DELPHINE NAKACHE Research Associate, Canada Research Chair in International Migration Law

1. Law as a vehicle of integration?The “inclusionary” and “exclusionary” dimension of law in the field of migration DELPHINE NAKACHE Research Associate, Canada Research Chair in International Migration Law Doctoral Candidate, Institute of Comparative Law, McGill University. & FRANÇOIS CRÉPEAU Professor of International Law Canada Research Chair in International Migration Law Scientific Director, Centre for International Studies (CERIUM) University of Montreal

2. Inclusive dimension of Law • Canadian Charter of Rights and Freedoms (1982): all rights equally apply to all human beings under the purview of the Charter. • Important judicial pronouncements on the domestic application of international human rights law standards (“best interest” of the child) Foreigners, like citizens, are ableto take active steps to bring a Charter issue to the Court and to seek a remedy under a Charter section

3. Exclusionary dimension of Law Canadian immigration law has significantly reduced the right to a remedy available to non-citizens A more restrictive outlook has characterized cases relating tonational security or State sovereignty concerns

4. PART ITHE CONSTITUTIONAL PROTECTION OF THE FUNDAMENTAL RIGHTS OF NON-CITIZENS: LAW AS A VEHICLE OF INTEGRATION

5. The Constitutional Protection of Fundamental Rights For All 1) Legal rights 2) Equality rights 3) Fundamental freedoms

6. 1) Legal Rights - Section 7: fundamental justice Singh v. Canada(1985, SC): The assessment of a risk to the security of the person means an assessment of the threat to any of the three rights guaranteed to a refugee – i.e. the right to status determination, to appeal a removal or deportation order and to protection against refoulement The procedure used in Canada to decide a refugee claim (i.e. a written record of the examination before an Immigration Officer) does not comply with the principles of fundamental justice because it does not provide an adequate opportunity to claimants to state their case and to respond to contrary evidence (the right to an oral hearing).

7. 2) Equality Rights - Section 15 • “equal protection and equal benefit of the law without discrimination (…) based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability”. • Andrews v. Law Society of British Columbia (1989, SC) • the Supreme Court stated that section 15 prohibits discrimination on the basis on the analogous ground of citizenship. • substantive equality analysis (rather than formal equality approach). • Law v. Canada (1999,SC): the guidelines of Andrews are made more stringent, adding especially a requirement that the discrimination be a violation of human dignity.

8. 3) Fundamental Freedoms –section 2: Freedom of Association Al Yamani v. Canada(Federal Court, 1996): Part of section 19(1)g) of the former Immigration Act of 1976[1] – proscribing the admission to Canada of members of an organization likely to engage in violent acts that will endanger the safety of people in Canada – is unconstitutional on the ground that, by rendering inadmissible those who were merely members of organizations likely to engage in acts of violence, it violates the applicant’s freedom of association [1] “Member of an organization likely to engage in violent acts.” This offence is now found under s.34(1) IRPA.

9. Using international human rights law in interpreting domestic standards Dualist theory : • The national and international legal orders are two distinct spheres of law • “Statutory incorporation” is mandatory for an international treaty to acquire the force of law in the country.

10. Significant Case Law • Pushpanatan (1998, SC): the “purpose” and “context” of the 1951 UN Refugee Convention are applicable in determining the meaning of Article 1F(c) in domestic law (exclusion clause) • Baker(1999, SC) & Malekzai (2005, FC): the immigration official exercising discretion in deportation cases is bound to consider the principle of “the best interests of the child” stated in the 1989 UN Convention on the Rights of the Child • Suresh(2002, SC): the principle of the absolute prohibition of torture and of non-refoulement must be given consideration in expulsion cases “even where national security interests are at stake

11. PART IITHE REDUCTION OF THE RIGHT TO A REMEDY UNDER CANADIAN IMMIGRATION LAW : LAW AS A MEANS OF EXCLUSION

12. Since Singh, a more restrictive outlook has characterized cases relating to national security or State sovereignty concerns • Nguyen v. Canada(FC, 1993) • McAllister v. Canada(FC, 1996) • Chiarelli v. Canada(SC, 1992) & Chan v. Canada (FC, 1996) • Dehghani v. Canada (SC, 1993) The principles of fundamental justice can vary according to the context in which they are invoked

13. Judicial review does not review the merits of the case. It is particularly difficult to get a decision overturned when it hinges on the credibility of the claimant’s testimony, since the Court will usually say that the decision-maker who heard the claimant is best placed to judge whether he were credible. A decision can be wrong and, if it does not contain the kind of mistake subject to review by the Federal Court, it is final Permanent and Temporary Residents No appeal is available to a sponsor where a security certificate has been signed or where the minister is of the opinion that the person is a danger to the public and inadmissible under specified paragraphs of IRPA. The Refugee Appeal Division: a broken promise Replacement of Appeals by Judicial Reviewin Canadian Immigration Law

14. Legal Aid Remains Inadequate • Provinces are exclusively responsible for developing and managing legal aid policies, without insuring some equalization. • Dehghani v. Canada (SC, 1993): the principles of fundamental justice do not require the appellant being provided with counsel at the pre-inquiry or pre-hearing stage of the refugee claim determination process Contravenes to Singh & the indications formulated in the federal cost-sharing arrangements covering refugee claimants

15. Terrorism as a Ground for Detention and Removal There are no provisions for release comparable to section 515 of the Criminal Code, which allows for the release of even the most dangerous individuals on surety bail or cash deposit: Jaballah example is instructive (FC, 2004): he was denied interim release notwithstanding the fact that fourteen individuals were prepared to act as sureties. Deportees might face torture or inhuman treatment in their destination country (Suresh, 2002) The challenge to the Constitutionality Ahani vs. Canada (1995, F.C.) & Charkaoui (Re) (2003, F.C): the imperatives of immigration policy (i.e.the right of State to safeguard protected information for reasons of national security) must govern the context In both cases, emphasis on the fact that non-citizens do not have an unqualified right to enter or remain in the country. Security Certificates & the Right to Justice

16. CONCLUSION:CLARIFYING THE RIGHT TO EQUALITY AND THE NON-DISCRIMINATION PROVISIONS

17. Elements of solution • 1. There is no possible differentiation between citizens and non-citizens regarding basic protections for physical security and fair trial. • 2. A differentiation between citizens and non-citizens is legal if a State can make out a “reasonable and objective case” that differing treatment of applicants of a particular national origin for a limited period of time is required for its security. • Otherwise, the differentiation constitutes discrimination and is illegal