Last Updated on December 29, 2010 by Steven Meurrens

People are often dismissive when they hear of refugee claimants arriving with stories of persecution at the hands of militias or gangs.  This especially appears to be the case when the refugee claimants originate from a democratic country.  Why, they ask, do these people not simply go to the police in their respective home countries?

The answer is that sometimes the police are either ineffective, or, occasionally, the perpetrators of persecution.  In such cases, an individual might literally be putting their lives in their hands by approaching the authorities.  Canadian refugee law recognizes this catch-22, and has developed numerous principles addressing the issue of state protection.

As recently articulated by the Federal Court, “requiring a person to seek protection from the state when that person believes he or she is in danger as a result of the actions of someone who is a member of the forces of public order and when the state is both persecutor and accomplice is too stringent a burden of proof for a refugee claimant”: Aguilar Soto v. Canada (Citizenship and Immigration), 2010 FC 1183.

Even if the police are not the alleged source of persecution, but are simply ineffective, then a refugee claimant is not obliged to seek counseling, legal advice, or assistance from human rights organizations: Balogh v. Canada (Minister of Citizenship and Immigration) (2002), 22 Imm. L.R. (3d) 93.

Importantly, even in the case of democracies that are generally respectful of human rights within their borders, each case concerning state protection brought before the Immigration and Refugee Board must be examined individually and on its own merits: Arellano v. Canada (Minister of Citizenship and Immigration), 2006 FC 1265.

The question is not whether the state protection is perfectly effective.  However, the mere willingness of a state to ensure the protection of its citizens is not sufficient in itself to establish its ability.  Protection must have a certain degree of effectiveness. The presumption of state ability is therefore rebuttable, even when dealing with a democratic state.