by Diana Younes
Source: TheCourt.ca
URL: [link]
Date: May 12th, 2008


A central objective and guiding principle in Canadian immigration policy has been the management of migration flows. At the core is a balance between two broad interests; state sovereignty and security versus the basic human right to mobility and to shelter from persecution. While the first set of interests has historically dominated in Canadian immigration laws, the advent of the point system in the Immigration Act in 1967 and the birth of the Canadian Charter of Rights and Freedoms in 1982 have been touted as markers of a new modern era that offers constitutional rights to foreign nationals and leverages human rights. However, this does not conclude the story.

Today, despite the often positively cited Charkaoui v. Canada (2007) SCC 9 decision and the legislative amendments of Bill C-3 to the Immigration and Refugee Protection Act (IRPA) on February 14, 2008, the current state of the law maintains a propensity to diminish the right of refugees to freedom of association guaranteed by Section 2(d) of the Charter.

When issued a certificate of inadmissibility on security grounds, one faces two vague terms of allegation. One is “terrorism” and the other is “being a member” of an organization that there are reasonable grounds to believe engages in, has engaged in or will engage in terrorism (IRPA Section 34(1)(f)). The courts have continually refrained from defining “membership” and only recently has the Supreme Court adopted a definition for “terrorism” that was borrowed from the Convention against Torture and Other Cruel and Inhumane Punishment. By allowing the meaning of “membership” to remain elusive the courts have effectively subordinated Section 2 Charter rights and in specific, Section 2(d): Freedom of association.

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