According to the CBSA, between January 1, 2015 and June 30, 2016 Bangladesh became the top source country for individuals found inadmissible to Canada under IRPA s. 34. The issue involves membership in the Bangladesh Nationalist Party (the “BNP“) or its main political ally, the Jamaat-e-Islami (“Jamaat“). While not designated by Public Safety Canada as terrorist entities, some members of the BNP and Jamaat, through, have, according to CBSA, shown that they qualify as being a member of an organisation that there are reasonable grounds to believe engages, has engaged in or will engage in acts or instigate the subversion by force of a government or terrorism.
The BNP
According to Wikipedia, the BNP is one of the contemporary political parties of Bangladesh. It was founded on 1 September 1978 by former Bangladesh President Ziaur Rahman after the Presidential election of 1978, with a view to uniting the people with nationalist ideology of the country. The party holds the ideology of Bangladeshi nationalism as its core concept and adopted a 19-point program which declared that “The sovereignty and independence of Bangladesh, golden fruits of the historic liberation struggle, is our sacred trust and inviolable right”. The founding manifesto of the BNP claims that the people of Bangladesh want to “…see that all-out faith and confidence in the almighty Allah, democracy, nationalism and socialism of social and economic justice are reflected in all spheres of national life”. BNP and its student wing was the driving force in the 1990 uprising against the autocratic Ershad rule that culminated in the fall of the regime and the restoration of democracy in Bangladesh.
In 2012, supporters of the BNP and Jamaat took to the streets to portest the ruling Awami League’s decision to annul the care-taker government system, accusing the government of trying to turn Bangladesh into a one-party state. That same year, the government started prosecutions for war crimes committed during the Bangladesh Liberation War of 1971. Leaders from both the BNP and Jamaat were charged and convicted for war crimes.
In 2014, the BNP boycotted national elections. Violent clashes occured between BNP supports and supporters of the Awami League.
IRCC Position
CBSA and IRCC has generally taken the position that some members of the BNP and Jamaat have “shown themselves to qualify” under s. 34(1)(f) of the IRPA, which states that a person is inadmissible to Canada for “being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts or intigate the subversion of force of a government or terrorism.
The organizations that CBSA has identified as resulting in a person being inadmissible to Canada are listed below.
Jurisprudence
The Federal Court of Canada has been all over the map on whether membership in the BNP results in someone being inadmissible. In Rahman v. Canada (Citizenship and Immigration), 2023 FC 1695, Madam Justice Rochester affirmed that each case is decided on its merits, and that decisions of the Court are not, nor should they be, characterized as broad proclamations on the status of the BNP that bind future decisions.
In Talukder v. Canada (Public Safety and Emergency Preparedness), 2024 FC 1489, Justice Brown analyzed whether it was reasonable for the Immigration Division to determine that the BNP had the specific intent to commit terrorism. On the definition of specific intent, he wrote:
[31] In my respectful view, it is well established that a party specific intent may be determined based on an inference drawn from the evidence that people intend the natural and probable consequences of their actions. This is a rule of evidence and a matter of common sense. This approach for specific intent is confirmed in R v Seymour, [1996] 2 SCR 252 [Seymour] of the Supreme Court of Canada per Cory J for a unanimous Court. Notably, Seymour was a case of specific intent — second degree murder. The Supreme Court put it this way at paragraph 19:
[19] When charging with respect to an offence which requires proof of a specific intent it will always be necessary to explain that, in determining the accused’s state of mind at the time the offence was committed, jurors may draw the inference that sane and sober persons intend the natural and probable consequences of their actions. Common sense dictates that people are usually able to foresee the consequences of their actions. Therefore, if a person acts in a manner which is likely to produce a certain result, it generally will be reasonable to infer that the person foresaw the probable consequences of the act. In other words, if a person acted so as to produce certain predictable consequences, it may be inferred that the person intended those consequences.
[Emphasis added]
[32] The mental element of specific intent was discussed again by the Supreme Court of Canada in its 2015 Tatton judgment. There, the Court concluded arson is a general intent offence. In the course of its reasons, per Moldaver J at paragraphs 27 and 39, the Court reiterated that from the common sense inference that a person intends the natural consequences of his or her actions, fact finders may typically infer intent from the performance of the act:
[27] [In R v Daviault, 1994 CanLII 61 (SCC), [1994] 3 SCR 63] Justice Sopinka specified that general intent crimes involve “the minimal intent to do the act which constitutes the actus reus”: Daviault, at p. 123. Because such crimes involve minimal thought and reasoning processes, even a high degree of intoxication short of automatism is unlikely to deprive the accused of the slight degree of mental acuity required to commit them (ibid.). In his view, this feature alone provided a sound policy basis for precluding reliance on the defence of intoxication (ibid.). Bearing in mind the common sense inference that a person intends the natural consequences of his or her actions, one can typically infer intent from the performance of the act…
…
[39] To summarize, specific intent offences contain a heightened mental element. That element may take the form of an ulterior purpose or it may entail actual knowledge of certain circumstances or consequences, where the knowledge is the product of more complex thought and reasoning processes. Alternatively, it may involve intent to bring about certain consequences, if the formation of that intent involves more complex thought and reasoning processes. General intent offences, on the other hand, require very little mental acuity.
[Emphasis added]
Justice Brown certified the following question:
To the extent an organization’s ““specific intent”” is required to support findings under s 34(1)(c) and s 34(1)(f) of IRPA that the organization is engaging, has engaged, or will engage in acts of terrorism, is the legal and analytical approach applied by the Immigration Division in this case reasonable and if not must the Applicant’s alternative proposal be followed?