How the Charter Has Failed Non-Citizens in Canada – Reviewing Thirty Years of Supreme Court of Canada Jurisprudence

Abstract

This paper presents a study of all of the Supreme Court of Canada’s Charter-era jurisprudence addressing the rights of non-citizens. It traces the jurisprudential evolution from early decisions strongly supportive of non-citizens’ rights claims, to more recent rulings where non-citizens’ rights claims are rejected, sidelined or even ignored. Patterns in decision making are discernible and the decline in protections for non-citizens follows logically enough from a series of interpretive stances made relatively early on. There is evidence here of what I have termed ‘Charter hubris.’ This is a leading factor in explaining the current state of affairs, which works alongside other explanations such as the traditionally broad ambit of discretion in immigration matters and the securitization of all immigration matters in the early twenty-first century.

Keywords: Canada, Human rights, Migrants, Canadian Charter of Rights and Freedoms