# Canadian Refugee Procedure/Charter of Rights and Freedoms
## Charter of Rights and Freedoms

Selected provisions of the Canadian Charter of Rights and Freedoms applicable to refugee procedure follow:

### Divisions of the IRB have the competency to determine matters related to the Charter of Rights and Freedoms

Divisions of the IRB are endowed with the power to decide questions of law, and accordingly have the authority to resolve constitutional questions that are inextricably linked to matters properly before them. See: Canadian Refugee Procedure/RPD Rule 66 - Notice of Constitutional Question.

## Section 6: Mobility Rights
#### The right to enter, remain in and leave Canada is reserved for Canadian citizens

As per s. 6 of the Charter, the right to enter, remain in and leave Canada is reserved for Canadian citizens. This is consistent with the principle that Canada has full control over the admission (or not) of foreign nationals to its territory.

## Section 7: Legal Rights, including life, liberty and security of the person
### Deportation of a non-Citizen does not in and of itself infringe the right to liberty or security of the person

The deportation of a non-citizen does not in and of itself infringe the right to liberty guaranteed in section 7 of the Charter, because the liberty guaranteed in this section does not include "the freedom to be anywhere one wishes, regardless of the law." The answer is the same when security of the person is considered, as the Supreme Court of Canada held in Medovarsky v. Canada: "the most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in Canada...[and that]...deportation of a non-citizen in itself cannot implicate the liberty and security interests protected by s. 7 of the Canadian Charter of Rights and Freedoms". The answer to this may of course differ where an individual anticipates ill-treatment upon their return to their country of origin.

### Deportation of a parent of a Canadian-born child does not violate the child's section 7 rights

The Federal Court of Appeal held in Langner v. Canada that "the deportation of the parents of Canadian-born children violated the section 7 rights of neither the parents nor their children." This was so as the separation of parents from their children was the result of the parents’ decision not to take their children with them when removed from Canada.

### An individual is not facing deportation at the time of their hearing before the RPD or RAD

At times, applicants argue that a decision of a Division violates sections 7 of the Charter as they have a real and justifiable fear of torture or inhumane or degrading treatment upon return to their country. As the Federal Court held in Singh v. Canada, individuals before the RPD or RAD are not currently facing deportation, and so their arguments that deportation would violate the Charter are premature. Such arguments are best addressed at the stage of later proceedings where they can apply to stay their deportation.
This principle applies to exclusion and inadmissibility from the refugee regime as well. In the words of the Federal Court of Appeal, as the determination of exclusion or inadmissibility does not engage section 7, it necessarily follows that section 7 is not engaged by the denial of a section 96 risk assessment. A non-citizen is not legally entitled ‘to be recognized as a political refugee under either the common law or any international convention to which Canada has adhered’.

### The right to liberty relates to the right to freedom of movement in the Refugee Convention

Section 7 of the Canadian Charter of Rights and Freedoms specifies that everyone has the right to liberty. Refugee Convention Article 31(1) states that "The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence". The Refugee Convention then protects such refugees from restrictions on their freedom of movement ‘other than those which are necessary’, and only ‘until their status in the country is regularized or they obtain admission into another country’.

### Liberty is at stake in a detention review under the IRPA

Since liberty is at stake in a detention review under the IRPA, there is no issue that section 7 of the Charter is engaged where an individual is having a hearing before the Immigration Division about their detention.

## Section 8: Unreasonable search or seizure
### Searches at the border

Many refugee claims make a claim at a port of entry, at which point a Canada Border Services Agency officer may search their person or belongings in some cases. The Supreme Court of Canada has held that routine searches under the Customs Act, such as searches of suitcases, do not require reasonable grounds and are consistent with section 8 of the Charter. More intrusive searches, such as strip searches, require reasonable grounds: R v Simmons. The Customs Act cannot be read to permit broad, suspicionless searches of electronic devices during routine border screening as an unlimited and suspicionless search of a device would breach the Charter. Similarly, while some provisions of the IRPA authorize searches at the time that an individual makes a refugee claim, searches solely to look for criminality are not permitted. See also: Canadian Refugee Procedure/140 - Seizure.

## Section 10: Rights on arrest or detention
### Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right

See: Canadian Refugee Procedure/RPD Rules 14-16 - Counsel of Record#Canadian Charter of Rights and Freedoms.

## Section 12: Cruel and unusual treatment or punishment
### An individual is not facing deportation at the time of their hearing before the RPD or RAD

At times appellants will argue that a failure to accept their claim means that the RPD or RAD's decision is in violation of section 12 of the Charter. For details on how such arguments have been treated, see: Canadian Refugee Procedure/Charter of Rights and Freedoms#An individual is not facing deportation at the time of their hearing before the Division.

## Section 14: Right to the assistance of an interpreter
### Commentary

For commentary, see the section below on sections 14 and 16-22 of the Charter.

## Section 15: Equality rights
### It is generally the responsibility of the parties to raise section 15 Charter issues, not the tribunal

The Federal Court of Appeal has cautioned that an administrative tribunal should not raise a new section 15 Charter issue on its own initiative.

### Section 15 grounds and the constitutionality of IRPA provisions

Many section 15 challenges have been advanced against particular provisions of the IRPA. One object of challenge has been the provisions in the IRPA which restrict appeals to those who entered Canada pursuant to exemptions to the Safe Third Country Agreement. In Rodriguez v. Canada, the court held that the applicant had not established that a refugee claimant’s choices with respect to his or her travel into Canada is a personal characteristic that is immutable or the basis of historical prejudices or stereotypes within the meaning of section 15. See: Canadian Refugee Procedure/110-111 - Appeal to Refugee Appeal Division#110(2)(d): No appeal may be made by claimants who are allowed to make a refugee claim pursuant to an exception to the Safe Third Country Agreement.

### Deportation of a permanent resident is not a breach of s. 15 based on citizenship

In Canada v Chiarelli, Sopinka J. held that deportation of a permanent resident was not a breach of s. 15 based on citizenship.

## Sections 14 a that nd 16-22: Official Languages of Canada
### RPD Rules concerning language of proceedings, interpreters, and language of documents

For discussion of these provisions, see the commentary to RPD Rules 17 and 18, which concern language of proceedings (Canadian Refugee Procedure/Language of Proceedings), RPD Rule 19, which concerns interpreters (Canadian Refugee Procedure/Interpreters), and RPD Rule 32 which concerns language of documents (Canadian Refugee Procedure/Documents#RPD Rule 32 - Language of Documents), and RPD Rule 67 and this commentary on the language of decisions (Canadian Refugee Procedure/Decisions#In what language or languages must the reasons for decisions be made available where they are publicly released?).

## References

* ↑ Torres Victoria v. Canada (Public Safety and Emergency Preparedness), 2011 FC 1392, para. 38.
* ↑ Lapaix v. Canada (Citizenship and Immigration), 2025 FC 111 (CanLII), at para 39, <https://canlii.ca/t/k8z50#par39>, retrieved on 2025-01-28.
* ↑ Williams v Canada (Minister of Citizenship and Immigration), [1997] 2 FC 646 (CA) at para 24, as cited in Martine Valois and Henri Barbeau, The Federal Courts and Immigration and Refugee Law, in Martine Valois, et. al., eds., The Federal Court of Appeal and the Federal Court: 50 Years of History, Toronto: Irwin Law, 2021, at page 325.
* ↑ Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51 (CanLII), [2005] 2 SCR 539, <https://canlii.ca/t/1lpk5>, retrieved on 2021-12-19.
* ↑ Langner v. Canada (Minister of Employment and Immigration) (1995), 184 N.R. 230 (F.C.A.), cited in Idahosa v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FCA 418, [2009] 4 F.C.R. 293, at para. 49.
* ↑ Singh v. Canada (Citizenship and Immigration), 2021 FC 341 (CanLII), at para 18, <https://canlii.ca/t/jhcgn#par18>, retrieved on 2023-08-23
* ↑ Tapambwa v Canada (Citizenship and Immigration), 2019 FCA 34.
* ↑ Nguyen v Canada (Minister of Employment and Immigration), [1993] FCJ No 47.
* ↑ Refugee Convention, art 31(2).
* ↑ Hemond v. Canada (Citizenship and Immigration), 2024 FC 1980 (CanLII), at para 52, <https://canlii.ca/t/k88qw#par52>, retrieved on 2024-12-24.
* ↑ R v Al Askari, 2021 ABCA 204 (CanLII), at para 30, <https://canlii.ca/t/jg55r#par30>, retrieved on 2021-09-06.
* ↑ R v Al Askari, 2021 ABCA 204 (CanLII), at para 33, <https://canlii.ca/t/jg55r#par33>, retrieved on 2021-09-06.
* ↑ R v Al Askari, 2021 ABCA 204 (CanLII), at para 58, <https://canlii.ca/t/jg55r#par58>, retrieved on 2021-09-06.
* ↑ R v Al Askari, 2021 ABCA 204 (CanLII), at para 116, <https://canlii.ca/t/jg55r#par116>, retrieved on 2021-09-06.
* ↑ e.g. Davila Valdez c. Canada (Citoyenneté et Immigration), 2022 CF 596 (CanLII), au para 21, <https://canlii.ca/t/jnwwq#par21>, consulté le 2022-05-13.
* ↑ Canada (Public Safety and Emergency Preparedness) v. Ewen, 2023 FCA 225 (CanLII), at para 25, <https://canlii.ca/t/k165v#par25>, retrieved on 2023-11-20.
* ↑ Medina Rodriguez v. Canada (Citizenship and Immigration), 2024 FC 401 (CanLII), at para 39, <https://canlii.ca/t/k3b91#par39>, retrieved on 2024-05-18.
* ↑ Canada (Minister of Employment and Immigration) v Chiarelli, 1992 CanLII 87 (SCC), [1992] 1 S.C.R. 711, at p. 736.