Suresh v. Canada (Minister of Citizenship & Immigration) Manickavasagam Suresh, Appellant v.

he Minister of Citizenship and Immigration and the Attorne! "eneral of Canada, #espondents and he $nited %ations &igh Commissioner for #efugees, Amnest! International, the Canadian Ara' (ederation, the Canadian Council for #efugees, the (ederation of Associations of Canadian amils, the Centre for Constitutional #ights, the Canadian )ar Association and the Canadian Council of Churches, Interveners Supreme Court of Canada Mc*achlin C.+.C., *,&eureu-./u'0, "onthier, Iaco'ucci, Ma1or, )astarache, )innie, Ar'our, *e)el ++. &eard2 Ma! 33, 3445 +udgment2 +anuar! 55, 34436(%78 /ocket2 399:4

Per curiam: 5 In this appeal ;e hold that Suresh is entitled to a ne; deportation hearing under the Immigration Act, #.S.C. 5:<=, c. I.3. Suresh came to Canada from Sri *anka in 5::4. &e ;as recognized as a Convention refugee in 5::5 and applied for landed immigrant status. In 5::= the government detained him and started proceedings to deport him to Sri *anka on grounds he ;as a mem'er and fundraiser for the *i'eration igers of amil >elam (* >), an organization alleged to engage in terrorist activit! in Sri *anka. Suresh challenged the order for his deportation on various grounds of su'stance and procedure. In these reasons ;e e-amine the Immigration Act and the Canadian Charter of Rights and Freedoms, and find that deportation to face torture is generall! unconstitutional and that some of the procedures follo;ed in Suresh,s case did not meet the re?uired constitutional standards. @e therefore conclude that Suresh is entitled to a ne; hearing. 3 he appeal re?uires us to consider a num'er of issues2 the standard to 'e applied in revie;ing a ministerial decision to deport, ;hether the Charter precludes deportation to a countr! ;here the refugee faces torture or death, ;hether deportation on the 'asis of mere mem'ership in an alleged terrorist organization un1ustifia'l! infringes the Charter rights of free e-pression and free association, ;hether AterrorismA andA danger to the securit! of CanadaA are unconstitutionall! vague, and ;hether the deportation scheme contains ade?uate procedural safeguards to ensure that refugees are not e-pelled to a risk of torture or death. B he issues engage concerns and values fundamental to Canada and indeed the ;orld. Cn the one hand stands the manifest evil of terrorism and the random and ar'itrar! taking of innocent lives, rippling out in an ever.;idening spiral of loss and fear. "overnments, e-pressing the ;ill of the governed, need the legal tools to effectivel! meet this challenge. D Cn the other hand stands the need to ensure that those legal tools do not undermine values that are fundamental to our democratic societ! . li'ert!, the rule of la;, and the principles of fundamental 1ustice . values that lie at the heart of the Canadian constitutional order and the international instruments that Canada has signed. In the end, it ;ould 'e a E!rrhic victor! if terrorism ;ere defeated at the cost of sacrificing our commitment to those values. Earliament,s challenge is to draft la;s that effectivel! com'at terrorism and conform to the re?uirements of our Constitution and our international commitments. = @e conclude that to deport a refugee to face a su'stantial risk of torture ;ould generall! violate s. 9 of the Charter. he Minister must e-ercise her discretion to deport under the Immigration Act accordingl!. Eroperl! applied, the legislation conforms to 5

the Charter. @e re1ect the arguments that the terms A danger to the securit! of CanadaA and A terrorismA are unconstitutionall! vague and that ss. 5: and =B(5)(') of the Act violate the Charter guarantees of free e-pression and free association, and conclude that the Act,s impugned procedures, properl! follo;ed, are constitutional. @e 'elieve these findings leave ample scope to Earliament to adopt ne; la;s and devise ne; approaches to the pressing pro'lem of terrorism. F Appl!ing these conclusions, ;e find that the appellant Suresh made a prima facie case sho;ing a su'stantial risk of torture if deported to Sri *anka, and that his hearing did not provide the procedural safeguards re?uired to protect his right not to 'e e-pelled to a risk of torture or death. his means that the case must 'e remanded to the Minister for reconsideration. he immediate result is that Suresh ;ill remain in Canada until his ne; hearing is complete. Earliament,s scheme, read in light of the Canadian Constitution, re?uires no less. I. Facts and Judicial Proceedings 9 he appellant, Manickavasagam Suresh, ;as 'orn in 5:==. &e is a Sri *ankan citizen of amil descent. Suresh entered Canada in Ccto'er 5::4, and ;as recognized as a Convention refugee '! the #efugee /ivision of the Immigration and #efugee )oard in April 5::5. #ecognition as a Convention refugee has a num'er of legal conse?uencesG the one most directl! relevant to this appeal is that, under s. =B(5) of the Immigration Act, generall! the government ma! not return (ArefoulerA) a Convention refugee Ato a countr! ;here the person,s life or freedom ;ould 'e threatened for reasons of race, religion, nationalit!, mem'ership in a particular social group or political opinion.A < In the summer of 5::5, the appellant applied for landed immigrant status in Canada. &is application ;as not finalized 'ecause, in late 5::=, the Solicitor "eneral of Canada and the Minister of Citizenship and Immigration commenced proceedings to deport Suresh to Sri *anka on securit! grounds. : he first step in the procedure ;as a certificate under s. D4.5 of the Immigration Act, alleging that Suresh ;as inadmissi'le to Canada on securit! grounds. he Solicitor "eneral and the Minister filed the certificate ;ith the (ederal Court of Canada on Ccto'er 59, 5::=, and Suresh ;as detained the follo;ing da!. 54 he s. D4.5 certificate ;as 'ased on the opinion of the Canadian Securit! Intelligence Service (CSIS) that Suresh is a mem'er of the * >, an organization that, according to CSIS, is engaged in terrorist activit! in Sri *anka and functions in Canada under the auspices of the @orld amil Movement (@ M). * > supports the cause of amils in the ongoing Sri *ankan civil ;ar. he struggle is a protracted and 'itter one. he amils are in re'ellion against the democraticall! elected government of Sri *anka. heir grievances are deep.rooted, and atrocities appear to 'e commonplace on 'oth sides. he conflict has its roots in measures taken '! a past government ;hich, in the vie; of the amil minorit!, deprived it of 'asic linguistic, cultural and political rights. Su'se?uent governments have made attempts to accommodate these grievances, find a political solution, and re.esta'lish civilian controls on the securit! and defence esta'lishments, 'ut a solution has !et to 'e found. 55 &uman rights reporting on the practices of the Sri *anka securit! forces indicates that the use of torture is ;idespread, particularl! against persons suspected of mem'ership in the * >. In a report dated 3445, Amnest! International cites fre?uent incidents of torture '! the police and arm!, including a report that five la'ourers arrested on suspicion of involvement ;ith the * > ;ere tortured '! police. Cne of them died, apparentl! as a result of the torture. 53 he s. D4.5 certificate ;as referred to the (ederal Court for determination A ;hether the certificate filed '! the Minister and the Solicitor "eneral is reasona'le on the 'asis of the evidence and information availa'leA as re?uired '! s. D4.5(D)(d) . the second step in the deportation procedure. Eursuant to s. D4.5(=), the designated 1udge is entitled to receive and consider an! evidence the 1udge Asees fit, ;hether or not the evidence or information is or ;ould 'e admissi'le in a court of la;.A 3

5B In August 5::9, after =4 da!s of hearings, eitel'aum +. upheld the s. D4.5 certificate, finding it Areasona'leA under s. D4.5(D) (d) of the Act2 (5::9), 5D4 (. .#. << ((ed. ./.). Specificall!, eitel'aum +. found that (5) Suresh had 'een a mem'er of the * > since his !outh and is no; (or ;as at the time of eitel'aum +.,s consideration) a mem'er of the * > e-ecutive, (3) the @ M is part of the * > or at least an organization that supports the activities of the * >, (B) Suresh o'tained refugee status A'! ;ilful misrepresentation of factsA and lacks credi'ilit!, (D) there are reasona'le grounds to 'elieve the * > has committed terrorist acts, and (=) amils arrested '! Sri *ankan authorities are 'adl! mistreated and in a num'er of cases the mistreatment 'ordered on torture. 5D A deportation hearing follo;ed . the third step in the deportation procedure. he ad1udicator found no reasona'le grounds to conclude Suresh ;as directl! engaged in terrorism under s. 5:(5)(f)(ii), 'ut held that he should 'e deported on grounds of mem'ership in a terrorist organization under ss. 5:(5)(f)(iii)()) and 5:(5)(e)(iv)(C). 5= Cn the same da!, Septem'er 59, 5::9, the Minister took the fourth step in the deportation process, notif!ing Suresh that she ;as considering issuing an opinion declaring him to 'e a danger to the securit! of Canada under s. =B(5)(') of the Act, ;hich permits the Minister to deport a refugee on securit! grounds even ;here the refugee,s Alife or freedomA ;ould 'e threatened '! the return. In response to the Minister,s notification, Suresh su'mitted ;ritten arguments and documentar! evidence, including reports indicating the incidence of torture, disappearances, and killings of suspected mem'ers of * >. 5F /onald "autier, an immigration officer for Citizenship and Immigration Canada, considered the su'missions and recommended that the Minister issue an opinion under s. =B(5)(') that Suresh constituted a danger to the securit! of Canada. %oting Suresh,s links to * >, he stated that A6t8o allo; Mr. Suresh to remain in this countr! and continue his activities runs counter to Canada,s international commitments in the fight against terrorism.A At the same time, Mr. "autier ackno;ledged that A . . . Mr. Suresh is not kno;n to have personall! committed an! acts of violence either in Canada or Sri *ankaA and that his activities on Canadian soil ;ere Anon.violentA in nature. "autier found that Suresh faced a risk on returning to Sri *anka, 'ut this ;as difficult to assessG might 'e tempered '! his high profileG and ;as counter'alanced '! Suresh,s terrorist activities in Canada. &e concluded that, A on 'alance, there are insufficient humanitarian and compassionate considerations present to ;arrant e-traordinar! consideration.A Accordingl!, on +anuar! F, 5::<, the Minister issued an opinion that Suresh constituted a danger to the securit! of Canada and should 'e deported pursuant to s. =B(5)('). Suresh ;as not provided ;ith a cop! of Mr. "autier,s memorandum, nor ;as he provided an opportunit! to respond to it orall! or in ;riting. %o reasons are re?uired under s. =B(5)(') of the Immigration Act and none ;as given. 59 Suresh applied to the (ederal Court for 1udicial revie;, alleging that the Minister,s decision ;as unreasona'leG that the procedures under the Act, ;hich did not re?uire an oral hearing and independent decision.maker, ;ere unfairG and that the Act unconstitutionall! violated ss. 9 and 3 of the Charter. McHeo;n +. (5:::), F= C.#.#. (3d) BDD ((ed. ./.), dismissed the application on all grounds. In his vie;, the Minister,s decision ;as not unreasona'le and the Act ;as constitutional. 5< Cn the s. 9 challenge, McHeo;n +. found that the Minister, ;eighing the risk of e-posing Suresh to torture against the danger that Suresh posed to the securit! of Canada, had satisfied the re?uirements of fundamental 1ustice. McHeo;n +. ackno;ledged that the s. 9 Charter anal!sis should 'e informed '! international la;, and '! the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 19 !, Can. .S. 5:<9 %o. BF (CA ), in particular. &o;ever, the CA applies onl! ;here there are A su'stantial groundsA to 'elieve that the person in ?uestion ;ould 'e in danger of 'eing tortured. Suresh had not met this test he held, in part 'ecause he had not su'mitted to the Minister a personal statement outlining ;h! he 'elieved he ;as at risk. McHeo;n +. concluded that the appellant,s e-pulsion ;ould not Ashock the conscienceA of Canadians, the test for unconstitutionalit! under s. 9 of the Charter. 5: Cn the s. 3 challenge, McHeo;n +. found that Suresh,s activities as a fundraiser could not 'e considered Ae-pressionA under s. 3('), since those activities ;ere conducted in the service of a violent organization. &e also found that Suresh,s activities ;ere not B

protected under s. 3(d), since the association in ?uestion e-isted to commit acts of violence. As to Suresh,s vagueness arguments, McHeo;n +. held that neither the term A danger to the securit! of CanadaA nor the term AterrorismA is unconstitutionall! vague. Accordingl!, McHeo;n +. dismissed the application. 34 Suresh appealed to the (ederal Court of Appeal. It too dismissed his application. #o'ertson +.A., for the court, held that the right under international la; to 'e free from torture ;as limited '! a countr!,s right to e-pel those ;ho pose a securit! risk2 634448 3 (.C. =:3 ((ed. C.A.). &e held, at paras. B5.B3, that the Convention Relating to the "tatus of Refugees, 19#1 , Can. .S. 5:F: %o. F (Refugee Convention), permits derogation from the prohi'ition against deportation to torture and that, in an! event, Canadian statutor! la; supersedes customar! international la;. &e agreed ;ith McHeo;n +. that fundraising to support terrorist violence ;as not protected under s. 3. &e also agreed that the Immigration Act procedures ;ere ade?uateG in particular, no oral hearing ;as re?uired to assess the risk of torture upon deportation. (inall!, he agreed that neither the term A danger to the securit! of CanadaA nor the term AterrorismA is unconstitutionall! vague. 35 #o'ertson +.A. re1ected Suresh,s argument that s. =B(5)(') of the Act is unconstitutional insofar as it permits the Minister to e-pel a refugee to torture. &e held that ;hile deportation to torture violates s. 9,s guarantee of the right to life, li'ert! and securit! of person, the violation ;as 1ustified under s. 5. he o'1ective of preventing Canada from 'ecoming a haven for terrorist organizations ;as pressing and su'stantial and the deportation provision ;as a proportionate response to that o'1ective 'earing in mind the limitations on the po;er of deportation, its use as a measure of last resort and Canada,s international o'ligations to com'at terrorism. >-pulsion of a refugee ;ho is a danger to the securit! of Canada ;ould not violate the sense of 1ustice or A shock the conscienceA of most Canadians, not;ithstanding that the refugee might face torture on return, 'ecause Canada ;ould 'e neither the first nor the last link in the chain of causation leading to torture, 'ut merel! an involuntar! intermediar!. 33 (inall!, #o'ertson +.A. re1ected the alternative argument that s. =B(5)('), if constitutional, violated Suresh,s s. 9 right to securit! in its application. he administrative decision to deport Suresh properl! considered the risk Suresh posed to Canada, ackno;ledged the risk of torture Suresh ;ould face upon return to Sri *anka, noted factors that might reduce the risk, and held that on 'alance it ;as out;eighed '! Canada,s interest in its o;n securit!. 3B Suresh no; appeals to this Court.

II. Relevant Constitutional and Statutory Provisions 3D Canadian Charter of Rights and Freedoms 5. he Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it su'1ect onl! to such reasona'le limits prescri'ed '! la; as can 'e demonstra'l! 1ustified in a free and democratic societ!. 3. >ver!one has the follo;ing fundamental freedoms2 ..... (') freedom of thought, 'elief, opinion and e-pression, including freedom of the press and other media of communicationG ..... (d) freedom of association. D

..... 9. >ver!one has the right to life, li'ert! and securit! of the person and the right not to 'e deprived thereof e-cept in accordance ;ith the principles of fundamental 1ustice. Immigration Act, #.S.C. 5:<=, c. I.3 5:.(5) %o person shall 'e granted admission ;ho is a mem'er of an! of the follo;ing classes2 ..... (e) persons ;ho there are reasona'le grounds to 'elieve ..... (iv) are mem'ers of an organization that there are reasona'le grounds to 'elieve ;ill ..... (C) engage in terrorismG (f) persons ;ho there are reasona'le grounds to 'elieve ..... (ii) have engaged in terrorism, or (iii) are or ;ere mem'ers of an organization that there are reasona'le grounds to 'elieve is or ;as engaged in ..... ()) terrorism, e-cept persons ;ho have satisfied the Minister that their admission ;ould not 'e detrimental to the national interestG ..... =B.(5) %ot;ithstanding su'sections =3(3) and (B), no person ;ho is determined under this Act or the regulations to 'e a Convention refugee, nor an! person ;ho has 'een determined to 'e not eligi'le to have a claim to 'e a Convention refugee determined '! the #efugee /ivision on the 'asis that the person is a person descri'ed in paragraph DF.45(5)(a), shall 'e removed from Canada to a countr! ;here the person,s life or freedom ;ould 'e threatened for reasons of race, religion, nationalit!, mem'ership in a particular social group or political opinion unless =

..... (') the person is a mem'er of an inadmissi'le class descri'ed in paragraph 5:(5)(e), (f), (g), (1), (k) or (l) and the Minister is of the opinion that the person constitutes a danger to the securit! of CanadaG . . . III. Issues 3= @e propose to consider the issues in the follo;ing order2 5. @hat is the appropriate standard of revie; ;ith respect to ministerial decisions under s. =B(5)(') of the Immigration ActI 3. Are the conditions for deportation in the Immigration Act constitutionalI (a) /oes the Act permit deportation to torture contrar! to the CharterI (') Are the terms Adanger to the securit! of CanadaA and AterrorismA unconstitutionall! vagueI (c) /oes deportation for mem'ership in a terrorist organization un1ustifia'l! violate the Charter guarantees of freedom of e-pression and freedom of associationI B. Are the procedures for deportation set out in the Immigration Act constitutionall! validI D. >-amining Suresh,s case in light of the conclusions to the foregoing ?uestions, should the Minister,s order 'e set aside and a ne; hearing orderedI IV. Analysis 1. Standard of Review 3F his appeal involves a consideration of four t!pes of issues2 (5) constitutional revie; of the provisions of the Immigration Act, (3) ;hether Suresh,s presence in Canada constitutes a danger to national securit!, (B) ;hether Suresh faces a su'stantial risk of torture upon return to Sri *anka, and (D) ;hether the procedures used '! the Minister under the Act ;ere ade?uate to protect Suresh,s constitutional rights. 39 he issues of the constitutionalit! of the deportation provisions of the Immigration Act do not involve revie; of ministerial decision.making. he fourth issue of the ade?uac! of the procedures under the Act ;ill 'e considered separatel! later in these reasons. At this point, our in?uir! is into the standard of revie; to 'e applied to the second and third issues . the Minister,s decisions on ;hether Suresh poses a risk to the securit! of Canada and ;hether he faces a su'stantial risk of torture on deportation. he latter ;as characterized '! #o'ertson +.A. as a constitutional decision and hence re?uires separate treatment. It is our vie; that the threshold ?uestion is factual, that is ;hether there is a su'stantial risk of torture if the appellant is sent 'ack, although this in?uir! is mandated '! s. 9 of the Charter. he constitutional issue is ;hether it ;ould shock the Canadian conscience to deport Suresh once a su'stantial risk of torture has 'een esta'lished. his is ;hen s. 9 is engaged. Since ;e are ordering a ne; hearing on procedural grounds, ;e are not re?uired in this appeal to revie; the Minister,s decisions on ;hether Suresh,s presence constitutes a danger to the securit! of F

Canada and ;hether he faces a su'stantial risk of torture on deportation. &o;ever, ;e offer the follo;ing comments to assist courts in future ministerial revie;. 3< he trial 1udge and the Court of Appeal re1ected Suresh,s su'mission that the highest standard of revie; should appl! to the determination of the rights of refugees. #o'ertson +.A., ;hile inclined to appl! a deferential standard of revie; to ;hether Suresh constituted a danger to the securit! of Canada, concluded that the decision could 'e maintained on an! standard. #o'ertson +.A. ;ent on to state (at paras. 5B5.5BF) that ;hile the Act and the Constitution place constraints on the Minister,s e-ercise of her discretion, these do not e-tend to a 1udiciall! imposed o'ligation to give particular ;eight to particular factors. Cn the ?uestion of ;hether he ;ould face a su'stantial risk of torture on return, a ?uestion that he vie;ed as constitutional rather than merel! one of 1udicial revie;, #o'ertson +.A. did not determine the applica'le standard of revie;, concluding that even on the stringent standard of correctness the Minister,s decision should 'e upheld. 3: he first ?uestion is ;hat standard should 'e adopted ;ith respect to the Minister,s decision that a refugee constitutes a danger to the securit! of Canada. @e agree ;ith #o'ertson +.A. that the revie;ing court should adopt a deferential approach to this ?uestion and should set aside the Minister,s discretionar! decision if it is patentl! unreasona'le in the sense that it ;as made ar'itraril! or in 'ad faith, it cannot 'e supported on the evidence, or the Minister failed to consider the appropriate factors. he court should not re;eigh the factors or interfere merel! 'ecause it ;ould have come to a different conclusion. B4 his conclusion is mandated '! Pushpanathan v$ Canada %&inister of 'mplo(ment ) Immigration* , 65::<8 5 S.C.#. :<3 (S.C.C.), ;hich revie;ed the principles for determining the standard of revie; according to the functional and pragmatic approach. In Pushpanathan, the Court emphasized that the ultimate ?uestion is al;a!s ;hat the legislature intended. Cne looks to the language of the statute as ;ell as a num'er of factors to determine that intention. &ere the language of the Act (the Minister must 'e Aof the opinionA that the person constitutes a danger to the securit! of Canada) suggests a standard of deference. So, on the ;hole, do the factors to 'e considered2 (5) the presence or a'sence of a clause negating the right of appeal, (3) the relative e-pertise of the decision. maker, (B) the purpose of the provision and the legislation generall!, and (D) the nature of the ?uestion ( Pushpanathan, supra, at paras. 3:.B<). B5 he first factor suggests that Earliament intended onl! a limited right of appeal. Although the Minister,s s. =B(5)(') opinion is not protected '! a privative clause, it ma! onl! 'e appealed '! leave of the (ederal Court . rial /ivision (s. <3.5(5)), and that leave decision ma! not itself 'e appealed (s. <3.3). he second factor, the relative e-pertise of the decision.maker, again favours deference. As stated in +a,er v$ Canada %&inister of Citi-enship ) Immigration* , 65:::8 3 S.C.#. <59 (S.C.C.),A 6t8he fact that the formal decision.maker is the Minister is a factor militating in favour of deferenceA (para. =:). he Minister, as noted '! *ord &offmann in "ecretar( of "tate for the .ome Department v$ Rehman, 634458 B @.*.#. <99, at para. F3, Ahas access to special information and e-pertise in . . . matters 6of national securit!8.A he third factor. the purpose of the legislation . again favours deference. his purpose, as discussed in Pushpanathan, supra, at para. 9B, is to permit a Ahumanitarian 'alanceA of various interests . Athe seriousness of the danger posed to Canadian societ!A on the one hand, and A the danger of persecution upon refoulementA on the other. Again, the Minister is in a superior position to a court in making this assessment. (inall!, the nature of the case points to deference. he in?uir! is highl! fact.'ased and conte-tual. As in +a,er, supra, at para. F5, the s. =B(5)(') danger opinion A involves a considera'le appreciation of the facts of that person,s case, and is not one ;hich involves the application or interpretation of definitive legal rules,A suggesting it merits a ;ide degree of deference. B3 hese factors suggest that Earliament intended to grant the Minister a 'road discretion in issuing a s. =B(5)(') opinion, revie;a'le onl! ;here the Minister makes a patentl! unreasona'le decision. It is true that the ?uestion of ;hether a refugee constitutes a danger to the securit! of Canada relates to human rights and engages fundamental human interests. &o;ever, it is our vie; that a deferential standard of ministerial revie; ;ill not prevent human rights issues from 'eing full! addressed, provided proper procedural safeguards are in place and provided that an! decision to deport meets the constitutional re?uirements of the Charter. 9

BB he &ouse of *ords has taken the same vie; in Rehman, supra. *ord &offmann, follo;ing the events of Septem'er 55, 3445, added the follo;ing postscript to his speech (at para. F3)2 I ;rote this speech some three months 'efore the recent events in %e; Jork and @ashington. he! are a reminder that in matters of national securit!, the cost of failure can 'e high. This seems to me to underline the need for the /udicial arm of government to respect the decisions of ministers of the Cro0n on the 1uestion of 0hether support for terrorist activities in a foreign countr( constitutes a threat to national securit( . It is not onl! that the e-ecutive has access to special information and e-pertise in these matters. It is also that such decisions, ;ith serious potential results for the communit!, re?uire a legitimac! ;hich can 'e conferred onl! '! entrusting them to persons responsi'le to the communit! through the democratic process. If the people are to accept the conse?uences of such decisions, the! must 'e made '! persons ;hom the people have elected and ;hom the! can remove. 6>mphasis added.8 BD It follo;s that the ;eighing of relevant factors is not the function of a court revie;ing the e-ercise of ministerial discretion (see, for instance, Pe-im v$ +ritish Colum2ia %"uperintendent of +ro,ers*, 65::D8 3 S.C.#. ==9 (S.C.C.), at p. F49, ;here Iaco'ucci +. e-plained that a revie;ing court should not distur' a decision 'ased on a A'road discretionA unless the tri'unal has A made some error in principle in e-ercising its discretion or has e-ercised its discretion in a capricious or ve-atious mannerA). B= he Court,s recent decision in +a,er, supra, did not depart from this vie;. #ather, it confirmed that the pragmatic and functional approach should 'e applied to all t!pes of administrative decisions in recognition of the fact that a uniform approach to the determination of the proper standard of revie; is prefera'le, and that there ma! 'e special situations ;here even traditionall! discretionar! decisions ;ill 'est 'e revie;ed according to a standard other than the deferential standard ;hich ;as universall! applied in the past to ministerial decisions (see Dagg v$ Canada %&inister of Finance*, 65::98 3 S.C.#. D4B (S.C.C.)). BF he Court specified in +a,er, supra, that a nuanced approach to determining the appropriate standard of revie; ;as necessar! given the difficult! in rigidl! classif!ing discretionar! and non.discretionar! decisions (paras. =D and ==). he Court also made it clear in +a,er that its approach Ashould not 'e seen as reducing the level of deference given to decisions of a highl! discretionar! natureA (para. =F) and, moreover, that an! ministerial o'ligation to consider certain factors A gives the applicant no right to a particular outcome or to the application of a particular legal testA (para. 9D). o the e-tent this Court revie;ed the Minister,s discretion in that case, its decision ;as 'ased on the ministerial delegate,s failure to compl! ;ith self3imposed ministerial guidelines, as reflected in the o'1ectives of the Act, international treat! o'ligations and, most importantl!, a set of pu'lished instructions to immigration officers. B9 he passages in +a,er referring to the A;eightA of particular factors (see paras. F< and 9B.9=) must 'e read in this conte-t. It is the Minister ;ho ;as o'liged to give proper ;eight to the relevant factors and none other. +a,er does not authorize courts revie;ing decisions on the discretionar! end of the spectrum to engage in a ne; ;eighing process, 'ut dra;s on an esta'lished line of cases concerning the failure of ministerial delegates to consider and ;eigh implied limitations andKor patentl! relevant factors2 see Anisminic 4td$ v$ Foreign Compensation Commission (5:F<), 65:F:8 3 A.C. 5D9 ($.H. &.*.), "heehan v$ Ontario %Criminal In/uries Compensation +oard* (5:9D), =3 /.*.#. (Bd) 93< (Cnt. C.A.), &aple 4odge Farms 4td$ v$ Canada, 65:<38 3 S.C.#. 3 (S.C.C.), Dagg, supra, at paras. 555.553, per *a (orest +. (dissenting on other grounds). B< his standard appropriatel! reflects the different o'ligations of Earliament, the Minister and the revie;ing court. Earliament,s task is to esta'lish the criteria and procedures governing deportation, ;ithin the limits of the Constitution. he Minister,s task is to make a decision that conforms to Earliament,s criteria and procedures as ;ell as the Constitution. he court,s task, if called upon to revie; the Minister,s decision, is to determine ;hether the Minister has e-ercised her decision.making po;er ;ithin the constraints imposed '! Earliament,s legislation and the Constitution. If the Minister has considered the appropriate factors in conformit! ;ith these constraints, the court must uphold her decision. It cannot set it aside even if it ;ould have ;eighed the factors differentl! and <

arrived at a different conclusion. B: his 'rings us to the ?uestion of the standard of revie; of the Minister,s decision on ;hether the refugee faces a su'stantial risk of torture upon deportation. his ?uestion is characterized as constitutional '! #o'ertson +.A., to the e-tent that the Minister,s decision to deport to torture must ultimatel! conform to s. 9 of the Charter2 see 5indler v$ Canada %&inister of 6ustice* , 65::58 3 S.C.#. 99: (S.C.C.), per *a (orest +., and 7nited "tates v$ +urns, 634458 5 S.C.#. 3<B, 3445 SCC 9 (S.C.C.), at para. B3. As mentioned earlier, ;hether there is a su'stantial risk of torture if Suresh is deported is a threshold ?uestion. he threshold ?uestion here is in large part a fact.driven in?uir!. It re?uires consideration of the human rights record of the home state, the personal risk faced '! the claimant, an! assurances that the claimant ;ill not 'e tortured and their ;orth and, in that respect, the a'ilit! of the home state to control its o;n securit! forces, and more. It ma! also involve a reassessment of the refugee,s initial claim and a determination of ;hether a third countr! is ;illing to accept the refugee. Such issues are largel! outside the realm of e-pertise of revie;ing courts and possess a negligi'le legal dimension. @e are accordingl! of the vie; that the threshold finding of ;hether Suresh faces a su'stantial risk of torture, as an aspect of the larger s. =B(5)(') opinion, attracts deference '! the revie;ing court to the Minister,s decision. he court ma! not re;eigh the factors considered '! the Minister, 'ut ma! intervene if the decision is not supported '! the evidence or fails to consider the appropriate factors. It must 'e recognized that the nature of the evidence re?uired ma! 'e limited '! the nature of the in?uir!. his is consistent ;ith the reasoning of this Court in 5indler, supra, at pp. <BF.<B9, ;here considera'le deference ;as sho;n to ministerial decisions involving similar considerations in the conte-t of a constitutional revision, that is in the conte-t of a decision ;here the s. 9 interest ;as engaged. D4 )efore leaving the issue of standard of revie;, it is useful to underline the distinction 'et;een standard of revie; and the evidence re?uired to esta'lish particular facts in issue. (or e-ample, some authors suggest a lo;er evidentiar! standard ma! govern decisions at entr! (under ss. 3 and 5: of the Act) than applies to decisions to deport a landed Convention refugee under s. =B(5)(')2 see +ames C. &atha;a! and Colin +. &arve!, A(raming #efugee Erotection in the %e; @orld /isorderA (3445), BD Cornell Int8l 4$6$ 3=9, at p. 3<<. his does not impl! different standards of revie;. /ifferent administrative decisions involve different factors, stemming from the statutor! scheme and the particular issues raised. Jet the same standard of revie; ma! appl!. D5 @e conclude that in revie;ing ministerial decisions to deport under the Act, courts must accord deference to those decisions. If the Minister has considered the correct factors, the courts should not re;eigh them. Erovided the s. =B(5)(') decision is not patentl! unreasona'le . unreasona'le on its face, unsupported '! evidence, or vitiated '! failure to consider the proper factors or appl! the appropriate procedures . it should 'e upheld. At the same time, the courts have an important role to pla! in ensuring that the Minister has considered the relevant factors and complied ;ith the re?uirements of the Act and the Constitution. 2. Are the conditions for deportation in the Immigration Act constitutional? %a* Does the Act permit deportation to torture contrar( to the Charter9 D3 Suresh opposes his deportation to Sri *anka on the ground, among others, that on return he faces a su'stantial risk of torture. McHeo;n +. found that Suresh had not sho;n that he personall! ;ould risk torture according to the A su'stantial groundsA test. &is finding seems to conflict ;ith that of the immigration officer ;ho ackno;ledged Athat there is a risk to Mr. Suresh on his return to Sri *anka,A 'ut concluded that Athis is counter'alanced '! the serious terrorist activities to ;hich he has 'een a part!.A Acting on these findings, the Minister ordered Suresh deported. DB Section =B of the Immigration Act permits deportation Ato a countr! ;here the person,s life or freedom ;ould 'e threatened.A he ?uestion is ;hether such deportation violates s. 9 of the Charter. orture is defined in Art. 5 of the CA as including the unla;ful use of ps!chological or ph!sical techni?ues to intentionall! inflict severe pain and suffering on another, ;hen such pain or suffering is inflicted '! or ;ith the consent of pu'lic officials. A similar definition of torture ma! 'e found in s. 3F:.5 of the Criminal Code, :

#.S.C. 5:<=, c. C.DF. DD Section 9 of the Charter guarantees Aever!one . . . the right to life, li'ert! and securit! of the person and the right not to 'e deprived thereof e-cept in accordance ;ith the principles of fundamental 1ustice.A It is conceded that Aever!oneA includes refugees and that deportation to torture ma! deprive a refugee of li'ert!, securit! and perhaps life. he onl! ?uestion is ;hether this deprivation is in accordance ;ith the principles of fundamental 1ustice. If it is not, s. 9 is violated and, 'arring 1ustification of the violation under s. 5 of the Charter, deportation to torture is unconstitutional. D= he principles of fundamental 1ustice are to 'e found in Athe 'asic tenets of our legal s!stemA2 +urns, supra, at para. 94.A he! do not lie in the realm of general pu'lic polic! 'ut in the inherent domain of the 1udiciar! as guardian of the legal s!stemA2 Reference re s$ 9!%:* of the &otor ;ehicle Act %+ritish Colum2ia* , 65:<=8 3 S.C.#. D<F (S.C.C.), at p. =4B. he relevant principles of fundamental 1ustice are determined '! a conte-tual approach that Atakes into account the nature of the decision to 'e madeA2 5indler, supra, at p. <D<, per Mc*achlin +. (as she then ;as). he approach is essentiall! one of 'alancing. As ;e said in +urns, A6i8t is inherent in the . . . 'alancing process that the outcome ma! ;ell var! from case to case depending on the mi- of conte-tual factors put into the 'alanceA (para. F=). /eportation to torture, for e-ample, re?uires us to consider a variet! of factors, including the circumstances or conditions of the potential deportee, the danger that the deportee presents to Canadians or the countr!,s securit!, and the threat of terrorism to Canada. In conte-ts in ;hich the most significant considerations are general ones, it is likel! that the 'alance ;ill 'e struck the same ;a! in most cases. It ;ould 'e impossi'le to sa! in advance, ho;ever, that the 'alance ;ill necessaril! 'e struck the same ;a! in ever! case. DF he in?uir! into the principles of fundamental 1ustice is informed not onl! '! Canadian e-perience and 1urisprudence, 'ut also '! international la;, including /us cogens. his takes into account Canada,s international o'ligations and values as e-pressed in A6t8he various sources of international human rights la; . declarations, covenants, conventions, 1udicial and ?uasi.1udicial decisions of international tri'unals, 6and8 customar! normsA2 +urns, paras. 9:.<5, Reference re Pu2lic "ervice 'mplo(ee Relations Act %Al2erta*, 65:<98 5 S.C.#. B5B (S.C.C.), at p. BD<, per /ickson C.+. (dissenting)G see also &otor ;ehicle Act %+ritish Colum2ia*, supra, at p. =53, "laight Communications Inc$ v$ Davidson, 65:<:8 5 S.C.#. 54B< (S.C.C.), at pp. 54=F.54=9, R$ v$ 5eegstra, 65::48 B S.C.#. F:9 (S.C.C.), at p. 9=4, and +a,er, supra. D9 /etermining ;hether deportation to torture violates the principles of fundamental 1ustice re?uires us to 'alance Canada,s interest in com'atting terrorism and the Convention refugee,s interest in not 'eing deported to torture. Canada has a legitimate and compelling interest in com'atting terrorism. )ut it is also committed to fundamental 1ustice. he notion of proportionalit! is fundamental to our constitutional s!stem. hus ;e must ask ;hether the government,s proposed response is reasona'le in relation to the threat. In the past, ;e have held that some responses are so e-treme that the! are per se disproportionate to an! legitimate government interest2 see +urns, supra. @e must ask ;hether deporting a refugee to torture ;ould 'e such a response. D< @ith these thoughts in mind, ;e turn to the ?uestion of ;hether the government ma!, consistent ;ith the principles of fundamental 1ustice, e-pel a suspected terrorist to face torture else;here2 first from the Canadian perspective, then from the perspective of the international norms that inform s. 9. (i) The Canadian Pers ective D: he in?uir! at this stage is ;hether, vie;ed from a Canadian perspective, returning a refugee to the risk of torture 'ecause of securit! concerns violates the principles of fundamental 1ustice ;here the deportation is effected for reasons of national securit!. A variet! of phrases have 'een used to descri'e conduct that ;ould violate fundamental 1ustice. he most fre?uent is Aconduct that ;ould shock the Canadian conscienceA2 see 5indler, supra, at p. <=3, and +urns, supra, at para. F4. @ithout resorting to opinion polls, ;hich ma! var! ;ith the mood of the moment, is the conduct fundamentall! unaccepta'le to our notions of fair practice and 1usticeI 54

=4 It can 'e confidentl! stated that Canadians do not accept torture as fair or compati'le ;ith 1ustice. orture finds no condonation in our Criminal CodeG indeed, the Code prohi'its it (see, for e-ample, s. 3F:.5). he Canadian people, speaking through their elected representatives, have re1ected all forms of state.sanctioned torture. Cur courts ensure that confessions cannot 'e o'tained '! threats or force. he last vestiges of the death penalt! ;ere a'olished in 5::< and Canada has not e-ecuted an!one since 5:F32 see An Act to amend the <ational Defence Act and to ma,e conse1uential amendments to other Acts , S.C. 5::<, c. B=. In +urns, the then Minister of +ustice, in his decision on the order to e-tradite the respondents )urns and #afa!, emphasized that Ain Canada, Earliament has decided that capital punishment is not an appropriate penalt! for crimes committed here, and I am firml! committed to that positionA (para. 9F). @hile ;e ;ould hesitate to dra; a direct e?uation 'et;een government polic! or pu'lic opinion at an! particular moment and the principles of fundamental 1ustice, the fact that successive governments and Earliaments have refused to inflict torture and the death penalt! surel! reflects a fundamental Canadian 'elief a'out the appropriate limits of a criminal 1ustice s!stem. =5 @hen Canada adopted the Charter in 5:<3, it affirmed the opposition of the Canadian people to government.sanctioned torture '! proscri'ing cruel and unusual treatment or punishment in s. 53. A punishment is cruel and unusual if it Ais so e-cessive as to outrage standards of decenc!A2 see R$ v$ "mith, 65:<98 5 S.C.#. 54D= (S.C.C.), at pp. 5493.549B, per *amer +. (as he then ;as). It must 'e so inherentl! repugnant that it could never 'e an appropriate punishment, ho;ever egregious the offence. orture falls into this categor!. he prospect of torture induces fear and its conse?uences ma! 'e devastating, irreversi'le, indeed, fatal. orture ma! 'e meted out indiscriminatel! or ar'itraril! for no particular offence. orture has as its end the denial of a person,s humanit!G this end is outside the legitimate domain of a criminal 1ustice s!stem2 see, generall!, >laine Scarr!, The +od( in Pain= The &a,ing and 7nma,ing of the >orld (C-ford2 C-ford $niversit! Eress, 5:<=), at pp. 39.=:. orture is an instrument of terror and not of 1ustice. As *amer +. stated in "mith, supra, at pp. 549B.549D,A some punishments or treatments ;ill al;a!s 'e grossl! disproportionate and ;ill al;a!s outrage our standards of decenc!2 for e-ample, the infliction of corporal punishment.A As such, torture is seen in Canada as fundamentall! un1ust. =3 @e ma! thus conclude that Canadians re1ect government.sanctioned torture in the domestic conte-t. &o;ever, this appeal focuses on the prospect of Canada e-pelling a person to face torture in another countr!. his raises the ?uestion ;hether s. 9 is implicated at all. Cn one theor!, our in?uir! need 'e concerned onl! ;ith the Minister,s act of deporting and not ;ith the possi'le conse?uences that the e-pelled refugee ma! face upon arriving in the destination countr!. If our s. 9 anal!sis is confined to ;hat occurs on Canadian soil as a necessar! and immediate result of the Minister,s decision, torture does not enter the picture. If, on the other hand, our anal!sis must take into account ;hat ma! happen to the refugee in the destination countr!, ;e surel! cannot ignore the possi'ilit! of grievous conse?uences such as torture and death, if a risk of those conse?uences is esta'lished. =B @e discussed this issue at some length in +urns, supra. In that case, the $nited States sought the e-tradition of t;o Canadian citizens to face aggravated first degree murder charges in the state of @ashington. he respondents )urns and #afa! contested the e-tradition on the grounds that the Minister had not sought assurances that the death penalt! ;ould not 'e imposed. @e re1ected the respondents, argument that e-tradition in such circumstances ;ould violate their s. 53 right not to 'e su'1ected to cruel and unusual treatment or punishment, finding that the ne-us 'et;een the e-tradition order and the mere possi'ilit! of capital punishment ;as too remote to engage s. 53. @e agreed, ho;ever, ;ith the respondents, argument under s. 9, ;riting that A 6s8ection 9 is concerned not onl! ;ith the act of e-traditing, 'ut also the potential conse?uences of the act of e-traditionA (para. F4 (emphasis in original)). @e cited, in particular, R$ v$ "chmidt, 65:<98 5 S.C.#. =44 (S.C.C.), at p. =33, in ;hich *a (orest +. recognized that A in some circumstances the manner in ;hich the foreign state ;ill deal ;ith the fugitive on surrender, ;hether that course of conduct is 1ustifia'le or not under the la; of that countr!, ma! 'e such that it ;ould violate the principles of fundamental 1ustice to surrender an accused under those circumstances.A In that case, *a (orest +. referred specificall! to the possi'ilit! that a countr! seeking e-tradition might torture the accused on return. =D @hile the instant case arises in the conte-t of deportation and not e-tradition, ;e see no reason that the principle enunciated in 55

+urns should not appl! ;ith e?ual force here. In +urns, nothing in our s. 9 anal!sis turned on the fact that the case arose in the conte-t of e-tradition rather than refoulement. #ather, the governing principle ;as a general one . namel!, that the guarantee of fundamental 1ustice applies even to deprivations of life, li'ert! or securit! effected '! actors other than our government, if there is a sufficient causal connection 'et;een our government,s participation and the deprivation ultimatel! effected. @e reaffirm that principle here. At least ;here Canada,s participation is a necessar! precondition for the deprivation and ;here the deprivation is an entirel! foreseea'le conse?uence of Canada,s participation, the government does not avoid the guarantee of fundamental 1ustice merel! 'ecause the deprivation in ?uestion ;ould 'e effected '! someone else,s hand. == @e therefore disagree ;ith the Court of Appeal,s suggestion that, in e-pelling a refugee to a risk of torture, Canada acts onl! as an Ainvoluntar! intermediar!A (para. 534). @ithout Canada,s action, there ;ould 'e no risk of torture. Accordingl!, ;e cannot pretend that Canada is merel! a passive participant. hat is not to sa!, of course, that an( action '! Canada that results in a person 'eing tortured or put to death ;ould violate s. 9. here is al;a!s the ?uestion, as there is in this case, of ;hether there is a sufficient connection 'et;een Canada,s action and the deprivation of life, li'ert!, or securit!. =F @hile this Court has never directl! addressed the issue of ;hether deportation to torture ;ould 'e inconsistent ;ith fundamental 1ustice, ;e have indicated on several occasions that e-traditing a person to face torture ;ould 'e inconsistent ;ith fundamental 1ustice. As ;e mentioned a'ove, in "chmidt, supra, *a (orest +. noted that s. 9 is concerned not onl! ;ith the immediate conse?uences of an e-tradition order 'ut also ;ithA the manner in ;hich the foreign state ;ill deal ;ith the fugitive on surrender, ;hether that course of conduct is 1ustifia'le or not under the la; of that countr!A (p. =33). *a (orest +. ;ent on to specificall! identif! the possi'ilit! that the re?uesting countr! might torture the accused and then to state that A6s8ituations falling far short of this ma! ;ell arise ;here the nature of the criminal procedures or penalties in a foreign countr! sufficientl! shocks the conscience as to make a decision to surrender a fugitive for trial there one that 'reaches the principles of fundamental 1ustice enshrined in s. 9A (p. =33). =9 A similar vie; ;as e-pressed '! Mc*achlin +. in 5indler, supra. In that case, Mc*achlin +. ;rote that in some instances the Asocial consensusA as to ;hether e-tradition ;ould violate fundamental 1ustice ;ould 'e clear. A his ;ould 'e the case if, for instance, the fugitive faced torture on return to his or her home countr!A (p. <=5). Concurring, *a (orest +. ;rote, similarl!, that A6t8here are, of course, situations ;here the punishment imposed follo;ing surrender . torture, for e-ample . ;ould 'e so outrageous to the values of the Canadian communit! that the surrender ;ould 'e unaccepta'leA (p. <B3). =< Canadian 1urisprudence does not suggest that Canada ma! never deport a person to face treatment else;here that ;ould 'e unconstitutional if imposed '! Canada directl!, on Canadian soil. o repeat, the appropriate approach is essentiall! one of 'alancing. he outcome ;ill depend not onl! on considerations inherent in the general conte-t 'ut also on considerations related to the circumstances and condition of the particular person ;hom the government seeks to e-pel. Cn the one hand stands the state,s genuine interest in com'atting terrorism, preventing Canada from 'ecoming a safe haven for terrorists, and protecting pu'lic securit!. Cn the other hand stands Canada,s constitutional commitment to li'ert! and fair process. his said, Canadian 1urisprudence suggests that this 'alance ;ill usuall! come do;n against e-pelling a person to face torture else;here. (ii) The International Pers ective =: @e have e-amined the argument that from the perspective of Canadian la; to deport a Convention refugee to torture violates the principles of fundamental 1ustice. &o;ever, that does not end the in?uir!. he provisions of the Immigration Act dealing ;ith deportation must 'e considered in their international conte-t2 Pushpanathan, supra. Similarl!, the principles of fundamental 1ustice e-pressed in s. 9 of the Charter and the limits on rights that ma! 'e 1ustified under s. 5 of the Charter cannot 'e considered in isolation from the international norms ;hich the! reflect. A complete understanding of the Act and the Charter re?uires consideration of the international perspective. 53

F4 International treat! norms are not, strictl! speaking, 'inding in Canada unless the! have 'een incorporated into Canadian la; '! enactment. &o;ever, in seeking the meaning of the Canadian Constitution, the courts ma! 'e informed '! international la;. Cur concern is not ;ith Canada,s international o'ligations 1ua o'ligationsG rather, our concern is ;ith the principles of fundamental 1ustice. @e look to international la; as evidence of these principles and not as controlling in itself. F5 It has 'een su'mitted '! the intervener, Amnest! International, that the a'solute prohi'ition on torture is a peremptor! norm of customar! international la;, or /us cogens. Articles =B and FD of the ;ienna Convention on the 4a0 of Treaties, 19?9 , Can. .S. 5:<4 %o. B9, provide that e-isting or ne; peremptor! norms prevail over treaties. Article =B defines a peremptor! norm as . . . a norm accepted and recognized '! the international communit! of States as a ;hole as a norm from ;hich no derogation is permitted and ;hich can 'e modified onl! '! a su'se?uent norm of general international la; having the same character. his raises the ?uestion of ;hether the prohi'ition on torture is a peremptor! norm. Eeremptor! norms develop over time and '! general consensus of the international communit!. his is the difficult! in interpreting international la;G it is often impossi'le to pinpoint ;hen a norm is generall! accepted and to identif! ;ho makes up the international communit!. As noted '! *auri &annikainen, Peremptor( <orms %6us Cogens* in International 4a0= .istorical Development, Criteria, Present "tatus (&elsinki2 *akimiesliiten Hustannus, 5:<<), at pp. 93B.93D2 he clarification of the notion of 1us cogens in international la; is advancing, 'ut is still far from 'eing completed. Cn the other hand, the international communit! of States has 'een inactive in stating e@pressl( ;hich norms it recognizes as peremptor! in the present.da! international la;. In the opinion of the present ;riter, this inactivit!, and the conse?uent uncertaint! as to ;hich norms are peremptor!, constitute at present the main pro2lem of the via2ilit( of /us cogens . 6>mphasis in original.8 F3 In the case at 'ar, there are three compelling indicia that the prohi'ition of torture is a peremptor! norm. (irst, there is the great num'er of multilateral instruments that e-plicitl! prohi'it torture2 see Aeneva Convention Relative to the Treatment of Prisoners of >ar, Can. .S. 5:F= %o. 34, p. <D (5:D:), Art. BG Aeneva Convention for the Amelioration of the Condition of the >ounded and "ic, in Armed Forces in the Field , Can. .S. 5:F= %o. 34, p. 3= (5:D:), Art. BG Aeneva Convention for the Amelioration of the Condition of the >ounded, "ic, and "hip0rec,ed &em2ers of Armed Forces at "ea, Can. .S. 5:F= %o. 34, p. == (5:D:), Art. BG Aeneva Convention Relative to the Protection of Civilian Persons in Time of >ar , Can. .S. 5:F= %o. 34, p. 5FB (5:D:), Art. BG 7niversal Declaration of .uman Rights, 19! , ".A. #es. 359A(III), $% /oc. AK<54, at 95 (5:D<), Art. =G Declaration on the Protection of All Persons from +eing "u2/ected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment , ".A. #es. BD=3 (LLL), $% /oc. AK544BD (5:9=)G International Covenant on Civil and Political Rights, 19?? , Can. .S. 5:9F %o. D9 (ICCE#) (5:FF), Art. 9G 'uropean Convention for the Protection of .uman Rights and Fundamental Freedoms, 19#B , 35B $.%. .S. 335 (5:=4), Art. BG American Convention on .uman Rights, 19?9, 55DD $.%. .S. 53B (5:F:), Art. =G African Charter on .uman and Peoples8 Rights, 19 :, 35 I.*.M. =< (5:<5), Art. =G 7niversal Islamic Declaration of .uman Rights (5:<5), : The &uslim >orld 4eague 6ournal 3= (5:<5), Art. MII. FB Second, Amnest! International su'mitted that no state has ever legalized torture or admitted to its deli'erate practice and that governments accused of practising torture regularl! den! their involvement, placing responsi'ilit! on individual state agents or groups outside the government,s control. herefore, it argues that the ;eight of these domestic practices is further evidence of a universal acceptance of the prohi'ition on torture. Counsel for the respondents, ;hile not conceding this point, did not refer this Court to an! evidence of state practice to contradict this su'mission. &o;ever, it is noted in most academic ;ritings that most, if not all states have officiall! prohi'ited the use of torture as part of their administrative practices2 see &annikainen, supra, at p. =4B. 5B

FD *ast, a num'er of international authorities state that the prohi'ition on torture is an esta'lished peremptor! norm2 see &annikainen, supra, at p. =4:, Malcolm %. Sha;, International 4a0, Dth ed. (Cam'ridge2 Cam'ridge $niversit! Eress, 5::9), at pp. 34B.34D, Prosecutor v$ Furund-i/a (5::<), B< I.*.M. B59 (5:::) (International Criminal ri'unal for the (ormer Jugoslavia, rial Cham'er), R$ v$ +o0 "treet &etropolitan "tipendiar( &agistrate %<o$ C* , 65:::8 3 @.*.#. <39 ($.H. &.*.). Cthers do not e-plicitl! set it out as a peremptor! normG ho;ever, the! do generall! accept that the protection of human rights or humanitarian rights is a peremptor! norm2 see Ian )ro;nlie, Principles of Pu2lic International 4a0, =th ed. (C-ford2 Clarendon Eress, 5::<), at p. =5=, and Claude >manuelli, Droit international pu2lic = Contri2ution D l8Etude du droit international selon une perspective canadienne (Montr0al2 @ilson & *afleur, 5::<), at ss. 3=5, 5B:D and 5B:F. F= Although this Court is not 'eing asked to pronounce on the status of the prohi'ition on torture in international la;, the fact that such a principle is included in numerous multilateral instruments, that it does not form part of an! kno;n domestic administrative practice, and that it is considered '! man! academics to 'e an emerging, if not esta'lished peremptor! norm, suggests that it cannot 'e easil! derogated from. @ith this in mind, ;e no; turn to the interpretation of the conflicting instruments at issue in this case. FF /eportation to torture is prohi'ited '! 'oth the ICCE#, ;hich Canada ratified in 5:9F, and the CA , ;hich Canada ratified in 5:<9. he relevant provisions of the ICCE# read2 Article ! 5. In time of pu'lic emergenc! ;hich threatens the life of the nation and the e-istence of ;hich is officiall! proclaimed, the States Earties to the present Covenant ma! take measures derogating from their o'ligations under the present Covenant to the e-tent strictl! re?uired '! the e-igencies of the situation, provided that such measures are not inconsistent ;ith their other o'ligations under international la; . . . . 3. %o derogation from articles F, 9, < (paragraphs 5 and 3), 55, 5=, 5F and 5< ma! 'e made under this provision. ..... Article " %o one shall 'e su'1ected to torture or to cruel, inhuman or degrading treatment or punishment. . . . @hile the provisions of the ICCE# do not themselves specificall! address the permissi'ilit! of a state,s e-pelling a person to face torture else;here, "eneral Comment %o. 34 to the ICCE# makes clear that Art. 9 is intended to cover that scenario, e-plaining that A . . . States parties must not e-pose individuals to the danger of torture . . . upon return to another countr! '! ;a! of their e-tradition, e-pulsion, or refoulementA (para. :). F9 @e do not share #o'ertson +.A.,s vie; that "eneral Comment %o. 34 should 'e disregarded 'ecause it AcontradictsA the clear language of Art. 9. In our vie;, there is no contradiction 'et;een the t;o provisions. "eneral Comment %o. 34 does not run counter to Art. 9G rather, it e-plains it. %othing ;ould prevent a state from adhering 'oth to Art. 9 and to "eneral Comment %o. 34, and "eneral Comment %o. 34 does not detract from rights preserved or provided '! Art. 9. he clear import of the ICCE#, read together ;ith the "eneral Comments, is to foreclose a state from e-pelling a person to face torture else;here. F< he CA takes the same stand. he relevant provisions of that document read2 5D

Article # 5. (or the purposes of this Convention, the term AtortureA means an! act '! ;hich severe pain or suffering, ;hether ph!sical or mental, is intentionall! inflicted on a person for such purposes as o'taining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for an! reason 'ased on discrimination of an! kind, ;hen such pain or suffering is inflicted '! or at the instigation of or ;ith the consent or ac?uiescence of a pu'lic official or other person acting in an official capacit!. It does not include pain or suffering arising onl! from, inherent in or incidental to la;ful sanctions. 3. his article is ;ithout pre1udice to an! international instrument or national legislation ;hich does or ma! contain provisions of ;ider application. Article $ 5. >ach State Eart! shall take effective legislative, administrative, 1udicial or other measures to prevent acts of torture in an! territor! under its 1urisdiction. 3. %o e-ceptional circumstances ;hatsoever . . . ma! 'e invoked as a 1ustification of torture. Article % 5. <o "tate Part( shall e@pel, return %FrefoulerF* or e@tradite a person to another "tate 0here there are su2stantial grounds for 2elieving that he 0ould 2e in danger of 2eing su2/ected to torture. 6>mphasis added.8 ..... Article #& 3. he provisions of this Convention are ;ithout pre1udice to the provisions of an! other international instrument or national la; ;hich prohi'its cruel, inhuman or degrading treatment or punishment or ;hich relates to e-tradition or e-pulsion. he CA ,s import is clear2 a state is not to e-pel a person to face torture, ;hich includes 'oth the ph!sical and mental infliction of pain and suffering, else;here. F: #o'ertson +.A., ho;ever, held that the CA ,s clear proscription of deportation to torture must defer to Art. BB(3) of the Refugee Convention, ;hich permits a countr! to refoule a refugee ;ho is a danger to the countr!,s securit!. he relevant provisions of the Refugee Convention state2 Article %% 5. %o Contracting State shall e-pel or return (ArefoulerA) a refugee in an! manner ;hatsoever to the frontiers of territories ;here his life or freedom ;ould 'e threatened on account of his race, religion, nationalit!, mem'ership or a particular social group or opinion.

5=

3. he 'enefit of the present provision ma! not, ho;ever, 'e claimed '! a refugee ;hom there are reasona'le grounds for regarding as a danger to the securit! of the countr! in ;hich he is, or ;ho, having 'een convicted '! a final 1udgment of a particularl! serious crime, constitutes a danger to the communit! of that countr!. 94 Article BB of the Refugee Convention appears on its face to stand in opposition to the categorical re1ection of deportation to torture in the CA . #o'ertson +.A., faced ;ith this apparent contradiction, attempted to read the t;o conventions in a ;a! that minimized the contradiction, holding that the anti.deportation provisions of the CA ;ere not 'inding, 'ut deroga'le. 95 @e are not convinced that the contradiction can 'e resolved in this ;a!. It is not apparent to us that the clear prohi'itions on torture in the CA ;ere intended to 'e deroga'le. (irst, the a'sence of an e-press prohi'ition against derogation in Art. B of the CA together ;ith the A;ithout pre1udiceA language of Art. 5F do not seem to permit derogation. %or does it follo; from the assertion in Art. 3(3) of CA that A6n8o . . . e-ceptional circumstances . . . ma! 'e invoked as a 1ustification of torture,A that the a'sence of such a clause in the Art. B refoulement provision permits acts leading to torture in e-ceptional circumstances. Moreover, the histor! of Art. 5F of the CA suggests that it ;as intended to leave the door open to other legal instruments providing greater protection, not to serve as the means for reducing protection. /uring the deli'erations of the @orking "roup that drafted the CA , Art. 5F ;as characterized as a Asaving clause affirming the continued validit! of other instruments prohi'iting punishments or cruel, inhuman, or degrading treatmentA2 Convention against Torture, travau@ prEparatoires , at p. FF. his undermines the suggestion that Art. 5F can 'e used as a means of narro;ing the scope of protection that the CA ;as intended to provide. 93 In our vie;, the prohi'ition in the ICCE# and the CA on returning a refugee to face a risk of torture reflects the prevailing international norm. Article BB of the Refugee Convention protects, in a limited ;a!, refugees from threats to life and freedom from all sources. )! contrast, the CA protects ever!one, ;ithout derogation, from state.sponsored torture. Moreover, the Refugee Convention itself e-presses a Aprofound concern for refugeesA and its principal purpose is to Aassure refugees the ;idest possi'le e-ercise of . . . fundamental rights and freedomsA (Eream'le). his negates the suggestion that the provisions of the Refugee Convention should 'e used to den! rights that other legal instruments make universall! availa'le to ever(one. 9B #ecognition of the dominant status of the CA in international la; is consistent ;ith the position taken '! the $% Committee against orture, ;hich has applied Art. B(5) even to individuals ;ho have terrorist associations. ( he CA provides for the creation of a Committee against orture to monitor compliance ;ith the treat!2 see CA , Et. II, Arts. 59.3D.) More particularl!, the Committee against orture has advised that Canada should A 6c8ompl! full! ;ith article B(5) . . . ;hether or not the individual is a serious criminal or securit! riskA2 see Committee against orture, Conclusions and Recommendations of the Committee against Torture= Canada, CA KCKLLMKConcl.D (3444), at para. F(a). 9D (inall!, ;e note that the Supreme Court of Israel sitting as the &igh Court of +ustice and the &ouse of *ords have re1ected torture as a legitimate tool to use in com'atting terrorism and protecting national securit!2 .at8m A2u Ga(da v$ "tate of Israel (5:::), B< I.*.M. 5D95, Rehman, supra, at para. =D, per *ord &offmann. 9= @e conclude that the 'etter vie; is that international la; re1ects deportation to torture, even ;here national securit! interests are at stake. his is the norm ;hich 'est informs the content of the principles of fundamental 1ustice under s. 9 of the Charter. (iii) A lication to s. '%(#)(() o) the I**igration Act

9F he Canadian re1ection of torture is reflected in the international conventions to ;hich Canada is a part!. he Canadian and international perspectives in turn inform our constitutional norms. he re1ection of state action leading to torture generall!, and deportation to torture specificall!, is virtuall! categoric. Indeed, 'oth domestic and international 1urisprudence suggest that torture is so a'horrent that it ;ill almost al;a!s 'e disproportionate to interests on the other side of the 'alance, even securit! interests. his 5F

suggests that, 'arring e-traordinar! circumstances, deportation to torture ;ill generall! violate the principles of fundamental 1ustice protected '! s. 9 of the Charter. o paraphrase *ord &offmann in Rehman, supra, at para. =D, states must find some other ;a! of ensuring national securit!. 99 he Minister is o'liged to e-ercise the discretion conferred upon her '! the Immigration Act in accordance ;ith the Constitution. his re?uires the Minister to 'alance the relevant factors in the case 'efore her. As stated in Rehman, supra, at para. =F, per *ord &offmann2 he ?uestion of ;hether the risk to national securit! is sufficient to 1ustif! the appellant,s deportation cannot 'e ans;ered '! taking each allegation seriatim and deciding ;hether it has 'een esta'lished to some standard of proof. It is a ?uestion of evaluation and 1udgment, in ;hich it is necessar! to take into account not onl! the degree of pro'a'ilit! of pre1udice to national securit! 'ut also the importance of the securit! interest at stake and the serious conse?uences of deportation for the deportee. Similarl!, *ord Sl!nn of &adle! stated, at para. 5F2 @hether there is . . . a real possi'ilit! 6of an adverse effect on the $.H. even if it is not direct or immediate8 is a matter ;hich has to 'e ;eighed up '! the Secretar! of State and 'alanced against the possi'le in1ustice to th6e8 individual if a deportation order is made. In Canada, the 'alance struck '! the Minister must conform to the principles of fundamental 1ustice under s. 9 of the Charter. It follo;s that insofar as the Immigration Act leaves open the possi'ilit! of deportation to torture, the Minister should generall! decline to deport refugees ;here on the evidence there is a su'stantial risk of torture. 9< @e do not e-clude the possi'ilit! that in e-ceptional circumstances, deportation to face torture might 'e 1ustified, either as a conse?uence of the 'alancing process mandated '! s. 9 of the Charter or under s. 5. (A violation of s. 9 ;ill 'e saved '! s. 5 Aonl! in cases arising out of e-ceptional conditions, such as natural disasters, the out'reak of ;ar, epidemics and the likeA2 see &otor ;ehicle Act %+ritish Colum2ia*, supra, at p. =5<, and <e0 +runs0ic, %&inister of .ealth ) Communit( "ervices* v$ A$ %6$* , 65:::8 B S.C.#. DF (S.C.C.), at para. :.) Insofar as Canada is una'le to deport a person ;here there are su'stantial grounds to 'elieve he or she ;ould 'e tortured on return, this is not 'ecause Art. B of the CA directl! constrains the actions of the Canadian government, 'ut 'ecause the fundamental 1ustice 'alance under s. 9 of the Charter generall! precludes deportation to torture ;hen applied on a case.'!.case 'asis. @e ma! predict that it ;ill rarel! 'e struck in favour of e-pulsion ;here there is a serious risk of torture. &o;ever, as the matter is one of 'alance, precise prediction is elusive. he am'it of an e-ceptional discretion to deport to torture, if an!, must a;ait future cases. 9: In these circumstances, s. =B(5)(') does not violate s. 9 of the Charter. @hat is at issue is not the legislation, 'ut the Minister,s o'ligation to e-ercise the discretion s. =B confers in a constitutional manner. %2* Are the terms Fdanger to the securit( of CanadaF and F terrorismF unconstitutionall( vague9 (i) +,anger to the Security o) Canada+ <4 In order to den! the 'enefit of s. =B(5) to a person seeking its protection, the Minister must certif! that the person constitutes a Adanger to the securit! of Canada.A Suresh argues that this phrase is unconstitutionall! vague. <5 A vague la; ma! 'e unconstitutional for either of t;o reasons2 (5) 'ecause it fails to give those ;ho might come ;ithin the 59

am'it of the provision fair notice of the conse?uences of their conduct, or (3) 'ecause it fails to ade?uatel! limit la; enforcement discretion2 see Canada v$ Pharmaceutical "ociet( %<ova "cotia* (5::3), 5= C.#. (Dth) 5 (S.C.C.). In the same case, this Court held that Aa la; ;ill 'e found unconstitutionall! vague if it so lacks in precision as not to give sufficient guidance for legal de'ateA (p. FDB). <3 #o'ertson +.A. found that the phrase Adanger to the securit! of Canada,A ;hich is not defined in the Immigration Act, is not unconstitutionall! vague (paras. =F.FD). &e conceded that the phrase ;as imprecise 'ut reasoned that ;hether a person poses a danger to the securit! of Canada could 'e determined '! Athe individual,s degree of association or complicit! ;ith a terrorist organizationA (para. FB). he government similarl! argues that the phrase is not unconstitutionall! vagueG it contends that the phrase Arefer6s8 to the possi'ilit! that someone,s presence is harmful to national securit! in terms of the inadmissi'le classesA listed in s. 5: and referred to in s. =B. It suggests that the phrase can 'e Ainterpreted in the light of international la; as a ;holeA and su'mits that the securit! of Canada is dependent on the securit! of other countries. Cn this interpretation, it need not 'e sho;n that the person,s presence in Canada poses a risk here. All that need 'e sho;n is that deportation ma! have a result that, vie;ed generall!, enhances the securit! of Canada. <B @e agree ;ith the government and #o'ertson +.A. that the phrase Adanger to the securit! of CanadaA is not unconstitutionall! vague. &o;ever, ;e do not interpret the phrase e-actl! as he or the government suggests. @e ;ould not conflate s. 5:,s reference to mem'ership in a terrorist movement ;ith A danger to the securit! of Canada.A @hile the t;o ma! 'e related, A danger to the securit! of Canada,A in our vie;, must mean something more than 1ust Aperson descri'ed in s. 5:.A <D @e ;ould also, contrar! to the government,s su'mission, distinguish Adanger to the securit! of CanadaA from Adanger to the pu'lic,A although ;e recognize that the t;o phrases ma! overlap. he latter phrase clearl! is intended to address threats to individuals in Canada, 'ut its application is restricted '! re?uiring that an! individual ;ho is declared to 'e a A danger to the pu'licA have 'een convicted of a serious offence2 Immigration Act, s. =B(5)(a), (c), and (d). he government,s suggested reading of Adanger to the securit! of CanadaA effectivel! does an end.run around the re?uirement in Art. BB(3) of the Refugee Convention that no one ma! 'e refouled as a danger to the communit! of the countr! unless he has first 'een convicted '! a final 1udgment of a particularl! serious crime. <= Su'1ect to these ?ualifications, ;e accept that a fair, large and li'eral interpretation in accordance ;ith international norms must 'e accorded to A danger to the securit! of CanadaA in deportation legislation. @e recognize that Adanger to the securit! of CanadaA is difficult to define. @e also accept that the determination of ;hat constitutes a Adanger to the securit! of CanadaA is highl! fact.'ased and political in a general sense. All this suggests a 'road and fle-i'le approach to national securit! and, as discussed a'ove, a deferential standard of 1udicial revie;. Erovided the Minister is a'le to sho; evidence that reasona'l! supports a finding of danger to the securit! of Canada, courts should not interfere ;ith the Minister,s decision. <F he ?uestion arises ;hether the Minister must present direct evidence of a specific danger to the securit! of Canada . It has 'een argued that under international la; the state must prove a connection 'et;een the terrorist activit! and the securit! of the deporting countr!2 &atha;a! and &arve!, supra, at pp. 3<:.3:4. It has also 'een suggested that the travau@ prEparatoires to the Refugee Convention indicate that threats to the securit! of another state ;ere not intended to ?ualif! as a danger sufficient to permit refoulement to torture. hreats to the securit! of another state ;ere argua'l! not intended to come ;ithin the term, nor ;ere general concerns a'out terrorism intended to 'e sufficient2 see Refugee Convention, travau@ prEparatoires, AKCC%(.3KS#.5F, at p. < (AAmong the great mass of refugees it ;as inevita'le that some persons should 'e tempted to engage in activities on 'ehalf of a foreign Eo;er against the countr! of their as!lum, and it ;ould 'e unreasona'le to e-pect the latter not to safeguard itself against such a contingenc!A)G see Atle. "rahl.Madsen, Commentar( on the Refugee Convention, 19#1 ("eneva2 /ivision of International Erotection of the $nited %ations &igh Commissioner for #efugees, 5::9), at p. 3BF (A ,6 8he securit! of the countr!, is invoked against acts of a rather serious nature endangering directl! or indirectl! the constitution ("overnment), the territorial integrit!, the independence, or the e-ternal peace of the countr! concernedA). 5<

<9 @hatever the historic validit! of insisting on direct proof of specific danger to the deporting countr!, as matters have evolved, ;e 'elieve courts ma! no; conclude that the support of terrorism a'road raises a possi'ilit! of adverse repercussions on Canada,s securit!2 see Rehman, supra, per *ord Sl!nn of &adle!, at paras. 5F and 59. International conventions must 'e interpreted in the light of current conditions. It ma! once have made sense to suggest that terrorism in one countr! did not necessaril! implicate other countries. )ut after the !ear 3445, that approach is no longer valid. << (irst, the glo'al transport and mone! net;orks that feed terrorism a'road have the potential to touch all countries, including Canada, and to thus implicate them in the terrorist activit!. Second, terrorism itself is a ;orld.;ide phenomenon. he terrorist cause ma! focus on a distant locale, 'ut the violent acts that support it ma! 'e close at hand. hird, preventive or precautionar! state action ma! 'e 1ustifiedG not onl! an immediate threat 'ut also possi'le future risks must 'e considered. (ourth, Canada,s national securit! ma! 'e promoted '! reciprocal cooperation 'et;een Canada and other states in com'ating international terrorism. hese considerations lead us to conclude that to insist on direct proof of a specific threat to Canada as the test for Adanger to the securit! of CanadaA is to set the 'ar too high. here must 'e a real and serious possi'ilit! of adverse effect to Canada. )ut the threat need not 'e directG rather, it ma! 'e grounded in distant events that indirectl! have a real possi'ilit! of harming Canadian securit!. <: @hile the phrase Adanger to the securit! of CanadaA must 'e interpreted fle-i'l!, and ;hile courts need not insist on direct proof that the danger targets Canada specificall!, the fact remains that to refoule a refugee under s. =B(5)(') to torture re?uires evidence of a serious threat to national securit!. o suggest that something less than serious threats founded on evidence ;ould suffice to deport a refugee to torture ;ould 'e to condone unconstitutional application of the Immigration Act. Insofar as possi'le, statutes must 'e interpreted to conform to the Constitution. his supports the conclusion that ;hile Adanger to the securit! of CanadaA must 'e given a fair, large and li'eral interpretation, it nevertheless demands proof of a potentiall! serious threat. :4 hese considerations lead us to conclude that a person constitutes a Adanger to the securit! of CanadaA if he or she poses a serious threat to the securit! of Canada, ;hether direct or indirect, and 'earing in mind the fact that the securit! of one countr! is often dependent on the securit! of other nations. he threat must 'e Aserious,A in the sense that it must 'e grounded on o'1ectivel! reasona'le suspicion 'ased on evidence and in the sense that the threatened harm must 'e su'stantial rather than negligi'le. :5 his definition of Adanger to the securit! of CanadaA does not mean that Canada is una'le to deport those ;ho pose a risk to individual Canadians, 'ut not the countr!. A different provision, the Adanger to the pu2licA provision, allo;s the government to deport those ;ho pose no danger to the securit! of the countr! per se . those ;ho pose a danger to Canadians, as opposed to a danger to Canada . provided the! have committed a serious crime. Moreover, if a refugee is ;anted for crimes in a countr! that ;ill not torture him or her on return, the government ma! 'e free to e-tradite him or her to face those charges, ;hether or not he or she has committed crimes in Canada. :3 @e are satisfied that the term Adanger to the securit! of Canada,A defined as here suggested, gives those ;ho might come ;ithin the am'it of the provision fair notice of the conse?uences of their conduct, ;hile ade?uatel! limiting la; enforcement discretion. @e hold, therefore, that the term is not unconstitutionall! vague. (ii) +Terroris*+ :B he term AterrorismA is found in s. 5: of the Immigration Act, dealing ;ith denial of refugee status upon arrival in Canada. he Minister interpreted s. 5: as appl!ing to terrorist acts post.admission and relied on alleged terrorist associations in Canada in seeking Suresh,s deportation under s. =B(5)('), ;hich refers to a class of persons falling under s. 5:. @e do not in these reasons seek to define terrorism e-haustivel! . a notoriousl! difficult endeavour . 'ut content ourselves ;ith finding that the term provides a sufficient 'asis for ad1udication and hence is not unconstitutionall! vague. @e share the vie; of #o'ertson +.A. that the term is not inherentl! 5:

am'iguous Aeven if the full meaning . . . must 'e determined on an incremental 'asisA (para. F:). :D Cne searches in vain for an authoritative definition of Aterrorism.A he Immigration Act does not define the term. (urther, there is no single definition that is accepted internationall!. he a'sence of an authoritative definition means that, at least at the margins, Athe term is open to politicized manipulation, con1ecture, and polemical interpretationA2 (actum of the intervener Canadian Ara' (ederation (CA(), at para. <G see also @illiam #. (arrell, The 7$"$ Aovernment Response to Terrorism= In "earch of an 'ffective "trateg( ()oulder, Col.2 @estvie; Eress, 5:<3), at p. F (A he term 6terrorism8 is some;hat , &umpt! /umpt!, . an!thing ;e choose it to 'eA), Cscar Schachter, A he >-traterritorial $se of (orce against errorist )asesA (5:<:), 55 .ouston 6$ Int8l 4$ B4:, at p. B4: (A6n8o single inclusive definition of international terrorism has 'een accepted '! the $nited %ations or in a generall! accepted multilateral treat!A), "eoffre! *evitt, A Is , errorism, @orth /efiningIA (5:<F), 5B Ohio <$7$ 4$ Rev$ :9, at p. :9 (A he search for a legal definition of terrorism in some ;a!s resem'les the ?uest for the &ol! "railA), Christopher C. +o!ner, ACffshore Maritime errorism2 International Implications and *egal #esponseA (5:<B), BF <aval >ar Col$ Rev$ 5F, at p. 34 (terrorism,s A e-act status under international la; remains open to con1ecture and polemical interpretationA), and +. )o;!er )ell, A Time of Terror= .o0 Democratic "ocieties Respond to Revolutionar( ;iolence (%e; Jork2 )asic )ooks, 5:9<), at p. - (A he ver! ;ord 6terrorism8 'ecomes a litmus test for dearl! held 'eliefs, so that a 'rief conversation on terrorist matters ;ith almost an!one reveals a special ;orld vie;, an interpretation of the nature of man, and a glimpse into a desired futureA). := >ven amongst those ;ho agree on the definition of the term, there is considera'le disagreement as to ;hom the term should 'e attached2 see, e.g., Ileana M. Eorras, A Cn errorism2 #eflections on Miolence and the Cutla;A (5::D), 7tah 4$ Rev$ 55:, at p. 53D (noting the general vie; that AterrorismA is poorl! defined 'ut stating that A 6;8ith ,terrorism, . . . ever!one means the same thing. @hat changes is not the meaning of the ;ord, 'ut rather the groups and activities that each person ;ould include or e-clude from the listA), /ouglas Hash, AA'ductions of errorists in International Airspace and on the &igh SeasA (5::B), < Fla$ 6$ Int8l 4$ F=, at p. 93 (A6A8n act that one state considers terrorism, another ma! consider as a valid e-ercise of resistanceA). Eerhaps the most striking e-ample of the politicized nature of the term is that %elson Mandela,s African %ational Congress ;as, during the apartheid era, routinel! la'elled a terrorist organization, not onl! '! the South African government 'ut '! much of the international communit!. :F @e are not persuaded, ho;ever, that the term AterrorismA is so unsettled that it cannot set the proper 'oundaries of legal ad1udication. he recentl! negotiated International Convention for the "uppression of the Financing of Terrorism, 1999 , ".A. #es. =DK54:, /ecem'er :, 5:::, approaches the definitional pro'lem in t;o ;a!s. (irst, it emplo!s a functional definition in Art. 3(a), defining AterrorismA as A6a8n act ;hich constitutes an offence ;ithin the scope of and as defined in one of the treaties listed in the anne-.A he anne- lists nine treaties that are commonl! vie;ed as relating to terrorist acts, such as the Convention for the "uppression of 7nla0ful "ei-ure of Aircraft , Can. .S. 5:93 %o. 3B, the Convention on the Ph(sical Protection of <uclear &aterial (5:9:), 5< I.*.M. 5D5:, and the International Convention for the "uppression of Terrorist +om2ings (5::<), B9 I.*.M. 3D:. Second, the Convention supplements this offence.'ased list ;ith a stipulative definition of terrorism. Article 3(5)(') defines AterrorismA as2 An! . . . act intended to cause death or serious 'odil! in1ur! to a civilian, or to an! other person not taking an active part in the hostilities in a situation of armed conflict, ;hen the purpose of such act, '! its nature or conte-t, is to intimidate a population, or to compel a government or an international organization to do or to a'stain from doing an! act. :9 In its su'mission to this Court, the CA( argued that this Court should adopt a functional definition of terrorism, rather than a stipulative one. he argument is that defining terrorism '! reference to specific acts of violence (e.g., Ahi1acking, hostage.taking, and terrorist 'om'ingA) ;ould minimize politicization of the term (CA( factum, at paras. 55.5D). It is true that the functional approach has received strong support from international la; scholars and state representatives . support that is evidenced '! the numerous international legal instruments that esche; stipulative definitions in favour of prohi'itions on specific acts of violence. @hile ;e are not una;are of the danger that the term AterrorismA ma! 'e manipulated, ;e are not persuaded that it is necessar! or advisa'le to altogether esche; a stipulative definition of the term in favour of a list that ma! change over time and that ma! in the end necessitate 34

distinguishing some (proscri'ed) acts from other (non.proscri'ed) acts '! reliance on a term like Aterrorism.A (@e note that the CA(, in listing acts, at para. 55, that might 'e prohi'ited under a functional definition, lists Aterrorist 'om'ingA . a categor! that clearl! ;ould not avoid the necessit! of defining Aterrorism.A) :< In our vie;, it ma! safel! 'e concluded, follo;ing the International Convention for the "uppression of the Financing of Terrorism, that AterrorismA in s. 5: of the Act includes an! Aact intended to cause death or serious 'odil! in1ur! to a civilian, or to an! other person not taking an active part in the hostilities in a situation of armed conflict, ;hen the purpose of such act, '! its nature or conte-t, is to intimidate a population, or to compel a government or an international organization to do or to a'stain from doing an! act.A his definition catches the essence of ;hat the ;orld understands '! A terrorism.A Earticular cases on the fringes of terrorist activit! ;ill inevita'l! provoke disagreement. Earliament is not prevented from adopting more detailed or different definitions of terrorism. he issue here is ;hether the term as used in the Immigration Act is sufficientl! certain to 'e ;orka'le, fair and constitutional. @e 'elieve that it is. (iii) Conclusion :: @e conclude that the terms Adanger to the securit! of CanadaA and AterrorismA are not unconstitutionall! vague. Appl!ing them to the facts found in this case, the! ;ould prima facie permit the deportation of Suresh provided the Minister certifies him to 'e a su'stantial danger to Canada and provided he is found to 'e engaged in terrorism or a mem'er of a terrorist organization as set out in s. 5:(5)(e) and (f) of the Immigration Act. %c* Does deportation for mem2ership in a terrorist organi-ation un/ustifia2l( violate the Charter guarantees of freedom of e@pression and freedom of association9 544 Suresh argues that the Minister,s issuance of the certificate under s. D4.5 of the Immigration Act and the order declaring him a danger to the securit! of Canada under s. =B(5)(') on the ground that he ;as a mem'er of the * > violate his Charter rights of free e-pression and free association and cannot 'e 1ustified. &e points out that he has not 'een involved in actual terrorist activit! in Canada, 'ut merel! in fund.raising and support activities that ma!, in some part, contri'ute to the civil ;ar efforts of amils in Sri *anka. &e also points out that it is not a criminal offence to 'elong to such an organization and that the government seeks to deport him for something that Canadian citizens ma! la;full! do ;ithout sanction. &e suggests that inclusion of mere mem'ership in an organization that has 'een or ;ill 'e involved in acts of terrorism un1ustifia'l! limits the freedom of Convention refugees to e-press their vie;s on dissident movements outside the countr!, as ;ell as their freedom to associate ;ith other people in Canada ;ho come from similar 'ackgrounds. &e points out that the alleged terrorist organizations he ;as found to have 'een a mem'er of are engaged in man! positive endeavours to improve the lives of people in Canada and are not involved in violence here. 545 he government, for its part, argues that support of organizations that have engaged in or ma! assist terrorism is not constitutionall! protected e-pression or association. It argues that constitutional rights cannot 'e e-tended to inflict harm on others. his is so, in the government,s su'mission, even though man! of the activities of the organization ma! 'e lauda'le. Accordingl!, it sa!s, ss. 3(') and 3(d) of the Charter do not appl!. 543 Section 5: of the Immigration Act applies to the entr! of refugees into Canada. he Refugee Convention, and follo;ing it the Immigration Act, distinguish 'et;een the po;er of a state to refuse entr! to a refugee, and its po;er to deport or A refoulerA the refugee once the refugee is esta'lished in the countr! as a Convention refugee. he po;ers of a state to refuse entr! are 'roader than to deport. he 'roader po;ers to refuse entr! are 'ased, inter alia, on the need to prevent criminals escaping 1ustice in their o;n countr! from entering into Canada. %o dou't the natural desire of states to re1ect unsuita'le persons ;ho '! their conduct have put themselves A'e!ond the paleA also is a factor. See, generall!, &atha;a! and &arve!, supra. 35

54B he main purport of s. 5:(5) is to permit Canada to refuse entr! to persons ;ho are or have 'een engaged in terrorism or ;ho are or have 'een mem'ers of terrorist organizations. &o;ever, the Immigration Act uses s. 5:(5) in a second and different ;a!. It uses it in s. =B(5), the deportation section, to define the class of Convention refugees ;ho ma! 'e deported 'ecause the! constitute a danger to the securit! of Canada. hus, a Convention refugee like Suresh ma! 'e deported if he comes ;ithin a class of persons defined in s. 5:(5) and constitutes a danger to the securit! of Canada. 54D At this point, an am'iguit! in the com'ination of ss. =B and 5: arises. Is the class of persons designated '! the reference to s. 5: those persons 0ho at entr( ;ere or had 'een associated ;ith terrorist acts or mem'ers of terrorist organizationsI Cr ;as Earliament,s intention to include those ;ho after entr( committed terrorist acts or ;ere mem'ers of terrorist organizationsI he Minister interprets s. 5:, as incorporated into s. =B, as including conduct of refugees after entr!. 54= @e do not find it necessar! to resolve this am'iguit!, as in our opinion on either interpretation, s. 5: as incorporated into s. =B does not 'reach the rights of free e-pression and association guaranteed '! ss. 3(') and (d) of the Charter. If s. 5:, as used in s. =B, is interpreted as referring onl! to conduct prior to the point of entr!, no constitutional pro'lem arises. Cn the other hand, if it is interpreted as referring to post.entr! conduct, ;e are satisfied that the conduct caught '! the section, interpreted properl! '! the Minister, fails to attract constitutional protection 'ecause it ;ould 'e conduct associated ;ith violent activit!. 54F Section =B, as discussed earlier in connection ;ith deportation to face torture, re?uires the Minister to 'alance a variet! of factors relating on the one hand to concerns of national securit!, and to fair process to the Convention refugee on the other. In 'alancing these factors, the Minister must e-ercise her discretion in conformit! ;ith the values of the Charter. 549 It is esta'lished that s. 3 of the Charter does not protect e-pressive or associational activities that constitute violence2 5eegstra, supra. his Court has, it is true, given a 'road interpretation to freedom of e-pression, e-tending it, for e-ample, to hate speech and perhaps even threats of violence2 5eegstra, R$ v$ Gundel, 65::38 3 S.C.#. 9B5 (S.C.C.). At the same time, the Court has made plain that the restriction of such e-pression ma! 'e 1ustified under s. 5 of the Charter2 see 5eegstra, at pp. 9B3.9BB. he effect of s. 3(') and the 1ustification anal!sis under s. 5 of the Charter suggest that e-pression taking the form of violence or terror, or directed to;ards violence or terror, is unlikel! to find shelter in the guarantees of the Charter. 54< he Minister,s discretion to deport under s. =B of the Immigration Act is confined, on an! interpretation of the section, to persons ;ho have 'een engaged in terrorism or are mem'ers of terrorist organizations, and ;ho also pose a threat to the securit! of Canada. Eersons associated ;ith terrorism or terrorist organizations . the focus of this argument . are, on the approach to terrorism suggested a'ove, persons ;ho are or have 'een associated ;ith things directed at violence, if not violence itself. It follo;s that so long as the Minister e-ercises her discretion in accordance ;ith the Act, there ;ill 'e no s. 3(') or (d) Charter violation. 54: Suresh argues that s. 5: is so 'roadl! drafted that it has the potential to catch persons ;ho are mem'ers of or participate in the activities of a terrorist organization in ignorance of its terrorist activities. &e points out that man! organizations alleged to support terrorism also support humanitarian aid 'oth in Canada and a'road. Indeed, he argues that this is so of the * >, the association to ;hich he is alleged to 'elong. @hile it seems clear on the evidence that Suresh ;as not ignorant of the * >,s terrorist activities, he argues that it ma! 'e other;ise for others ;ho ;ere mem'ers or contri'uted to its activities. hus ;ithout kno;ingl! advocating terrorism and violence, the! ma! 'e found to 'e part of the organization and hence su'1ect to deportation. his, he argues, ;ould clearl! violate ss. 3(') and (d) of the Charter. 554 @e 'elieve that it ;as not the intention of Earliament to include in the s. 5: class of suspect persons those ;ho innocentl! contri'ute to or 'ecome mem'ers of terrorist organizations. his is supported '! the provision found at the end of s. 5:, ;hich e-empts from the s. 5: classes Apersons ;ho have satisfied the Minister that their admission ;ould not 'e detrimental to the national interest.A Section 5: must therefore 'e read as permitting a refugee to esta'lish that his or her continued residence in Canada ;ill not 33

'e detrimental to Canada, not;ithstanding proof that the person is associated ;ith or is a mem'er of a terrorist organization. his permits a refugee to esta'lish that the alleged association ;ith the terrorist group ;as innocent. In such case, the Minister, e-ercising her discretion constitutionall!, ;ould find that the refugee does not fall ;ithin the targeted s. 5: class of persons eligi'le for deportation on national securit! grounds. 555 It follo;s that the appellant has not esta'lished that s. =B,s reference to s. 5: un1ustifia'l! violates his Charter rights of freedom of e-pression and freedom of association. Moreover, since there is no s. 3 violation, there is no 'asis to interfere ;ith the s. D4.5 certificate that ;as issued in Ccto'er 5::=. 553 his 'rings us to Suresh,s final argument, that the process '! ;hich the Minister assessed the risk of torture he faces should he 'e returned to Sri *anka ;as fla;ed and violated his constitutional rights '! un1ustl! e-posing him to the risk of torture. 3. Are the procedures for deportation set out in the Immigration Act constitutionally valid? 55B his appeal re?uires us to determine the procedural protections to ;hich an individual is entitled under s. 9 of the Charter. In doing so, ;e find it helpful to consider the common la; approach to procedural fairness articulated '! *,&eureu-./u'0 +. in +a,er, supra. In ela'orating ;hat is re?uired '! ;a! of procedural protection under s. 9 of the Charter in cases of this kind, ;e ;ish to emphasize that our proposals should 'e applied in a manner sensitive to the conte-t of specific factual situations. @hat is important are the 'asic principles underl!ing these procedural protections. he principles of fundamental 1ustice of ;hich s. 9 speaks, though not identical to the dut! of fairness elucidated in +a,er, are the same principles underl!ing that dut!. As Erofessor &ogg has said, A he common la; rules 6of procedural fairness8 are in fact 'asic tenets of the legal s!stem, and the! have evolved in response to the same values and o'1ectives as s. 9A2 see Eeter @. &ogg, Constitutional 4a0 of Canada (looseleaf), vol. 3 (Scar'orough, Cnt.2 Cars;ell, 5::3) (updated 3444), at para. DD.34. In "ingh v$ Canada %&inister of 'mplo(ment ) Immigration* , 65:<=8 5 S.C.#. 599 (S.C.C.), at pp. 353.35B, @ilson +. recognized that the principles of fundamental 1ustice demand, at a minimum, compliance ;ith the common la; re?uirements of procedural fairness. Section 9 protects su'stantive as ;ell as procedural rights2 &otor ;ehicle Act %+ritish Colum2ia*, supra. Insofar as procedural rights are concerned, the common la; doctrine summarized in +a,er, supra, properl! recognizes the ingredients of fundamental 1ustice. 55D @e therefore find it appropriate to look to the factors discussed in +a,er in determining not onl! ;hether the common la; dut! of fairness has 'een met, 'ut also in deciding ;hether the safeguards provided satisf! the demands of s. 9. In sa!ing this, ;e emphasize that, as is the case for the su'stantive aspects of s. 9 in connection ;ith deportation to torture, ;e look to the common la; factors not as an end in themselves, 'ut to inform the s. 9 procedural anal!sis. At the end of the da!, the common la; is not constitutionalizedG it is used to inform the constitutional principles that appl! to this case. 55= @hat is re?uired '! the dut! of fairness . and therefore the principles of fundamental 1ustice . is that the issue at hand 'e decided in the conte-t of the statute involved and the rights affected2 +a,er, supra, at para. 35, 5night v$ Indian .ead "chool Division <o$ 19, 65::48 5 S.C.#. F=B (S.C.C.), at p. F<3, Old "t$ +oniface Residents Assn$ Inc$ v$ >innipeg %Cit(* , 65::48 B S.C.#. 5594 (S.C.C.), per Sopinka +. More specificall!, deciding ;hat procedural protections must 'e provided involves a consideration of the follo;ing factors2 (5) the nature of the decision made and the procedures follo;ed in making it, that is, A ,the closeness of the administrative process to the 1udicial process,, A (3) the role of the particular decision ;ithin the statutor! scheme, (B) the importance of the decision to the individual affected, (D) the legitimate e-pectations of the person challenging the decision ;here undertakings ;ere made concerning the procedure to 'e follo;ed, and (=) the choice of procedure made '! the agenc! itself2 +a,er, supra, at paras. 3B.39. his is not to sa! that other factors or considerations ma! not 'e involved. his list of factors is non.e-haustive in determining the common la; dut! of fairness2 +a,er, supra, at para. 3<. It must necessaril! 'e so in determining the procedures demanded '! the principles of fundamental 1ustice. 3B

55F he nature of the decision to deport 'ears some resem'lance to 1udicial proceedings. @hile the decision is of a serious nature and made '! an individual on the 'asis of evaluating and ;eighing risks, it is also a decision to ;hich discretion must attach. he Minister must evaluate not onl! the past actions of and present dangers to an individual under her consideration pursuant to s. =B, 'ut also the future 'ehaviour of that individual. @e conclude that the nature of the decision militates neither in favour of particularl! strong nor particularl! ;eak procedural safeguards. 559 he nature of the statutor! scheme suggests the need for strong procedural safeguards. @hile the procedures set up under s. D4.5 of the Immigration Act are e-tensive and aim to ensure that certificates under that section are issued fairl! and allo; for meaningful participation '! the person involved, there is a distur'ing lack of parit! 'et;een these protections and the lack of protections under s. =B(5)('). In the latter case, there is no provision for a hearing, no re?uirement of ;ritten or oral reasons, no right of appeal . no procedures at all, in fact. As *,&eureu-./u'0 +. stated in +a,er, supra,A 6g8reater procedural protections . . . ;ill 'e re?uired ;hen no appeal procedure is provided ;ithin the statute, or ;hen the decision is determinative of the issue and further re?uests cannot 'e su'mittedA (para. 3D). his is particularl! so ;here, as here, Earliament else;here in the Act has constructed fair and s!stematic procedures for similar measures. 55< he third factor re?uires us to consider the importance of the right affected. As discussed a'ove, the appellant,s interest in remaining in Canada is highl! significant, not onl! 'ecause of his status as a Convention refugee, 'ut also 'ecause of the risk of torture he ma! face on return to Sri *anka as a mem'er of the * >. he greater the effect on the life of the individual '! the decision, the greater the need for procedural protections to meet the common la; dut! of fairness and the re?uirements of fundamental 1ustice under s. 9 of the Charter. /eportation from Canada engages serious personal, financial and emotional conse?uences. It follo;s that this factor militates in favour of heightened procedural protections under s. =B(5)('). @here, as here, a person su'1ect to a s. =B(5) (') opinion ma! 'e su'1ected to torture, this factor re?uires even more su'stantial protections. 55: As discussed a'ove, Art. B of the CA , ;hich e-plicitl! prohi'its the deportation of persons to states ;here there are Asu'stantial groundsA for 'elieving that the person ;ould 'e A in danger of 'eing su'1ected to torture,A informs s. 9 of the Charter. It is onl! reasona'le that the same e-ecutive that 'ound itself to the CA intends to act in accordance ;ith the CA ,s plain meaning. "iven Canada,s commitment to the CA , ;e find that the appellant had the right to procedural safeguards, at the s. =B(5)(') stage of the proceedings. More particularl!, the phrase A su'stantial groundsA raises a dut! to afford an opportunit! to demonstrate and defend those grounds. 534 he final factor ;e consider is the choice of procedures made '! the agenc!. In this case, the Minister is free under the terms of the statute to choose ;hatever procedures she ;ishes in making a s. =B(5)(') decision. As noted a'ove, the Minister must 'e allo;ed considera'le discretion in evaluating future risk and securit! concerns. his factor also suggests a degree of deference to the Minister,s choice of procedures since Earliament has signaled the difficult! of the decision '! leaving to the Minister the choice of ho; 'est to make it. At the same time, this need for deference must 'e reconciled ;ith the elevated level of procedural protections mandated '! the serious situation of refugees like Suresh, ;ho, if deported, ma! face torture and violations of human rights in ;hich Canada can neither constitutionall! nor under its international treat! o'ligations 'e complicit. 535 @eighing these factors together ;ith all the circumstances, ;e are of the opinion that the procedural protections re?uired '! s. 9 in this case do not e-tend to the level of re?uiring the Minister to conduct a full oral hearing or a complete 1udicial process. &o;ever, the! re?uire more than the procedure re?uired '! the Act under s. =B(5)(') . that is, none . and the! re?uire more than Suresh received. 533 @e find that a person facing deportation to torture under s. =B(5)(') must 'e informed of the case to 'e met. Su'1ect to privilege or similar valid reasons for reduced disclosure, such as safeguarding confidential pu'lic securit! documents, this means that the material on ;hich the Minister is 'asing her decision must 'e provided to the individual, including memoranda such as Mr. 3D

"autier,s recommendation to the Minister. (urthermore, fundamental 1ustice re?uires that an opportunit! 'e provided to respond to the case presented to the Minister. @hile the Minister accepted ;ritten su'missions from the appellant in this case, in the a'sence of access to the materials she ;as receiving from her staff and on ;hich she 'ased much of her decision, Suresh and his counsel had no kno;ledge of ;hich factors the! specificall! needed to address, nor an! chance to correct an! factual inaccuracies or mischaracterizations. (undamental 1ustice re?uires that ;ritten su'missions 'e accepted from the su'1ect of the order after the su'1ect has 'een provided ;ith an opportunit! to e-amine the material 'eing used against him or her. he Minister must then consider these su'missions along ;ith the su'missions made '! the Minister,s staff. 53B %ot onl! must the refugee 'e informed of the case to 'e met, the refugee must also 'e given an opportunit! to challenge the information of the Minister ;here issues as to its validit! arise. hus, the refugee should 'e permitted to present evidence pursuant to s. 5: of the Act sho;ing that his or her continued presence in Canada ;ill not 'e detrimental to Canada, not;ithstanding evidence of association ;ith a terrorist organization. he same applies to the risk of torture on return. @here the Minister is rel!ing on ;ritten assurances from a foreign government that a person ;ould not 'e tortured, the refugee must 'e given an opportunit! to present evidence and make su'missions as to the value of such assurances. 53D It ma! 'e useful to comment further on assurances. A distinction ma! 'e dra;n 'et;een assurances given '! a state that it ;ill not appl! the death penalt! (through a legal process) and assurances '! a state that it ;ill not resort to torture (an illegal process). @e ;ould signal the difficult! in rel!ing too heavil! on assurances '! a state that it ;ill refrain from torture in the future ;hen it has engaged in illegal torture or allo;ed others to do so on its territor! in the past. his difficult! 'ecomes acute in cases ;here torture is inflicted not onl! ;ith the collusion 'ut through the impotence of the state in controlling the 'ehaviour of its officials. &ence, the need to distinguish 'et;een assurances regarding the death penalt! and assurances regarding torture. he former are easier to monitor and generall! more relia'le than the latter. 53= In evaluating assurances '! a foreign government, the Minister ma! also ;ish to take into account the human rights record of the government giving the assurances, the government,s record in compl!ing ;ith its assurances, and the capacit! of the government to fulfill the assurances, particularl! ;here there is dou't a'out the government,s a'ilit! to control its securit! forces. In addition, it must 'e remem'ered that 'efore 'ecoming a Convention refugee, the individual involved must esta'lish a ;ell.founded fear of persecution (although not necessaril! torture) if deported. 53F he Minister must provide ;ritten reasons for her decision. hese reasons must articulate and rationall! sustain a finding that there are no su'stantial grounds to 'elieve that the individual ;ho is the su'1ect of a s. =B(5)(') declaration ;ill 'e su'1ected to torture, e-ecution or other cruel or unusual treatment, so long as the person under consideration has raised those arguments. he reasons must also articulate ;h!, su'1ect to privilege or valid legal reasons for not disclosing detailed information, the Minister 'elieves the individual to 'e a danger to the securit! of Canada as re?uired '! the Act. In addition, the reasons must also emanate from the person making the decision, in this case the Minister, rather than take the form of advice or suggestion, such as the memorandum of Mr. "autier. Mr. "autier,s report, e-plaining to the Minister the position of Citizenship and Immigration Canada, is more like a prosecutor,s 'rief than a statement of reasons for a decision. 539 hese procedural protections need not 'e invoked in ever! case, as not ever! case of deportation of a Convention refugee under s. =B(5)(') ;ill involve risk to an individual,s fundamental right to 'e protected from torture or similar a'uses. It is for the refugee to esta'lish a threshold sho;ing that a risk of torture or similar a'use e-ists 'efore the Minister is o'liged to consider full! the possi'ilit!. his sho;ing need not 'e proof of the risk of torture to that person, 'ut the individual must make out a prima facie case that there ma( 'e a risk of torture upon deportation. If the refugee esta'lishes that torture is a real possi'ilit!, the Minister must provide the refugee ;ith all the relevant information and advice she intends to rel! on, provide the refugee an opportunit! to address that evidence in ;riting, and after considering all the relevant information, issue responsive ;ritten reasons. his is the minimum re?uired to meet the dut! of fairness and fulfill the re?uirements of fundamental 1ustice under s. 9 of the Charter. 3=

53< he Minister argues that even if the procedures used violated Suresh,s s. 9 rights, that violation is 1ustified as a reasona'le limit under s. 5 of the Charter. /espite the legitimate purpose of s. =B(5)(') of the Immigration Act in striking a 'alance 'et;een the need to fulfil Canada,s commitments ;ith respect to refugees and the maintenance of the safet! and good order of Canadian societ!, the lack of 'asic procedural protections provided to Suresh cannot 'e 1ustified '! s. 5 in our vie;. Malid o'1ectives do not, ;ithout more, suffice to 1ustif! limitations on rights. he limitations must 'e connected to the o'1ective and 'e proportional. &ere the connection is lacking. A valid purpose for e-cepting some Convention refugees from the protection of s. =B(5) of the Act does not 1ustif! the failure of the Minister to provide fair procedures ;here this e-ception involves a risk of torture upon deportation. %or do the alleged fundraising activities of Suresh rise to the level of e-ceptional conditions contemplated '! *amer +. in &otor ;ehicle Act %+ritish Colum2ia*, supra. Conse?uentl!, the issuance of a s. =B(5)(') opinion relating to him ;ithout the procedural protections mandated '! s. 9 is not 1ustified under s. 5. . Should the !inister"s order #e set aside and a new hearing ordered? 53: @e conclude that generall! to deport a refugee, ;here there are grounds to 'elieve that this ;ould su'1ect the refugee to a su'stantial risk of torture, ;ould unconstitutionall! violate the Charter,s s. 9 guarantee of life, li'ert! and securit! of the person. his said, ;e leave open the possi'ilit! that in an e-ceptional case such deportation might 'e 1ustified either in the 'alancing approach under ss. 9 or 5 of the Charter. @e re1ect the argument that the terms Adanger to the securit! of CanadaA and A terrorismA are unconstitutionall! vague. @e also re1ect the argument that s. =B, '! its reference to s. 5:, unconstitutionall! violates the Charter guarantees of freedom of e-pression and association. (inall!, ;e conclude that the procedures for deportation under the Immigration Act, ;hen applied in accordance ;ith the safeguards outlined in these reasons, are constitutional. 5B4 Appl!ing these conclusions in the instant case, ;e find that Suresh made a prima facie sho;ing that he might 'e tortured on return if e-pelled to Sri *anka. Accordingl!, he should have 'een provided ;ith the procedural safeguards necessar! to protect his s. 9 right not to 'e e-pelled to torture. &e ;as not provided the re?uired safeguards. @e therefore remand the case to the Minister for reconsideration in accordance ;ith the procedures set out in these reasons. V. Conclusion 5B5 he appeal is allo;ed ;ith costs throughout on a part! and part! 'asis. he constitutional ?uestions are ans;ered as follo;s2 5. /oes s. =B(5)(') of the Immigration Act, #.S.C. 5:<=, c. I.3, offend s. 9 of the Canadian Charter of Rights and Freedoms to the e-tent that it does not prohi'it the Minister of Citizenship and Immigration from removing a person from Canada to a countr! ;here the person ma! face a risk of tortureI Ans0er2 %o. 3. If the ans;er to ?uestion 5 is in the affirmative, is s. =B(5)(') of the Immigration Act a reasona'le limit ;ithin the meaning of s. 5 of the Charter on the rights of a person ;ho ma! face a risk of torture if removed to a particular countr!I Ans0er2 It is not necessar! to ans;er this ?uestion. B. /o ss. 5:(5)(e)(iv)(C), 5:(5)(f)(ii) and 5:(5)(f)(iii)()) of the Immigration Act infringe the freedoms guaranteed under ss. 3(') and 3(d) of the CharterI Ans0er2 Section 5:(5) of the Immigration Act, as incorporated '! s. =B(5), does not infringe ss. 3(') and 3(d) of the Charter. D. If the ans;er to ?uestion B is in the affirmative, are ss. 5:(5)(e)(iv)(C), 5:(5)(f)(ii) and 5:(5)(f)(iii)()) of the Immigration 3F

Act a reasona'le limit on the rights of a person ;ithin the meaning of s. 5 of the CharterI Ans0er2 It is not necessar! to ans;er this ?uestion. =. Is the term Adanger to the securit! of CanadaA found in s. =B(5)(') of the Immigration Act andKor the term AterrorismA found in s. 5:(5)(e) and (f) of the Immigration Act void for vagueness and therefore contrar! to the principles of fundamental 1ustice under s. 9 of the CharterI Ans0er2 %o. F. If the ans;er to ?uestion = is in the affirmative, are ss. =B(5)(') andKor s. 5:(5)(e) and (f) of the Immigration Act a reasona'le limit on the rights of a person ;ithin the meaning of s. 5 of the CharterI Ans0er2 It is not necessar! to ans;er this ?uestion. Appeal allo0ed$

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