Fundamental Justice and the Deflection of Refugees from Canada

Canada is preparing to implement a controversial provision of the Immigration Act that will deny asylum seekers the opportunity even to argue their need for protection from persecution. Under a policy labelled deflection by the authors, the claims of refugees who travel to Canada through countries deemed safe, likely the United States and eventually Europe, will be rejected without any hearing on the merits. Because deflection does not require substantive or procedural harmonization of refugee law among partner states, it will severely compromise the ability of genuine refugees to seek protection. The article considers the impact of the Singh ruling of the Supreme Court of Canada and subsequent jurisprudence to determine whether a deflection system can be reconciled to the requirements of sections 7 and 1 of the Canadian Charter of Rights and Freedoms. Deflection mechanisms ought not to survive challenge under the Charter. The new procedure poses a risk to the security of the person of asylum seekers who are physically present in Canada. At the same time, it does not respect the principles of fundamental justice, and cannot be justified as necessary to deter abuse, advance national security, or promote international comity