Sunday, 25 May 2014

Who Decides to Deport You When There's a Risk of Torture?

There is a piece in the latest print issue of Maclean's magazine (sub only) on a very interesting Federal Court case from earlier this month: Muhammad v. Canada (Citizenship and Immigration), 2014 FC 448.

M's details were posted on what I have dubbed "Canada's Least Wanted", the Canadian Border Services Agency's 'wanted' list of immigration violators. This began as a list of "war criminals" but has since been revised in tone and expanded in content. M argued that being placed on the list increased the risk that he would be tortured if returned to Pakistan.

Arrangements for deportation decisions of this nature are complex. Preliminary assessments are conducted on risks faced by the individual should s/he be returned and any security risks posed by the individual should s/he remain in Canada. These are delivered to a Ministerial Delegate who ultimately takes the decision to deport or not (see para. 71). Here, the Delegate rejected the assessment that M would be at risk of torture. Strickland J. held that this finding was unreasonable, the second time M has won a judicial review on this point. However, she rejected the argument that the Delegate was biased or that the decision-making structure was biased (para. 141).

Of greater interest are the facts, recounted in the Maclean's article, including a bizarre meeting between those responsible for the "Least Wanted" list and other members of the Delegate's department. We are assured by all concerned, and Strickland J., that the meeting was meaningless -- though "ill-advised" (para. 153) -- because of the absence of evidence that the Delegate was "influenced" by the meeting (para. 154). Of course, in bias cases, normally perception is what counts!

And more interesting still is a claim ultimately not addressed by Strickland J.: that M was entitled to have an independent decision-maker determine whether to deport him because his constitutional right to "life, liberty and security of the person" was engaged. Strickland J. was able to deal with the case on administrative law grounds and did not consider M's constitutional argument, but in a telling aside she noted:
[140]      It is not disputed that there was considerable government interest in the CBSA’s wanted list and that there were concerns about the implications of a positive risk assessment on the list. It is therefore certainly not outside the realm of possibilities that, given this interest, a decision-maker could be inclined toward a certain result in the absence of sufficient hallmarks of independence.
The independence question will have to be addressed some day. In Suresh at para. 78 the Supreme Court of Canada allowed for the possibility that individuals could be deported even to a real risk of torture in "exceptional circumstances" but these were not further defined. Given that the individual's constitutional rights are engaged, a rigorously fair process might well be required, presumably including a final determination by an independent decision-maker.

Further questions then arise. Can any official in a department controlled by the executive take the deportation decision? It is arguable that no such official can make a decision with an entirely independent mind. Can the decision even be taken by the Minister? Deporting someone to a real risk of torture is arguably a decision that should not be tainted in the slightest by policy considerations.

Indeed, is this a decision that can only be taken by a court?

Which leads to the ultimate question: would any court ever deport someone to a real risk of torture?

M has now succeeded twice in judicial reviews of Delegate decisions. Who knows what a third decision would bring.

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