CIVE 463 Lecture 9: Class 9_W5
25 May 2018
School
Department
Course
Professor
Class 9: The Charter and administrative law: s. 7 principles of fundamental justice
Singh
• Facts: 7 men come to Canada and claim refugee status under old refugee act (before
2002) which set out comprehensive procedure to seek Convention refugee status. Not
everyone that has a fear of persecution can have that status (if fits in refugee category:
race, religion, nationality, membership of a particular social group or political opinion).
• In Singh, procedure is what is important. Prior to the creation of the Refugee Board,
o A. refugee claimant would make personal statement: why persecuted in the
country; why fear. Would have assistant counsel.
o B. Refugee status advisory board would make recommendation to the minister.
Minister at this point needs to provide summary for the rejection of the crown
(not all reasons).
o C. If minister or its delegate says no, claimant can make an appeal. Appeal to
immigration appeals board: steps:
▪ 1. Gatekeeper role: hearing upon positive determination that applicant
stood a reasonable chance of success if were given opportunity of oral
hearing (torture or arbitrary killing).
▪ 2. ??6
• Issue: Should anyone applying to Convention refugee status always have the right to be
heard from personally?
o Crown argued: everyone has the right to stay in Canada. BUT everyone lawfully
in Canada.
o Why did the court go to the Charter rather than read in CML :
▪ A. everyone = everyone that is physically in Canada can use s 7 Charter.
▪ B. If it is reasonably foreseeable, it has to be taken seriously, even if the
Crown is not directly violating someone’s HRs (so touched by the action
of third parties).
• An oral hearing is important in every context. YES, the court gives 2 reasons:
o Interests at stake: Because s 7 interests are at stake every time in such context
o Credibility: In refugee status determination proceedings - we can never know in
advance that people are telling the truth, but the best way it to hear from people
in a hearing.
• Singh has been the one most fiscally influential decision in Canadian law.
Suresh
• Facts: determination by minister that S represents a danger to security or people of
Canada. Once a danger opinion is made, that is automatically transformed in a
deportation order.
• Court: in that particular context, minister had to provide certain procedural safeguards.
One of the things that was non necessary was an oral hearing - because it seems that
credibility was not at stake and that Suresh did face a threat of torture if returning (vs.
Singh).
Document Summary
Class 9: the charter and administrative law: s. 7 principles of fundamental justice. Singh: facts: 7 men come to canada and claim refugee status under old refugee act (before, which set out comprehensive procedure to seek convention refugee status. Not everyone that has a fear of persecution can have that status (if fits in refugee category: race, religion, nationality, membership of a particular social group or political opinion): in singh, procedure is what is important. Prior to the creation of the refugee board: a. refugee claimant would make personal statement: why persecuted in the country; why fear. Refugee status advisory board would make recommendation to the minister. Minister at this point needs to provide summary for the rejection of the crown (not all reasons): c. if minister or its delegate says no, claimant can make an appeal. Appeal to immigration appeals board: steps: 1.
