REPORT ON THE SITUATION OF HUMAN RIGHTS OF ASYLUM SEEKERS
WITHIN THE CANADIAN REFUGEE DETERMINATION SYSTEM
I. BACKGROUND
II. INTRODUCTION
III. SOURCES AND SYSTEMS OF PROTECTION
IV. ACCESS TO THE REFUGEE DETERMINATION SYSTEM IN CANADA
V. THE RIGHT TO ASYLUM AND ITS ATTENDANT PROTECTIONS AND TO SEEK JUDICIAL PROTECTION THEREFORE
VI. SPECIFIC RIGHTS AT ISSUE IN EXCLUSION AND REMOVAL PROCEEDINGS
VII. CONCLUSIONS AND RECOMMENDATIONS
1. This report examines a series of issues relating to the situation of human rights of persons subject to the refugee determination system of Canada. That system has been recognized by many sources, including the United Nations High Commissioner for Refugees, as demonstrating a strong commitment to providing durable solutions for refugees in need of protection. Overall, the system is extremely generous in terms of accepting and resettling refugees, and exemplary in many important respects. The present report studies the system in that context, while focusing on a number of very specific issues concerning compliance with Canada’s inter-American human rights obligations, including the ability of asylum seekers who have reached Canada to obtain access to the refugee determination system, the availability and scope of administrative review and judicial protection for persons seeking refugee status whose claims have been rejected, the ability of persons in detention for reasons of public security to obtain judicial review of the legality of that detention, and the availability and scope of judicial protection for the rights of Canadian-born children directly affected by proceedings to remove a non-citizen parent or parents from Canada.
2. Pursuant to its competence as the principal organ of the Organization of American States (hereinafter "OAS") charged with protecting and promoting human rights in the Americas, the Inter-American Commission on Human Rights (hereinafter "Commission" or "IACHR") has been monitoring the human rights situation in Canada since the country became an OAS member State in 1990.1 In accordance with its mandate, which is further defined in its Statute and Regulations, the Commission monitors human rights developments in each member State of the OAS. The Commission periodically deems it useful to report the results of its study of a particular country, formulating the corresponding recommendations designed to assist that State in ensuring the fullest enjoyment of protected rights and liberties by all persons subject to its jurisdiction.
3. This report was prepared on the basis of material gathered by the Commission, in particular during an on-site visit it carried out in Canada in October of 1997 to observe the refugee determination process and the domestic remedies available to refugee claimants. The report refers to information gathered in preparation for, during, and following that visit. Material referred to also includes relevant data provided by governmental, intergovernmental and non-governmental sources collected through the Commission’s normal monitoring procedures, as well as media reports and data gleaned from the processing of individual petitions. Finally, the Commission has taken full account of the observations formulated by the Government of Canada in response to the draft version of the present report.
The On-Site Visit Carried Out in October of 1997
4. In a note of April 25, 1997, the Government of Canada invited the Commission to carry out its first on-site visit to that country for the purpose of examining its refugee determination process and the domestic remedies available to refugee claimants. The State expressed its interest in providing the Commission with a first-hand understanding of Canadian practices concerning refugee determination, in the context of the importance of the issue in international law, and its support for the work of the Commission.
5. The Commission conducted its on-site visit to Canada from October 20 through 22, 1997. The Commission's delegation was composed of John S. Donaldson, Chairman; Carlos Ayala Corao, First Vice-Chairman; Robert K. Goldman, Second Vice-Chairman; and Members Alvaro Tirado Mejía, Claudio Grossman and Oscar Luján Fappiano. The Commission received technical support from Jorge E. Taiana, Executive Secretary, David J. Padilla, Assistant Executive Secretary, and staff attorneys Relinda Eddie and Elizabeth Abi-Mershed. Tania Hernandez and Gabriela Hageman provided administrative support.
6. During its stay in Canada, the Commission met with numerous high-level political, administrative, legislative and judicial authorities, including the Hon. Lloyd Axworthy, Foreign Affairs Minister and the Hon. Lucienne Robillard, Minister of Citizenship and Immigration. Further, the Commission met with Janice Cochrane, Deputy Minister of Citizenship and Immigration, Greg Fyffe, Assistant Deputy Minister of Citizenship and Immigration Policy, and other Government representatives from the Foreign Affairs Ministry, Citizenship and Immigration, and the Immigration and Refugee Board. The Commission also met with Chief Justice Julius Isaac and Mr. Justice William McKeown of the Federal Court of Canada.
7. The Commission held discussions with Mr. Yilma Makonnen, representative of the United Nations High Commissioner for Refugees in Ottawa. It also met with numerous representatives of non-governmental organizations and other sectors of civil society, as well as with members of the bar. The organizations referred to included the Inter-Church Committee for Refugees, Ligue des Droits et Libertes (FIDH), Canadian Council for Refugees, Amnesty International, Canadian Bar Association, Community Coalition on Immigration, Canadian Convention of Ontario and Quebec, Toronto Refugee Affairs Committee, Documenting the Undocumented, Canadian Centre for Victims of Torture, Sanctuary Group, Ontario Coalition Against Poverty, Parkdale Community Legal Services, Tamil Elam Society, African Canadian Legal Clinic, Native African Inmates and Friends Association, Metro Toronto, Chinese and South Asian Legal Clinic, and South Etobicoke Community Legal Services.
8. The Commission traveled to Ottawa, Toronto and Montreal to hold meetings and carry out other activities, which included visiting the Metro Toronto West Detention Centre in Toronto, and the Laval Holding Centre and the Dorval Airport facilities in Montreal.
9. During its visit, the Commission received a great deal of information on issues including, among others, the eligibility requirements and procedures for obtaining refugee status, the grounds and scope of judicial review, family unification, and the detention and exclusion of persons on public danger grounds. This report examines the Canadian refugee determination system in light of the insights and extensive data gathered during that visit. The impressions formed and information received at that time, necessarily preliminary in nature, have been subjected to detailed research and analysis in preparing the present report. Additionally, the Commission’s visit to Canada provided an opportunity to develop further ties with State and non-state actors working on behalf of human rights.
10. The Government of Canada provided the Commission with its full assistance and cooperation during the visit, permitting the latter to fully discharge its mandate. The Commission wishes to once again thank the Government of Canada and its officials, as well as members of non-governmental organizations, civil society and the bar for their cooperation and assistance during the visit.
Processing and Approval of the Report
11. The draft "Report on the Situation of Human Rights of Asylum Seekers within the Canadian Refugee Determination System" was approved by the Commission on November 9, 1999. In accordance with Article 62 of the Commission’s Regulations, this Report was transmitted to the Government of Canada on November 12, 1999, with a request that it submit the observations and comments deemed pertinent within a period of two months.
12. By note of January 12, 2000, the Government of Canada forwarded its observations in response to the Commission’s draft report. In presenting its submission, the Government commended the Commission on the thoroughness and calibre of the draft. Having stated that "Canada is proud of its humanitarian tradition and strives to ensure that those seeking its protection benefit from a fair and transparent process," the Government noted that the Commission’s report would provide a significant contribution by setting forth interpretive principles applicable to all member States of the OAS. The Government provided specific observations concerning: the context of the draft report; three of the broader issues dealt with therein -- namely the independence of decision-makers, remedies, and the security certificate determination process; and certain recommendations formulated by the Commission. The information provided by the Government has been carefully analyzed by the Commission, and, to the extent pertinent, has been reflected in the present final version of the report.
13. The statutory mandate of Canada’s refugee program requires the State to fulfill its "international legal obligations with respect to refugees and uphold its humanitarian tradition with respect to the displaced and the persecuted," as well as "to maintain and protect the health, safety and good order of Canadian society."2 Canada has a rich and lengthy history of serving as a safe haven for refugees fleeing persecution and oppression. The information before the Commission is consistent in indicating that, overall, the Canadian system for processing and resettling refugees is exemplary in many respects.
14. It was in recognition of the national commitment to providing such safe haven that, in 1986, the UNHCR awarded the Canadian people the Nansen Medal for their outstanding efforts on behalf of refugees. Canada has demonstrated its willingness to resettle vulnerable refugees from countries of first asylum as a form of international responsibility and solidarity, and is considered a major resettlement country.3 It also provides strong support for the vital work of the UNHCR. Its efforts have enabled victims of persecution to reestablish their lives protected against the threat of such fundamental violations as illegal and arbitrary detention, torture and death.
15. In its observations on the report, the Government of Canada recalled that, according to a statement issued by the UN High Commissioner for Refugees in March of 1998, "the Canadian system, with its resources, expertise and humanitarian focus, is recognized as a model to be emulated." The Government indicated that, "in 1997, Canada accepted 40% of all finalized claims for Convention Refugee status, arguably one of the most generous levels of acceptance in the world." It was in this context, it noted, that the attributes of its system must be examined. As noted at the outset of this report, the Commission has taken full account of these positive attributes of the system, which have played their due role in its analysis. It must be kept in mind, however, that the specific objective of the Commission’s report is to analyze how certain aspects of Canada’s refugee determination system comport with its inter-American human rights obligations as the basis for framing recommendations designed to assist the State in further enhancing compliance with those obligations.
16. Government figures indicate that Canada accepts between 20,000 and 30,000 Convention refugees and other displaced persons each year. Official projected figures for 1999 indicate that between 22,100 and 29,300 refugees will be accepted. 24,214 refugees became permanent residents of Canada in 1997. Of those refugees who are accepted, approximately half are selected abroad for resettlement in Canada, and the other half are asylum seekers who arrive in the country and have their claims accepted by the Immigration and Refugee Board.4 The present report focuses on the processes applicable to refugee claimants who have arrived in Canada.
17. The Canadian refugee determination system is far from static; in the interim since the Supreme Court of Canada issued its decision in the Singh Case (1985), it has undergone dramatic changes. In that decision, the Court established that the then-existing system, established prior to the adoption of the Canadian Charter, which permitted some claimants to be removed without ever having had an oral hearing before a tribunal, did not comport with the principles of fundamental justice established in the Charter or with the right to a fair hearing under the Canadian Bill of Rights. In particular, the Court established, inter alia, that the right to "life, liberty and security of the person" set forth in section 7 of the Charter, and the right to a fair hearing set forth in section 2(e) of the Bill of Rights required that a refugee claimant be guaranteed at least one oral hearing before an impartial tribunal. Since that decision, the pertinent branches of Government have effectuated changes in the system aimed at bringing it into greater conformity with the Canadian Charter and other applicable obligations while serving the objective of protecting genuine refugees and other relevant national interests. According to the information before the Commission, the authorities responsible for implementing the determination process continue to pursue adjustments aimed at refining and enhancing it.
18. Canada has been in the forefront of a number of positive innovations in the cause of refugee protection. In terms of programmatic advances, it has, for example, established extensive research and documentation facilities for the use of those tasked with making refugee determinations, as well as claimants. These facilities provide information concerning country conditions, relying on reports and other material in the public domain. The Commission also received information during the course of its visit about various training activities designed to improve the quality of IRB decision-making. In terms of policy initiatives, in 1993 the IRB adopted its guidelines for women refugee claimants fearing gender-related persecution, recognizing the specific concerns which apply to such claimants. In 1996, the IRB adopted guidelines on child refugee claimants, reportedly the first such policy initiatives of their kind adopted by any State system.
19. In examining the extensive Canadian system aimed at meeting the needs of persons fleeing persecution, the Commission has received reports on many of its commendable practices. The Commission has also received detailed information concerning aspects of the system characterized as deficient in meeting certain basic safeguards established in the American Declaration of the Rights and Duties of Man and other applicable norms. The present report is not intended to be exhaustive, but to provide an overview of certain aspects of the system so as to analyze specific human rights issues within it. These issues primarily concern (1) the question of access to the refugee determination system for those who have reached Canadian shores, (2) the availability and scope of administrative review and judicial protection open to refused refugee claimants; (3) the ability of persons in detention for reasons of public security to obtain judicial review of the legality of that detention; and (4) the availability and scope of judicial protection for the rights of Canadian-born children directly affected by proceedings to remove a non-citizen parent or parents. These issues are analyzed in relation to the applicable safeguards of the inter-American human rights system, interpreted with reference to other pertinent obligations of the State.5
20. The Commission’s evaluation of these aspects of the refugee system is necessarily grounded in the need to ensure that the fundamental human rights of asylum seekers and refugees are rigorously respected, in particular the right to seek asylum, the prohibition of return to places where they are or may be subject to persecution, and to respect for the full range of their protected civil and political, and economic, social and cultural rights. At the same time, the Commission has taken full account of the right and, moreover, the duty of the State to manage the refugee system so as to deter abuse and safeguard the rights of persons genuinely at risk, as well as to control the ingress and egress of persons across its borders, and to protect related interests such as citizen and national security.
III. SOURCES AND SYSTEMS OF PROTECTION
A. International Instruments
21. Canada is Party to a number of international treaties with special relevance to the human rights of asylum seekers. The primary instruments governing the status and protection of asylum seekers and others who have crossed borders and are unable or unwilling to return to their countries of origin for fear of persecution are the 1951 Convention relating to the Status of Refugees6 (hereinafter "1951 Convention") and the 1967 Protocol relating to the Status of Refugees 7(hereinafter "1967 Protocol"). Canada has been Party to both instruments since 1969.
22. The 1951 Convention was adopted to address refugee situations resulting from World War II, and thus places a heavy emphasis on the rights of non-return and assimilation. The 1967 Protocol expanded the applicability of the 1951 Convention by removing the geographic and temporal restrictions which had limited the application of the latter to persons displaced pursuant to World War II. The 1951 Convention and its Protocol define: who is and is not a refugee, or has ceased to be a refugee; the legal status of a refugee, and his or her rights and duties in the country of refuge; and matters relative to the implementation of the respective instruments.8 Under the regime of the 1951 Convention modified by the 1967 Protocol, a refugee is a person who:
• owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion,
• is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;
• or who, not having a nationality and being outside the country of his former habitual residence as a result of such events is unable or, owing to such fear, is unwilling to return to it.
23. The 1951 Convention defines three basic groups that, while otherwise meeting the foregoing criteria, are excluded from refugee status: persons already subject to UN protection or assistance; persons not considered in need of international protection due to having been accorded treatment equivalent to that of nationals by the country of residence; and persons deemed undeserving of international protection. The latter group includes persons with respect to whom there are "serious reasons for considering" that they have committed "a crime against peace, a war crime, or a crime against humanity," "a serious non-political crime outside the country of refuge prior to admission," or "acts contrary to the purposes and principles of the United Nations."
24. With respect to persons accorded refugee status, the corresponding protections must be maintained unless or until they come within the terms of one of the "cessation clauses." The paramount obligation of States Parties is that of non-return (nonrefoulement) set forth in Article 33(1) of the 1951 Convention:
No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
Article 33(2) specifies that this benefit may not "be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country." As a general matter, Article 3 specifies that the provisions of this regime must be applied without discrimination as to "race, religion or country of origin." Further, judicial protection is to be available in principle through the "free access to the courts of law on the territory of all Contracting States" set forth in Article 16(1) of the 1951 Convention.
25. The obligation of non-return means that any person recognized or seeking recognition as a refugee can invoke this protection to prevent their removal. This necessarily requires that such persons cannot be rejected at the border or expelled without an adequate, individualized examination of their claim.9
26. The specific terms of these instruments are complemented and in certain respects amplified by a range of international human rights instruments, as well as certain provisions of international humanitarian law. Pursuant to this network of protections, States are obliged to refrain from taking measures contrary to the principle of asylum, such as returning or expelling asylum seekers or refugees contrary to international human rights, humanitarian and refugee law.10 Even prior to the 1951 Convention, the Universal Declaration of Human Rights of 1948 11(hereinafter "Universal Declaration") provided in Article 14(1) for the right of every person "to seek and to enjoy in other countries asylum from persecution."
27. Canada is Party to the International Covenant on Civil and Political Rights12 (hereinafter "ICCPR"), its First Optional Protocol, and the International Covenant on Economic, Social and Cultural Rights 13(hereinafter "ICESCR"), which enhance the provisions of the Universal Declaration in important respects. In the refugee context, Article 13 of the ICCPR provides that "[a]n alien lawfully in the territory of a State Party … may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit reasons against and to have his case reviewed by, and be represented … before," the relevant competent authority. Of course the foregoing instruments protect a broad range of basic rights applicable to refugee and non-refugee alike.
28. The International Bill of Human Rights has been further complemented by a range of treaties and other instruments defining and protecting particular rights. Canada is also Party to, inter alia, the Convention on the Prevention and Punishment of Genocide, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention on the Rights of the Child. Other relevant multilateral instruments and United Nations resolutions concerning persons vulnerable due to displacement from their countries of origin include, inter alia, the Statute of the Office of the United Nations High Commissioner for Refugees,14 the Constitution of the International Refugee Organization,15 the Convention relating to the Status of Stateless Persons,16 and the Convention on the Reduction of Statelessness.17
B. Regional Instruments
29. Member States of the OAS such as Canada have undertaken to respect and ensure the fundamental rights of all persons subject to their jurisdiction -- aliens and nationals alike. Respect for human rights is a fundamental principle of the Organization, guiding the actions of each member State. Pursuant to Article 3(l) of the Charter, "[t]he American States proclaim the fundamental rights of the individual without distinction as to race, nationality, creed or sex." The fundamental rights of man are also referred to, inter alia, in the preamble of the Charter, and Articles 17, 45, 47 and 49, as well as in those articles which address the role of the Commission as the principal organ charged with the promotion and protection of human rights in the hemisphere.
30. The member States have given specificity to the rights generally referred to in the Charter.18 Most pertinently for the purposes of the present analysis, the American Declaration of the Rights and Duties of Man (hereinafter "American Declaration") specifies the fundamental rights to which each person is entitled, and which each member State is bound to uphold. While the majority of the OAS member States are also Parties to the American Convention on Human Rights, in the case of those States such as Canada that have yet to ratify that treaty, the OAS Charter and the American Declaration provide the source of legal obligation.19
31. In relation to the refugee context specifically, Article XXVII of the American Declaration provides that:
• [e]very person has the right, in case of pursuit not resulting from ordinary crimes, to seek and receive asylum in foreign territory, in accordance with the laws of each country and with international agreements.
More generally, the Declaration recognizes a broad range of fundamental rights including, inter alia, to:
• life, liberty and security of [the] person (Article I)
• equality before the law and to have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor (Article II)
• the protection of the law against abusive attacks upon his … private and family life (Article V)
• establish a family, the basic element of society, and to receive protection therefor (Article VI)
• measures of special protection in the case of children, and pregnant and nursing women (Article VII)
• to be recognized everywhere as a person having rights and obligations, and
to enjoy basic civil rights (Article XVII)
• to resort to the courts to ensure respect for one’s legal rights; likewise, there should be available a simple brief procedure whereby the courts will protect the person concerned from acts of authority that, to their prejudice, violate any fundamental constitutional rights (Article XVIII)
• to maintain one’s liberty except in the cases and according to the procedures established by pre-existing law; further, any person detained has the right to have the legality of the detention ascertained without delay (Article XXV).20
32. Pursuant to the terms of the Declaration and other applicable obligations of Canada, refugees cannot be returned to a place where they face the risk of persecution involving the violation of their fundamental human rights. Under the Declaration, in particular, the obligation of the State to respect the fundamental rights of the individual, such as to life, liberty and personal integrity, limits its ability to act where this would place the individual at risk. Strict adherence to the principle of non-return is one of the ways that such basic rights are ensured.
C. Domestic Law
33. In accordance with Canadian law, a refugee claimant will receive protection when found to be a "Convention refugee" as defined under Canada’s Immigration Act, which provides the law of general application with respect to admission and the right of residence in the country. Under Section 2(1) and the related schedule of the Immigration Act, the definition of a refugee set forth in the 1951 Convention has been incorporated into domestic legislation, and provides the basis for recognition of refugee status and the subsequent granting of permanent residence. As Canada noted in its observations, it has implemented its obligation of nonrefoulement under the 1951 Convention through the enactment of section 53 of the Immigration Act, which provides that a person recognized as a Convention refugee, or who was excluded from the determination process for having been recognized as a Convention refugee by a third country, "cannot be refouled unless he/she has been certified to be a danger to the public or to the security of Canada or has been convicted of a criminal offence punishable by a sentence of ten years or more."
34. Since 1982, fundamental human rights and freedoms have been set forth in Canada’s Constitution, under Schedule B to the Constitution Act, 1982, entitled Canadian Charter of Rights and Freedoms (hereinafter "Canadian Charter" or "Charter"). The Canadian Charter provides another important source of law in asylum matters, as government legislation, programs and policies must comport with the standards set forth therein.21 As noted above, the Supreme Court of Canada has affirmed that asylum seekers on national territory are entitled to the general protections of the Charter. Under Section 24(1) of the Charter, any person whose rights or freedoms have been infringed may apply to a court to obtain the remedy the latter deems appropriate and just under the circumstances. Further, any law found incompatible with the Charter may be declared by a court to be of no force and effect.
35. Canadian administrative law, which allows for judicial review of decisions taken by persons exercising delegated authority under the Immigration Act and other federal statutes, and the Regulations which implement the Immigration Act, provide further sources of applicable law. Domestic law will be referred to more specifically as necessary in the analysis which follows.
36. In its observations on the report, the Government of Canada noted with respect to the relationship between international guarantees and domestic law that:
In devising its refugee determination system, Canada draws upon the Canadian Charter of Rights and Freedoms (hereinafter: "Charter"), which contains many of the same principles as those in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the American Declaration. …. Canada implements the relevant parts of the American Declaration and the Covenant using the standards and procedures of the Immigration Act and the general legal system of Canada.
37. As set forth in the foregoing review, the human rights of asylum seekers in the Canadian refugee system are subject to norms of protection drawn from international, regional and domestic sources of law. These norms derive from a range of sources including the law of human rights, international refugee law, and international humanitarian law. The preceding review detailed some of the norms most pertinent to the legal analysis which follows.
38. In its observations on the draft report, the Government of Canada indicated that it understood that "many of the comments in the Report are suggestions to improve the Canadian refugee determination system and go beyond Canada’s obligations under the American Declaration." The Government requested "therefore, that comments in the Report relate explicitly to Canada’s compliance with the American Declaration." It may thus be useful to provide a note as to the scope of the provisions referred to in the analysis which follows. As noted above, as a Party to the OAS Charter, Canada has undertaken to respect the fundamental human rights of persons subject to its jurisdiction. For member States, such as Canada, that have yet to ratify the American Convention, the expression of their obligations in the sphere of human rights is set forth in the American Declaration. Accordingly, in preparing the present report, the Commission has interpreted Canada’s obligations in relation to the OAS Charter generally, and the American Declaration more specifically. Pursuant to general principles of interpretation, other relevant rules of international law applicable to Canada must be taken into account in construing its regional human rights obligations.22 Consequently, in referring to other norms applicable to Canada where necessary to interpret its obligations under the OAS Charter and American Declaration, the Commission is acting squarely within its mandate. It should be noted that the Commission’s long standing practice of invoking other human rights instruments when interpreting and applying the American Declaration and Convention has been affirmed by the inter-American Court of Human Rights.23 Further, the international law of human rights is a dynamic body of norms evolving to meet the challenge of ensuring that all persons may fully exercise their fundamental rights and freedoms. In this regard, as the International Covenants elaborate on the basic principles expressed in the Universal Declaration of Human Rights, so too does the American Convention represent, in many instances, an authoritative expression of the fundamental principles set forth in the American Declaration. While the Commission clearly does not apply the American Convention in relation to member States that have yet to ratify that treaty, its provisions may well be relevant in informing an interpretation of the principles of the Declaration.
IV. ACCESS TO THE REFUGEE DETERMINATION SYSTEM IN CANADA
A. Overview of the Application and Determination Process
39. Any person in Canada may submit a Convention refugee claim to the Department of Citizenship and Immigration, usually through a senior immigration officer at a port of entry or a Canada Immigration Center. That Department is responsible for determining if the claim is eligible for referral to the Convention Refugee Determination Division (hereinafter "CRDD" or "Refugee Division") of the Immigration and Refugee Board (hereinafter "IRB") for processing and determination.
40. The IRB is the administrative tribunal established under the Immigration Act with responsibility for, inter alia, adjudicating Convention refugee claims in the first instance. It is independent of the Department of Citizenship and Immigration and the Department of Foreign Affairs, and has three divisions: the CRDD, the Immigration Appeals Division and the Adjudication Division. Members of the CRDD and Immigration Appeal Division are independent decision-makers appointed by the Federal Cabinet, with the assistance of an independent advisory board, for fixed terms which may be renewed.24 They are not permanent civil servants, and are intended to be representative of the population. The staff of the Adjudication Division, on the other hand, are public servants employed under the Public Service Employment Act.25 Under the Act, no fewer than 10% of the members of the Refugee Division and Appeals Division shall be barristers or advocates of at least five years standing at the bar of a province or notaries with as much experience in the Chambre des notaires du Quebec.
41. Under the Immigration Act, the vast majority of claims are deemed eligible for consideration within the IRB’s refugee determination process. Of the thousands of individuals who seek refugee status, the State reports that fewer than 1% are excluded.26 The exclusion criteria set forth in the Act include persons: already recognized as Convention refugees by a country to which they can be returned; already considered as Convention refugees under Canadian law; who arrived from a "prescribed country;"27 who have previously been found ineligible by a senior immigration officer or whose claims were rejected by the IRB (this does not apply to persons who were subsequently out of Canada for 90 days); or who have been "convicted of serious criminal offenses or [found] to be terrorists, subversives, or war criminals, and whom the Minister of Citizenship and Immigration has determined should not be in Canada because they pose a danger to Canadians or the national interest;" and persons against whom an unexecuted removal order is pending.28
42. State officials indicated to the IACHR that these criteria had been established to protect the system, and that approximately two-thirds of the persons thereby excluded fell under the heading of persons whose claims had recently been examined and rejected.
43. Decisions on eligibility are made by senior immigration officers, except in the case of criminality or national security or public order issues.29 In the latter case, where a senior immigration officer has reason to believe that a claimant is inadmissible on such a basis, he or she will prepare a report that is forwarded to the Adjudication Division of the IRB. A member of that Division will then hold an inquiry (adversarial in nature) to hear the claimant and the officer.
44. Where the Adjudicator finds no grounds to believe the officer’s allegations, the claim will be referred to the CRDD for determination. Where the Adjudicator finds the allegations grounded, and the officer provides a Minister’s opinion that the person constitutes a public danger, or that it would be contrary to the public interest to have the claim heard, the claim will not be heard and an order to remove the claimant will be issued. Further, if new information concerning fraud or criminality surfaces pursuant to the referral of a claim to the Refugee Division, the senior immigration officer may revisit his or her determination. If the claimant is found ineligible at that point, the Refugee Division will terminate its examination of the claim. Barring grounds for ineligibility, the senior immigration officer will issue a conditional removal order and refer the claim to the CRDD for processing.30 The claimant is provided with a personal information form, which must be completed and submitted to the CRDD within 28 days.
45. Refugee claims are screened by a Refugee Claim Officer, an employee of the Immigration and Refugee Board, into two basic categories: either a full hearing before two members of the CRDD, although it may be held before one member if the claimant agrees; or expedited processing, which allows the Claim Officer to make a recommendation to a member of the CRDD on the basis of an interview. In certain situations, for example, in the case of unaccompanied minors, the Claim Officer can designate priority processing. Those claimants rejected in the expedited process are rescheduled for a full hearing.
46. The State deems proceedings before the CRDD to be non-adversarial in nature, with no participant having a stake in disproving the claim. Exceptionally, however, the Minister intervenes to oppose a claim. The State informed the Commission that the Minister of Citizenship and Immigration was represented in approximately 2% of the cases heard, usually in relation to an allegation of criminality.
47. The Refugee Division is statutorily required to proceed "as informally and expeditiously as fairness permits." The State further indicated that technical rules of evidence do not apply, and that all means of proof considered trustworthy may be considered.
48. In most cases, the CRDD is represented at the hearing by a Refugee Claim Officer, who is tasked to assist the Refugee Division in its investigation of the claim. Claimants have the right to be represented by an attorney or other counsel. The State indicated to the Commission that the vast majority were in fact represented by lawyers, most through legal aid, with others represented by "immigration consultants." The claimant and the Refugee Claim Officer are both entitled to present evidence, question witnesses and make representations. Further, the Minister always has the right to present evidence, and may question witnesses and make representations when permitted by the Refugee Division.
49. Where a claimant is represented by a lawyer, testimony is elicited through his or her examination, followed by questions from the Claim Officer and panel members. The lawyer then has the opportunity to redirect questions to the claimant. Witnesses and affidavit evidence are reportedly often used. Where a claimant is not represented, the Commission was informed that the presiding officer would meet with the claimant in advance to explain the procedures and his or her rights. Claimants are entitled to an interpreter when requested, provided at State expense. It is provided by statute that the UNHCR may always attend these proceedings as an observer. The proceedings are otherwise in camera, but may be opened to observers upon application.
50. Members often render positive decisions from the bench at the conclusion of the hearing. Subject to certain exceptions, a "split" decision between the members usually operates to the benefit of the claimant. Both the claimant and the Minister receive written notice of the decision. A negative decision must be supported by written reasons. Unsuccessful claimants are usually informed of the decisions and reasons in the months following the hearing. Persons who are denied access to the refugee determination system, as well as those whose claims are rejected within it have the right to request leave to obtain judicial review of the decision by the Federal Court of Canada. The question of the availability and efficacy of judicial review in both cases will be taken up below in section V.
51. Successful claimants must apply for permanent residence ("landing") within 180 days. Immediate family members may be included in that claimant’s application. At the time of the Commission’s on-site visit, such applications were subject to a processing fee of $500 and a landing fee of $975 per adult. If the claimant applying for permanent residence does not have sufficient identity documents, or he/she or a dependent included in the application is inadmissible for criminal or security reasons, landing may not be granted. Reports indicate that the processing of such applications generally takes one to two years, and is often delayed in relation to processing immediate family members abroad.
B. Issues Concerning Access to the Determination Process under the American Declaration and other Applicable Law
52. The process of determining who is or is not a refugee involves making case by case determinations that may affect the liberty, personal integrity, and even the life of the person concerned. As is evident, the factors which lead individuals to flee persecution are often highly specific to their particular situation. At the same time, the basic principles of equal protection and due process reflected in the American Declaration require predictable procedures and consistency in decision-making at each stage of the process.
53. According to the information before the Commission, the vast majority of those who have reached Canada are able to invoke the process to apply for refugee status. In numerical terms, according to the data received, very few applicants are deemed ineligible to initiate that process. During the Commission’s on-site visit, for example, it received information to the effect that, of the thousands of applicants who sought to apply for asylum in 1996, only 112 had been deemed ineligible for a hearing before the CRDD.31 Applicants deemed eligible have access to information about the procedures, which are defined by law, regulations and policy guidelines. Where necessary, they are entitled to interpretation services provided by the State. Applicants have a general right to be represented, in certain circumstances at State expense, as well as to produce evidence and make representations in the decision-making process. The CRDD, for its part, is comprised of members appointed to serve as independent, quasi-judicial decision-makers. The IRB has developed an extensive research and documentation facility concerning applicable law and country conditions for the use of its members as well as applicants. CRDD members are required to provide written reasons for negative determinations. The foregoing factors constitute important guarantees to ensure that applicants may be fairly heard by an independent decision-maker.
54. With respect to the question of access to the refugee determination process, the Commission would like to draw attention to three specific issues, each affecting a relatively small number of applicants, which arise in relation to this process and potentially implicate the rights and safeguards applicable under the American Declaration and other international norms which assist in interpreting and applying the Declaration. The principal issue relates to the procedures by which applicants may be denied eligibility to initiate the process on the basis of exclusionary grounds. A second issue concerns the inability of rejected claimants to seek the reopening of the determination process to present new facts or evidence. The third issue relates to the specific situation of a small sub-category of persons accepted as refugees who lack the required documentation to verify their identity, and the impact of current procedures on their possibility to reunite with immediate family members in Canada.
1. Eligibility Screening on the Grounds of Criminality and National Security and Public Order
55. As noted above, under the Immigration Act, the decision to allow applicants access to the determination process is delegated to senior immigration officers of the CIC and, in cases concerning criminality or security issues, involves members of the Adjudication Division of the IRB. The Commission has received information to the effect that these officials generally discharge their responsibilities courteously and effectively. The UNHRC, for example, periodically monitors the performance of officials at points of entry, and indicated to the Commission that it had been favorably impressed in those observations.32
56. The grounds by which these officials may deem an applicant ineligible to be heard by the CRDD are reviewed in general terms in section IV.A, supra. According to the information before the Commission, most of the applicants deemed ineligible are rejected on the basis that they have already been accorded refugee status by a country to which they may be returned, or have already been determined not to be a Convention refugee and have not been out of the country for more than 90 days.33
57. A smaller number are deemed ineligible on the basis of criminality and/or national security grounds. The Immigration Act provides, inter alia, that persons are ineligible to have their claims determined: if they have committed a crime punishable by a maximum term of imprisonment of ten years or more and the Minister is of the opinion that they constitute a danger to the public in Canada (section 46.01(e)(i)(iii)(v)); if there are reasonable grounds to believe that the person constitutes a danger to the security of Canada and the Minister is of the opinion that it would be contrary to the public interest to have the claim heard (section 46.01(e)(ii)); or if there are reasonable grounds to believe that the person is a war criminal or has committed a crime against humanity, or is or was a senior member of a government that engaged in terrorism, systematic or gross human rights violations or war crimes or crimes against humanity, and the Minister is of the opinion that it would be contrary to the public interest to have the claim heard (section 46.01(e)(ii)). Within the context of the system as a whole, these criteria apply to a very small number of individuals.
58. It is particularly with regard to persons deemed ineligible on the basis of criminality and/or public security or order that the nature of the screening process raises certain concerns under applicable law. Pursuant to Article XXVII of the American Declaration, "[e]very person has the right, in case of pursuit not resulting from ordinary crimes, to seek and receive asylum in foreign territory, in accordance with the laws of each country and with international agreements." In accordance with international and national law, that right is subject to certain limitations, most pertinently in the present case the exclusionary clauses of the 1951 Convention. The Immigration Act in turn sets forth grounds for exclusion similar to those in the 1951 Convention.34
59. According to the 1951 Convention, exclusionary grounds may be applied where it is established that there are "serious reasons for considering" that the person concerned committed one of the acts described. Proof of previous criminal prosecution is not necessarily required.35 At the same time, given the potential consequences the denial of protection may have for the person concerned, "the interpretation of these exclusion clauses must be restrictive."36 Because this determination potentially involves questions of life and death, it must necessarily be made pursuant to certain minimum guarantees.
60. More specifically, while the right to seek asylum contained in Article XXVII implies no guarantee that it will be granted, it necessarily requires that the claimant be heard in presenting the application.37 This right to be heard is linked to the principle of respect for due process which underlies various provisions of the American Declaration, most pertinently Articles II (equal protection), XVII (recognition of juridical personality and civil rights), XVIII (fair trial) and XXVI (due process). While the right to be heard in presenting a claim does not necessarily presuppose the application of the same range of procedural guarantees that would apply, for example, in a criminal court case, it does require that the person concerned be accorded the minimum guarantees necessary to effectively state his or her claim. In this regard, while the determination that a person has previously submitted a claim in Canada that was rejected may in some cases involve no more than a records review, the determination that there are reasonable grounds to presume that a person presents a danger to national security or public order may require the resolution of extremely complex questions of fact and law. As was reported to the Commission during its on site visit, even the determination that a person has already been accorded refugee status in another country may give rise to certain complexities. The Commission received information about the situation of a woman who had fled persecution in a West African country, been granted refugee status in a neighboring country, and then been forced to flee that second country. It was alleged that upon arrival in Canada, she had been excluded from the determination process by virtue of having been recognized as a Convention refugee in another country. Regardless of the merits of the specific situation, it illustrates how a seemingly administrative determination may involve sophisticated interpretations of fact and law.
61. Further, the UNHCR has noted that the exclusion under the 1951 Convention for a serious non-political crime raises problems of definition and application in practice.38 With respect to application in particular, a balance must be struck between the offense presumed to have been committed and the degree of persecution feared. Accordingly, where the claimant demonstrates fear of persecution placing his or her life or personal integrity at risk, the crime would have to be "very grave" indeed to justify exclusion.39 Moreover, in evaluating the nature of the crime, all relevant factors, including mitigating and aggravating factors, are to be taken into account. 40
62. Determinations in such cases are not administrative but substantive in nature, requiring appropriate procedural guarantees. The effective observance of the rights of asylum seekers and the obligation of non-return necessarily presuppose the existence of a procedure to effectively determine who is entitled to be accorded these protections. It is axiomatic that the effective protection of rights requires a procedural framework which offers the necessary minimum guarantees.
63. Accordingly, given the substantive nature of the determination and the potential consequences at issue, the Commission is necessarily concerned that the exclusion provisions are applied at first instance by immigration officials of the Department of Citizenship and Immigration. It may be noted that the asylum seekers have no right to be provided State-appointed counsel at the pre-hearing stage.41 Once the senior immigration officer has made an initial determination that a claim should not be heard for reasons of criminality or national security, the posture of the proceedings appears to be such that the claimant must essentially rebut the particular charge before the Adjudicator.42 The relatively few cases which arise may involve very complex, specialized determinations, and considerations relative to exclusion may be interconnected with the basis of an individual’s refugee claim.
64. The senior immigration officers and members of the Adjudication Division responsible for determining who may obtain access to the refugee determination system do not enjoy the same level of independence, nor are they expected to have the same expertise as members of the CRDD responsible for making refugee determinations. As noted above, CRDD members are part of the IRB, and are appointed as independent decision-makers. Senior immigration officers are employees of the Department of Citizenship and Immigration Canada. Members of the Adjudication Division, while part of the IRB, are also public servants rather than appointed decision-makers. Further, while the CRDD has specialized expertise, procedures and resources for determining refugee claims, the Adjudication Division deals in broader terms and through adversarial procedures with who is admissible or removable from Canada, and with detention reviews.43 Because the mandate of the Adjudication Division is more heavily directed toward control issues and law enforcement, it is inherently less able to properly balance the public and individual interests involved.
65. In its observations, the Government of Canada expressed its view that the decision-makers in question enjoy the fullest independence. It stated that:
…Canada’s immigration legislation is very clear. The discretion of an immigration officer cannot, under any circumstances, be fettered. No body or individual, including the Minister of Citizenship and Immigration, may direct that an immigration officer take a particular decision. Similarly, the decision-making authorities of Adjudicators and Members of the Immigration and Refugee Board (IRB) are unfettered within legislative parameters which comply with the Charter. The independence of decision-makers under Canada’s immigration and refugee determination regime is thus ensured.
In this regard, the Commission notes that the concerns expressed relate not to any implication that the Minister or other entity has directed decisions of the relevant officials, but to the specific questions of procedure referred to above and the fact that officials charged with enforcing immigration law and policy have a purpose and objective distinct from those charged with applying refugee law and policy. The Commission draws the attention of the relevant authorities to these points because of the decisive role eligibility screening may play in the asylum seeker’s quest to be effectively heard.
66. The Government further indicated in its observations on this point that:
The Report expresses concern related to eligibility decisions performed by officials of the Department of Citizenship and Immigration Canada …. Eligibility determinations are assessments of fact; senior immigration officers do not assess the validity of a refugee claim, which is the purview of the CRDD, a body independent of CIC…. With respect to eligibility decisions based on criminality or national security, it must be noted that the SIO who makes a determination can do so only after the adjudicator makes a finding of inadmissibility at the conclusion of a full hearing where there is a right to counsel and the Minister has determined the person to be a danger or that it would be contrary to the national interest to have the claim heard. Therefore there are two separate tests applied by two separate decision makers prior to an SIO finding the person to be ineligible. The Courts have recognized that this process is constitutionally sound under the Charter.
67. The Government referred to the following additional safeguards applicable to the eligibility determination process: "The individual concerned may be interviewed in the presence of counsel; CIC ensures that qualified interpreters are available; SIO’s explain the reasons for and consequences of an ineligibility determination and counsel individuals concerned regarding the possibility of seeking judicial review of the decision." Accordingly, the Government concluded, "Canada is confident that senior immigration officers have the ability to make fair eligibility decisions; clarification from the Commission is required should this practice contravene provisions of the American Declaration."
68. The right to seek asylum necessarily requires that asylum seekers have the opportunity to effectively state their claim before a fully competent decision-maker. While applicable international law leaves the decision as to which procedural means are necessary to accomplish this to the national authorities, the Commission shares the view of the UNHCR that eligibility determinations are best made by those tasked with interpreting and applying refugee law and policy.44 This view is held by a number of individuals and entities dealing with refugee issues, including Amnesty International.45 The eligibility determination may well have a decisive impact on the situation of the person concerned. As stated above, the relatively few cases of rejection that arise may involve complex, specialized determinations that are not just purely factual or administrative, and considerations relative to exclusion may well be interconnected to the basis of the individual’s claim for asylum.
69. When dealing with the much lower threshold of screening out claims which are "manifestly unfounded" – i.e. clearly fraudulent or not related to the criteria of the 1951 Convention – the UNHCR has indicated that, in all cases, a potential applicant should:
• be given a complete interview, preferably by an official of the authority competent to determine refugee status;
• "the manifestly unfounded or abusive character of an application should be established by the authority normally competent to determine refugee status;"
• an unsuccessful applicant should be entitled to some form of review before rejection at the frontier or removal.46
70. The Commission considers that, taking into account the fundamental right of the individual to seek asylum from persecution and to be heard in making that presentation through an effective procedure -- rights recognized in the American Declaration -- as well as the legitimate right and duty of the State to uphold citizen security and public order, issues of eligibility to enter the determination process should be placed within the competence of the CRDD. Given the interests at stake, these eligibility determinations would necessarily involve a different, more expedited procedure than the refugee determination process. While the denial of eligibility to enter the determination process involves a small number of individuals, the nature of the rights potentially at issue – for example, to life and to be free from torture – requires the strictest adherence to all applicable safeguards. Those safeguards include the right to have one’s eligibility to enter the process decided by a competent, independent and impartial decision-maker, through a process which is fair and transparent. The status of refugee is one which derives from the circumstances of the person; it is recognized by the State rather than conferred by it. The purpose of the applicable procedures is to ensure that it is recognized in every case where that is justified.
2. The Absence of Means to Reopen the Convention Refugee Determination Process to Present New Information
71. As noted, the information provided to the Commission indicated that hearings before the CRDD are generally characterized by the application of fair procedural rules, the right of claimants to be represented by counsel, and the requirement that written reasons be issued for any denial, all vital safeguards for the rights of the claimant. However, a particular concern identified by practitioners, claimants, and even certain State representatives is that, once the decision on an application has been taken by the CRDD, the process generally cannot be reopened to introduce newly available material facts or evidence. Case law indicates that, while the CRDD retains a limited "implicit, discretionary and residual" competence under common law to reopen the process in the event that procedural unfairness seriously undermined the determination hearing,47 it lacks the authority to reopen a hearing on the basis of newly available information such as changed country conditions.48 In its observations, the Government indicated that, "[w]hile the CRDD lacks the authority to reopen a hearing on the basis of newly-available information," persons whose claims have been rejected "also have access to administrative remedies where this information may be presented."
72. One of the highly positive attributes of the determination process is that it attempts to respond to the reality of the asylum seeker’s often precarious situation. This is reflected, for example, in the relative informality and non-adversarial nature of the hearing process. Victims of persecution who have fled their countries are often at an extreme disadvantage when it comes to producing evidence, and sometimes even in explaining the treatment to which they have been subjected. The experience of human rights organs, including this Commission, as well as various studies indicate, for example, that persons who have been subjected to physical and/or psychological torture may be unable to clearly articulate or to provide details of their situation due to the physiological and psychological damage sustained.49 In those cases where asylum seekers have been forced to take flight precipitously, or have been seriously scarred by trauma, important evidence may well become available subsequent to the determination of their claim. Further, given the sensitive and often unpredictable conditions from which asylum seekers are forced to flee, conditions in the country and the situation of the individual vis-à-vis those circumstances may undergo a sudden and profound change after the refugee hearing. The Commission has been consistently informed that the CRDD lacks jurisdiction to reconsider such cases.
73. Because the determination process is not effectively susceptible to reopening to present new facts or evidence, this potential safeguard is not available to a refused refugee claimant. The limitation that the process is not subject to reopening is further compounded by the discretionary nature of access to judicial review in the refugee context. The issues of access to and the scope of judicial and administrative remedies, including the relevant observations of the Government, will be dealt with below. The Commission considers that allowing the determination process before the CRDD to be reopened on the basis of new facts or evidence deemed to meet a reasonable threshold of relevance would not only be consistent with the spirit of the existing process, but would provide an important safeguard in identifying genuine refugees and ensuring their right to non-return.
3. The Situation of Persons Recognized as Convention Refugees but Lacking Sufficient Documentation of their Identity for Landing
74. The Commission has received extensive information about the overall generosity of the Canadian refugee process. Among other significant benefits, persons accorded status as Convention refugees are permitted to apply for permanent residence in Canada, and are further permitted to include immediate family members in those applications. It must be noted that, in granting permanent residence, Canada exceeds its obligations of protection under the 1951 Convention.
75. The situation is somewhat distinct for persons who have been determined to be Convention refugees, but who lack satisfactory identity documents.50 They may apply to become permanent residents as part of the Undocumented Convention Refugee in Canada Class, but will not be granted that status for five years. Since 1997, for example, Convention refugees from Somalia and Afghanistan who do not have satisfactory identity documents due to sustained situations of conflict and the lack of a central government in those countries have been permitted to apply for landing as part of that class. Such persons may include immediate family members in Canada in their applications for landing, but may only seek to reunite with immediate family members abroad through a sponsorship application once they have been landed.
76. Because such persons will not be subject to removal (barring grounds for the cessation of that status), and are thereby effectively protected from persecution, their situation of risk is not at issue. However, the 5 year waiting period effectively precludes hopes of prompt reunion in Canada with immediate family members abroad. Further, the refugee may have difficulty in obtaining Convention travel documents during that period. This means that spouses and dependent children may be separated from one and other during the time, perhaps substantial, that the refugee is in flight, for the five years subsequent to his or her recognition as a Convention refugee, and for the time required thereafter to file and process the sponsorship application (with respect to which similar problems with lack of documentation of family members may cause further delay).
77. The American Declaration establishes that "[e]very person has the right to establish a family, the basic element of society, and to receive protection therefore." This principle is reflected in a range of other instruments, including the Universal Declaration of Human Rights and the ICCPR.51 For its part, the Final Act of the Conference which adopted the 1951 Convention recommended that governments take the measures necessary for the protection of the refugee’s family, and especially to ensure family unity. This principle is reflected in general terms in the policies and practices of the majority of States, including those of Canada.
78. The situation of persons within the Undocumented Refugee in Canada class raises serious concern where the five-year waiting period may cause the extended separation of the refugee from his or her spouse and children. The longer that separation continues, the greater the resulting hardship for all members of the family, and the more difficult the eventual process of reintegration. The Commission considers that, in such cases, the adoption of measures to enable family reunification to take place on a much prompter basis would be consistent with the generous overall commitment of Canada to family reunification, as well as with the right to family life under the American Declaration.
79. The Commission is pleased to report that, in its observations, the State indicated that "[t]he Minister of Citizenship and Immigration has announced that the waiting period for the UCRCC will be reduced from five years to three …. hasten[ing] both stability and family reunification" for members of this class. The Commission recognizes and values this measure as a positive contribution to the protection of the right to family life.
V. THE RIGHT TO ASYLUM AND ITS ATTENDANT PROTECTIONS AND TO SEEK JUDICIAL PROTECTION THEREFORE
80. In the Canadian refugee context, it is not only the courts that adjudicate the protection of individual rights. As indicated above, it is the relevant branches of the IRB that are authorized to decide the right of non-return. In this regard, while the Canadian system provides for no right to appeal on the merits of a negative refugee status determination decision, it does provide refused claimants with administrative and judicial procedures to seek certain forms of review. What follows is an overview of the applicable procedures to seek review, and an analysis of the concerns raised by the lack of a merits-based review of the underlying claim and existing restrictions on access to judicial review on questions of law.
A. The Procedures Available to a Refused Refugee Claimant to seek Judicial Review
81. Within the legal system, rejected claimants have two principal judicial remedies through which to seek protection for the alleged infringement of a right in the determination process.52 The claimant may apply for leave to obtain judicial review of the CRDD’s decision in the case of an error in law or violation of procedural fairness, or alternatively, may challenge legislation or state action on constitutional grounds.53 It should be noted that the Minister may also apply for judicial review of a CRDD decision. As will be described, if leave is granted, these procedures provide for review on specific legal grounds, not for an appeal on the merits of the initial decision itself.
82. Once the CRDD has rejected a refugee claim and provided the applicant with written reasons, the claimant has 15 days to apply for leave to the Federal Court Trial Division.54 As the State noted in its observations, an application for leave to appeal such a rejection by the CRDD operates to stay the execution of a removal order until the matter has been determined. Submissions in support must be filed within 30 days thereafter. The parties receive each other’s pleadings and affidavit material, and have the opportunity to cross examine affiants. To obtain leave, the claimant must show a "serious issue to be tried" or that there is an "arguable case."55 The decision is usually made on the basis of the written submissions from the claimant and the Minister. No reasons need be given for the denial of leave, and that decision is not subject to appeal.
83. Federal Court jurisdiction over cases that are accepted extends to consideration of questions of law and of the jurisdiction of the decision-maker, as well as to allegations that findings of fact were capricious, that the decision-maker committed an error of law, or that a principle of natural justice was transgressed. In its observations, the State characterized that "[t]he Court will examine whether the case was decided fairly and legally; however, where fundamental rights are involved, or allegedly threatened, the [C]ourt will examine the merits of those issues." Because the process is a review rather than an appeal, it does not contemplate the submission of new evidence. Quashed CRDD decisions are returned to that body for hearing before the same or a different panel. During the Commission’s on-site visit, State representatives indicated that leave was granted for approximately 20% of the applications filed. Non-state sources indicated that the rate seemed to be slightly lower. According to IRB data for the years 1994 – 1997, 1% or fewer decisions were set aside.56 In its observations, the State indicated that "[a]pproximately 75% of all persons who receive a negative CRDD decision seek leave for judicial review of the decision, representing one third of all finalized claims. Of these, about 10% are granted leave; 40% of decisions reviewed are set aside by the Federal Court."
84. Appeal from a negative Trial Division ruling to the Federal Court of Appeal requires that the judge of first instance certify that the case involves "a serious question of general importance."57 The trial judge’s denial of certification is not subject to appeal. At the time of the Commission’s on-site visit, State representatives indicated that of the approximately 250 Trial Division determinations made annually, approximately 30 would be certified for appeal. It was further explained that this procedure applies to all cases arising in the immigration context, and was implemented as a method of docket control given the vast number of cases.
85. Leave to appeal a negative appellate decision may be sought before the Supreme Court of Canada, where it may be granted on the basis of the "importance of the legal issue," the "importance of an issue of mixed law and fact" or the "significance" of the matter.
86. Independently of an application to seek leave to appeal the CRDD decision, a claimant may challenge the constitutionality of legislation or state action before either the Federal Court or the provincial superior courts, which exercise concurrent jurisdiction in such matters. There is no leave requirement to gain access to this remedy. At the same time, it should be noted that, according to information proffered by the State, under most circumstances in the immigration context an applicant is required to raise Charter issues before the relevant administrative tribunal within the respective proceeding. In the present context, for example, the IRB is competent to address Charter issues. If unsuccessful, the claimant would then be able seek leave for judicial review of that decision before the Federal Court.
B. Procedures to Seek Administrative Review
87. In addition to the foregoing judicial remedies are the two non-judicial review procedures open to refused refugee claimants. First, a claimant who was unsuccessful before the IRB and/or who was unable to obtain leave or whose claim was rejected by the Federal Court, may apply for post-determination review by an immigration official to evaluate whether removal would result in compelling personal risk.58 As the State noted in its observations, this review assesses "risk to life, inhumane treatment, or extreme sanctions," and may provide protection to persons who are not covered by the 1951 Convention and Protocol.
88. The application must be filed within 15 days of the negative decision, and supporting information must be presented within 30 days thereafter.59 The review by the Post Claim Determination Officer is based on the application and written submissions -- there is no hearing. In its observations, the State pointed out that such officers "are specially trained to assess risk and [] have access to information on [the] human rights situation around the world, such as Amnesty International Reports."60 The risk faced by the unsuccessful claimant must be "objectively identifiable" and involve a threat to his or her life, the possibility of excessive penalties (disproportionate to the offense), or the likelihood of inhumane treatment. The claimant must also show that he or she would be affected by the risk throughout the country of return. State officials indicated to the Commission during its on-site visit that, as a policy matter, the Department of Citizenship and Immigration will delay removal until after an application for PDRCC review has been decided.
89. A positive decision will enable the person to apply for permanent residence, subject to certain conditions. According to State statistics for 1993 to early 1997, 26,134 cases had been reviewed, and 878, or 3.35%, had been accepted. According to figures published by the nongovernmental Canadian Council for Refugees, between July 1, 1997 and April 30, 1998, 4478 PDRCC decisions were made. Of those, 1006 (22%) were deemed ineligible, 3364 (75%) were deemed eligible but not at risk, and 108 (2.4%) were deemed at risk.61 A rejected claimant may seek leave to obtain judicial review of the negative decision.
90. Second, at any time during the refugee determination process, a claimant may apply to the Minister of Immigration for admission to Canada on the basis of humanitarian and compassionate considerations. This process essentially allows for an exemption from the general requirement that immigrants apply for and obtain visas abroad. There are no limitations on the situations that are eligible. The immigration officer making the determination must consider all the information submitted and exercises discretion in making the decision. In its observations, the State specified that the officer "has unfettered discretion to use his/her judgment in assigning relative weight to the facts of the case when deciding whether the application warrants approval or refusal." There is no right to be heard. The factors considered are whether the applicant, if removed, would suffer "unusual, undeserved or disproportionate" hardship in comparison with the general population of the home country. The State further indicated in its observations that factors considered may include, but are not limited to "family ties; presence of a spouse in Canada; overall integration within Canadian society; and personalized risk should the individual be returned to his/her country of origin." The application fee is $500 for an adult, and there is no limit on the number of times the process can be invoked.
91. The filing of an application under this procedure does not operate to stay removal (although removal proceedings may be stayed by order of the Federal Court). Should the claimant be removed subsequent to filing and later receive a positive decision, he or she would be permitted to return to Canada. State representatives indicated that the most common grounds for acceptance were marriage to a Canadian resident, or children or grandchildren in Canada. State data at the time of the Commission’s on-site visit indicated that the rate of acceptance for applications by a spouse or child of a Canadian resident was 94%, of parents or grandparents 85%, and of other categories 54%. Leave may be sought to obtain judicial review of a negative decision by the Federal Court. The PDRCC and humanitarian and compassionate review processes can be distinguished on the basis of the factors they apply to: the former looks to the question of risk to the person concerned in their home country, while the latter looks largely to their links to Canada.
C. The Availability and Efficacy of these Procedures in Light of the American Declaration and other Applicable Law
1. The Availability of Judicial Protection
92. Under the current system, applicants must meet the threshold for leave in order to have access to judicial review. State representatives generally characterize the leave requirement as setting a very low threshold. They consider that the threshold is easily met in a genuine case, and cite supporting jurisprudence. In Bains v. M.E.I (1990), for example, the Federal Court Appellate Division indicated that "[b]earing in mind that the only consideration is whether a fairly arguable case has been disclosed, the requirement for leave is in reality the other side of the coin of the traditional jurisdiction to summarily terminate proceedings that disclose no reasonably arguable case."62 In the view of the State, the fact that the Federal Court grants leave for approximately 20% of the applications filed shows that IRB decision-making is highly effective.
93. In its observations, the State reiterated that "[t]he leave mechanism is a way to ensure that the cases which come before the Court meet a minimum threshold." The State characterized the case law as indicating that "if there appears to be any possibility of an applicant succeeding at the hearing application, the applicant should be given the benefit of the doubt and granted leave." It noted that the Court must grant leave if the applicant meets the legal test, and that the leave requirement had "been challenged and found not to violate the Charter."
94. Advocates, observers, and even some officials expressed to the Commission their strong concern that the standard for obtaining judicial review is applied in a way which unreasonably restricts claimants’ access to judicial protection. Such persons characterize the leave requirement as highly restricted in practice, indicating that the "arguable case" standard is interpreted more strictly than its wording suggests. While the Government indicated in its observations that this was not the case, a number of sources, including several State functionaries as well as practitioners and others working within the system, characterized the leave requirement as providing a form of docket control. A highly reliable source indicated that, because the Federal Court is flooded with applications from asylum seekers, it tends to grant leave in "only the most meritorious" cases. Because no reasons need be given for denying leave, there is no check on consistency or means of ensuring accountability. These sources reported that judges interpret and apply the applicable standard differently, resulting in disparate treatment for similarly situated persons.63 Further, obtaining leave and pursuing judicial review are costly and complex procedures. According to these sources, the extremely low rate of decisions set aside through judicial review is the result of this unduly restricted access, and fosters a disregard for accountability within the IRB with respect to its decision-making.
95. The American Declaration of the Rights and Duties of Man provides in Article XVIII that every person has the right to "resort to the courts to ensure respect for [] legal rights," and to have access to a "simple, brief procedure whereby the courts" will protect him or her "from acts of authority that … violate any fundamental constitutional rights." The right of access is a necessary aspect of the right to "resort to the courts" set forth in Article XVIII.64 The right of access to judicial protection to ensure respect for a legal right requires available and effective recourse for the violation of a right protected under the Declaration or the Constitution of the country concerned.
96. Further, pursuant to Article II of the Declaration, "[a]ll persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor." One of the Declaration’s objectives, in fact, was to assure in principle "the equal protection of the law to nationals and aliens alike in respect to the rights set forth."65 The notion of equality before the law set forth in the Declaration relates to the application of substantive rights and to the protection to be given to them in the case of acts by the State or others.66
97. The Canadian Charter provides a similar guarantee in section 24(1), which establishes that:
Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
The Singh decision of the Supreme Court of Canada, referred to in section II, supra, clarified that refugee claimants present in Canada are entitled to Charter protection. It further set forth that the procedure for determining refugee status must be consistent with the precepts of fundamental justice, and that claimants must have the opportunity to state their case and to know the standards they must meet. Under both inter-American and domestic norms, asylum seekers must be accorded the same right of access to judicial protection as other persons.
98. The effect of this right is to require the provision of a domestic remedy which enables the relevant judicial authority to deal with the substance of the complaint and grant appropriate relief where required. In addition to the explicit rights to judicial protection and equal protection of the law, implementation of the overarching objective of the Declaration – ensuring the effectiveness of the fundamental rights and freedoms set forth – necessarily requires that judicial and other mechanisms are in place to provide recourses and remedies at the national level.
99. While applicants do not necessarily have an unlimited right of access to judicial remedies, controls on that right may not be unreasonable or such as to deprive the right of its essence.67 It is a general principle that restrictions on fundamental rights, where permissible, must be required to maintain public order and applied without discrimination.68 Expressed more specifically, they must further a legitimate objective, and the means must be reasonable and proportionate to the end sought.69
100. With respect to the foregoing criteria, the Commission finds several reasons for concern with respect to the leave requirement regime of the Canadian refugee system. First, even a brief review of applicable jurisprudence indicates that the leave standard is subject to varying interpretations by judges. Given that the decision rests with a single judge, that rejections need not be reasoned, and that there is no appeal of such rejections, applicants may have difficulty ascertaining the standard to be met, and there appear to be no effective checks to ensure consistency and equality of access to applicants.70
101. Second, while questions of the volume of claims and the need to preserve judicial resources for important questions may present a reasonable and justified aim, this must be balanced against the nature of the individual rights at issue – which may involve the protection of life, liberty and physical integrity. While the right of appeal in administrative areas of a technical nature may legitimately be subject to certain restrictions, the interests at stake in the refugee context may involve the security and life of the person concerned. In this regard, the Commission understands that, under other federal statutes, administrative mechanisms may provide for various levels of review, as well as judicial review, including on the merits, as of right.71
102. Third, applicants may well require the services of an attorney to adequately pursue their rights in this process, and reports indicate that legal aid is increasingly restricted for such actions, and not available in certain provinces.72
103. As noted, the right of an applicant to have access to judicial protection,
including on appeal, may be subject to certain limitations, particularly at
a second or third level of review. In this regard, the Commission notes several
specific concerns in relation to the process for seeking leave to challenge
a negative decision of the Federal Court Trial Division in terms of its capacity
to redress the substance of individual claims. Because leave requires that the
judge who denied the claim certify a question for appeal, he or she becomes
the gatekeeper for further review. Convincing such a decision-maker to essentially
indicate that he or she has possibly erred in applying the law may present an
inherent difficulty. Further, the nature of the grounds for certification, namely
that a serious question of general interest is raised, indicates that challenges
based primarily on factual or credibility determinations are unlikely to succeed.
As noted above, such determinations are an essential aspect of many, if not
most refugee claims, and the resulting CRDD decision-making. Moreover, the Commission
has received information to the effect that, once a question has been certified,
cases raising substantially the same issue may not be certified because the
matter of general interest is already pending review. This level of review provides
an important means of safeguarding the coherence and interests of the system,
but appears to play a more limited role vis-a-vis the particular interests of
the individual concerned.
2. The Significance of the Absence of a Review on the Merits under the Declaration and other Applicable Law
104. As noted above, the effective protection of substantive rights requires an adequate procedural framework for their implementation. The right particularly at issue in the refugee context is to seek asylum with the corresponding guarantees, as set forth in Article XXVII of the Declaration. Those guarantees are themselves a means to safeguard the fundamental rights to, inter alia, liberty, integrity and life recognized in Article I of the Declaration. A procedural framework that is adequate to make those rights effective is one which provides mechanisms which effectively establish whether a person meets the applicable standard of risk. In the refugee context, this requires procedures effective in establishing the relevant facts, and interpreting and applying the relevant norms. Ascertaining the specific facts of an individual’s circumstances within the context of a country situation which may well be complicated, unclear and unstable poses particular challenges, involving crucial content-based assessments concerning the credibility, reliability and relevance of documentary and testimonial evidence presented.
105. The Commission shares the concerns expressed by many actors within the system, including several State officials, that it provides no mechanism either for reopening the determination process to present newly available evidence, or to seek a review on the merits of the assessments made by the decision-maker. The IRB itself has recognized that there are identifiable disparities in operational processes and outcomes in cases from the same source countries among its regional offices that are not explained by the inherent variation in decisions by independent decision-makers.73 Consistency in decision-making is one important indicator that similarly situated persons are receiving equal treatment in the disposition of their rights.
106. From its review of the process, the Commission finds that while the judicial and administrative review mechanisms available may provide important protections for some claimants, they do not bridge the gap created by the absence of a merits review. The objectives of the extant review procedures are simply too distinct from those of the refugee determination context. While the determination of refugee status generally depends heavily on findings of fact, the extant judicial review procedures are limited to questions of jurisdiction and law. The objective of existing judicial oversight is not to review the content of the decisions, but to ensure that the way in which the decisions were taken was fair and legal.74 As State officials explained to the Commission during its on-site visit, only "if the decision-maker has made a patently unreasonable decision (and therefore acted outside of his/her jurisdiction)," will a court remand a decision to the CRDD in relation to its content. In this regard, it must further be noted that, because the determination process cannot be reopened to present newly available information after the rejection of a claim, and because the scope of judicial review is limited to questions of jurisdiction and law, the judicial scrutiny of a rejected claimant’s case on review may be incomplete if all the facts relevant to risk are not before the decision-maker.
107. Similarly, the administrative review procedures pursue objectives distinct from the original determination process. The PDRCC is available only to those granted eligibility to proceed with an application, and addresses limited categories of particularized risk in accordance with criteria somewhat distinct from that of the 1951 Convention. While the humanitarian and compassionate review process is open to all applicants, the application fee may preclude some from invoking it, and there is no guarantee that it will be decided prior to removal. Additionally, while the criteria which may be considered are quite broad, that process is, by nature, highly discretionary. Both procedures are applied by immigration officials, who are part of the immigration control and enforcement mechanism of the State, rather than independent decision-makers mandated to determine refugee status. Because both procedures are administrative and highly discretionary in nature, the possibility of obtaining access to judicial review presents very limited means for redress.
108. In summary, these procedures play a useful and important role in reducing the risk of return, but they do not provide a substitute for a review on the merits. The UNHCR has strongly urged all States to ensure that refused refugee claimants have access to a merits-based review:
If the applicant is not recognized, he should be given a reasonable time to appeal for a formal reconsideration of the decision, either to the same or to a different authority, whether administrative or judicial, according to the prevailing system. The applicant should .… also be permitted to remain in the country while an appeal to a higher administrative authority or to the courts is pending.75
The UNHCR has indicated to Canadian legislators that, while the system offers some important safeguards, "it would be advantageous and consistent with Canada’s humanitarian tradition equally to afford a clear opportunity for the review of decisions on their merits in the post-claim review process."76 The nature of such reconsideration must be broad enough to ensure and give effect to the rights concerned, and would necessarily include the authority to review the decision, including its content.
109. Where the facts of an individual’s situation are in dispute, the effective procedural framework should provide for their review. Given that even the best decision-makers may err in passing judgment, and given the potential risk to life which may result from such an error, an appeal on the merits of a negative determination constitutes a necessary element of international protection. The requirement of an adequate procedural framework for the protection of the fundamental rights at stake in the refugee context is not satisfied by a system which provides no possibility of a review on the merits of the original decision, and which further provides for judicial review subject to substantively limited leave provisions.
110. Many refugee advocates, both within and outside of the Canadian Government, have recommended the establishment of a merits review within the CRDD as the best means of ensuring fair and informed decision-making which is also efficient and cost-effective.77 The Commission recommends that further consideration be given to (1) establishing the procedures necessary to enable refused refugee claimants to present newly available information relevant to their situation of risk, and (2) to ensure that refused claimants have access to a review on the merits of the original decision, whether through administrative or judicial channels.
111. With respect to the question of reopening, the Commission considers that it is essential that rejected claimants be able to petition the CRDD for the reopening of the determination process in light of, in particular, material new information with respect to their individual circumstances, and/or about country conditions relevant to their situation of risk. Because the considerations involved relate to the risk of persecution and the potential for fundamental rights violations in the home country, this possibility should apply, in principle, up to the point of exhaustion of all recourses and removal from Canada.
112. With respect to the question of access to a merits-based review, the Commission considers that this would require the establishment of an independent decision-making authority with access to the expertise and resources to make informed decisions. This could, for example, be handled through the establishment of a unit within the IRB which would be separate from the CRDD. Such claimants must in any case have effective access to judicial protection, the precise scope of which would depend on the nature of the merits review established.
113. In presenting its observations in response to the Commission’s analysis, the Government indicated that the Commission’s concerns regarding the absence of a merits-based review by right and the leave and certification provisions "appear to go beyond the scope of the American Declaration; legal rights and fundamental constitutional rights are not defined in Article XVII and do not refer to an appeal." The Government recalled that all persons in Canada, regardless of status, have access to the courts, and that "[a]s recognized by the Commission, applicants do not necessarily have an unlimited right of access to judicial remedies."
114. The State noted that "[i]nternational tribunals have held that Canadian judicial and administrative remedies such as PDRCC and H&C are viable domestic remedies that must be exhausted by a complainant for his/her complaint to be admissible."78 The State indicated that the PDRCC process had been deemed a "viable and effective domestic remedy" by both the UN Committee Against Torture79 and the UN Human Rights Committee.80 It further noted that an assessment based on humanitarian and compassionate factors had been found to be an effective remedy by the Committee Against Torture because "the Appeals Board in that case had the competence to grant the authors a residence permit."81 "It is Canada’s position that the H&C process is also an effective remedy as permanent residence can result, and risk assessments may be performed as part of the decision-making process." Further, it expressed concern "that the Commission’s commentary in this regard will lead complainants to conclude that they do not have to exhaust domestic remedies prior to presenting their communications to the Commission."
115. With respect to the content of the American Declaration, it should be noted that it, like many human rights instruments, was never intended to provide lengthy or detailed provisions, but to enunciate fundamental principles.82 Those principles must necessarily be interpreted and applied in accordance with the overarching principle of respect for human rights set forth in the OAS Charter, in a manner which ensures the efficacy of the rights concerned. Where access to an appeal is necessary for an individual to effectively enjoy his or her right to be fairly heard, that access is necessarily comprehended in the fundamental principle of the right to a fair trial.83 In this regard, the Commission refers generally to paragraphs 95-112, supra. As noted above, existing judicial and administrative review mechanisms may provide important protections for some claimants, but do not bridge the gap resulting from the absence of a merits-based review.84
116. It should further be noted that the present report represents the Commission’s first comprehensive analysis of the Canadian refugee determination system; the procedures applicable to such a report are distinct from those relating to an individual case. The report as such does not affect or otherwise dispose of issues relating to the admissibility of individual complaints, which are exclusively governed by the Commission’s Statute, Regulations and its decisional law thereunder. The decision as to whether an individual case is admissible -- which includes assessing whether the requirement that the petitioner invoke and exhaust domestic remedies has been satisfied -- is taken in relation to the facts of that case as set forth by the parties.85 Which specific remedies, if any, an individual petitioner is required to exhaust is a question of law and fact decided with reference to the applicable circumstances. Again, as noted and reiterated above, existing judicial and administrative mechanisms may provide important protections for some claimants;86 and in fact, have done so for many. To the extent that such remedies represent available and effective recourse under the applicable circumstances, they must be invoked and exhausted. Where a claimant can show that such remedies do not offer available and effective relief in the particular case, the requirement that they be exhausted may be excused. The present report has the objective of assisting Canada in enhancing its observance of the principles of the American Declaration to the fullest extent; its contents do not dispose of the question of admissibility in any particular individual case.
3. The Scope of the Refugee Determination and Review Process with Respect to the Right to be Free from Torture
117. As demonstrated in sections IV.1 and .2, supra, the questions of merits review, other forms of post-determination review, and access to judicial protection are linked in terms of the role each may play in the protection of the rights of refugee claimants. The above analysis demonstrates that the system as presently configured is characterized by certain very specific gaps in protection. As noted, these gaps affect a relatively small number of people in a system which operates to the benefit of the great majority of those it serves. However, given the interests at stake, these gaps require prompt and serious attention. A particular illustration of the way in which these gaps can result in a valid individual claim for protection being rejected arises in relation to the scheme designed to respond to allegations of torture pursuant to Canada’s obligations under the American Declaration, bearing in mind its obligations under the UN Convention Against Torture.
118. Within the inter-American human rights system, Article I of the American Declaration sets forth the right of every person to "life, liberty and personal security." An essential aspect of the right to personal security is the absolute prohibition of torture, a peremptory norm of international law creating obligations erga omnes. Canada further defined and complemented its obligations in this regard when it became a party to the UN Convention Against Torture. Article 3 of that Convention provides:
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.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.87
119. The fact that the scope of the protections set forth in Article 3 of the UN Convention Against Torture may apply more broadly than those of the 1951 Convention – i.e., they may apply to persons who do not meet the Convention refugee definition or, conversely, meet the grounds for exclusion – poses a special challenge within the refugee determination system. The difficulties inherent in sustaining claims concerning torture, referred to above in section IV.B.2, pose a further challenge.
120. In this regard, as described above, the Canadian refugee system provides a form of post-determination review to identify persons who, having been rejected as failing to meet the standard to be deemed a Convention refugee, may nonetheless be exposed to compelling personal risk if removed from Canada. In its observations, the Government indicated that "[f]or those persons deemed not to be Convention refugees, PDRCC and H&C are ways in which Canada has been found to meet its obligations under the Convention Against Torture." It further indicated that "the Federal Court has the power to issue stays of removal and will frequently do so where the issue of torture is raised." "The issue of removal to torture has been raised judicially a number of times and persons who face torture (as defined by the Convention Against Torture) have not been removed from Canada as a result."
121. However, the coverage of this post-determination review does not extend to all who may fall within the terms of Article 3. First, the PDRCC process may not be invoked by persons subject to exclusion from the refugee determination process. Second, while Article 3 of the Convention Against Torture applies where there are "substantial grounds for believing that [the person] would be in danger of being subjected to torture," the PDRCC regulations apply to individuals who "would be subjected to an objectively identifiable risk, which risk would apply in every part of the country and would not be faced generally by other individuals in or from that country" – a higher standard to meet. Additional limitations of the PDRCC process and the humanitarian and compassionate review process are referred to above in section V.C.2.
122. Notwithstanding the combination of mechanisms potentially available, there is thus a gap in the protections available to a refused refugee claimant alleging that he or she will be subjected to torture if removed. To recap, the gap is not fully resolved by the post-determination processes. Nor is there a possibility of reopening the determination procedure to introduce newly available information, or to seek a reconsideration of the merits of the refugee claim.88 Because judicial review requires the granting of leave, which occurs with respect to approximately 10% of the applications filed by persons whose claims have been rejected by the CRDD, it may not be available to protect the rights of the person claiming a risk of torture. Fundamental rights such as the right to be free from torture must always be subject to effective guarantees, including the availability of judicial protection. These protections are required, not discretionary. Accordingly, given that the combination of procedures available does not ensure full compliance with Canada’s obligations to prevent and protect against torture, resolution of the concerns highlighted with respect to the respective roles of these mechanisms and judicial review must take into account the need to close the gap with respect to torture claims.
4. Access to Legal Representation through Legal Aid
123. The right to counsel is protected generally under the Canadian Charter, and where necessary, is often made available through legal aid schemes. The provision of legal aid is the responsibility of the provinces. While the Commission is informed by the State that close to 99% of the work of the Refugee Division is centered in the provinces of British Columbia, Ontario and Quebec, which have legal aid programs, certain other provinces do not, or have programs that are extremely limited in scope. The Commission was informed during its on-site visit, for example, that New Brunswick, Nova Scotia and Prince Edward Island do not provide legal aid services for refugee claimants.89 Further, the various aid programs prioritize the types of claims for which assistance may be provided.90 Refugee advocates have indicated that the costly and complex nature of the various mechanisms involved in the refugee determination process and administrative and judicial review, coupled with limitations on access to legal aid constitute a serious limitation on the effective access of claimants to applicable remedies.
124. In its observations, the State indicated that the Immigration Act provides that a person claiming refugee status may be represented by counsel at his or her own expense. Moreover, "[t]he overwhelming majority of refugee claimants in Canada have access to legal aid." The State reported that "[f]ully 90% of referrals to the Refugee Division are centered in BC, Quebec and Ontario, all of which provide this service."
125. Given the nature of the refugee determination process and the interests at stake for the claimant, it is obviously in his or her interest to be represented by competent legal counsel. Further, the applicable procedures may be quite complex, particularly for the vast majority of claimants unversed in the applicable law. According to the information before the Commission, the majority of such claimants lack the financial means to hire a private attorney, and turn instead to legal aid. Advocates who provided the Commission with information indicated that the legal aid regime as applied to the refugee context was uneven, at best. They indicated that in some provinces, legal aid regimes cover refugee hearings, while others did not. They further indicated that in some provinces the rates paid to legal aid attorneys were so low that few lawyers were willing or able to accept such work.
126. The question of when legal aid must be provided has been addressed in the inter-American human rights system in some detail in relation to the requirement that petitioners have exhausted available domestic remedies before filing a complaint with the IACHR. In this connection, and in relation to the right of access to judicial protection under Article XVIII, a general standard for determining when legal aid may be necessary is when it is required in order to effectively vindicate a fundamental protected right under the American Declaration or the Constitution or laws of the country concerned. This flows in large measure from the principle that rights must be implemented in ways that give them proper effect.91 It also flows from the right to equal protection of and before the law.
127. In deciding whether legal representation is required, regard may be had to the circumstances of the particular case – its significance, legal character, and context in the particular legal system.92 Whether the internal system of the country concerned provides for legal aid as a matter of domestic law is not dispositive; rather, the analysis turns on whether legal representation is necessary for the recourse to be exercised effectively. In sum, member States have an obligation to make the right to judicial protection effective. Distinctions in the availability or coverage of legal aid provided by the provinces which have the effect of depriving claimants requiring such services to ensure their access to judicial protection of fundamental rights necessary implicate the responsibility of the State.
VI. SPECIFIC RIGHTS AT ISSUE IN EXCLUSION AND REMOVAL PROCEEDINGS
A. The Right to Liberty under the American Declaration
128. Within the immigration context, Canadian law provides two principle grounds justifying detention: that the person concerned is likely to pose a danger to the public; or that he or she is unlikely to appear for examination, inquiry or removal. This may apply to a variety of persons, including asylum seekers and others arriving in Canada who appear inadmissible, or who are in Canada and are removable, such as persons out of status of landed immigrants convicted of certain kinds of crimes. Such detention is considered exceptional and preventive rather than punitive in nature. The following sections provide an overview of the applicable procedures, and an analysis of several specific concerns relating to the standards for imposing detention, and the related questions of detention review and the permissible potential length of detention.
1. Detention Procedures Generally
129. The process is generally initiated with the arrest of the person concerned by the Department of Citizenship and Immigration, which has the jurisdiction to release or continue the detention for the first 48 hours. Pursuant to the Immigration Act, the person must be presented before an Adjudicator within 48 hours for a detention review. The Adjudicator will first hear a representative of Immigration and Citizenship and then the detainee as to the reasons for and against detention, respectively, and if release should be allowed and under what conditions. It is an adversarial proceeding. The detainee may be represented by counsel, and an interpreter is provided when required. The adjudicator is required to consider alternatives to detention. At the conclusion of the hearing, the Adjudicator will issue a decision, with reasons, as to whether the detainee should be released, released subject to conditions (such as bond), or remain in detention. In the latter case, another review will be held in seven days, and at 30 day intervals thereafter. The State noted in its observations that persons detained in Canada have a right to access the courts to seek review of the legality of their detention. It indicated that, "[a]lthough the Federal Court does not have the precise power of the traditional habeas corpus, it can effectively examine the validity of a detention and quash the decision."
130. Every hearing is required to be de novo, and the adjudicator must base the decision on his or her own evaluation of the facts as set forth by the parties during the hearing. C&I is the detaining authority, and must satisfy the adjudicator at each hearing that the continuation of detention is justified and appropriate. The standard to be met is the balance of probabilities.
131. According to figures published by the non-governmental Canadian Council for Refugees, 6,400 people were detained during the financial year 1996-97, and 7,080 in 1997-98.93 The Adjudication Division reported concluding 8770 detention reviews for the period 1997-98.94 In its observations, the State noted that, at any given time, between 350 and 400 persons are detained. Depending on the length of their detention, each may be subject to one or more detention reviews.
132. The Act provides no limit on the length of detention thereunder. Case law and the Guidelines on Detention issued by the Chairperson of the IRB95 reflect that there are nonetheless implicit restrictions on the power of detention, particularly with respect to sections 7 and 12 of the Canadian Charter. The standard is that detention may continue for "a reasonable length of time, given all the circumstances of the case."96 In the case of persons detained pending removal, the Guidelines indicate that "it is relevant to consider whether the removal will be executed in the foreseeable future."97
133. Persons detained under the act may be held in detention centers, or in jails, when there is no detention center available or where the detainee is deemed to pose a danger. A landed immigrant who is convicted of a criminal offense and retained for immigration purposes after completing his or her sentence will generally continue to be held in the same facility.
2. Access to Review of the Legality of Detention and Length of Detention under the American Declaration
134. In examining the Canadian refugee system, the Commission has considered a number of issues relating to the detention of asylum seekers and refused refugee claimants scheduled for removal. This examination included visits to the Toronto West Detention Center and the Laval Holding Centre during the Commission’s on-site visit to obtain first-hand information about conditions. While some refugee advocates and others involved in the system expressed concerns about the adequacy of conditions in certain facilities, those the Commission was able to visit appeared to meet the generally applicable minimum standards for detention. In particular, the immigration detention centers appeared to comport with reasonable standards of cleanliness, organization and safety.
135. With respect to the overall question of detention reviews, the Commission has taken due note of the issuance of the "Guidelines on Detention" by the Chairperson of the IRB in early 1998. These guidelines were issued to provide further specificity to Immigration Adjudicators in making decisions on detention and conducting detention reviews.98 The Commission considers that they provide an important means of sponsoring informed decision-making, and enhancing uniformity in the application of relevant standards.
136. With respect to the framework for imposing preventive detention in the immigration context, on the basis of all the information it has received, the Commission continues to be concerned by two principal issues: (1) the formulation of the "danger to the public" standard for detention; and (2) the sufficiency of norms relative to prolonged preventive detention.
137. Article I of the American Declaration sets forth that every human being has the right to liberty. Article XXV provides that no person may be deprived of that right, except in accordance with the norms and procedures established by pre-existing law. The Article specifies, in pertinent part, that any person deprived of liberty "has the right to have the legality of his detention ascertained without delay by a court … [and] the right to humane treatment during the time he is in custody." Article XXV thus specifies three fundamental requirements: first, preventive detention, for any reason of public security, must be based on the grounds and procedures set forth in law; second, it may not be arbitrary; and third, supervisory judicial control must be available without delay.
138. With respect to the "public danger" criterion for detention, the Commission notes that the detention guidelines issued by the Chairperson of the IRB acknowledge that "[n]either the Immigration Act nor the case law clearly defines the phrase `danger to the public.’99 Evidently this expression relates to the protection of the health, safety and good order of Canadian society."100 The guidelines and other sources indicate that detention under this criterion is generally based on criminal grounds. As a policy matter, the guidelines cite case law suggesting that: the danger to the public may be present or future; inferences may be drawn from the subject’s criminal record; a conviction, standing alone, is not enough to support a finding; the danger "must also refer to the possibility that a person who has committed a serious crime in the past may seriously thought to be a potential re-offender."101
139. In this regard, while the guidelines provide an important tool for informing adjudicators of the extant standards they are responsible for applying, their scope is limited to reflecting certain contours of existing case law. The guidelines do not have the capacity to address the lack of precision in the legislative formulation of the public danger standard. Accordingly, it remains unclear whether this standard, even with the clarifications of the guidelines, provides the precision necessary to ensure consistency in decision-making, and to enable a detainee to effectively defend his or her right to liberty thereunder.102 The Article XXV requirement that any deprivation of liberty comport with preexisting norms of law and procedure implies that those norms be sufficiently "accessible and precise" so as to "avoid all risk of arbitrariness."103 While this issue affects a relatively small proportion of asylum seekers -- the State indicated in its observations that the "vast majority of detention cases based on `danger to the public’ under the Immigration Act do not apply to individuals seeking refugee status" – the fundamental rights of those concerned may be substantially affected.
140. With respect to the second issue, concerning prolonged preventive detention, Canadian law provides no limit on the length of preventive detention in the immigration context. As a policy matter, the guidelines indicate that, pursuant to the Immigration Act and the Charter, continued detention is permissible "for a reasonable length of time, given all the circumstances of the case," and must be in accordance with the principles of fundamental justice under section 7 of the Charter.104 Indefinite detention, for example, is noted as coming into conflict with section 7. This is a particularly important clarification. The adjudicator is to consider how long the person has been in detention, why a pending removal order has not been executed, and how much longer he or she may be expected to be in detention before the removal order would be executed. The adjudicator is also to take into account that there is a stronger case to maintain detention for persons deemed a danger to the public, and that unexplained delay or failure to act should count against the offending party.105
141. During its on-site visit, the Commission was provided with some limited data concerning long-term preventive detention in the immediately preceding period of 1996. According to figures the non-governmental Inter-Church Committee for Refugees obtained through the Department of Citizenship and Immigration Canada, 40 persons had been in detention for over one year, while the number detained in excess of 6 months was 82. The State, for its part, informed the Commission that an average of 60% of persons detained for more than 30 days were held pending removal. Officials indicated that removal was sometimes delayed due to a judicial stay or other legal impediment, and some