68 U.N.B.L.J. 312 (2017)
Revisiting the Application of Section 7 of the Charter in Immigration and Refugee Protection

handle is hein.journals/unblj68 and id is 318 raw text is: 




     REVISITING THE APPLICATION OF SECTION 7 OF THE
   CHARTER IN IMMIGRATION AND REFUGEE PROTECTION




                              Gerald   Heckman*


I. Introduction

Section 7 of the Canadian Charter of Rights and Freedoms  states that 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.' To
establish an infringement of s. 7, it is necessary to establish first, that state action has
resulted in depriving an individual of their life, liberty or security of the person and
second, that this deprivation was achieved in a manner inconsistent with one or more
principles of fundamental justice. This article focuses on the first step of the analysis:
whether  proceedings  under  Canada's  immigration   and refugee  protection laws
engage the life, liberty or security of the person of non-citizens.

         The very first case decided by the Supreme Court of Canada involving a s. 7
claim outside of the criminal context was Singh v Canada  (Minister of Employment
and  Immigration).2 Three of six judges recognized that the denial of a Convention
refugee's right under the Immigration Act, 1976 not to be removed from Canada to a
country where  his life or freedom would be threatened amounted to a deprivation of
his security of the person  within the meaning   of s. 7. Justice Bertha Wilson's
judgment  in Singh  is remarkable  in several ways.3 It established that the word
everyone  in s. 7 applies to every human being physically present in Canada and
by virtue of such presence amenable  to Canadian law. It recognized that security
of the person encompasses  not only freedom from physical punishment  or suffering
but freedom  from the threat of such punishment. In determining whether s. 7 of the
Charter  applied to government  acts, it refused to embrace the distinction between
acts said to impact rights and those affecting mere privileges, focusing instead
on their consequences for the affected person's s. 7 interests.


* Associate Professor, Faculty of Law, University of Manitoba. I thank my colleagues Professors Audrey
Macklin and Colin Grey for their comments on an earlier draft of this manuscript. I also thank the
anonymous reviewers and the editorial staff of the University of New Brunswick Law Journal for their
efforts in preparing this article for publication. All errors and omissions are mine alone.
' Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the
Canada Act 1982 (UK), 1982, c 11 [Charter].
2  Singh v Canada (Minister of Employment and Immigration), [1985] 1 SCR 177, 17 DLR 4th 422
[Singh].
See  generally Catherine Dauvergne, How the Charter Has Failed Non-Citizens in Canada: Reviewing
Thirty Years of Supreme Court of Canada Jurisprudence (2013) 58 McGill LJ 663 at 668-671
[Dauvergne, How the Charter Has Failed].

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