Suresh is about an alleged member of a terrorist group who, after deportation from Canada, was likely to face torture.  The Court tried to balance the two challenges faced by the Parliament when dealing with the issue: effective deterrence of terrorism and preservation of values that are fundamental to the democratic society, particularly protection of life, liberty and security.

It was concluded that deportation of a refugee to face substantial risk of torture generally violates s 7 of the Charter.  The Court held that while the impugned provision, s 53(1)(b) of the Immigration Act (“the Act”), is constitutional, the applicant’s hearing lacked appropriate procedural safeguards.  Thus, the Court unanimously held that Suresh is entitled to a new deportation hearing.

Facts

Manickavasagam Suresh was accepted into Canada as a Convention refugee from Sri Lanka in 1990.  Upon his application for Landed Immigrant status, the government of Canada started a proceeding for deportation on the grounds that he was a member of the Liberation Tigers of Tamil Eelam (“LTTE”), an organization alleged to engage in terrorist activity in Sri Lanka.

The deportation proceeding contains four steps:

1)   Certification by the Solicitor General and the Minister under s 40.1 of the Act alleging that the applicant is inadmissible to Canada on security grounds

2)   Referral of the 40.1 certificate to the Federal Court for determination whether the certificate is reasonable on the basis of the evidence and information available

3)   Deportation hearing

4)   Notification by the Minister to the applicant that the Minister is considering issuing an opinion declaring the applicant to be a danger to the security of Canada under s 53(1)(b) of the Act, which permits the Minister to deport a refugee on security grounds even where the refugee’s “life or freedom” would be threatened 

After the notification, the fourth step, Suresh submitted evidence that included reports of torture and killings of suspected LTTE members.  In response to the applicant’s submissions, the immigration officer recommended that the Minister issue an opinion under s 53(1)(b) that Suresh constitutes danger to the security of Canada and to keep him in Canada would run counter to the international commitments in the fight against terrorism.

Suresh was not provided with the copy of the officer’s recommendations and opportunity to respond to them.  No reasons for the decision were required under 53(1)(b) and none were given.

Suresh applied for a judicial review, alleging that the Minister’s decision was unreasonable, the procedures under the Act were unfair, the Act violated ss 7 and 2 of the Charter and that the terms “danger to the security of Canada” and “terrorism” contained in the Act were unconstitutionally vague.  The Federal Court and the Federal Court of Appeal dismissed the claims.

Issues 

1) What is the appropriate standard of review with respect to ministerial decisions under s 53(1)(b) of the Act?

2) Are the conditions for deportation in the Act constitutional?

a) Does the Act permit deportation to torture contrary to the Charter?

b) Are the terms “danger to the security of Canada” and “terrorism” unconstitutionally vague?

c) Does deportation for membership in a terrorist organization unjustifiably violate s 2 freedoms of expression and association?

3) Are the procedures for deportation set out in the Act constitutionally valid?

4) Should the Minister’s orders be set aside and new hearing ordered?

Analysis

1) The appropriate standard of review with respect to ministerial decisions under s 53(1)(b) of the Act 

The Court examined the standard of review with respect to the Minister’s decision on whether Suresh poses a risk to the security of Canada and whether he faces a substantial risk of torture.  The Court concluded that a deferential standard was appropriate for a review of ministerial decisions under s 53(1)(b) of the Act.

To arrive at the conclusion that the language of the Act suggests a standard of deference when it comes to the question of whether an applicant poses a risk of security to Canada, the Court relied on the principles laid out in Pushpanathan v Canada.  It was concluded that the Minister’s discretionary decision should be set aside only if it was made arbitrarily or in bad faith, not supported by evidence, or the Minister failed to consider appropriate factors.

The Court made a similar conclusion regarding the Minister’s decision on whether a refugee faces a substantial risk of torture upon deportation.  The issues are outside the realm of expertise of the courts and attract deference.  The courts may intervene only if the decision is not supported by the evidence or fails to consider appropriate factors.

This case also clarified that the nuanced approach espoused by the decision in Baker v Canada did not authorize courts to engage in a new weighing of evidence.  Rather, Baker was about a judicial review and intervention for the discretionary decisions that failed to comply with self-imposed ministerial guidelines.

2) The constitutionality of conditions for deportation in the Act

a) Does the Act permit deportation to torture contrary to the Charter?

In this part of the analysis, the Court examined whether s 53(1)(b) of the Act that permits deportation to a country where a refugee’s life or freedom would be threatened is in violation of s 7 of the Charter.   The Court held that that deportation to torture might deprive a refugee of life, liberty and security and that domestic and international laws suggest that deportation to torture will almost always be in violation of the principles of fundamental justice.

United States v Burns was referenced to conclude that the guarantee of fundamental justice applies to deprivations of life, liberty and security affected by actors in other nations, if there is a causal connection between the Canadian government and the deprivation.   In this case, the Court concluded that Canada’s action would have a sufficient causal connection to attract a guarantee of fundamental justice.  Furthermore, using existing jurisprudence the Court suggested that although there are instances when Canada may deport a person to torture, it is consistent with the principles of fundamental justice not to do so.

In addition to the Canadian perspective, the Court concluded that there are multiple indications that prohibition of torture is a peremptory norm of customary international law and as such cannot be easily derogated from.   After examining several international legal documents, the Court concluded that international law rejects deportation to torture, even where national security is at stake.

The Court concluded that domestic and international law suggests that deportation to torture will almost always be in violation of the principles of fundamental justice.  The Court did not find that s 53(1)(b) of the Act violated s 7 of the Charter.  Rather, the Court concluded that the Minister should generally decline to deport a refugee where on the evidence there is a substantial risk of torture.

b) Are the terms “danger to the security of Canada” and “terrorism” unconstitutionally vague? 

The Court found that the two terms were not unconstitutionally vague.

The Court made several observations about each term.  The term “danger to the security of Canada” should be given fair, large and liberal interpretation.   The Court also concluded that although support of terrorism abroad raises a possibility of adverse repercussions on Canada’s security, there must be a real and serious possibility of adverse effects to Canada.  The threat must not be direct, but it must be grounded in distant events that indirectly have a real possibility of harming Canadian society.

The Court found that although the term “terrorism” is difficult to define, it provides a sufficient basis for adjudication and therefore it is not unconstitutionally vague.  The Court adopted the definition of the term contained in the International Convention for the Suppression of the Financing of Terrorism s 19.

The conclusion that the Court made was that the terms are not unconstitutionally vague and that they would prima facie permit a deportation provided the Minister certifies a refugee to be substantial danger to Canada and to be engaged in terrorism.

c) Does deportation for membership in a terrorist organization unjustifiably violate s 2 freedoms of expression and association?

The Court concluded that the Act does not breach the rights of free expression and association of the Charter.

The Court emphasized the point of ambiguity when it comes to this analysis: whether the Act applies to those who at entry to Canada were or had been associated with terrorism or to those who were associated with terrorism after the entry.  If membership in a terrorist organization occurred prior to the entry, then no constitutional problem arises because of the broad discretion of the government to prevent criminals from escaping justice in their own country.  If association with terrorism occurred after the entry, it fails to attract s 2 protection because the activity is associated with violence (Keegstra).

3) Are the procedures for deportation set out in the Act constitutionally valid?

The Court concluded that procedural protections under s 7 are not valid because they require more than what the Act requires, which is none, and more than Suresh received.  Moreover, procedural violation of s 7 is not justified under s 1.

In reaching its conclusion, the Court relied on Re BC Motor Vehicle Act that stated that s 7 of the Charter protects both substantive and procedural rights.   Furthermore, the Court relied on Baker for factors to determine whether the common law duty of fairness has been met and satisfactory safeguards were provided to meet the demands of s 7.

The Court delineated the procedures that are required under 53(1)(b) as follows:

-Person facing deportation to torture must be informed of the case to be met – the material on which the Minister is basing her decision must be provided to the individual and the opportunity is to be provided to respond to the case presented to the Minister.

-The refugee must be given an opportunity to challenge the information of the Minister where issues as to its validity arise.

-The Minister must provide written reasons for her decisions outlining that there are no substantial grounds that there will be a subjection to torture and why the individual poses danger to the security of Canada.  The reasons must emanate from the Minister.

The onus is on the refugee to establish a risk of torture.  There must be a prima facie case that there may be a risk of torture upon deportation.

4) Should the Minister’s orders be set aside and new hearing ordered?

The case was remanded to the Minister for reconsideration in accordance with the procedures set out in the Court’s reasons.