Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053
Abdul Rassoul Dehghani Appellant
v.
The Minister of Employment and Immigration Respondent
and
The Canadian Council of Refugees Intervener
Indexed as: Dehghani v. Canada (Minister of Employment and Immigration)
1992: December 2; 1993: March 25.
Present: Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.
on appeal from the federal court of appeal
Constitutional law ‑‑ Charter of Rights ‑‑ Right to counsel ‑‑ Examinations at port of entry by immigration officer ‑‑ Convention refugee claimants ‑‑ Secondary examination ‑‑ Whether claimant detained and having right to counsel under s. 10(b) of Canadian Charter of Rights and Freedoms.
Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Right to counsel ‑‑ Examinations at port of entry by immigration officer ‑‑ Convention refugee claimants ‑‑ Secondary examination ‑‑ Whether claimant having right to counsel under s. 7 of Canadian Charter of Rights and Freedoms.
Immigration ‑‑ Examinations at port of entry by immigration officer ‑‑ Convention refugee claimants ‑‑ Secondary examination ‑‑ Whether claimant having right to counsel under ss. 7 or 10(b) of Canadian Charter of Rights and Freedoms.
The appellant, a citizen of Iran, arrived in Canada without valid travel or identity documents and claimed Convention refugee status. At the airport, he entered a primary examination line and was subsequently referred to a secondary examination before an immigration officer in another part of the airport, where he waited approximately four hours before the examination took place. In answering questions as to his claim to Convention refugee status, the appellant omitted important factual details. At the conclusion of the secondary examination, he was advised of his right to counsel to help him put forward his refugee claim. Following an inquiry, an adjudicator and an immigration refugee board member concluded that he did not have a credible basis for his refugee claim and issued an exclusion order. The Federal Court of Appeal dismissed the appellant's application to review and set aside the decision under s. 28 of the Federal Court Act and upheld the order. The majority of the court held that the appellant had not been "detained" in a manner contemplated by s. 10(b) of the Canadian Charter of Rights and Freedoms prior to or during the secondary examination at the airport and, accordingly, that no obligation to inform him of his right to counsel arose. This appeal raises two issues: (1) whether the appellant was detained within the meaning of s. 10(b) of the Charter during his secondary examination at the airport; and (2) whether the appellant's rights under s. 7 of the Charter were infringed by the failure to provide him with counsel at the port of entry.
Held: The appeal should be dismissed.
(1) Section 10(b)
A secondary examination by an immigration officer at a port of entry does not constitute a "detention" within the meaning of s. 10(b) of the Charter. The element of state compulsion is insufficient. The appellant's questioning in the secondary examination was a routine part of the general screening process for persons seeking entry to Canada. The questioning was purely for the purpose of processing his application for entry and determining the appropriate procedures which should be invoked in order to deal with his application for Convention refugee status. Travellers seeking to cross national boundaries fully expect to be subject to a screening process. In this case, there was no action on the part of the immigration authorities to indicate that the restriction on the appellant's freedom had gone beyond that required for the processing of his application for entry and had become a restraint of liberty. Further, there is no stigma associated with a referral to a secondary examination. The absence of stigma is another factor indicating that no detention of constitutional consequence occurs during routine questioning.
It would be unreasonable to expect the screening process for all persons seeking entry into Canada to take place in the primary examination line. For those persons who cannot immediately produce documentation indicating their right of entry, the screening process requires more time and a referral to a secondary examination is therefore necessary. The secondary examination is a continuation or completion of the initial examination which takes place in the primary inspection line and remains a routine part of the general screening process.
Neither the existence of a statutory duty to answer the questions posed by the immigration officer nor the existence of criminal penalties for both the failure to answer questions and knowingly making a false or misleading statement necessitates the conclusion that the appellant was detained within the meaning of s. 10(b). These provisions are both logically and rationally connected to the role of immigration officials in examining those persons seeking to enter the country. Indeed, they are required to ensure that border examinations are taken seriously and are effective.
(2) Section 7
Assuming that s. 7 of the Charter is engaged in the circumstances of this case, the principles of fundamental justice do not require that the appellant be provided with counsel at the pre‑inquiry or pre‑hearing stage of the refugee claim determination process. While the right to counsel under s. 7 may apply in other cases besides those which are encompassed by s. 10(b), in an immigration examination for routine information‑gathering purposes, the right to counsel does not extend beyond those circumstances of arrest or detention described in s. 10(b). An inquiry to determine whether the appellant's claim to Convention refugee status had a credible basis was held and, pursuant to s. 30(1) of the Immigration Act, the appellant was informed of his right to counsel. He was in fact represented by counsel during the credible basis inquiry and had the opportunity to state his case and know the case he had to meet. The principles of fundamental justice do not include a right to counsel for routine information gathering and to allow counsel at port of entry interviews would constitute unnecessary duplication.
Cases Cited
Applied: R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613; R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495, aff'g (1984), 1984 CanLII 3558 (ON CA), 11 C.C.C. (3d) 193 (Ont. C.A.); R. v. Kwok (1986), 1986 CanLII 4726 (ON CA), 31 C.C.C. (3d) 196; referred to: R. v. Jacoy, 1988 CanLII 13 (SCC), [1988] 2 S.C.R. 548; R. v. Rodenbush (1985), 1985 CanLII 649 (BC CA), 21 C.C.C. (3d) 423; Chiarelli v. Canada (Minister of Employment and Immigration), 1992 CanLII 87 (SCC), [1992] 1 S.C.R. 711; Kindler v. Canada (Minister of Justice), 1991 CanLII 78 (SCC), [1991] 2 S.C.R. 779; Singh v. Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 S.C.R. 177; Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 CanLII 105 (SCC), [1990] 1 S.C.R. 1123; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 CanLII 135 (SCC), [1990] 1 S.C.R. 425; R. v. Jones, 1986 CanLII 32 (SCC), [1986] 2 S.C.R. 284; R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309; Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), 1989 CanLII 44 (SCC), [1989] 2 S.C.R. 879; Knight v. Indian Head School Division No. 19, 1990 CanLII 138 (SCC), [1990] 1 S.C.R. 653; Pearlman v. Manitoba Law Society Judicial Committee, 1991 CanLII 26 (SCC), [1991] 2 S.C.R. 869; R. v. Beare, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387; Montfort v. Minister of Employment and Immigration, 1979 CanLII 4041 (FCA), [1980] 1 F.C. 478; R. v. Généreux, [1992] 1 S.C.R. 310; R. v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1, 7, 8 to 14, 10(b), 24(2).
Federal Court Act, R.S.C., 1985, c. F‑7, s. 28.
Immigration Act, R.S.C., 1985, c. I‑2, ss. 12, 19 [am. c. 30 (3rd Supp.), s. 3], 20, 23(3), (4), 30(1) [rep. & sub. c. 28 (4th Supp.), s. 9], 43(1) [idem, s. 14], 94(1)(g) [idem, s. 24], (h) [idem].
APPEAL from a judgment of the Federal Court of Appeal, 1990 CanLII 8084 (FCA), [1990] 3 F.C. 587, 72 D.L.R. (4th) 58, 113 N.R. 382, 1 C.R.R. (2d) 253, 11 Imm. L.R. (2d) 51, dismissing appellant's application under s. 28 of the Federal Court Act to review and set aside the decision of an adjudicator and an Immigration Refugee Board member. Appeal dismissed.
Pia Zambelli and Barbara Jackman, for the appellant.
J. E. Thompson, Q.C., and Donald A. MacIntosh, for the respondent.
David Matas, for the intervener.
//Iacobucci J.//
The judgment of the Court was delivered by
Iacobucci J. -- This appeal concerns the scope of ss. 10(b) and 7 of the Canadian Charter of Rights and Freedoms as they apply to refugee claimants entering Canada. Specifically, the appeal raises the issue of whether a secondary examination by an immigration officer at a port of entry constitutes a "detention" within the meaning of s. 10(b) of the Charter. In addition, the question of the right to counsel under s. 7 of the Charter is raised.
I. Background
The appellant is a citizen of Iran. He arrived in Canada on May 13, 1989 without valid travel or identity documents, and claimed Convention refugee status. He did not understand English, the language in which the procedures in issue were conducted, and was provided with an interpreter.
When the appellant arrived at Pearson International Airport in Toronto, he entered a primary examination line. From there, he was referred to a secondary examination before an immigration officer in another part of the airport, and waited approximately four hours before this examination took place. He was not advised of a right to counsel at any time during the proceedings. The immigration officer conducting the secondary examination made extensive written notes. During the examination, the appellant was asked questions relating to his admissibility under s. 19 of the Immigration Act, R.S.C., 1985, c. I‑2, which sets out those classes whose members shall not be granted admission to Canada, such as persons who are a danger to public health or safety or persons who have been convicted of a serious criminal offence. The appellant was also questioned as to his claim to Convention refugee status. In answering these questions, the appellant omitted important factual details concerning the grounds of his claim to refugee status. In addition, in response to a question about the basis for his refugee claim, the appellant stated that he wanted to work for himself and the future of his children who want to study.
With regard to his claim to Convention refugee status, the appellant later claimed that he suffered persecution in Iran for his royalist beliefs and for his support for the Shah of Iran. Because of his support of the royalist cause, the appellant stated that he and his family were investigated and driven into hiding, one of his daughters was arrested and executed, and the appellant's business was confiscated. For these reasons, he fled Iran for Turkey in April 1989, and this was the last time he saw his family. However, the appellant omitted to tell these facts to the immigration officer in the secondary examination.
The immigration officer who conducted the secondary examination concluded that the appellant could not be admitted to Canada under s. 19 of the Immigration Act. At the conclusion of the secondary examination, the appellant was advised of his right to counsel to help him put forward his refugee claim.
A so-called credible basis inquiry before a Canada Employment and Immigration Commission Tribunal (the Tribunal) was therefore convened to consider the appellant's admissibility to Canada and whether a full hearing before the Immigration and Refugee Board of Canada into the merits of his claim to Convention refugee status should be ordered. The notes taken by the immigration officer who conducted the secondary examination were entered as evidence at the inquiry. The Tribunal stated that the appellant was not a credible witness. The appellant was found to be inadmissible and not deserving of a determination of his claim by the Refugee Division, because his claim to refugee status did not have a credible basis. The appellant was therefore ordered excluded from Canada.
The appellant obtained leave to apply to the Federal Court of Appeal for judicial review of the exclusion order. He challenged the validity of that order on the grounds that it was obtained through the use of evidence that was obtained in violation of his right to counsel under s. 10(b) of the Charter. His application was dismissed and the exclusion order was upheld by the majority of the Court of Appeal.
II. Relevant Statutory and Charter Provisions
Immigration Act, R.S.C., 1985, c. I-2
- (1) Every person seeking to come into Canada shall appear before an immigration officer at a port of entry, or at such other place as may be designated by a senior immigration officer, for examination to determine whether that person is a person who shall be allowed to come into Canada or may be granted admission.
(3) Where an immigration officer commences an examination referred to in subsection (1), the officer may, in such circumstances as the officer deems proper,
(a) adjourn the examination and refer the person being examined to another immigration officer for completion of the examination; and
(b) detain or make an order to detain the person.
(4) Every person shall answer truthfully all questions put to that person by an immigration officer at an examination and shall produce such documentation as may be required by the immigration officer for the purpose of establishing whether the person shall be allowed to come into Canada or may be granted admission.
- (1) Where an immigration officer is of the opinion that it would or may be contrary to this Act or the regulations to grant admission to a person examined by the officer or otherwise let that person come into Canada, the officer may detain or make an order to detain that person and shall
(a) subject to subsection (2), report that person in writing to a senior immigration officer; or
(b) allow that person to leave Canada forthwith.
- ...
(3) Where a senior immigration officer does not let a person come into Canada pursuant to section 22 and does not grant admission to or otherwise authorize the person to come into Canada pursuant to subsection (1) or (2), the officer may, subject to subsections (4) and (6),
(a) detain or make an order to detain the person; or
(b) release the person from detention subject to such terms and conditions as the officer deems appropriate in the circumstances, including the payment of a reasonable security deposit or the posting of a performance bond.
(4) In the cases described in subsection (3), the senior immigration officer shall
(a) subject to subsection (5), cause an inquiry to be held concerning the person referred to in subsection (3) as soon as is reasonably practicable; or
(b) allow that person to leave Canada forthwith.
(1) Every person with respect to whom an inquiry is to be held shall be informed of the person's right to obtain the services of a barrister or solicitor or other counsel and to be represented by any such counsel at the inquiry and, subject to subsections (2) and (3), shall be given a reasonable opportunity, if the person so desires and at the person's own expense, to obtain counsel.
(1) Before any substantive evidence is given at an inquiry, the adjudicator shall give the person who is the subject of the inquiry an opportunity to indicate whether or not the person claims to be a Convention refugee.
(1) Every person is guilty of an offence who
(g) refuses to be sworn or to affirm or declare, as the case may be, or to answer a question put to the person at an examination or inquiry under this Act or a hearing held pursuant to subsection 44(3);
(h) knowingly makes any false or misleading statement at an examination or inquiry under this Act or a hearing held pursuant to subsection 44(3) or in connection with the admission of any person or the application for admission by any person;
Canadian Charter of Rights and Freedoms
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.
Everyone has the right on arrest or detention
(b) to retain and instruct counsel without delay and to be informed of that right;
III. Judgment of the Federal Court of Appeal, 1990 CanLII 13010 (FCA), [1990] 3 F.C. 587
Mahoney J.A. (Pratte J.A. concurring)
Mahoney J.A. held that the appellant had not been detained in a manner contemplated by s. 10(b) of the Charter prior to or during the secondary examination, and accordingly, that no obligation to inform him of his right to counsel arose. Mahoney J.A. noted that everyone, including a Canadian citizen, who seeks admission to Canada at a port of entry is detained until an immigration officer determines that it would not be contrary to the Immigration Act for that person to enter Canada. What distinguishes all such detainees from a detainee in the constitutional sense, Mahoney J.A. argued, is the fact that such persons have not been put in that position by an agent of the state assuming control over their movements, but by their own actions in seeking admission to Canada.
Mahoney J.A. emphasized the fact that the immigration officer has a duty to enquire whether a person claiming to be a Convention refugee qualifies for admission. The court examined the questioning of the appellant and concluded that the secondary examination was routine, and was simply an extension of the routine questioning that took place at the primary examination line. Mahoney J.A. held that the appellant's state of mind at the time could not change the essentially routine character of the examination, which was in no way analogous to an inquisitorial strip search which would constitute a detention for constitutional purposes. Further, the delay in being interviewed did not, according to the court, constitute a factor attributable to a detention (at p. 608):
As I understand the terminology, the primary examination occurred, in this case, at what the [appellant] described as a "little booth". That, I take it, was one of the kiosks before which all deplaning international passengers line up. It seems clearly unreasonable to expect that the required examination of a Convention refugee claimant by an immigration officer could ever be satisfactorily conducted at the head of the primary examination line. The mere reference of such a person to a secondary examination and a delay in beginning it cannot, in my view, themselves lead to the conclusion that the person is detained in the constitutional sense. A delay of several hours may be attributable only to the numbers of persons requiring examination and officers available to do it or to the need for translation.
Finally, Mahoney J.A. observed that the appellant was not, at the secondary examination, cajoled into making admissions which led to the subsequent finding that his claim lacked a credible basis. Rather, it was the omission of certain facts by the appellant at the examination which led to the adverse findings of credibility.
As a result, Mahoney J.A. held that no "detention" in the sense contemplated by s. 10(b) of the Charter had occurred. Therefore, there was no obligation to advise the appellant of his right to counsel prior to the secondary examination and thus no violation of his s. 10(b) rights.
Heald J.A. (dissenting)
Heald J.A. took a very different view from that of the majority, concluding that the appellant had been "detained" within the meaning of s. 10(b). He emphasized the portions of Le Dain J.'s judgment in R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613, dealing with psychological compulsion as a form of detention for the purposes of s. 10(b), and concluded that the rationale of those comments applied to the appellant's case. The immigration officer who conducted the secondary examination, Heald J.A stated, was an agent of the state who assumed control over the appellant's movements; the appellant was not free to leave the room and go elsewhere. The interrogation and the appellant's answers became an integral part of the inquiry under the Immigration Act which resulted in the unconditional exclusion order. The appellant's uncontradicted affidavit evidence indicated that he had acquiesced in the deprivation of his liberty since he reasonably believed that he had no choice to do otherwise. These factors led Heald J.A. to conclude that, under Therens, the appellant was "detained" within the meaning of s. 10(b).
Heald J.A. also held that this Court's decision in R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495, supported the appellant's claim. Heald J.A. rejected the majority's suggestion that the secondary examination was merely another form of routine questioning akin to that which every traveller is required to undergo upon seeking to enter Canada, and was held in Simmons not to constitute a detention in the constitutional sense. Rather, Heald J.A. found the appellant's situation to be analogous to the inquisitorial strip search which the accused in Simmons was forced to undergo and which Dickson C.J. in that case held to give rise to a s. 10(b) detention. Like the accused in Simmons, the appellant was taken out of the normal course and required to submit to interrogation; there was a "reasonable perception of suspension of freedom of choice" and an "involuntary restraint of liberty" as in Simmons.
Following Singh v. Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 S.C.R. 177, at p. 202, Heald J.A. held that the word "Everyone" in s. 10(b) must include claimants for refugee status who are physically present in Canada. Heald J.A. stated that the rationale for s. 10(b) protection was just as compelling in this type of situation as in the criminal context: "In the case of a refugee claimant such as this claimant, assuming that even a portion of his factual assertions are true, the consequences of his enforced return to Iran could well include incarceration, torture and even death" (p. 600). Accordingly, Heald J.A. concluded that the appellant had been detained for the purposes of s. 10(b).
Heald J.A. further held that the appellant's s. 10(b) right to counsel had been violated. The violation was a substantive one since the examining officer's notes obtained in violation of the appellant's s. 10(b) rights were used at the ensuing inquiry to impeach the appellant's credibility. Heald J.A. concluded that, had the appellant had the assistance of counsel before and during the secondary examination and thus had an informed explanation as to the scheme of the refugee process under Canadian immigration law, it was likely that the entire character of the proceedings would have been altered.
Heald J.A. concluded his analysis of the s. 10(b) issue in the following manner (at p. 601):
Since the Supreme Court of Canada has indicated in Therens, supra, that the jurisprudence relative to police investigations in criminal matters may be extended to other agents of the State and since the majority of the Court in Simmons, supra has applied the Therens test to searches at ports of entry pursuant to the Customs Act, I think that an equally persuasive argument can be made in support of the right to counsel for refugee claimants at ports of entry. In my opinion, the circumstances at bar as summarized herein strongly support such a conclusion.
Heald J.A. concluded that s. 1 of the Charter did not come into play in this case, since the Immigration Act neither expressly nor by necessary implication required the deprivation of the right to counsel. Thus, there was no limit "prescribed by law" on which to found a s. 1 analysis.
With respect to the issue of the appropriate remedy for the Charter violation, Heald J.A. noted that counsel for the appellant did not request the exclusion of the notes, nor make any submissions in support of such a request. Therefore, Heald J.A. did not consider the question as to whether the court had the power on an application under s. 28 of the Federal Court Act, R.S.C., 1985, c. F‑7, to order the exclusion of this evidence in this case, but stated that the decision of the credible basis tribunal should be set aside as well as the exclusion order which followed.
IV. Issues
The appellant raises two issues on this appeal. First, was the appellant detained in the sense contemplated by s. 10(b) of the Charter during his secondary examination at the airport, and did that examination therefore violate his right to counsel? In the alternative, was the appellant's right not to be deprived of his right to life, liberty and security of the person except in accordance with the principles of fundamental justice infringed by the failure to provide him with counsel at the port of entry?
V. Analysis
- Was the Appellant Detained Within the Meaning of Section 10(b) of the Charter?
The starting point in determining whether or not a "detention" has occurred for the purposes of s. 10(b) is the judgment of this Court in Therens, supra, at pp. 641-42:
The purpose of s. 10 of the Charter is to ensure that in certain situations a person is made aware of the right to counsel and is permitted to retain and instruct counsel without delay. The situations specified by s. 10 -- arrest and detention -- are obviously not the only ones in which a person may reasonably require the assistance of counsel, but they are situations in which the restraint of liberty might otherwise effectively prevent access to counsel or induce a person to assume that he or she is unable to retain and instruct counsel. In its use of the word "detention", s. 10 of the Charter is directed to a restraint of liberty other than arrest in which a person may reasonably require the assistance of counsel but might be prevented or impeded from retaining and instructing counsel without delay but for the constitutional guarantee.
In addition to the case of deprivation of liberty by physical constraint, there is in my opinion a detention within s. 10 of the Charter when a police officer or other agent of the state assumes control over the movement of a person by a demand or direction which may have significant legal consequence and which prevents or impedes access to counsel.
. . . There can be no doubt that there must be some form of compulsion or coercion to constitute an interference with liberty or freedom of action that amounts to a detention within the meaning of s. 10 of the Charter.
Le Dain J. went on to hold that the form of compulsion need not be physical. He stated, at p. 644:
[I]t is not realistic, as a general rule, to regard compliance with a demand or direction by a police officer as truly voluntary, in the sense that the citizen feels that he or she has the choice to obey or not, even where there is in fact a lack of statutory or common law authority for the demand or direction and therefore an absence of criminal liability for failure to comply with it. Most citizens are not aware of the precise legal limits of police authority. Rather than risk the application of physical force or prosecution for wilful obstruction, the reasonable person is likely to err on the side of caution, assume lawful authority and comply with the demand. The element of psychological compulsion, in the form of a reasonable perception of suspension of freedom of choice, is enough to make the restraint of liberty involuntary. Detention may be effected without the application or threat of application of physical restraint if the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist.
The question raised by the present case is whether, in the context of immigration and refugee screenings at Canadian ports of entry, the element of state compulsion is sufficient to constitute "detention" for the purposes of s. 10(b).
The decision in Therens was applied by the British Columbia Court of Appeal in the context of customs inspections in R. v. Rodenbush (1985), 1985 CanLII 649 (BC CA), 21 C.C.C. (3d) 423, at p. 426. In that case, customs officials had been alerted by American authorities regarding the two accused. When the accused stopped at the border, their car was searched, their suitcases taken inside for further examination, and the accused were taken into an inspection room to await the report on the suitcases. The Court of Appeal held that following Therens, "there is no doubt in this case that when the two accused were asked to enter an interview room by customs officials they were "detained" within the meaning of s. 10" of the Charter.
Therens was also applied in R. v. Kwok (1986), 1986 CanLII 4726 (ON CA), 31 C.C.C. (3d) 196 (Ont. C.A.). The accused was interviewed by Canadian immigration authorities at Pearson International Airport. The immigration officer who interviewed the accused to determine if he was a genuine visitor to Canada doubted this, and prepared a report pursuant to s. 20 of the Immigration Act for the acting senior immigration officer. This officer reviewed the report and concluded that the accused should be detained pending an inquiry to determine whether he could be admitted to Canada. A similar conclusion was reached with respect to a co-accused, and a substantial amount of heroin was later found in the luggage of the co-accused during a customs search. The accused and his co-accused were then arrested and advised of their right to counsel.
Finlayson J.A., for the Ontario Court of Appeal, relied on this Court's decision in Therens and the decision in R. v. Simmons (1984), 1984 CanLII 3558 (ON CA), 11 C.C.C. (3d) 193 (Ont. C.A.), and noted at p. 207 that "throughout the immigration and customs procedures, a person is under the restraint that he will not be allowed to enter Canada unless there is satisfactory compliance with the questioning and the searches provided for by the relevant statutes such as the Customs Act . . . and the Immigration Act". Finlayson J.A. concluded that such restraints do not by themselves constitute a detention in the constitutional sense.
The Court of Appeal rejected the Crown's concession that the accused had been detained by the senior immigration officer as soon as that officer decided to detain him under the Immigration Act. Finlayson J.A. stated at p. 207 that "[s]urely there must be some action on the part of the immigration authorities to indicate that the restriction on an immigrant's freedom has gone beyond that required for the processing of his application for entry and has become a restraint of liberty such as that contemplated by Le Dain J." in Therens, supra. The court held that "the [accused] was detained when [the senior immigration officer], having filled out the detained convocation letter, invited the [accused] and [his co-accused] into his office with the intention of advising them of his decision to detain them". Finlayson J.A. apparently relied on the combination of a decision by the senior immigration officer to detain, and his action in calling the accused into his office to determine the point at which a detention had occurred for constitutional purposes.
This Court further considered the meaning of s. 10(b) "detention" in the case of Simmons, supra, in the context of customs inspections of travellers upon their arrival at Canadian ports of entry. In Simmons, the accused was routinely questioned by a customs officer, and was referred for a secondary inspection because she appeared overly nervous. The secondary inspector became suspicious and obtained permission from the Customs Superintendent to search the accused, who was taken to a search room and strip searched. Cannabis resin was found in bandages taped to the accused.
Dickson C.J. stated at p. 517 that there are three distinct types of border search which carry different constitutional implications:
First is the routine of questioning which every traveller undergoes at a port of entry, accompanied in some cases by a search of baggage and perhaps a pat or frisk of outer clothing. No stigma is attached to being one of the thousands of travellers who are daily routinely checked in that manner upon entry to Canada and no constitutional issues are raised. It would be absurd to suggest that a person in such circumstances is detained in a constitutional sense and therefore entitled to be advised of his or her right to counsel. The second type of border search is the strip or skin search of the nature of that to which the present appellant was subjected, conducted in a private room, after a secondary examination and with the permission of a customs officer in authority. The third and most highly intrusive type of search is that sometimes referred to as the body cavity search, in which customs officers have recourse to medical doctors, to X-rays, to emetics, and to other highly invasive means.
The Chief Justice emphasized that each of the different types of search he identified raised different constitutional issues. He asserted that the more intrusive a search is, the greater the justification required and the constitutional protection afforded. Applying Therens, supra, Dickson C.J. went on to conclude that the accused was detained when she was required to undergo a strip search pursuant to the Customs Act. The accused could not have refused, and was clearly subject to external restraint as the customs officer had assumed control over her movements by a demand which had significant legal consequences.
In R. v. Jacoy, 1988 CanLII 13 (SCC), [1988] 2 S.C.R. 548, which was decided in conjunction with Simmons, supra, the RCMP had warned customs officials that the accused was attempting to import narcotics into Canada. When the accused arrived at the border, he was questioned by a customs officer, and then, because of the warning, was ordered to enter an interview room where he was interrogated and then frisked. A bag of cocaine was found in his socks, and he was arrested and informed of his right to counsel.
Dickson C.J. declined to decide whether the accused had been detained from the moment of arrival at the border, as the trial judge had held. However, following Simmons, Dickson C.J. held at pp. 557-58 that the accused
was detained when he was ushered into the interview room by [the customs inspectors]. At this point the customs inspectors had assumed control over the movement of the [accused] by a demand that had significant legal consequences for him. The evidence indicates that the customs officials intended to search the [accused] regardless of his responses to their questions.
In my view, [the evidence] indicates that the decision to search the [accused], and to strip search him if necessary, had been made by the time the [accused] entered the interview room. The [accused] was clearly subject to restraint. He could not have refused to be searched and could not have continued on his way. I am therefore satisfied that the [accused] was detained, at least from this point onward, and should have been informed of his right to retain and instruct counsel.
It is important to recall that there is no right for non-citizens to enter or remain in Canada. In Chiarelli v. Canada (Minister of Employment and Immigration), 1992 CanLII 87 (SCC), [1992] 1 S.C.R. 711, at p. 733, Sopinka J. stated that "[t]he most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country." See also Kindler v. Canada (Minister of Justice), 1991 CanLII 78 (SCC), [1991] 2 S.C.R. 779, at p. 834, per La Forest J.
The questioning experienced by the appellant in this case is analogous to the first type of border search described by Dickson C.J. in Simmons, supra. It is well-established that the questioning of an individual by an agent of the state does not always give rise to a detention of constitutional import. In Simmons, supra, Dickson C.J. rejected the argument that, if a strip search is considered to be a detention with constitutional consequences, then all travellers passing through customs would be detained and therefore have a right to counsel under s. 10(b). He held, at p. 521:
In Therens, supra, Le Dain J. stated that not all communications with police officers and other state authorities will amount to detention within the meaning of s. 10(b) of the Charter. This statement is equally valid with respect to the customs situation. I have little doubt that routine questioning by customs officials at the border or routine luggage searches conducted on a random basis do not constitute detention for the purposes of s. 10. There is no doubt, however, that when a person is taken out of the normal course and forced to submit to a strip search that person is detained within the meaning of s. 10.
The questioning which occurred in this case is similarly a routine part of the general screening process for persons seeking entry to Canada. As Dickson C.J. observed in Simmons at p. 528 in the context of the Charter protection against unreasonable search and seizure in s. 8,
[p]eople do not expect to be able to cross international borders free from scrutiny. It is commonly accepted that sovereign states have the right to control both who and what enters their boundaries. For the general welfare of the nation the state is expected to perform this role. Without the ability to establish that all persons who seek to cross its borders and their goods are legally entitled to enter the country, the state would be precluded from performing this crucially important function. Consequently, travellers seeking to cross national boundaries fully expect to be subject to a screening process. This process will typically require the production of proper identification and travel documentation. . . .
Similarly, in Kwok, supra, at p. 207, the Ontario Court of Appeal held that the restraints necessary to determine whether persons presenting themselves for entry to Canada comply with the statutory requirements for entry do not constitute a detention within the meaning of s. 10(b). The Court of Appeal recognized that at a border the state has an interest in controlling entry into the country. Individuals expect to undergo questioning with respect to their entry into Canada whether that be in the immigration or customs context. These interests and expectations dictate that examination of a person for purposes of entry must be analyzed differently from the questioning of a person within Canada.
In this case, unlike in Kwok, there was no "action on the part of the immigration authorities to indicate that the restriction on [the appellant's] freedom ha[d] gone beyond that required for the processing of his application for entry and ha[d] become a restraint of liberty such as that contemplated by Le Dain J." in Therens, supra. The questioning which occurred in this case was purely for the purpose of processing the appellant's application for entry and determining the appropriate procedures which should be invoked in order to deal with his application for Convention refugee status.
Another factor identified in Simmons as indicating that no detention of constitutional consequence occurs during routine questioning is the absence of stigma. Clearly, there is no stigma associated with a referral to a secondary examination. For instance, Canadian citizens who are not able to demonstrate their identity are often referred to a secondary examination for confirmation of their citizenship. In addition, persons who are unable or unwilling to answer questions, applicants for permanent resident status, and Canadian citizens in possession of an emergency passport issued by a Canadian embassy official abroad to facilitate their return to Canada are habitually referred to a secondary examination. With respect to visitors in particular (in addition to persons claiming Convention refugee status), persons coming to seek or undergo medical treatment, persons in possession of emergency travel documents, persons intending to seek or take employment, persons intending to follow any course of study, and persons intending to remain more than six months are generally subject to a secondary examination referral.
As Mahoney J.A. noted for the majority of the Federal Court of Appeal, it would be unreasonable to expect the screening process for all persons seeking entry into Canada to take place in the primary examination line. For those persons who cannot immediately produce documentation indicating their right of entry, the screening process will require more time, and a referral to a secondary examination is therefore required. There is, however, no change in the character of the examination simply because it is necessary for reasons of time and space to continue it at a later time in a different section of the processing area. The examination remains a routine part of the general screening process for persons seeking entry to Canada. It is clear from the wording of s. 12(3)(a) of the Immigration Act that a referral to a secondary examination is a continuation or completion of the initial examination which takes place in the primary inspection line. The facts of this case confirm that what took place was a continuation of the examination and not a transformation of it into a detention for constitutional purposes.
The questioning of the appellant was clearly distinguishable from an intrusive strip search. As Dickson C.J. stated at p. 517 in Simmons, supra, the degree of constitutional protection will be a function of the degree of intrusiveness of the search at issue. While the present case does not concern a search, but rather questioning, an analogy can be drawn. The questioning of the appellant was routine in nature, and concerned solely with his reasons for wishing to enter Canada, and the basis upon which he wanted to do so.
It is important to note that neither the existence of a statutory duty to answer the questions posed by the immigration officer nor the existence of criminal penalties for both the failure to answer questions and knowingly making a false or misleading statement necessitates the conclusion that the appellant was detained within the meaning of s. 10(b). These provisions are both logically and rationally connected to the role of immigration officials in examining those persons seeking to enter the country. Indeed, they are required to ensure that border examinations are taken seriously and are effective. Both of these types of provisions also exist in the Customs Act, and as I have already discussed, this Court held in Simmons at p. 517 that it would be absurd to suggest that routine questioning by a customs officer constitutes a detention for the purposes of s. 10(b).
For these reasons, I conclude that the appellant was not detained at the port of entry within the meaning of s. 10(b) of the Charter.
- Did the Appellant Have a Right to Counsel Under Section 7?
In Singh v. Minister of Employment and Immigration, supra, Wilson J. held that since the refugee claim determination process has the potential to deprive a Convention refugee of security of the person, the determination process must accord with the principles of fundamental justice. Wilson J. held at p. 210:
Given the potential consequences for the appellants of a denial of [Convention refugee] status if they are in fact persons with a "well-founded fear of persecution", it seems to me unthinkable that the Charter would not apply to entitle them to fundamental justice in the adjudication of their status.
Assuming without deciding that s. 7 is engaged in the circumstances of this case, what must be determined is whether the principles of fundamental justice include a right to counsel in these circumstances.
The relationship between s. 7 and the rights in ss. 8 to 14 of the Charter has been considered in various decisions of this Court. In Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, at pp. 502-3, Lamer J. (as he then was) stated that ss. 8 to 14 of the Charter address specific deprivations of the right guaranteed by s. 7. He asserted that it "would be incongruous to interpret s. 7 more narrowly than the rights in ss. 8 to 14". This must be read in light of Lamer J.'s later discussion in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 CanLII 105 (SCC), [1990] 1 S.C.R. 1123, at p. 1178, in which he stated that "it is neither wise nor necessary to subsume all other rights in the Charter within s. 7. A full and generous interpretation of the Charter that extends the full benefit of its protection to individuals can be achieved without the incorporation of other rights and freedoms within s. 7". Lamer J. continued by noting that s. 1 does not apply to s. 7 because of its "permissive" nature. Therefore, he reasoned, by interpreting s. 7 so that it does not subsume the other rights in the Charter, individuals may be afforded greater protection since restrictions on their rights guaranteed by provisions other than s. 7 must be justified under s. 1. For that reason, Lamer J. concluded that "it is desirable to maintain a conceptual distinction between the rights guaranteed by s. 7 and the other freedoms in the Charter".
The concept of residual protection under s. 7 of the interests that the rights in ss. 8 to 14 are designed to protect was addressed in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 CanLII 135 (SCC), [1990] 1 S.C.R. 425, at p. 537. In that case, La Forest J. stated that he was "prepared to agree that s. 7 of the Charter may in certain contexts at least provide residual protection to the interests the right is designed to protect that goes beyond the specific protection provided by ss. 11(c) and 13". Therefore, La Forest J. concluded, the fact that the appellants in that case did not meet the requirements of ss. 11(c) and 13 was not fatal to their claim. A similar position was taken by Wilson J., dissenting on other grounds, at p. 470.
Recently, in R. v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665, at p. 688, this Court held that when the plaintiff's complaint falls squarely within a highly specific guarantee in ss. 8 to 14, then the Charter challenge must be determined according to that section, rather than under s. 7. See also R. v. Généreux, 1992 CanLII 117 (SCC), [1992] 1 S.C.R. 259, at p. 310. Applying this reasoning to the case at bar, there may be residual protection of the right to counsel under s. 7 in situations which do not fall within the parameters of "arrest or detention" in s. 10(b).
It is clear that the concept of fundamental justice includes at a minimum the notion of procedural fairness: Re B.C. Motor Vehicle Act, supra; R. v. Jones, 1986 CanLII 32 (SCC), [1986] 2 S.C.R. 284, at p. 322; and R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at p. 361. According to Singh at p. 213, the procedures set out in the Immigration Act must "provide an adequate opportunity for a refugee claimant to state his case and know the case he has to meet". Wilson J. noted, however, that procedural fairness may require different procedures depending on the context. This point was also made by La Forest J. in Lyons at p. 361:
It is also clear that the requirements of fundamental justice are not immutable; rather, they vary according to the context in which they are invoked. Thus, certain procedural protections might be constitutionally mandated in one context but not in another.
See also, Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), 1989 CanLII 44 (SCC), [1989] 2 S.C.R. 879, at pp. 895-96, per Sopinka J.; Knight v. Indian Head School Division No. 19, 1990 CanLII 138 (SCC), [1990] 1 S.C.R. 653, at p. 682, per L'Heureux-Dubé J.; and Pearlman v. Manitoba Law Society Judicial Committee, 1991 CanLII 26 (SCC), [1991] 2 S.C.R. 869, at p. 882.
The further point was made in Lyons at p. 362 that "s. 7 of the Charter entitles the [accused] to a fair hearing; it does not entitle him to the most favourable procedures that could possibly be imagined"; see also R. v. Beare, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387, at p. 412. In my view, the principles of fundamental justice do not require that the appellant be provided with counsel at the pre-inquiry or pre-hearing stage of the refugee claim determination process. While the right to counsel under s. 7 may apply in other cases besides those which are encompassed by s. 10(b), for example in cases involving the right to counsel at a hearing, it is clear from my earlier comments that the secondary examination of the appellant at the port of entry is not analogous to a hearing. Certainly, factual situations which are closer or analogous to criminal proceedings will merit greater vigilance by the courts. However, in an immigration examination for routine information-gathering purposes, the right to counsel does not extend beyond those circumstances of arrest or detention described in s. 10(b).
The requirement of a hearing for the adjudication of Convention refugee claims was discussed in Singh at pp. 213-14. Wilson J. held that where the question of whether the appellant's claim to Convention refugee status involves an issue of credibility, the appellant is entitled to an oral hearing: "where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing". An inquiry to determine whether the appellant's claim to Convention refugee status had a credible basis was held, and the appellant was informed of his right to obtain the services of and be represented by counsel at the inquiry pursuant to s. 30(1) of the Immigration Act. The appellant was in fact represented by counsel during the credible basis inquiry. The concern raised by Wilson J. in Singh related to the adequacy of "the opportunity the [procedural] scheme provides for a refugee claimant to state his case and know the case he has to meet" (p. 214). This concern is met in the present case by the requirement of a subsequent oral hearing.
To allow counsel at port of entry interviews would, in the words of Heald J.A. in Montfort v. Minister of Employment and Immigration, 1979 CanLII 4041 (FCA), [1980] 1 F.C. 478 (C.A.), at pp. 481-82, "entail another "mini-inquiry" or "initial inquiry" possibly just as complex and prolonged as the inquiry provided for under the Act and Regulations". This would constitute unnecessary duplication. The purpose of the port of entry interview was, as I have already observed, to aid in the processing of the appellant's application for entry and to determine the appropriate procedures which should be invoked in order to deal with his application for Convention refugee status. The principles of fundamental justice do not include a right to counsel in these circumstances of routine information gathering.
VI. Conclusion
As I have concluded that the appellant's rights under ss. 10(b) and 7 of the Charter were not violated, it is unnecessary to address the application of s. 24(2) of the Charter.
For the foregoing reasons, I would therefore dismiss the appeal.
Appeal dismissed.
Solicitors for the appellant: Hoppe, Jackman & Associates, Montréal.
Solicitor for the respondent: John C. Tait, Ottawa.
Solicitor for the intervener: David Matas, Edmonton.
