Last updated on January 21st, 2020

Last Updated on January 21, 2020 by Steven Meurrens

Section 35 of the Immigration and Refugee Protection Act (the “IRPA“) provides that:

Human or international rights violations

35 (1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for

(a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act;

(b) being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act; or

(c) being a person, other than a permanent resident, whose entry into or stay in Canada is restricted pursuant to a decision, resolution or measure of an international organization of states or association of states, of which Canada is a member, that imposes sanctions on a country against which Canada has imposed or has agreed to impose sanctions in concert with that organization or association.

Immigration, Refugees and Citizenship Canada (“IRCC“) has produced a useful internal document summarizing the jurisprudence (up to about 2010) on the interpretation of this section, and I have reproduced it below.  More recent jurisprudence can be found throughout my blog, but the IRCC document is a very useful summary.

Please note that what I have reproduced below should not be viewed as legal advice.  I obtained a copy of this internal Citizenship and Immigration Canada training guide through an Access to Information Act request (the “ATI”).  The reproduction of question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.  (I have decided not to reproduce the names of the Service Canada officers involved.) Please e-mail me if you want a copy of the original question and answer contained in the ATI.

35 - Inadmissibility

Key Points

In order for IRCC to establish that someone is inadmissible to Canada for human or international rights violations, the standard of proof required is more than a flimsy suspicion, but less than the civil test of balance of probabilities. It is much lower threshold than the criminal standard of “beyond a reasonable doubt”.

Pursuant to the Federal Court decision in Andeel v. Canada (Minister of Citizenship and Immigration), it is also necessary for officers to explicitly state why an action constitutes a crime against humanity according to international law, conventional international law or by virtue of its being criminal according to the general principles of law recognised by the international community.

Prescribed Official

Section 16 of the Immigration and Refugee Protection Regulations, SOR/2002-227  provides a non-exhaustive list of the positions which may meet the definition of “prescribed senior official” in paragraph 35(1)(b) of the IRPA.  It states:

16 For the purposes of paragraph 35(1)(b) of the Act, a prescribed senior official is a person who, by virtue of the position they hold or held, is or was able to exert significant influence on the exercise of government power or is or was able to benefit from their position, and includes

(a) heads of state or government;

(b) members of the cabinet or governing council;

(c) senior advisors to persons described in paragraph (a) or (b);

(d) senior members of the public service;

(e) senior members of the military and of the intelligence and internal security services;

(f) ambassadors and senior diplomatic officials; and

(g) members of the judiciary.

Federal Court jurisprudence has established that there are two stages to the analysis that an officer must undertake when determining if an individual is a prescribed senior official within the meaning of paragraph 35(1)(b) of the IRPA.  At the first stage of the analysis, the officer should look to see whether the individual has held one of the positions enumerated in section 16 of the Regulations. If the officer determines that the individual has held one of the enumerated positions, then there is an irrefutable presumption that the individual is or was a prescribed senior official.  If the officer determines that the individual has not held one of the enumerated positions, the officer may then consider whether the individual, despite not holding an enumerated position, was able to exercise significant influence on the regime’s actions or policies or was able to benefit from their position.  If the officer determines that the individual is or was a prescribed senior official, they should then proceed to the second stage of the analysis, the application of paragraph 35(1)(b) of the IRPA. At this stage, the individual deemed to be or have been a prescribed senior official does not have the opportunity to demonstrate that even though he or she in theory had high-level responsibilities, he or she was not able to exert any influence on the exercise of government power.

It can often be difficult to determine whether someone is a “senior” advisor, a “senior” member of the public service, or a “senior” member of the military.  For the purpose of determining whether someone was a senior member of the military, the Federal Court in Sekularac v Canada (Citizenship and Immigration), 2018 FC 381 stated that if it can be demonstrated that the individual falls within the top half of the military hierarchy, that is sufficient to find that the individual is a senior member of the military within the meaning of subsection 16(e).

In Kassab v. Canada (Citizenship and Immigration), 2018 FC 1215, Justice Manson expressed scepticism that such an approach makes sense in the civil service, and certified the following question:

In determining whether an individual is a prescribed senior official within the meaning of paragraph 35(1)(b) of the Immigration and Refugee Protection Act, SC 2001, c 27 on the basis that the individual may be a senior member of the public service as enumerated in subsection 16(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227, when significant evidence is put forward that the individual was unable to exert significant influence or benefit from their position, can an officer conclude that an individual is a senior member of the public service solely on the basis that the individual is within the top half of the government hierarchy, or is the officer required to conduct a broader analysis and consider such evidence?

However, in Canada (Citizenship and Immigration), 2020 FCA 10, the Federal Court of Appeal found that such a strict does make sense. It answered the certified question by stating:

If an officer is satisfied that an individual occupies or occupied a senior position in the reporting hierarchy of the public service of a designated regime, the officer may reasonably conclude that the individual is or was a “senior member of the public service” and a “prescribed senior official” within the meaning of paragraph 35(1)(b) of the Act and section 16 of the Regulations. A broader analysis into the individual’s ability to benefit or exert influence is not required in this circumstance.

The Court stated:

In the third edition of her work Statutory Interpretation (Toronto: Irwin Law, 2016) at page 80, Professor Ruth Sullivan explains that non-exhaustive definitions “are usually introduced by the expression ‘includes,’ or ‘does not include,’ followed by a directive which adds or subtracts from the ordinary (or technical) meaning of the defined term.” She provides the following example:

In this Part,

“nets” includes crab pots and lobster traps but does not include gill nets.

Professor Sullivan then explains:

This definition presupposes that the interpreter knows or will be able to determine the ordinary meaning of “nets” in this context. The point of the definition is not to fix the meaning of “nets” but to ensure that provisions governing the use of nets apply equally to crab pots and lobster traps, which are functional equivalents, and do not apply to gill nets, which are meant to be governed by different rules.

Applying this principle to the definition of “prescribed senior official”, the definition is worded so as to ensure that “senior members of the public service” are included within the definition of a “prescribed senior official”. In every case, the focus of the inquiry is to be on whether a member of the public service qualifies as a “senior” member of the public service. Senior members of the public service are deemed “by virtue of the position they hold or held” to be or to have been “able to exert significant influence” on the regime.

The Federal Court of Appeal’s main reasoning was that in order to avoid evidentiary issues in proving that someone could have exerted influence on a brutal government, Canadian immigration law deems that they could.