“Re-Configuring Non-Refoulement? The Suresh Decision, ‘Security Relativism’, and the International Human Rights Imperative”

This article critically analyses the decision of the Supreme Court of Canada in the Suresh case, especially with regard to its underlying basis in doctrine and policy, and its implications for the non-refoulement norm. The principal conclusions of this article are as follows. In the first place, laudable as it mostly is, the Suresh decision is based on a number of apparently credible, although flawed, images of certain important policy and doctrinal assumptions and constructs. The decision relies on a conception of the desiderata for Canadian national security that is flawed on two scores -- because its conception of security interdependence is so overly formalist as to be hardly reassuring to those in fear of terrorism and other such threats. The decision relies on an image of torture (and deportation) to torture that is relativist and pragmatic -- one that sees torture as something that can be balanced away by a national security risk -- one that is thus unsatisfactory from an international human rights perspective. The decision also relies on specific images of near absolute state sovereignty and weak international normative authority -- images that constrained its decision in unsatisfactory ways. It also relies on a much too benign image of the Canadian immigration bureaucracy, one that allowed it to effectively allow an unsatisfactorily very high level of hard-to-review discretion to that entity. Secondly, these flawed images worked together to lead the court to conclusions that will in practice not ensure that the vast majority of refugees and other persons at risk of torture are not deported to places where they face a substantial risk of torture. Consequently, a critical analysis of the nature of Canada's post-Suresh decision non-refoulement regime reveals that that regime still falls short of the requirements of the general norm that prohibits deportations to torture (especially in its likely practical operation).The Social Sciences and Humanities Research Council of Canada