Canada’s Interpretation of Article 1F(b) of the 1951 Refugee Convention

On October 30, 2014, the Supreme Court of Canada (the “SCC“) rendered its decision in Febles v. Canada (Citizenship and Immigration Canada), 2014 SCC 68 (“Febles“).  This was the first time to my knowledge that the SCC has addressed Canada’s interpretation of Article 1F(b) of the Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (the “1951 Refugee Convention“), incorporated into s. 98 of the Immigration and Refugee Protection Act (“IRPA“) (other than in obiter).

Febles provides an opportune time to both summarize the principles articulated in it, as well as other significant Federal Court and Federal Court of Appeal (the “FCA“) cases involving Article 1F(b) of the 1951 Refugee Protection.

Image from the Aditus Foundation
Image from the Aditus Foundation

Article 1F(b) of the 1951 Refugee Convention states that:

F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.

What is the Purpose of Article 1F(b)?  Is rehabilitation a factor? 

In Febles, the SCC addressed the issue of whether the application of Article 1F(b) is simply a matter of looking at the seriousness of a crime when it was committed, or whether it requires consideration of other matters, including whether the refugee claimant is a fugitive and/or whether an individual is rehabilitated.

The SCC found that the purpose of Article 1F(b) of the 1951 Refugee Convention is to exclude people who have previously committed a serious political crime from seeking refugee protection in Canada, period. The SCC determined that Article 1F(b) is not directed solely at fugitives nor is it directed at a subset of serious criminals who are undeserving (dangerous or not rehabilitated) at the time that they claim refugee protection.  The SCC stated:

Excluding people who have committed serious crimes may support a number of subsidiary rationales — it may prevent people fleeing from justice; it may prevent dangerous and particularly undeserving people from entering the host country. However, Article 1F (b) cannot be confined to any of these subsidiary purposes. Excluding people who have committed crimes in other countries prior to seeking refugee protection may serve other state interests. It may help preserve the integrity and legitimacy of the refugee protection system, and, hence, the necessary public support for its viability. It may deter states from exporting criminals by pardoning them or imposing disproportionately lenient sentences while supporting their departure elsewhere as refugees. Finally, it may allow states to reduce the danger to their society from all serious criminality cases taken together, given the difficult task and potential for error when attempting to determine whether criminals from abroad (on whom they have more limited sources of information than on domestic criminals) are no longer dangerous. Whatever rationales for Article 1F (b) may or may not exist, its purpose is clear in excluding persons from protection who previously committed serious crimes abroad.

Hence, it does not matter whether a significant period of time has passed since an individual committed a serious offence.  The person is permanently barred from claiming refugee status in Canada.

What is Seriousness? 

In Febles, the SCC agreed with previous Federal Court decisions that a “serious” crime for the purpose of Article 1F(b) exclusion is one where a maximum sentence of ten years or more could have been imposed had the crime been committed in Canada.

However, the SCC also cautioned that this standard “should not be understand as a rigid presumption that is impossible to rebut.”  The SCC stated:

Where a provision of the Canadian Criminal CodeR.S.C. 1985, c. C-46 , has a large sentencing range, the upper end being ten years or more and the lower end being quite low, a claimant whose crime would fall at the less serious end of the range in Canada should not be presumptively excluded.  Article 1F (b) is designed to exclude only those whose crimes are serious.  The UNHCR has suggested that a presumption of serious crime might be raised by evidence of commission of any of the following offences: homicide, rape, child molesting, wounding, arson, drugs trafficking, and armed robbery (G. S. Goodwin-Gill, The Refugee in International Law (3rd ed. 2007), at p. 179).  These are good examples of crimes that are sufficiently serious to presumptively warrant exclusion from refugee protection. However, as indicated, the presumption may be rebutted in a particular case.  While consideration of whether a maximum sentence of ten years or more could have been imposed had the crime been committed in Canada is a useful guideline, and crimes attracting a maximum sentence of ten years or more in Canada will generally be sufficiently serious to warrant exclusion, the ten-year rule should not be applied in a mechanistic, decontextualized, or unjust manner.

As recently held by the Federal Court in Mohamed v. Canada (Citizenship and Immigration), the SCC’s comments in Febles apply to all crimes allegedly committed abroad, “whether involving convictions or flights from justice.”

Given the number of hybrid offences in the Criminal Code, the notion that any crime is serious if the maximum penalty is 10 years or more has always resulted in absurd consequences.  It is frustrating when these consequences manifest themselves in immigration applications.  However, in the Article 1F(b) context, Canadian courts have resisted the mechanical application of this.

In Jayasekara v. Canada (Minister of Citizenship and Immigration), 2008 FCA 404, for example, the Federal Court of Appeal noted that for the purpose of Article 1Fb analysis, a hybrid offense should not be automatically deemed to be indictable.  The Court stated:

I should add for the sake of clarity that Canada, like Great Britain and the United States, has a fair number of hybrid offences, that is to say offences which, depending on the mitigating or aggravating circumstances surrounding their commission, can be prosecuted either summarily or more severely as an indictable offence. In countries where such a choice is possible, the choice of the mode of prosecution is relevant to the assessment of the seriousness of a crime if there is a substantial difference between the penalty prescribed for a summary conviction offence and that provided for an indictable offence.

In Canada v. Ammar, the issue before the Court was whether the Refugee Protection Division erred in determining that the committing of Criminal Sexual Conduct in the Fourth Degree did not preclude an individual from claiming refugee status pursuant to Article 1Fb.  The Department of Justice essentially argued that the offense should be deemed to be indictable.  Ultimately, based on Jayasekara, the Federal Court rejected this argument.

Hence, when the sentence falls towards the low end of a broad sentencing range, a refugee claimant should not be presumptively excluded, thereby leaving the onus with the Minister to persuade the Board that the crime was serious.

Dismissed Charges

Article 1F(b) can also be applied where charges are dismissed.

In Zrig v Canada (Minister of Citizenship and Immigration), 2003 FCA 178, the Court stated that:

[129]   […] it is possible to exclude both the perpetrators of serious non-political crimes seeking to use the Convention to elude local justice and the perpetrators of serious non-political crimes that a States feels should not be allowed to enter its territory, whether or not they are fleeing local justice, whether or not they have been prosecuted for their crimes, whether or not they have been convicted of those crimes and whether or not they have served the sentences imposed on them in respect of those crimes.

In Pineda v Canada (Minister of Citizenship and Immigration), 2010 FC 454, the Court explained why it makes sense that a dismissal can lead to exclusion:

This makes good sense given that charges can be dismissed for a variety of reasons including procedural issues, rejection of crucial evidence for technical reasons, or simply because the accused raised a reasonable doubt. The Convention does not adopt the stringent standard applicable in criminal proceedings and the RPD may indeed be satisfied that evidence produced by the Minister, which may not be admissible in a court of law, is sufficient to raise a serious possibility that the applicant has indeed committed a serious crime.

Relying on Findings of Foreign Courts

In Ching v. Canada (Citizenship and Immigration), 2015 FC 860, an Article 1FA case involving a high profile Chinese refugee claimant who is wanted in China for alleged corruption, the Federal Court clarified when it is appropriated for the Immigration and Refugee Board to rely on foreign cases. The Court stated:

I would not go so far as to suggest that there can never be reliance on findings of foreign courts. However, in order to rely on foreign findings one would expect that the foreign court’s reasons rise to the level of serious reasons for considering that a crime has been committed. Here, the RPD at paragraphs 47 and 48 recognizes the limitations and the task it would be performing. The paragraphs read:

[47] Minister’s counsel concedes that the legal system in the PRC has defects that result in human rights violations. The panel notes that this is supported by country documents as well as the evidence of the Minister’s expert witness at the IAD hearing Professor Vincent Yang, and by the claimant’s witness Mr. Clive Ansley at the ID hearing.

[48] I do not conclude from this, however, that every person charged with a criminal offence in the PRC has been subjected to human rights violations or that the legal system is registering false convictions for political reasons in every case. The challenge for this panel is to examine the evidence before it and determine if this claimant is the victim of such abuses or is actually a criminal fleeing prosecution in his home country. This requires a contextual examination of the evidence before me.

Mere statements by a foreign court will fall short according to the RPD, yet that is exactly what was done in this case: there cannot have been a contextual examination of the evidence before the Panel because there was no evidence other than findings of foreign courts. Instead, the Panel looked for confirmation of findings in evidence that is, at best, peripheral.

Considering what a Canadian Court’s Sentence May Be

In Mohamed v. Canada (Citizenship and Immigration)the Federal Court took the somewhat unique approach of citing a British Columbia Court of Appeal (the “BCCA”) sentence for an individual convicted inside Canada of supporting the Liberation Tigers of Tamil Eelam.  The BCCA wrote:

The sentencing judge recognized the second factor, the continuing danger the offender presents, raises particular difficulties in terrorist offences. By definition, these offences are often motivated by political, religious, or ideological purposes or objectives. Such beliefs are often immutable. Thus, Mr. Thambaithurai’s lack of remorse was perhaps not surprising, given his Tamil heritage, the impact of the war on his family, and his continuing concern for the dire circumstances of the Tamil population in Sri Lanka. The sentencing judge, however, concluded Mr. Thambaithurai did not present an ongoing terrorist threat, given his otherwise good character. Moreover, by the time Mr. Thambaithurai came before the courts, concern about further terrorist financing of the LTTE had been abated by events in Sri Lanka. In May 2009, Prabhakaran was killed and the Sri Lankan government declared victory over the LTTE.

[…]

Nor am I persuaded that the sentence of six months’ incarceration was unfit. While terrorist offences have unique features, they are governed by the same sentencing framework and objectives as other crimes under the Criminal Code, and Parliament has left the full range of sentencing options, except conditional sentences, open to the courts for consideration in dealing with them. The sentencing judge accurately outlined the facts and Mr. Thambaithurai’s personal circumstances. He considered the sentencing objectives in the Criminal Code, and reviewed the relevant mitigating and aggravating factors. He recognized the unique and serious nature of terrorism but, in my view, properly accepted the Crown’s submission that Mr. Thambaithurai’s activities fell at the low end of the scale.Despite that, the sentencing judge decided a suspended sentence would not adequately serve the objectives of deterrence and denunciation. Instead, he ordered a custodial sentence of six months, a result that would ordinarily be viewed as a harsh penalty for a first offender with an otherwise unblemished record. As well, Mr. Thambaithurai’s conviction will have long-lasting effects, as it will interfere with his ability to travel beyond Canada.

[Emphasis added]

This approach is welcome, as all too often it appears that exclusionary and inadmissibility provisions are interpreted in a manner that is wholly disconnected from criminal jurisprudence in Canada.


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