Court Discusses Hybrid Offenses in the Refugee Context

The Federal Court recently released an interesting case discussing the effect of a criminal charge or conviction abroad on an individual’s ability to claim refugee status in Canada.

In the non-refugee context, a foreign national is inadmissible to Canada if he has been convicted abroad of, or if he has committed abroad, an offense whose equivalent in Canada would be an indictable offense under an Act of Parliament.

As anyone who is familiar with Canada’s Criminal Code is aware, many criminal offenses are hybrid offenses, and the Crown can elect to proceed by summary trial or by way of indictment.

For example, s. 271 of the Criminal Code states that:

(1) Every one who commits a sexual assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or

(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

Section 36(3)(2) of the Immigration and Refugee Protection Act addresses hybrid offenses.  It provides that for the purpose of determining inadmissibility to Canada an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offense.  The result is that people who are convicted abroad of minor offenses in their countries of origin are inadmissible to Canada because their offense is deemed to be indictable for the purpose of determining inadmissibility, even if it virtually impossible that the same offense if committed in Canada would actually be prosecuted by way of indictment.

Until recently, there was uncertainty if the same held true for excluding people from refugee protection pursuant to Article 1Fb, which provides 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;

Neither the 1951 Refugee Convention nor Canadian immigration legislation address how hybrid offenses are to be treated for the purpose of Article 1Fb analysis.

What do you think?  Should different standards for determining inadmissibility apply for refugee claimants and other foreign nationals?  Should hybrid offenses be deemed to be indictable for the purpose of determining inadmissibility?


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