Methodology

We conducted a search on the UN’s Office of the High Commissioner for Human Rights (OHCHR) treaty bodies search engine to identify individual complaints filed against Canada. The search was filtered by geographic region (Americas; Canada), by committee (CAT, HRC, and CEDAW Committee), and by document type (jurisprudence; follow-up on jurisprudence). As stated, the date range was set from 1 January 2008 to 31 December 2018. This search yielded a total of ninety-seven communications. All communications found were analyzed for subject matter. We noted whether or not the communication was filed by an individual who was not a Canadian citizen and who was alleging a violation of their rights and freedoms that intersects with the IRPA. A total of eighty-one communications were submitted by non-citizens (that is, asylum seekers, undocumented migrants, or permanent residents). The remaining sixteen communications included a multitude of different complaints made by Canadian citizens regarding the alleged violation of, for instance, the principle of non-discrimination or the right to a fair trial. These citizen-lodged complaints were excluded from review. Through further analysis, we found that fourteen communications were discontinued,^{Footnote 30} three were duplicates, and two were against another country and were erroneously filed in the UN database as complaints against Canada. Consequently, these nineteen communications were excluded from further review. This left us with a dataset of sixty-two communications in total.

We analyzed all sixty-two communications using a table we created that organized the communications according to the following criteria: the treaty the complaint was made under; the articles allegedly violated; legal representation; and admissibility. If the communication was found inadmissible, we analyzed the reasons for such decisions to compare and contrast them and to identify emerging patterns in the facts of the cases and the reasoning of the UN committees in terms of the admissibility review. Likewise, in our analysis of the admissible communications, we paid close attention to the assessment of facts, evidence, and arguments presented by both the government and the complainant(s) in each case. This allowed us to identify common themes and assessment criteria and to compare the reasoning of the committees.

The Nature and Outcome of the Complaints against Canada

In this section, we describe our findings as to the nature and the outcome of the individual complaints lodged against Canada before the three UN committees. As previously noted, the vast majority of the complaints against Canada between 2008 and 2018 were lodged by non-citizens. To repeat, seventy-six cases (78.3 percent) — including the fourteen discontinued ones — out of ninety-seven cases in total were submitted by non-citizens alleging a violation of their rights that intersects with the IRPA. Complainants belonged to one of the following groups of non-citizens: (1) asylum seekers whose refugee claims were refused by authorities; (2) undocumented migrants; or (3) permanent residents ordered deported from Canada.

All three of the UN committees are represented in the sixty-two communications lodged by non-citizens. However, the volume of complaints lodged under the ICCPR, the Convention against Torture, and the CEDAW differs greatly. Those made under the ICCPR and the Convention against Torture were comparable; thirty complaints were filed under the former and twenty-nine complaints under the latter. Only three complaints were filed under the CEDAW, indicating that this treaty has been rarely used to lodge a complaint against Canada within the time period analyzed. These figures are consistent with the findings of scholars like Roeland Böker and Wade Cole who have analyzed the use of UN complaints mechanisms in some Western European countries.^{Footnote 31} They confirm that the CEDAW is rarely used in the Netherlands and Iceland, for instance.^{Footnote 32} An evaluation of the CEDAW Committee’s communications conducted by Loveday Hodson concludes that the CEDAW currently has not been able to blaze a trail in relation to communications of asylum claims.^{Footnote 33}

DECISIONS ON ADMISSIBILITY AND ON THE MERITS

Of the sixty-two communications lodged by non-citizens, twenty-five were deemed inadmissible. All three CEDAW communications were inadmissible, as they were found not to be substantiated enough to trigger a review on the merits. Seventeen out of the thirty-seven admissible communications in our sample were filed under the Convention against Torture and twenty under the ICCPR (see Table 1). Most of the communications were inadmissible for two reasons: a complainant’s failure to substantiate claims sufficiently and/or their failure to exhaust domestic remedies. We will discuss this point later in the article.

Table 1: Communications by committee and admissibility

As to the merits, in nineteen communications, the committees found that Canada had not violated the rights of the complainant, while, in eighteen communications, they found a rights violation. Therefore, in roughly half of all admissible complaints, it was determined that Canada had violated a complainant’s rights under the treaty under which the case was filed. The HRC found a rights violation in 65 percent of the admissible communications submitted against Canada by non-citizens. This compares to 29.4 percent of such communications where the CAT found a violation. Thus, within the Canadian context, while both the Convention against Torture and the ICCPR have similar numbers of complaints filed under them and have comparable admissibility rates, complaints filed under the ICCPR are more than twice as likely to be successful than those filed under the Convention against Torture (see Table 2). This discrepancy may be due to the much narrower content focus under the Convention against Torture as compared to the ICCPR. Unlike the former, which specifically deals with the protection against torture or cruel, inhumane, or degrading punishment, the ICCPR sets forth numerous political and civil rights, some of which can be invoked jointly by claimants. Moreover, Article 7 of the ICCPR (which prohibits torture or cruel, inhumane, or degrading punishment) mirrors Article 3 of the Convention against Torture. In other words, in cases where multiple alleged rights violations may be present, including the breach of this prohibition, an individual can reasonably be expected to submit a complaint to the HRC rather than to the CAT because of the broader scope of the ICCPR (see discussion later in this article). For example, in each of two HRC communications, we noticed that the claimants alleged a violation of as many as nine articles, with both communications resulting in a violation finding.^{Footnote 34} One could argue that, in such cases, complaints filed with the HRC would have a higher rate of success than those filed with the CAT. However, other factors may influence the difference found in the success rate of HRC and CAT communications, and it is beyond the scope of our analysis to determine exactly why such a difference is present.

Table 2: Committee decisions on the merits of admissible communications

With respect to the allegations made, in the vast majority of the cases, complainants held that their deportation from Canada would amount to a violation of their human rights and, notably, of the principle of non-refoulement. In relation to the CAT, all twenty-nine communications analyzed alleged a violation of Article 3 of the Convention against Torture and, notably, of the non-refoulement principle. The CAT found a violation in five out of seventeen admissible communications (29.4 percent). Before the HRC, all but five communications out of thirty included an allegation of violation of Article 7 of the ICCPR (the prohibition of torture or cruel, inhumane, or degrading punishment). The HRC found a violation of this provision in eight out of thirteen admissible communications (61.5 percent).

These findings are consistent with the extant literature that suggests that these types of cases are regularly submitted to the UN treaty bodies from other countries.^{Footnote 35} As an illustration, Frans Viljoen has noted that the issue of non-refoulement is particularly present in HRC and CAT communications concerning the Netherlands.^{Footnote 36} A study by Gudrun Gauksdottir and Thordis Ingadottir that examined complaints within the Icelandic context confirms similar findings.^{Footnote 37} In addition to non-refoulement, allegations included substantive issues related to the principle of non-discrimination, the right to life, trial rights, and the right to private and family life. As mentioned previously, all of these allegations were made under the ICCPR.^{Footnote 38}

THE INTEGRAL ROLE OF LEGAL COUNSEL

Another feature emerging from our analysis is representation by counsel, which appears to play an important role in the outcome of the communications examined. Of the sixty-two communications analyzed, roughly 84 percent included a complainant who was represented by counsel. Exactly 50 percent of the communications not represented by counsel were deemed admissible. This finding compares to 61.5 percent of admissible communications where counsel represented the complainant. Using only these numbers, the general takeaway is that the presence of counsel is associated with a more than 10 percent increase in a communication’s chance to be deemed admissible by the UN treaty bodies. Similarly, the presence of counsel is associated with a 10 percent increase in the likelihood of a communication being successful on the merits. In 50 percent of the admissible communications represented by counsel, the relevant committee found a violation of the treaty under which the complaint was filed, as opposed to 40 percent of the admissible communications not represented by counsel (see Table 3 for a breakdown of the cases by legal representation and outcome).

Table 3: Communications by legal representation and outcome

Representation by legal counsel appears therefore as a factor that enhances complainants’ prospect of success before the UN committees. This finding is consistent with research that points to the significant impact that representation by legal counsel has on a positive outcome in asylum proceedings.^{Footnote 44} We also noticed that some legal counsel make use of the UN individual complaints mechanisms on a regular basis. They seem to have integrated this supranational recourse into their litigation practice. For example, lawyer Stewart Istvanffy acted as counsel in ten of the sixty-two communications analyzed. The same is true for some non-profit organizations. To illustrate, Toussaint v Canada — mentioned in the introduction — was lodged with the support of the Social Rights Advocacy Centre. Both individual lawyers and non-profit organizations have thus been instrumental in mobilizing the UN individual complaints mechanism as an ultimate remedy for their clients or as a form of legal activism to challenge allegedly unfair policies and practices. However, the limited number of these actors points to a general lack of awareness of, or interest in, the UN individual complaints mechanisms within Canada’s legal community and civil society organizations.

After this overview, we now turn to the substantive issues raised in the UN committees’ case law pertaining to Canada’s treatment of non-citizens. Our findings highlight several problems, all centred on the principle of non-refoulement. We start with the nature of domestic remedies available to non-citizens to challenge deportation orders.

Effectiveness of Domestic Remedies

The failure to exhaust domestic remedies is a frequent reason for the inadmissibility of a complaint. Complainants must avail themselves of all domestic remedies available before taking their case to the UN. However, there are exceptions to this rule “where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention.”^{Footnote 45} As well, the term “domestic remedies” must be understood as referring primarily to judicial remedies.^{Footnote 46} Although mere doubt about the effectiveness of a domestic remedy does not free a complainant of the obligation to exhaust it, such remedies should be de facto available to the complainant and effective in the given case.^{Footnote 47} The UN committee decisions shine a light on the nature of some domestic remedies available to non-citizens in Canada, particularly those who are fighting deportation orders. These remedies include: (1) appeals to the Federal Court for judicial review; (2) humanitarian and compassionate (H&C) applications; (3) pre-removal risk assessments; and (4) administrative deferrals of removal. However, our analysis of committee decisions reveals issues with the effectiveness of these remedies.

Almost all of the cases in our dataset concerned alleged rights violations engendered by deportation orders. The complainants are either asylum seekers whose refugee claims were refused by the IRB, and their family members, or undocumented migrants or permanent residents who have been found inadmissible for “serious criminality.” In all of these cases, non-citizens who receive a negative decision from an immigration officer or the IRB^{Footnote 48} can apply to the Federal Court for judicial review of this decision.^{Footnote 49} To this end, they must first seek leave or permission of the Federal Court. In their application for leave to apply for judicial review to the Federal Court, individuals are required to raise a “fairly arguable case” or a “serious question to be determined.”^{Footnote 50} If leave to apply for judicial review is granted, the complainant should prove that the first instance decision-maker made an error in law or of jurisdiction.^{Footnote 51} In A.B. v Canada, the HRC noted that, given the clear domestic legislation and jurisprudence in that regard, this threshold was too high for judicial review by the Federal Court to be considered an effective remedy.^{Footnote 52} In other decisions, the UN committees confirmed that recourse available to non-citizens at the Federal Court does not pass the test of an effective remedy. In Singh v Canada, the CAT agreed with the complainant that judicial review of the IRB decision denying him refugee status was not an appeal on the merits but, rather, a very narrow review for gross errors of law.^{Footnote 53} The CAT went on to state that Canada should provide for judicial review of the merits, rather than merely of the reasonableness, of decisions to expel an individual where there are substantial grounds for believing that the person faces a risk of torture.^{Footnote 54}

In a similar vein, H&C applications for permanent residence in Canada are not considered effective remedies by the UN committees because of their discretionary and non-judicial nature. In Kalonzo v Canada, the CAT drew attention to the apparent lack of independence of the civil servants deciding on such a remedy. It observed that, although the right to assistance on humanitarian grounds may be a remedy under the law, such assistance is granted by a minister on purely humanitarian grounds rather than on a legal basis and is thus ex gratia in nature.^{Footnote 55} In addition, an H&C application does not stay removal, such that a person could be expelled during consideration of the application.^{Footnote 56} The length of the H&C process is another factor that can contribute to its ineffectiveness. In Shakeel v Canada, the committee observed that four years after the complainant’s H&C application was filed, it remained unanswered and said that the delay in responding to the application was unreasonable.^{Footnote 57} Consequently, failure to exhaust this remedy does not constitute an obstacle to the admissibility of the complaint.^{Footnote 58} Unsurprisingly, judicial review by the Federal Court of an H&C decision is not considered to be an effective remedy either.^{Footnote 59}

A pre-removal risk assessment (PRRA) is another domestic remedy that the UN committees consistently found ineffective during the past decade. A PRRA is an assessment of the risk a non-citizen would face if removed from Canada. A refused refugee claimant is eligible to file a PRRA application, which is subject to judicial review by the Federal Court. Similarly, a non-citizen who is ordered deported from Canada for criminality can also file a PRRA application. PRRA submissions may only include new evidence of a risk of danger or persecution that arose after rejection of the refugee protection claim or deportation order. An Immigration, Refugees, and Citizenship Canada officer assesses the application and renders a decision. An applicant may request judicial review of a negative PRRA decision. There are two issues with this remedy. First, as noted above, the Federal Court’s review is limited to errors of law and procedural flaws. Second, the PRRA application has no suspensive effect — that is, pending any judicial review proceedings or other recourse, applicants who receive a negative PRRA decision can be removed from Canada. In effect, in N.S. v Canada, a case involving the removal of a refused asylum seeker to India, the CAT highlighted these issues. It remarked that judicial review of a negative PRRA decision is not an effective remedy since this “narrow review for gross errors of law does not involve a review of the merits of the case and does not have suspensive effect.”^{Footnote 60} The HRC reached the same conclusion in Thuraisamy v Canada.^{Footnote 61} What is more – and similar to the leave for judicial review figures – historically, the PRRA acceptance rate has been low: for instance, 2.8 percent in 2013 and 3.1 percent in 2014. ^{Footnote 62} These figures add to the concerns about the PRRA’s effectiveness.

Finally, administrative deferral of removal is another recourse deemed ineffective. The HRC has noted that such recourse before the Canada Border Services Agency is temporary, limited to the assessment of new evidence and largely dependent on the discretion of the agency enforcement officer.^{Footnote 63}

The UN committees’ findings illuminate the limited nature of effective remedies available to non-citizens challenging a deportation order. This fundamental issue in Canada’s immigration and refugee law has been exacerbated by the 2012 legislative changes.^{Footnote 64} Take the creation of a new class of “designated foreign nationals” (DFNs),^{Footnote 65} which allows the minister of public safety to designate individuals who arrive in Canada in a group with the help of a smuggler and mandates the detention of DFNs aged sixteen and over.^{Footnote 66} Not only are DFNs required to prepare their IRB hearing within forty-five days (as opposed to sixty days for most non-DFNs), but they also do not have the right to an automatic stay of removal upon applying for leave for judicial review and can therefore be deported during their application. As well, pursuant to the legislative changes in 2012, the effectiveness of the H&C applications has become even more questionable since refused asylum claimants can now apply for permanent residence on H&C grounds (section 25 of the IRPA) only one year following their final IRB determination (or five years following the IRB’s final determination in the case of DFNs) (section 25(1.01) of the IRPA), compared to immediate access to this remedy under the previous system. In addition, claimants are barred from submitting H&C applications while their refugee claim is pending, which was previously allowed.

These are only some of the recent legislative changes affecting non-citizens’ access to justice. Although their consistency with Canada’s international human rights commitments has not been tested yet by the UN committees, these changes further impede the availability and effectiveness of existing remedies. More than this, though, they considerably heighten the risk of refoulement.

Taking the Vulnerability of Non-Citizens Ordered Deported Seriously

The deportation of individuals to places where they may face persecution or a substantial risk of torture or similar abuse is prohibited by both the ICCPR and the Convention against Torture. Before we delve into the details of non-refoulement cases and what they reveal about Canada’s compliance with this prohibition, it is worth reiterating the main principles that stand out in the guidelines and jurisprudence of the UN committees. General Comment No. 1 adopted by the CAT in 1997 states that the risk of torture must be assessed on grounds that go beyond mere theory or suspicion.^{Footnote 67} Although the risk does not have to meet the test of being highly probable, it must be personal and present. To that end, all relevant facts and circumstances must be considered, including the general human rights situation in the complainant’s country of origin. However, the existence of a consistent pattern of gross, flagrant, or mass violations of human rights in a country does not as such constitute sufficient grounds for determining that a particular person is in danger of being subjected to torture upon their return to that country. Additional grounds must exist to show that the individual concerned is personally at risk.^{Footnote 68} Thus, it should be established whether the individual would be personally at a foreseeable and real risk of being subjected to persecution or torture in the country to which they would return.^{Footnote 69}

Before the UN committees, the burden of presenting an arguable case is on the complainant who needs to identify an irregularity in the decision-making process^{Footnote 70} or any risk factor that the state (in this context, Canadian) authorities failed to take properly into account.^{Footnote 71} As well, the complainant has to demonstrate that the treatment they received from the state was arbitrary or manifestly erroneous or amounted to a denial of justice.^{Footnote 72} In line with the principle of subsidiarity, the UN committees give considerable weight to findings of fact that are made by organs of the state party concerned.^{Footnote 73} Accordingly, it is generally for the organs of a state party to examine the facts and evidence of the case in order to determine whether a relevant risk exists, unless it can be established that the assessment was arbitrary or amounted to a manifest error or denial of justice.^{Footnote 74} The UN committees do not have the ability to undertake independent fact finding when confronted with contradictory evidence offered by a complainant and a state party.^{Footnote 75} Nevertheless, they are not bound by state party findings and have the power of free assessment of the facts based upon the full set of circumstances in each case.^{Footnote 76} Hence, the UN committees conduct a review of the facts, of the evidence submitted by the complainant, and of the state authorities’ findings in light of the country of origin information available. Whether the state party took into account all of the elements available to evaluate the risk faced by the complainant is another criterion the committees consider,^{Footnote 77} together with the will and the ability of the state party to protect the individual once deported.^{Footnote 78}

In the cases we examined in which a treaty rights violation was found, the UN committees essentially argued that Canada did not give enough weight to allegations made and to evidence provided by a complainant. For example, in Choudhary v Canada, the complainant claimed that between 2000 and 2002 he was a victim of violent attacks by members of the Sunni extremist group Sipahe-Sahaba in Pakistan and that a fatwa — that is, an arrest warrant for blasphemy — was issued against him by this group. Naveed Akram Choudhary’s refugee claim was rejected by the IRB because of his failure to establish his identity at the initial stage of the procedure, and he was not given any further opportunity to have his refugee claim assessed, even though his identity was later confirmed. The HRC remarked that further analysis should have been carried out by the IRB in this case.^{Footnote 79} Drawing attention to the situation prevailing in Pakistan, notably the fact that members of religious minorities, like the complainant, continue to face fierce persecution and that the Pakistani authorities are unable, or unwilling, to protect them, the HRC concluded that due weight was not given to the complainant’s allegations.^{Footnote 80} In another case, the refugee claim of the complainant was rejected by the IRB because of inconsistencies in his statements and a lack of credible evidence in support of his allegations that there was a fatwa issued against him in Pakistan. The HRC concluded that insufficient attention was given to the complainant’s allegations about the real risk he might face if deported to Pakistan where no state protection would be offered to him. According to the HRC, Canada had failed to undertake any serious examination of the authenticity of the fatwa against the complainant, and no thorough investigation was conducted with regard to the author of the fatwa. Investigation would have been all the more critical with respect to acts regarded by the police as constituting an offence under Pakistani criminal law (blasphemy law), which incurs the death penalty. Furthermore, as emphasized by the HRC, Canada failed to take into account the uncontested medical reports submitted by the complainant, which pointed to risks for his mental health in the event of a forcible return to Pakistan.^{Footnote 81}

In Pillai v Canada, another case where the IRB rejected the complainants’ refugee claim for lack of credibility, the HRC held that the diagnosis of Ernest Sigman Pillai’s post-traumatic stress disorder led the IRB to refrain from questioning him about his earlier alleged torture in detention. The committee contended that further analysis should have been carried out by Canadian authorities who gave insufficient weight to the complainants’ allegations of torture and the real risk they might face if deported to their country of origin in the light of the documented prevalence of torture in Sri Lanka.^{Footnote 82}

In the case of Thuraisamy v Canada, an ethnic Tamil from the north of Sri Lanka, who had in the past allegedly been detained on several occasions and tortured by both the army and the Liberation Tigers of Tamil Eelam, a group listed by Canada as a terrorist organization, the IRB rejected the complainant’s refugee claim on the grounds that his statements were inconsistent and the claim lacked credibility. The committee noted that the inconsistencies highlighted by Canada were not directly related to Ganesaratnam Thuraisamy’s claim of having been tortured and could not in themselves vitiate the whole credibility of his allegations. In the view of the HRC, the complainant pointed to scars on his chest as evidence of recent torture by the army:

These cases point to the flaws — such as discarding or not taking seriously evidence submitted or risks faced in the case of deportation — in Canada’s decision-making process. Interestingly, they also suggest that Canadian authorities do not pay enough attention to the hardship faced by some religious and ethnic minorities and the challenges they encounter in terms of state protection. Similarly, gender-based persecution allegations have attracted heightened scrutiny from the UN committees. In J.K. v Canada, which involved a refused homosexual asylum seeker from Uganda, the CAT pointed to Canada’s acknowledgement that the situation of lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons in Uganda is problematic. It remarked that the complainant may be at risk of torture or ill-treatment if he is returned to Uganda, taking into account not only his sexual orientation but also his militancy in LGBTI organizations and the fact that he could be detained pursuant to the criminal charges brought against him.^{Footnote 84} Referring to the evidence provided, including a supporting letter from the Uganda Human Rights Commission, an attestation from the Gay and Lesbian Association in Uganda, and a medical report, the CAT held that the complainant had provided sufficient reliable information for the burden of proof to shift to the state. It brushed off the Canadian government’s concerns about the reliability of some evidence, by recalling its jurisprudence that complete accuracy is seldom to be expected from victims of torture.

In a similar way, in Kaba v Canada, the complainant held that Canada’s decision to expel her fifteen-year-old daughter to Guinea would entail a risk of her being subjected to excision by her father and/or members of the family. In the view of the HRC, although female genital mutilation is prohibited by law in Guinea, this legal prohibition is not complied with, meaning that genital mutilation is a common and widespread practice in the country, particularly among women of the Malinke ethnic group to which the complainant’s daughter belonged. The committee further remarked that those who practice female genital mutilation do so with impunity, and the family of the girl’s father was in favour of this practice being carried out. Also highlighting the context of a strictly patriarchal society in Guinea, the HRC ruled in favour of the complainant.^{Footnote 85}

This decision casts light on the UN committees’ assessment that Canada at times fails to accord enough weight to the specific vulnerability of certain groups, such as children. D.T. v Canada is another telling example. In this case, the HRC decided that Canada had failed to give primary consideration to the principle of the best interests of the child. A deportation order was issued against D.T., a refused asylum seeker and a single mother of a seven-year-old child who was a Canadian citizen. The committee said that D.T.’s removal pursued a legitimate objective — namely, the enforcement of immigration law against a person who had no legal status in Canada. However, the complainant’s son A.A. suffered from several health conditions that could result in the need for one or several surgeries in the future. In addition, the child had been prescribed daily medication, for which a multidisciplinary intervention plan was developed in his school in Canada, involving special education professionals.^{Footnote 86} Reminding Canada that in all decisions affecting a child, the child’s best interests shall be a primary consideration, the HRC concluded that the issuance of a removal order faced D.T. with the choice of leaving her child behind in Canada or exposing him to a lack of medical and educational support on which he was dependent. What is more, no information had been provided by Canada to indicate that the child had any alternative adult support network in Canada. Given the young age and special needs of the complainant’s son, both alternatives confronting the family — the son remaining alone in Canada or returning with the complainant to Nigeria — could not have been deemed in the best interests of the child. The committee emphasized that Canada had not adequately explained why its legitimate objective in upholding its immigration policy should outweigh the best interests of the complainant’s child or how such an objective could justify the degree of hardship that confronted the family as a result of the decision to remove the complainant.^{Footnote 87}

It is noteworthy that in 1999, in Baker v Canada ^{Footnote 88} — a case concerning a deportation order against a foreign mother of four Canadian children — the Supreme Court of Canada established that the immigration official exercising discretion in deportation cases was bound to consider the principle of the best interests of the child, expressed in the 1989 Convention on the Rights of the Child. The Court directed decision-makers to look to those values in international human rights law that resonate with the fundamental values of Canadian society in order to identify the relevant considerations demarcating their discretionary decision-making powers.^{Footnote 89} The D.T. decision shows, however, that twenty years after this landmark judgment, Canadian authorities still tend to overlook basic human rights principles that stem from domestic and international law in the name of state sovereignty interests, notably deterring irregular migration.

This reasoning was clearly spelled out by the decision-makers in Toussaint v Canada, which we mentioned in the introduction and which deals with the right to health care of undocumented migrants in Canada.^{Footnote 90} Although the case does not raise any refoulement issues, it shows how decision-makers take a harsh stance on undocumented migrants who are perceived to deliberately ignore immigration rules, without consideration of their vulnerability. In this case, Nell Toussaint lawfully entered Canada as a visitor from Grenada. She worked in Canada from 1999 to 2008 without obtaining residency status or permission to work, although she tried to regularize her situation. From 2006 onwards, she suffered from severe health issues, but, in 2009, she was denied health care coverage under the federal government’s program of health care for immigrants, called the Interim Federal Health Benefit Program (IFHP), since she was undocumented. She argued that Canada failed to fulfil its positive obligation to protect her right to life, which required provision of emergency and essential health care. On judicial review, the Federal Court found that Nell Toussaint had been deprived of her right to life and security of the person due to her exclusion from the IFHP. However, the Court found that denying financial coverage for health care to persons who have chosen to enter or remain in Canada illegally is consistent with fundamental justice and that the impugned policy was a permissible means to discourage defiance of Canada’s immigration laws. The Federal Court of Appeal upheld this decision. Toussaint took the case before the HRC, which concluded that Canada had discriminated against her.^{Footnote 91} The committee held that states cannot make a distinction, for the purposes of respecting and protecting the right to life, between regular and irregular migrants and that, “at a minimum, States parties have the obligation to provide access to existing health-care services that are reasonably available and accessible when lack of access to the health care would expose a person to a reasonably foreseeable risk that can result in loss of life.”^{Footnote 92}

The D.T. and Toussaint cases demonstrate how state sovereignty and the “legal-illegal migrant” dichotomy continue to be the central principles guiding Canadian case law on non-citizens.^{Footnote 93} Security is another major criterion for decision makers, especially in cases where non-citizens are excluded on security or criminality grounds.

Non-Refoulement of Foreign Nationals Inadmissible to Canada: A Difficult Balance between Security and Human Rights

The IRPA sets out grounds upon which a non-citizen can be inadmissible to Canada, including security (section 34(1)), human and international rights violations (section 35(1)), serious criminality and criminality (section 36), and organized criminality (section 37). Indeed, Canadian legislation provides for exceptions to the principle of non-refoulement on the ground of security. According to subsection 115(2) of the IRPA, the non-refoulement principle

The UN committees have chastised Canada for these exceptions on several occasions during the past decade. Most recently, in its concluding observations on the seventh periodic report of Canada, the CAT expressed concerns with the exceptions to non-refoulement. ^{Footnote 94} This report, along with previous comments by the UN committees, recalled that no justification or extenuating circumstances may be invoked to excuse a violation of a state’s non-refoulement obligations, which cannot be overridden by a person’s character^{Footnote 95} or by any threat they allegedly may pose.^{Footnote 96} Canada has never provided reasoning for the continued implementation of exceptions to the non-refoulement principle in its domestic legislation.^{Footnote 97} And, yet, as shown below, security considerations often tend to prevail over this principle.

In one of the cases where Canada made exception to non-refoulement, the complainant was found inadmissible to Canada for his alleged involvement in serious crime in his country of origin. Jose Contreras claimed that he became a target of the MS-13 gang in El Salvador because of his participation in the investigation of the murder of his brother in 1993, which resulted in the conviction and imprisonment for ten years of three MS-13 gang members involved in the murder. The IRB found him inadmissible on security grounds, owing to his membership in the Farabundo Marti National Liberation Front (FMNLF) prior to 1992. Three successive pre-removal risk assessments, upheld by the Federal Court, found that Contreras did not face a personal risk at the hands of the MS-13 gang and that he had failed to rebut the presumption of state protection in El Salvador. The HRC challenged Canada’s decision and remarked that, since 1992, the FMNLF had been a legal political party in El Salvador and that Canada did not provide any information proving that the complainant currently represents a threat to national security.^{Footnote 98} Moreover, the committee held that, throughout the asylum procedure, Canada did not accord weight to various aspects of the information provided by the complainant, including the affidavit of an expert on gang violence in Central America, which concluded that the complainant would be “at extraordinarily high risk of egregious physical harm and death if returned.” The HRC went on to state that Canada did not properly consider other elements contained in the reports provided by the complainant in support of his pre-removal risk assessment application, according to which violence by gangs particularly affects victims and witnesses of crimes and that El Salvador would be unable to provide due protection to them.^{Footnote 99}

Similar reasoning was adopted by the HRC in Hamida v Canada, where a refugee claimant from Tunisia, who was a member of the Political Security Section of the Ministry of the Interior from 1991 to 1993, was considered inadmissible to Canada. Canadian authorities held that Mehrez Ben Abde Hamida had been aware that torture was a routine practice of that section but that he had not shown that he had made a serious effort to dissociate himself, or resign, from that section.^{Footnote 100} Here the HRC did not question Canada’s decision to exclude Hamida from refugee protection but, rather, its assessment of the risk he would face in case of deportation to Tunisia. The HRC considered that the complainant had provided substantial evidence of a real and personal risk of his being subjected to ill-treatment on account of his dissent in the Tunisian police, his six-month police detention, the strict administrative surveillance to which he was subjected, and the wanted notice issued against him by the Ministry of the Interior, which mentioned his “escape from administrative surveillance.” The committee held that there was a real risk of the complainant being regarded as a political opponent and therefore subjected to torture. This risk was increased, according to the HRC, by the asylum application that he submitted in Canada.^{Footnote 101}

This picture is further complicated where a complainant is found inadmissible for alleged involvement in serious crime, not abroad as in the cases of Contreras and Hamida but, rather, in Canada. In Kalonzo v Canada, the government decided to deport a refused asylum seeker involved in serious criminality in Canada to the Democratic Republic of the Congo. This decision was made despite a moratorium declared by Canada suspending deportations owing to the widespread violence in that country. The CAT rejected Canada’s arguments that the moratorium would not apply in Arthur Kasombola Kalonzo’s case because of his criminal record. It held that in the spirit of Article 3 of the Convention against Torture, a moratorium on the removal of persons who would be at risk in their country because of widespread violence should apply to everyone without distinction.^{Footnote 102}

In addition, the HRC and CAT jurisprudence shows that, when issuing deportation orders, Canada does not pay enough attention to such factors as a non-citizen complainant’s criminal record, including the nature of the crimes committed and whether there were any mitigating factors, as well as the complainant’s social and family ties in Canada. A telling example is found in A.H.G. and M.R. v Canada, where the committee ruled in favour of a Jamaican man with severe mental illness although his criminal record made him inadmissible to Canada. The complainant arrived in Canada at the age of eighteen, where he lived continuously for thirty-one years. In 2005, after he was evicted from his apartment, he started living in shelters. Having difficulty complying with his medication regime, he experienced psychotic relapses. In 2006, he was found to be inadmissible on grounds of serious criminality following his conviction for assault with a weapon, for which he received a sentence of one day in jail, in addition to eighty days served as pre-sentence custody. While recognizing Canada’s legitimate interest in protecting the general public, the HRC held that the deportation to Jamaica of a mentally ill person in need of special protection who has lived in Canada for most of his life constituted a violation by Canada of its obligations under the ICCPR. The HRC underlined that the complainant’s criminal offences were recognized to be related to his mental illness, which had resulted in the abrupt withdrawal of the medical and family support on which a person in his vulnerable position was necessarily dependent.^{Footnote 103}

Similarly, when a non-citizen ordered deported on grounds of serious criminality has family members in Canada, a deportation order may interfere with that person’s right to family life. In such cases, the relevant criteria for assessing whether or not the specific interference with family life can be objectively justified are, on the one hand, the state party’s reasons for the removal of the person concerned and, on the other hand, the degree of hardship the family and its members would encounter as a consequence of such removal.^{Footnote 104} Over the past decade, the HRC has dealt with a number of such cases. In addition to the right to family life, the emerging case law emphasizes the principle of inhabitance in Canada and a non-citizen’s engagement with a community as key factors of membership of that community. In the jurisprudence of the HRC, these factors increasingly militate against the deportation of a non-citizen from Canada.

Take the case of Jama Warsame, a Somali national who had been a permanent resident in Canada since the age of four before he received a deportation order from Canada for serious criminality. The HRC decided that Warsame, who was convicted of robbery and then of possession of a scheduled substance for the purposes of trafficking, should not be deported since Canada was his “own country” within the meaning of Article 12, paragraph 4, of the ICCPR.^{Footnote 105} In its decision, the committee took into consideration the strong ties connecting Warsame to Canada, the presence of his family in Canada, the language he speaks, the duration of his stay in the country, and the lack of any ties with Somalia other than, at best, formal nationality. The HRC held that, once deported from Canada, Warsame’s right to enter his own country— that is, Canada — would be limited and that this would violate his freedom of movement set forth in Article 12 of the ICCPR. Of note, General Comment No. 27 (1999) on freedom of movement considers that the scope of “his own country” is broader than the concept of “country of his nationality”: “It is not limited to nationality in a formal sense, that is, nationality acquired at birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien.”^{Footnote 106}

The HRC reiterated in its subsequent jurisprudence that there are factors other than nationality that may establish close and enduring connections between a person and a country, connections that may be stronger than those of nationality.^{Footnote 107} To illustrate, Deepan Budlakoti was born in Canada to parents holding Indian diplomatic passports and was later sentenced twice for breaking and entering and for trafficking and possessing firearms and drugs. As a result, he was declared inadmissible to Canada. The minister of public safety also claimed that he was not a Canadian citizen and that, owing to his parents’ diplomatic status when he was born, his Canadian passport had been issued in error. The complainant alleged that he believed he was a Canadian citizen by virtue of his having been born in Canada — a belief, he argued, that was confirmed by the fact that he was twice issued a Canadian passport. Taking into account the particular circumstances of the case — including the strong ties connecting the complainant to Canada, the presence of his family in Canada, the language he speaks, the duration of his stay in the country, the confusion regarding his nationality, and the lack of any ties to India other than, at best, formal nationality — the HRC noted that Budlakoti had established that Canada is his own country within the meaning of Article 12(4) of the ICCPR.^{Footnote 108} According to the committee, although the complainant had two convictions dating from 2009 and 2010, these convictions were not for violent offences and he had not reoffended since his release. It therefore concluded that the interference with Budlakoti’s rights under Article 12(4) would be disproportionate to the stated legitimate aim of preventing the commission of further crimes.^{Footnote 109}

In a similar way, the HRC held that a deportation order on grounds of serious criminality against a Haitian national who had been a permanent resident since the age of two constituted interference in his family life. The complainant, who had been sentenced to thirty-three months’ imprisonment for robbery with violence, considered himself to be a Canadian citizen, and it was only on his arrest that he discovered that he did not have Canadian nationality. The HRC noted that this interference had a legitimate purpose — namely, the prevention of criminal offences, but it ruled in favour of the complainant, noting that he had only a single previous conviction, he had lived all his conscious life in Canada, all his close relatives and his girlfriend lived there, and he had no ties to his country of origin and did not have family there.^{Footnote 110}

By contrast, in A.B. v Canada, the HRC ruled that the interference with the complainant’s family life, while significant, would not be disproportionate to the legitimate aim of preventing the commission of further crimes and protecting the public. In this case, A.B., a refugee from Somalia, was considered to be a danger to the Canadian public due to “serious criminality.” In addition to his criminal record, which started at the age of nineteen and had continued for over thirteen years, totalling twelve criminal convictions including for offences of a violent nature and punishable by long prison terms, the committee also took into consideration the weakness of the complainant’s family ties in Canada as well as his capacity for integration in his country of origin. The HRC stated that A.B. lived in Somalia until the age of eleven; he spoke Somali, albeit with difficulty; and he was a member of a majority clan. It therefore concluded that A.B.’s deportation to Somalia, if implemented with due account of the ongoing need to assess the security situation in Mogadishu and southern and central Somalia, including for so-called Western returnees with limited family and clan support, would not constitute a violation of his rights under the ICCPR.^{Footnote 111} This decision points to the case-by-case analysis conducted by the UN committees, which consider recidivism and the nature of serious crime committed by non-citizens as aggravating factors in their assessment. In this case, however, it is not clear how Canada would monitor A.B.’s situation once in Somalia. The absence of any follow-up mechanisms in such situations renders this safeguard hypothetical. Ironically, in the past, the committees expressed concerns that Canada did not provide any examples of post-return monitoring arrangements between Canada and the receiving states.^{Footnote 112}

The cases we have examined in this section underscore the urgent need for Canadian authorities to adopt a principled position with regard to the non-refoulement requirement. In particular, IRPA subsection 115(2) exceptions are at odds with Canada’s obligations under international human rights law, which, as stressed in Contreras, afford absolute protection against deportation to torture or persecution to anyone in the territory of the state party, regardless of the person’s character or the danger the person may pose to society.^{Footnote 113} A legislative change is all the more necessary since individuals who are declared inadmissible under sections 34, 35, and 37 of the IRPA have no access to H&C assessment or to the Immigration Appeal Division of the IRB to appeal removal orders.^{Footnote 114} With the legislative changes made in 2012 and 2013, it has become easier than before for authorities to remove some non-citizens from Canada on the ground of serious criminality. As noted by the Canadian Association of Refugee Lawyers:

As well, long-term residents in Canada can be found inadmissible for “serious criminality” and subject to removal without consideration of humanitarian factors if they have been convicted of an offence for which a term of imprisonment of more than six months has been imposed. Before these changes, the “serious criminality” threshold was two years.^{Footnote 116} As it was, the exceptions to non-refoulement incorporated into Canada’s immigration law put non-citizens at risk of torture or persecution upon deportation from Canada. The 2012 legislative changes further exacerbate this risk by redefining “serious criminality” and removing protections previously available to non-citizens.

Canada’s Non-Compliance with the UN Committee Decisions

This brings us to a discussion of Canada’s compliance with the UN committee decisions. The cases we have examined point to two issues in this regard. The first one pertains to interim measures whereby the HRC and the CAT call upon a state party to suspend any action while the communication is being considered by either committee. Canadian authorities have not always complied with the interim measures asking Canada not to deport a complainant to their country of origin.^{Footnote 117} An extension of the non-refoulement principle, interim measures are essential to the effectiveness of the UN individual complaints mechanisms. We identified three cases in our dataset where Canada did not act in accordance with an interim measure, sending the complainant to possible persecution or another life-threatening situation. In the case of a complainant from Jamaica who was forcibly returned to that country, Canada claimed that the interim measure request was only received after the plane taking the complainant to Jamaica had taken off and that it was not appropriate for the committee to issue interim measures in that case. In response, the HRC expressed its regrets that Canada did not consider the possibility of returning the complainant to Canada.^{Footnote 118} Canada also removed complainants to India^{Footnote 119} and to Rwanda^{Footnote 120} notwithstanding the interim measures issued.^{Footnote 121} Through this behaviour, Canada may have wanted to signal that the interim measures could be overridden where public security was at stake. Nevertheless, such a position violates international law and sets a regrettable example for the rest of the world. As a result, Canada has been repeatedly reminded by the UN committees of the mandatory nature of interim measures and called upon to respect in every instance the requests for such measures since the failure to do so might undermine Canada’s commitment to the UN treaty concerned.^{Footnote 122}

Second, Canada has been criticized for its lack of diligence in giving effect to the UN committees’ decisions. The ICCPR and the Convention against Torture do not include any provision setting forth the precise legal effect of these decisions. There is no provision to indicate that they are binding.^{Footnote 123} That said, under the UN individual complaints mechanisms, a state party undertakes to cooperate with the relevant committee in good faith in applying and giving full effect to the procedure of individual complaints.^{Footnote 124} When a violation of a treaty obligation is found, a follow-up procedure is implemented whereby the state is required to report within a specific time period about the measures it takes to give effect to a decision. The UN committees have the authority to ascertain whether the measures taken are satisfactory. A state can also be invited to take action, including reviewing its national legislation to ensure similar violations do not occur in the future.

Given the traditional dualist account of the role of international law within Canadaʼs legal system, the implementation of international norms and decisions remains a challenge. Although the Supreme Court of Canada has consistently held that the IRPA must be interpreted and applied in a manner that complies with Canada’s international obligations, including “international human rights instruments to which Canada is signatory,” it is also of the opinion that Parliament intended such instruments to be used as persuasive and contextual factors in the interpretation and application of the IRPA and not as determinative.^{Footnote 125} Accordingly, while Canada usually takes the position that “Canadian officials will review the final [UN committee] views carefully and give serious consideration to the recommendations,” authorities also tend to brush off the criticisms by holding that treaty bodies’ final views, requests, and recommendations are not legally binding.^{Footnote 126} As a result, on several occasions, the HRC has expressed concerns about Canada’s reluctance to comply with all of its decisions and called upon Canada “to take necessary measures to establish mechanisms and appropriate procedures to give full effect to the Committee’s decisions so as to guarantee an effective remedy when there has been a violation of the Covenant.”^{Footnote 127}

A telling example is the above-mentioned Warsame case where Canada deported the complainant despite the HRC’s finding that this would amount to a violation of his rights under the ICCPR. In the aforementioned A.H.G. and M.R. v Canada case, the HRC chastised Canada for failing to provide a Jamaican man with severe mental health issues with an effective remedy, including compensation and allowing him to return to Canada.^{Footnote 128} In a similar way, in Toussaint, Canadian authorities ignored the HRC’s request to ensure that undocumented migrants have access to essential health care to prevent a reasonably foreseeable risk that can result in loss of life.^{Footnote 129} Moreover, in some cases, Canada has considerably delayed the implementation of the UN treaty body’s recommendations. For example, authorities took more than twenty years to comply with a 1994 CAT decision to cancel a deportation order against a complainant from Pakistan. It was not until 2017 that Canada agreed to grant the person a temporary resident permit and a path to permanent residency.^{Footnote 130}