Class 4: case study on implementing international human rights law into Canadian
Suresh v Canada (Minister of Citizenship and Immigration) (2002, SCC)
Question: Is deportation permissible even if there is a threat of torture on return?
Background and Timeline: Suresh
• Suresh was born in Sri Lanka in 1955.
• He came to Canada in 1990 at the age of 35.
• He applied for refugee status and was accepted as a refugee (was granted)in 1991,
and then he applied for landed immigrant status (which was never finalized)
Applied to be a refugee because of the conflict going on his country
• He ran the World Tamil Movement, a Torontobased group.
Immigration Act, Section 53(1) (General Rule)
“…no person who is determined under this Act … to be a Convention refugee, nor any
person who has been determined to be not eligible to have a claim to be a Convention
refugee determined … shall be removed from Canada to a country where the person’s life
or freedom would be threatened for reasons of race, religion, nationality, membership in a
particular social group or political opinion”.
this rule applied to him
• In 1995, the Solicitor General of Canada and the Minister of Citizenship and
Immigration began proceedings to deport Suresh. They received a certificate from
the Federal Court declaring Suresh a security threat.
• This certificate was based on the opinion of the Canadian Security Intelligence
Service (CSIS) that Suresh was a member of the Liberation Tigers of Tamil Eelam
(LTTE), a group engaged in terrorist activity (functions in Canada)in Sri Lanka.
He was accused of raising significant funds for the LTTE through the World
• He was not accused of doing these terrorist activities himself, directly, but he
“was raising funds” to help the terrorist movement
• Suresh was detained the next day.
• The Federal Court then held 50 days of hearings, in order to asses whether the
certificate was reasonably issued by the CSIS and upheld the certificate as
• The Court found that Suresh had been a member of the LTTE since his youth and
was a member of the LTTE executive, and that Suresh obtained refugee status by
misrepresenting the facts ( he did not say any involvement)
• However, the Court also found that Tamils arrested by Sri Lankan authorities are
badly mistreated and even tortured. • Suresh underwent a deportation hearing. The adjudicator held that there were no
reasonable grounds to believe that Suresh was directly engaged in terrorism, but
he should be deported based on his membership in a terrorist organization.
• In September 1997, the Minister of Citizenship and Immigration notified Suresh
that she was declaring him a danger to the security of Canada under s. 53(1) of
the Immigration Act. This declaration permits the Minister to deport a
refugee on security grounds, even when the refugee’s life or freedom would
be threatened on return.
• Suresh submitted arguments that he was likely to be tortured, disappear or killed
in Sri Lanka if deported.
Immigration Act , Section 53(1) (Exception to the General Rule)
“…no person who is determined under this Act … to be a Convention refugee…
shall be removed from Canada to a country where the person’s life or freedom would be
threatened … unless
(b) the person is a member of an inadmissible class [which includes members of
organizations that there are reasonable grounds to believe engage in terrorism] …
and the Minister is of the opinion that the person constitutes a danger to the security of
Canada”. – they believed he was a member of a group engaged in terrorist activity
• An Immigration officer for Citizenship and Immigration stated that “to allow Mr.
Suresh to remain in this country and continue his activities runs counter to
Canada’s international commitments in the fight against terrorism” although he
also acknowledged that Suresh’s activities in Canada were “nonviolent” in
• He also found that Suresh’s risk on returning to Sri Lanka was counterbalanced by
his activities in Canada. – the fact he is likely to face torture is counterbalance to
hid joining in terrorist groups in Canada
• In January 1998, the Minister issued an opinion that Suresh constituted a danger
to Canada and must be deported, but did not provide Suresh with the Immigration
officer’s opinion and gave Suresh no chance to respond ( becomes issue later on,
but not at this time), as that was the procedure permitted at the time under the
Suresh Federal Cour
• Suresh argued that the procedure was unfair and that the Immigration Act violated
s. 7 of the Charter ( Right to life, liberty, security). The Federal Court dismissed
• The Federal Court judge acknowledged that the analysis of Suresh’s s. 7 rights
should be informed by international law, especially the Convention Against
Convention Against Torture
Article For the purposes of this Convention, the term "torture" means any act by which severe
pain or suffering, whether physical or mental, is intentionally inflicted on a person for
such purposes as obtaining from him or a third person information or a confession,
punishing him for an act he or a third person has committed or is suspected of having
committed, or intimidating or coercing him or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by or at the instigation
of or with the consent or acquiescence of a public official or other person acting in an
official capacity. ...
1. No State Party shall expel, return ("refouler") or extradite a person to
another State where there are substantial grounds for believing that he would be in
danger of being subjected to torture.
Federal court of appeal
• The Federal Court judge found that the Convention Against Torture only applies
where there are “substantial grounds” to believe that the person would be
• Suresh did not meet this test because he had not submitted to the Minister a
personal statement outlining why he believed he was at risk for torture.
• The Federal Court judge concluded that Suresh’s deportation would not “shock
the conscience of Canadians”.
• Dismissed his application. The right to be free from torture was limited by a
country’s right to deport those who pose security risks.
• Canadian legislation has primacy over customary international law.
• While deportation to torture violates s. 7 of the Charter, the violation was
justified under s. 1. The objective of preventing Canada from be