gautier indicating that he is a danger to Canada. He was not given an opportunity to respond to the opinion, nor was he given reasons for the opinion.
- Are Suresh's s. 7 rights engaged so as to cross the procedural fairness threshold?
- If so, what is the nature of the procedural fairness owed?
Appeal allowed; new deportation hearing ordered. The impugned legislation is constitutional.
The court, in a per curiam decision, dealt first with the content of the principles of fundamental justice. It held that though not identical to the common law duty of fairness from Baker, they are the principles which underlie that duty. As per Singh, at minimum the principles of fundamental justice require compliance with the common law requirement.
Section 7 protects substantive as well as procedural rights. Insofar as procedural rights are concerned, the common law doctrine in Baker properly recognizes the ingredients of fundamental justice. As such, it is appropriate to look to the factors discussed in Baker in determining not only whether the common law duty of fairness has been met, but also in deciding whether the safeguards provided satisfy the demands of s. 7. We look to the common factors not as an end in themselves, but to inform the s. 7 procedural analysis. At the end of the day, the common law is not constitutionalized; it is used to inform the constitutional principles that apply to a case.
In determining the content of the duty owed, you must look to the context of the statute involved and the rights affected (here, as in Baker, the statute was silent regarding the process owed).
The court then proceeds with the analysis of the Baker factors:
- Nature of the decision: neutral
- Here, this was a judicial decision of a serious nature, which argued for more procedural fairness, but there was also a discretionary and a policy element, which argued for less.
- Nature of the statutory scheme: more procedural fairness
- The was a profound lack of parity here. The Act contained extensive procedures under s. 40.1 to ensure that certificates are issued fairly and allow for meaningful participation of the person involved, but offered no protections at all under s. 53(1)(b). This, combined with no right of appeal, pushed toward more procedural protections.
- Importance of the decision: more procedural fairness
- Suresh had a very significant interest in remaining in Canada; there was a real risk of torture if he returned, plus deportation would entail serious personal, financial and emotional consequences.
- Legitimate expectations: more procedural fairness
- Article 3 of the Convention Against Torture explicitly prohibits deportation of persons to states where there are substantial grounds for believing they will face torture – this convention necessarily informs s. 7 of the Charter; "It is only reasonable that the same executive that bound itself to the [Convention Against Torture] intends to act in accordance with [its] plain meaning."
- Choice of procedures: less procedural fairness
- The statute gave the Minister broad discretion to choose whatever procedures she wished for the s. 53(1)(b) stage, as well as in the evaluation of future risk and security concerns.
- This need for deference must be reconciled with the elevated level of procedural protections mandated by the serious situation of refugees like Suresh, who may face torture or other violations of their human rights if deported. Canada cannot be complicit in this constitutionally, nor under its international treaty obligations.
Weighing all the factors, the court concluded that s. 7 does not require that a full oral hearing or complete judicial process be conducted in this case, but Suresh should get more than the minimal protections he received. Specifically, it concludes that Suresh is entitled to:
- Disclosure of any materials that the Minister based her decision on (subject to privilege and/or national security concerns)
- An opportunity to respond/make submissions
- While the Minister accepted written submissions from Suresh, without access to the material the Minister received from her staff and on which she based her decision, Suresh had no way of knowing which factors he needed to address.
- 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/her. The Minister must then consider these submissions along with the submissions made by the Minister's staff.
- Written reasons for the decision
- The court said these must articulate why there are no substantial grounds to believe that the individual will be subjected to torture, execution, or other cruel/unusual punishment, why the Minister believes the subject to be a danger to the security of Canada (subject to privilege), and must be from the person making the decision, i.e. the Minister, rather than in the form of advice/suggestion of an immigration officer.
- In order to pass the threshold a refugee must show prima facie that there is a real risk of torture before being entitled to the above requirements under s. 7.
- Canada's interest in combating terrorism must be balanced against the refugee's interest in not being deported to torture.
- The minimum content of the duty of fairness to meet the the requirements of fundamental justice are:
- access to all relevant information the administrative decision maker intends to rely on;
- at minimum a written submission with regard to his danger to Canada and the risk of torture; and
- Section 7 does not mandate a full oral hearing.