CIDHHeaderEn.GIF (11752 bytes)


2. The Significance of the Absence of a Review on the Merits under the Declaration and other Applicable Law

104. As noted above, the effective protection of substantive rights requires an adequate procedural framework for their implementation. The right particularly at issue in the refugee context is to seek asylum with the corresponding guarantees, as set forth in Article XXVII of the Declaration. Those guarantees are themselves a means to safeguard the fundamental rights to, inter alia, liberty, integrity and life recognized in Article I of the Declaration. A procedural framework that is adequate to make those rights effective is one which provides mechanisms which effectively establish whether a person meets the applicable standard of risk. In the refugee context, this requires procedures effective in establishing the relevant facts, and interpreting and applying the relevant norms. Ascertaining the specific facts of an individual’s circumstances within the context of a country situation which may well be complicated, unclear and unstable poses particular challenges, involving crucial content-based assessments concerning the credibility, reliability and relevance of documentary and testimonial evidence presented.

105. The Commission shares the concerns expressed by many actors within the system, including several State officials, that it provides no mechanism either for reopening the determination process to present newly available evidence, or to seek a review on the merits of the assessments made by the decision-maker. The IRB itself has recognized that there are identifiable disparities in operational processes and outcomes in cases from the same source countries among its regional offices that are not explained by the inherent variation in decisions by independent decision-makers.73 Consistency in decision-making is one important indicator that similarly situated persons are receiving equal treatment in the disposition of their rights.

106. From its review of the process, the Commission finds that while the judicial and administrative review mechanisms available may provide important protections for some claimants, they do not bridge the gap created by the absence of a merits review. The objectives of the extant review procedures are simply too distinct from those of the refugee determination context. While the determination of refugee status generally depends heavily on findings of fact, the extant judicial review procedures are limited to questions of jurisdiction and law. The objective of existing judicial oversight is not to review the content of the decisions, but to ensure that the way in which the decisions were taken was fair and legal.74 As State officials explained to the Commission during its on-site visit, only "if the decision-maker has made a patently unreasonable decision (and therefore acted outside of his/her jurisdiction)," will a court remand a decision to the CRDD in relation to its content. In this regard, it must further be noted that, because the determination process cannot be reopened to present newly available information after the rejection of a claim, and because the scope of judicial review is limited to questions of jurisdiction and law, the judicial scrutiny of a rejected claimant’s case on review may be incomplete if all the facts relevant to risk are not before the decision-maker.

107. Similarly, the administrative review procedures pursue objectives distinct from the original determination process. The PDRCC is available only to those granted eligibility to proceed with an application, and addresses limited categories of particularized risk in accordance with criteria somewhat distinct from that of the 1951 Convention. While the humanitarian and compassionate review process is open to all applicants, the application fee may preclude some from invoking it, and there is no guarantee that it will be decided prior to removal. Additionally, while the criteria which may be considered are quite broad, that process is, by nature, highly discretionary. Both procedures are applied by immigration officials, who are part of the immigration control and enforcement mechanism of the State, rather than independent decision-makers mandated to determine refugee status. Because both procedures are administrative and highly discretionary in nature, the possibility of obtaining access to judicial review presents very limited means for redress.

108. In summary, these procedures play a useful and important role in reducing the risk of return, but they do not provide a substitute for a review on the merits. The UNHCR has strongly urged all States to ensure that refused refugee claimants have access to a merits-based review:

If the applicant is not recognized, he should be given a reasonable time to appeal for a formal reconsideration of the decision, either to the same or to a different authority, whether administrative or judicial, according to the prevailing system. The applicant should .… also be permitted to remain in the country while an appeal to a higher administrative authority or to the courts is pending.75

The UNHCR has indicated to Canadian legislators that, while the system offers some important safeguards, "it would be advantageous and consistent with Canada’s humanitarian tradition equally to afford a clear opportunity for the review of decisions on their merits in the post-claim review process."76 The nature of such reconsideration must be broad enough to ensure and give effect to the rights concerned, and would necessarily include the authority to review the decision, including its content.

109. Where the facts of an individual’s situation are in dispute, the effective procedural framework should provide for their review. Given that even the best decision-makers may err in passing judgment, and given the potential risk to life which may result from such an error, an appeal on the merits of a negative determination constitutes a necessary element of international protection. The requirement of an adequate procedural framework for the protection of the fundamental rights at stake in the refugee context is not satisfied by a system which provides no possibility of a review on the merits of the original decision, and which further provides for judicial review subject to substantively limited leave provisions.

110. Many refugee advocates, both within and outside of the Canadian Government, have recommended the establishment of a merits review within the CRDD as the best means of ensuring fair and informed decision-making which is also efficient and cost-effective.77 The Commission recommends that further consideration be given to (1) establishing the procedures necessary to enable refused refugee claimants to present newly available information relevant to their situation of risk, and (2) to ensure that refused claimants have access to a review on the merits of the original decision, whether through administrative or judicial channels.

111. With respect to the question of reopening, the Commission considers that it is essential that rejected claimants be able to petition the CRDD for the reopening of the determination process in light of, in particular, material new information with respect to their individual circumstances, and/or about country conditions relevant to their situation of risk. Because the considerations involved relate to the risk of persecution and the potential for fundamental rights violations in the home country, this possibility should apply, in principle, up to the point of exhaustion of all recourses and removal from Canada.

112. With respect to the question of access to a merits-based review, the Commission considers that this would require the establishment of an independent decision-making authority with access to the expertise and resources to make informed decisions. This could, for example, be handled through the establishment of a unit within the IRB which would be separate from the CRDD. Such claimants must in any case have effective access to judicial protection, the precise scope of which would depend on the nature of the merits review established.

113. In presenting its observations in response to the Commission’s analysis, the Government indicated that the Commission’s concerns regarding the absence of a merits-based review by right and the leave and certification provisions "appear to go beyond the scope of the American Declaration; legal rights and fundamental constitutional rights are not defined in Article XVII and do not refer to an appeal." The Government recalled that all persons in Canada, regardless of status, have access to the courts, and that "[a]s recognized by the Commission, applicants do not necessarily have an unlimited right of access to judicial remedies."

114. The State noted that "[i]nternational tribunals have held that Canadian judicial and administrative remedies such as PDRCC and H&C are viable domestic remedies that must be exhausted by a complainant for his/her complaint to be admissible."78 The State indicated that the PDRCC process had been deemed a "viable and effective domestic remedy" by both the UN Committee Against Torture79 and the UN Human Rights Committee.80 It further noted that an assessment based on humanitarian and compassionate factors had been found to be an effective remedy by the Committee Against Torture because "the Appeals Board in that case had the competence to grant the authors a residence permit."81 "It is Canada’s position that the H&C process is also an effective remedy as permanent residence can result, and risk assessments may be performed as part of the decision-making process." Further, it expressed concern "that the Commission’s commentary in this regard will lead complainants to conclude that they do not have to exhaust domestic remedies prior to presenting their communications to the Commission."

115. With respect to the content of the American Declaration, it should be noted that it, like many human rights instruments, was never intended to provide lengthy or detailed provisions, but to enunciate fundamental principles.82 Those principles must necessarily be interpreted and applied in accordance with the overarching principle of respect for human rights set forth in the OAS Charter, in a manner which ensures the efficacy of the rights concerned. Where access to an appeal is necessary for an individual to effectively enjoy his or her right to be fairly heard, that access is necessarily comprehended in the fundamental principle of the right to a fair trial.83 In this regard, the Commission refers generally to paragraphs 95-112, supra. As noted above, existing judicial and administrative review mechanisms may provide important protections for some claimants, but do not bridge the gap resulting from the absence of a merits-based review.84

116. It should further be noted that the present report represents the Commission’s first comprehensive analysis of the Canadian refugee determination system; the procedures applicable to such a report are distinct from those relating to an individual case. The report as such does not affect or otherwise dispose of issues relating to the admissibility of individual complaints, which are exclusively governed by the Commission’s Statute, Regulations and its decisional law thereunder. The decision as to whether an individual case is admissible -- which includes assessing whether the requirement that the petitioner invoke and exhaust domestic remedies has been satisfied -- is taken in relation to the facts of that case as set forth by the parties.85 Which specific remedies, if any, an individual petitioner is required to exhaust is a question of law and fact decided with reference to the applicable circumstances. Again, as noted and reiterated above, existing judicial and administrative mechanisms may provide important protections for some claimants;86 and in fact, have done so for many. To the extent that such remedies represent available and effective recourse under the applicable circumstances, they must be invoked and exhausted. Where a claimant can show that such remedies do not offer available and effective relief in the particular case, the requirement that they be exhausted may be excused. The present report has the objective of assisting Canada in enhancing its observance of the principles of the American Declaration to the fullest extent; its contents do not dispose of the question of admissibility in any particular individual case. 

3. The Scope of the Refugee Determination and Review Process with Respect to the Right to be Free from Torture

117. As demonstrated in sections IV.1 and .2, supra, the questions of merits review, other forms of post-determination review, and access to judicial protection are linked in terms of the role each may play in the protection of the rights of refugee claimants. The above analysis demonstrates that the system as presently configured is characterized by certain very specific gaps in protection. As noted, these gaps affect a relatively small number of people in a system which operates to the benefit of the great majority of those it serves. However, given the interests at stake, these gaps require prompt and serious attention. A particular illustration of the way in which these gaps can result in a valid individual claim for protection being rejected arises in relation to the scheme designed to respond to allegations of torture pursuant to Canada’s obligations under the American Declaration, bearing in mind its obligations under the UN Convention Against Torture.

118. Within the inter-American human rights system, Article I of the American Declaration sets forth the right of every person to "life, liberty and personal security." An essential aspect of the right to personal security is the absolute prohibition of torture, a peremptory norm of international law creating obligations erga omnes. Canada further defined and complemented its obligations in this regard when it became a party to the UN Convention Against Torture. Article 3 of that Convention provides:

1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.87

119. The fact that the scope of the protections set forth in Article 3 of the UN Convention Against Torture may apply more broadly than those of the 1951 Convention – i.e., they may apply to persons who do not meet the Convention refugee definition or, conversely, meet the grounds for exclusion – poses a special challenge within the refugee determination system. The difficulties inherent in sustaining claims concerning torture, referred to above in section IV.B.2, pose a further challenge.

120. In this regard, as described above, the Canadian refugee system provides a form of post-determination review to identify persons who, having been rejected as failing to meet the standard to be deemed a Convention refugee, may nonetheless be exposed to compelling personal risk if removed from Canada. In its observations, the Government indicated that "[f]or those persons deemed not to be Convention refugees, PDRCC and H&C are ways in which Canada has been found to meet its obligations under the Convention Against Torture." It further indicated that "the Federal Court has the power to issue stays of removal and will frequently do so where the issue of torture is raised." "The issue of removal to torture has been raised judicially a number of times and persons who face torture (as defined by the Convention Against Torture) have not been removed from Canada as a result."

121. However, the coverage of this post-determination review does not extend to all who may fall within the terms of Article 3. First, the PDRCC process may not be invoked by persons subject to exclusion from the refugee determination process. Second, while Article 3 of the Convention Against Torture applies where there are "substantial grounds for believing that [the person] would be in danger of being subjected to torture," the PDRCC regulations apply to individuals who "would be subjected to an objectively identifiable risk, which risk would apply in every part of the country and would not be faced generally by other individuals in or from that country" – a higher standard to meet. Additional limitations of the PDRCC process and the humanitarian and compassionate review process are referred to above in section V.C.2.

122. Notwithstanding the combination of mechanisms potentially available, there is thus a gap in the protections available to a refused refugee claimant alleging that he or she will be subjected to torture if removed. To recap, the gap is not fully resolved by the post-determination processes. Nor is there a possibility of reopening the determination procedure to introduce newly available information, or to seek a reconsideration of the merits of the refugee claim.88 Because judicial review requires the granting of leave, which occurs with respect to approximately 10% of the applications filed by persons whose claims have been rejected by the CRDD, it may not be available to protect the rights of the person claiming a risk of torture. Fundamental rights such as the right to be free from torture must always be subject to effective guarantees, including the availability of judicial protection. These protections are required, not discretionary. Accordingly, given that the combination of procedures available does not ensure full compliance with Canada’s obligations to prevent and protect against torture, resolution of the concerns highlighted with respect to the respective roles of these mechanisms and judicial review must take into account the need to close the gap with respect to torture claims. 

4. Access to Legal Representation through Legal Aid

123. The right to counsel is protected generally under the Canadian Charter, and where necessary, is often made available through legal aid schemes. The provision of legal aid is the responsibility of the provinces. While the Commission is informed by the State that close to 99% of the work of the Refugee Division is centered in the provinces of British Columbia, Ontario and Quebec, which have legal aid programs, certain other provinces do not, or have programs that are extremely limited in scope. The Commission was informed during its on-site visit, for example, that New Brunswick, Nova Scotia and Prince Edward Island do not provide legal aid services for refugee claimants.89 Further, the various aid programs prioritize the types of claims for which assistance may be provided.90 Refugee advocates have indicated that the costly and complex nature of the various mechanisms involved in the refugee determination process and administrative and judicial review, coupled with limitations on access to legal aid constitute a serious limitation on the effective access of claimants to applicable remedies.

124. In its observations, the State indicated that the Immigration Act provides that a person claiming refugee status may be represented by counsel at his or her own expense. Moreover, "[t]he overwhelming majority of refugee claimants in Canada have access to legal aid." The State reported that "[f]ully 90% of referrals to the Refugee Division are centered in BC, Quebec and Ontario, all of which provide this service."

125. Given the nature of the refugee determination process and the interests at stake for the claimant, it is obviously in his or her interest to be represented by competent legal counsel. Further, the applicable procedures may be quite complex, particularly for the vast majority of claimants unversed in the applicable law. According to the information before the Commission, the majority of such claimants lack the financial means to hire a private attorney, and turn instead to legal aid. Advocates who provided the Commission with information indicated that the legal aid regime as applied to the refugee context was uneven, at best. They indicated that in some provinces, legal aid regimes cover refugee hearings, while others did not. They further indicated that in some provinces the rates paid to legal aid attorneys were so low that few lawyers were willing or able to accept such work.

126. The question of when legal aid must be provided has been addressed in the inter-American human rights system in some detail in relation to the requirement that petitioners have exhausted available domestic remedies before filing a complaint with the IACHR. In this connection, and in relation to the right of access to judicial protection under Article XVIII, a general standard for determining when legal aid may be necessary is when it is required in order to effectively vindicate a fundamental protected right under the American Declaration or the Constitution or laws of the country concerned. This flows in large measure from the principle that rights must be implemented in ways that give them proper effect.91 It also flows from the right to equal protection of and before the law.

127. In deciding whether legal representation is required, regard may be had to the circumstances of the particular case – its significance, legal character, and context in the particular legal system.92 Whether the internal system of the country concerned provides for legal aid as a matter of domestic law is not dispositive; rather, the analysis turns on whether legal representation is necessary for the recourse to be exercised effectively. In sum, member States have an obligation to make the right to judicial protection effective. Distinctions in the availability or coverage of legal aid provided by the provinces which have the effect of depriving claimants requiring such services to ensure their access to judicial protection of fundamental rights necessary implicate the responsibility of the State. 


A. The Right to Liberty under the American Declaration

128. Within the immigration context, Canadian law provides two principle grounds justifying detention: that the person concerned is likely to pose a danger to the public; or that he or she is unlikely to appear for examination, inquiry or removal. This may apply to a variety of persons, including asylum seekers and others arriving in Canada who appear inadmissible, or who are in Canada and are removable, such as persons out of status of landed immigrants convicted of certain kinds of crimes. Such detention is considered exceptional and preventive rather than punitive in nature. The following sections provide an overview of the applicable procedures, and an analysis of several specific concerns relating to the standards for imposing detention, and the related questions of detention review and the permissible potential length of detention. 

1. Detention Procedures Generally

129. The process is generally initiated with the arrest of the person concerned by the Department of Citizenship and Immigration, which has the jurisdiction to release or continue the detention for the first 48 hours. Pursuant to the Immigration Act, the person must be presented before an Adjudicator within 48 hours for a detention review. The Adjudicator will first hear a representative of Immigration and Citizenship and then the detainee as to the reasons for and against detention, respectively, and if release should be allowed and under what conditions. It is an adversarial proceeding. The detainee may be represented by counsel, and an interpreter is provided when required. The adjudicator is required to consider alternatives to detention. At the conclusion of the hearing, the Adjudicator will issue a decision, with reasons, as to whether the detainee should be released, released subject to conditions (such as bond), or remain in detention. In the latter case, another review will be held in seven days, and at 30 day intervals thereafter. The State noted in its observations that persons detained in Canada have a right to access the courts to seek review of the legality of their detention. It indicated that, "[a]lthough the Federal Court does not have the precise power of the traditional habeas corpus, it can effectively examine the validity of a detention and quash the decision."

130. Every hearing is required to be de novo, and the adjudicator must base the decision on his or her own evaluation of the facts as set forth by the parties during the hearing. C&I is the detaining authority, and must satisfy the adjudicator at each hearing that the continuation of detention is justified and appropriate. The standard to be met is the balance of probabilities.

131. According to figures published by the non-governmental Canadian Council for Refugees, 6,400 people were detained during the financial year 1996-97, and 7,080 in 1997-98.93 The Adjudication Division reported concluding 8770 detention reviews for the period 1997-98.94 In its observations, the State noted that, at any given time, between 350 and 400 persons are detained. Depending on the length of their detention, each may be subject to one or more detention reviews.

132. The Act provides no limit on the length of detention thereunder. Case law and the Guidelines on Detention issued by the Chairperson of the IRB95 reflect that there are nonetheless implicit restrictions on the power of detention, particularly with respect to sections 7 and 12 of the Canadian Charter. The standard is that detention may continue for "a reasonable length of time, given all the circumstances of the case."96 In the case of persons detained pending removal, the Guidelines indicate that "it is relevant to consider whether the removal will be executed in the foreseeable future."97

133. Persons detained under the act may be held in detention centers, or in jails, when there is no detention center available or where the detainee is deemed to pose a danger. A landed immigrant who is convicted of a criminal offense and retained for immigration purposes after completing his or her sentence will generally continue to be held in the same facility. 

2. Access to Review of the Legality of Detention and Length of Detention under the American Declaration

134. In examining the Canadian refugee system, the Commission has considered a number of issues relating to the detention of asylum seekers and refused refugee claimants scheduled for removal. This examination included visits to the Toronto West Detention Center and the Laval Holding Centre during the Commission’s on-site visit to obtain first-hand information about conditions. While some refugee advocates and others involved in the system expressed concerns about the adequacy of conditions in certain facilities, those the Commission was able to visit appeared to meet the generally applicable minimum standards for detention. In particular, the immigration detention centers appeared to comport with reasonable standards of cleanliness, organization and safety.

135. With respect to the overall question of detention reviews, the Commission has taken due note of the issuance of the "Guidelines on Detention" by the Chairperson of the IRB in early 1998. These guidelines were issued to provide further specificity to Immigration Adjudicators in making decisions on detention and conducting detention reviews.98 The Commission considers that they provide an important means of sponsoring informed decision-making, and enhancing uniformity in the application of relevant standards.

136. With respect to the framework for imposing preventive detention in the immigration context, on the basis of all the information it has received, the Commission continues to be concerned by two principal issues: (1) the formulation of the "danger to the public" standard for detention; and (2) the sufficiency of norms relative to prolonged preventive detention.

137. Article I of the American Declaration sets forth that every human being has the right to liberty. Article XXV provides that no person may be deprived of that right, except in accordance with the norms and procedures established by pre-existing law. The Article specifies, in pertinent part, that any person deprived of liberty "has the right to have the legality of his detention ascertained without delay by a court … [and] the right to humane treatment during the time he is in custody." Article XXV thus specifies three fundamental requirements: first, preventive detention, for any reason of public security, must be based on the grounds and procedures set forth in law; second, it may not be arbitrary; and third, supervisory judicial control must be available without delay.

138. With respect to the "public danger" criterion for detention, the Commission notes that the detention guidelines issued by the Chairperson of the IRB acknowledge that "[n]either the Immigration Act nor the case law clearly defines the phrase `danger to the public.’99 Evidently this expression relates to the protection of the health, safety and good order of Canadian society."100 The guidelines and other sources indicate that detention under this criterion is generally based on criminal grounds. As a policy matter, the guidelines cite case law suggesting that: the danger to the public may be present or future; inferences may be drawn from the subject’s criminal record; a conviction, standing alone, is not enough to support a finding; the danger "must also refer to the possibility that a person who has committed a serious crime in the past may seriously thought to be a potential re-offender."101

139. In this regard, while the guidelines provide an important tool for informing adjudicators of the extant standards they are responsible for applying, their scope is limited to reflecting certain contours of existing case law. The guidelines do not have the capacity to address the lack of precision in the legislative formulation of the public danger standard. Accordingly, it remains unclear whether this standard, even with the clarifications of the guidelines, provides the precision necessary to ensure consistency in decision-making, and to enable a detainee to effectively defend his or her right to liberty thereunder.102 The Article XXV requirement that any deprivation of liberty comport with preexisting norms of law and procedure implies that those norms be sufficiently "accessible and precise" so as to "avoid all risk of arbitrariness."103 While this issue affects a relatively small proportion of asylum seekers -- the State indicated in its observations that the "vast majority of detention cases based on `danger to the public’ under the Immigration Act do not apply to individuals seeking refugee status" – the fundamental rights of those concerned may be substantially affected.

140. With respect to the second issue, concerning prolonged preventive detention, Canadian law provides no limit on the length of preventive detention in the immigration context. As a policy matter, the guidelines indicate that, pursuant to the Immigration Act and the Charter, continued detention is permissible "for a reasonable length of time, given all the circumstances of the case," and must be in accordance with the principles of fundamental justice under section 7 of the Charter.104 Indefinite detention, for example, is noted as coming into conflict with section 7. This is a particularly important clarification. The adjudicator is to consider how long the person has been in detention, why a pending removal order has not been executed, and how much longer he or she may be expected to be in detention before the removal order would be executed. The adjudicator is also to take into account that there is a stronger case to maintain detention for persons deemed a danger to the public, and that unexplained delay or failure to act should count against the offending party.105

141. During its on-site visit, the Commission was provided with some limited data concerning long-term preventive detention in the immediately preceding period of 1996. According to figures the non-governmental Inter-Church Committee for Refugees obtained through the Department of Citizenship and Immigration Canada, 40 persons had been in detention for over one year, while the number detained in excess of 6 months was 82. The State, for its part, informed the Commission that an average of 60% of persons detained for more than 30 days were held pending removal. Officials indicated that removal was sometimes delayed due to a judicial stay or other legal impediment, and sometimes presented special difficulties and delay in the case of persons without sufficient identity documents, or with respect to whom the Government was engaged in complex negotiations with the country of return. A number of the individuals interviewed in the two detention facilities visited complained of the harsh conditions of what they characterized as "indefinite detention." Some of these individuals were detained under the security certification process referred to below, others on a ground related to criminality, while the Government was unable to obtain the necessary travel documents for others.

142. The Commission observes as a threshold principle that the longer detention as a preventive measure continues, the greater the resulting burden on the rights of the person deprived of liberty. Carrying out periodic detention reviews thus provides an important safeguard in principle, and the guidelines indicate that some account is to be taken of the time already spent in detention. Further, the guidelines specify that reasons are to be given showing the nature of the hearing, the criteria applied, a summary and analysis of the facts, and the decision.106 However, the Commission has received fairly consistent indications that, with the passage of time, these reviews may become rather pro forma in nature. While the guidelines indicate that both Citizenship and Immigration and the person concerned must make a showing as to their position, information before the Commission is fairly consistent in indicating that the burden of proof begins to rest progressively with the detainee, who must adduce new facts to justify the consideration of a change in the circumstances. Where the burden on the rights of the detainee becomes too great, the continuation of preventive detention may no longer be justified as a security measure, and may effectively be converted into a penalty imposed absent due process. 

3. The Security Certificate Regime: Access to Review of the Legality of Detention, and the Length of Detention under the American Declaration

143. Sections 39-40 of the Immigration Act provide a distinct regime for persons deemed inadmissible for posing a risk to Canadian security. These provisions are aimed at ensuring the expeditious removal from Canada of persons deemed to meet specified grounds. The provisions include certain criminality grounds, and apply to persons whom the Minister and Solicitor General determine are inadmissible for having engaged in terrorism or for belonging or having belonged to a terrorist organization. With respect to the latter category, the test is membership or association, and does not necessarily involve the knowledge of activities of the organization or the individual conduct of the person concerned within the organization.

144. With respect to the regime under section 40.1 specifically, which applies to non-permanent residents, once a certificate is issued, the person concerned must be detained. The certificate is referred to the Federal Court for a determination as to whether it should be quashed or upheld. The judge has seven days to examine the evidence in favor of the certificate in camera. The subject of the certificate must then be provided with a statement summarizing the information, sufficient to "enable the person to be reasonably informed of the circumstances giving rise to the issue of the certificate." Where disclosure of information referred to would be injurious to national security or personal safety, that information will not be made known to the subject of the certificate. That person will then have a reasonable opportunity to be heard before the judge decides on the basis of the information available whether to uphold the certificate. This information may include evidence that the judge deems fit to consider, even if it would not be admissible in a court of law. There is no specific time limit for the decision, and the determination is not subject to appeal or review by any court.

145. Such a person may be ordered released by the Minister, prior or subsequent to the decision of the judge, only for the purpose of effectuating his or her removal. Where the certificate is upheld, if the person has not been removed within 120 days after the issuance of the removal order, he or she may apply to the Chief Justice of the Federal Court, who may order release on the basis that the person will not be removed within a reasonable time and that release would not be injurious to national security or public safety. The judge may examine sensitive evidence in camera in making this evaluation, and a summary of that evidence will be given to the detainee who has an opportunity to be heard. Again, the judge may accept the evidence he or she deems fit, which need not meet the standards for admission in a court of law.

146. According to the information before the Commission, the security certification process under section 40.1 raises three principle concerns implicating the provisions of the American Declaration and other applicable norms: (1) the compatibility of the provisions concerning access to review of the legality of detention, (2) the apparent difficulties presented for a person deemed to be a security risk to seek protection for his or her right to non-return due to a risk to life or physical integrity, and (3), the compatibility of the procedures which allow the judge reviewing the certificate to consider evidence which may be withheld from the person concerned on the basis of the need to protect national security.

147. With respect to the first issue, Article XXV of the American Declaration provides that any person detained has the right to have the legality of the detention ascertained without delay. The requirement that detention not be left to the sole discretion of the State agents responsible for carrying it out is so fundamental that it cannot be overlooked in any context. Supervisory control over detention is an essential safeguard, because it provides effective assurance that the detainee is not exclusively at the mercy of the detaining authority.107 This is an essential rationale of the right to habeas corpus, a protection which is not susceptible to abrogation.108 Under normal circumstances, review of the legality of detention must be carried out without delay, which generally means as soon as practicable.109 This essential safeguard is recognized in a range of international instruments, including principal human rights treaties, as well as the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.110

148. While the certification process provides for judicial review of the grounds for issuing the certificate, it provides no recourse to seek review of the legality of the related detention. Under the terms of the Immigration Act, detention is mandatory until the certificate is quashed. The only exception prior to that point is release for the purpose of removal. If the certificate is not quashed, the terms of the Act expressly exclude the possibility of access to the writ of habeas corpus for 120 days after a removal order is issued.

149. As a matter of domestic law, the certification process and related detention provisions have been upheld as constitutional on the basis that, while the process "has the immediate unfortunate effect of leading to the arrest and detention of the person concerned, a fate normally reserved for criminals," its primary purpose is "providing preventive protection to the Canadian public." Further, the Court found that preventive detention under those terms is neither arbitrary nor excessive, given that: the issuance of the certificate requires the opinion of two Ministers based on security information, a determination subject to obligatory judicial review "within an acceptably short period of time;" that it allows for the detainee to end the detention at any time by agreeing to leave the country; and that the provisions at issue deal with "individuals somehow associated with terrorism."111 In its observations, the State indicated that "[i]n enacting section 40.1 of the Immigration Act, Parliament developed a procedure in which it attempted to strike a balance between the competing interests of the individual and the state." The State reiterated that the process of issuing a certificate "has various safeguards in place to ensure that individuals concerned are treated fairly …. includ[ing] the test for [] issuance …: the reasoned opinion of two Ministers …; the obligatory judicial scrutiny of the reasonableness of those opinions within an acceptably short period of time; and the type of prohibited class of individuals."

150. While the certificate review process provides an important judicial check on State action, it does not provide the simple, prompt access to judicial oversight with respect to the decision to detain required by Article XXV of the Declaration.112 Where the decision to detain is taken by an administrative authority, "there is no doubt" that the person concerned must have recourse to challenge that decision before a court.113 Further, this must be available without delay. In the first place, the 120 day waiting period does not meet this standard. In the second place, it only begins to run after the certificate is upheld and a removal order is issued. In the relatively few cases with respect to which the Commission has received information, the certificate review proceedings have taken months, even years to complete. Nor would the possibility of filing of an action seeking declaratory relief under the Charter before the Federal Court offer the kind of simple, prompt control contemplated by the protection of habeas corpus.114 In principle, the terms of Article XXV, concerning the right to detention review without delay, particularly when read in conjunction with those of Article XVIII, concerning the right to a simple, brief procedure for the protection of fundamental rights, require the existence of a procedure such as habeas corpus or its equivalent which does not then require the institution of separate legal proceedings such as an application for judicial review.115

151. With respect to the duration of such proceedings, the State indicated in its observations that "[g]enerally speaking this process has been completed in most cases within four months of the filing of the certificate." "Some lengthy delays have occurred when these provisions were still new and when the constitutionality was being tested." The Commission notes in this regard that it has received information through its petition process about several specific cases of delay. In one, the individual concerned was detained for approximately a year and a half, and in another for two and half years.116 It may further be noted that the subject of the Ahani case, cited by the State in its observations (see para. 156 infra), has been detained approximately seven years. Because detention is mandatory until the certificate is quashed, the information proffered by the State means that individuals concerned may be detained for four months pending the judicial decision on the certificate with no possibility of seeking judicial review of the legality of detention. Moreover, in cases where the certificate is upheld, the law expressly precludes an application for habeas corpus to obtain such review for an additional 120 days after the issuance of a removal order. The Commission observes in this regard that a delay of either four or eight months in affording access to judicial review of the legality of detention greatly exceeds the requirement under Article XXV of the Declaration that such access be accorded promptly.

152. Moreover, while the need to protect the rights of others may provide a basis for the limitation of certain rights under the Declaration, any such restriction must always flow from and be governed by law. This Commission and other international human rights bodies have consistently recognized the right and duty of the State to fight terrorism and protect citizen security, and the special problems which arise in this context.117 At the same time, even under extreme circumstances, effective judicial control of State action remains a fundamental prerequisite for ensuring the rule of law. Accordingly, this Commission has consistently found that resort to restrictive measures under the American Declaration may not be such as to leave "the rights of the individual without legal protection."118 "[C]ertain fundamental rights may never be suspended, as is the case, among others, of the right to life, the right to personal safety, and the right to due process.... under no circumstances may governments employ ... the denial of certain minimum conditions of justice as the means to restore public order."119 While international human rights law allows for some balancing between public security and individual liberty interests, this equilibrium does not permit that control over a detention rest exclusively with the agents charged with effectuating it.

153. Further, the assessment of the need to detain must in principle be based on the circumstances pertaining to the individual concerned. The particular question under study, the danger of an individual to national security, is a characteristic susceptible to change over time, indicating that new issues as to the lawfulness of detention may arise, which must be subject to the possibility of review at reasonable intervals.120

154. The Commission notes that, pursuant to these provisions, a person recognized as a Convention refugee can be divested of that status and removed from Canada to a seemingly uncertain future. Persons with respect to whom security certificates are issued are excluded from the refugee determination process and the post-claim risk review process. For persons who have been subject to certain forms of persecution, such as torture, return to their home country would place them at a risk which is impermissible under international law. As noted above, the prohibition of torture as a norm of jus cogens -- as codified in the American Declaration generally, and Article 3 of the UN Convention against Torture in the context of expulsion -- applies beyond the terms of the 1951 Convention. The fact that a person is suspected of or deemed to have some relation to terrorism does not modify the obligation of the State to refrain from return where substantial grounds of a real risk of inhuman treatment are at issue.121 Return is also highly problematic as a practical matter in the case of stateless persons, or persons with respect to whom it is not possible to obtain travel documents. The information before the Commission is unclear in indicating what other effective options are available to such persons, or that there are adequate safeguards in place to ensure that expulsion does not place their lives or physical integrity at risk.

155. Finally, the Commission has carefully reviewed the provisions stipulating the bases according to which information may be withheld from the person concerned during the certificate review process. Pursuant to section 40.1(4)(b), the designated judge may:

provide the person named … with a statement summarizing such information available to … the designated judge … as will enable the person to be reasonably informed of the circumstances giving rise to the issue of the certificate, having regard to whether, in the opinion of the … designated judge … the information should not be disclosed on the grounds that the disclosure would be injurious to national security or to the safety of persons.

Pursuant to section 40.1(5.1), where the State applies, ex parte and in camera, for the admission of information obtained in confidence from a foreign government or institution, or from an international organization of states or an institution thereof, the judge shall review it, and, if deemed relevant, may consider it, even though he or she determines that it should not be disclosed to the person concerned in order to protect national security of the safety of persons.

156. With respect to the process generally, the State recalled in its observations that the certification process had been upheld by the Federal Court of Appeal in the Ahani case as consistent with the constitution and the requirements of fundamental justice. With respect to the issue of evidence and due process, the State indicated that:

The Supreme Court in Chiarelli ruled that an appropriate balance had been struck between the protection of information and due process in the security certificate determination process. While it may be argued that due process would entitle a person to always receive all the information in the hands of the state, the Court held that this must be balanced by the State’s right to protect itself from terrorists and other serious criminals.

The State also noted that reference to its procedures for judicial control of the use of confidential material had been cited with approval by the European Court of Human Rights in the case of Chahal v. U.K.: "The Court attaches significance to the fact that, as the intervenors pointed out …, in Canada a more effective form of judicial control has been developed in cases of this type. This example illustrates that there are techniques which … both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice." Finally, the State observed that the Federal Court had quashed security certificates in given cases, citing the decision issued recently in Jaballah, thereby demonstrating that "the judiciary ensures that fundamental justice is upheld" in these types of cases.

157. The Commission observes that the provisions of section 40.1 raise certain due process concerns under, inter alia, Articles XVII and XVIII of the American Declaration. First and foremost, where information considered within the process is withheld, the person concerned cannot be fully apprised of the case he or she is to meet. The legislation provides that the information at issue must be deemed relevant by the judge; however, its terms do not require an evaluation of the credibility or veracity of the original source, and the person concerned is unable to challenge the source or to rebut the content of that information.122 Although the certificate review process is not criminal in nature, the non-disclosure of such information may well prejudice the rights of the person concerned, giving rise to serious consequences. Once a certificate is upheld by a judge, it constitutes conclusive evidence that the person named falls within an inadmissible class, and mandates that he or she be detained until removed from Canada. While the IACHR recognizes that the State is necessarily concerned with the need to protect its ability to collect sensitive information, it is a fundamental principal of due process that the parties engaged in the judicial determination of rights and duties must enjoy equality of arms. A person named in a certificate who is the subject of secret evidence will not enjoy a full opportunity to be heard with minimum guarantees, the essence of the right to due process. Both citizens and non-citizens must be accorded due process in the determination of basic rights, in this instance, the right to seek asylum and the right to personal liberty, in particular. 

B. Respect for Family Life and the Rights of the Child under the American Declaration

158. Since the Commission has been monitoring the situation of human rights in Canada, it has received extensive and detailed information concerning the rights at issue and the procedures available in cases involving the removal of alien parents, including but not limited to refused refugee claimants, of Canadian-born children.123 The core concern reflected in the vast majority of the submissions received prior to mid-1999 was that the Canadian judicial system provided no mechanism to ensure that the rights and interests of such children were taken into account in removal proceedings which would obviously have a dramatic impact on their welfare and development. Judicial authorities confirmed to the Commission during its on-site visit that the jurisprudence indicated that the decision to remove was deemed to relate solely to the situation of the parent or parents, who had the responsibility to make the decision as to what course of action would be in the best interests of their Canadian citizen child. It was up to the parent or parents to elect whether to take the child with them to their country of origin or place him or her in foster care in Canada, potentially involving a choice between the love and care of a parent in circumstances of poverty and hardship, or the health, education and welfare benefits available to citizens resident in Canada absent parental support.

159. Given Canada’s obligations under the American Declaration, interpreted with reference to the Convention on the Rights of the Child, the absence of any procedural opportunity for the best interests of the child to be considered in proceedings involving the removal of a parent or parents raised serious concerns. Accordingly, the Commission views the recent decision in Baker v. The Minister of Citizenship and Immigration124 as a welcome and positive step toward compliance with these obligations.

160. In that case, the Supreme Court held that, while provisions such as those of the Convention on the Rights of the Child had not been implemented by Parliament (and were thus not directly applicable under Canadian law), because the legislature is presumed to respect principles of customary and conventional international law, interpretations reflecting the values of human rights law are preferred.125 International human rights law provides "a critical influence on the interpretation of the scope of the rights contained in the [Canadian] Charter."126 The Court indicated that the Convention on the Rights of the Child and other applicable provisions place special importance on the protection of children and their interests, and "help show the values that are central in determining whether" the immigration officer’s decision was a reasonable exercise of discretion under the humanitarian and compassionate review process.127 The Court also looked to the objectives of the Immigration Act and the applicable guidelines to support the finding that the interests of affected children should be taken into account in such proceedings. Partly on the basis of a reasonable apprehension of bias on the part of the immigration officer who had rejected the humanitarian application, and partly on the basis of his failure to take the interests of the affected children into account, the Court ruled that the appeal should be allowed, and the matter returned for re-determination by a different officer.

161. In its observations, the State indicated that the Supreme Court’s decision in the Baker case had "affirmed the importance of considering family-related interests in H&C applications." It noted that, in reaching this decision, the Court had looked to: the applicable legislative provisions; the purposes of the Immigration Act, particularly with respect to family reunification; international law standards such as the Convention on the Rights of the Child; and the applicable guidelines for decision-makers. "In ruling … the Supreme Court indicated that the guidelines in place for decision-makers at that time provided sufficient guidance to officers on the importance of taking family interests into account." Finally, the State noted that those guidelines had been replaced just prior to the issuance of the Baker decision, with additional emphasis placed on family-related interests and applicable international norms.

162. The provisions of the American Declaration, pursuant to ratification of the OAS Charter, the UN Convention on the Rights of the Child and other human rights instruments applicable to Canada, constitute freely undertaken obligations requiring appropriate measures to ensure their implementation. In this regard, the Commission finds it pertinent to offer a few observations about what is required in terms of the rights of the child and to family life. Within the inter-American system, Article V of the American Declaration recognizes that every person has the right to protection against abusive attacks on his or her family life. Pursuant to Article VI of the Declaration, every person has the right to establish a family, the basic element of society, and to receive protection therefore. These provisions thus prohibit arbitrary or illegal interference with family life.

163. Article VII of the American Declaration provides that minor children are entitled to measures of special protection by virtue of their status. Within the regional human rights system, as within the universal system, the rights of children have been accorded special priority and protection, because the youth of our hemisphere represent our future possibility to create "a system of personal liberty and social justice based on respect for the essential rights of man." It is for this reason that Article VII establishes special measures of protection for children corresponding to their vulnerability as minors, and the implementation of this obligation must be accorded special importance. Respect for this duty of special protection necessarily requires that the interests of the child be taken into account in State decision-making which affects him or her, and that such decisions look to the protection of the best interests of the child.

164. In accordance with the principle of effectiveness, the implementation of Article VII may require the adoption of specific measures aimed at the protection of children.128 The recognition of a duty of special protection for children is based on the need to protect the full range of their interests -- in the social, economic, civil and political spheres. As the UN Human Rights Committee has indicated with respect to the duty of States Parties under the ICCPR, the duty to take special measures is most fundamentally aimed at ensuring the rights set forth in the instrument itself, but may also include economic, social and cultural measures as required.129

165. The Convention on the Rights of the Child provides more specific guidance to be taken into account in interpreting and applying the Declaration, indicating in Article 3 that the best interests of the child shall be a primary consideration in all State-sponsored action involving children. Article 9 indicates that measures involving the separation of parent and child must be extremely exceptional, involving situations of abuse or neglect, or parents living in different locations where a decision as to the child’s place of residence must be made, and must be made pursuant to judicial review. Article 12 further provides that, where a child is capable of forming his or her own views, those should be given due weight, in particular in any judicial proceedings affecting him or her. In conducting its review of Canada’s initial report under that Convention, the UN Committee on the Rights of the Child cautioned that the best interests of the child are not always taken into account in national legislation and policy-making – including within the administrative processes concerning refugees and immigrants. The Committee concluded that Canadian legislation and jurisprudence did not reflect respect for that essential principle. Further, the Committee expressly recommended that measures be taken to avoid expulsions causing the separation of families.130

166. In view of the foregoing principles, it may be observed that, while the state undoubtedly has the right and duty to maintain public order through the control of entry, residence and expulsion of removable aliens, that right must be balanced against the harm that may result to the rights of the individuals concerned in the particular case. In this regard, the Commission has also received submissions alleging that the right to family life is not sufficiently taken into account in removal proceedings, particularly where the removal of long term permanent residents is at issue. Given the nature of Articles V, VI and VII of the American Declaration, interpreted in relation to Canada’s obligations under the Convention on the Rights of the Child, where decision-making involves the potential separation of a family, the resulting interference with family life may only be justified where necessary to meet a pressing need to protect public order, and where the means are proportional to that end. The application of these criteria by various human rights supervisory bodies indicates that this balancing must be made on a case by case basis, and that the reasons justifying interference with family life must be very serious indeed.131 

[ Table of ContentsPrevious | Next ]

Colorline.gif (2424 bytes)

73 IRB, 1999-2000, Plans and Priorities, supra, p. 7.

74 See generally, Federal Court Act, Section 18.1(4).

75 UNHCR Rec. No 8 (XXVIII) "Determination of Refugee Status," (1977), at secs. (e)(vi) and (vii).

76 Statement of UNHCR Representative Mr. D. Chefeke on Bill c-86, supra.

77 See e.g., Susan Davis and Lorne Waldman, The Quality of Mercy (March 1994) (reporting to the Minister of Citizenship and Immigration Canada the results of a study of the processes available to persons who are determined not to be refugees and who seek humanitarian and compassionate treatment).

78 The State cited the following examples: "R.K. v. Canada, 20 Nov. 1997, Comm. 42/1996, CAT; V.V. v. Canada, 19 May 1998, Comm. 47/1996, CAT; P.S.S. v. Canada, 13 Nov. 1998, Comm. 66/1997, CAT; Nartey v. Canada, 18 July 1997, Comm. 604/1994, UN Human Rights Committee; Badu v. Canada, 18 July 1997, Comm. 603/1994, UN Human Rights Committee; Adu v. Canada, 18 July 1997, Comm. 654/1995, UN Human Rights Committee; Joseph, 6 October 1993, Report No. 27/93, Case 11.092, IACHR."

79 The State cited K.K.H. v. Canada; V.V. v. Canada.

80 The State cited Adu, Badu and Nartey.

81 The State cited X v. Sweden.

82 See generally, Inter-American Juridical Committee, "Report to Accompany the Definitive Draft Declaration of the International Rights and Duties of Man" (1947), p. 14.

83 See paras. 100-01, supra.

84 See para. 106, supra.

85 This is also the case with respect to the jurisprudence of the UN Committee Against Torture and UN Human Rights Committee cited by the State. See, e.g., Committee Against Torture, M.A. v. Canada, Comm. No. 22/1995, U.N. Doc. A/50/44 at 73 (1995)(noting that certain remedies invoked by the complainant remained pending, and finding that, under the circumstances of the case, no special circumstances had been shown excusing the requirement that those be exhausted); UN Human Rights Committee, Nartey v. Canada, Comm. No. 604/1994 (Decision of 18 July 1997, 60th Sess.), para. 6.2 (noting that the complainant had failed to counter the observations provided by the State, and had failed to invoke remedies the latter had indicated were available and effective).

86 See paras. 105-06, supra.

87 See also, UN Hum.Rts Committee, General Comment 20 (Article 7), in "Compilation," supra, at para. 9 (expressing that States Parties to the ICCPR, such as Canada, must not expose individuals to the risk of inhuman treatment or torture pursuant to extradition, expulsion or return).

88 The fact that evidence concerning allegations of torture is not produced during the refugee determination process does not necessarily dispose of the obligations of the State to take that evidence into account in ensuring the person concerned the effective protection of his or her rights. See UN Torture Comm., Khan v. Canada, Comm. No. 15/1994, views adopted 15 Nov. 1994, CAT/C/13/D/15/1994, 18 Nov. 1994. In that case, the refused refugee applicant alleged a risk of torture if returned to his country. He had not presented those allegations during the determination process, and only attempted to introduce evidence of prior torture several years later in post-determination proceedings which were unsuccessful, largely due to doubts about the credibility of the claims. The Committee found that, under the circumstances, notwithstanding the delay in the submission of the evidence, which it noted is not unusual for torture survivors, and notwithstanding that there might even be certain doubts about the facts adduced by the applicant, the State Party was obliged to ensure his protection and to refrain from forcibly returning him.

89 IRB, "Refugee Determination Process: Claimant’s Guide," [information included in folders given to refugee claimants on arrival in Canada] at pp. 9-10 (covering legal aid information).

90 For example, a 1997 report on the Ontario legal aid system indicated that most legal aid services were devoted to representing clients in hearings before the CRDD, with very few legal aid certificates issued in relation to deportation proceedings, detention reviews, certification proceedings, or applications for post-claim administrative reviews. See "Report of the Ontario Legal Aid Review: A Blueprint for Publicly Funded legal Services" (1997) at p. 10.

91 See generally, IACtHR, Advisory Opinion OC-11/90 supra, at para. 30 (addressing the issue of exhaustion of domestic remedies under the American Convention); UNHum.Rts.Committee, Currie v. Jamaica, Comm. Nº 377/1989, U.N. Doc. CCPR/C/50/D/377/1989 (1994), at paras. 10, 13 (explaining that absence of legal aid where required to vindicate a right operates not only to excuse compliance with the requirement of exhaustion of domestic remedies, but also constitutes a violation of the right to a fair trial).

92 IACtHR, Advisory Opinion OC-11/90, supra, para. 28.

93 Refugees in Canada, supra, at p. 80.

94 IRB Performance Report, 1998.

95 The Chairman of the IRB issued guidelines aimed at assisting adjudicators in achieving greater consistency and fairness in March of 1998. The Guidelines deal with long-term detention, the notion of "danger to the public," alternatives to detention, and issues of evidence and procedure. See generally, Guidelines on Detention [Guidelines issued by the Chairperson pursuant to section 65(4) of the Immigration Act], Effective date March 12, 1998.

96 Id., at section A, "Long-Term Detention."

97 Id.

98 Guidelines are issued on questions of national importance, where there has been inconsistent treatment of the issue at law, where there is sufficient opportunity to consult internally and externally, and where the higher courts have not clearly pronounced on the issue concerned. "In other words, the fundamental criterion is that there be a certain ambiguity in law that need to be resolved." Chantal Bernier, "Women Refugee Claimants Fearing Gender-Related Persecution," Int’l Jrnl of Refugee Law, Special Issue Autumn 1997, p. 167, at 168.

99 Guidelines, p. 3.

100 Id. (citing section 3(I) of the Immigration Act).

101 Id., p. 4 (citations to domestic case law omitted).

102 A detainee has the right to periodic detention reviews by an Adjudicator, and the further right to challenge a decision pursuant to judicial review. In speaking to judicial authorities during its on-site visit, the Commission was informed that the Minister exercises broad discretion in deciding who constitutes a danger, and that judges are not to substitute their judgment as to the finding made. One highly placed authority characterized this as a "tough presumption [for a claimant] to rebut."

103 Eur.Ct.H.R., Amuur v. France, 22 E.H.R.R. 533 (1992) at para. 50 (construing the similar requirement of a "procedure prescribed by law" under the European Convention on Human Rights).

104 Guidelines, p. 2.

105 Id., pp. 2-3.

106 Id., p. 6.

107 The application of habeas corpus and similar remedies plays a fundamental role in, inter alia, protecting against arbitrary arrest and unlawful detention, and clarifying the situation of missing persons. Such remedies, moreover, may "forestall opportunities for persons exercising power over detainees to engage in torture or other cruel, inhuman or degrading treatment or punishment." UN General Assembly Resolution 34/178 (1979)(commemorating 300th anniversary of act giving writ of habeas corpus statutory force).

108 See generally, Erica-Irene Daes [UN Special Rapporteur] "Freedom of the Individual under Law," (1990) at 179 (observing role of habeas corpus as basic required protection under Universal Declaration).

109 No violation arises "if the arrested person is released `promptly’ before any judicial control of his detention would have been feasible." Eur. Ct.H.R., Brogan et al., Ser. A Vol. 145 (1988). See also Eur. Ct. H.R., De Jong, Baljet and van den Brink, Ser. A Vol. 77 (1984). Under normal circumstances, the UN Human Rights Committee has found detention for 48 hours without judicial review to be questionable. See UN, Human Rights and Pre-trial Detention (1994), at 12, citing UNGAOR, 45th Sess., Supp. 40 (A/45/40), vol. I, para. 333 (report of Federal Republic of Germany). Delays of four and five days in the presentation of a detainee before a judicial authority have been held violative. See Eur. Ct.H.R., Brogan, supra; Koster v. The Netherlands, Ser. A Vol. 221 (1991).

110 See, Principles on Detention, GA resolution 43/173 of 9 Dec. 1988, principles 4, 11.

111 Ahani v. The Queen, F.C.A., A-639-95, July 3, 1996.

112 The right to a review of the legality of one’s detention exists independent of whether the detention is lawful. See UNHum.Rts.Committee, General Comment 8/16, in "Compilation," supra, paras. 1, 4 (concerning the significance of right to review in context of the deprivation of liberty outside of the criminal justice context).

113 Eur. Ct.H.R., Iribarne Pérez v. France, Ser. A No. 325-C, 22 E.H.R.R., 153 (1995) para. 37, citing Eur.Ct.H.R., De Wilde, Ooms and Versyp v. Belgium, Ser. A No. 12, 1 E.H.R.R. 373 (1971) at para. 77. The relevant provisions under the American Declaration and the European Convention set forth the same basic requirements.

114 As noted above, under most cases in the immigration context, an applicant would be required to raise Charter issues before the relevant administrative tribunal within the respective proceeding. The IRB, for example, is generally competent to address Charter issues. If unsuccessful, the claimant could then seek leave for judicial review of that decision before the Federal Court. However, persons detained under the security certification procedure cannot raise Charter issues before the judge presiding over the certificate review. In such cases, a Charter-based action must be separately initiated before the Federal Court.

115 See generally, Eur.Ct.H.R., Hussain v. United Kingdom, Reports 1996-I No. 4, 22 E.H.R.R. 1 (1996) at para. 61.

116 Domestic court decisions on the relevant cases are titled under the names of Wahid Khalil Baroud and Manickavasagam Suresh respectively. It may be noted Amnesty International addressed the Government of Canada in 1996 concerning the situation of Mr. Suresh in detention.

117 See e.g., Eur.Ct.H.R., Sakik et al. v. Turkey, Reports 1997-VII No. 58 (1997) paras. 41-46.

118 IACHR, Report on the Situation of Human Rights in Paraguay, OEA/Ser.L/V/II.43 Doc. 13 corr. 1, p. 18, 31 Jan. 1978. See generally, IACtHR, Neira Alegria Case, Judgment of Jan. 19, 1995, Ser. C No. 20, paras. 75-77 (finding violation under corresponding provision of the American Convention in the case of decrees in effect suspending the right to habeas corpus); Eur.Ct.H.R., Amuur v. France, 22 E.H.R.R. 533 (1996) at para. 53, (finding violation of right to seek judicial review of the legality of detention where there a lacuna in the applicable law left asylum seekers without access to such review for 17 days).

119 IACHR, Report on the Situation of Human Rights in Argentina, OEA/Ser. L/V/II.49 Doc. 19, p. 26-27, 11 April 1980. See, e.g., IACHR, Report on the Situation of Human Rights in Colombia, OEA/Ser.L/V/II.53, doc. 22, 1981, pp. 15-18; IACHR, Ten Years of Activities 1971-81 (1982) pp. 341-42; IACHR, Resolution on the Protection of Human Rights in Connection with the Suspension of Guarantees or `State of Seige,' 12 Sept. 1968.

120 See generally, Eur. Ct.H.R., Hussain, supra, para. 54; see also, Body of Principles, supra, Principle 11, stipulating right to review of legality of detention and requirement that continuation of detention be subject to appropriate review,

121 See generally, Eur.Ct.H.R., Chahal v. United Kingdom, 1996-V Nº 22 (1996), p. 1831. The prohibition of inhuman treatment is a fundamental value underpinning the principal human rights Conventions. See id., para. 79. While States necessarily face "immense difficulties" in protecting the public from terrorism, even under those circumstances the prohibition remains absolute, "irrespective of the victim’s conduct." Id. That prohibition applies equally in expulsion cases. Id., para. 80.

122 It may be noted in this regard that the procedures the European Court of Human Rights compared to those applicable in Canada in dicta in the case of Chahal v. U.K. involved the issuance of a deportation notice against a non-permanent resident by the Home Secretary on the basis of national security concerns where the information utilized was examined by an advisory panel [with no decision-making power] but was not subject to any judicial review. See generally, Chahal v. the United Kingdom, supra. The Commission observes in this respect that while judicial review of such evidence is critical, it is not necessarily sufficient in and of itself. Further considerations are set forth in the text above.

The Commission notes that, in its reference to the procedures applicable in the Canadian process, the European Court noted certain safeguards. One of the protections referred to was that, while the subject of the certificate was not present or represented during the in camera review of evidence, security-cleared independent counsel appointed by the presiding court was present to assist in testing the sufficiency of the State’s case. The Commission understands that, under the terms of sections 39-40 of the Immigration Act, the use of such independent counsel applies to proceedings before the Security Intelligence Review Committee in relation to permanent residents, and does not apply to the judicial review of evidence in certification proceedings concerning non-permanent residents under section 40.1.

123 In its observations, the State noted generally that considerations relative to family and the rights of the child are taken into account at various stages of the refugee determination process, and that guidelines for decision-makers had been issued by the CIC and IRB making specific reference to Canada’s international obligation to consider the best interests of children.

124 That case arose pursuant to the issuance of a removal order against Mavis Baker, the mother of four Canadian-born dependent children. She had entered Canada as a visitor in 1981, and supported herself by working illegally until 1992, when she was diagnosed with paranoid schizophrenia. Subsequent to the issuance of the order, she had filed a written request for humanitarian and compassionate review, indicating, inter alia, that she was the sole caregiver for two of her children, and an important emotional support for the other two, who were in the custody of their Canadian father. Her application was rejected without a hearing or reasons, although she was able to obtain a copy of the immigration officer’s notes. The Federal Court Trial Division denied leave to appeal, but certified the following question: "Given that the Immigration Act does not expressly incorporate the language of Canada’s international obligations with respect to the International Convention on the Rights of the Child, must federal immigration authorities treat the best interests of the child as a primary consideration in assessing an applicant under s. 114(2) of the Immigration act"? Limiting itself to the terms of the question, the Court of Appeals ruled that those interests need not be given primacy in making that assessment. As discussed in the text above, the Supreme Court of Canada overturned that decision and sent the matter back for reconsideration.

125 Decision of Nov. 4, 1998, at p. 28,

126 Id.

127 Id.

128 See generally, UN H.R.Committee, Mónaco and Vicario v. Argentina, Comm. No. 400/1990, Decision of 3 April 1995, para. 10.5.

129 General Comment 17, para. 3, reprinted in "Compilation," supra.

130 UN Comm. Rts of Child, "Concluding observations of the Committee: Canada," CRC/C/15/Add.37, 20 June 1995, at paras. 13, 24.

131 See generally, Eur.Ct.H.R., Berrehab v. the Netherlands, Ser. A No. 138, 11 E.H.R.R. 322 (1988) (finding that enforcement of national immigration policy is not sufficient to override the need for contact between parent and child); Moustaquim v. Belgium, Ser. A No. 193, 13 E.H.R.R. 802 (1991) (holding that the need to protect public security in light of criminal acts committed when applicant was a minor did not override the fact that applicant had resided for almost the entirety of his life in France, and that all of his immediate family were there); see also Nasri v. France, Ser. A No. 322-B (1995); Beldjoudi v. France, Ser. A No. 234-A (1992); Chahal v. the United Kingdom, Reports 1996-V p. 1831 (1996): Gul v. Switzerland, 22 E.H.R.R. 93 (1996).