Last Updated on December 22, 2010 by Steven Meurrens
Are you an individual who has served in the government, the public service, the military, or the judiciary of a government that might have engaged in human rights or international rights obligations? Are you considering traveling to, working in, or immigrating to Canada? If you answer yes to either of these questions, you will definitely want to read on to determine whether your application could be in jeopardy.
Section 35(1)(b) of the Act 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
(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;
Regulation 16 prescribes what constitutes a “senior official”. It states:
16. For the purposes of paragraph 35(1)(b) of the Act, a prescribed senior official in the service of a government 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.
The test that has evolved to determine whether someone is a “senior” member of an organization is whether the position is in the top half of an organization. In Younis, it was found that an individual who had been a lieutenant-colonel in the Iraqi army during the Saddam regime was a senior official because it was the sixth highest rank out of 15, and because there were only 5,400 lieutenant colonels in an army of 1.4-million during the relevant time.
It is important to note that a personal lack of blameworthiness is not relevant to determining whether the individual is inadmissible. Accordingly, if you think that Regulation 16 might apply to you, then you should contact an immigration lawyer or consultant to determine how best to approach this issue.
Younis v. Canada (Citizenship and Immigration), 2010 FC 1157
Nezam v. Canada (Minister of Citizenship and Immigration), 2005 FC 446
Canada (Minister of Citizenship and Immigration),  2 F.C. 337