Revisiting the Application of Section 7 of the Charter in Immigration and Refugee Protection
(2017) 68 University of New Brunswick Law Journal 312
45 Pages Posted: 10 Sep 2017
Date Written: March 31, 2017
The Supreme Court of Canada’s current approach to the application of s. 7 in the immigration and refugee protection context is inconsistent with its approach to s. 7 engagement in other legal regimes. No principled and transparent reasons have yet been offered to justify this discrepancy. Liberty is engaged in removal proceedings under IRPA because this statute effectively establishes an administrative regime to control non-citizens in large measure through the threat of their forced removal from Canada and exposes them to the possibility of detention in order to carry out this threat. Moreover, deportation may in certain circumstances engage non-citizens’ liberty in its broad sense by preventing them from making fundamental personal choices that go beyond the bare assertion of a right to mobility. Non-citizens’ security of the person is engaged where deportation would place them at risk of physical or serious and profound psychological harm, including that caused by the resulting interference with their profoundly intimate and personal choices, regardless of whether this also involves the breach of their statutory rights. Finally, as in other contexts where there is a risk of state deprivation of liberty or security of the person, and consistently with the relaxed standard of causation adopted by the Supreme Court in Bedford, courts should recognize that these s. 7 interests are engaged in the early stages of the administrative process and not only at the stage most proximate to deportation.
Keywords: Charter of Rights and Freedoms, section 7, immigration law, refugee law, liberty, security of the person
JEL Classification: K19, K37
Suggested Citation: Suggested Citation