Measures adopted by developed states to limit the flow of migrants into their territory have eroded the statutory institutional and procedural safeguards that surround decision making in asylum law. In Canada, the common law duty of procedural fairness and its constitutional protection through the principles of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms provide a measure of procedural protection. However, express statutory provisions displace common law norms, and while Charter-based procedural rights prevail over inconsistent statutes, Canadian courts have defined these rights in the immigration context by reference to a narrow common law view of non-citizens' legal status. In contrast, international human rights law norms focus on the impact of state action on the fundamental rights of individuals rather than their status as aliens or citizens. They entitle non-citizens to a fair hearing before independent and impartial tribunals in proceedings that determine their rights and obligations, to equality before the law and, in particular, equal access to the courts, and to an effective remedy to vindicate their substantive rights under international conventions. Given the traditional dualist account of the role of international law within Canada' legal system, internalizing unimplemented international institutional and procedural norms within Canadian law is problematic. The Supreme Court of Canada has addressed this issue in two recent decisions regarding Canada's regulation of non-citizens. In Baker v. Canada, it directed administrative decision makers to look to those values in conventional international human rights law which resonate with fundamental values of Canadian society to identify the mandatory relevant considerations that confine their discretionary decision making powers. In Suresh v. Canada, it required courts and tribunals to use norms of international human rights defined in treaties, custom and the views of international bodies to inform Charter interpretation and in particular, to serve as evidence of the principles of fundamental justice. This infusion of international human rights law values and principles into domestic law can only reinforce the institutional and procedural safeguards that surround decision making in Canadian asylum law.

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Canada immigration policy legal system international law human rights asylum seeker