Dehghani v. Canada (Minister of Employment and Immigration) [1993] 1 S.C.R. 1053: Right to counsel -- Examinations at port of entry by immigration officer -- Convention refugee claimants

Present: Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Constitutional law -- Charter of Rights -- Right to counsel -- Examinations at port of entry by immigration officer -- Convention refugee claimants -- Secondary examination -- Whether claimant detained and having right to counsel under s. 10(b) of Canadian Charter of Rights and Freedoms.

Constitutional law -- Charter of Rights -- Fundamental justice -- Right to counsel -- Examinations at port of entry by immigration officer -- Convention refugee claimants -- Secondary examination -- Whether claimant having right to counsel under s. 7 of Canadian Charter of Rights and Freedoms.

Immigration -- Examinations at port of entry by immigration officer -- Convention refugee claimants -- Secondary examination -- Whether claimant having right to counsel under ss. 7 or 10(b) of Canadian Charter of Rights and Freedoms.

The appellant, a citizen of Iran, arrived in Canada without valid travel or identity documents and claimed Convention refugee status. At the airport, he entered a primary examination line and was subsequently referred to a secondary examination before an immigration officer in another part of the airport, where he waited approximately four hours before the examination took place. In answering questions as to his claim to Convention refugee status, the appellant omitted important factual details. At the conclusion of the secondary examination, he was advised of his right to counsel to help him put forward his refugee claim. Following an inquiry, an adjudicator and an immigration refugee board member concluded that he did not have a credible basis for his refugee claim and issued an exclusion order. The Federal Court of Appeal dismissed the appellant's application to review and set aside the decision under s. 28 of the Federal Court Act and upheld the order. The majority of the court held that the appellant had not been "detained" in a manner contemplated by s. 10(b) of the Canadian Charter of Rights and Freedoms prior to or during the secondary examination at the airport and, accordingly, that no obligation to inform him of his right to counsel arose. This appeal raises two issues: (1) whether the appellant was detained within the meaning of s. 10(b) of the Charter during his secondary examination at the airport; and (2) whether the appellant's rights under s. 7 of the Charter were infringed by the failure to provide him with counsel at the port of entry.

Held: The appeal should be dismissed.

(1) Section 10(b)

A secondary examination by an immigration officer at a port of entry does not constitute a "detention" within the meaning of s. 10(b) of the Charter. The element of state compulsion is insufficient. The appellant's questioning in the secondary examination was a routine part of the general screening process for persons seeking entry to Canada. The questioning was purely for the purpose of processing his application for entry and determining the appropriate procedures which should be invoked in order to deal with his application for Convention refugee status. Travellers seeking to cross national boundaries fully expect to be subject to a screening process. In this case, there was no action on the part of the immigration authorities to indicate that the restriction on the appellant's freedom had gone beyond that required for the processing of his application for entry and had become a restraint of liberty. Further, there is no stigma associated with a referral to a secondary examination. The absence of stigma is another factor indicating that no detention of constitutional consequence occurs during routine questioning.

It would be unreasonable to expect the screening process for all persons seeking entry into Canada to take place in the primary examination line. For those persons who cannot immediately produce documentation indicating their right of entry, the screening process requires more time and a referral to a secondary examination is therefore necessary. The secondary examination is a continuation or completion of the initial examination which takes place in the primary inspection line and remains a routine part of the general screening process.

Neither the existence of a statutory duty to answer the questions posed by the immigration officer nor the existence of criminal penalties for both the failure to answer questions and knowingly making a false or misleading statement necessitates the conclusion that the appellant was detained within the meaning of s. 10(b). These provisions are both logically and rationally connected to the role of immigration officials in examining those persons seeking to enter the country. Indeed, they are required to ensure that border examinations are taken seriously and are effective.

(2) Section 7

Assuming that s. 7 of the Charter is engaged in the circumstances of this case, the principles of fundamental justice do not require that the appellant be provided with counsel at the pre-inquiry or pre-hearing stage of the refugee claim determination process. While the right to counsel under s. 7 may apply in other cases besides those which are encompassed by s. 10(b), in an immigration examination for routine information-gathering purposes, the right to counsel does not extend beyond those circumstances of arrest or detention described in s. 10(b). An inquiry to determine whether the appellant's claim to Convention refugee status had a credible basis was held and, pursuant to s. 30(1) of the Immigration Act, the appellant was informed of his right to counsel. He was in fact represented by counsel during the credible basis inquiry and had the opportunity to state his case and know the case he had to meet. The principles of fundamental justice do not include a right to counsel for routine information gathering and to allow counsel at port of entry interviews would constitute unnecessary duplication.

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