Entrenching Refugee Rights in Canada: The 1985 Singh Decision

by Jan Raska, PhD, Historian

Introduction:

Up to the early 1980s, refugee claimants had the possibility of appealing a negative outcome to their refugee claims. However, Canada’s refugee determination system remained partial to the interests of the Canadian government rather than the claimant. The latter was not afforded the right to state their case before federal officials and to know the case criteria that they would need to meet under the principle of fundamental justice.

In an effort to create a more fair, equitable, and efficient refugee determination process, the federal government re-evaluated the effectiveness of its refugee determination system. As part of the re-evaluation process, the federal government commissioned three successive reports concluding that Canada’s refugee determination system was rife with irregularities, inconsistencies, and vulnerable to abuse.[1] The latter report, Refugee Determination in Canada, authored by Rabbi Gunther Plaut and published in April 1985, coincided with a Supreme Court of Canada (SCC) decision that would have far-reaching implications for refugee rights in Canada. In Singh v. Minister of Employment and Immigration, the SCC ruled that refugee claimants in Canada were entitled to fundamental justice under the Canadian Charter of Rights and Freedoms. The SCC’s ruling resulted from individual appeals by seven claimants (six Sikhs with Indian citizenship and one Guyanese citizen of Indian heritage) who had each claimed convention refugee status upon their arrival in Canada.

Challenging Canada’s Refugee Determination System before the Courts:

Between 1977 and 1980, seven foreign nationals including six Sikh Indian citizens and one Guyanese citizen claimed refugee status, under the 1976 Immigration Act, upon arriving in Canada.[2] The individuals based their claims on the 1951 United Nations Convention Relating to the Status of Refugees’ definition of a refugee being a person with a “well-founded fear of persecution” in their home country.[3] At the time of their arrivals, individuals claiming refugee status in Canada were first questioned by a Canadian immigration officer. Soon after, refugee claimants submitted their claims in writing to the federal immigration department. Federal officials then determined if the claimant was a refugee based on the advice received from the Refugee Status Advisory Committee (RSAC) which had been created with the implementation of the 1976 Immigration Act. If an individual’s refugee claim was unsuccessful, they then had the possibility to appeal the decision in writing to the Immigration Appeals Board (IAB), which had been established in 1967, as a federal administrative tribunal with a responsibility to adjudicate immigration and refugee claims.[4]

In 1982, one of the seven refugee claimants, Satnam Singh, challenged his deportation, following the negative outcome of his appeal at the IAB, on the grounds that it violated the Canadian Charter of Rights and Freedoms. Singh was an Indian national of Sikh origin who supported the establishment of an independent Sikh homeland of Khalistan in Punjab. In the face of political repression, Singh fled India in the late 1970s and arrived in Canada where he sought refugee status. At the time, the IAB heard Singh’s case and dismissed his application for refugee status on the grounds that he was not a genuine refugee. The IAB asserted that if Singh returned to his home country of India, he would not face political repression nor would his life be in jeopardy. As a result of this decision, the IAB ordered Singh to be deported back to India. Under the contemporary Immigration Act, an individual seeking refugee status filed their documentation and legal claims in writing. No oral hearing existed in the refugee determination process in which a person could make their case for refugee status.[5]

Satnam Singh and the other refugee claimants had been denied refugee status by the Minister of Employment and Immigration on the advice of the RSAC. The refugee claimants then appealed the decisions before the courts by asserting that the procedures involved in adjudicating their cases under the Immigration Act violated their constitutional rights, including the recently-adopted 1982 Canadian Charter of Rights and Freedoms, by infringing on the principles of natural justice and procedural fairness. The Federal Court of Appeal rejected the refugee claimants’ requests for a judicial review of the IAB’s dismissal of their applications for redetermination of their refugee claims.[6]

Before the Supreme Court of Canada: Singh v. Minister of Employment and Immigration

The seven refugee claimants then appealed to the Supreme Court of Canada (SCC) where six (of nine) justices of the court agreed to hear the appeal. Due to similarities of the legal issues in their individual cases, the seven claimants were dealt with in a single case. In two hearings, on 30 April and 1 May 1984, the SCC heard from lawyers representing the seven refugee claimants (appellants) and lawyers representing the Minister of Employment and Immigration on behalf of the Canadian government (respondent). The Federation of Canadian Sikh Societies and the Canadian Council of Churches were also represented as intervenors in the case.[7] Before the SCC, Satnam Singh’s lawyer, C.D. Coveney, argued that the process in which a recently-arrived individual made their claim for refugee status violated their rights to life, liberty, and security of the person (Section 7 of the Charter) as they could be sent back to their home country without orally having stated their case for seeking refuge before immigration officials. Coveney further argued that the IAB’s procedure in refugee determination did not accord with the principles of fundamental justice as his client feared for his life if returned to India. According to Coveney, only the inclusion of an oral hearing could satisfy this Charter requirement and protect his client’s rights.

For its part, lawyers for the Canadian government argued that since Singh and his co-appellants were not Canadian citizens or permanent residents they had no legal standing before the courts. They argued that the Charter did not apply to “aliens.”[8] Canadian officials believed that the introduction of oral hearings would create a significant administrative burden on the IAB and the refugee determination system. The federal government opposed implementing them and hiring further adjudicators and staff members because it would substantially increase costs. The federal government also believed that the implementation of oral hearings would create a larger backlog of legitimate refugee claims which would take longer to resolve as fraudulent claims could not be resolved as quickly as in the past.[9]

The seven justices who agreed to hear arguments in the appeal soon were tasked with interpreting what the term “everyone” meant in the context of Section 7 of the Charter:

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.[10]

Lawyers for the refugee claimants argued that the definition of “everyone” ought to apply to every individual subject to Canadian law. Conversely, lawyers representing the Canadian government asserted that “everyone” referred to Canadian citizens and landed immigrants. The SCC had to decide which interpretation – wide-ranging and inclusive or narrow and restrictive – defined the term “everyone” in Section 7 of the Charter. A majority of the court decided for the appellants and agreed that the term applied to every human being physically present in Canada. The court also ruled that the RSAC’s procedures violated the appellants constitutional rights under Section 7 of the Charter. A majority of the justices agreed that the procedures infringed on the principles of natural justice and procedural fairness.[11] In writing for the majority, Justice Bertha Wilson noted that “…administrative convenience does not override the need to adhere to these principles.”[12] The justices also agreed that all refugee claimants in Canada had the right to a full oral hearing before the RSAC, and that this would necessitate the hiring of additional adjudicators and staff.[13]

Supreme Court Ruling in Singh v. Minister of Employment and Immigration

On 4 April 1985, the six members of the court (Chief Justice Brian Dickson and Justices Bertha Wilson, Jean Beetz, Willard Estey, William McIntyre, and Antonio Lamer) who gave leave to appeal before the Supreme Court of Canada (SCC) ruled in favour of the appellants. The six justices were evenly split (3-3) in their decisions.[14] A fellow judge of the court, Justice Roland Ritchie, sat in on the proceedings but did not take part in the judgement.[15] Justice Bertha Wilson, who wrote the majority opinion on behalf of Chief Justice Brian Dickson and Justice Antonio Lamer, found that the system for determining refugee status claims under the 1976 Immigration Act was “inconsistent with the requirements of fundamental justice” formulated in Section 7 of the Charter (security of the person and fundamental justice), and that “at a minimum, the procedural scheme set up by the Act should provide the refugee claimant with an adequate opportunity to state his case and to know the case he has to meet.”[16]

Meanwhile, Justice Jean Beetz, who wrote a concurring opinion on behalf of Justice Willard Estey and Justice William McIntyre, based their ruling on Section 26 of the Charter and Section 2(e) of the Act for the Recognition and Protection of Human Rights and Fundamental Freedoms (commonly referred to as the Canadian Bill of Rights):

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.[17]

2(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;[18]

In also ruling for the appellants, the latter three justices asserted that since Section 26 of the Charter guaranteed that other rights outside of the Charter also remained valid, the Bill of Rights “retains all its full force and effect…” and continues to play a role in Canadian law.[19] Justices Beetz, Estey, and McIntyre concluded that the appellants had been denied fair hearings and their rights to fundamental justice had been infringed, according to Section 2(e) of the Bill of Rights. The SCC’s ruling has come to be known as the Singh decision.

By entrenching the right of refugee claimants to an oral hearing, the Singh decision also created substantial administrative demands on the refugee determination system. A more effective and better staffed process became necessary after 1985.[20] The Employment and Immigration Commission (EIC) abided by the decision, but was not prepared for the ruling’s future impact: shortly after the decision, one senior immigration officer asserted that it would cost approximately $3,500 to process a single refugee claim. At the time, there was a backlog of some 13,800 refugee claims, which according to the aforementioned officer’s assertions would have totalled $48.3 million.[21] Following the SCC’s decision in the Singh case, the Canadian government decided it could not provide a full oral hearing to the 63,000 refugee claimants who were legally entitled to one. As a result, federal officials provided an amnesty to all refugee claimants who had entered Canada before 21 May 1986, if they were not a security risk, did not previously possess a criminal record, and had passed their medical examinations, then they would be permitted to remain in Canada. If they were also gainfully employed or likely to be so, then these same individuals would be permitted to become permanent residents.[22]

Conclusion:

The Supreme Court of Canada’s (SCC) ruling in Singh v. Minister of Employment and Immigration was a landmark legal decision on the rights of in-Canada refugee claimants and initiated the entrenchment of refugee rights in Canada. The case was also one of the SCC’s earliest rulings regarding the newly-adopted Canadian Charter of Rights and Freedoms, which had only come into effect three years earlier. The Singh decision came amidst a multi-year review by the federal government of Canada’s refugee determination system.[23] Nearly two weeks later, on 17 April 1985, the 221-page Plaut Report on “Refugee Determination in Canada” was officially submitted to the Minister of Employment and Immigration, Flora Macdonald.[24] In his submission to the federal government, Rabbi Dr. Gunther Plaut outlined several different structures for a more equitable and balanced refugee determination system, which included oral hearings, an independent decision-making body to examine claims, a full appeal process, and regional decision-making across the country.[25] The Singh ruling also conveyed that under the Charter, a refugee claimant’s constitutional rights to “security of the person” would be violated if they were returned to a country where they may be persecuted. This would also be a violation of the principle of “non-refoulement” under international human rights law.[26]

While the Singh decision helped make Canada one of the most liberal refugee systems in the world, it also became one of the most expensive to operate. After the ruling, the failure of the federal government to adapt to the demand for procedural fairness and fundamental justice saw legitimate refugee claimants wait longer to have their cases resolved.[27] Despite the establishment of the Immigration and Refugee Board of Canada (IRB) in 1989 and the subsequent recruitment of hundreds of new officers, process times to adjudicate a refugee claim went from months to years, in many cases. On 15 December 2012, the IRB launched its Refugee Appeals Division (RAD) which “considers appeals against decisions of the Refugee Protection Division (RPD) to allow or reject claims for refugee protection.” In most cases, the RAD bases “its decisions on documents provided by the parties involved and the RPD record.”[28]

The Singh decision remains controversial to this day. Supportive legal and immigration scholars note that before the 1982 Charter and the 1985 Singh decision, the lack of a constitutionally-enshrined bill of rights and the use of “privative clauses” in immigration statutes saw Canadian courts display extraordinary deference to executive and administrative officials when it came to the formulation of Canadian immigration policy. Courts were also less likely to police deficiencies in immigration processes and procedures.[29] Since the Singh decision, refugee advocates view the SCC’s majority ruling as a progressive response to the need to be considerate of legitimate refugees in need of protection. Critics believe the decision has led to an increase in fraudulent refugee claims, which clog the refugee determination system in Canada, and often lead to improper admissions to the detriment of legitimate refugees.[30] Nonetheless, the Singh decision remains one of the most important legal decisions in Canadian immigration history due to its impact on immigration, Charter, and administrative law.[31]