Singh v. MEI (1985), 58 N.R. 1 (SCC)
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Singh, Thandi, Mann, Singh, Gill, Indrani, Singh v. Minister of Employment and Immigration and Federation of Canadian Sikh Societies and Canadian Council of Churches (intervenors)
(Nos. 17898, 17904, 17952, 17997, 18207, 18209, 18235)
Indexed As: Singh v. Minister of Employment and Immigration
Supreme Court of Canada
Dickson, C.J.C., Ritchie, Beetz, Estey, McIntyre, Lamer and Wilson, JJ.
April 4, 1985.
Summary:
Seven aliens claimed to be Convention refugees. The Minister determined under s. 45 of the Immigration Act that each was not a Convention refugee. Each applied for re- determination of the refugee claim. The Immigration Appeal Board under s. 71 of the Immigration Act refused to let the applications proceed, because there were no reasonable grounds to believe that the claims would be established. The Federal Court of Appeal dismissed the aliens’ applications for judicial review of the board’s decisions. The aliens appealed. The issue on appeal was whether the refugee determination procedure of the Immigration Act denied the aliens 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 guaranteed by s. 7 of the Charter. In particular, the aliens claimed that the lack of an oral hearing violated s. 7.
The Supreme Court of Canada allowed the appeal and unanimously held that the aliens had a right to an oral hearing on re-determination of refugee status before the Immigration Appeal Board. However, the court was evenly divided on the basis of the right to an oral hearing. Beetz, J., with Estey and McIntyre, JJ., concurring, held that the lack of an oral hearing violated the right to a fair hearing in accordance with the principles of fundamental justice guaranteed by s. 2(e) of the Canadian Bill of Rights. Wilson, J., with Dickson, C.J.C., and Lamer, J., concurring, held that s. 7 of the Canadian Charter of Rights and Freedoms guaranteed a right to an oral hearing in the circumstances. The court remitted the applications to the Immigration Appeal Board for a hearing in accordance with the principles of fundamental justice.
Administrative Law – Topic 1218
Classification of power or function – Quasi-judicial – Deportation and related proceedings – Re-determination of refugee status – Three judges of a six judge panel of the Supreme Court of Canada stated that the re-determination of refugee status by the Immigration Appeal Board was a quasi-judicial function – See paragraph 106.
Aliens – Topic 1325
Admission – Refugees – Status of refugee in Canada – Three judges of a six judge panel of the Supreme Court of Canada discussed the limited rights of a Convention refugee to enter and remain in Canada – In particular, it was stated that the protection of the Canadian Charter of Rights and Freedoms extends to refugees and claimants to refugee status – See paragraphs 58 to 66 – It was further stated that the Charter protection extends not only to those in Canada (legally or illegally), but also to those seeking entry – See paragraph 99.
Aliens – Topic 1328
Admission – Refugees – Re-determination of claim to refugee status – Procedure – Right to oral hearing – The Supreme Court of Canada held that a claimant to refugee status had a right to an oral hearing on a re-determination of a claim to refugee status before the Immigration Appeal Board – Three of the six judge panel grounded the right in s. 2(e) of the Canadian Bill of Rights as part of the right to a fair hearing in accordance with the principles of fundamental justice – The other three grounded the right in s. 7 of the Canadian Charter of Rights and Freedoms as part of the principles of fundamental justice – The court held that neither the Bill of Rights nor the Charter guaranteed an oral hearing always, but only when an effective hearing required an oral hearing.
Aliens – Topic 1331
Admission – Refugees – Evidence – The Supreme Court of Canada held that the re-determination of a claim to refugee status by the Immigration Appeal Board was a quasi-judicial function and the board was not entitled to rely on material outside the record which the refugee claimant himself submitted on his application for redetermination – See paragraphs 43, 106.
Civil Rights – Topic 3177
Trials, due process, fundamental justice and fair hearings – Administrative and non-criminal proceedings – Requirement of a hearing – Oral hearing – Re-determination of claim to refugee status – The Supreme Court of Canada held that a claimant to refugee status had a right to an oral hearing on a re-determination of a claim to refugee status before the Immigration Appeal Board – Three of the six judge panel grounded the right in s. 2(e) of the Canadian Bill of Rights as part of the right to a fair hearing in accordance with the principles of fundamental justice – The other three grounded the right in s. 7 of the Canadian Charter of Rights and Freedoms as part of the principles of fundamental justice – The court held that neither the Bill of Rights nor the Charter guaranteed an oral hearing always, but only when an effective hearing required an oral hearing.
Civil Rights – Topic 8303
Canadian Charter of Rights and Freedoms – Effect of – On Canadian Bill of Rights – The Supreme Court of Canada held that the Canadian Bill of Rights continues in full force and effect with the advent of the Canadian Charter of Rights and Freedoms – Three judges of a six judge Supreme Court of Canada panel applied the Bill of Rights in finding a right to an oral hearing on the re-determination of a claim to refugee status, while the other three found the right to an oral hearing in the Charter – See paragraphs 3 to 5, 50.
Civil Rights – Topic 8305
Canadian Charter of Rights and Freedoms – Application – Persons protected – Aliens – Three judges of a six judge Supreme Court of Canada panel held that the protection of the Canadian Charter of Rights and Freedoms, particularly s. 7, extends to aliens, including not only ones in Canada (legally or illegally), but also to those seeking entry – See paragraph 99.
Civil Rights – Topic 8348
Canadian Charter of Rights and Freedoms – Application – Exceptions – Reasonable limits prescribed by law – Three judges of a six judge Supreme Court of Canada panel ruled that the procedures for determining refugee status in the Immigration Act violated s. 7 of the Charter in failing to provide an oral hearing and were not saved as reasonable limits prescribed by law under s. 1 – A utilitarian approach to determining reasonable limits was rejected, particularly the argument that requiring an oral hearing would impose an intolerable burden on the resources of the immigration bureaucracy – See paragraphs 111 to 120.
Civil Rights – Topic 8348
Canadian Charter of Rights and Freedoms – Application – Exceptions – Reasonable limits prescribed by law – Evidence – Three judges of a six judge Supreme Court of Canada panel stressed the importance of building an adequate evidentiary record to support submissions on what constitute reasonable limits prescribed by law in s. 1 of the Charter – See paragraph 113.
Civil Rights – Topic 8363
Canadian Charter of Rights and Freedoms – Denial of rights – Jurisdiction – Court of competent jurisdiction – Charter, s. 24(1) – Aliens applied for judicial review of decisions of the Immigration Appeal Board on re-determination of refugee status under s. 28 of the Federal Court Act – Section 28 restricted the jurisdiction of the Federal Court of Appeal to administrative decisions made on a judicial or quasi-judicial basis – On a further appeal the Supreme Court of Canada held that its jurisdiction was limited by the jurisdiction of the Federal Court of Appeal under s. 28 of the Federal Court Act – Accordingly, the court held that it had jurisdiction over the quasi-judicial function of the Immigration Appeal Board under s. 71 of the Immigration Act in re-determining claims to refugee status, but not over the administrative acts of the Minister under s. 45 of the Immigration Act in initially determining refugee status – See paragraphs 8, 121 to 125.
Civil Rights – Topic 8379
Canadian Charter of Rights and Freedoms – Denial of rights – Remedies – Remittal for hearing – The Supreme Court of Canada held that aliens were improperly denied an oral hearing on re-determination of their claim to refugee status by the Immigration Appeal Board – The court remitted the matters to the Immigration Appeal Board for hearing in accordance with the principles of fundamental justice, including an oral hearing – See paragraphs 31 to 40, 121 to 125.
Civil Rights – Topic 8461
Canadian Charter of Rights and Freedoms – Interpretation – General – Three judges of a six judge Supreme Court of Canada panel in construing the Charter rejected the restrictive approach which sometimes characterized interpretation of the Canadian Bill of Rights – Specifically, they rejected the dichotomy between privileges and rights as an instrument of narrowing the Charter’s scope – See paragraph 96.
Civil Rights – Topic 8469
Canadian Charter of Rights and Freedoms – Interpretation – United States experience – The Supreme Court of Canada in determining the scope of the principles of fundamental justice under the Charter considered the United States Constitution and cases construing it respecting the same problem.
Civil Rights – Topic 8470
Canadian Charter of Rights and Freedoms – Interpretation – International law – Three judges of a six judge Supreme Court of Canada panel considered the United Nations Convention relating to the status of refugees and the Universal Declaration of Human Rights in determining whether the procedure for determining claims to refugee status under the Immigration Act violated Charter rights – See paragraphs 65, 92.
Civil Rights – Topic 8546
Canadian Charter of Rights and Freedoms – Interpretation – Life, liberty and security of the person – Three judges of a six judge Supreme Court of Canada panel held that the infringement of rights of a Convention refugee under the Immigration Act (including the rights of a person claiming refugee status) constitutes the deprivation of the right to life, liberty and security of the person under s. 7 of the Charter – The judges stated that each element of the right to life, liberty and security of the person must be given meaning, so that a deprivation of security of the person would constitute a deprivation of the s. 7 right, notwithstanding that there may be no deprivation of life or liberty – See paragraphs 82 to 89.
Civil Rights – Topic 8547
Canadian Charter of Rights and Freedoms – Interpretation – Principles of fundamental justice – Right to oral hearing and right to know opposing case – Three judges of a six judge Supreme Court of Canada panel held that s. 7 of the Charter guaranteed claimants to refugee status the right to an oral hearing on a re-determination of claims to refugee status by the Immigration Appeal Board – The judges held that s. 7 does not guarantee an oral hearing in all cases, only when an oral hearing is necessary to an effective hearing – The judges stated that fundamental justice includes at a minimum procedural fairness, which is not accorded by the procedure for claiming refugee status in the Immigration Act, where the claimant has a right neither to an oral hearing nor to know the case of the Minister (his real adversary) – See paragraphs 102 to 110.
Civil Rights – Topic 8590
Canadian Charter of Rights and Freedoms – Practice – Evidence – Three judges of a six judge Supreme Court of Canada panel stressed the importance of building an adequate evidentiary record to support submissions on what constitutes reasonable limits prescribed by law in s. 1 of the Charter – See paragraph 113.
Constitutional Law – Topic 1010
Interpretation of Constitution Act – General principles – Requirement that constitutional decisions be avoided or restricted to narrow issue – Three judges of a six judge Supreme Court of Canada panel stated that a case should not be decided on a constitutional ground when not strictly necessary – See paragraph 58.
Statutes – Topic 1831
Interpretation – Intrinsic aids – Preamble – General – Three judges of a six judge Supreme Court of Canada panel in construing the United Nations convention relating to the status of refugees considered the preamble to the Convention – See paragraph 65.
Cases Noticed:
Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376; 3 N.R. 484, consd. [paras. 17, 59, 95].
R. v. Mitchell, [1976] 2 S.C.R. 570; 6 N.R. 389, consd. [paras. 17, 96].
Inuit Tapirisat et al. v. Attorney General of Canada, [1980] 2 S.C.R. 735; 33 N.R. 304, appld. [paras. 22, 69].
Russell v. Duke of Norfolk, [1949] 1 All E.R. 109, appld. [para. 22].
Selvarajan v. Race Relations Board, [1976] 1 All E.R. 12, appld. [para. 23].
Ernewein v. Minister of Employment and Immigration, [1980] 1 S.C.R. 639; 30 N.R. 316, consd. [paras. 29, 66, 77].
Kwiatkowski v. Minister of Employment and Immigration, [1982] 2 S.C.R. 856; 45 N.R. 116, affing. 34 N.R. 237, consd. [paras. 39, 75].
R. v. Drybones, [1970] S.C.R. 282, appld. [para. 41].
City of Toronto v. Outdoor Neon Displays Ltd., [1960] S.C.R. 307, consd. [para. 58].
Rescue Army v. Municipal Court (1947), 331 U.S. 549, consd. [para. 58].
Singh v. Minister of Employment and Immigration, [1982] 2 F.C. 689, refd to. [para. 61].
Boun-Leua v. Minister of Employment and Immigration, [1981] 1 F.C. 259; 36 N.R. 431, consd. [para. 61].
Hardayal v. Minister of Manpower and Immigration, [1978] 1 S.C.R. 470; 15 N.R. 396, refd to. [para. 63].
Brempong v. Minister of Employment and Immigration, [1981] 1 F.C. 211; 36 N.R. 323, refd to. [para. 63].
Hurt v. Minister of Manpower and Immigration, [1978] 2 F.C. 340; 21 N.R. 525, consd. [para. 66].
Mensah v. Minister of Employment and Immigration, [1982] 1 F.C. 70; 36 N.R. 332, consd. [para. 69].
Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; 23 N.R. 410; 80 D.L.R.(3d) 671, appld. [para. 69].
Bates v. Lord Hailsham, [1972] 1 W.L.R. 1373, appld. [para. 69].
Martineau v. Matsqui Institution Disciplinary Board (No. 2), [1980] 1 S.C.R. 602; 30 N.R. 119, appld. [para. 69].
Wieckowska v. Lanthier, [1980] 1 F.C. 655, refd to. [para. 71].
Lugano v. Minister of Manpower and Immigration, [1976] 2 F.C. 438; 13 N.R. 322, consd. [para. 75].
Kwiatkowsky v. Minister of Employment and Immigration (1980), 34 N.R. 237, affd. [1982] 2 S.C.R. 856; 45 N.R. 116, consd. [para. 76].
L’Alliance des Professeurs Catholiques de Montreal v. Labour Relations Board, [1953] 2 S.C.R. 140, consd. [para. 78].
Operation Dismantle Inc. v. Canada, [1983] 1 F.C. 745; 49 N.R. 363, consd. [para. 83].
Singh v. Minister of Employment and Immigration, [1983] 2 F.C. 347; 47 N.R. 189, consd. [para. 86].
Board of Regents of State Colleges v. Roth (1972), 408 U.S. 564, consd. [para. 89].
R. v. Morgentaler, [1976] 1 S.C.R. 616; 4 N.R. 277, refd to. [para. 92].
Curr v. R., [1972] S.C.R. 889, refd to. [para. 92].
R. v. Berrie (1975), 24 C.C.C.(2d) 66, refd to. [para. 92].
Collin v. Lussier, [1983] 1 F.C. 218, consd. [para. 94].
Rebrin v. Bird and Minister of Citizenship and Immigration, [1961] S.C.R. 376, consd. [para. 95].
Louie Yuet Sun v. R., [1961] S.C.R. 70, consd. [para. 95].
U.S. ex rel. Knauff v. Shaughnessy (1950), 338 U.S. 537, consd. [paras. 95, 100].
Japanese Immigrant Case (1903), 189 U.S. 86, consd. [para. 100].
Shaughnessy v. U.S. ex. rel. Mezei (1953), 345 U.S. 206, consd. [para. 100].
Immigration and Naturalization Service v. Chadha (1983), 77 L. Ed.(2d) 317, consd. [para. 101].
Duke v. R., [1972] S.C.R. 917, appld. [para. 103].
Stein v. Ship “Kathy K”, [1976] 2 S.C.R. 802; 6 N.R. 359, consd. [para. 105].
Permaul v. Minister of Employment and Immigration (1983), 53 N.R. 323, refd to. [para. 106].
Saraos v. Minister of Employment and Immigration, [1982] 1 F.C. 304; 36 N.R. 305, refd to. [para. 106].
Skapinker v. Law Society of Upper Canada, [1984] 1 S.C.R. 357; 53 N.R. 169, consd. [para. 113].
Statutes Noticed:
Canadian Bill of Rights, sect. 1, sect. 2(e) [para. 9]; sect. 5(2) [para. 41].
Canadian Charter of Rights and Freedoms, sect. 1 [para. 111]; sect. 7 [para. 81]; sect. 24(1) [para. 121]; sect. 26 [paras. 4, 50]; sect. 32(1) [para. 80]; sect. 52(1) [para. 121].
Immigration Act, S.C. 1976-77, c. 52, sect. 2(1) [paras. 24, 67]; sect. 2(2), sect. 3(g) [para. 64]; sect. 45 [para. 68]; sect. 71 [para. 74]; sect. 70, sect. 71 [para. 35].
Evidence Act, S.C. 1980-81-82-83, c. 111, Sch. III, sect. 36.1 [para. 108].
United Nations Convention Relating to the Status of Refugees [para. 65].
United States Constitution, 14th Amendment [para. 89].
Universal Declaration of Human Rights (1948), Article 25, para. 1 [para. 92].
Authors and Works Noticed:
Garant, Fundamental Freedoms and Natural Justice, Canadian Charter of Rights and Freedoms (1982), Tarnopolsky and Beaudoin, eds., pp. 264-265, 271-274 [para. 92].
Law Reform Commission (Canada), Medical Treatment and Criminal Law (1980), p. 6 [para. 92].
Manning, Rights, Freedoms and the Courts: A Practical Analysis of the Constitution Act, 1982 (1983), pp. 249-254 [para. 92].
Pue, Natural Justice in Canada (1981), pp. 82-84 [para. 78].
Tarnopolsky, The Canadian Bill of Rights (2nd Ed. 1975), p. 273 [para. 95].
Tarnopolsky and Beaudoin, Canadian Charter of Rights and Freedoms (1982), pp. 264-265, 271-274 [para. 92].
Scharpf, Judicial Review and the Political Question: A Functional Analysis (1966), 75 Yale L.J. 517, 578-583 [para. 100].
Counsel:
Ian Scott, Q.C., and C.D. Coveney, for Satnam Singh.
E.A. Bowie, Q.C., and Roslyn Levine, for the respondent.
Mendel Green, Q.C., Barbara Jackman and Donald Chiasson, for the intervenants.
This case was heard on April 30 and May 1, 1984, at Ottawa, Ontario, before Dickson, C.J.C., Ritchie, Beetz, Estey, McIntyre, Lamer and Wilson, JJ., of the Supreme Court of Canada.
On April 4, 1985, the judgment of the Supreme Court of Canada was delivered and the following opinions were filed:
Beetz, J. – see paragraphs 1 to 46;
Wilson, J. – see paragraphs 47 to 126.
Estey and McIntyre, JJ., concurred with Beetz, J.
Dickson, C.J.C., and Lamer, J., concurred with Wilson, J.
Ritchie, J., did not participate in the judgment.
