Case Study: Singh v. Minister of Employment and Immigration, 1985
Public bureaucracies handle thousands upon thousands of claims for service in a routine and expeditious way. But once in a while a single case makes history. And when that happens it can fundamentally change the way a public bureaucracy does its work and upholds the law.
Satnam Singh was an Indian citizen of Sikh descent who supported the establishment of an independent Sikh homeland of Khalistan in Punjab. Facing political repression, Singh fled India in the late 1970s and came to Canada. Once in this country he applied for refugee status. The Immigration Appeal Board (IAB), a federal administrative tribunal established to adjudicate cases respecting immigration and refugee claims, heard his case and dismissed his application on the grounds that he was not a bona fide refugee in that he would not face political repression and his life would not be in jeopardy if he were returned to India.
The board ordered Singh to be deported back to India.
A Charter Challenge
In 1982, legal counsel for Singh challenged this decision on the grounds that the procedure used by the board was in violation of the new Charter of Rights and Freedoms, which became law in April 1982. Under the existing Immigration Act, an application for refugee status was made by filing appropriate papers, legal claims, and documentation. At no point, however, was there an oral hearing at which the applicant could present his or her case in person.
Singh’s lawyer argued that this procedure violated his client’s rights as established by Section 7 of the Charter. This provision reads: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
Singh’s lawyer asserted that Singh legitimately feared for his life and that the procedure used by the board to arrive at its deportation decision did not accord with the principles of fundamental justice. Only a full oral hearing could satisfy the Charter requirement.
Legal counsel for the federal government contested Singh’s claims on the ground that he had no standing before the courts in that he was not a citizen of Canada and, as such, was not entitled to make a claim under the Charter. Government lawyers argued that the rights found in the Charter applied only to Canadian citizens and landed immigrants.
Who was right? Note that the Immigration Act never allowed claimants to make applications for refugee status through full oral hearings. Such a procedure would place enormous administrative stress on the board, requiring it to hire more adjudicators and staff, legalizing its process, and dramatically slowing down its pace of decision making. Legitimate claims would be delayed and fraudulent claimants would not be dealt with as speedily. And Singh was clearly neither a Canadian citizen nor a landed immigrant. So by what right could he avail himself of Canadian Charter rights?
The Supreme Court Speaks
The case went all the way up to the Supreme Court of Canada, which had to interpret what the word “everyone” means in Section 7. Does it mean, in the context of the Charter, everyone who is a Canadian citizen or landed immigrant, or does it mean, in the broadest sense of the word, every living, breathing human being who finds himself or herself subject to Canadian law?
The court ruled in favour of Singh. In writing for the majority, Justice Bertha Wilson wrote, “I am prepared to accept that the term includes every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law.”
Once the court accepted that Singh had rights under the Charter, it then turned to address whether the procedures used by the board constituted a violation of Section 7 of the Charter. The court found that they did.
“No doubt,” asserted Justice Wilson, “considerable time and money can be saved by adopting administrative procedures which ignore the principles of fundamental justice but such an argument, in my view, misses the point.… The principles of natural justice and procedural fairness which have long been espoused by our courts, and the constitutional entrenchment of the principles of fundamental justice in S. 7 implicitly recognize that the balance of administrative convenience does not override the need to adhere to these principles.”
Changing the Rules
The court held that all refugee claimants had the right to one full oral hearing before the board, and the board would be required to hire the adjudicators and staff necessary to make this right a reality.
Through this decision Canada gained one of the most liberal refugee systems in the world. It also became one of the most expensive to operationalize, and the new Immigration and Refugee Determination Board had to hire hundreds of new officers. The process also became more time consuming. Refugee claims now take years to decide, rather than months.
The Singh decision remains controversial to this day. Some see it as a progressive response to the need to be considerate of legitimate refugees in need of protection. Others see it as marking the establishment of a bloated bureaucracy within which illegitimate refugee can game the system to gain improper admission into Canada.
And all of this drama occurred in a quasi-judicial administrative tribunal.
Sources: Satnam Singh et al v. Minister of Employment and Immigration [1985] 1 S.C.R. 177; Patrick J. Monahan, Constitutional Law, 3rd ed. (Toronto: Irwin Law, 2006), 426–28.
