The principle of non-refoulement and the Charter in Gavrila

Last Friday (November 27, 2009,) the Supreme Court of Canada (“SCC”) granted leave to appeal in Gavrila c Canada (Ministre de la Justice), 2009 QCCA 1288 [Gavrila]. The case will be heard together with the appeal in Nemeth c Canada (Ministre de la Justice), 2009 QCCA 99. Thus, on January 13, 2010, Tiberiu Gavrila will have his chance to argue that the Quebec Court of Appeal erred in finding he could be extradited to his country of origin despite his status as a refugee. As discussed below, this case offers the Court a chance to clarify what has been a wavering policy on the role of international human rights law in interpreting the Charter.

Mr. Gavrila, a native of Romania, immediately claimed asylum upon his arrival in Canada on February 17, 2004. He alleged that he was subject to ill-treatment at the hands of citizens and police in his country of origin on account of his Roma background and his advocacy on behalf of the Roma people. The Immigration and Refugee Board (“IRB”) heard his claim and granted him refugee status September 16, 2004.

Mr. Gavrila did not, however, inform the IRB that he had been convicted for forging visas and sentenced to 4 ½ years in prison shortly before his flight from Romania. Indeed, Mr. Gavrila has since been convicted of various offences including theft, fraud, possession and use of counterfeit documents, and obstructing a peace officer in each of the three provinces he has lived in since arriving in Canada. With respect to his Romanian conviction, he had not appeared at his trial but was represented by counsel at all stages of the proceedings.  He fled the country December 18, 2003, a week after his appeal was dismissed. The Romanian government then discovered his whereabouts, and requested his extradition from Canada. After the Minister of Immigration was unsuccessful in petitioning the IRB to vacate its decision to accord Mr. Gavrila refugee status, the Minister of Justice initiated extradition proceedings against him anyway.

Mr. Gavrila resisted his extradition on the grounds, inter alia, that his extradition would violate both s. 7 of the Charter and s. 115(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. Section 115(1) of the IRPA, which implements the international law principle of non-refoulement, reads:

115. (1) A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.

Gendreau J.A., writing for the Court of Appeal, rejected both these arguments. With respect to the IRPA argument, he reasoned that the IRPA and the Extradition Act, SC 1999, c 18, were separate and distinct legislative schemes with separate and distinct objectives. He found that provisions of the IRPA had no application to proceedings under the Extradition Act, ultimately concluding that “rien n’empêche qu’un réfugié soit aussi un fugitif et le ministre de la Justice peut, si les conditions de la Loi sur l’extradition et du traité applicable sont satisfaites, remettre ce réfugié-fugitif à un État le requérant.”

As for the s. 7 argument, Gendreau J.A. examined the reasoning of the Minister of Justice for ordering Mr. Gavrila’s extradition. Applying a standard of reasonableness, which the SCC determined to be the appropriate standard of review in Lake v Canada (Minister of Justice), [2008] 1 SCR 761 (see also Canada v Schmidt, [1987] 1 SCR 500), he concluded that the Minister had “tenu compte des faits pertinents et tiré une conclusion susceptible de se justifier au regard de ces faits.”

Analysis

Some applicants appear before the Court in circumstances that arouse considerable sympathy from onlookers. Mr. Gavrila is not one such applicant. His failure to disclose his Romanian conviction to the IRB, along with subsequent convictions for related offences in Canada, cast some doubt on his true motivation for leaving his country of origin. Nevertheless, I believe his rights as a refugee with respect to the principle of non-refoulement are broader than the Court of Appeal suggests.

As mentioned above, the principle of non-refoulement is a well-established principle of international law. For example, Article 33 of the Refugee Convention, 189 UNTS 150, reads:

1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

The fact that the principle of non-refoulement is recognized at international law has a bearing on this case in two ways.

First, the principle of non-refoulement is a settled norm of customary international law, and as such is incorporated directly into domestic law through the common law (see R v Hape, [2007] 2 SCR 292). Because the principle of non-refoulement in international law is not confined to the refugee context – for example it also finds expression in the Convention Against Torture, 1465 UNTS 85, as discussed by the SCC in Suresh v Canada (Minister of Citizenship and Immigration), [2002] 1 SCR 3 – the principle of non-refoulement at common law must correspondingly be of broad and general application, and not just confined to the context of the refugee determination system.

Secondly, the non-refoulement question and the s. 7 question may not be separate issues at all. That is, the right against non-refoulement as articulated in the Refugee Convention may actually be protected under s. 7 of the Charter, due to the presumption established in Slaight Communications Inc v Davidson, [1989] 1 SCR 1038 [Slaight Communications], that “the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified.” As such, any determination of whether a refugee’s extradition would violate s. 7 of the Charter may need to take the principle of non-refoulement into account.

None of this, of course, necessarily affects the ultimate outcome in this case. As can be seen above, the protection against refoulement accorded by the Refugee Convention is far from absolute. For example, it could be the case that upon return to Romania, Mr. Gavrila’s life or freedom would not be “threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” So, although the principle of non-refoulement ought to have application to this case, it would not necessarily operate to prevent Mr. Gavrila’s extradition here.

Nevertheless, it will be interesting to see how the SCC approaches the question of the relationship between non-refoulement and the Charter issue (if it addresses this question at all: the bulletin granting leave to appeal makes no mention of a Charter question). Although the presumption articulated in Slaight Communications is now 20 years old, it has rarely been actually applied or cited by the Court. It was most recently revived in the case of Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia, [2007] 2 SCR 391, where the Court looked to international law to inform its finding that the right to freedom of association under s. 2(d) of the Charter includes the right to collective bargaining. For years now the SCC’s policy on the interplay between international law and Canadian law has been uncertain and constantly shifting, from Baker to Spraytech to Suresh to Hape to Khadr (see, for example, Prof. Currie’s posts on this site on the confusion springing from cases like Hape and Khadr). It will be interesting to see if the Court uses Gavrila as a step towards constructing a more coherent and consistent approach to engagement with international law.