Section seven protects a persons right to life, liberty and the security of the person. It protects every “one” who is physically present in Canada (Singh):
- Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Section seven protects three separate interests: Life; liberty and the security of the person.
The first step in the analysis of the applicability of section seven to the specific facts is to ascertain whether the impact on the person falls with the ambit of section seven.
Blencoe v BC Human Rights Commission 2000 SCC 44 describes the analytical framework for determining section seven engagement: par 47
47 Section 7 of the Charter provides that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Thus, before it is even possible to address the issue of whether the respondent’s s. 7 rights were infringed in a manner not in accordance with the principles of fundamental justice, one must first establish that the interest in respect of which the respondent asserted his claim falls within the ambit of s. 7. These two steps in the s. 7 analysis have been set out by La Forest J. in R. v. Beare, [1988] 2 S.C.R. 387, at p. 401, as follows:
To trigger its operation there must first be a finding that there has been a deprivation of the right to “life, liberty and security of the person” and, secondly, that the deprivation is contrary to the principles of fundamental justice.
Thus, if no interest in the respondent’s life, liberty or security of the person is implicated, the s. 7 analysis stops there. It is at the first stage in the s. 7 analysis that I have the greatest problem with the respondent’s s. 7 arguments.
When raising section seven you have to consider which of the s. 7 interests are engaged on your facts.
Examples:
- return to torture or persecution– life, liberty and the security of the person may all be engaged
- deportation of a long term permanent resident– right to liberty and the security of the person;
Right to Life
The right to life deals with state action that threatens one’s life or increases the risk of death. As the Supreme Court observes in Carter, “the right to life is engaged where the law or state action imposes death or an increased risk of death on a person, either directly or indirectly. Conversely, concerns about autonomy and quality of life have traditionally been treated as liberty and security rights.”[1]
The leading case of Blencoe v BC Human Rights Commission 2000 SCC 44 assists in defining the scope of the rights to liberty and the security of the person.
Liberty:
49 The liberty interest protected by s. 7 of the Charter is no longer restricted to mere freedom from physical restraint. Members of this Court have found that “liberty” is engaged where state compulsions or prohibitions affect important and fundamental life choices. This applies for example where persons are compelled to appear at a particular time and place for fingerprinting (Beare, supra); to produce documents or testify (Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425); and not to loiter in particular areas (R. v. Heywood, [1994] 3 S.C.R. 761). In our free and democratic society, individuals are entitled to make decisions of fundamental importance free from state interference. In B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, at para. 80, La Forest J., with whom L’Heureux‑Dubé, Gonthier and McLachlin JJ. agreed, emphasized that the liberty interest protected by s. 7 must be interpreted broadly and in accordance with the principles and values underlying the Charter as a whole and that it protects an individual’s personal autonomy:
. . . liberty does not mean mere freedom from physical restraint. In a free and democratic society, the individual must be left room for personal autonomy to live his or her own life and to make decisions that are of fundamental personal importance.
Security of the Person:
55 In the criminal context, this Court has held that state interference with bodily integrity and serious state-imposed psychological stress constitute a breach of an individual’s security of the person. In this context, security of the person has been held to protect both the physical and psychological integrity of the individual (Morgentaler, supra, at p. 56, per Dickson C.J., and at p. 173, per Wilson J.; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at p. 587, per Sopinka J.; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123, at p. 1177, per Lamer J.). These decisions relate to situations where the state has taken steps to interfere, through criminal legislation, with personal autonomy and a person’s ability to control his or her own physical or psychological integrity such as prohibiting assisted suicide and regulating abortion.
56 The principle that the right to security of the person encompasses serious state-imposed psychological stress has recently been reiterated by this Court in G. (J.), supra. At issue in G. (J.) was whether relieving a parent of the custody of his or her children restricts a parent’s right to security of the person. Lamer C.J. held that the parental interest in raising one’s children is one of fundamental personal importance. State removal of a child from parental custody thus constitutes direct state interference with the psychological integrity of the parent, amounting to a “gross intrusion” into the private and intimate sphere of the parent-child relationship (at para. 61). Lamer C.J. concluded that s. 7 guarantees every parent the right to a fair hearing where the state seeks to obtain custody of their children (at para. 55). However, the former Chief Justice also set boundaries in G. (J.) for cases where one’s psychological integrity is infringed upon. He referred to the attempt to delineate such boundaries as “an inexact science” (para. 59).
57 Not all state interference with an individual’s psychological integrity will engage s. 7. Where the psychological integrity of a person is at issue, security of the person is restricted to “serious state-imposed psychological stress” (Dickson C.J. in Morgentaler, supra, at p. 56). I think Lamer C.J. was correct in his assertion that Dickson C.J. was seeking to convey something qualitative about the type of state interference that would rise to the level of infringing s. 7 (G. (J.), at para. 59). The words “serious state-imposed psychological stress” delineate two requirements that must be met in order for security of the person to be triggered. First, the psychological harm must be state imposed, meaning that the harm must result from the actions of the state. Second, the psychological prejudice must be serious. Not all forms of psychological prejudice caused by government will lead to automatic s. 7 violations. These two requirements will be examined in turn.
The question of whether or not a section 7 life, liberty or security of the person interest is engaged will require an assessment of the consequences of the state action on the person. How does it impact on the person’s life, their personal life choices or their psychological well being.
If the impact on the person is sufficiently significant to warrant a finding that section seven is engaged then the second step in the analysis is to determine whether or not there is sufficient causal causation between the impugned state action (or legislative provision) in question and the harm to the person.
Causation
In order for section seven to be engaged the Court must conclude that there is a causal link between the state actions and the harm.
Blencoe:
58 In G. (J.), Lamer C.J. found direct state interference with the psychological integrity of the parent, describing the government action in that case as “direct state interference with the parent-child relationship” (para. 61). Later, at para. 66, Lamer C.J. referred to a child custody application as “an example of state action which directly engages the justice system and its administration” (emphasis added). He stressed that not every state action which interferes with the parent-child relationship would have triggered s. 7.
59 Stress, anxiety and stigma may arise from any criminal trial, human rights allegation, or even a civil action, regardless of whether the trial or process occurs within a reasonable time. We are therefore not concerned in this case with all such prejudice but only that impairment which can be said to flow from the delay in the human rights process. It would be inappropriate to hold government accountable for harms that are brought about by third parties who are not in any sense acting as agents of the state.
In Blencoe the Court held that the prejudice caused by the proceeding was not the result of the delay but rather the publicity surrounding the allegations which forced him to resign from Cabinet.
The leading case on causation is Bedford: Canada (AG) v Bedford, 2013 SCC 72
The test set out in Bedford is that there must be a “sufficient causal connection”:
[75] I conclude that the “sufficient causal connection” standard should prevail. This is a flexible standard, which allows the circumstances of each particular case to be taken into account. Adopted in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, and applied in a number of subsequent cases (see, e.g., United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3), it posits the need for “a sufficientcausal connection between the state-caused [effect] and the prejudice suffered by the [claimant]” for s. 7 to be engaged (Blencoe, at para. 60 (emphasis added)).
[76] A sufficient causal connection standard does not require that the impugned government action or law be the only or the dominant cause of the prejudice suffered by the claimant, and is satisfied by a reasonable inference, drawn on a balance of probabilities (Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, at para. 21). A sufficient causal connection is sensitive to the context of the particular case and insists on a real, as opposed to a speculative, link. Understood in this way, a sufficient causal connection standard is consistent with the substance of the standard that the Court of Appeal applied in this case. While I do not agree with the Court of Appeal that causation is not the appropriate lens for examining whether legislation — as opposed to the conduct of state actors — engages s. 7 security interests, its “practical and pragmatic” inquiry (para. 108) tracks the process followed in cases such as Blencoe and Khadr.
Therefore, when arguing that section seven is engaged you must show a sufficient causal connection between the impugned conduct and the consequences to the person. There may be other causes to the harm and the state action need not be the only one. But the Court must determine whether the state conduct is sufficiently connected to the harm to warrant a finding that section seven is engaged.
A “sufficient causal connection” entails a lower threshold than the “necessary link” standard that the Court rejected in Bedford. At paras 76-77 the Court differentiates between the two:
[76] A sufficient causal connection standard does not require that the impugned government action or law be the only or the dominant cause of the prejudice suffered by the claimant, and is satisfied by a reasonable inference, drawn on a balance of probabilities (Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, at para. 21). A sufficient causal connection is sensitive to the context of the particular case and insists on a real, as opposed to a speculative, link. Understood in this way, a sufficient causal connection standard is consistent with the substance of the standard that the Court of Appeal applied in this case. While I do not agree with the Court of Appeal that causation is not the appropriate lens for examining whether legislation — as opposed to the conduct of state actors — engages s. 7 security interests, its “practical and pragmatic” inquiry (para. 108) tracks the process followed in cases such as Blencoe and Khadr.
[77] The Attorney General of Canada argues for a higher standard. The prejudice to the claimant’s security interest, he argues, must be active, foreseeable, and a “necessary link” (factum, at paras. 62 and 65). He relies on this Court’s statement in Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519 (cited by way of contrast in Blencoe, at para. 69), that “[i]n the absence of government involvement, Mrs. Rodriguez would not have suffered a deprivation of her s. 7 rights.” He also relies on the Court’s statement in Suresh, at para. 54, that “[a]t least where Canada’s participation is a necessary precondition for the deprivation and where the deprivation is an entirely foreseeable consequence of Canada’s participation, the government does not avoid the guarantee of fundamental justice”. These statements establish that a causal connection is made out when the state action is a foreseeable and necessary cause of the prejudice. They do not, however, establish that this is the only way a causal connection engaging s. 7 of the Charter can be demonstrated. [emphasis added]
Thus, the impugned state action need not be a necessary and foreseeable cause of prejducice to the individual’s s. 7 interests. A sufficient causal connection may exist even if the harm is carried out by a third party if the harm is a reasonably foreseeable consequence of the state’s conduct. Thus in Suresh 2001 SCC 1 the Court found that the harm of torture was sufficiently connected to Suresh’s deportation to engage section seven:
54 While the instant case arises in the context of deportation and not extradition, we see no reason that the principle enunciated in Burns should not apply with equal force here. In Burns, nothing in our s. 7 analysis turned on the fact that the case arose in the context of extradition rather than refoulement. Rather, the governing principle was a general one — namely, that the guarantee of fundamental justice applies even to deprivations of life, liberty or security effected by actors other than our government, if there is a sufficient causal connection between our government’s participation and the deprivation ultimately effected. We reaffirm that principle here. At least where Canada’s participation is a necessary precondition for the deprivation and where the deprivation is an entirely foreseeable consequence of Canada’s participation, the government does not avoid the guarantee of fundamental justice merely because the deprivation in question would be effected by someone else’s hand.
In Singh v MEI 1985 1 SCR 177:
- It seems to me that the appellants in this case have an even stronger argument to make than the appellant inMitchell. At most Mr. Mitchell was entitled to a hearing from the Parole Board concerning the revocation of his parole and a decision from the Board based on proper considerations as to whether to continue his parole or not. He had no statutory right to the parole itself; rather he had a right to proper consideration of whether he was entitled to remain on parole. By way of contrast, if the appellants had been found to be Convention refugees as defined in s. 2(1) of the Immigration Act, 1976 they would have been entitled as a matter of law to the incidents of that status provided for in the Act. Given the potential consequences for the appellants of a denial of that status if they are in fact persons with a “well‑founded fear of persecution”, it seems to me unthinkable that the Charterwould not apply to entitle them to fundamental justice in the adjudication of their status.
In Charkoaui v MCI 2007 SCC 9 the Court found that a combination of factors was sufficient to meet the causation test:
14 The detainee’s security may be further affected in various ways. The certificate process may lead to removal from Canada, to a place where his or her life or freedom would be threatened: see e.g. Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at p. 207, per Wilson J. A certificate may bring with it the accusation that one is a terrorist, which could cause irreparable harm to the individual, particularly if he or she is eventually deported to his or her home country. Finally, a person who is determined to be inadmissible on grounds of security loses the protection of s. 115(1) of the IRPA, which means that under s. 115(2), he or she can be deported to torture if the Minister is of the opinion that the person is a danger to the security of Canada.
15 In Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1, this Court stated, at para. 76, that “barring extraordinary circumstances, deportation to torture will generally violate the principles of fundamental justice protected by s. 7 of the Charter.” More recently, the Federal Court has ruled that another certificate detainee is at risk of torture if deported, and that there were no exceptional circumstances justifying such a deportation: Jaballah (Re) (2006), 148 C.R.R. (2d) 1, 2006 FC 1230. The appellants claim that they would be at risk of torture if deported to their countries of origin. But in each of their cases, this remains to be proven as part of an application for protection under the provisions of Part 2 of the IRPA. The issue of deportation to torture is consequently not before us here.
16 The individual interests at stake suggest that s. 7 of the Charter, the purpose of which is to protect the life, liberty and security of the person, is engaged, and this leads directly to the question whether the IRPA’s impingement on these interests conforms to the principles of fundamental justice. The government argues, relying on Medovarski v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 539, 2005 SCC 51, that s. 7 does not apply because this is an immigration matter. The comment from that case on which the government relies was made in response to a claim that to deport a non-citizen violates s. 7 of the Charter. In considering this claim, the Court, per McLachlin C.J., noted, at para. 46, citing Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, at p. 733, that “[t]he most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in Canada”. The Court added: “Thus the deportation of a non-citizen in itself cannot implicate the liberty and security interests protected by s. 7” (Medovarski, at para. 46 (emphasis added)).
17 Medovarski thus does not stand for the proposition that proceedings related to deportation in the immigration context are immune from s. 7 scrutiny. While the deportation of a non-citizen in the immigration context may not in itself engage s. 7 of the Charter, some features associated with deportation, such as detention in the course of the certificate process or the prospect of deportation to torture, may do so.
Therefore the proper test for causation is the Bedford test– i.e. is there a sufficient causal connection between the impugned state action and the consequences which the person faces as a result of the decision.
FEDERAL COURT OF APPEAL JURISPRUDENCE ON THIS ISSUE:
The Federal Court of Appeal in Revell found that the inadmissibility procedure did not engage section seven because it was too remote as there were other steps in the removal process which intervened. As such the Court found insufficient causation at the stage of the inadmissibility proceeding. To support this finding the FCA referred to two Supreme Court of Canada decisions which discussed the issue of Charter engagement in obiter, B010 and Febles
40 It is true that the majority in Febles did not expressly find that section 7 of the Charter has no role to play in the context of section 98 of the IRPA because the life or security of excluded persons is not engaged at that stage. A careful reading of paragraph 67, however, inescapably leads to the conclusion that the rights protected [page379] by section 7 of the Charter are triggered at a later stage, when removal is actually contemplated. In my view, there is no other way to read the following comments:
There is similarly no role to play for the Charter in interpreting s. 98 of the IRPA. … Moreover, as the Court of Appeal held, s. 98 of the IRPA is consistent with the Charter. As stated at para. 10 of these reasons, even if excluded from refugee protection, the appellant is able to apply for a stay of removal to a place if he would face death, torture or cruel and unusual treatment or punishment if removed to that place (ss. 97, 112, 113(d)(i) and 114(1)(b) of the IRPA). On such an application, the Minister would be required to balance the risks faced by the appellant if removed against the danger the appellant would present to the Canadian public if not removed (s. 113(d) of the IRPA). Section 7 of the Charter may also prevent the Minister from issuing a removal order to a country where Charter– protected rights may be in jeopardy….
41 This reading of Febles is borne out by the obiter comments of the Chief Justice (writing for a unanimous Court) one year later in B010. Having concluded that the appellants in that case were not caught by paragraph 37(1)(b) of the IRPA, because that provision was meant to target people smugglers, i.e., “procuring illegal entry in order to obtain, directly or indirectly, a financial or other material benefit in the context of transnational organized crime”, as opposed to those who “merely aided in the illegal entry of other refugees or asylum-seekers in the course of their collective flight to safety” (at paragraph 72), the Court [in B010 ] went on to address the alternative argument that paragraph 37(1)(b) was overbroad in the following terms (at paragraph 75):
The argument [that para. 37(1)(b) is overbroad and violates s. 7 of the Charter] is of no assistance in any event, as s. 7 of the Charter is not engaged at the stage of determining admissibility to Canada under s. 37(1). This Court recently held in [Febles ] … that a determination of exclusion from refugee protection under the IRPA did [page380] not engage s. 7, because “even if excluded from refugee protection, the appellant is able to apply for a stay of removal to a place if he would face death, torture or cruel and unusual treatment or punishment if removed to that place” (para. 67). It is at this subsequent pre-removal risk assessment stage of the IRPA’s refugee protection process that s. 7 is typically engaged. The rationale from Febles, which concerned determinations of “exclusion” from refugee status, applies equally to determinations of “inadmissibility” to refugee status under the IRPA.
42 The appellant does not directly address this jurisprudence in his submissions. Rather, he argues that its underlying principle runs counter to the low causation standard for engaging section 7 set out in Bedford. This thesis is best explained by Professor Gerald Heckman in “Revisiting the Application of Section 7 of the Charter in Immigration and Refugee Protection” (2017), 68 U.N.B.L.J. 312 (at page 351):
…. The argument [of prematurity] appears to be that s. 7 is not engaged at [the ID stage] because there are steps later in the process more directly and foreseeable linked to a deprivation of a non-citizen’s s. 7 interests where the person’s circumstances can be scrutinized to ensure that this deprivation complies with the principles of fundamental justice. This reasoning implies a standard of causation more onerous than the “sufficient causal connection” standard adopted by the Supreme Court in Bedford. It requires that state action be a foreseeable and necessary cause of the prejudice to the person’s s. 7 interests – a standard expressly rejected in Bedford….
43 I note, first, that this very same argument was raised and squarely rejected by this Court in J.P., and also dismissed on appeal (albeit in obiter) in B010 (at paragraph 75). The decision of the Supreme Court in that case and in Febles postdate Bedford, and it is fair to assume that the Court was aware of its previous decision and did not see any inconsistency between its holdings. There are, indeed, compelling and principled reasons to find no such inconsistency.
The Federal Court of Appeal found that the Bedford causation test does not apply:
45 I take Bedford to stand for the proposition that there must be a sufficient link between the impugned legislation (or state action) and the infringement of an individual’s right for section 7 to be engaged. In other words, Bedford speaks to the cause of the prejudice, not to its foreseeability, as is the case here. What is uncertain here is not whether the state will eventually be responsible for the deportation if it actually occurs, but whether the likelihood of it is real enough to take it outside the realm of pure speculation and engage the rights protected by section 7 of the Charter. The Supreme Court and this Court have held in a long line of cases that the nexus between the ineligibility determination and deportation is not close enough to trigger the right to life, [page382] liberty, and security. As mentioned earlier, an admissibility hearing is but one step in a complex, multi-tiered inadmissibility determination and removal regime under the IRPA. Section 7 of the Charter cannot be interpreted as requiring that an assessment of a person’s right be made at every step of the process. In a nutshell, I am of the view that Bedford has not displaced the extensive jurisprudence affirming that an inadmissibility finding is distinct from effecting removal.
As such the position of the FCA was that the engagement of section seven was too remote within the context of the inadmissibility proceeding because there were other intermediary steps.
The Court also relied on the existence of other remedies or so called safety valves which they stated were available to conclude that section seven was not engaged:
46 The appellant claims that inadmissibility findings are especially proximate to deportation for permanent residents like him, for whom Parliament has eliminated the possibility of an IAD appeal and has barred H&C applications. Indeed, once the ID determines that a permanent resident is inadmissible, such individuals revert to “foreign national” status and become legally vulnerable to an enforceable removal order pursuant to paragraph 49(1)(a) of the IRPA. That being said, foreign nationals in Mr. Revell/s position have access to other administrative processes to challenge their removal, as mentioned in paragraphs 10 to 12 of these reasons.
47 Of particular relevance in this case is subsection 42.1(1) of the IRPA, which allows a permanent resident who has been found inadmissible for having engaged in organized crime to apply to the Minister of Public Safety and Emergency Preparedness for discretionary relief from that inadmissibility on the basis that such relief is not contrary to the national interest. The Minister may also, on his own initiative, declare that the ground of organized criminality of a foreign national does not constitute inadmissibility if he is satisfied that it is not contrary to the national interest (subsection 42.1(2)); in determining whether to make such declaration, the Minister may consider national security and public safety considerations, including, but not limited to, the danger that the applicant presents to the public in Canada (subsection 42.1(3)).
48 If such relief is granted, a foreign national is then eligible to make an H&C application under section 25 of the IRPA. If the relief is not granted, the foreign national may nevertheless apply for an exceptional temporary resident permit allowing him or her to remain in Canada for a finite period of time; this permit is discretionary and may be renewed (the IRPA, section 24).
49 Even if declared inadmissible, a foreign national may still apply for a PRRA to determine whether they would be at risk in the country of return, including exposure to a risk of torture, risk to their life, or risk of cruel and unusual treatment or punishment. If positive, the PRRA decision has the effect of staying the applicant’s removal order (sections 96-97, 112-113 of the IRPA; Covarrubias v. Canada (Minister of Citizenship and Immigration), 2006 FCA 365, [2007] 3 F.C.R. 169 (Covarrubias), at paragraphs 16-18. In the case at bar, this mechanism was of no avail to the appellant, since his assertion of psychological harm resulting from his deportation falls outside the scope of a PRRA officer’s jurisdiction.
50 Finally, the person subject to removal may request that it be deferred. Admittedly, the CBSA officer to whom such a request is made has only limited discretion to determine when it is possible, pursuant to section 48 of the IRPA, for a removal order to be executed. The circumstances that will typically be taken into consideration include illness or other impediments to removal, the short-term best interests of children, or the existence of pending immigration applications that were made on a timely basis. Removal may also be deferred where it will expose the applicant to the risk of death, extreme sanction or inhumane treatment (see Lewis, at paragraphs 55, 58; Baron v. Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81, [2010] 2 F.C.R. 311, at paragraphs 49-51; Shpati v. Canada (Public Safety and Emergency Preparedness), 2011 FCA 286, [2012] 2 F.C.R. 133 (Shpati), at paragraphs 43-44).
51 At each and every step of this process, an applicant is entitled to make submissions and to be represented by counsel, may challenge any decision by way of an application for judicial review before the Federal Court, and may seek a stay of removal pending the determination of such an application. More importantly for Mr. Revell, this Court has made it clear that the Federal Court has more leeway than an enforcement officer when considering a request for a stay. Upon judicial review of a decision by an enforcement officer not to defer removal, the Federal Court is empowered to (and in my view must) assess any risk of harm that has been overlooked by the enforcement officer in order to determine whether the rights protected by section 7 of the Charter are engaged (see Shpati, at paragraphs 49-51; Atawnah v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 144, [2017] 1 F.C.R. 153, at paragraphs 18-23; Savunthararasa v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 51, sub nom. Peter v. Canada (Public Safety and Emergency Preparedness), [2017] 1 F.C.R. 318(Savunthararasa), at paragraph 26).
52 There are thus a number of safety valves in the IRPA ensuring that the deportation process as a whole is in accordance with the principles of fundamental justice. The admissibility hearing before the ID is clearly not the last step in that complex process, and every person, including the applicant, is provided with an opportunity to have his or her Charter rights fully assessed before being removed from Canada. The Judge did not err in finding that Mr. Revell could reiterate the submissions that could not be entertained by the PRRA officer if and when he seeks a deferral of his removal at a later stage of his deportation process (F.C. Reasons, at paragraph 110).
Finally the Federal Court of Appeal held that it was bound by the Medovarski decision to conlude that the psychological stress associated with deportation could not engage section seven:
77 The point at which the psychological impact of state action meets the threshold to trigger section 7 rights is obviously not easily determined. As Chief Justice Lamer put it in G. (J.), “[d]elineating the boundaries protecting the individual’s psychological integrity from state interference is an inexact science” (at paragraph 59). That being said, I would be inclined to think that uprooting an individual from the country where he has spent the better part of his life (and all of his adult life) and deporting him to a country that he barely knows and where he has no significant relationships, where his prospects of employment are at best grim, and where it is highly unlikely that he will ever be able to reunite with his immediate family, goes beyond the normal consequences of removal. The harms alleged here are arguably far greater than the ones the Supreme Court referred to in G. (J.) as the “ordinary stresses and anxieties that a person of reasonable sensibility would suffer as a result of government action” (at paragraph 59). Contrary to the situation that was considered in Stables v. Canada (Citizenship and Immigration), 2011 FC 1319, [2013] 3 F.C.R. 240, 400 F.T.R. 135 (Stables), there is evidence tending to show that the stresses Mr. Revell would experience if removed to his country of origin would be far greater than the normal consequences of deportation.
78 However, the decision of the Supreme Court in Medovarski remains: deportation and its attendant psychological stresses do not engage the section 7 security of the person interest. I am thus prevented from [page397] concluding that Mr. Revell’s security interest is engaged by deportation, even when accompanied by typical or grave state-imposed psychological stress. I appreciate that the Court only devoted one paragraph to that issue, and that the gist of the appeal was not whether the psychological stress of being deported engaged section 7 but rather what interpretation should be given to the newly enacted section 196 of the Act. It is also true that the Court did not explicitly consider the particular circumstances of the appellants in that case. One could therefore try to distinguish it on the basis that Ms. Medovarski had been in Canada for less than five years when a removal order was issued against her, as opposed to more than forty years here. However, as noted by the respondent, the other claimant in Medovarski (Mr. Esteban) had lived in Canada for over 20 years and had immigrated at age 11. I am not convinced that these are sufficient bases on which to reject the application to the present appeal of the principle for which this case stands.
79 The Supreme Court has never seen fit to stray from the basic premise underlying Medovarski, merely stressing that deportation in itself will not be sufficient to engage liberty and security interests (Charkaoui, at paragraph 16-17). This is a far cry from a repudiation of its core finding. As a result, I feel bound to conclude that the predicaments which Mr. Revell will face if deported to England, as harsh as they may be, do not amount to a deprivation of his right to security under section 7 of the Charter.
As we will see in the following section the Supreme Court decision in the Canadian Council case expressly repudiates this position and holds that the question of the engagement of section seven requires an analysis of the impact of the state’s conduct on the individual.
THE CANADIAN COUNCIL CASE OVERTURNS REVELL
The Minister will undoubtedly argue that the Canadian Council case do not alter the law with respect to the engagement of section seven. In one recent case we received the following submissions:
But for a brief mention of admissibility and exclusion and Section 7 engagement, where no decision is made either way, the Court focused on the methodology of the challenge of a law using the Charter. Had the Supreme Court intended to make a decision about Section 7 applicability to IRPA proceedings, the Minister submits they would have done so, directly. Instead, the Court mentioned it, in order to highlight the different legal or scholarly positions taken on the issue; the Court left the matter there. The Minister submits that the previous jurisprudence is therefore left undisturbed and should be followed. Absent a clear ruling on the issue, which cases such as Revell provide, the previous law is still good law and should be followed accordingly.
This is clearly incorrect. The Supreme Court’s decision is on section seven. The Court spends a considerable amount of time in its judgment discussing whether or not section seven is engaged and concludes that it is. The finding that section seven is engaged is not obiter but an essential part of the decision.
Having found that section seven is engaged the Court then goes on to consider whether the legislation results in a breach of fundamental justice due to overbreadth or gross disproportionality. It funds that it is not inconsistent with fundamental justice. The analysis of the section seven engagement reveals clear disagreements with the Federal Court of Appeal’s reasoning in Revell.
As opposed to the Federal Court of Appeal, the Supreme Court holds that the Bedford proximity test is the correct one for determining the causal connection between the state action and the harm that the person faces. At issue in the Canadian Council case was whether or not the conduct of Canadian officials in sending refugee claimants back to the United States engaged section seven of the Charter, i.e. whether or not there was a sufficient causal connection between the conduct of the Canadian officials and the potential consequences that might occur in the United States. In finding that there was a sufficient causal connection the Supreme Court of Canada expressly concluded that the causation test set out in Bedford applied to the question of whether section seven is engaged. This is found in the following portions of the judgment.
7 Further, I agree with the Federal Court judge’s findings that the liberty and security of the person interests of refugee claimants are engaged by the Canadian legislation that renders their claims ineligible. Specifically, I reject the notion that the claimants’ s. 7 interests are not engaged simply because the legislation contains measures that could ultimately have offered protection. This, I think, rests on a misunderstanding of Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431, and is inconsistent with this Court’s approach to s. 7 set out in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101.
This is repeated again several times later in the judgment where the Court notes:
22 The Federal Court judge found that the Charter applied. Deprivations effected by foreign actors remain “subject to the guarantee of fundamental justice, as long as there is a sufficient causal connection between our government’s participation and the deprivation” (para. 100, citing Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; see also Federal Court reasons, at para. 93, citing Bedford, at paras. 58 and 75-76).
[…]
56 To establish a violation of s. 7 of the Charter, challengers must first show that the impugned legislation deprives them of life, liberty or security of the person. This analysis asks whether the legislation “engage[s]” those interests, in the sense that it causes a limitation or negative impact on, an infringement of, or an interference with them (Carter, at para. 55; see also Bedford, at paras. 57-58, 90 and 111). A risk of such a deprivation suffices (see, e.g., Carter, at para. 62; R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571, at para. 89; Suresh, at para. 27). Second, challengers must show that the deprivation is not in accordance with the principles of fundamental justice.
[…]
60 This Court has long recognized that, to succeed, a Charter claim must show a causal link between state action and the violation of the relevant right or freedom (see, e.g., Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at p. 447, per Dickson J., as he then was). In Bedford, this Court held that a “sufficient causal connection” must be established, which does not require that the impugned state action “be the only or the dominant cause of the prejudice suffered by the claimant” (para. 76). As a result, the mere fact that other forms of state action may also have a causal connection to the harms alleged does not mean that a challenge to legislation — such as s. 159.3 of the IRPR — is improperly constituted.
[…]
72 Some have suggested that because curative mechanisms are available, refugee claimants’ s. 7 interests are not engaged at the exclusion or inadmissibility determination stage. This assertion rests on a statement in B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704, that it is at the “subsequent pre-removal risk assessment stage of the IRPA’s refugee protection process that s. 7 is typically engaged” rather than earlier stages (para. 75). This comment in B010 relied on a passage from Febles, which spoke to the Charter-compliance of an exclusion provision in the IRPA. Some scholars have criticized this view of curative mechanisms’ role in engagement, saying that dicta from these cases should not deflect analysis from this Court’s approach to s. 7 engagement established in other contexts (see Heckman, at p. 313; C. Grey, “Thinkable: The Charter and Refugee Law after Appulonappa and B010” (2016), 76 S.C.L.R. (2d) 111, at pp. 131-35 and 139; see also H. Stewart, Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms (2nd ed. 2019), at pp. 77-81 and 342).
73 Febles stated that an exclusion provision was “consistent” with s. 7 of the Charter (para. 67). In line with Bedford and PHS, Febles should not be read as conflating the engagement and the principles of fundamental justice stages of the s. 7 analysis. As for B010, I observe that this Court ordered a new hearing in that appeal as a matter of statutory interpretation and found it unnecessary to consider the appellants’ s. 7 challenge (para. 74). The brief comment that it is only at the pre-removal stage that “s. 7 is typically engaged” was neither a formal statement of the law nor necessary to decide the case (para. 75). It should not be taken to have changed the established law on s. 7 engagement. It is helpful to recall that in other contexts, such as extradition, s. 7 “permeates” the entire process and is “engaged, although for different purposes” at each stage of the proceedings (United States of America v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587, at para. 34, per Arbour J.). In the context of ineligibility under s. 101(1)(e) of the IRPA, where curative measures are key to the s. 7 analysis, such measures are thus best understood as relevant to the principles of fundamental justice rather than to the threshold question of engagement, in keeping with this Court’s methodology in Bedford (see, e.g., Heckman, at pp. 347-56).
[…]
84 The respondents rightly acknowledge that assessing the constitutional implications of effects that materialize in other countries does not amount to applying the Charter to foreign governments. Here, the challenge is directed at the legislative scheme, which is undoubtedly state action that attracts Charter scrutiny. There is no place in this analysis for assessing whether American laws, policies or actions themselves comply with the Charter. Canadian courts only consider deprivations “effected by actors other than our government, if there is a sufficient causal connection between our government’s participation and the deprivation ultimately effected” (Suresh, at para. 54). Canada cannot “avoid the guarantee of fundamental justice merely because the deprivation in question would be effected by someone else’s hand” (ibid.; see also Canada v. Schmidt, [1987] 1 S.C.R. 500, at p. 522; United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, at paras. 59-60; India v. Badesha, 2017 SCC 44, [2017] 2 S.C.R. 127, at para. 38). But the focus remains fixed on the Canadian legislative scheme and its effects.
Thus, the decision of the Supreme Court in Canadian Council is clear on several points.
First, it ruled that there was a sufficient causal connection between the conduct of Canadian officials and the possible Charter breaches occurring in the United States which included the potential for detention and refoulement.
Second, it ruled that the Bedford test for causation applies and that in each case in order to determine whether or not there is sufficient causation the Bedford test applies: “In Bedford, this Court held that a “sufficient causal connection” must be established, which does not require that the impugned state action “be the only or the dominant cause of the prejudice suffered by the claimant” (para. 76).” The Court applies this test in their decision to find sufficient causation:
108 The risks of detention upon return to the United States, as well as three aspects of detention conditions as found by the Federal Court judge — the use of medical isolation, abnormally cold conditions and deficiencies in medical care — fall within the scope of liberty and security of the person. Beyond that, to take the appellants’ position on s. 7 engagement at its highest, I am prepared to proceed on the assumption that the following effects occur and are within the scope of the s. 7 interests: the non-accommodation of religious dietary needs, detention in a facility housing criminally convicted individuals and the risks of refoulement flowing from the one-year bar policy and the United States’ approach to gender-based claims. With these effects in mind, I turn to the causation analysis.
(2) Causal Link to Canadian State Action
109 As noted above, to establish s. 7 engagement, challengers must not only demonstrate effects falling within the scope of the s. 7 interests, but also that these effects are caused by Canadian state action. In domestic matters, the requisite causal link will often be obvious. This is rarely so for cases where the deprivation in question is effected by foreign actors. When connecting harms to Canadian state action, courts must be “sensitive to the context of the particular case” (Bedford, at para. 76). When a challenger seeks to draw a causal connection between Canadian state action and a harm brought about by a foreign actor, the context is meaningfully different from cases in which harms arise through purely domestic processes.
110 Canada has no jurisdiction to dictate the actions of foreign authorities. Thus, to draw a causal connection to Canadian state action, Canadian authorities must have been implicated in how the harms arose. Accordingly, challengers will succeed in drawing a causal connection to Canadian state action “[a]t least where Canada’s participation is a necessary precondition for the deprivation” (Suresh, at para. 54).
111 Further, Canada cannot foresee all the actions that foreign authorities will take. Where there is no basis for Canada to have known that a harm would arise, it would be improper to view those harms as causally connected to Canadian state action. Thus, to draw a causal connection to Canadian state action, it must be shown that Canadian authorities knew, or ought to have known, that the harms could arise as a result of Canada’s actions. This has been expressed through the recognition that challengers will be able to show a causal connection to Canadian state action “[a]t least where … the deprivation is an entirely foreseeable consequence of Canada’s participation” (Suresh, at para. 54 (emphasis added)).
The Court then considers whether the Appellants have made out a case for causation. The Court applies Bedford to conclude that they have and notes:
113 In Bedford, this Court discussed the foreseeability threshold from Suresh and further explained its role (para. 77). Foreseeability, as described in Suresh, can be established “by a reasonable inference, drawn on a balance of probabilities” (Bedford, at para. 76). As is generally true, what is required is “a sufficient connection, having regard to the context of the case” (para. 78). Nevertheless, foreseeability remains useful in an international context where Canada
does not necessarily have full knowledge of how foreign authorities will act (see, e.g., J. C. Hathaway, The Rights of Refugees Under International Law (2nd ed. 2021), at pp. 367-68). To be plain, the foreseeability standard described in Suresh and interpreted in Bedford is binding on this Court.
114 An effect can be shown to be foreseeable in at least two ways (see, e.g., Hathaway, at p. 373). First, challengers can show that Canada had actual knowledge of the risk that the effects would emerge. For example, Parliamentary debates discussing the risks may establish this knowledge. Second, challengers can also show that Canada ought to have known about the risks, such that knowledge can be imputed. Public reporting, academic analysis, and other sources originating outside government may help establish constructive knowledge. While speculation will not suffice, the threshold for constructive knowledge should remain attainable since foreseeability is a “port of entry for s. 7 claims” (Bedford, at para. 78). For example, the threshold should remain well below the strict approach taken to judicial notice (see R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 48).
117 By contrast, the record substantiates that the other negative effects were entirely foreseeable. With respect to the risk of detention, it is plain that Canada knew returnees would be exposed to such a risk. From the earliest consultations on the scope of a possible safe third country agreement, the use of detention in the United States was the subject of debate and study (see, e.g., UNHCR, UNHCR Comments on the Draft Agreement between Canada and the United States of America for “Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries”, July 26, 2002 (online), at p. 3). Similarly, the “one-year bar” and the treatment of gender-based claims were each focal points during the adoption of the agreement (see, e.g., p. 2; Regulatory Impact Analysis Statement, SOR/2004-217, Canada Gazette, Part II, vol. 138, No. 22, November 3, 2004, at p. 1627). Further, Canada ought to have known that returnees were at risk of being subjected to the widespread practice of medical isolation. These infringements of liberty and security of the person are causally connected to Canadian state action and must be assessed in relation to the principles of fundamental justice.
The Minister argues that these sections of the law do not expressly overrule Revell. However, this is simply not correct. A review of the Revell decision makes this clear. The Federal Court of Appeal in Revell found that the inadmissibility procedure did not engage section seven because it was too remote and there were other steps in the removal process which intervened. This is clearly set out in Revell. We note that in Revell the Federal Court of Appeal relies on B010 and Febles and holds that these decisions expressly support their contention[2]:
But, the Supreme Court expressly rejects the notion that the B010 and Febles case have altered the law on the question of causation in immigration matters:
72 Some have suggested that because curative mechanisms are available, refugee claimants’ s. 7 interests are not engaged at the exclusion or inadmissibility determination stage. This assertion rests on a statement in B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704, that it is at the “subsequent pre-removal risk assessment stage of the IRPA’s refugee protection process that s. 7 is typically engaged” rather than earlier stages (para. 75). This comment in B010 relied on a passage from Febles, which spoke to the Charter-compliance of an exclusion provision in the IRPA. Some scholars have criticized this view of curative mechanisms’ role in engagement, saying that dicta from these cases should not deflect analysis from this Court’s approach to s. 7 engagement established in other contexts (see Heckman, at p. 313; C. Grey, “Thinkable: The Charter and Refugee Law after Appulonappa and B010” (2016), 76 S.C.L.R. (2d) 111, at pp. 131-35 and 139; see also H. Stewart, Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms (2nd ed. 2019), at pp. 77-81 and 342).
73 Febles stated that an exclusion provision was “consistent” with s. 7 of the Charter (para. 67). In line with Bedford and PHS, Febles should not be read as conflating the engagement and the principles of fundamental justice stages of the s. 7 analysis. As for B010, I observe that this Court ordered a new hearing in that appeal as a matter of statutory interpretation and found it unnecessary to consider the appellants’ s. 7 challenge (para. 74). The brief comment that it is only at the pre-removal stage that “s. 7 is typically engaged” was neither a formal statement of the law nor necessary to decide the case (para. 75). It should not be taken to have changed the established law on s. 7 engagement. It is helpful to recall that in other contexts, such as extradition, s. 7 “permeates” the entire process and is “engaged, although for different purposes” at each stage of the proceedings (United States of America v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587, at para. 34, per Arbour J.). In the context of ineligibility under s. 101(1)(e) of the IRPA, where curative measures are key to the s. 7 analysis, such measures are thus best understood as relevant to the principles of fundamental justice rather than to the threshold question of engagement, in keeping with this Court’s methodology in Bedford (see, e.g., Heckman, at pp. 347-56).
What is also noteworthy is that the Federal Court of Appeal takes issue with Professor Heckman’s (as he then was, as he has since been appointed to the Federal Court of Appeal) article, whereas the Supreme Court of Canada expressly endorses his article.
As such, the Supreme Court rejects the holding that B010 and Febles have altered the law on causation. The Supreme Court makes it clear that the test to be applies is a “sufficient causal connection” must be established, which does not require that the impugned state action “be the only or the dominant cause of the prejudice suffered by the claimant”.
Finally the Supreme Court of Canada takes issue with the notion that the existence of safety valves is relevant to the question of whether or not section seven is engaged. The Court noted:
[71] At the engagement stage, preventative provisions can tailor a provision of general application so carefully that it never threatens s. 7 interests. For instance, s. 159.6 of the IRPR prevents the threat to life that might emerge from returning individuals subject to the death penalty. In so doing, preventative provisions like s. 159.6 rule out certain s. 7 engagements. By contrast, curative provisions will rarely, if ever, preclude the engagement of s. 7. PHS provides direct support for this proposition, as this Court held that the general prohibition on possession engaged s. 7 despite the availability of safety valves. Curative provisions create exceptional departures from a general rule; they are typically available only after a determination that the general rule applies. The possibility of obtaining an exemption is therefore a path through which the risks the general rule poses to life, liberty or security of the person can sometimes be avoided. In such cases, the threat to the s. 7 interests persists, but it does not always materialize.
[72] Some have suggested that because curative mechanisms are available, refugee claimants’ s. 7 interests are not engaged at the exclusion or inadmissibility determination stage. This assertion rests on a statement in B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704, that it is at the “subsequent pre‑removal risk assessment stage of the IRPA’s refugee protection process that s. 7 is typically engaged” rather than earlier stages (para. 75). This comment in B010 relied on a passage from Febles, which spoke to the Charter‑compliance of an exclusion provision in the IRPA. Some scholars have criticized this view of curative mechanisms’ role in engagement, saying that dicta from these cases should not deflect analysis from this Court’s approach to s. 7 engagement established in other contexts (see Heckman, at p. 313; C. Grey, “Thinkable: The Charter and Refugee Law after Appulonappa and B010” (2016), 76 S.C.L.R. (2d) 111, at pp. 131‑35 and 139; see also H. Stewart, Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms (2nd ed. 2019), at pp. 77‑81 and 342).
[73] Febles stated that an exclusion provision was “consistent” with s. 7 of the Charter (para. 67). In line with Bedford and PHS, Febles should not be read as conflating the engagement and the principles of fundamental justice stages of the s. 7 analysis. As for B010, I observe that this Court ordered a new hearing in that appeal as a matter of statutory interpretation and found it unnecessary to consider the appellants’ s. 7 challenge (para. 74). The brief comment that it is only at the pre-removal stage that “s. 7 is typically engaged” was neither a formal statement of the law nor necessary to decide the case (para. 75). It should not be taken to have changed the established law on s. 7 engagement. It is helpful to recall that in other contexts, such as extradition, s. 7 “permeates” the entire process and is “engaged, although for different purposes” at each stage of the proceedings (United States of America v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587, at para. 34, per Arbour J.). In the context of ineligibility under s. 101(1)(e) of the IRPA, where curative measures are key to the s. 7 analysis, such measures are thus best understood as relevant to the principles of fundamental justice rather than to the threshold question of engagement, in keeping with this Court’s methodology in Bedford (see, e.g., Heckman, at pp. 347‑56).
The existence of these safety valves was the basis for the Federal Court’s finding that the admissibility proceedings were too remote. [3]
Therefore it is clear that the Supreme Court disagreed with the reasoning of the Federal Court of Appeal in Revell because:
- The Court affirmed that the Bedford causation test applies to all immigration matters and that as in the case of extradition section seven permeates the deportation process;
- The Bedford causation test requires an assessment of the consequences of state action and an assessment if whether there is a sufficient causal connection between the consequences and state action;
- The Court held that safety valves are not relevant to the issue of whether or not section seven is engaged but should be considered when determining whether the process is consistent with fundamental justice.
- The Court expressly held that neither Febles or B010 were relevant to the analysis of the engagement of section seven and should not be taken to alter the law on the engagement of section seven;
- The Court approved of the comments of Professor Heckman as he then was in his article which the Federal Court of Appeal had disagreed with them. These comments were made in relation to the issue of whether there was sufficient proximity between the inadmissibility decisions and their consequences to engage section seven.
- The Supreme Court recognized that the conduct of individual administrative officials would be subject to Charter scrutiny if the consequences of removal would be a violation of section 7. [4] As such an individual assessment of the consequences of the application of the provision will be required to determine whether or not there is a breach of section seven.
When arguing that section seven is engaged it is important that the applicant present a sufficient evidentiary basis to show the impact of the decision on them. If the applicant is arguing that the proceedings will have a significant impact on the person’s psychological well being then they should adduce evidence from themselves and from their family and from professionals establishing the impact of the proceedings on them. If the impact relates to disclocation, evidence as to the impact on the person of deportation to their country of nationality should also be adduced. Each case will turn on their own facts and evidence sufficient to sustain a Charter claim should be presented.
FUNDAMENTAL JUSTICE
If you succeed in establishing that the person’s right to life, liberty or security of the person are engaged then you must also establish that the proceedings are being conducted in a manner inconsistent with fundamental justice. Here again one must establish the principle that is being violated and adduce evidence to establish the violation
In the Canadian Council case the principles that were raised were overbreadth and gross disproportionality. The Supreme Court found that on the evidence adduced the case for a breach of fundamental justice had not been made out but left open the possibility that an individual could assert in a given case that their rights were breached based on the impact on them of the application of the safe third country agreement.
[1] Carter v Canada, 2015 SCC 5 at para 62.
[2] See Revell par 40-43 quoted above
[3] See Revell par 46-52 quoted above.
[4] See Par 164
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