What has gone wrong and why? The beginning was promising. In 1985, the Supreme Court ruled than anyone physically present in Canada was protected by the Charter. This ruling was followed in 1989 with a decision that a lack of citizenship was analogous to the grounds of discrimination listed in the Charter and thus was a basis for equality protection.
My study published late in 2013 showed both that very few questions of non-citizens’ rights reach the Supreme Court of Canada, and that those that claims that do are frequently rejected by the Court. The commitment of the Court to ensure that the Charter meets international human rights standards is not being met in this area. The result is that on key issues such as deportation to torture, indefinite detention, and some equality provisions, non-citizens now have fewer rights protections here than they would in the United Kingdom, the United States, New Zealand and even in some cases, Australia.
Despite a promising start, the Charter has done very little for non-citizens. As cases are decided each on their own merits, there is no overarching explanation why this is so. But some trends can be identified.
In many important cases, rather than making a firm rights-based decision, the Court has instead ruled that governmental discretionary decision making is appropriate, provided it follows constitutional limits. This is a position of possibly admirable restraint on behalf of the Court, but it does amount to leaving matters squarely in government hands.
Another factor is the ruling that fundamental principles of justice vary with context, and that for immigration matters a key feature of that context is that non-citizens have no right to remain in Canada. This is certainly true, but it has been restated so frequently and so emphatically as to overshadow the rights that non-citizens do have. Citizenship is not a requirement for human rights entitlements: being human is.
There are however, two ironies to this fact. The first is that refugee claims rarely reach Canadian courts, let along the Supreme Court of Canada. There have been only four refugee decisions at the Supreme Court in the thirty-two years since the Charter. Non-citizens face severely restricted access to the courts. Judicial oversight of most refugee and immigration decisions is limited by the need to seek permission of the Federal Court before bringing an argument. This permission is denied about 85% of the time. Access to courts for non-citizens in Canada is more restricted than in the United Kingdom, Australia, New Zealand and the United States.
The second irony is that while Canada refugee law remains world leading, fewer and fewer refugee claimants actually have any access to it. Beginning in 2002, and ramping up rapidly in the past three years, the government has changed the ‘eligibility’ provisions for refugee determination in Canada. This means that fewer people who want to make a refugee claim are able to do so. International law does not allow these limitations, but there is no avenue for an individual to make an international complaint about this.
As the Canadian government intensifies its attack on non-citizens rights in a variety of ways (refugee health care, access to citizenship, and security measures, are just a few examples) non-citizens’ rights are more important than ever. All Canadians need to realize that the era of humanitarian triumphalism is well and truly over. Anyone who believes that Canada’s humanitarian tradition was important and valuable should now be protesting its loss, loudly. Such protest may or may not make a difference to the government’s agenda. But a shift in public attention should embolden the courts, at all levels, to return to a position of international leadership.