Suresh v. Canada (Minister of Citizenship and Immigration)

Suresh v. Canada (Minister of Citizenship and Immigration)
Collection
Supreme Court Judgments
Date
2002-01-11
Neutral citation
2002 SCC 1
Report
[2002] 1 SCR 3
Case number
27790
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Federal Court of Appeal
Subjects
Administrative law
Constitutional law
Notes
SCC Case Information: 27790
Decision Content
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1
Manickavasagam Suresh Appellant
v.
The Minister of Citizenship and Immigration and
the Attorney General of Canada Respondents
and
The United Nations High Commissioner for Refugees,
Amnesty International,
the Canadian Arab Federation,
the Canadian Council for Refugees,
the Federation of Associations of Canadian Tamils,
the Centre for Constitutional Rights,
the Canadian Bar Association and
the Canadian Council of Churches Interveners
Indexed as: Suresh v. Canada (Minister of Citizenship and Immigration)
Neutral citation: 2002 SCC 1.
File No.: 27790.
2001: May 22; 2002: January 11.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the federal court of appeal
Constitutional law — Charter of Rights — Fundamental justice — Immigration — Deportation — Risk of torture — Whether deportation of refugee facing risk of torture contrary to principles of fundamental justice — Canadian Charter of Rights and Freedoms, s. 7 — Immigration Act, R.S.C. 1985, c. I‑2, s. 53(1)(b).
Constitutional law — Charter of Rights — Fundamental justice — Vagueness — Whether terms “danger to the security of Canada” and “terrorism” in deportation provisions of immigration legislation unconstitutionally vague — Canadian Charter of Rights and Freedoms, s. 7 — Immigration Act, R.S.C. 1985, c. I‑2, ss. 19(1), 53(1)(b).
Constitutional law — Charter of Rights — Freedom of expression — Freedom of association — Whether deportation for membership in terrorist organization infringes freedom of association and freedom of expression — Canadian Charter of Rights and Freedoms, ss. 2 (b), 2 (d) — Immigration Act, R.S.C. 1985, c. I‑2, ss. 19(1), 53(1)(b).
Constitutional law — Charter of Rights — Fundamental justice — Procedural safeguards — Immigration — Convention refugee facing risk of torture if deported — Whether procedural safeguards provided to Convention refugee satisfy requirements of fundamental justice — Canadian Charter of Rights and Freedoms, s. 7 — Immigration Act, R.S.C. 1985, c. I‑2, s. 53(1)(b).
Administrative law — Judicial review — Ministerial decisions — Standard of review — Immigration — Deportation — Approach to be taken in reviewing decisions of Minister of Citizenship and Immigration on whether refugee’s presence constitutes danger to security of Canada and whether refugee faces substantial risk of torture upon deportation — Immigration Act, R.S.C. 1985, c. I‑2, s. 53(1)(b).
The appellant is a Convention refugee from Sri Lanka who has applied for landed immigrant status. In 1995, the Canadian government detained him and commenced deportation proceedings on security grounds, based on the opinion of the Canadian Security Intelligence Service that he was a member and fundraiser of the Liberation Tigers of Tamil Eelam, an organization alleged to be engaged in terrorist activity in Sri Lanka, and whose members are also subject to torture in Sri Lanka. The Federal Court, Trial Division upheld as reasonable the deportation certificate under s. 40.1 of the Immigration Act and, following a deportation hearing, an adjudicator held that the appellant should be deported. The Minister of Citizenship and Immigration, after notifying the appellant that she was considering issuing an opinion declaring him to be a danger to the security of Canada under s. 53(1)(b) of the Act, issued such an opinion on the basis of an immigration officer’s memorandum and concluded that he should be deported. Although the appellant had presented written submissions and documentary evidence to the Minister, he had not been provided with a copy of the immigration officer’s memorandum, nor was he provided with an opportunity to respond to it orally or in writing. The appellant applied for judicial review, alleging that: (1) the Minister’s decision was unreasonable; (2) the procedures under the Act were unfair; and (3) the Act infringed ss. 7 , 2 (b) and 2 (d) of the Canadian Charter of Rights and Freedoms . The application for judicial review was dismissed on all grounds. The Federal Court of Appeal upheld that decision.
Held: The appeal should be allowed. The appellant is entitled to a new deportation hearing. The impugned legislation is constitutional.
Deportation to torture may deprive a refugee of the right to liberty, security and perhaps life protected by s. 7 of the Charter . Section 7 applies to torture inflicted abroad if there is a sufficient causal connection with Canadian government acts. In determining whether this deprivation is in accordance with the principles of fundamental justice, Canada’s interest in combating terrorism must be balanced against the refugee’s interest in not being deported to torture.
Canadian law and international norms reject deportation to torture. Canadian law views torture as inconsistent with fundamental justice. The Charter affirms Canada’s opposition to government‑sanctioned torture by proscribing cruel and unusual treatment or punishment in s. 12 . Torture has as its end the denial of a person’s humanity; this lies outside the legitimate domain of a criminal justice system. The prohibition of torture is also an emerging peremptory norm of international law which cannot be easily derogated from. The Canadian rejection of torture is reflected in the international conventions which Canada has ratified. Deportation to torture is prohibited by both the International Covenant on Civil and Political Rights and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. Article 33 of the Convention Relating to the Status of Refugees, which on its face does not categorically reject deportation to torture, should not be used to deny rights that other legal instruments make available to everyone. International law generally rejects deportation to torture, even where national security interests are at stake.
In exercising the discretion conferred by s. 53(1)(b) of the Immigration Act, the Minister must conform to the principles of fundamental justice under s. 7 . Insofar as the Act leaves open the possibility of deportation to torture (a possibility which is not here excluded), the Minister should generally decline to deport refugees where on the evidence there is a substantial risk of torture. Applying these principles, s. 53(1)(b) does not violate s. 7 of the Charter .
The terms “danger to the security of Canada” and “terrorism” are not unconstitutionally vague. The term “danger to the security of Canada” in deportation legislation must be given a fair, large and liberal interpretation in accordance with international norms. A person constitutes a “danger to the security of Canada” if he or she poses a serious threat to the security of Canada, whether direct or indirect, bearing in mind the fact that the security of one country is often dependent on the security of other nations. The threat must be “serious”, grounded on objectively reasonable suspicion based on evidence, and involving substantial threatened harm. Properly defined, the term “danger to the security of Canada” gives those who might come within the ambit of s. 53 fair notice of the consequences of their conduct, while adequately limiting law enforcement discretion. While there is no authoritative definition of the term “terrorism” as found in s. 19 of the Immigration Act, it is sufficiently settled to permit legal adjudication. Following the International Convention for the Suppression of the Financing of Terrorism, “terrorism” in s. 19 of the Act includes any act intended to cause death or bodily injury to a civilian or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its very nature or context, is to intimidate a population, or to compel a government or an international organization to do or abstain from doing any act.
Section 19 of the Immigration Act, defining the class of persons who may be deported because they constitute a danger to the security of Canada, as incorporated into s. 53 of the Act, does not breach the appellant’s constitutional rights of free expression and association. The Minister’s discretion to deport under s. 53 is confined to persons who pose a threat to the security of Canada and have been engaged in violence or activities directed at violence. Expression taking the form of violence or terror, or directed towards violence or terror, is unlikely to find shelter under the Charter . Provided that the Minister exercises her discretion in accordance with the Act, the guarantees of free expression and free association are not violated.
Section 7 of the Charter does not require the Minister to conduct a full oral hearing or judicial process. However, a refugee facing deportation to torture under s. 53(1) (b) must be informed of the case to be met. Subject to privilege and other valid reasons for reduced disclosure, the material on which the Minister bases her decision must be provided to the refugee. The refugee must be provided with an opportunity to respond in writing to the case presented to the Minister, and to challenge the Minister’s information. The refugee is entitled to present evidence and make submissions on: whether his or her continued presence in Canada will be detrimental to Canada under s. 19 of the Act; the risk of torture upon return; and the value of assurances of non‑torture by foreign governments. The Minister must provide written reasons for her decision dealing with all relevant issues. These procedural protections apply where the refugee has met the threshold of establishing a prima facie case that there may be a risk of torture upon deportation. The appellant has met this threshold. Since he was denied the required procedural safeguards and the denial cannot be justified under s. 1 of the Charter , the case is remanded to the Minister for reconsideration.
Although it is unnecessary in this case to review the Minister’s decisions on deportation, where such a review is necessary the reviewing court should generally adopt a deferential approach to the Minister’s decision on whether a refugee’s presence constitutes a danger to the security of Canada. This discretionary decision may only be set aside if it is patently unreasonable in the sense that it was made arbitrarily or in bad faith, cannot be supported on the evidence, or the Minister failed to consider the appropriate factors. Likewise, the Minister’s decision on whether a refugee faces a substantial risk of torture upon deportation should be overturned only if it is not supported on the evidence or fails to consider the appropriate factors. The court should not reweigh the factors or interfere merely because it would have come to a different conclusion.
Cases Cited
Referred to: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Secretary of State for the Home Department v. Rehman, [2001] 3 W.L.R. 877; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147; Re Sheehan and Criminal Injuries Compensation Board (1974), 52 D.L.R. (3d) 728; Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; United States v. Burns, [2001] 1 S.C.R. 283, 2001 SCC 7; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Smith, [1987] 1 S.C.R. 1045; Canada v. Schmidt, [1987] 1 S.C.R. 500; Prosecutor v. Furundzija, 38 I.L.M. 317 (1999); R. v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No. 3), [1999] 2 W.L.R. 827; H.C. 6536/95, Hat’m Abu Zayda v. Israel General Security Service, 38 I.L.M. 1471 (1999); New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; R. v. Zundel, [1992] 2 S.C.R. 731; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653; Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170.
Statutes and Regulations Cited
Act to amend the National Defence Act and to make consequential amendments to other Acts, S.C. 1998, c. 35.
African Charter on Human and Peoples’ Rights, 21 I.L.M. 58, Art. 5.
American Convention on Human Rights, 1144 U.N.T.S. 123, Art. 5.
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b), (d), 7 , 12 .
Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Can. T.S. 1987 No. 36, Arts. 1, 2(1), (2), 3(1), 16(2), 17‑24.
Convention for the Suppression of the Unlawful Seizure of Aircraft, Can. T.S. 1972 No. 23.
Convention on the Physical Protection of Nuclear Material, 18 I.L.M. 1419.
Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6, Preamble, Art. 33.
Criminal Code, R.S.C. 1985, c. C‑46, s. 269.1 .
European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221, Art. 3.
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Can. T.S. 1965 No. 20, p. 25, Art. 3.
Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Can. T.S. 1965 No. 20, p. 55, Art. 3.
Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Can. T.S. 1965 No. 20, p. 163, Art. 3.
Geneva Convention Relative to the Treatment of Prisoners of War, Can. T.S. 1965 No. 20, p. 84, Art. 3.
Immigration Act, R.S.C. 1985, c. I‑2, ss. 2, 19(1)(e)(iv)(C), (f)(ii), (iii)(B) [am. 1992, c. 49, s. 11(2)], 40.1 [ad. c. 29 (4th Supp.), s. 4], 53(1)(a), (b) [rep. & sub. 1992, c. 49, s. 43], (c), (d), 82.1(1), 82.2.
International Convention for the Suppression of Terrorist Bombings, 37 I.L.M. 249.
International Convention for the Suppression of the Financing of Terrorism, GA Res. 54/109, 9 December 1999, Annex, Art. 2(1).
International Covenant on Civil and Political Rights, Can. T.S. 1976 No. 47, Arts. 4, 7.
Universal Declaration of Human Rights, GA Res. 217 A (III), UN Doc. A/810, at 71 (1948), Art. 5.
Universal Islamic Declaration of Human Rights (1981), 9:2 The Muslim World League Journal 25, Art. VII.
Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37, Arts. 53, 64.
Authors Cited
Bell, J. Bowyer. A Time of Terror: How Democratic Societies Respond to Revolutionary Violence. New York: Basic Books, 1978.
Brownlie, Ian. Principles of Public International Law, 5th ed. Oxford: Clarendon Press, 1998.
Emanuelli, Claude. Droit international public: Contribution à l’étude du droit international selon une perspective canadienne. Montréal: Wilson & Lafleur, 1998.
Farrell, William Regis. The U.S. Government Response to Terrorism: In Search of an Effective Strategy. Boulder, Col.: Westview Press, 1982.
Grahl‑Madsen, Atle. Commentary on the Refugee Convention, 1951. Geneva: Division of International Protection of the United Nations High Commissioner for Refugees, 1997.
Hannikainen, Lauri. Peremptory Norms (Jus Cogens) in International Law: Historical Development, Criteria, Present Status. Helsinki: Finnish Lawyers’ Publishing Co., 1988.
Hathaway, James C., and Colin J. Harvey. “Framing Refugee Protection in the New World Disorder” (2001), 34 Cornell Int’l L.J. 257.
Hogg, Peter W. Constitutional Law of Canada, vol. 2, loose‑leaf ed. Scarborough, Ont.: Carswell, 1992 (updated 2000, release 1).
Joyner, Christopher C. “Offshore Maritime Terrorism: International Implications and the Legal Response” (1983), 36 Naval War Col. Rev. 16.
Kash, Douglas. “Abductions of Terrorists in International Airspace and on the High Seas” (1993), 8 Fla. J. Int’l L. 65.
Levitt, Geoffrey. “Is ‘Terrorism’ Worth Defining?” (1986), 13 Ohio N.U. L. Rev. 97.
Porras, Ileana M. “On Terrorism: Reflections on Violence and the Outlaw” (1994), Utah L. Rev. 119.
Scarry, Elaine. The Body in Pain: The Making and Unmaking of the World. Oxford: Oxford University Press, 1985.
Schachter, Oscar. “The Extraterritorial Use of Force Against Terrorist Bases” (1989), 11 Houston J. Int’l L. 309.
Shaw, Malcolm N. International Law, 4th ed. Cambridge: Cambridge University Press, 1997.
United Nations. Commission on Human Rights. Report on the Thirty‑sixth Session, UN ESCOR, 1980, Supp. No. 3, UN Doc. E/CN.4/1408.
United Nations. Committee against Torture. Conclusions and Recommendations of the Committee against Torture: Canada, UN Doc. CAT/C/XXV/Concl.4 (2000).
United Nations. General Assembly. Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons: Summary Record of the Sixteenth Meeting, UN Doc. A/CONF.2/SR.16 (1951).
United Nations. General Assembly. Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 3452 (XXX), UN Doc. A/10034 (1975).
United Nations. Human Rights Committee. General Comment 20, Article 7 (Forty‑fourth session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev. 1, at p. 30 (1994).
APPEAL from a judgment of the Federal Court of Appeal, [2000] 2 F.C. 592, 183 D.L.R. (4th) 629, 252 N.R. 1, 18 Admin. L.R. (3d) 159, 5 Imm. L.R. (3d) 1, [2000] F.C.J. No. 5 (QL), upholding a judgment of the Trial Division (1999), 173 F.T.R. 1, 50 Imm. L.R. (2d) 183, 65 C.R.R. (3d) 344, [1999] F.C.J. No. 865 (QL). Appeal allowed.
Barbara Jackman and Ronald Poulton, for the appellant.
Urszula Kaczmarczyk and Cheryl D. Mitchell, for the respondents.
John Terry and Jennifer A. Orange, for the intervener the United Nations High Commissioner for Refugees.
Written submissions only by Michael F. Battista and Michael Bossin, for the intervener Amnesty International.
Audrey Macklin, for the intervener the Canadian Arab Federation.
Jack C. Martin and Sharryn J. Aiken, for the intervener the Canadian Council for Refugees.
Written submissions only by Jamie Cameron, for the intervener the Federation of Associations of Canadian Tamils.
Written submissions only by David Cole, for the intervener the Centre for Constitutional Rights.
David Matas, for the intervener the Canadian Bar Association.
Written submissions only by Marlys Edwardh and Breese Davies, for the intervener the Canadian Council of Churches.
The following is the judgment delivered by
1 The Court — In this appeal we hold that Suresh is entitled to a new deportation hearing under the Immigration Act, R.S.C. 1985, c. I-2. Suresh came to Canada from Sri Lanka in 1990. He was recognized as a Convention refugee in 1991 and applied for landed immigrant status. In 1995 the government detained him and started proceedings to deport him to Sri Lanka on grounds he was a member and fundraiser for the Liberation Tigers of Tamil Eelam (“LTTE”), an organization alleged to engage in terrorist activity in Sri Lanka. Suresh challenged the order for his deportation on various grounds of substance and procedure. In these reasons we examine the Immigration Act and the Canadian Charter of Rights and Freedoms , and find that deportation to face torture is generally unconstitutional and that some of the procedures followed in Suresh’s case did not meet the required constitutional standards. We therefore conclude that Suresh is entitled to a new hearing.
2 The appeal requires us to consider a number of issues: the standard to be applied in reviewing a ministerial decision to deport; whether the Charter precludes deportation to a country where the refugee faces torture or death; whether deportation on the basis of mere membership in an alleged terrorist organization unjustifiably infringes the Charter rights of free expression and free association; whether “terrorism” and “danger to the security of Canada” are unconstitutionally vague; and whether the deportation scheme contains adequate procedural safeguards to ensure that refugees are not expelled to a risk of torture or death.
3 The issues engage concerns and values fundamental to Canada and indeed the world. On the one hand stands the manifest evil of terrorism and the random and arbitrary taking of innocent lives, rippling out in an ever-widening spiral of loss and fear. Governments, expressing the will of the governed, need the legal tools to effectively meet this challenge.
4 On the other hand stands the need to ensure that those legal tools do not undermine values that are fundamental to our democratic society — liberty, the rule of law, and the principles of fundamental justice — values that lie at the heart of the Canadian constitutional order and the international instruments that Canada has signed. In the end, it would be a Pyrrhic victory if terrorism were defeated at the cost of sacrificing our commitment to those values. Parliament’s challenge is to draft laws that effectively combat terrorism and conform to the requirements of our Constitution and our international commitments.
5 We conclude that to deport a refugee to face a substantial risk of torture would generally violate s. 7 of the Charter . The Minister of Citizenship and Immigration must exercise her discretion to deport under the Immigration Act accordingly. Properly applied, the legislation conforms to the Charter . We reject the arguments that the terms “danger to the security of Canada” and “terrorism” are unconstitutionally vague and that ss. 19 and 53(1)(b) of the Act violate the Charter guarantees of free expression and free association, and conclude that the Act’s impugned procedures, properly followed, are constitutional. We believe these findings leave ample scope to Parliament to adopt new laws and devise new approaches to the pressing problem of terrorism.
6 Applying these conclusions, we find that the appellant Suresh made a prima facie case showing a substantial risk of torture if deported to Sri Lanka, and that his hearing did not provide the procedural safeguards required to protect his right not to be expelled to a risk of torture or death. This means that the case must be remanded to the Minister for reconsideration. The immediate result is that Suresh will remain in Canada until his new hearing is complete. Parliament’s scheme read in light of the Canadian Constitution requires no less.
I. Facts and Judicial Proceedings
7 The appellant, Manickavasagam Suresh, was born in 1955. He is a Sri Lankan citizen of Tamil descent. Suresh entered Canada in October 1990, and was recognized as a Convention refugee by the Refugee Division of the Immigration and Refugee Board in April 1991. Recognition as a Convention refugee has a number of legal consequences; the one most directly relevant to this appeal is that, under s. 53(1) of the Immigration Act, generally the government may not return (“refouler”) a Convention refugee “to a country where the person’s life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion”.
8 In the summer of 1991, the appellant applied for landed immigrant status in Canada. His application was not finalized because, in late 1995, the Solicitor General of Canada and the Minister of Citizenship and Immigration commenced proceedings to deport Suresh to Sri Lanka on security grounds.
9 The first step in the procedure was a certificate under s. 40.1 of the Immigration Act alleging that Suresh was inadmissible to Canada on security grounds. The Solicitor General and the Minister filed the certificate with the Federal Court of Canada on October 17, 1995, and Suresh was detained the following day.
10 The s. 40.1 certificate was based on the opinion of the Canadian Security Intelligence Service (“CSIS”) that Suresh is a member of the LTTE, an organization that, according to CSIS, is engaged in terrorist activity in Sri Lanka and functions in Canada under the auspices of the World Tamil Movement (“WTM”). LTTE supports the cause of Tamils in the ongoing Sri Lankan civil war. The struggle is a protracted and bitter one. The Tamils are in rebellion against the democratically elected government of Sri Lanka. Their grievances are deep-rooted, and atrocities appear to be commonplace on both sides. The conflict has its roots in measures taken by a past government which, in the view of the Tamil minority, deprived it of basic linguistic, cultural and political rights. Subsequent governments have made attempts to accommodate these grievances, find a political solution, and re-establish civilian controls on the security and defence establishments, but a solution has yet to be found.
11 Human rights reporting on the practices of the Sri Lanka security forces indicates that the use of torture is widespread, particularly against persons suspected of membership in the LTTE. In a report dated 2001, Amnesty International cites frequent incidents of torture by the police and army, including a report that five labourers arrested on suspicion of involvement with the LTTE were tortured by police. One of them died apparently as a result of the torture.
12 The s. 40.1 certificate was referred to the Federal Court for determination “whether the certificate filed by the Minister and the Solicitor General is reasonable on the basis of the evidence and information available” as required by s. 40.1(4)(d) — the second step in the deportation procedure. Pursuant to s. 40.1(5), the designated judge is entitled to receive and consider any evidence the judge “sees fit, whether or not the evidence or information is or would be admissible in a court of law”.
13 In August 1997, after 50 days of hearings, Teitelbaum J. upheld the s. 40.1 certificate, finding it “reasonable” under s. 40.1(4)(d) of the Act: (1997), 140 F.T.R. 88. Specifically, Teitelbaum J. found that: (1) Suresh had been a member of the LTTE since his youth and is now (or was at the time of Teitelbaum J.’s consideration) a member of the LTTE executive; (2) the WTM is part of the LTTE or at least an organization that supports the activities of the LTTE; (3) Suresh obtained refugee status “by wilful misrepresentation of facts” and lacks credibility; (4) there are reasonable grounds to believe the LTTE has committed terrorist acts; and (5) Tamils arrested by Sri Lankan authorities are badly mistreated and in a number of cases the mistreatment bordered on torture.
14 A deportation hearing followed — the third step in the deportation procedure. The adjudicator found no reasonable grounds to conclude Suresh was directly engaged in terrorism under s. 19(1)(f)(ii), but held that he should be deported on grounds of membership in a terrorist organization under ss. 19(1)(f)(iii)(B) and 19(1)(e)(iv)(C).
15 On the same day, September 17, 1997, the Minister took the fourth step in the deportation process, notifying Suresh that she was considering issuing an opinion declaring him to be a danger to the security of Canada under s. 53(1)(b) of the Act, which permits the Minister to deport a refugee on security grounds even where the refugee’s “life or freedom” would be threatened by the return. In response to the Minister’s notification, Suresh submitted written arguments and documentary evidence, including reports indicating the incidence of torture, disappearances, and killings of suspected members of LTTE.
16 Donald Gautier, an immigration officer for Citizenship and Immigration Canada, considered the submissions and recommended that the Minister issue an opinion under s. 53(1)(b) that Suresh constituted a danger to the security of Canada. Noting Suresh’s links to LTTE, he stated that “[t]o allow Mr. Suresh to remain in this country and continue his activities runs counter to Canada’s international commitments in the fight against terrorism”. At the same time, Mr. Gautier acknowledged that Mr. Suresh “is not known to have personally committed any acts of violence either in Canada or Sri Lanka” and that his activities on Canadian soil were “non-violent” in nature. Gautier found that Suresh faced a risk on returning to Sri Lanka, but this was difficult to assess; might be tempered by his high profile; and was counterbalanced by Suresh’s terrorist activities in Canada. He concluded that, “on balance, there are insufficient humanitarian and compassionate considerations present to warrant extraordinary consideration”. Accordingly, on January 6, 1998, the Minister issued an opinion that Suresh constituted a danger to the security of Canada and should be deported pursuant to s. 53(1)(b). Suresh was not provided with a copy of Mr. Gautier’s memorandum, nor was he provided an opportunity to respond to it orally or in writing. No reasons are required under s. 53(1)(b) of the Immigration Act and none were given.
17 Suresh applied to the Federal Court for judicial review, alleging that the Minister’s decision was unreasonable; that the procedures under the Act, which did not require an oral hearing and independent decision-maker, were unfair; and that the Act unconstitutionally violated ss. 7 and 2 of the Charter . McKeown J. (1999), 65 C.R.R. (2d) 344, dismissed the application on all grounds. In his view, the Minister’s decision was not unreasonable and the Act was constitutional.
18 On the s. 7 challenge, McKeown J. found that the Minister, weighing the risk of exposing Suresh to torture against the danger that Suresh posed to the security of Canada, had satisfied the requirements of fundamental justice. McKeown J. acknowledged that the s. 7 Charter analysis should be informed by international law, and by the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Can. T.S. 1987 No. 36 (“CAT”), in particular. However, the CAT applies only where there are “substantial grounds” to believe that the person in question would be in danger of being tortured. Suresh had not met this test he held, in part because he had not submitted to the Minister a personal statement outlining why he believed he was at risk. McKeown J. concluded that the appellant’s expulsion would not “shock the conscience” of Canadians, the test for unconstitutionality under s. 7 of the Charter .
19 On the s. 2 challenge, McKeown J. found that Suresh’s activities as a fundraiser could not be considered “expression” under s. 2 (b), since those activities were conducted in the service of a violent organization. He also found that Suresh’s activities were not protected under s. 2 (d), since the association in question existed to commit acts of violence. As to Suresh’s vagueness arguments, McKeown J. held that neither the term “danger to the security of Canada” nor the term “terrorism” is unconstitutionally vague. Accordingly, McKeown J. dismissed the application.
20 Suresh appealed to the Federal Court of Appeal. It too dismissed his application. Robertson J.A., for the court, held that the right under international law to be free from torture was limited by a country’s right to expel those who pose a security risk: [2000] 2 F.C. 592. He held, at paras. 31-32, that the Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (“Refugee Convention”), permits derogation from the prohibition against deportation to torture and that, in any event, Canadian statutory law supersedes customary international law. He agreed with McKeown J. that fundraising to support terrorist violence was not protected under s. 2 . He also agreed that the Immigration Act procedures were adequate; in particular, no oral hearing was required to assess the risk of torture upon deportation. Finally, he agreed that neither the term “danger to the security of Canada” nor the term “terrorism” is unconstitutionally vague.
21 Robertson J.A. rejected Suresh’s argument that s. 53(1)(b) of the Act is unconstitutional insofar as it permits the Minister to expel a refugee to torture. He held that while deportation to torture violates s. 7 ’s guarantee of the right to life, liberty and security of the person, the violation was justified under s. 1 . The objective of preventing Canada from becoming a haven for terrorist organizations was pressing and substantial and the deportation provision was a proportionate response to that objective bearing in mind the limitations on the power of deportation, its use as a measure of last resort and Canada’s international obligations to combat terrorism. Expulsion of a refugee who is a danger to the security of Canada would not violate the sense of justice or “shock the conscience” of most Canadians, notwithstanding that the refugee might face torture on return, because Canada would be neither the first nor the last link in the chain of causation leading to torture, but merely an involuntary intermediary.
22 Finally, Robertson J.A. rejected the alternate argument that s. 53(1)(b), if constitutional, violated Suresh’s s. 7 right to security in its application. The administrative decision to deport Suresh properly considered the risk Suresh posed to Canada, acknowledged the risk of torture Suresh would face upon return to Sri Lanka, noted factors that might reduce the risk, and held that on balance it was outweighed by Canada’s interest in its own security.
23 Suresh now appeals to this Court.
II. Relevant Constitutional and Statutory Provisions
24 Canadian Charter of Rights and Freedoms
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
2. Everyone has the following fundamental freedoms:
. . .
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
. . .
(d) freedom of association.
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Immigration Act, R.S.C. 1985, c. I-2
19. (1) No person shall be granted admission who is a member of any of the following classes:
. . .
(e) persons who there are reasonable grounds to believe
. . .
(iv) are members of an organization that there are reasonable grounds to believe will
. . .
(C) engage in terrorism;
(f) persons who there are reasonable grounds to believe
. . .
(ii) have engaged in terrorism, or
(iii) are or were members of an organization that there are reasonable grounds to believe is or was engaged in
. . .
(B) terrorism,
except persons who have satisfied the Minister that their admission would not be detrimental to the national interest;
53. (1) Notwithstanding subsections 52(2) and (3), no person who is determined under this Act or the regulations to be a Convention refugee, nor any person who has been determined to be not eligible to have a claim to be a Convention refugee determined by the Refugee Division on the basis that the person is a person described in paragraph 46.01(1)(a), shall be removed from Canada to a country where the person’s life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion unless
. . .
(b) the person is a member of an inadmissible class described in paragraph 19(1)(e), (f), (g), (j), (k) or (l) and the Minister is of the opinion that the person constitutes a danger to the security of Canada;
III. Issues
25 We propose to consider the issues in the following order:
1. What is the appropriate standard of review with respect to ministerial decisions under s. 53(1)(b) of the Immigration Act?
2. Are the conditions for deportation in the Immigration Act constitutional?
(a) Does the Act permit deportation to torture contrary to the Charter ?
(b) Are the terms “danger to the security of Canada” and “terrorism” unconstitutionally vague?
(c) Does deportation for membership in a terrorist organization unjustifiably violate the Charter guarantees of freedom of expression and freedom of association?
3. Are the procedures for deportation set out in the Immigration Act constitutionally valid?
4. Examining Suresh’s case in light of the conclusions to the foregoing questions, should the Minister’s order be set aside and a new hearing ordered?
IV. Analysis
1. Standard of Review
26 This appeal involves a consideration of four types of issues: (1) constitutional review of the provisions of the Immigration Act; (2) whether Suresh’s presence in Canada constitutes a danger to national security; (3) whether Suresh faces a substantial risk of torture upon return to Sri Lanka; and (4) whether the procedures used by the Minister under the Act were adequate to protect Suresh’s constitutional rights.
27 The issues of the constitutionality of the deportation provisions of the Immigration Act do not involve review of ministerial decision-making. The fourth issue of the adequacy of the procedures under the Act will be considered separately later in these reasons. At this point, our inquiry is into the standard of review to be applied to the second and third issues — the Minister’s decisions on whether Suresh poses a risk to the security of Canada and whether he faces a substantial risk of torture on deportation. The latter was characterized by Robertson J.A. as a constitutional decision and hence requires separate treatment. It is our view that the threshold question is factual, that is whether there is a substantial risk of torture if the appellant is sent back, although this inquiry is mandated by s. 7 of the Charter . The constitutional issue is whether it would shock the Canadian conscience to deport Suresh once a substantial risk of torture has been established. This is when s. 7 is engaged. Since we are ordering a new hearing on procedural grounds, we are not required in this appeal to review the Minister’s decisions on whether Suresh’s presence constitutes a danger to the security of Canada and whether he faces a substantial risk of torture on deportation. However, we offer the following comments to assist courts in future ministerial review.
28 The trial judge and the Court of Appeal rejected Suresh’s submission that the highest standard of review should apply to the determination of the rights of refugees. Robertson J.A., while inclined to apply a deferential standard of review to whether Suresh constituted a danger to the security of Canada, concluded that the decision could be maintained on any standard. Robertson J.A. went on to state (at paras. 131-36) that while the Act and the Constitution place constraints on the Minister’s exercise of her discretion, these do not extend to a judicially imposed obligation to give particular weight to particular factors. On the question of whether he would face a substantial risk of torture on return, a question that he viewed as constitutional rather than merely one of judicial review, Robertson J.A. did not determine the applicable standard of review, concluding that even on the stringent standard of correctness the Minister’s decision should be upheld.
29 The first question is wha