Suresh v. Canada

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 SCR 3, 2002 SCC 1 (CanLII)

http://canlii.ca/t/51wf

• Seminal case on refoulement to torture – see now s. 115 of IRPA
Suresh process allows for refoulement to likely torture in certain circumstances – “Suresh exception”
• Jurisprudence has established test and process:

o See Hasan v Canada (Citizenship and Immigration), 2008 FC 1069 (CanLII), 75 Imm LR (3d) 64, at para. 10, for a description of the Suresh process. Hasan dealt with inadmissibility for serious criminality:
[29] The principles governing the proper approach to be taken by the Minister’s delegate in conducting a danger opinion under paragraph 115(2)(a) of IRPA are well established in the jurisprudence and have been summarized by the Court of Appeal in the following manner:

(1) A protected person or a Convention refugee benefits from the principle of non-refoulement recognized by s.115(1) of IRPA, unless the exception provided by paragraph 115(2)(a) applies;

(2) For paragraph 115(2)(a) to apply, the individual must be inadmissible on grounds of serious criminality (s. 36 of IRPA);

(3) If the individual is inadmissible on such grounds, the delegate must determine whether the person should not be allowed to remain in Canada on the basis that he or she is a danger to the public in Canada;

(4) Once such a determination is made, the delegate must proceed to a s. 7 of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the Charter) analysis. To this end, the delegate must assess whether the individual, if removed to his country of origin, will personally face a risk to life, security or liberty, on a balance of probabilities. This assessment must be made contemporaneously; the Convention refugee or protected person cannot rely on his or her status to trigger the application of s. 7 of the Charter (Suresh, above, at paragraph 127);

(5) Continuing his analysis, the delegate must balance the danger to the public in Canada against the degree of risk, as well as against any other humanitarian and compassionate considerations (Suresh, above, at paragraphs 76-79; Ragupathy, above, at paragraph 19).

o Interestingly, see Galvez Padilla v. Canada (Citizenship and Immigration), 2013 FC 247 (CanLII), http://canlii.ca/t/fwg4f, at paragraphs 37 and subsequent for incorporation of 33(2) of the Refugee Convention into part (3) of the Hasan explanation above. In other words, the crimes or acts underlying the danger opinion (and associated facts/circumstances of those crimes and acts), must rise to the level of a “particularly serious nature” in order to warrant the danger opinion

• Case also held that “patent unreasonableness” standard of review applied to the Minister’s danger opinion as well as the Minister’s assessment of risk

• Section 7 applies to torture inflicted abroad if there is a sufficient causal connection with Canadian government acts. In determining whether this deprivation is in accordance with the principles of fundamental justice, Canada’s interest in combating terrorism must be balanced against the refugee’s interest in not being deported to torture.

• Court reviews five duty of fairness factors from Baker and concludes as follows:

• Section 7 of the Charter does not require the Minister to conduct a full oral hearing or judicial process. However, a refugee facing deportation to torture under s. 53(1)(b) must be informed of the case to be met. Subject to privilege and other valid reasons for reduced disclosure, the material on which the Minister bases her decision must be provided to the refugee. The refugee must be provided with an opportunity to respond in writing to the case presented to the Minister, and to challenge the Minister’s information. The refugee is entitled to present evidence and make submissions on: whether his or her continued presence in Canada will be detrimental to Canada under s. 19 of the Act; the risk of torture upon return; and the value of assurances of non torture by foreign governments. The Minister must provide written reasons for her decision dealing with all relevant issues. These procedural protections apply where the refugee has met the threshold of establishing a prima facie case that there may be a risk of torture upon deportation. The appellant has met this threshold. Since he was denied the required procedural safeguards and the denial cannot be justified under s. 1 of the Charter, the case is remanded to the Minister for reconsideration.