In the 1985 Singh case, the Supreme Court of Canada declared that the legal guarantees of the Charter of Rights and Freedoms apply to "everyone" physically present in Canada, including foreign asylum seekers. The court also said refugees have the right to a full oral hearing of their claims, before being either accepted into the country or deported. The decision drastically changed the way refugees are dealt with in Canada.
Between 1977 and 1981, six citizens of India (all Sikhs with the surname Singh) plus a Guyanese citizen of Indian heritage, made separate refugee claims in Canada. Each argued they would face persecution in their home countries — because of either race, religion or their past political activities — if they were returned there by Canada. All seven applicants were refused by the federal government on the advice of the Refugee Status Advisory Committee, and later by the Immigration Appeal Board. In each case, the Board ruled that none of the applicants had valid grounds for refugee status, including a reasonable fear of persecution if deported.
The seven were allowed to explain their cases in written submissions to those boards. They were also questioned under oath by an immigration officer. Under the immigration system of the time, however, the Refugee Status Advisory Committee and the Immigration Appeal Board considered and made their decisions in private. None of the applicants was allowed to make an oral appeal to these adjudication panels, or to hear and reply to the arguments against them.
Their cases were appealed through the court system and made their way to the Supreme Court. Because of the similarities of the legal issues, all seven were dealt with in a single case, called Singh v. Minister of Employment and Immigration.
Supreme Court Ruling
The Singh case was reviewed by six Supreme Court justices, all of whom allowed the appeal and ordered the Immigration Appeal Board to grant the seven applicants a full oral hearing before reaching a decision on their refugee claims.
The 1985 case was one of the Supreme Court's earliest rulings regarding the Canadian Charter of Rights and Freedoms, which had come into force only three years earlier. The decision therefore carried great importance in terms of how the Charter would be interpreted in the future.
While all six judges agreed that the claimants' appeal should be allowed, they reached this decision in different ways. Three of the six said the Charter's Section 7 guarantee, that "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," applies also to foreigners seeking asylum at a Canadian port of entry. They said the word "everyone" literally means everyone — not only Canadian citizens and permanent residents, but anyone on Canadian soil.
The judges said the applicants had a fear of persecution. Therefore, by depriving them of a full oral hearing, the immigration system violated their right to fundamental justice under the Charter.
The federal government argued that the time, expense and complexity of affording every refugee applicant an oral hearing would place a large burden on the immigration system. It said that denying the applicants their Section 7 rights was a "reasonable limit," as allowed under Section 1 of the Charter. However, the Court disagreed.
The three other judges were silent on the Charter. Instead they relied on the Canadian Bill of Rights, a non-constitutional statute passed by Parliament in 1960. They said the Bill of Rights guaranteed refugee applicants a full oral hearing of their claims before an immigration board.
Impact on Immigration System
Four years after the Singh ruling, the federal government revamped the refugee review system by creating the Immigration and Refugee Board, a quasi-judicial panel that holds oral hearings to adjudicate refugee claims. The system was beset by troubles for years — with a huge backlog of claimants (more than 100,000 in 1989), the appointment of unqualified board members due to political patronage, and in some cases corruption and bribery allegations against board members.
Many of those problems, especially the patronage appointments of unqualified board members, have since been resolved and the system made more timely and efficient. However, the thousands of asylum seekers who come to Canada each year still face a lengthy adjudication process.
The Singh ruling was controversial, criticized by some academics and politicians as an example of "judicial activism." Justice Bertha Wilson, who authored the Charter aspects of the Singh decision, was an outspoken activist member of the Court (she retired in 1991). Critics, such as former Liberal cabinet minister John Manley, have said the Court was wrong to extend Charter rights to foreigners. He and other critics have said that later justices, sitting on a later Court, might well have ruled differently.
Other observers have said the ruling has imposed excessive burdens on the immigration system, making it difficult for Canada to deport people with invalid asylum claims. Immigration Watch Canada, an independent advocacy group, has called the decision a "disaster" for the country's immigration system. However, legal experts have pointed out that the ruling said nothing about the right of asylum seekers to remain in Canada indefinitely, only that they deserved a fair hearing — and that nothing in the Singh decision prevents the government from removing people after their hearings.
Meanwhile, the Canadian Council for Refugees celebrates the Singh decision by holding Refugee Rights Day each April 4, the anniversary of the ruling. Immigration lawyer Barbara Jackman, who helped argue the case for the Singh claimants at the Court, said the decision provided asylum seekers with a fair and impartial process, rather than having their fate decided by bureaucrats operating behind closed doors.
"The judgment was formative," Jackman said. "It sent a message…early in the life of the Charter of Rights and Freedoms…that it was an inclusive document, that it embraced the strangers in our midst and ensured that they too were entitled to fair treatment in the determination of their rights."
Marlene Epp, Refugees in Canada. A Brief History (2017); Valerie Knowles, Strangers At Our Gates: Canadian Immigration and Immigration Policy 1540-2015 (2016); Susan Kneebone, editor, Refugees, Asylum Seekers and the Rule of Law: Comparative Perspectives (2009).