Singh v.

Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177, 1985 CanLII 65 (SCC)

http://canlii.ca/t/1fv22

• Refugee determination process at that time violated s. 7 in a manner inconsistent with the principles of fundamental justice
Charter applies to everyone in Canada
• The phrase “security of the person” encompasses freedom from the threat of physical punishment or suffering as well as freedom from such punishment itself.

• HEADNOTE: Per Dickson C.J. and Lamer and Wilson JJ.: Appellants, in the determination of their claims, are entitled to assert the protection of s. 7 of the Charter which guarantees “everyone … 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”. The term “everyone” in s. 7 includes every person physically present in Canada and by virtue of such presence amenable to Canadian law. The phrase “security of the person” encompasses freedom from the threat of physical punishment or suffering as well as freedom from such punishment itself. A Convention refugee has the right under s. 55 of the Immigration Act, 1976 not to “… be removed from Canada to a country where his life or freedom would be threatened …”. The denial of such a right amounts to a deprivation of “security of the person” within the meaning of s. 7. Although appellants are not entitled at this stage to assert rights as Convention refugees, having regard to the potential consequences for them of a denial of that status if they are in fact persons with a “well founded fear of persecution”, they are entitled to fundamental justice in the adjudication of their status.

The procedure for determining refugee status claims established in the Immigration Act, 1976 is inconsistent with the requirements of fundamental justice articulated in s. 7. 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. The administrative procedures, found in ss. 45 to 48 of the Immigration Act, 1976, require the Refugee Status Advisory Committee and the Minister to act fairly in carrying out their duties but do not envisage an opportunity for the refugee claimant to be heard other than through his claim and the transcript of his examination under oath. Further, the Act does not envisage the refugee claimant’s being given an opportunity to comment on the advice the Refugee Status Advisory Committee has given the Minister. Under section 71(1) of the Act, the Immigration Appeal Board must reject an application for redetermination unless it is of the opinion that it is more likely than not that the applicant will be able to succeed. An application, therefore, will usually be rejected before the refugee claimant has even had an opportunity to discover the Minister’s case against him in the context of a hearing. Such procedures do not accord the refugee claimant fundamental justice and are incompatible with s. 7 of the Charter. Respondent failed to demonstrate that these procedures constitute a reasonable limit on the appellants’ rights within the meaning of s. 1 of the Charter. Pursuant to s. 52(1) of the Constitution Act, 1982, s. 71(1) of the Immigration Act, 1976 is, to the extent of the inconsistency with s. 7, of no force and effect.