Report on the Situation of Human Rights of Asylum Seekers Within the Canadian Refugee Determination System
|Publisher||Inter-American Commission on Human Rights (IACHR)|
|Citation / Document Symbol||Inter-Am. C.H.R., OEA/Ser.L/V/II.106, Doc. 40 rev. (2000)|
|Cite as||Inter-American Commission on Human Rights (IACHR), Report on the Situation of Human Rights of Asylum Seekers Within the Canadian Refugee Determination System, 2000, Inter-Am. C.H.R., OEA/Ser.L/V/II.106, Doc. 40 rev. (2000), available at: http://www.refworld.org/docid/50ceedc72.html [accessed 28 December 2014]|
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.
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.
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.
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.
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 sometimes presented special difficulties and delay in the case of persons without sufficient identity documents, or with respect to whom the Government was engaged in complex negotiations with the country of return. A number of the individuals interviewed in the two detention facilities visited complained of the harsh conditions of what they characterized as "indefinite detention." Some of these individuals were detained under the security certification process referred to below, others on a ground related to criminality, while the Government was unable to obtain the necessary travel documents for others.
142. The Commission observes as a threshold principle that the longer detention as a preventive measure continues, the greater the resulting burden on the rights of the person deprived of liberty. Carrying out periodic detention reviews thus provides an important safeguard in principle, and the guidelines indicate that some account is to be taken of the time already spent in detention. Further, the guidelines specify that reasons are to be given showing the nature of the hearing, the criteria applied, a summary and analysis of the facts, and the decision.106 However, the Commission has received fairly consistent indications that, with the passage of time, these reviews may become rather pro forma in nature. While the guidelines indicate that both Citizenship and Immigration and the person concerned must make a showing as to their position, information before the Commission is fairly consistent in indicating that the burden of proof begins to rest progressively with the detainee, who must adduce new facts to justify the consideration of a change in the circumstances. Where the burden on the rights of the detainee becomes too great, the continuation of preventive detention may no longer be justified as a security measure, and may effectively be converted into a penalty imposed absent due process.
3. The Security Certificate Regime: Access to Review of the Legality of Detention, and the Length of Detention under the American Declaration
143. Sections 39-40 of the Immigration Act provide a distinct regime for persons deemed inadmissible for posing a risk to Canadian security. These provisions are aimed at ensuring the expeditious removal from Canada of persons deemed to meet specified grounds. The provisions include certain criminality grounds, and apply to persons whom the Minister and Solicitor General determine are inadmissible for having engaged in terrorism or for belonging or having belonged to a terrorist organization. With respect to the latter category, the test is membership or association, and does not necessarily involve the knowledge of activities of the organization or the individual conduct of the person concerned within the organization.
144. With respect to the regime under section 40.1 specifically, which applies to non-permanent residents, once a certificate is issued, the person concerned must be detained. The certificate is referred to the Federal Court for a determination as to whether it should be quashed or upheld. The judge has seven days to examine the evidence in favor of the certificate in camera. The subject of the certificate must then be provided with a statement summarizing the information, sufficient to "enable the person to be reasonably informed of the circumstances giving rise to the issue of the certificate." Where disclosure of information referred to would be injurious to national security or personal safety, that information will not be made known to the subject of the certificate. That person will then have a reasonable opportunity to be heard before the judge decides on the basis of the information available whether to uphold the certificate. This information may include evidence that the judge deems fit to consider, even if it would not be admissible in a court of law. There is no specific time limit for the decision, and the determination is not subject to appeal or review by any court.
145. Such a person may be ordered released by the Minister, prior or subsequent to the decision of the judge, only for the purpose of effectuating his or her removal. Where the certificate is upheld, if the person has not been removed within 120 days after the issuance of the removal order, he or she may apply to the Chief Justice of the Federal Court, who may order release on the basis that the person will not be removed within a reasonable time and that release would not be injurious to national security or public safety. The judge may examine sensitive evidence in camera in making this evaluation, and a summary of that evidence will be given to the detainee who has an opportunity to be heard. Again, the judge may accept the evidence he or she deems fit, which need not meet the standards for admission in a court of law.
146. According to the information before the Commission, the security certification process under section 40.1 raises three principle concerns implicating the provisions of the American Declaration and other applicable norms: (1) the compatibility of the provisions concerning access to review of the legality of detention, (2) the apparent difficulties presented for a person deemed to be a security risk to seek protection for his or her right to non-return due to a risk to life or physical integrity, and (3), the compatibility of the procedures which allow the judge reviewing the certificate to consider evidence which may be withheld from the person concerned on the basis of the need to protect national security.
147. With respect to the first issue, Article XXV of the American Declaration provides that any person detained has the right to have the legality of the detention ascertained without delay. The requirement that detention not be left to the sole discretion of the State agents responsible for carrying it out is so fundamental that it cannot be overlooked in any context. Supervisory control over detention is an essential safeguard, because it provides effective assurance that the detainee is not exclusively at the mercy of the detaining authority.107 This is an essential rationale of the right to habeas corpus, a protection which is not susceptible to abrogation.108 Under normal circumstances, review of the legality of detention must be carried out without delay, which generally means as soon as practicable.109 This essential safeguard is recognized in a range of international instruments, including principal human rights treaties, as well as the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.110
148. While the certification process provides for judicial review of the grounds for issuing the certificate, it provides no recourse to seek review of the legality of the related detention. Under the terms of the Immigration Act, detention is mandatory until the certificate is quashed. The only exception prior to that point is release for the purpose of removal. If the certificate is not quashed, the terms of the Act expressly exclude the possibility of access to the writ of habeas corpus for 120 days after a removal order is issued.
149. As a matter of domestic law, the certification process and related detention provisions have been upheld as constitutional on the basis that, while the process "has the immediate unfortunate effect of leading to the arrest and detention of the person concerned, a fate normally reserved for criminals," its primary purpose is "providing preventive protection to the Canadian public." Further, the Court found that preventive detention under those terms is neither arbitrary nor excessive, given that: the issuance of the certificate requires the opinion of two Ministers based on security information, a determination subject to obligatory judicial review "within an acceptably short period of time;" that it allows for the detainee to end the detention at any time by agreeing to leave the country; and that the provisions at issue deal with "individuals somehow associated with terrorism."111 In its observations, the State indicated that "[i]n enacting section 40.1 of the Immigration Act, Parliament developed a procedure in which it attempted to strike a balance between the competing interests of the individual and the state." The State reiterated that the process of issuing a certificate "has various safeguards in place to ensure that individuals concerned are treated fairly . includ[ing] the test for  issuance : the reasoned opinion of two Ministers ; the obligatory judicial scrutiny of the reasonableness of those opinions within an acceptably short period of time; and the type of prohibited class of individuals."
150. While the certificate review process provides an important judicial check on State action, it does not provide the simple, prompt access to judicial oversight with respect to the decision to detain required by Article XXV of the Declaration.112 Where the decision to detain is taken by an administrative authority, "there is no doubt" that the person concerned must have recourse to challenge that decision before a court.113 Further, this must be available without delay. In the first place, the 120 day waiting period does not meet this standard. In the second place, it only begins to run after the certificate is upheld and a removal order is issued. In the relatively few cases with respect to which the Commission has received information, the certificate review proceedings have taken months, even years to complete. Nor would the possibility of filing of an action seeking declaratory relief under the Charter before the Federal Court offer the kind of simple, prompt control contemplated by the protection of habeas corpus.114 In principle, the terms of Article XXV, concerning the right to detention review without delay, particularly when read in conjunction with those of Article XVIII, concerning the right to a simple, brief procedure for the protection of fundamental rights, require the existence of a procedure such as habeas corpus or its equivalent which does not then require the institution of separate legal proceedings such as an application for judicial review.115
151. With respect to the duration of such proceedings, the State indicated in its observations that "[g]enerally speaking this process has been completed in most cases within four months of the filing of the certificate." "Some lengthy delays have occurred when these provisions were still new and when the constitutionality was being tested." The Commission notes in this regard that it has received information through its petition process about several specific cases of delay. In one, the individual concerned was detained for approximately a year and a half, and in another for two and half years.116 It may further be noted that the subject of the Ahani case, cited by the State in its observations (see para. 156 infra), has been detained approximately seven years. Because detention is mandatory until the certificate is quashed, the information proffered by the State means that individuals concerned may be detained for four months pending the judicial decision on the certificate with no possibility of seeking judicial review of the legality of detention. Moreover, in cases where the certificate is upheld, the law expressly precludes an application for habeas corpus to obtain such review for an additional 120 days after the issuance of a removal order. The Commission observes in this regard that a delay of either four or eight months in affording access to judicial review of the legality of detention greatly exceeds the requirement under Article XXV of the Declaration that such access be accorded promptly.
152. Moreover, while the need to protect the rights of others may provide a basis for the limitation of certain rights under the Declaration, any such restriction must always flow from and be governed by law. This Commission and other international human rights bodies have consistently recognized the right and duty of the State to fight terrorism and protect citizen security, and the special problems which arise in this context.117 At the same time, even under extreme circumstances, effective judicial control of State action remains a fundamental prerequisite for ensuring the rule of law. Accordingly, this Commission has consistently found that resort to restrictive measures under the American Declaration may not be such as to leave "the rights of the individual without legal protection."118 "[C]ertain fundamental rights may never be suspended, as is the case, among others, of the right to life, the right to personal safety, and the right to due process.... under no circumstances may governments employ ... the denial of certain minimum conditions of justice as the means to restore public order."119 While international human rights law allows for some balancing between public security and individual liberty interests, this equilibrium does not permit that control over a detention rest exclusively with the agents charged with effectuating it.
153. Further, the assessment of the need to detain must in principle be based on the circumstances pertaining to the individual concerned. The particular question under study, the danger of an individual to national security, is a characteristic susceptible to change over time, indicating that new issues as to the lawfulness of detention may arise, which must be subject to the possibility of review at reasonable intervals.120
154. The Commission notes that, pursuant to these provisions, a person recognized as a Convention refugee can be divested of that status and removed from Canada to a seemingly uncertain future. Persons with respect to whom security certificates are issued are excluded from the refugee determination process and the post-claim risk review process. For persons who have been subject to certain forms of persecution, such as torture, return to their home country would place them at a risk which is impermissible under international law. As noted above, the prohibition of torture as a norm of jus cogens -- as codified in the American Declaration generally, and Article 3 of the UN Convention against Torture in the context of expulsion -- applies beyond the terms of the 1951 Convention. The fact that a person is suspected of or deemed to have some relation to terrorism does not modify the obligation of the State to refrain from return where substantial grounds of a real risk of inhuman treatment are at issue.121 Return is also highly problematic as a practical matter in the case of stateless persons, or persons with respect to whom it is not possible to obtain travel documents. The information before the Commission is unclear in indicating what other effective options are available to such persons, or that there are adequate safeguards in place to ensure that expulsion does not place their lives or physical integrity at risk.
155. Finally, the Commission has carefully reviewed the provisions stipulating the bases according to which information may be withheld from the person concerned during the certificate review process. Pursuant to section 40.1(4)(b), the designated judge may:
provide the person named with a statement summarizing such information available to the designated judge as will enable the person to be reasonably informed of the circumstances giving rise to the issue of the certificate, having regard to whether, in the opinion of the designated judge the information should not be disclosed on the grounds that the disclosure would be injurious to national security or to the safety of persons.
Pursuant to section 40.1(5.1), where the State applies, ex parte and in camera, for the admission of information obtained in confidence from a foreign government or institution, or from an international organization of states or an institution thereof, the judge shall review it, and, if deemed relevant, may consider it, even though he or she determines that it should not be disclosed to the person concerned in order to protect national security of the safety of persons.
156. With respect to the process generally, the State recalled in its observations that the certification process had been upheld by the Federal Court of Appeal in the Ahani case as consistent with the constitution and the requirements of fundamental justice. With respect to the issue of evidence and due process, the State indicated that:
The Supreme Court in Chiarelli ruled that an appropriate balance had been struck between the protection of information and due process in the security certificate determination process. While it may be argued that due process would entitle a person to always receive all the information in the hands of the state, the Court held that this must be balanced by the State's right to protect itself from terrorists and other serious criminals.
The State also noted that reference to its procedures for judicial control of the use of confidential material had been cited with approval by the European Court of Human Rights in the case of Chahal v. U.K.: "The Court attaches significance to the fact that, as the intervenors pointed out , in Canada a more effective form of judicial control has been developed in cases of this type. This example illustrates that there are techniques which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice." Finally, the State observed that the Federal Court had quashed security certificates in given cases, citing the decision issued recently in Jaballah, thereby demonstrating that "the judiciary ensures that fundamental justice is upheld" in these types of cases.
157. The Commission observes that the provisions of section 40.1 raise certain due process concerns under, inter alia, Articles XVII and XVIII of the American Declaration. First and foremost, where information considered within the process is withheld, the person concerned cannot be fully apprised of the case he or she is to meet. The legislation provides that the information at issue must be deemed relevant by the judge; however, its terms do not require an evaluation of the credibility or veracity of the original source, and the person concerned is unable to challenge the source or to rebut the content of that information.122 Although the certificate review process is not criminal in nature, the non-disclosure of such information may well prejudice the rights of the person concerned, giving rise to serious consequences. Once a certificate is upheld by a judge, it constitutes conclusive evidence that the person named falls within an inadmissible class, and mandates that he or she be detained until removed from Canada. While the IACHR recognizes that the State is necessarily concerned with the need to protect its ability to collect sensitive information, it is a fundamental principal of due process that the parties engaged in the judicial determination of rights and duties must enjoy equality of arms. A person named in a certificate who is the subject of secret evidence will not enjoy a full opportunity to be heard with minimum guarantees, the essence of the right to due process. Both citizens and non-citizens must be accorded due process in the determination of basic rights, in this instance, the right to seek asylum and the right to personal liberty, in particular.
B. Respect for Family Life and the Rights of the Child under the American Declaration
158. Since the Commission has been monitoring the situation of human rights in Canada, it has received extensive and detailed information concerning the rights at issue and the procedures available in cases involving the removal of alien parents, including but not limited to refused refugee claimants, of Canadian-born children.123 The core concern reflected in the vast majority of the submissions received prior to mid-1999 was that the Canadian judicial system provided no mechanism to ensure that the rights and interests of such children were taken into account in removal proceedings which would obviously have a dramatic impact on their welfare and development. Judicial authorities confirmed to the Commission during its on-site visit that the jurisprudence indicated that the decision to remove was deemed to relate solely to the situation of the parent or parents, who had the responsibility to make the decision as to what course of action would be in the best interests of their Canadian citizen child. It was up to the parent or parents to elect whether to take the child with them to their country of origin or place him or her in foster care in Canada, potentially involving a choice between the love and care of a parent in circumstances of poverty and hardship, or the health, education and welfare benefits available to citizens resident in Canada absent parental support.
159. Given Canada's obligations under the American Declaration, interpreted with reference to the Convention on the Rights of the Child, the absence of any procedural opportunity for the best interests of the child to be considered in proceedings involving the removal of a parent or parents raised serious concerns. Accordingly, the Commission views the recent decision in Baker v. The Minister of Citizenship and Immigration124 as a welcome and positive step toward compliance with these obligations.
160. In that case, the Supreme Court held that, while provisions such as those of the Convention on the Rights of the Child had not been implemented by Parliament (and were thus not directly applicable under Canadian law), because the legislature is presumed to respect principles of customary and conventional international law, interpretations reflecting the values of human rights law are preferred.125 International human rights law provides "a critical influence on the interpretation of the scope of the rights contained in the [Canadian] Charter."126 The Court indicated that the Convention on the Rights of the Child and other applicable provisions place special importance on the protection of children and their interests, and "help show the values that are central in determining whether" the immigration officer's decision was a reasonable exercise of discretion under the humanitarian and compassionate review process.127 The Court also looked to the objectives of the Immigration Act and the applicable guidelines to support the finding that the interests of affected children should be taken into account in such proceedings. Partly on the basis of a reasonable apprehension of bias on the part of the immigration officer who had rejected the humanitarian application, and partly on the basis of his failure to take the interests of the affected children into account, the Court ruled that the appeal should be allowed, and the matter returned for re-determination by a different officer.
161. In its observations, the State indicated that the Supreme Court's decision in the Baker case had "affirmed the importance of considering family-related interests in H&C applications." It noted that, in reaching this decision, the Court had looked to: the applicable legislative provisions; the purposes of the Immigration Act, particularly with respect to family reunification; international law standards such as the Convention on the Rights of the Child; and the applicable guidelines for decision-makers. "In ruling the Supreme Court indicated that the guidelines in place for decision-makers at that time provided sufficient guidance to officers on the importance of taking family interests into account." Finally, the State noted that those guidelines had been replaced just prior to the issuance of the Baker decision, with additional emphasis placed on family-related interests and applicable international norms.
162. The provisions of the American Declaration, pursuant to ratification of the OAS Charter, the UN Convention on the Rights of the Child and other human rights instruments applicable to Canada, constitute freely undertaken obligations requiring appropriate measures to ensure their implementation. In this regard, the Commission finds it pertinent to offer a few observations about what is required in terms of the rights of the child and to family life. Within the inter-American system, Article V of the American Declaration recognizes that every person has the right to protection against abusive attacks on his or her family life. Pursuant to Article VI of the Declaration, every person has the right to establish a family, the basic element of society, and to receive protection therefore. These provisions thus prohibit arbitrary or illegal interference with family life.
163. Article VII of the American Declaration provides that minor children are entitled to measures of special protection by virtue of their status. Within the regional human rights system, as within the universal system, the rights of children have been accorded special priority and protection, because the youth of our hemisphere represent our future possibility to create "a system of personal liberty and social justice based on respect for the essential rights of man." It is for this reason that Article VII establishes special measures of protection for children corresponding to their vulnerability as minors, and the implementation of this obligation must be accorded special importance. Respect for this duty of special protection necessarily requires that the interests of the child be taken into account in State decision-making which affects him or her, and that such decisions look to the protection of the best interests of the child.
164. In accordance with the principle of effectiveness, the implementation of Article VII may require the adoption of specific measures aimed at the protection of children.128 The recognition of a duty of special protection for children is based on the need to protect the full range of their interests -- in the social, economic, civil and political spheres. As the UN Human Rights Committee has indicated with respect to the duty of States Parties under the ICCPR, the duty to take special measures is most fundamentally aimed at ensuring the rights set forth in the instrument itself, but may also include economic, social and cultural measures as required.129
165. The Convention on the Rights of the Child provides more specific guidance to be taken into account in interpreting and applying the Declaration, indicating in Article 3 that the best interests of the child shall be a primary consideration in all State-sponsored action involving children. Article 9 indicates that measures involving the separation of parent and child must be extremely exceptional, involving situations of abuse or neglect, or parents living in different locations where a decision as to the child's place of residence must be made, and must be made pursuant to judicial review. Article 12 further provides that, where a child is capable of forming his or her own views, those should be given due weight, in particular in any judicial proceedings affecting him or her. In conducting its review of Canada's initial report under that Convention, the UN Committee on the Rights of the Child cautioned that the best interests of the child are not always taken into account in national legislation and policy-making including within the administrative processes concerning refugees and immigrants. The Committee concluded that Canadian legislation and jurisprudence did not reflect respect for that essential principle. Further, the Committee expressly recommended that measures be taken to avoid expulsions causing the separation of families.130
166. In view of the foregoing principles, it may be observed that, while the state undoubtedly has the right and duty to maintain public order through the control of entry, residence and expulsion of removable aliens, that right must be balanced against the harm that may result to the rights of the individuals concerned in the particular case. In this regard, the Commission has also received submissions alleging that the right to family life is not sufficiently taken into account in removal proceedings, particularly where the removal of long term permanent residents is at issue. Given the nature of Articles V, VI and VII of the American Declaration, interpreted in relation to Canada's obligations under the Convention on the Rights of the Child, where decision-making involves the potential separation of a family, the resulting interference with family life may only be justified where necessary to meet a pressing need to protect public order, and where the means are proportional to that end. The application of these criteria by various human rights supervisory bodies indicates that this balancing must be made on a case by case basis, and that the reasons justifying interference with family life must be very serious indeed.131
167. In concluding its review of selected issues concerning the Canadian refugee and determination system, the Commission wishes to acknowledge the human and material resources devoted by the State to making this large scale, complex operation function, and the constant attention in recent years to further refinements. The system as a whole is both humanitarian in spirit and highly generous in terms of its results. It plays a central role in the State's efforts to respect the right to seek asylum and other attendant rights, and serves as a model in many respects. The ongoing interest of the State in refining the immigration and refugee system to better serve the interests of claimants and the citizenry in conformity with international obligations and domestic law provides the necessary basis for further enhancing compliance with its human rights obligations.
168. As indicated, this report analyzes specific issues relating to Canada's compliance with its human rights obligations under the OAS Charter and the American Declaration. On the basis of its examination, the Commission notes that achieving enhanced compliance with applicable human rights standards would be greatly facilitated by the adoption of measures aimed at ensuring that State authorities involved in all aspects of the refugee system are aware of the obligations Canada has freely undertaken. With certain important exceptions, the Commission noted a surprising lack of information or understanding on the part of administration and judicial officials at both the federal and provincial levels of Canada's regional and international human rights obligations in the refugee context. The Commission also noted a perception on the part of some officials that international human rights law was a question falling within the sphere of foreign affairs rather than one pertaining to the implementation of domestic law.
169. As a State Party to the Charter of the OAS, Canada has freely undertaken to uphold respect for human rights, one of the fundamental principles of the Organization. Given that the American Declaration is a source of international obligation, that those subject to Canada's jurisdiction are entitled to its protections, and that the failure to observe those rights may give rise to State responsibility on the international plane, it is of fundamental importance that all relevant authorities, at the provincial and federal levels, are fully aware of its provisions, as well as those pertaining to other treaties and instruments in effect in Canada.
170. In its observations, the State noted initiatives in development or underway to train relevant authorities with regard to Canada's international human rights obligations. It reported that IRB members, and PCDO and H&C decision-makers receive training in human rights; members of the IRB Refugee Division receive training in the relationship between international human rights law and international refugee law; and CIC offers various training initiatives for its personnel. For example, immigration officers are being trained in connection with new H&C guidelines and international standards. The State noted that further guidelines and training activities relative to Canada's international human rights obligations are available to decision-makers.
171. Canada observed that, "[i]n order to ensure that training is accurate and timely, however, prompt and thorough guidance from the various concerned bodies is of prime importance." The State indicated that it looked forward "to considering the possibility of training activities with Commission personnel" at a future time deemed opportune by both.
172. On the basis of the foregoing analysis, and in light of the overall Canadian commitment in favor of refugee protection, the Commission offers the following recommendations designed to assist the State in its ongoing efforts to refine the refugee determination system, and to further enhance its compliance with the standards of the American Declaration of the Rights and Duties of Man and the international instruments which assist in its interpretation.
173. With respect to the issue of access to the refugee determination system, the Commission recommends that the State take measures to:
1. Place the substantive determination of eligibility to enter the determination process within the competence of the CRDD. While the international law applicable to this determination leaves it to national authorities to determine the procedures to be applied, ensuring that the decision to exclude asylum seekers from the determination process is made by an official competent to determine refugee status would safeguard the fundamental right of the person concerned to be effectively heard in stating his or her claim pursuant to Article XXVII of the American Declaration, and its related minimum due process guarantees, while respecting the duty of the State to protect the system and citizen security.
2. Amend the determination process before the CRDD to enable it to be reopened to consider newly available material facts or evidence deemed to meet a reasonable threshold of relevance, thereby providing an important safeguard in identifying genuine refugees and ensuring their right to non-return under Article XXVII of the American Declaration, and the minimum procedural guarantees necessary to ensure the efficacy of that right.
3. Expedite family reunification in the case of persons who have applied for landing without sufficient identification documents, consistent with the generous overall commitment of Canada to family reunification and respect for family life.132
174. With respect to access to administrative and judicial review mechanisms, the Commission recommends that the State take further action designed to ensure that:
1. Refused refugee claimants have access to a merits-based review of the decision taken by the CRDD, whether through administrative or judicial channels. This could be done by establishing a separate appeals competence within the CRDD, or by modifying the judicial leave requirements to assure access as a right. In either case, pursuant to Article XVIII of the American Declaration, claimants must still have access to effective judicial protection for rights under the Declaration or Canadian Charter.
2. Refused refugee claimants who may not meet the standard to be deemed a Convention refugee, but who nonetheless can make a showing that return would subject them to a serious risk of inhuman treatment or torture, are heard through a prompt effective procedure capable of effectively protecting their fundamental right to be free from torture pursuant to Article I of the American Declaration, with the minimum procedural guarantees necessary to ensure the efficacy of that right.
3. Those claimants who require legal aid to effectively vindicate their rights within the refugee system as a whole, whether in determination proceedings, detention review, post-claim administrative review or post-claim judicial review, may avail themselves of that important safeguard relative to, inter alia, Articles XVIII, XXV and XXVII of the American Declaration.
175. In it observations, the State submitted information relating to the recommendations set forth in paragraphs 173-74. First, it reported that, in January of 1999, the Government "announced policy options to amend the Immigration Act, including a proposal to consolidate all decisions on the need for protection into one by the Immigration and Refugee Board, i.e., refugee determination process, post-determination risk review, risk-related humanitarian and compassionate review." "Pre-removal risk assessment would be available in appropriate circumstances." The State indicated that "[i]mplementation of these proposals will speed up the process so that refugee claimants can get on with their lives as quickly as possible." The State further reported that the Department of Citizenship and Immigration is considering options for the consolidation of decision-making in the IRB. "The possibility of judicial review would be maintained, as would a pre-removal risk assessment." "Eligibility decisions would continue to be conducted by CIC given that senior immigration officers' determinations are based on interpretations of fact."
176. The Commission looks forward to receiving further information on the process of legislative reform, particularly insofar as it may further enhance Canada's observance of its inter-American human rights obligations. Given the impact on the situation of persons within the system, the objective of ensuring that determinations of status are made in a timely manner, with all requisite guarantees and thoroughness, is a critical one. With respect to the question of eligibility determinations, the Commission has expressed its concern about current procedures and maintains that the modification recommended would better ensure the fundamental rights at issue. With regard to the determination process as a whole, the Commission strongly encourages those charged with designing and implementing reforms to ensure that newly available, relevant information can be considered, and to provide for the possibility of a merits-based review.
177. Second, the State indicated that the Department of Citizenship and Immigration "is examining the possible extension of protection grounds to include certain international conventions where refoulement would threaten the life or security of the person." Given the fundamental nature of the prohibition of refoulement under such circumstances, the Commission looks forward to receiving information on measures adopted. The Commission values and encourages initiatives with the potential to amplify the application of Canada's international human rights obligations in its domestic policy.
178. Finally, as noted in section IV.B.3 above, the State reported 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 is very pleased to report this positive measure, which, as the State correctly noted, will hasten the process of family reunification. Steps designed to further respect for the right to family life are given great significance by the Commission.
179. With respect to the right to liberty in exclusion and removal proceedings, the Commission recommends that the State pursue additional steps to assure that:
1. The standard for detention as a "danger to the public" is further clarified to ensure consistency of decision-making, and the ability of the detainee to defend his or her right to liberty as recognized in Articles I and XXV of the American Declaration.
2. Further consideration be given to the question of the length of preventive detention in the immigration and refugee context, and to assure that additional safeguards are put in place to prevent such detention from extending for months and in some cases years absent effective action capable of resolving the situation, in accordance with the requirements of Article XXV of the American Declaration.
3. With respect to the section 40.1 security certificate procedure specifically, that additional safeguards are enacted to: (a) provide the detainee with access to judicial review of the legality of the detention without delay; (b) offer access to periodic detention review at reasonable intervals; (c) to assure that adequate procedures are in place to protect such persons against return where this would expose them to a serious risk of inhuman treatment or torture; and, (d), with respect to the right to due process specifically, that the person named in the certificate has the ability to know the case he or she must meet, and to enjoy the minimum procedural guarantees necessary to ensure the reliability of the evidence taken into account.
180. In relation to respect for the rights of the child and family life in removal proceedings under Articles V, VI and VII of the American Declaration, the Commission recommends that the State pursue additional action aimed at enhancing:
1. The compliance of decision-making at all levels of the process with the obligation to take the best interests of the child into account in all decision that affect him or her, and to assure that, where a child is capable of expressing his or her views, those will be taken into account. In the wake of the recent encouraging developments in Canadian jurisprudence, analyzed above, concerning recognition of the rights of Canadian-born children in certain proceedings related to the removal of one or both alien parents, and in view of the importance of ensuring that the best interests of such a child are properly considered in any determination affecting him or her, the Commission recommends that further steps be taken to clarify how that standard is to be applied by decision-makers at all levels, in accordance with Articles V, VI and VII of the American Declaration, interpreted in conjunction with the Convention on the Rights of the Child.
2. The conformity of decision-making at all levels with the international obligation to consider the principle of family reunification and unity.
3. The adherence of such decisions to the standard by which removals separating families are a highly exceptional measure requiring an extremely serious justification to override the resulting interference with family life.
181. In relation to Canada's efforts overall to perfect its compliance with its international human rights obligations, the Commission recommends that additional measures be taken to:
1. Ensure that where those obligations are not expressly incorporated into domestic law, there are policies and procedures in place to assure that the relevant provisions are observed and given full effect as rights.
2. Inform and train relevant officials at all levels, particularly judges and other decision-makers responsible for interpreting and applying the State's human rights obligations, to ensure that they are aware of and understand those obligations under applicable international law.
182. With respect to Canada's status as an OAS member State specifically, the Commission recommends that additional consideration be given to:
1. Adopting the measures necessary to become a Party to the American Convention on Human Rights, and, consistent with its commitment in favor of gender equality and the prevention and punishment of torture, to become Party to the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women and the Inter-American Convention to Prevent and Punish Torture.
2. Making full use of the resources that exist within the regional system for advisory services and collaboration in the protection of human rights, for example, through the presentation of questions concerning the interpretation and application of human rights provisions through the advisory jurisdiction of the Inter-American Court of Human Rights, and training activities with Commission personnel designed to augment the awareness and understanding of relevant State personnel of the norms, procedures and practices of the inter-American human rights system.
183. While noting its position that the Commission should limit its comments to the American Declaration, the State provided specific comments concerning the recommendations set forth in paragraph 182. With respect to the question of ratification of the American Convention, the State observed that Government officials have been consulting with provincial and territorial counterparts since 1991 to ascertain their positions and concerns. "Canada has reservations concerning the Convention regarding the exact scope of its obligations [there]under and, therefore, with its ability to ensure full compliance." The State indicated that it has identified some apparent inconsistencies between provisions of the Convention and other international human rights norms and trends in international human rights law. The State referred to specific concerns relative to certain Convention provisions,133 observing that ratification would accordingly require a series of reservations and statements of understanding, a result contrary to its position that reservations to human rights treaties should be few and limited in scope. Canada indicated that, while it "does not adhere to the Convention, this does not undermine our commitment to its fundamental principles."
184. With respect to the recommendation that Canada consider ratification of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women and the Inter-American Convention to Prevent and Punish Torture, the State indicated that, as the American Convention is the fundamental instrument of the system, it would be difficult for it, as a non-Party, to ratify these two treaties. It also noted several content-related concerns,134 while stressing its strong commitment to gender equality and the prevention and punishment of torture under national and international law.
185. Given the contribution these instruments make in protecting fundamental rights in the region, the Commission encourages the State to continue consultations and other efforts concerning ratification. The Commission hopes the State will make full use of the resources the system offers, such as those noted in paragraph 182, recommendation 2, to seek clarification with respect to the issues of concern referred to in its observations. Without responding exhaustively in the present report, the Commission observes that these concerns warrant clarifications which could significantly assist the State in appreciating the scope of the rights and duties arising pursuant to these conventions.135
186. The Commission has provided the foregoing analysis and recommendations in conformity with its mandate to protect and promote human rights in the Americas, and in the context of Canada's demonstrated commitment to providing safe haven. The Commission is at the disposal of the State with respect to any cooperation it may offer in the process of effectuating those recommendations, and looks forward to opportunities for ongoing engagement with respect to the fundamental human rights and obligations raised.
1 See, Charter of the Organization of American States, as amended by the Protocol of Buenos Aires (1967), Protocol of Cartagena de Indias (1985), Protocol of Washington (1992), and Protocol of Managua (1993), Arts. 53 (defining the status of the IACHR within the OAS) and 106 (setting forth the IACHR's mandate).
3 October 20, 1997 presentation of UNHCR Representative Yilma Makonnen to the IACHR. UNHCR figures indicate that in 1996, arrivals numbered 10,934 of which 7,852 were government-sponsored refugees. In the first half of 1997, 3,022 Government-sponsored refugees had been resettled.
18 In addition to the American Declaration and Convention, the inter-American human rights system includes the following instruments: the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights ("Protocol of San Salvador"); Protocol to the American Convention on Human Rights to Abolish the Death Penalty; Inter-American Convention to Prevent and Punish Torture; Inter-American Convention on Forced Disappearance of Persons; and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women ("Convention of Belém do Pará").
19 IACtHR, Advisory Opinion OC-10/89 of July 14, 1989, "Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights," Ser. A No. 10, paras. 45-46. As the Court indicated:
the member states of the organization have signaled their agreement that the Declaration contains and defines the fundamental human rights referred to in the Charter. Thus the Charter cannot be interpreted and applied as far as human rights norms are concerned without relating its norms, consistent with the practice of the organs of the OAS, to the corresponding provisions of the Declaration.
Id., para. 43. The functions of the Commission in interpreting and applying the Declaration are further set forth in its Statute, which is approved by the OAS General Assembly, and its Regulations, which are approved by the Commission itself. Pursuant to its Statute, the Commission is tasked in relation to States not Party to the American Convention to pay particular attention to the observance of the core rights set forth in Articles I, II, III, IV, XVIII, XXV and XXVI of the American Declaration.
20 Beyond the specific ambit of human rights, it may also be noted that a number of treaties and other instruments have been adopted in the Americas in relation to the status of refugees, including, inter alia, the 1889 Montevideo Treaty on International Penal Law, the 1928 Havana Convention on Asylum, the 1933 Montevideo Convention on Political Asylum, the 1954 Caracas Convention on Diplomatic Asylum, the 1954 Caracas Convention on Territorial Asylum, and the 1984 Cartagena Declaration.
21 Section 52(1) of the Constitution Act, 1982 provides that "[t]he Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect."
The Commission has properly invoked in some of its reports and resolutions `other treaties concerning the protection of human rights in the American states,' regardless of their bilateral or multilateral character, or whether they have been adopted within the framework or under the auspices of the inter-American system.
As the Court explained, the "need of the regional system to be complemented by the universal finds expression" in this practice of the Commission, which "is entirely consistent with the object and purpose of the Convention, the American Declaration and the Statute of the Commission." Advisory Opinion OC-1/82 of September 24, 1982, "`Other Treaties' Subject to the Advisory Jurisdiction of the Court (Art. 64 American Convention), Ser. A No. 1, para. 43 (citing examples under the American Convention and Declaration).
30 The conditional removal order will take effect if the claimant withdraws or abandons the claim, is determined not to be a Convention refugee, or despite being a Convention refugee, does not have the right to remain in Canada.
The eligibility process in Canada is judiciously applied. In 1996, Canada received 25,616 inland refugee claims, of which 122 were found by a Senior Immigration Officer to be ineligible for referral to the CRDD for hearing. Thus more than 99% of claimants were found to be eligible for referral to the CRDD. Of the 122, 31% were deemed to be ineligible for referral as the individual had received Convention Refugee status in another country; 31% had previously been found not to be a Convention Refugee by the CRDD; and 11% were ineligible due to criminality or security concerns. This represents far less that 1% of all claims.
42 See generally, Immigration Act, Section 45(4), providing that "[t]he burden of proving that a person is eligible to have a claim to be a Convention refugee determined by the Refugee Division rests on the person." Referral to the Adjudication Division is based on an initial finding that the burden has not been met.
43 "Administrative determinations of eligibility should, in the view of UNHCR, be limited to simple factual concerns. Where issues of judgment or interpretation of domestic or international legal standards arise, the matter should be referred to a hearing before the Immigration and Refugee Board, which has the expertise to weigh such concerns in the context of the claim as a whole." Statement by Mr. D. Chefeke, Rep. in Canada of the UNHCR to the Legislative Committee Studying Bill c-86 (11 Aug. 1992).
45 Amnesty International has "frequently called on the government to put this decision-making in the hands of the relevant, appropriate and independent expert body in Canada, the Immigration and Refugee Board." The organization has expressed its concern that the categories for denial of eligibility are "broad and potentially overreaching," and has further noted that the exclusion of persons already granted refugee status in another country is problematic because it does not allow for cases where the country of first asylum has itself become a place where the person concerned is in danger. The organization characterized the determinations at issue in the eligibility screening process as "very sensitive and difficult assessments which are often interconnected to the facts which lie at the base of an individual's refugee claim." Amnesty International, "Refugee Protection in Canada", presentation before the IACHR of October 20, 1997, p. 5.
46 UNHCR Executive Committee, Conclusion Nº 30 (XXXIV) 1983, "The Problem of Manifestly Unfounded or Abusive Applications for Refugee Status or Asylum," Report of the 34th Session, UN Doc. A/AC.96/631, at para. 97(2)(e).
47 See Federal Court Trial Division, Faghihi v. Canada (Min. of Citizenship and Immigration), Decision of Aug. 17, 1999 [Docket: IMM-4836-98], available at web site www.fja.gc.ca, at paras. 43, 47, 51-52 (finding material error in translation of country of nationality in the claimant's personal information form insufficient basis to grant a motion for reopening).
48 See Federal Court Trial Division, Chaudhry v. Canada (Min. of Employment and Immigration) , 25 Imm.L.R. (2d) 139, 83 F.T.R. 81,  1 F.C. 104, Decision of July 15, 1994 (finding that, in view of the textual indication in the Immigration Act against reopening, new information about changed country conditions was not a sufficient basis for reopening; noting that such factors could be considered within the scope of humanitarian and compassionate review).
49 See e.g., Glenn Randall and Ellen Lutz, Serving Survivors of Torture, p. 29, and at pp. 42-44 (1992)(discussing the psychological sequelae of traumatic human rights violations, and added consequences of being a refugee); see also, Federico Allodi et al., "Physical and Psychiatric Effects of Torture: Two Medical Studies," in The Breaking of Bodies and Minds: Torture, Psychiatric Abuse, and the Health Professions, pp. 58-78 (Stover and Nightingale eds. 1985)(analyzing results of studies of torture survivors in the United States and Canada).
50 In its observations, the State noted that applicable law provides "maximum flexibility for determining what constitutes satisfactory identity documents." "Immigration officers will consider documents that are genuine; pertain to the Convention refugee; and, provide credible evidence of the person's identity." The State further noted the importance it attributes to balancing the need to protect persons with a well-founded fear of persecution against the need to protect the system from those who would abuse it.
The Federal Court has the primary role in reviewing immigration and refugee decisions. All decisions made, whether by the IRB or by CIC officials, such as senior immigration officers, are subject to judicial review by the Federal Court. This includes decisions concerning refugee determinations by the IRB.
The State further noted that the independence of its judiciary is guaranteed under the Constitution. Judges serve on terms of good behavior. "They are removable from the Bench by the Governor General on address of both houses of Parliament, and are required to retire at age 75."
57 The cases cited by the State in this regard, Chaudhry, Sinnapu, Pushpanatham and Baker, suggest that the questions addressed at this stage are of great seriousness and significant import for the system as a whole. It should be noted that, as the State indicated in its observations, the appellate court is not limited to the certified question(s) when rendering its decision.
60 The State further indicated that "[t]raining of PCDO's involves sessions on the Charter and international human rights obligations, such as the Convention Against Torture, the International Covenant on Civil and Political Rights and the American Declaration." "These training courses were developed and delivered in close cooperation with Canadian non-governmental organizations."
63 Reference was made, for example, to a statistical study analyzing acceptance rates for leave applications and finding an extremely high association between the individual judges assigned to make the decision and the outcome of the applications. Ian Greene and Paul Shaffer, "Leave to Commence Judicial Review in Canada's Refugee-Determination System: Is the Process Fair?" 4 Int'l Journal of Refugee Law, 71 (1992).
64 See generally, IACHR, Resolutions Nº 3/84, 4/84 and 5/85, Cases Nº 4563, 7848 and 8027, Paraguay, published in Annual Report of the IACHR 1983-84, OEA/Ser.L/V/II.63, doc. 10, 24 Sept. 1984, at pp. 57, 62, 67 (addressing lack of access to judicial protection in proceedings involving expulsion of nationals; linking right to freely enter and remain in one's own country under Article VIII of the Declaration to the rights to a fair trial and due process under Articles XVIII and XXVI). See also, Report Nº 47/96, Case 11.436, Cuba, in Annual Report of the IACHR 1996, OEA/Ser.L/V/ II.95, Doc. 7 rev., 14 March 1997, at para. 91, (citing Annual Report of the IACHR 1994, "Cuba," at p. 162, and addressing failure of State to observe freedom of movement of nationals under Article II via denial of exit permits from which no appeal is allowed).
In the context of the American Convention, see generally, IACHR, Resolution Nº 30/81, Case 7378, Guatemala, in Annual Report of the IACHR 1980-81, OEA/Ser.L/V/II.54, doc. 9 rev. 1, 16 Oct. 1981, p. 60, at 62 (addressing denial of right to judicial protection in expulsion of foreigner absent any form of due process), Report Nº 49/99, Case 11.610, Mexico, Annual Report of the IACHR 1998, OEA/Ser.L/V/II.102, Doc. 6 rev., 16 April 1999, Vol. II; see also, Eur. Ct. H.R., Ashingdane Case, Ser. A No. 93 (1985) para. 55.
65 See, Inter-American Juridical Committee, "Draft Declaration of the International Rights and Duties of Man and Accompanying Report," (1946), p. 56. Because fundamental rights inhere in the person by virtue of his or her humanity, they apply in principle to all on the basis of non-discrimination and equality. See e.g., UNHum.Rts.Comm., General Comments 15 and 18, published in, "Compilation of General Comments and Recommendations adopted by Human Rights Treaty Bodies," HRI/GEN/1/Rev.3, 15 Aug. 1997, at pp. 19, 26.
66 "Draft Declaration and Accompanying Report," supra, at p. 53. See, for example, IACHR, Report Nº 51/96, Case 10.675, United States, in Annual Report of the IACHR 1996, OEA/Ser.L/V/II.95, Doc. 7 rev., 14 March 1997, p. 550, paras 177-78 (finding violation of right to equal protection under Article II of the American Declaration with respect to interdiction of one group consequently prevented from being heard on asylum claims, while other groups permitted to enter and be heard).
67 See e.g., Eur. Ct.H.R., Golder v. the United Kingdom, Ser. A No. 18, 1 E.H.R.R. 524 (1975); Belgian Linguistics Cases, Ser. A Nos. 5, 6 (1967, 1968); Winterwerp v the Netherlands, Ser. A No. 33, 2 E.H.R.R. 387 (1979).
70 An intensive study of decisions on leave applications decided by single judges of the Federal Court of Appeal done in 1990 (before the leave decision was transferred to single judges of the Trial Division) indicated wide discrepancies in rates of acceptance, ranging between 3 and 57%, related to the particular decision-maker. The researchers indicated concern that applicants for leave under the Immigration Act may not have an equal chance of convincing a decision-maker that their application should be granted, given that certain judges were statistically much more predisposed to deny leave. I. Greene and P. Shaffer, "Leave to Appeal and Leave to Commence Judicial Review in Canada's Refugee-Determination System: Is the Process Fair?" 4 Int'l J. Refugee L., 70, at p. 82.
77 See e.g., Susan Davis and Lorne Waldman, The Quality of Mercy (March 1994) (reporting to the Minister of Citizenship and Immigration Canada the results of a study of the processes available to persons who are determined not to be refugees and who seek humanitarian and compassionate treatment).
78 The State cited the following examples: "R.K. v. Canada, 20 Nov. 1997, Comm. 42/1996, CAT; V.V. v. Canada, 19 May 1998, Comm. 47/1996, CAT; P.S.S. v. Canada, 13 Nov. 1998, Comm. 66/1997, CAT; Nartey v. Canada, 18 July 1997, Comm. 604/1994, UN Human Rights Committee; Badu v. Canada, 18 July 1997, Comm. 603/1994, UN Human Rights Committee; Adu v. Canada, 18 July 1997, Comm. 654/1995, UN Human Rights Committee; Joseph, 6 October 1993, Report No. 27/93, Case 11.092, IACHR."
85 This is also the case with respect to the jurisprudence of the UN Committee Against Torture and UN Human Rights Committee cited by the State. See, e.g., Committee Against Torture, M.A. v. Canada, Comm. No. 22/1995, U.N. Doc. A/50/44 at 73 (1995)(noting that certain remedies invoked by the complainant remained pending, and finding that, under the circumstances of the case, no special circumstances had been shown excusing the requirement that those be exhausted); UN Human Rights Committee, Nartey v. Canada, Comm. No. 604/1994 (Decision of 18 July 1997, 60th Sess.), para. 6.2 (noting that the complainant had failed to counter the observations provided by the State, and had failed to invoke remedies the latter had indicated were available and effective).
87 See also, UN Hum.Rts Committee, General Comment 20 (Article 7), in "Compilation," supra, at para. 9 (expressing that States Parties to the ICCPR, such as Canada, must not expose individuals to the risk of inhuman treatment or torture pursuant to extradition, expulsion or return).
88 The fact that evidence concerning allegations of torture is not produced during the refugee determination process does not necessarily dispose of the obligations of the State to take that evidence into account in ensuring the person concerned the effective protection of his or her rights. See UN Torture Comm., Khan v. Canada, Comm. No. 15/1994, views adopted 15 Nov. 1994, CAT/C/13/D/15/1994, 18 Nov. 1994. In that case, the refused refugee applicant alleged a risk of torture if returned to his country. He had not presented those allegations during the determination process, and only attempted to introduce evidence of prior torture several years later in post-determination proceedings which were unsuccessful, largely due to doubts about the credibility of the claims. The Committee found that, under the circumstances, notwithstanding the delay in the submission of the evidence, which it noted is not unusual for torture survivors, and notwithstanding that there might even be certain doubts about the facts adduced by the applicant, the State Party was obliged to ensure his protection and to refrain from forcibly returning him.
90 For example, a 1997 report on the Ontario legal aid system indicated that most legal aid services were devoted to representing clients in hearings before the CRDD, with very few legal aid certificates issued in relation to deportation proceedings, detention reviews, certification proceedings, or applications for post-claim administrative reviews. See "Report of the Ontario Legal Aid Review: A Blueprint for Publicly Funded legal Services" (1997) at p. 10.
91 See generally, IACtHR, Advisory Opinion OC-11/90 supra, at para. 30 (addressing the issue of exhaustion of domestic remedies under the American Convention); UNHum.Rts.Committee, Currie v. Jamaica, Comm. Nº 377/1989, U.N. Doc. CCPR/C/50/D/377/1989 (1994), at paras. 10, 13 (explaining that absence of legal aid where required to vindicate a right operates not only to excuse compliance with the requirement of exhaustion of domestic remedies, but also constitutes a violation of the right to a fair trial).
95 The Chairman of the IRB issued guidelines aimed at assisting adjudicators in achieving greater consistency and fairness in March of 1998. The Guidelines deal with long-term detention, the notion of "danger to the public," alternatives to detention, and issues of evidence and procedure. See generally, Guidelines on Detention [Guidelines issued by the Chairperson pursuant to section 65(4) of the Immigration Act], Effective date March 12, 1998.
98 Guidelines are issued on questions of national importance, where there has been inconsistent treatment of the issue at law, where there is sufficient opportunity to consult internally and externally, and where the higher courts have not clearly pronounced on the issue concerned. "In other words, the fundamental criterion is that there be a certain ambiguity in law that need to be resolved." Chantal Bernier, "Women Refugee Claimants Fearing Gender-Related Persecution," Int'l Jrnl of Refugee Law, Special Issue Autumn 1997, p. 167, at 168.
102 A detainee has the right to periodic detention reviews by an Adjudicator, and the further right to challenge a decision pursuant to judicial review. In speaking to judicial authorities during its on-site visit, the Commission was informed that the Minister exercises broad discretion in deciding who constitutes a danger, and that judges are not to substitute their judgment as to the finding made. One highly placed authority characterized this as a "tough presumption [for a claimant] to rebut."
107 The application of habeas corpus and similar remedies plays a fundamental role in, inter alia, protecting against arbitrary arrest and unlawful detention, and clarifying the situation of missing persons. Such remedies, moreover, may "forestall opportunities for persons exercising power over detainees to engage in torture or other cruel, inhuman or degrading treatment or punishment." UN General Assembly Resolution 34/178 (1979)(commemorating 300th anniversary of act giving writ of habeas corpus statutory force).
108 See generally, Erica-Irene Daes [UN Special Rapporteur] "Freedom of the Individual under Law," (1990) at 179 (observing role of habeas corpus as basic required protection under Universal Declaration).
109 No violation arises "if the arrested person is released `promptly' before any judicial control of his detention would have been feasible." Eur. Ct.H.R., Brogan et al., Ser. A Vol. 145 (1988). See also Eur. Ct. H.R., De Jong, Baljet and van den Brink, Ser. A Vol. 77 (1984). Under normal circumstances, the UN Human Rights Committee has found detention for 48 hours without judicial review to be questionable. See UN, Human Rights and Pre-trial Detention (1994), at 12, citing UNGAOR, 45th Sess., Supp. 40 (A/45/40), vol. I, para. 333 (report of Federal Republic of Germany). Delays of four and five days in the presentation of a detainee before a judicial authority have been held violative. See Eur. Ct.H.R., Brogan, supra; Koster v. The Netherlands, Ser. A Vol. 221 (1991).
112 The right to a review of the legality of one's detention exists independent of whether the detention is lawful. See UNHum.Rts.Committee, General Comment 8/16, in "Compilation," supra, paras. 1, 4 (concerning the significance of right to review in context of the deprivation of liberty outside of the criminal justice context).
113 Eur. Ct.H.R., Iribarne Pérez v. France, Ser. A No. 325-C, 22 E.H.R.R., 153 (1995) para. 37, citing Eur.Ct.H.R., De Wilde, Ooms and Versyp v. Belgium, Ser. A No. 12, 1 E.H.R.R. 373 (1971) at para. 77. The relevant provisions under the American Declaration and the European Convention set forth the same basic requirements.
114 As noted above, under most cases in the immigration context, an applicant would be required to raise Charter issues before the relevant administrative tribunal within the respective proceeding. The IRB, for example, is generally competent to address Charter issues. If unsuccessful, the claimant could then seek leave for judicial review of that decision before the Federal Court. However, persons detained under the security certification procedure cannot raise Charter issues before the judge presiding over the certificate review. In such cases, a Charter-based action must be separately initiated before the Federal Court.
116 Domestic court decisions on the relevant cases are titled under the names of Wahid Khalil Baroud and Manickavasagam Suresh respectively. It may be noted Amnesty International addressed the Government of Canada in 1996 concerning the situation of Mr. Suresh in detention.
118 IACHR, Report on the Situation of Human Rights in Paraguay, OEA/Ser.L/V/II.43 Doc. 13 corr. 1, p. 18, 31 Jan. 1978. See generally, IACtHR, Neira Alegria Case, Judgment of Jan. 19, 1995, Ser. C No. 20, paras. 75-77 (finding violation under corresponding provision of the American Convention in the case of decrees in effect suspending the right to habeas corpus); Eur.Ct.H.R., Amuur v. France, 22 E.H.R.R. 533 (1996) at para. 53, (finding violation of right to seek judicial review of the legality of detention where there a lacuna in the applicable law left asylum seekers without access to such review for 17 days).
119 IACHR, Report on the Situation of Human Rights in Argentina, OEA/Ser. L/V/II.49 Doc. 19, p. 26-27, 11 April 1980. See, e.g., IACHR, Report on the Situation of Human Rights in Colombia, OEA/Ser.L/V/II.53, doc. 22, 1981, pp. 15-18; IACHR, Ten Years of Activities 1971-81 (1982) pp. 341-42; IACHR, Resolution on the Protection of Human Rights in Connection with the Suspension of Guarantees or `State of Seige,' 12 Sept. 1968.
120 See generally, Eur. Ct.H.R., Hussain, supra, para. 54; see also, Body of Principles, supra, Principle 11, stipulating right to review of legality of detention and requirement that continuation of detention be subject to appropriate review,
121 See generally, Eur.Ct.H.R., Chahal v. United Kingdom, 1996-V Nº 22 (1996), p. 1831. The prohibition of inhuman treatment is a fundamental value underpinning the principal human rights Conventions. See id., para. 79. While States necessarily face "immense difficulties" in protecting the public from terrorism, even under those circumstances the prohibition remains absolute, "irrespective of the victim's conduct." Id. That prohibition applies equally in expulsion cases. Id., para. 80.
122 It may be noted in this regard that the procedures the European Court of Human Rights compared to those applicable in Canada in dicta in the case of Chahal v. U.K. involved the issuance of a deportation notice against a non-permanent resident by the Home Secretary on the basis of national security concerns where the information utilized was examined by an advisory panel [with no decision-making power] but was not subject to any judicial review. See generally, Chahal v. the United Kingdom, supra. The Commission observes in this respect that while judicial review of such evidence is critical, it is not necessarily sufficient in and of itself. Further considerations are set forth in the text above.
The Commission notes that, in its reference to the procedures applicable in the Canadian process, the European Court noted certain safeguards. One of the protections referred to was that, while the subject of the certificate was not present or represented during the in camera review of evidence, security-cleared independent counsel appointed by the presiding court was present to assist in testing the sufficiency of the State's case. The Commission understands that, under the terms of sections 39-40 of the Immigration Act, the use of such independent counsel applies to proceedings before the Security Intelligence Review Committee in relation to permanent residents, and does not apply to the judicial review of evidence in certification proceedings concerning non-permanent residents under section 40.1.
123 In its observations, the State noted generally that considerations relative to family and the rights of the child are taken into account at various stages of the refugee determination process, and that guidelines for decision-makers had been issued by the CIC and IRB making specific reference to Canada's international obligation to consider the best interests of children.
124 That case arose pursuant to the issuance of a removal order against Mavis Baker, the mother of four Canadian-born dependent children. She had entered Canada as a visitor in 1981, and supported herself by working illegally until 1992, when she was diagnosed with paranoid schizophrenia. Subsequent to the issuance of the order, she had filed a written request for humanitarian and compassionate review, indicating, inter alia, that she was the sole caregiver for two of her children, and an important emotional support for the other two, who were in the custody of their Canadian father. Her application was rejected without a hearing or reasons, although she was able to obtain a copy of the immigration officer's notes. The Federal Court Trial Division denied leave to appeal, but certified the following question: "Given that the Immigration Act does not expressly incorporate the language of Canada's international obligations with respect to the International Convention on the Rights of the Child, must federal immigration authorities treat the best interests of the child as a primary consideration in assessing an applicant under s. 114(2) of the Immigration act"? Limiting itself to the terms of the question, the Court of Appeals ruled that those interests need not be given primacy in making that assessment. As discussed in the text above, the Supreme Court of Canada overturned that decision and sent the matter back for reconsideration.
131 See generally, Eur.Ct.H.R., Berrehab v. the Netherlands, Ser. A No. 138, 11 E.H.R.R. 322 (1988) (finding that enforcement of national immigration policy is not sufficient to override the need for contact between parent and child); Moustaquim v. Belgium, Ser. A No. 193, 13 E.H.R.R. 802 (1991) (holding that the need to protect public security in light of criminal acts committed when applicant was a minor did not override the fact that applicant had resided for almost the entirety of his life in France, and that all of his immediate family were there); see also Nasri v. France, Ser. A No. 322-B (1995); Beldjoudi v. France, Ser. A No. 234-A (1992); Chahal v. the United Kingdom, Reports 1996-V p. 1831 (1996): Gul v. Switzerland, 22 E.H.R.R. 93 (1996).
132 As noted in para. 79 supra and para. 178 infra, Canadian authorities have recently taken steps to expedite the process for this class to be accorded permanent residence, thereby facilitating speedier family reunification.
133 The State opined, first, that the scope of the right to life under Article 4 is inconsistent with Canadian law on the issue of abortion and the constitutional right to personal security, as well as with trends in international law concerning women's rights. Second, it characterized that "Article 13 on freedom of expression prohibits prior censorship, a measure Canada considers essential for the protection of vulnerable groups from, inter alia, hate propaganda and child pornography." Third, it posited that Article 22, concerning the right to freedom of movement and residence, prohibits the extradition of nationals, which would be inconsistent with the State's commitments under extradition treaties and before the International Criminal Tribunals and future International Criminal Court. Fourth, the State characterized that Articles 1, 23 and 24, concerning equality before the law, "do not contemplate affirmative action, an essential element of the Canadian human rights regime." "Finally, provisions on the `right to reply' - a concept unknown in Canadian law - and the detention of minors with adults are problematic."
134 With respect to the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, the State characterized that "the duties of states are insufficiently precise to set out identifiable and practicable obligations." Further, the protection mechanisms provided for lack "adequate strength so as to ensure a complaints mechanism which is both effective and consistent with relevant international human rights standards, and does not extend to breaches of rights that are not linked with violence against women." With respect to the Inter-American Convention to Prevent and Punish Torture, the State expressed concern that it "excludes high-ranking officials from prosecution and extradition," because the obligation as set forth applies to public servants to the exclusion of their political masters, an approach contrary to prevailing international law.
135 In substantive terms, to provide one example, the State's observations indicate what appears to be a misapprehension with respect to the scope of the right to equal protection under the American Convention. While it is true that Articles 1, 23 and 24 do not expressly refer to affirmative action, this does not mean, as implied, that they are antithetical to it. In fact, in the fall of 1999, in response to a request from the Inter-American Commission of Women for an opinion on the compatibility of measures of affirmative action with the rights to equal protection and nondiscrimination, the Commission presented an analysis indicating that such measures are, in principle, not only consistent with the norms of the system, but may in certain circumstances be required by applicable norms of international human rights law as one means of combating gender discrimination. In procedural terms, to provide another example, the system's conventions on torture and gender violence are fully susceptible to ratification by non-States Parties to the American Convention. The Commission must also note that, while the terms of the Inter-American Convention to Prevent and Punish Torture have a specific field of application which may be subject to interpretation, they may not be read to "exclude" high-ranking officials or political actors from prosecution and extradition where that is required as a matter of domestic and/or international law.