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Canada's Treatment of Non-Citizens Through the Lens of the United Canada’s Treatment of Non-Citizens through the Lens of the United Nations Individual Complaints Mechanisms —— Le traitement de non-citoyens par le Canada du point de vue des mécanismes onusiens de plaintes émanant de particuliers idil atak and lorielle giffin Abstract Résumé The United Nations (UN) human rights Les organes créés en vertu d’instruments treaty bodies play an important role in des Nations Unies (ONU) relatifs aux defining the scope and the nature of droits de la personne jouent un rôle non-citizens’ rights. This article offers a important dans la définition de la portée critical overview of the UN human rights et de la nature des droits de non-citoyens. case law from 2008 to 2018 pertaining Cet article offre un aperçu critique de la to non-citizens — notably undocu- jurisprudence onusienne, entre 2008 mented migrants, refused asylum seek- et 2018, en matière des droits de la per- ers, and permanent residents ordered sonne des non-citoyens — notamment deported — in Canada. It examines the les migrants sans papiers, les demandeurs jurisprudence of the three UN human d’asile déboutés et les résidents perma- rights treaty bodies recognized by Canada nents sujets à expulsion — se trouvant au as having competence to receive and con- Canada. Plus particulièrement, il examine sider individual complaints — namely, la jurisprudence des trois comités relatifs the UN Human Rights Committee, the aux droits de la personne que le Canada Committee against Torture, and the Com- a reconnu comme compétents pour recev- mittee on the Elimination of Discrimina- oir et examiner les plaintes individuelles, à tion against Women. The purpose of this savoir le Comité des droits de l’homme de examination is two-fold. First, it intends l’ONU, le Comité contre la torture, et le to foster a better understanding of the Comité pour l’élimination de la discrimi- cases lodged by non-citizens before the nation à l’égard des femmes. Le but de cet UN human rights treaty bodies. The sec- examen est double. Premièrement, il vise ond aim is to explore the substantive à favoriser une meilleure compréhension Idil Atak, Associate Professor, Department of Criminology, Ryerson University, Toronto, Canada ([email protected]). Lorielle Giffin, PhD candidate, University of Alberta, Edmonton, Canada ([email protected]). 292 Vol. 56 [2018], doi:10.1017/cyl.2019.13 © The Canadian Yearbook of International Law / Annuaire canadien de droit international 2019 This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence Downloaded(http://creativecommons.org/licenses/by/4.0/), from https://www.cambridge.org/core. IP address: 170.106.202.58which permits, onunrestricted 25 Sep 2021 re-use, at 22:54:02 distribution,, subject toand the Cambridge Core terms of use,reproduction available at inhttps://www.cambridge.org/core/terms any medium, provided the original. https://doi.org/10.1017/cyl.2019.13work is properly cited. Canada’s Treatment of Non-Citizens 293 issues that the UN committees’ juris- des recours intentés par les non-citoyens prudence on non-citizens reveals about devant les organes conventionnels des Canada’s immigration decision-making droits de la personne de l’ONU. Le deux- and enforcement. It is argued that some ième objectif est d’explorer des questions groups of non-citizens in Canada are at de fond, révélées par la jurisprudence des risk of being deported to persecution comités de l’ONU en matière des non- or hardship in violation of the non- citoyens, concernant le processus déci- refoulement principle and Canada’s inter- sionnel et la mise en vigueur du système national human rights obligations. The d’immigration canadien. Les auteures article illuminates several loopholes maintiennent que certains groupes de identified by the UN treaty bodies in non-citoyens au Canada risquent d’être Canada’s immigration and refugee pro- renvoyés vers des persécutions ou des tection system that heighten the risk of épreuves, en violation du principe de refoulement. non-refoulement et des obligations inter- nationales du Canada en matière de droits de la personne. Cet article met en lumière plusieurs lacunes identifiées par les comi- tés onusiens des droits de la personne dans le système canadien d’immigration et de protection des réfugiés, lacunes qui aug- mentent le risque de refoulement. Keywords: Canada; international human Mots-clés: Canada; droit international rights law; non-citizens; migrants; non- des droits de la personne; non-citoyens; refoulement; United Nations individual migrants; non-refoulement; mécanis- complaints mechanisms. mes onusiens de plaintes émanant de particuliers. Introduction n August 2018, the United Nations (UN) Human Rights Committee I(HRC) ruled that Canada’s denial of essential health care services to Nell Toussaint, an undocumented migrant from Grenada, violated her right to life. Noting that states cannot make a distinction, for the purposes of protecting the right to life, between legal and undocumented migrants, the HRC asked Canada to take all steps necessary to prevent similar vio- lations in the future.1 As this case illustrates, in international law, a state’s sovereign right to control the entry, residence, and expulsion of non- citizens2 involves a duty to protect everyone under its jurisdiction.3 The UN human rights treaty bodies have been instrumental in defining the 1 Toussaint v Canada, Communication No 2348/2014 (30 August 2018) at para 11.7 [Toussaint]. 2 Abdulaziz, Cabales and Balkandali v United Kingdom (1985), 7 EHRR 471. 3 Island of Palmas (US v Netherlands), Hague Ct Rep 2d (Scott) 83 at 93 (Perm Ct Arb 1928); Singh v Minister of Employment and Immigration, [1985] 1 SCR 177. Downloaded from https://www.cambridge.org/core. IP address: 170.106.202.58, on 25 Sep 2021 at 22:54:02, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/cyl.2019.13 294 The Canadian Yearbook of International Law 2018 scope and the nature of non-citizens’ rights. Individual complaints mecha- nisms available under certain human rights treaties have played a particu- larly important role in this regard.4 This article offers a critical overview of the UN human rights case law pertaining to non-citizens5 in Canada from 2008 to 2018. It focuses on those complaints that intersect with the Immigration and Refugee Protection Act (IRPA)6 and that are lodged by non-citizens, notably undocumented migrants, refused asylum seekers, and permanent residents ordered deported from Canada. Our analysis shows that the vast majority of the decisions adopted by the UN human rights treaty bodies in the past decade concern the rights and freedoms of non-citizens. As such, we illu- minate significant issues with Canada’s treatment of this population. More specifically, we suggest that Canada does not always meet its international obligations related to the non-refoulement principle, which prohibits the deportation of individuals to places where they may face persecution or a substantial risk of torture or similar abuse.7 The effectiveness of the domestic remedies available to non-citizens facing deportation and Canada’s inconsistent compliance with the HRC’s recommendations are other areas of concern explored in this article. We examine the jurisprudence of the three UN human rights treaty bod- ies recognized by Canada as competent to receive and consider individual complaints — namely, the HRC, the Committee against Torture (CAT), and the Committee on the Elimination of Discrimination against Women 4 Henry J Steiner, Philip Alston & Ryan Goodman, International Human Rights in Context: Law, Politics, Morals, 3rd ed (New York: Oxford University Press, 2007) at 891–924; Chris- tof Heyns & Frans Viljoen, “The Impact of the United Nations Human Rights Treaties on the Domestic Law” (2001) 23:3 HRQ 483; Guy Goodwin-Gill & Jane McAdam, The Refugee in International Law, 3rd ed (Oxford: Oxford University Press, 2007) at 285–354; Fernando M Marino Menendez, “Recent Jurisprudence of the United Nations Com- mittee against Torture and the International Protection of Refugees” (2005) 34:1 Refugee Survey Quarterly 61; Jean-Yves Carlier & Sylvie Saroléa, Droit des étrangers (Louvain-la-Neuve: Larcier, 2016). 5 The term “non-citizen” refers to a foreign national who does not hold Canadian citizenship. 6 SC 2001, c 27 [IRPA]. 7 Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954), art 33(1) [Refugee Convention]; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987), art 3 [Convention against Torture]; International Cove- nant on Civil and Political Rights, 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), art 7 [ICCPR]; IRPA, supra note 6, s 115. Refugee Convention, ibid, art 33(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.” Downloaded from https://www.cambridge.org/core. IP address: 170.106.202.58, on 25 Sep 2021 at 22:54:02, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/cyl.2019.13 Canada’s Treatment of Non-Citizens 295 (CEDAW Committee).8 These bodies of independent experts are in
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