Febles v. Canada (Citizenship and Immigration)
Luis Alberto Hernandez
Febles, Appellant;
v.
Minister of Citizenship and Immigration, Respondent, and
Amnesty International, United Nations High Commissioner for
Refugees, Canadian Association of Refugee Lawyers, Canadian
Council for Refugees and Canadian Civil Liberties Association,
Interveners.
v.
Minister of Citizenship and Immigration, Respondent, and
Amnesty International, United Nations High Commissioner for
Refugees, Canadian Association of Refugee Lawyers, Canadian
Council for Refugees and Canadian Civil Liberties Association,
Interveners.
[2014] S.C.J. No. 68
[2014] A.C.S. no 68
2014 SCC 68
File No.: 35215.
File No.: 35215.
Supreme Court of
Canada
Heard: March 25, 2014;
Judgment: October 30, 2014.
Present: McLachlin C.J. and LeBel, Abella, Rothstein,
Cromwell, Moldaver and Wagner JJ.
Heard: March 25, 2014;
Judgment: October 30, 2014.
Present: McLachlin C.J. and LeBel, Abella, Rothstein,
Cromwell, Moldaver and Wagner JJ.
(136 paras.)
Appeal From:
ON APPEAL FROM THE
FEDERAL COURT OF APPEAL
Subsequent History:
NOTE: This document is
subject to editorial revision before its reproduction in final form in the
Canada Supreme Court Reports.
Court Catchwords:
Immigration law -- Convention refugees -- Exclusion based on commission of serious crime prior to admission to country of refuge -- Cuban national seeking refugee protection in Canada -- Immigration and Refugee Board rejecting claim for refugee protection on grounds that claimant committed serious crimes prior to admission to Canada -- Whether consideration of grounds for exclusion should include matters or events after commission of crime, such as whether claimant is fugitive from justice or unmeritorious or dangerous at the time of the application for refugee protection -- Whether claimant who has committed serious crime in the past may nevertheless qualify for refugee protection because he or she has served sentence or because of redeeming conduct in the interim -- Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 98 -- United Nations Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6, art. 1F(b).
Court Catchwords:
Immigration law -- Convention refugees -- Exclusion based on commission of serious crime prior to admission to country of refuge -- Cuban national seeking refugee protection in Canada -- Immigration and Refugee Board rejecting claim for refugee protection on grounds that claimant committed serious crimes prior to admission to Canada -- Whether consideration of grounds for exclusion should include matters or events after commission of crime, such as whether claimant is fugitive from justice or unmeritorious or dangerous at the time of the application for refugee protection -- Whether claimant who has committed serious crime in the past may nevertheless qualify for refugee protection because he or she has served sentence or because of redeeming conduct in the interim -- Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 98 -- United Nations Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6, art. 1F(b).
Court Summary:
Febles was admitted to the United States as a
refugee from Cuba. While living in the United States, he was convicted and
served time in prison for two assaults with a deadly weapon -- in the first
case he struck a roommate on the head with a hammer, and in the second, he
threatened to kill a roommate's girlfriend at knifepoint. The U.S. revoked his
refugee status and issued a removal warrant. Febles subsequently fled to Canada
and sought Canadian refugee protection.
Refugee protection claims in Canada are governed by
the Immigration and Refugee Protection Act ("IRPA").
Section 98 of the IRPA excludes
from refugee protection in Canada all persons referred to in Article 1F(b) of
the United Nations Convention Relating to the Status of
Refugees ("Refugee
Convention"). Article 1F(b) of the Refugee Convention excludes from refugee
protection all persons who have committed a serious non-political crime outside
the country of refuge prior to admission to that country as a refugee. Refugee
protection claims in Canada are adjudicated by the Refugee Protection Division
of the Immigration and Refugee Board ("Board"). In deciding Febles'
refugee protection claim, the Board concluded that Febles was among the persons
referred to by Article 1F(b) of the Refugee Convention, and therefore ineligible for refugee protection in Canada pursuant
to s. 98 of the IRPA. Both the
Federal Court and the Federal Court of Appeal dismissed Febles' application for
judicial review.
Held (Abella and Cromwell
JJ. dissenting): The appeal should be dismissed.
Per McLachlin C.J. and LeBel, Rothstein, Moldaver
and Wagner JJ.: Section 98 of the IRPA excludes from refugee protection in Canada all persons
"referred to in section E or F of Article 1 of the Refugee
Convention". Article 1F(b) of the Refugee Convention refers
to "any person with respect to whom there are serious reasons for
considering that ... he has committed a serious non-political crime outside the
country of refuge prior to his admission to that country as a refugee".
The primary issue in this case is how to interpret the meaning of Article 1F(b)
of the Refugee Convention.
Interpretation of an international treaty is
governed by the Vienna Convention on the Law of Treaties ("Vienna Convention"). Pursuant to Article 31(1) of the Vienna
Convention, interpretation of a treaty should be
approached by considering: (1) the "ordinary meaning" of its terms;
(2) the context; and (3) the object and purpose of the treaty. Article 32 of
the Vienna Convention further
specifies that, aside from confirming an interpretation resulting from the
application of Article 31, recourse may be had to supplementary means of
interpretation, including the preparatory work of the treaty and the
circumstances of its conclusion, only if application of Article 31 leaves the
meaning ambiguous or obscure, or leads to a result which is manifestly absurd
or unreasonable.
The ordinary meaning of Article 1F(b)'s terms
"has committed a serious ... crime" refers only to the crime at the
time it was committed and not to anything subsequent to the commission of the
crime. There is nothing in the text of the provision suggesting that Article
1F(b) only applies to fugitives, or that factors such as current lack of
dangerousness or post-crime expiation or rehabilitation are to be considered or
balanced against the seriousness of the crime.
The context around Article 1F(b) supports this
interpretation. The immediate context of Article 1F(b) is Article 1F as a
whole. There is nothing in the wording of Articles 1F(a) and 1F(c) to support
the view that the exclusion from refugee protection under Article 1F(b) is
confined to fugitives. Nor does Article 33(2) of the Refugee
Convention support the view that Article 1F(b) is
confined to fugitives. The reason Article 33(2) applies only to particularly serious
crimes, and has the additional requirement that "danger to the
community" be demonstrated, is because it authorizes removal of a person
whose need for protection has been recognized.
Likewise, the object and purposes of the Refugee Convention do not support the
contention that Article 1F(b) is confined to fugitives. The Refugee Convention has twin purposes: it aims
to strike a balance between helping victims of oppression by allowing them to
start new lives in other countries, while also protecting the interests of
receiving countries, which they did not renounce simply by negotiating specific
provisions to aid victims of oppression. The Refugee
Convention is not itself an abstract principle, but an
agreement among sovereign states in certain specified terms, negotiated by them
in consideration of the entirety of their interests. Accordingly, exclusion
clauses should not be enlarged in a manner inconsistent with the Refugee Convention's broad humanitarian aims,
but neither should overly narrow interpretations be adopted which ignore the
contracting states' need to control who enters their territory. Ultimately, the
purpose of an exclusion clause is to exclude, and broad purposes do not invite
interpretations of exclusion clauses unsupported by the text. Article 1F(b) is
not directed solely at fugitives and neither is it directed solely at some
subset of serious criminals who are undeserving at the time of the refugee
application. Rather, in excluding all claimants who have committed serious
non-political crimes, Article 1F(b) expresses the contracting states' agreement
that such persons by definition would be undeserving of refugee protection by
reason of their serious criminality.
Excluding people who have committed serious crimes
may support a number of subsidiary rationales -- it may prevent people fleeing
from justice; it may prevent dangerous and particularly undeserving people from
entering the host country. It may help preserve the integrity and legitimacy
and ultimate viability of the refugee protection system. It may deter states
from exporting criminals as refugees. It may allow states to reduce danger to
their society from serious criminality cases as a class, given the difficult
task and potential for error when attempting to determine the ongoing
dangerousness of criminals from abroad on whom they may often have limited
reliable information. Whatever rationales for Article 1F(b) may or may not
exist, its purpose is clear in excluding persons from protection who previously
committed serious crimes abroad.
With respect to the Travaux
préparatoires, the Vienna
Convention conditions for their use in interpretation
are not present in this case. The meaning of Article 1F(b) is clear, and admits
of no ambiguity, obscurity or absurd or unreasonable result. Therefore, the Travaux préparatoires should not be
considered. Further, even if they were considered, the Travaux
préparatoires do not support the contention that Article
1F(b) is confined to fugitives.
A review of the jurisprudence demonstrates the
difficulty of confining Article 1F(b) to a narrow category of people, like fugitives
from justice, and confirms that it applies, as its words suggest, to anyone who
has ever committed a serious non-political crime outside the country of refuge
prior to his admission to that country as a refugee. The dominant tide of the
jurisprudence also supports the conclusion that the seriousness of the crime is
not to be balanced against factors extraneous to commission of the crime such
as current dangerousness or post-crime rehabilitation or expiation.
In terms of what constitutes a "serious crime"
under Article 1F(b), consideration of whether a maximum sentence of ten years
or more could have been imposed had the crime been committed in Canada is a
useful guideline. However, the ten-year rule should not be applied in a
mechanistic, decontextualized, or unjust manner.
In the present case, Febles is covered under
Article 1F(b) as a result of his commission of serious non-political crimes
outside Canada prior to admission to Canada as a refugee. As a result, the
Board was correct to conclude that he is ineligible for refugee protection in
Canada pursuant to s. 98 of the IRPA. If his removal to Cuba would place him at risk of death, torture or
cruel and unusual treatment or punishment, his recourse is to apply for a stay
of removal under ss. 97, 112, 113(d)(i) and 114(1)(b) of
the IRPA. If he wishes to
challenge the revocation by U.S. authorities of the refugee status he was
previously granted in the United States, he must do so in the justice system of
the United States. The Canadian justice system is not to be invoked to
determine the correctness or the constitutionality of decisions made by U.S.
officials pursuant to U.S. laws.
Per Abella and Cromwell JJ. (dissenting): The
claim for refugee status in this case depends on a determination of when the
commission of a serious non-political crime outside the country of refuge will
disqualify an individual from the protective scope of the Refugee Convention.
The consequences of exclusion are significant. If
an individual becomes ineligible for the status of a "refugee" on the
basis of one of the exclusionary grounds in Article 1F, the humanitarian
protections provided in the Refugee Convention are
denied altogether, including the protection from refoulement under Article 33. An excluded individual is consequently at risk of
being returned to face persecution in his or her country of origin, barring the
availability of any residual protection under domestic or international human
rights law. In light of the human rights purposes of the Refugee Convention, and the dramatic consequences of exclusion from the status of a
refugee, Article 1F requires a particularly cautious interpretation.
There is little doubt that the primary purpose of
Article 1F(b) was to exclude those individuals who would abuse the status of a
refugee by avoiding accountability through prosecution or punishment for a
serious crime outside the country of refuge. There is considerable debate,
however, as to the extent to which Article 1F(b) was also intended to fulfill
the additional purpose of excluding individuals who, as a result of having
committed and been prosecuted for serious non-political crimes in the past, are
considered undeserving of refugee protection under the Refugee Convention. The
human rights approach to interpretation mandated by the Vienna
Convention suggests that except in the case of very
serious crimes, an individual is not automatically disqualified from the
humanitarian protection of the Refugee Convention and
should be entitled to have any expiation or rehabilitation taken into account.
To be fully understood, the text of Article 1F(b)
must be situated in its surrounding context and considered in light of its
drafting history. Given the widely divergent interpretations of Article 1F(b)
adopted by courts in other jurisdictions and the uncertainty created by the
territorial limits described in Article 1F(b), recourse to the interpretive
assistance of the preparatory work is helpful.
The travaux préparatoires
provide some insight into why the signatories to the Convention adopted the text which is currently found in Article 1F(b). They
illustrate that the discussions were only about refugee claimants who had
committed a crime outside the country of refuge but had
not been convicted or served a sentence for that crime.
The origins of these discussions was to expand the scope of those who were
entitled to refugee status. In this context, there was broad agreement among
the representatives that only fugitives from serious non-political crimes be excluded from entitlement. The issue was
never about those who had committed serious crimes and had already served their sentences outside the receiving country.
The language adopted with the intent of expanding protection should not be used
to narrow the category of those entitled to protection.
Courts in other jurisdictions, it is widely
accepted that the original purpose of Article 1F(b) was to deny refugee status
to fugitives, namely, those individuals who had avoided prosecution for serious
non-political crimes committed abroad. This was based on the premise that
enabling those individuals to obtain refugee status would compromise the
integrity of the international system of refugee protection. All jurisdictions
also appear to agree that there are other circumstances in which Article 1F(b)
excludes individuals from the Refugee Convention, but
there seems to be little agreement as to when those circumstances arise.
But recent international jurisprudence shows that
it remains far from clear that the signatories to the
Refugee Convention intended to exclude all individuals who were believed to have
committed serious non-political crimes, without regard for whether they had
been rehabilitated. This leaves it open to this Court to reach its own
conclusion as to how to interpret the scope of 1F(b).
The requisite good faith interpretive approach
mandates not divorcing the text of Article 1F(b) from its human rights purpose.
This is particularly so given the clear concern reflected by the travaux préparatoires that the basis for
exclusion under Article 1F(b) should be restrictively written so that it would
not be "too easy" for states to deny the humanitarian protections
guaranteed by the Refugee Convention. Moreover, there is little or no
authority for the proposition that everyone who has committed a serious crime outside the country of refuge
remains permanently undeserving of the Refugee Convention's
protection regardless of their supervening personal circumstances. Such a
relentlessly exclusionary -- and literal -- approach would contradict both the
"good faith" approach to interpretation required by the Vienna Convention, as well as the Refugee Convention's human rights purpose.
Depending on the seriousness of the crime, if an
individual is believed to have committed a serious non-political crime, the
purpose of Article 1F(b) can be met where the individual's circumstances
reflect a sufficient degree of rehabilitation or expiation that the claimant
ought not to be disqualified from the humanitarian protection of the Refugee Convention. The completion of a sentence, along with factors such as the
passage of time since the commission of the offence, the age at which the crime
was committed, and the individual's rehabilitative conduct, will all be
relevant. On the other hand, individuals who have committed such serious crimes
that they must be considered undeserving of the status of being a refugee,
would be excluded. This approach accords with the intention of the signatories
to the Refugee Convention to protect the integrity and
viability of the international system of protection for refugees by limiting
the obligations of the contracting parties towards individuals who have
committed very serious crimes.
The claimant in this case expressed remorse
immediately after the commission of the offence and turned himself in to the
police. He pleaded guilty and served his sentence for his criminal conduct. He
also admitted that he was suffering from problems with alcohol at the time of
the offence. While it is clear that the criminal conduct was serious, what has
yet to be determined is whether the crime is so serious that the claimant's
personal circumstances since serving his sentence in 1984 ought to be
disregarded in considering whether he is entitled to refugee status. As a
result, the appeal should be allowed and the matter returned to the Immigration
and Refugee Board for redetermination.
Cases Cited
Cases Cited
By McLachlin C.J.
Referred to: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Thomson v. Thomson, [1994] 3 S.C.R. 551; Januzi v. Secretary of
State for the Home Department, [2006] UKHL 5, [2006] 2
A.C. 426; Ezokola v. Canada (Citizenship and
Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678; R. (European Roma Rights Centre) v. Immigration Officer at Prague
Airport, [2004] UKHL 55, [2005] 2 A.C. 1; Canada (Attorney General) v. Ward, [1993] 2
S.C.R. 689; B (Area of Freedom, Security and Justice) (2008), BVerwG 10 C 48.07, OVG 8 A 2632/06 A; Bundesrepublik Deutschland v. B., [2010] EUECJ
C-57/09; T. v. Secretary of State for the Home
Department, [1996] 2 All E.R. 865; AH (Algeria) v. Secretary of State for the Home Department, [2013] UKUT 00382; Dhayakpa v. Minister of
Immigration and Ethnic Affairs, [1995] FCA 1653, 62
F.C.R. 556; Ovcharuk v. Minister for Immigration and
Multicultural Affairs, [1998] FCA 1314, 88 F.C.R. 173; Minister for Immigration and Multicultural Affairs v. Singh, [2002] HCA 7, 209 C.L.R. 533; Attorney-General
(Minister of Immigration) v. Tamil X, [2010] NZSC 107, 1
N.Z.L.R. 721; X v. Commissaire général aux réfugiés et
aux apatrides, No. 27.479, May 18, 2009; X v. Commissaire général aux réfugiés et aux apatrides, No. 69656, November 8, 2011; Office français
de protection des réfugiés et apatrides v. Hykaj, No.
320910, May 4, 2011; Jayasekara v. Canada (Minister of
Citizenship and Immigration), 2008 FCA 404, [2009] 4
F.C.R. 164; Chan v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 390; Bell ExpressVu Limited
Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3.
By Abella J. (dissenting)
Yugraneft Corp. v. Rexx Management Corp., 2010 SCC 19, [2010] 1 S.C.R. 649; Peracomo
Inc. v. TELUS Communications Co., 2014 SCC 29; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Ezokola v. Canada
(Citizenship and Immigration), 2013 SCC 40, [2013] 2
S.C.R. 678; Al-Sirri v. Secretary of State for the Home
Department, [2012] UKSC 54, [2013] 1 A.C. 745; Canada (Attorney General) v. Ward, [1993] 2
S.C.R. 689; Bundesrepublik Deutschland v. B., [2010] EUECJ C-57/09; SRYYY v. Minister for
Immigration and Multicultural and Indigenuous Affairs,
[2005] FCAFC 42, 220 A.L.R. 394; Attorney-General
(Minister of Immigration) v. Tamil X, [2010] NZSC 107, 1
N.Z.L.R. 721; AH (Algeria) v. Secretary of State for the
Home Department, [2013] UKUT 00382; Office français de protection des réfugiés et apatrides v. Hykaj, No. 320910, May 4, 2011; Dhayakpa v.
Minister of Immigration and Ethnic Affairs, [1995] FCA
1653, 62 F.C.R. 556; Minister for Immigration and
Multicultural Affairs v. Singh, [2002] HCA 7, 209 C.L.R.
533; X v. Commissaire général aux réfugiés et aux
apatrides, No. 69656, November 8, 2011; XXX v. État belge, No. 199.079, A.
192.074/XI-16.797; X v. Commissaire général aux réfugiés
et aux apatrides, No. 27.479, May 18, 2009; KK (Turkey) v. Secretary of State for the Home Department, [2004] UKIAT 00101; Secretary of State for
the Home Department v. AA (Palestine), [2005] UKIAT
00104; R. (JS (Sri Lanka)) v. Secretary of State for the
Home Department, [2010] UKSC 15, [2010] 3 All E.R. 881.
Statutes and Regulations Cited
Statutes and Regulations Cited
Aliens and Nationality, 8
U.S .C. s. 1158(c)(2)(B),(3).
Canadian Charter of Rights and Freedoms, s. 7.
Criminal Code, R.S.C. 1985,
c. C-46.
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 95 to 98, 100 to 102, 113, 114.
Penal Code of California, s.
245(a)(1).
Treaties and Other International Instruments
Constitution of the International Refugee
Organization, 18 U.N.T.S. 3, Ann. I, Part II.
Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6, Preamble, arts. 1, 33.
Convention Relating to the Status of Refugees, 189 U.N.T.S. 150, arts. 1, 33.
Declaration of States Parties to the 1951
Convention and or its 1967 Protocol Relating to the Status of Refugees, HCR/MMSP/2001/09.
Protocol relating to the Status of Refugees, 606 U.N.T.S. 267.
Statute of the Office of the United Nations High
Commissioner for Refugees, G.A. Res. 428(V), s. 7.
Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), art. 14.
Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37, arts. 31, 32.
Authors Cited
Authors Cited
Goodwin-Gill, Guy S. The
Refugee in International Law, 2nd ed. Oxford: Clarendon
Press, 1996.
Grahl-Madsen, Atle. The
Status of Refugee in International Law, vol. I, Refugee Character. Leyden, Netherlands:
Sijthoff, 1966.
Hathaway, James C., and Michelle Foster. The Law of Refugee Status, 2nd ed. Cambridge:
Cambridge University Press, 2014.
United Nations. Collected
Travaux Préparatoires of the 1951 Geneva Convention Relating to the Status of
Refugees, vol. III, The
Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons. Amsterdam: Dutch Refugee Council, 1989.
United Nations. General Assembly. Conference of Plenipotentiaries on the Status of Refugees and Stateless
Persons: Summary Record of the Twenty-ninth Meeting,
U.N. Doc. A/CONF.2/SR.16 (1951).
United Nations. General Assembly. Conference of Plenipotentiaries on the Status of Refugees and
Stateless Persons: Summary Record of the Twenty-ninth Meeting, U.N. Doc. A/CONF.2/SR.24 (1951).
United Nations. General Assembly. Conference of Plenipotentiaries on the Status of Refugees and
Stateless Persons: Summary Record of the Twenty-ninth Meeting, U.N. Doc. A/CONF.2/SR.29 (1951).
United Nations High Commissioner for Refugees.
"Background Note on the Application of the Exclusion Clauses: Article 1F
of the 1951 Convention relating to the Status of Refugees" (2003) (online:
http://www.refworld.org/docid/3f5857d24.html).
United Nations High Commissioner for Refugees.
"Guidelines on International Protection: Application of the Exclusion
Clauses: Article 1F of the 1951 Convention relating to the Status of
Refugees", HCR/GIP/03/05, September 4, 2003 (online: www.unhcr.org).
History and Disposition:
History and Disposition:
APPEAL from a judgment of the Federal Court of
Appeal (Evans, Sharlow and Stratas JJ.A.), 2012 FCA 324, 442 N.R. 290, 357
D.L.R. (4th) 343, [2012] F.C.J. No. 1609 (QL), 2012 CarswellNat 5012, affirming
a decision of Scott J., 2011 FC 1103, 397 F.T.R. 179, [2011] F.C.J. No. 1360 (QL),
2011 CarswellNat 3917. Appeal dismissed, Abella and Cromwell JJ. dissenting.
Counsel:
Counsel:
Jared Will and Peter Shams, for the appellant.
François Joyal, for the
respondent.
Jennifer Klinck, Perri Ravon, Michael Sabet and Justin Dubois, for the intervener Amnesty
International.
John Terry, Ryan Lax and Rana R.
Khan, for the intervener the United Nations High
Commissioner for Refugees.
Aviva Basman and Alyssa Manning, for the intervener the
Canadian Association of Refugee Lawyers.
Catherine Dauvergne, Angus Grant and Pia
Zambelli, for the intervener the Canadian Council for
Refugees.
Peter Edelmann, Lorne Waldman and Aris
Daghighian, for the intervener the Canadian Civil
Liberties Association.
Solicitors for the appellant: Jared Will, Montréal;
Peter Shams, Montréal.
Solicitor for the respondent: Attorney General of
Canada, Montréal.
Solicitors for the intervener Amnesty
International: Power Law, Ottawa.
Solicitors for the intervener the United Nations
High Commissioner for Refugees: Torys, Toronto; UNHCR, Toronto.
Solicitors for the intervener the Canadian
Association of Refugee Lawyers: Refugee Law Office, Toronto.
Solicitor for the intervener the Canadian Council
for Refugees: University of British Columbia, Vancouver.
Solicitors for the intervener the Canadian Civil
Liberties Association: Edelmann & Co. Law Office, Vancouver; Waldman &
Associates, Toronto.
The judgment of McLachlin C.J. and LeBel,
Rothstein, Moldaver and Karakatsanis JJ. was delivered by
· McLACHLIN C.J.:--
Introduction
1 The
issue in this case is whether Luis Alberto Hernandez Febles is ineligible for
refugee protection because of crimes committed before he came to Canada. Mr.
Febles was admitted to the United States as a refugee from Cuba. While living
in the United States, he was convicted and served time in prison for two
assaults with a deadly weapon -- in the first case, he struck a roommate on the
head with a hammer, and in the second, he threatened to kill a roommate's
girlfriend at knifepoint. The U.S. revoked his refugee status and issued a
removal warrant, which is still outstanding.
2 After
his refugee status in the U.S. was revoked, Mr. Febles fled to Canada, entering
illegally. He now claims refugee protection in Canada. The question is whether
Article 1F(b) (the "serious criminality" exclusion) of the Convention Relating to the Status of Refugees,
Can. T.S. 1969 No. 6 ("Refugee Convention"), incorporated in Canada by s. 98 of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 ("IRPA"),
bars him from refugee protection because of the crimes he committed in the
past.
3 Essentially,
different interpretations of Article 1F(b) of the Refugee
Convention are in contention. The Minister of
Citizenship and Immigration ("Minister") says that the Article 1F(b)
serious criminality exclusion is triggered whenever the refugee claimant has
committed a serious non-political crime before coming to Canada. It is not
confined to fugitives from justice. Nor are post-crime events, like
rehabilitation or expiation, relevant, in the Minister's view. The only
question is whether the claimant committed a serious non-political crime before
seeking refugee protection in Canada.
4 Mr.
Febles and the United Nations High Commissioner for Refugees
("UNHCR") advocate narrower interpretations of Article 1F(b). Mr.
Febles argues that the exclusion in Article 1F(b) is confined to fugitives from
justice (which Mr. Febles, having served his sentences, is not). The UNHRC
(with whom Mr. Febles agrees) argues that the question is whether the refugee
claimant is "deserving" of refugee protection at
the time of the application, which requires
consideration not only of the seriousness of the offence itself, but of how
long ago the offence was committed, the conduct of the claimant since the
commission of the offence, whether the claimant has expressed regret or
renounced criminal activities, and whether the claimant poses a threat to the
security of Canada at the present time.
5 In
a nutshell, the Minister says that serious criminality under Article 1F(b) is
simply a matter of looking at the seriousness of the crime when it was
committed, while Mr. Febles and the UNHRC say it requires consideration of
other matters -- whether the claimant is a fugitive and/or his current
situation, including rehabilitation, expiation and current dangerousness.
6 For
the reasons that follow, I agree with the conclusion of the Immigration and
Refugee Board ("Board"), upheld in the courts below, that only
factors related to the commission of the criminal offences can be considered,
and whether those offences were serious within the meaning of Article 1F(b). On
this interpretation of Article 1F(b), Mr. Febles does not qualify for refugee
protection because of the serious crimes he committed in the U.S. before
seeking admission to Canada as a refugee.
The Statutory Scheme
7 Refugee
protection claims in Canada are adjudicated by the Board under the IRPA. Three procedures under the IRPA are relevant to the present appeal.
8 The
first procedure (ss. 100 to 102 of the IRPA) determines whether a claim for refugee protection is eligible for
referral to the Board. At the time of Mr. Febles' application, ss. 101(1)(f) and 101(2)(b) provided that a claim was ineligible to be referred to the Board if
the claimant had been convicted of an offence outside Canada, where the same
offence in Canada is punishable by a maximum term of imprisonment of at least
10 years, and the claimant represented a danger to the public in the Minister's
opinion. This procedure did not bar Mr. Febles' claim for refugee protection
because the Minister did not file an opinion of dangerousness.
9 The
second procedure (ss. 95 to 98 of the IRPA) determines whether a claimant is entitled to refugee protection.
Section 98 -- the provision at issue here -- requires the Board to reject a
refugee protection claim by any person referred to in Articles 1E or 1F of the Refugee Convention. Article 1F(b) of the Refugee Convention provides that a person with
respect to whom there are serious reasons for considering that "he has committed a serious non-political crime outside the country
of refuge prior to his admission to that country as a refugee" is excluded from the protection of the Refugee
Convention. Interpretation of the meaning of that
article is the primary issue in this case.
10 Finally,
even where a refugee protection claim is rejected by application of s. 98 and a
removal order is issued, a claimant may still apply to the Minister for
protection against a removal order. In determining whether to stay the removal
order, the Minister must balance any danger to the public in Canada against the
risk that a claimant would face death, torture or cruel and unusual treatment
or punishment if removed from Canada to the place designated in the removal
order (ss. 97, 112, 113(d)(i) and
114(1)(b) of the IRPA).
Analysis
Interpretation of a
Canadian Statute that Incorporates an International Treaty
11 Parliament
has incorporated Articles 1E and 1F of the Refugee
Convention into s. 98 of the IRPA. Interpretation of an international treaty that has been directly
incorporated into Canadian law is governed by Articles 31 and 32 of the Vienna Convention on the Law of Treaties, Can.
T.S. 1980 No. 37 ("Vienna Convention"): Pushpanathan v. Canada (Minister of
Citizenship and Immigration), [1998] 1 S.C.R. 982, at
paras. 51-52; Thomson v. Thomson, [1994] 3 S.C.R. 551, at pp. 577-78. It follows that the meaning of
the incorporated Articles of the Refugee Convention must be determined in accordance with the Vienna
Convention.
12 Articles
31 and 32 of the Vienna Convention set out the principles of treaty interpretation which are similar to
general principles of statutory interpretation:
· Article 31. GENERAL RULE OF
INTERPRETATION
· 1. A treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context and in
the light of its object and purpose.
· 2. The context for the purpose of the interpretation of a treaty
shall comprise, in addition to the text, including its preamble and
annexes:
· (a) Any agreement
relating to the treaty which was made between all the parties in connexion with
the conclusion of the treaty;
· (b) Any instrument
which was made by one or more parties in connexion with the conclusion of the
treaty and accepted by the other parties as an instrument related to the
treaty.
·
3. There shall be taken into
account, together with the context:
· (a) Any subsequent
agreement between the parties regarding the interpretation of the treaty or the
application of its provisions;
· (b) Any subsequent
practice in the application of the treaty which establishes the agreement of
the parties regarding its interpretation;
· (c) Any relevant rules
of international law applicable in the relations between the parties.
· 4. A special meaning shall be given to a term if it is established
that the parties so intended.
· Article 32. SUPPLEMENTARY MEANS OF
INTERPRETATION
·
Recourse may be had to
supplementary means of interpretation, including the preparatory work of the
treaty and the circumstances of its conclusion, in order to confirm the meaning
resulting from the application of article 31, or to determine the meaning when
the interpretation according to article 31:
· (a) Leaves the meaning
ambiguous or obscure; or
· (b) Leads to a result which
is manifestly absurd or unreasonable.
The Scope of Article
1F(b) of the Refugee Convention
13 Article
1F(b) excludes any person from refugee protection "with respect to whom
there are serious reasons for considering that: ... he
has committed a serious non-political crime outside the country of refuge prior
to his admission to that country as a refugee".
14 Despite
its facial clarity, the meaning of the phrase "has committed a serious
non-political crime" is the subject of debate by courts and academic
writers. While there are many variations of these debates, the main issue in
the present case is whether "has committed a serious ... crime" is
confined to matters relating to the crime committed, or should be read as also
referring to matters or events after the commission of the crime, such as
whether the claimant is a fugitive from justice or is unmeritorious or
dangerous at the time of the application for refugee protection. If Article
1F(b) is read as including consideration of matters occurring after the
commission of the crime, people who have committed a serious crime in the past
may nevertheless qualify as refugees because they have served their sentence or
because of redeeming conduct subsequent to the crime.
15 Article
31(1) of the Vienna Convention
states how interpretation of the Refugee Convention should be approached -- by considering: (1) the "ordinary
meaning" of its terms; (2) the context; and (3) the object and purpose of
the Refugee Convention. For the
reasons that follow, these considerations, as well as the Collected Travaux Préparatoires of the 1951 Geneva Convention
Relating to the Status of Refugees (1989), vol. III
("Travaux préparatoires")
and the jurisprudence, lead me to conclude that the phrase "has committed
a serious ... crime" refers to the crime at the time it was committed.
Article 1F(b), in excluding from refugee protection people who have committed
serious crimes in the past, does not exempt from this exclusion persons who are
not fugitives from justice, or because of their rehabilitation, expiation or
non-dangerousness at the time they claim refugee protection.
The Ordinary Meaning of
Article 1F(b)
16 The
point of departure for interpreting a provision of a treaty is the plain
meaning of the text. As the House of Lords put it in Januzi
v. Secretary of State for the Home Department, [2006]
UKHL 5, [2006] 2 A.C. 426, at para. 4, "the starting point of the
construction exercise must be the text of the Convention itself, ... because it
expresses what the parties to it have agreed. The parties to an international
convention are not to be treated as having agreed something they did not agree,
unless it is clear by necessary implication from the text".
17 The
ordinary meaning of the terms used in Article 1F(b) -- "has committed a
serious ... crime outside the country of refuge prior to his admission to that
country..." -- refers only to the crime at the time it was committed. The
words do not refer to anything subsequent to the commission of the crime. There
is nothing in the text of the provision suggesting that it only applies to
fugitives, or that factors such as current lack of dangerousness or post-crime
expiation or rehabilitation are to be considered or balanced against the
seriousness of the crime.
18 The
mandatory wording of the Article ("shall not apply") chosen by the parties to the Refugee Convention unequivocally supports the
view that all a subscribing country can consider in determining whether a
claimant is excluded under Article 1F(b) is whether the claimant committed a
serious crime outside the country of refuge prior to applying for refugee
status there. Nothing in the words used suggests that the parties to the Refugee Convention intended subsequent
considerations, like rehabilitation, expiation and actual dangerousness, to be
taken into account.
The Context
19 The
second interpretive consideration is the context. The immediate context of
Article 1F(b) is Article 1F as a whole. Article 1F is comprised of three
provisions, each of which excludes certain classes of persons from the Refugee Convention's protection. Article 1F(a)
excludes anyone who has "committed a crime against peace, a war crime, or
a crime against humanity". Article 1F(c) excludes anyone "guilty of
acts contrary to the purposes and principles of the United Nations".
20 Mr.
Febles argues that this context suggests that Article 1F(b) is limited to
fugitives. He appears to concede that Articles 1F(a) and 1F(c) are not
themselves limited to fugitives, and that they operate to exclude all persons
who have committed the acts listed in those provisions. Nevertheless, he argues
that limiting Article 1F(b) to fugitives would not be incongruous. He submits
that, unlike Article 1F(b), Articles 1F(a) and 1F(c) are designed to prevent
people who are themselves persecutors from seeking protection from persecution,
and that it would undermine the Refugee Convention's viability if persecutors who create refugees could seek refugee
protection. Persons who have committed serious crimes under Article 1F(b) are
in a different situation, Mr. Febles argues. It would not undermine the Refugee Convention's viability to allow
non-fugitives who have already served sentences for standard crimes to seek
refugee protection. On this basis, he invites this Court to confine Article
1F(b) to fugitives from justice.
21 Against
this, the Minister argues that the word "committed" should be given
the same meaning in Articles 1F(a) and 1F(b): these provisions apply to anyone
who has ever committed the offences, not only to fugitives or some other subset
of those persons who have in fact committed the described offences.
22 I
agree. I cannot accept Mr. Febles' argument that Articles 1F(a) and 1F(c)
support the view that the exclusion from refugee protection under Article 1F(b)
is confined to fugitives. There is nothing in the wording of these provisions
or in the jurisprudence to support this contention. (See Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678, at paras. 38 and 101, and Pushpanathan, at paras. 65-66 and 70 where the
scope of these articles is discussed.) While Article 1F(c) uses the word
"guilty", Articles 1F(a) and 1F(b) both use the word
"committed".
23 The
immediate context therefore supports the Minister's interpretation. It would be
anomalous if the word "committed" were ascribed different meanings in
Articles 1F(a) and 1F(b) and the use of consistent language in these two
articles was meant to evince an intention on the part of the drafters that they
be applied inconsistently. As nobody has suggested that Article 1F(a) is
confined to fugitives, it follows that Article 1F(b) would similarly not be
restricted to fugitives.
24 Mr.
Febles also says that Article 33(2) of the Refugee
Convention supports the view that Article 1F(b) is
confined to fugitives. Article 33(2) allows a host country to expel a refugee
who has been "convicted by a final judgment of a particularly serious
crime" and "constitutes
a danger to the community of that country". As far as Refugee Convention provisions go, Article
1F(b) only applies to crimes committed outside the country of refuge, whereas a refugee who commits a crime in the country of refuge can only be expelled
under Article 33(2). Mr. Febles argues that this results in an absurdity. Why
should someone who has served his sentence for a crime committed outside the
country of refuge be automatically disentitled to refugee protection, when
someone who commits a serious crime inside the country of refuge is allowed to
retain refugee protection absent a danger to the public? This apparent
absurdity disappears, Mr. Febles says, if Article 1F(b) is read as being
restricted to fugitives.
25 Again,
the argument fails to persuade. Article 33(2) is an exception to the Article
33(1) principle of non-refoulement of persons whose need for protection has been recognized (or not yet
adjudicated). That is why the drafters used different language in Article 33(2)
than they did in Article 1F(b): Article 33(2) allows persons to nevertheless be
removed in the exceptional circumstances it describes, including in the event
of particularly serious crimes, and
"danger to the community".
26 That
the Refugee Convention drafters
intended that persons who commit crimes in the country of refuge be treated
differently than those who commit crimes outside the country of refuge prior to
claiming refugee protection makes sense. When a person commits a crime inside
the country of refuge, the country of refuge is called to rely on its own sovereign legal system, rather than on
an international treaty. In Canada's case, it has done so by enacting a
parallel and virtually identical provision regarding the effect of commission
of a crime: s. 101(2)(a) of the IRPA specifies that a refugee protection claim
cannot be made in the event "of a conviction in
Canada [where] the conviction is for an offence under an
Act of Parliament punishable by a maximum term of imprisonment of at least 10
years". Therefore, the discrepancy and resultant absurdity contended by
Mr. Febles do not exist. In any event, different concerns arise when a country
is asked to take in claimants who have committed crimes abroad, and the context
provided by Article 33(2) of the Refugee Convention does not aid in the interpretive task at hand.
The Object and Purpose
of the Refugee Convention
· (a) The Refugee Convention as a Whole
27 The
purposes of the Refugee Convention include the international community's "profound concern for
refugees" and commitment to "assure refugees the widest possible
exercise of ... fundamental rights and freedoms": see Ezokola, at para. 32, and Pushpanathan, at para. 57. While Article 1F(b)
has a more specific exclusionary purpose, that purpose must be consistent with
the broader protective aims of the Refugee Convention.
28 Mr.
Febles argues that broad construction of exclusion provisions risks subverting
the Refugee Convention's
humanitarian aims -- courts should accordingly construe exclusion provisions as
narrowly as is possible while still preserving the viability of the Refugee Convention.
29 The
problem with this approach is that it risks upsetting the balance between
humane treatment of victims of oppression and the other interests of signatory
countries, which they did not renounce simply by together making certain
provisions to aid victims of oppression. The Refugee
Convention is not itself an abstract principle, but an
agreement among sovereign states in certain specified terms, negotiated by them
in consideration of the entirety of their interests. In R.
(European Roma Rights Centre) v. Immigration Officer at Prague Airport, [2004] UKHL 55, [2005] 2 A.C. 1, the U.K. House of Lords stated
that the Refugee Convention
"represent[s] a compromise between competing interests, in this case
between the need to ensure humane treatment of the victims of oppression on the
one hand and the wish of sovereign states to maintain control over those
seeking entry to their territory on the other" (para. 15).
30 I
agree with this statement of the Refugee Convention's twin purposes. While exclusion clauses should not be enlarged in a
manner inconsistent with the Refugee Convention's broad humanitarian aims, neither should overly narrow
interpretations be adopted which ignore the contracting states' need to control
who enters their territory. Nor do a treaty's broad purposes alter the fact
that the purpose of an exclusion clause is to exclude. In short, broad purposes
do not invite interpretations of exclusion clauses unsupported by the text.
31 For
these reasons, I conclude that consideration of the purposes of the Refugee Convention as a whole do not support Mr.
Febles' argument that Article 1F(b) is confined to fugitives.
Article 1F(b)
32 This
brings me to the purpose of Article 1F(b) itself. Mr. Febles argues that the
main rationale for Article 1F(b) is the exclusion of fugitives (although he
allows for the possibility that Article 1F(b) may apply to non-fugitives in
certain rare circumstances where the crimes at issue are especially heinous and
contribute to the creation of refugees). It follows, he says, that since
Article 1F(b) is directed at preventing fugitives from evading justice, it
should generally have no application to persons who have already served their
sentences for prior crimes. Mr. Febles relies on obiter
dicta of this Court in Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689, and Pushpanathan that Article 1F(b) is directed at
the exclusion of fugitives.
33 The
Minister counters that the main rationale for Article 1F(b) is the exclusion of
serious criminals because persons who have committed serious offences are by
definition undeserving of refugee protection, supported by a secondary
rationale of protection of the host society. By the Minister's interpretation,
determination of a crime's seriousness requires an evaluation of the elements
of the crime, the mode of prosecution, the penalty prescribed, the facts and
the mitigating and aggravating circumstances underlying the conviction, but
does not include post-offence considerations. A person who commits a serious
non-political crime is forever barred from claiming refugee protection. This
interpretation was adopted by the courts below, and was recently endorsed by
the European Court of Justice.
34 The
UNHCR argues that Article 1F(b) has two purposes -- exclusion of fugitives and
exclusion of claimants undeserving of refugee protection at the time it is
claimed. If a person has committed a crime within the scope of Article 1F(b),
but has since served a sentence commensurate with that criminal conduct or has
been otherwise rehabilitated, the decision maker on the refugee application
must in each case determine whether such a person is deserving of refugee protection at that time, having regard to: the passage of
time since the commission of the offence; the seriousness of the offence (and
whether it can be characterized as "truly heinous"); the age at which
the person committed the crime; the conduct of the individual since then;
whether the individual has expressed regret or renounced criminal activities;
and whether the individual poses a threat to the community or security of the
receiving state. Justice Abella similarly suggests that for all but
"very" serious crimes, expiation and rehabilitation must be
considered (para. 74).
35 I
cannot accept the arguments of Mr. Febles and the UNHCR on the purposes of
Article 1F(b). I conclude that Article 1F(b) serves one main purpose -- to
exclude persons who have committed a serious crime. This exclusion is central
to the balance the Refugee Convention strikes between helping victims of oppression by allowing them to
start new lives in other countries and protecting the interests of receiving
countries. Article 1F(b) is not directed solely at fugitives and neither is it
directed solely at some subset of serious criminals who are undeserving at the
time of the refugee application. Rather, in excluding all claimants who have
committed serious non-political crimes, Article 1F(b) expresses the contracting
states' agreement that such persons by definition would be undeserving of
refugee protection by reason of their serious criminality.
36 Excluding
people who have committed serious crimes may support a number of subsidiary
rationales -- it may prevent people fleeing from justice; it may prevent
dangerous and particularly undeserving people from entering the host country.
However, Article 1F(b) cannot be confined to any of these subsidiary purposes.
Excluding people who have committed crimes in other countries prior to seeking
refugee protection may serve other state interests. It may help preserve the
integrity and legitimacy of the refugee protection system, and, hence, the
necessary public support for its viability. It may deter states from exporting
criminals by pardoning them or imposing disproportionately lenient sentences
while supporting their departure elsewhere as refugees. Finally, it may allow
states to reduce the danger to their society from all serious criminality cases
taken together, given the difficult task and potential for error when
attempting to determine whether criminals from abroad (on whom they have more
limited sources of information than on domestic criminals) are no longer
dangerous. Whatever rationales for Article 1F(b) may or may not exist, its
purpose is clear in excluding persons from protection who previously committed
serious crimes abroad.
The Travaux Préparatoires
37 Besides
the arguments already addressed, Mr. Febles argues that the Travaux préparatoires to the Refugee Convention (the working documents
preceding the Refugee Convention's
adoption) support his view that Article 1F(b) is confined to fugitives.
Acknowledging that the Travaux préparatoires"do not provide any 'hard answers'", he nonetheless says
that they generally support this inference.
38 As
discussed, Article 31(1) of the Vienna Convention provides for interpretation of treaty provisions in accordance with
the ordinary meaning of the terms in their context and in light of the treaty's
object and purpose. Article 32 only allows for recourse to "supplementary
means of interpretation" -- including the Travaux
préparatoires -- in order to
confirm the meaning resulting from the application of Article 31, or to
determine the meaning when the interpretation according to Article 31 leaves
the meaning ambiguous or obscure; or leads to a result which is manifestly
absurd or unreasonable.
39 These
conditions for use of the Travaux préparatoires are not present in this case. With great respect to Justice Abella's
contrary view, the meaning of Article 1F(b) is clear, and admits of no
ambiguity, obscurity or absurd or unreasonable result. Therefore, the Travaux préparatoires should not be considered.
40 In
any event, the Travaux préparatoires support the Minister's interpretation rather than Mr. Febles'
reading of Article 1F(b). In the case B (Area of
Freedom, Security and Justice) (2008), BVerwG 10 C
48.07, OVG 8 A 2632/06.A, both the German Federal Administrative Court and the
European Court of Justice, Bundesrepublik Deutschland v.
B., [2010] EUECJ C-57/09, reviewed the Travaux préparatoires and concluded that the
aim of the drafters was to protect the dignity of refugee status by excluding
serious criminals from such status. The Court of Appeal in this case similarly
concluded that "it is clear from the Travaux
Préparatoires that the drafters did not intend to limit
the exclusion provision to fugitives from justice" (2012 FCA 324, 442 N.R.
290, at para. 62).
41 Mr.
Febles points to statements made by certain delegates that he says support his
interpretation when taken in context, but on a review of the Travaux préparatoires as a whole, no concluded
intention to that effect emerges. Indeed, the French delegate stressed the need
to distinguish between bona fide
refugees and non-political criminals, and added that "refugees whose
actions might bring discredit on that status" should be excluded (Travaux préparatoires, U.N. Doc.
A/CONF.2/SR.29, at 19).
42 Accordingly,
I conclude that the Travaux préparatoires do not assist Mr. Febles' position.
The Case Law on Article
1F(b)
43 Courts
around the world have suggested various rationales for the inclusion of Article
1F(b) in the Refugee Convention
and have interpreted the provision in different ways. While the jurisprudence
is inconclusive as to the precise scope and all of the rationales, there is
agreement that Article 1F(b) is not limited to fugitives. After reviewing the
foreign jurisprudence, I conclude that the interpretation adopted by the German
Federal Administrative Court and the European Court of Justice, that Article
1F(b) excludes anyone who has previously committed a serious non-political
crime, is the most consistent with both the prevailing trend in the case law
and the text of the provision.
44 I
will first consider this Court's obiter dicta in Ward and Pushpanathan to the extent that these are read
as suggesting that Article 1F(b) is confined to fugitives. I will then review
the international and Federal Court jurisprudence. A review of the
jurisprudence demonstrates the difficulty of confining Article 1F(b) to a narrow
category of people, like fugitives from justice, and confirms that it applies,
as its words suggest, to anyone who has ever committed a serious non-political
crime outside the country of refuge prior to his admission to that country as a
refugee.
45 In
Ward, the Court was concerned
with what the meaning is of "membership in a particular social group or
political opinion", corresponding to the terms of Article 1A(2) of the Refugee Convention. In obiter, La Forest J. made this brief comment regarding Article 1F(b):
· Hathaway would appear to confine paragraph (b) to accused persons who
are fugitives from prosecution. The interpretation of this amendment was not
argued before us. I note, however, that Professor Hathaway's interpretation
seems to be consistent with the views expressed in the Travaux
préparatoires, regarding the need for congruence between
the Convention and extradition law. [p. 743]
46 The
most that can be said of this comment is that La Forest J., noting that the
issue had not been argued, tentatively accepted the view of Professor Hathaway
that Article 1F(b) was confined to fugitives, on the basis that it seemed to be
consistent with certain statements found in the Travaux
préparatoires. As noted earlier in these reasons, the Travaux préparatoires should not be relied on
in interpreting Article 1F(b). Nor, looking at them in their totality, beyond
the particular comments referred to by La Forest J. with respect to extradition
law, do the Travaux préparatoires
support the view that Article 1F(b) is confined to fugitives. Earlier in his Ward reasons, La Forest J. explicitly
recognized the rationale of a concern to keep out criminal claimants, and the
fact that Canada had amended its legislation to better serve that purpose:
·
In the amended Immigration Act, R.S.C., 1985, c. I-2,
Parliament has further responded to the concern of keeping out dangerous and
criminal claimants by excluding from the definition of "Convention
refugee" in s. 2 of the Act any person to whom the Convention does not
apply pursuant to s. E or F of Art. 1. [p. 742]
47 In
Pushpanathan, this Court was
concerned not with Article 1F(b), but with Article 1F(c), which excludes from
protection those guilty of crimes contrary to the purposes and principles of
the United Nations. Bastarache J., discussing the potential for overlap between
Articles 1F(b) and 1F(c), suggested in obiter that Article 1F(b) was limited to "ordinary criminals
extraditable by treaty" (para. 73). Bastarache J. gave no reasons for
interpreting the clause as limited to extraditable fugitives, and the only
authority cited at that section of the reasons is Professor G. S.
Goodwin-Gill's The Refugee in International Law (2nd ed. 1996). Under the heading The
drafting history of article 1F(b), Goodwin-Gill's text
contains a phrase identical to that used by Bastarache J.: "The IRO
Constitution excluded refugees who were 'ordinary
criminals ... extraditable by treaty'" (p.101
(emphasis added)).
48 It
may therefore bear note that the more recent version of Professor Goodwin-Gill
and J. McAdam's text (The Refugee in International Law (3rd ed. 2007)), under the title The relation
to extradition, observes as follows:
· [T]he "fugitives from justice" thesis appears to be on the
wain, as being inconsistent with the ordinary meaning of the words. It is one
thing to say that those seeking to escape prosecution for serious non-political
crimes should not be recognized as refugees; but quite another to say that only such fugitives come within the scope of
article 1F(b). [Emphasis in original; p. 175.]
49 The
restrictive views contained in the passing comments regarding Article 1F(b)
made in obiter dicta in Ward and Pushpanathan find little support in the international case law. Recent
jurisprudence out of the United Kingdom, Australia, New Zealand, and the
European Union rejects the view that the purpose of Article 1F(b) is confined
to exclusion of fugitives.
50 In
T. v. Secretary of State for the Home Department, [1996] 2 All E.R. 865, the U.K. House of Lords discussed the
purpose of Article 1F generally and indicated that the purpose of Article 1F(b)
was not limited to exclusion of fugitives. Rather, Article 1F(b) recognizes
that there are those "whose criminal habits ma[ke] it unreasonable for
them to be forced on to a host nation against its will" (p. 875). More
recently, the U.K. Upper Tribunal (Immigration and Asylum Chamber) confirmed
that Article 1F(b) is not confined to fugitives in AH
(Algeria) v. Secretary of State for the Home Department,
[2013] UKUT 00382 (IAC) (para. 97).
51 Similar
reasoning has been adopted in Australia. In Dhayakpa v.
Minister of Immigration and Ethnic Affairs, [1995] FCA
1653, 62 F.C.R. 556, French J. of the Australian Federal Court stated that
"[t]he exemption in Article 1F(b) ... is protective of the order and
safety of the receiving State" (para. 29). Dhayakpa was subsequently affirmed in Ovcharuk v.
Minister for Immigration and Multicultural Affairs,
[1998] FCA 1314, 88 F.C.R. 173, where the Australian Federal Court specifically
declined to follow this Court's dicta in Ward and Pushpanathan that Article 1F(b) applied only
to fugitives (pp. 6 and 13).
52 The
leading Australian case is Minister for Immigration and
Multicultural Affairs v. Singh, [2002] HCA 7, 209 C.L.R.
533. Kirby J. made an extensive survey of the applicable principles of
international law, and the context, object and purposes of the Refugee Convention. While he acknowledged the Refugee Convention's humanitarian objectives
and the "heavy burdens" it imposes on the contracting states (para.
94), he also found that the Refugee Convention represented a compromise between competing purposes:
· [C]ountries of refuge are usually entitled to ensure the integrity of
their own communities. In the case of serious crimes, such countries are
normally entitled to exclude persons convicted of, or suspected of complicity
in, such crimes. This is because such involvement may indicate, to some degree
at least, the possibility of future risk to the community of the country of
refuge. Without such entitlement in defined extreme cases, there would be a
risk that the protective objectives of the Convention might be undermined by
strong popular and political resentment. [Footnote omitted; para. 95.]
53 In
Attorney-General (Minister of Immigration) v. Tamil X, [2010] NZSC 107, 1 N.Z.L.R. 721, the Supreme Court of New Zealand
stated that two purposes underlie Article 1F(b): (1) to prevent fugitives from
avoiding punishment for their crimes; and (2) to protect the security of
states. The court made clear that the language of Article 1F(b) "cannot
... be read as confining exclusion to those who are fugitives from
justice" (para. 82).
54 In
B (Area of Freedom, Security and Justice), both the German Federal Administrative Court and the European Court
of Justice held that current dangerousness is not relevant to the application
of Article 1F(b). While the claimants in B (Area of
Freedom, Security and Justice) were fugitives, both courts
went on to discuss the general purpose and scope of both Articles 1F(b) and (c)
and suggested that the exclusions apply to anyone who has ever committed the
acts referenced in those provisions. After examining the Travaux préparatoires of the Refugee Convention, the German Federal
Administrative Court held that the dominant purpose of Article 1F(b) is to
"protect refugee status from abuse, by keeping it from being granted to
undeserving applicants" and to "prevent refugee status from being
discredited by including criminals in the group of recognised refugees"
(paras. 29-30). The European Court of Justice stated that Article 1F(b)
operates as "a penalty for acts committed in the past" (para. 103)
and was "introduced with the aim of excluding from refugee status persons
who are deemed to be undeserving of the protection which that status
entails" (para. 104). In other words, Article 1F(b) is aimed at excluding
from refugee status persons who have committed a serious crime, regardless of
what may have happened since.
55 I
cannot agree with Justice Abella when she says that B
(Area of Freedom, Security and Justice) "said
nothing about whether -- or the extent to which -- Article 1F(b) deals with non
fugitives" (para. 120). To the contrary, the European Court of Justice, at
paras. 100-5, made it clear that Articles 1F(b) and 1F(c) operate in the same
way: to preserve the dignity of refugee status by excluding anyone who has ever
committed the acts listed in those provisions. Indeed, even the appellant properly
concedes that "a number of the propositions [in the European Court's
reasoning] seem to suggest that the Article [1F(b)] applies without limit"
(A.F., at para. 78).
56 Two
courts, however, have taken a narrow view of Article 1F(b). In Belgium, the
Conseil du contentieux des étrangers has held that factors such as expiation,
remorse, or even subsequent acts of charity are relevant to whether a claimant
is deserving of refugee protection in a given case (see
X v. Commissaire général aux réfugiés et aux apatrides,
No. 27.479, May 18, 2009, and X v. Commissaire général
aux réfugiés et aux apatrides, No. 69656, November 8,
2011).
57 And
in France, the Conseil d'État has stated that, while protection of the host
society is, besides exclusion of fugitives, a rationale for Article 1F(b), a
claimant who has served his sentence for a serious crime should not be excluded
unless it is found, on the basis
of something more than the fact that an Article 1F(b) crime was committed, that
he would represent a danger to the public (Office
français de protection des réfugiés et apatrides v. Hykaj, No. 320910, May 4, 2011).
58 The
Federal Court of Appeal, confronted with this array of jurisprudence, has
inclined to the view of the High Court of Australia and the European Court of
Justice in a series of cases that includes Jayasekara v. Canada (Minister of Citizenship and
Immigration), 2008 FCA 404, [2009] 4 F.C.R. 164, and the
decision under appeal. The Federal Court of Appeal has not followed the obiter statements in Ward and Pushpanathan and
has held that sentence completion does not "allow [a claimant] to avoid
the application of Article 1F(b)" (Jayasekara, at para. 57).
59 I
conclude that the dominant tide of the jurisprudence is inconsistent with the
conclusion that Article 1F(b) operates so as to exclude only fugitives, as well
as with the proposition that post-crime conduct must be balanced against the
crime's seriousness. Of particular note, none of the international courts
accept the dicta in Ward and Pushpanathan that exclusion of fugitives is the only rationale for Article 1F(b). In my view, the Ward and Pushpanathan obiter statements should no longer be
followed.
Conclusion on the Scope
of Article 1F(b)
60 Article
1F(b) excludes anyone who has ever committed a serious non-political crime
outside the country of refuge prior to his admission to that country as a
refugee. Its application is not limited to fugitives, and neither is the
seriousness of the crime to be balanced against factors extraneous to the crime
such as present or future danger to the host society or post-crime
rehabilitation or expiation.
How Should a Crime's
Seriousness Be Assessed?
61 The
appellant concedes that his crimes were "serious" when they were
committed, obviating the need to discuss what constitutes a "serious ...
crime" under Article 1F(b). However, a few comments on the question may be
helpful.
62 The
Federal Court of Appeal in Chan v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 390 (C.A.), and Jayasekara has taken the view that where a maximum sentence of ten years or
more could have been imposed had the crime been committed in Canada, the crime
will generally be considered serious. I agree. However, this generalization
should not be understood as a rigid presumption that is impossible to rebut.
Where a provision of the Canadian Criminal Code, R.S.C. 1985, c. C-46, has a large sentencing range, the upper end
being ten years or more and the lower end being quite low, a claimant whose
crime would fall at the less serious end of the range in Canada should not be
presumptively excluded. Article 1F(b) is designed to exclude only those whose
crimes are serious. The UNHCR has suggested that a presumption of serious crime
might be raised by evidence of commission of any of the following offences:
homicide, rape, child molesting, wounding, arson, drugs trafficking, and armed
robbery (G. S. Goodwin-Gill, The Refugee in
International Law (3rd ed. 2007), at p. 179). These are
good examples of crimes that are sufficiently serious to presumptively warrant
exclusion from refugee protection. However, as indicated, the presumption may
be rebutted in a particular case. While consideration of whether a maximum
sentence of ten years or more could have been imposed had the crime been
committed in Canada is a useful guideline, and crimes attracting a maximum
sentence of ten years or more in Canada will generally be sufficiently serious
to warrant exclusion, the ten-year rule should not be applied in a mechanistic,
decontextualized, or unjust manner.
The Domestic Statutory
Context and the Canadian Charter of Rights and Freedoms
63 Mr.
Febles' final argument is that his suggested interpretation of Article 1F(b)
should be adopted because it creates harmony within the IRPA and ensures consistency with the Charter. This argument conflates two different interpretive exercises.
64 As
discussed, Article 1F(b) of the Refugee Convention is part of an international treaty, the meaning of which is not
affected by provisions of the IRPA. However, the Board is bound by the IRPA, and not by the Refugee Convention itself. Parliament has the power to pass legislation that complies
with Canada's obligations under the Refugee Convention, or to pass legislation that either exceeds or falls short of the Refugee Convention's protections. In this
case, therefore, there are two separate inquiries. First, what does Article
1F(b) of the Refugee Convention
mean? For this first inquiry, the statutory scheme and the Charter are not relevant. Second, what does s.
98 of the IRPA mean? For this
second inquiry, the domestic statutory context and the Charter are potentially relevant.
65 I
earlier concluded that Article 1F(b) of the Refugee Convention applies to anyone who has ever committed a serious non-political
crime outside the country of refuge prior to his admission to that country as a
refugee.
66 Section
98 of the IRPA expressly
incorporates Article 1F(b) of the Refugee Convention, stating: "A person referred to in section E or F of Article 1
of the Refugee Convention is not a Convention refugee or a person in need of
protection". As such, it is clear that Parliament's intent was for s. 98
to exclude from refugee protection in Canada all persons falling under Article
1F(b) of the Refugee Convention.
There is nothing in the scheme of the IRPA as a whole that indicates a contrary intention.
67 There
is similarly no role to play for the Charter in interpreting s. 98 of the IRPA. Where Parliament's intent for a statutory provision is clear and
there is no ambiguity, the Charter cannot be used as an interpretive tool to give the legislation a
meaning which Parliament did not intend: Bell ExpressVu
Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R.
559, at paras. 61-2. Moreover, as the Court of Appeal held, s. 98 of the IRPA is consistent with the Charter. As stated at para. 10 of these
reasons, even if excluded from refugee protection, the appellant is able to
apply for a stay of removal to a place if he would face death, torture or cruel
and unusual treatment or punishment if removed to that place (ss. 97, 112, 113(d)(i) and 114(1)(b) of the IRPA). On such
an application, the Minister would be required to balance the risks faced by
the appellant if removed against the danger the appellant would present to the
Canadian public if not removed (s. 113(d) of the IRPA). Section
7 of the Charter may also prevent
the Minister from issuing a removal order to a country where Charter-protected rights may be in jeopardy: Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at para. 58.
68 While
the appellant would prefer to be granted refugee protection than have to apply
for a stay of removal, the Charter does not give a positive right to refugee protection. The appellant
is excluded from refugee protection as a result of his commission of serious
non-political crimes. If removal of the appellant to Cuba jeopardizes his Charter rights, his recourse is to seek a stay
of removal, as discussed earlier.
69 Alternatively,
if the appellant believes that the refugee status he was previously granted by
the United States was improperly stripped by U.S. authorities under 8 U.S.C. s.
1158(c)(2)(B) and s. 1158(c)(3), he must challenge this in the justice system
of the United States. The Canadian justice system cannot be invoked to determine
the correctness or the constitutionality of decisions made by U.S. officials
pursuant to U.S. laws.
Disposition
70 I
would dismiss the appeal and uphold the decision of the Board denying refugee
protection to the appellant.
The reasons of Abella and Cromwell JJ. were
delivered by
71 ABELLA
J. (dissenting):-- In the wake of the mass persecution and displacement of
persons during World War II, the international community responsively
consolidated and entrenched international protection for refugees through the
1951 United Nations Convention Relating to the Status of
Refugees, Can. T.S. 1969 No. 6 (Refugee
Convention).
72 The
Refugee Convention, as amended by a 1967 Protocol relating to the Status of Refugees,
606 U.N.T.S. 267, is today the Rosetta Stone of refugee protection under
international law, setting out the definition of who is considered a refugee,
the rights of refugees, and the corresponding obligations of states towards
refugees in their territory. Among other humanitarian protections provided in
the Refugee Convention, the prohibition against refoulement under Article 33 provides that
signatory states are prohibited from forcibly expelling or returning refugees
to a territory in which there is a risk of persecution.
73 While
Article 1 sets out broad parameters for those persons with a well-founded fear
of persecution who will be considered refugees, the category is not open-ended.
The signatories to the Refugee Convention did not want the protections flowing
from refugee status to be extended to individuals whose designation as refugees
would compromise the integrity and political viability of those very
protections.
74 Article
1F sets out the grounds for excluding an individual from the status of
"refugee". The claim for refugee status in this case depends on a
determination of when the commission of a serious non-political crime in
accordance with Article 1F(b) will disqualify an individual from the protective
scope of the Refugee Convention. With great respect, I draw a
different interpretive conclusion than does the majority. While Articles 1F(a)
and (c) represent absolute barriers to refugee status, the human rights
approach to interpretation mandated by the Vienna
Convention on the Law of Treaties, Can. T.S. 1980 No. 37
(Vienna Convention), suggests a
less draconian interpretation of Article 1F(b). In my view, except in the case
of very serious crimes, an individual should not automatically be disqualified
from the humanitarian protection of the Refugee Convention under
this provision and should be entitled to have any expiation or rehabilitation
taken into account.
Background
75 The
facts underlying the criminal conduct in question in this appeal are not
contested. Luis Alberto Hernandez Febles is a Cuban citizen born on December 4,
1954. He left Cuba for the United States on May 14, 1980. He was granted
refugee status in the United States on the ground of fear of persecution as a
political dissident.
76 Mr.
Febles pleaded guilty in 1984 and 1993 to two criminal offences in California.
They are the basis of this appeal.
77 On
July 2, 1984, Mr. Febles turned himself in to the police after having struck
someone on the head with a hammer while the victim was sleeping. He had
consumed alcohol at the time of the offence. On November 20, 1984, Mr. Febles
pleaded guilty to "assault ... with deadly weapon ... other than a
firearm" under the Penal Code of California (s.
245(a)(1)), and was sentenced to two years in prison and three years of
probation.
78 The
second offence occurred on October 3, 1993, when Mr. Febles uttered threats
while pointing a knife at someone. Mr. Febles pleaded guilty to "assault
with a deadly weapon other than a firearm". He was sentenced to two years
in prison and three years of probation.
79 Mr.
Febles does not deny responsibility for these offences. He admitted that he had
serious alcohol problems at the time, but said that he has since stopped
drinking after completing an Alcoholic Anonymous course between 1998 and 2002.
From 2002 to 2008, Mr. Febles was gainfully employed in the United States.
80 Mr.
Febles entered Canada on October 12, 2008. Two days later, on October 14, 2008,
he reported to the authorities and applied for refugee status on the ground of
fear of persecution in Cuba for his political beliefs. He freely disclosed his
criminal convictions to the Canadian authorities in his interview with the
Canada Border Services Agency.
81 On
the basis of the Border Services report, Mr. Febles was referred to the
Immigration Division of the Immigration and Refugee Board (Board) for an
inadmissibility hearing. The Immigration Division concluded that Mr. Febles was
inadmissible based on having committed a serious non-political crime.
82 A
deportation order was issued on June 3, 2010.
83 On
October 14, 2010, the Board's Refugee Protection Division heard Mr. Febles'
claim for refugee protection. The Minister of Public Safety and Emergency
Preparedness filed a notice to intervene, arguing that Mr. Febles should be
excluded from the definition of refugee under Article 1F(b) of the Refugee Convention because he had committed a serious non-political crime. Mr. Febles'
position was that he had served his sentences, was now rehabilitated, and posed
no danger to Canada.
84 The
Board dismissed his claim for refugee status on October 27, 2010, concluding
that the gravity of his crime in 1984 disqualified him from refugee status
under Article 1F(b) of the Refugee Convention.
85 Mr.
Febles' application for judicial review was dismissed by both the Federal
Court, 2011 FC 1103, 397 F.T.R. 179, and Federal Court of Appeal, 2012 FCA 324,
442 N.R. 290. For the following reasons, I would allow the appeal and remit the
matter to the Board for redetermination.
Analysis
86 Article
1F of the Refugee Convention excludes three categories of
individuals from the protective scope of its provisions by limiting the
definition of a "refugee":
· F. The provisions of this Convention shall not apply to any person
with respect to whom there are serious reasons for considering that:
· (a) he has committed a
crime against peace, a war crime, or a crime against humanity, as defined in
the international instruments drawn up to make provision in respect of such
crimes;
· (b) he has committed a
serious non-political crime outside the country of refuge prior to his
admission to that country as a refugee;
· (c) he has been guilty
of acts contrary to the purposes and principles of the United Nations.
87 The
consequences of exclusion under Article 1F are significant. If an individual
becomes ineligible for the status of a "refugee" on the basis of one
of those exclusionary grounds, the humanitarian protections provided in the Refugee Convention are denied altogether, including the protection from refoulement under Article 33. An excluded
individual is consequently at risk of being returned to face persecution in his
or her country of origin, barring the availability of any residual protection
under domestic or international human rights law.
88 Parliament
incorporated Article 1F into the Immigration and Refugee
Protection Act, S.C. 2001, c. 27. Section 95 of the Act
states that refugee protection is conferred on an individual where the
Immigration and Refugee Board "determines the person to be a Convention
refugee or a person in need of protection". Section 98 carves out an
exception for persons covered by Article 1F.
89 Article
31 of the Vienna Convention sets
out the general rule for the interpretation of international treaties such as
the Refugee Convention. Article
31(1) states:
·
A treaty shall be interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
90 Among
other interpretive methods, Article 31(3) of the Vienna
Convention provides that subsequent practice among the
signatory states is relevant to context in the interpretive exercise where that
practice "establishes the agreement of the parties regarding its
interpretation"; see also Yugraneft Corp. v. Rexx
Management Corp., [2010] 1 S.C.R. 649, at para. 21.
Article 32 provides that recourse may be had to the travaux préparatoires of
a treaty as a supplementary means of interpretation "in order to confirm
the meaning resulting from the application of article 31", or where the
application of Article 31 results in ambiguity or a result which is
"manifestly absurd or unreasonable": Peracomo
Inc. v. TELUS Communications Co., 2014 SCC 29, at para.
100.
91 In
Pushpanathan v. Canada (Minister of Citizenship and
Immigration), [1998] 1 S.C.R. 982, Bastarache J.
described the application of this interpretive approach in the context of
interpreting the Refugee Convention:
· [The Vienna Convention
rules on treaty interpretation] have been applied by this Court in two recent
cases, one involving direct incorporation of treaty provisions (Thomson v. Thomson, [1994] 3 S.C.R. 551) and
another involving a section of the Immigration Act intended to implement Canada's obligations under the Convention (Ward, supra). In the latter case, La Forest J. makes use of several
interpretative devices: the drafting history of, and preparatory work on the
provision in question; the United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status ("UNHCR Handbook"), and previous judicial comment on the
purpose and object of the treaty. Indeed, at p. 713, La Forest J. was willing
to consider submissions of individual delegations in the travaux préparatoires, although he recognized
that, depending on their content and on the context, such statements "may
not go far" in supporting one interpretation over another.
...
· [A] priori denial of the fundamental protections
of a treaty whose purpose is the protection of human rights is a drastic
exception for the purposes of the Convention [...] and can only be justified
where the protection of those rights is furthered by the exclusion. [paras. 53 and
74]
92 In
light of the human rights purposes of the Refugee Convention and
the dramatic consequences of exclusion from the status of a refugee, Article 1F
requires a particularly cautious interpretation: Ezokola
v. Canada (Citizenship and Immigration) [2013] 2 S.C.R.
678, at paras. 31-36; Pushpanathan, at para. 57; see also Al-Sirri v. Secretary
of State for the Home Department, [2012] UKSC 54, [2013]
1 A.C. 745, at paras. 12 and 16; United Nations High Commissioner for Refugees
(UNHCR), "Guidelines on International Protection: Application of the
Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of
Refugees", HCR/GIP/03/05, September 4, 2003 (online) at para. 2 (UNHCR
Guidelines).
93 The
link between the human rights object and a cautious interpretation is
highlighted in the Preamble to the Refugee Convention
itself, as LeBel and Fish JJ. confirmed in Ezokola:
·
The preamble to the Refugee Convention highlights the
international community's "profound concern for refugees" and its
commitment "to assure refugees the widest possible exercise of ...
fundamental rights and freedoms". Our approach to art. 1F(a) must reflect
this "overarching and clear human rights object and purpose". [para.
32, citing Pushpanathan, at para.
57]
94 In
Canada (Attorney General) v. Ward,
[1993] 2 S.C.R. 689, La Forest J. explained how the animating human rights
purposes of the Refugee Convention inform the interpretation of the
elements of the definition of "Convention refugee":
·
Underlying the Convention is the
international community's commitment to the assurance of basic human rights
without discrimination. This is indicated in the preamble to the treaty as
follows:
·
Considering that the Charter of
the United Nations and the Universal Declaration of Human Rights approved on 10
December 1948 by the General Assembly have affirmed the principle that human
beings shall enjoy fundamental rights and freedoms without discrimination.
· This theme outlines the boundaries of the objectives sought to be
achieved and consented to by the delegates. It sets out, in a general fashion,
the intention of the drafters and thereby provides an inherent limit to the
cases embraced by the Convention. Hathaway ... thus explains the impact of this
general tone of the treaty on refugee law:
·
The dominant view, however, is
that refugee law ought to concern itself with actions which deny human dignity
in any key way, and that the sustained or systemic denial of core human rights
is the appropriate standard.
· This theme sets the boundaries for many of the elements of the
definition of "Convention refugee". [p. 733]
95 This
takes us to the purpose of the exclusion clauses in Article 1F. In Pushpanathan, Bastarache J. described their
underlying purpose and relationship to the Refugee Convention as
follows:
· The rationale is that those who are responsible for the persecution
which creates refugees should not enjoy the benefits of a Convention designed
to protect those refugees. As La Forest J. observes in Ward, supra, at p. 733,
"actions which deny human dignity in any key way" and "the
sustained or systemic denial of core human rights ... se[t] the boundaries for
many of the elements of the definition of 'Convention refugee'". This
purpose has been explicitly recognized by the Federal Court of Appeal in the
context of the grounds specifically enumerated in Article 1F(a) in Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433, where Linden J.A. stated (at p. 445): "When
the tables are turned on persecutors, who suddenly become the persecuted, they
cannot claim refugee status. International criminals, on all sides of the
conflicts, are rightly unable to claim refugee status. [para. 63]
96 Bastarache
J. rejected the suggestion that the exclusion clauses in Article 1F were
intended to protect the country of refuge from dangerous refugees who are at a
risk of reoffending. In his view, this interest is addressed by Article 33 of
the Refugee Convention, which permits a state to expel a
refugee to his or her native country if the individual is considered a danger
to the receiving state (refoulement). To fold this function into Article 1F as well, in his view, would
render Article 33 redundant:
·
The purpose of Article 1 is to
define who is a refugee. Article 1F then establishes categories of persons who
are specifically excluded from that definition. The purpose of Article 33 of
the Convention, by contrast, is not to define who is and who is not a refugee,
but rather to allow for the refoulement of a bona fide refugee
to his or her native country where he or she poses a danger to the security of
the country of refuge, or to the safety of the community. This functional
distinction is reflected in the Act, which adopts Article 1F as part of s. 2,
the definitional section, and provides for the Minister's power to deport an
admitted refugee under s. 53, which generally incorporates Article 33. Thus, the general purpose of Article 1F is not the protection of the
society of refuge from dangerous refugees, whether because of acts committed
before or after the presentation of a refugee claim; that purpose is served by
Article 33 of the Convention. Rather, it is to exclude ab initio those who are
not bona fide refugees at the time of their claim for refugee status. Although all of the acts described in Article 1F could presumably
fall within the grounds for refoulement described in Article 33, the two are distinct... . [Emphasis added; para.
58.]
97 The
UNHCR Guidelines also provide guidance on the purpose of the exclusion clauses
in Article 1F generally:
· The rationale for the exclusion clauses, which should be borne in
mind when considering their application, is that certain acts are so grave as
to render their perpetrators undeserving of international protection as
refugees. Their primary purpose is to deprive those guilty of heinous acts, and
serious common crimes, of international refugee protection and to ensure that
such persons do not abuse the institution of asylum in order to avoid being
held legally accountable for their acts. The exclusion clauses must be applied
"scrupulously" to protect the integrity of the institution of asylum,
as is recognised by UNHCR's Executive Committee in Conclusion No. 82 (XLVIII),
1997. At the same time, given the possible serious
consequences of exclusion, it is important to apply them with great caution and
only after a full assessment of the individual circumstances of the case. The
exclusion clauses should, therefore, always be interpreted in a restrictive
manner. [Emphasis added; para. 2.].
98 Broadly
speaking, then, Article 1F operates to maintain the integrity of the system of
international refugee protection and the status of being a "refugee".
The parties to the Refugee Convention recognized this important function
in their 2001 Declaration of States Parties to the 1951
Convention and or its 1967 Protocol Relating to the Status of Refugees, HCR/MMSP/2001/09 (Declaration of States), where the signatories reaffirmed their commitment
· ... to continue their efforts aimed at
ensuring the integrity of the asylum institution, inter alia, by means of carefully applying
Articles 1F and 33(2) of the 1951 Convention, in particular in light of new
threats and challenges... . [Emphasis added; p.3]
99 In
order to screen individuals who are not "bona fide refugees", the application of Article 1F of the Refugee Convention operates to protect the integrity of the international refugee
protection by excluding individuals who, as a result of having committed such
"heinous acts, and serious common crimes", are themselves considered
undeserving of the status of refugee: UNHCR Guidelines, at para. 2; Pushpanathan, at para. 63; Ezokola, at para. 34.
100 The
particular exclusion under scrutiny in this appeal is the one in Article 1F(b),
which excludes individuals from the Refugee Convention where there
"are serious reasons for considering that ... he has committed a serious
non-political crime outside the country of refuge prior
to his admission to that country as a refugee".
101 There
is little doubt that the primary purpose of Article 1F(b) was to exclude those
individuals who would abuse the status of a refugee by avoiding accountability
through prosecution or punishment for a serious crime outside the country of
refuge. For the clause to apply, the crime must have been committed "outside
the country of refuge prior to his [or her] admission to that country as a
refugee". This territorial limitation has been relied on as a strong
textual indication that Article 1F(b) was intended to exclude those individuals
who seek to abuse the status of being a refugee by evading prosecution in
another jurisdiction: James C. Hathaway and Michelle Foster, The Law of Refugee Status (2nd ed. 2014), at
p. 544. Further support for this interpretation emerges from the surrounding
context of Article 1F(b), the UNHCR Guidelines, at para. 2, the interpretation
of Article 1F(b) adopted in other jurisdictions, and the drafting history and travaux préparatoires of the Refugee Convention. See also Pushpanathan,
at para. 73; Ward, at p. 743.
102 There
is considerable debate, however, as to the extent to which Article 1F(b) was
also intended to fulfill the additional purpose of excluding individuals who,
as a result of having committed and been prosecuted for serious non-political
crimes in the past, are considered undeserving of refugee protection under the Refugee Convention.
103 To
be fully understood, the text of Article 1F(b) must be situated in its
surrounding context and considered in light of its drafting history.
104 The
Preamble of the Refugee Convention directs that the contracting
parties "revise and consolidate previous international agreements"
relating to the rights of refugees, and "extend the scope of and the
protection accorded by such instruments by means of a new agreement".
105 The
"previous international agreements" referred to in the Preamble each
denied refugee protection for individuals who had committed crimes in other
countries prior to entering the country of refuge and had yet to be prosecuted
and punished for those crimes: Universal Declaration of
Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at
71 (Universal Declaration)
(adopted by the U.N. General Assembly on December 10, 1948); Constitution of the International Refugee Organization, August 20, 1948, 18 U.N.T.S. 3, Ann. I, Part II (excluding
"[o]rdinary criminals who are extraditable by treaty"); Statute of the Office of the United Nations High Commissioner for
Refugees, G.A. Res. 428(V) of December 14, 1950, p. 7
(excluding persons who had committed a "crime covered by the provisions of
treaties of extradition").
106 Moreover,
in reaffirming their commitment to international refugee protection, the
signatories declared in 2001 that the Refugee Convention is
"consistent with Article 14 of the Universal Declaration of Human
Rights": Declaration of States, adopted by the U.N. G.A. A/RES/57/187, at para. 4, December 18,
2001. Article 14 of the Universal Declaration deals with an individual's right of asylum from persecution:
Everyone has the right
to seek and to enjoy in other countries asylum from persecution.
This right may not be
invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United
Nations.
107 Article
14(2) is also significant because it was central to the discussions by states'
representatives at the Conference of Plenipotentiaries on the Status of
Refugees and Stateless Persons in Geneva in July 1951 (Conference of Plenipotentiaries).
I agree that the import of the travaux préparatoires
with respect to Article 1F(b) is not obvious. But I do not agree, with respect,
that the travaux préparatoires provide no insight of
significance into the issues before us. In my view, the widely divergent interpretations
of Article 1F(b) adopted by courts in other jurisdictions and the uncertainty
created by the territorial limits described in Article 1F(b), mandate recourse
to the interpretive assistance of the preparatory work.
108 Throughout
the early stages of the drafting history, Article 14(2) of the Universal Declaration, rather than the
provision which eventually became Article 1F(b), was directly incorporated in
the Refugee Convention. The travaux préparatoires
provide some insight into why the signatories to the Convention modified the exclusionary language of Article 14(2) and adopted
instead the text which is currently found in Article 1F(b).
109 At
the Conference of Plenipotentiaries, the representative for the United Kingdom
prompted discussion by proposing that the reference to Article 14(2) should be
deleted altogether. In his view, incorporating Article 14(2) was entirely
unnecessary in light of the provision in the draft Refugee
Convention -- what eventually became Article 33(2) --
which permitted signatories to "refoule" refugees who posed a danger or threat to the country of
refuge.
110 Nonetheless,
some states -- particularly France and Yugoslavia -- were opposed to deleting
the reference to Article 14(2) from the draft. France expressed a concern that
there was a need to preserve the distinction between "ordinary common-law
criminals" and "bona fide refugees" with respect to whether the individual was eligible
for the status of a refugee under the Refugee Convention (Conference
of Plenipotentiaries, Summary Record of the Twenty-fourth Meeting (Plenipotentiaries), U.N. Doc. A/Conf. 2/SR. 24
(1951)). The French representative argued that signatories to the Convention
should not be required to grant refugee status to an individual who had no
right of asylum within the meaning of Article 14(2) since asylum "was the
conditio sine qua non of the possession of [refugee] status" (Plenipotentiaries, U.N. Doc. A/CONF. 2/S.R. 29
(1951)).
111 Notably,
the representative from the United Kingdom confirmed that Article 14(2)
"was intended to apply to persons who were fugitives from prosecution in
another country for non-political crimes" (Plenipotentiaries, U.N. Doc. A/CONF. 2/S.R. 29 (1951)), and the language ought more
clearly to reflect this. None of the representatives disagreed with this
position. This is not surprising, given that, as in the other previous
international agreements noted above, the underlying assumption was that
Article 14(2) restricted refugee protection for individuals who remained
criminally liable abroad: Atle Grahl-Madsen, The Status
of Refugees in International Law (1966, vol. I, Refugee Character, at p. 290. The UK
representative also suggested that the language of Article 14(2) be modified so
as to ensure that refugees who had committed trivial or minor crimes
"should not thereby be placed once and for all beyond the reach of the
Convention" (Plenipotentiaries, U.N. Doc. A/CONF. 2/S.R. 24 (1951)).
112 Some
representatives expressed concern that the draft Refugee Convention should
be coordinated with extradition law, so as to prevent a conflict between the Convention and an extradition treaty, while
others were of the view that this was not a concern that needed to be expressly addressed under the Convention, but could be dealt with by way or
reservations or declarations as needed.
113 Since
it was apparent that the U.K.'s proposal to delete Article 14(2) was not
broadly supported, the representatives turned their attention to revising its
exclusionary language. France and Yugoslavia were of the view that the
exclusion clause should only relate to crimes committed before entry into the
territory of the receiving country. France also emphasized that the term
"crime" must be distinguished from "misdemeanour", and
proposed that the clause refer only to "serious crimes" (Plenipotentiaries, U.N. Doc. A/CONF. 2/S.R. 29
(1951)). In describing the "vital" necessity of retaining the
provision, the representative from France emphasized the need for a provision which
would permit France to screen individuals at the border and grant asylum for some individuals on French
territory, without having to confer on those individuals the status of a
refugee (ibid.).
114 After
some discussion, a variation proposed by Yugoslavia was ultimately adopted,1 and agreed to by the U.K.'s representative because
· ... while he did not regard the revised Yugoslav amendment as
entirely free from objection, [he] felt that it at least removed his ... main
objection to the text ... as originally drafted, which would have made it too easy for States to withdraw the status of refugee from many
persons who had been granted asylum from persecution.
[Emphasis added; ibid.]
After Belgium proposed some minor modifications,2 Article 1F(b) as it is now drafted was adopted by the
representatives.
115 This
linguistic conclusion to the discussions, whose origins were to discuss whether
to expand the scope of those who
were entitled to refugee status notwithstanding their commission of a crime for
which they evaded prosecution, argues strongly against using this expanded
protection to narrow the category of those entitled to protection.
116 The
most significant aspect of the discussions for purposes of this appeal, is that
the discussions were only about refugee claimants who had committed a crime
outside the country of refuge but had not been convicted
or served a sentence for that crime. In this context,
there was broad agreement among the representatives that only fugitives from serious non-political crimes be excluded from
entitlement. The issue was never about those who had committed serious crimes and had already served their sentences outside
the receiving country.
117 Turning
to the interpretation adopted in other jurisdictions of Article 1F(b), it is
widely accepted that the original purpose of Article 1F(b) was to deny refugee
status to fugitives, namely, those individuals who had avoided prosecution for
serious non-political crimes committed abroad. This was based on the premise
that enabling those individuals to obtain refugee status would compromise the
integrity of the international system of refugee protection. The European Court
of Justice, in a decision about the interpretation of Article 12(2)(b) and (c) of
the Directive 2004/83/EC of the
Council of the European Union which incorporates Article 1F(b) and (c) into
E.U. legislation, has recognized that one of the purposes of exclusion under
those provisions is to prevent the status of being a refugee "from enabling
those who have committed certain serious crimes to escape criminal
liability" (Bundesrepublik Deutschland v. B. [2010] EUECJ C-57/09, at para. 104). See also Australia (SRYYY v. Minister for Immigration and Multicultural and Indigenuous
Affairs, [2005] FCAFC 42, 220 A.L.R. 394); New Zealand (Attorney-General (Minister of Immigration) v. Tamil X, [2010] NZSC 107, [2011] 1 N.Z.L.R. 721, at para. 82 (Tamil X); the United Kingdom (AH (Algeria) v. Secretary of State for the Home Department, [2013] UKUT 00382 (IAC)) (AH); and France (Office français de protection
des réfugiés et apatrides v. Hykaj, No. 320910, May 4,
2011).
118 All
jurisdictions also appear to agree that there are other circumstances in which
Article 1F(b) excludes individuals from the Refugee Convention, but
there seems to be little agreement as to when those circumstances arise.
119 Australian
and New Zealand courts have concluded that Article 1F(b) is additionally
intended to protect the country of refuge from individuals who are considered
dangerous as a result of committing past crimes (Dhayakpa
v. Minister of Immigration and Ethnic Affairs, [1995]
FCA 1653, 62 F.C.R. 556, at para. 29); Minister for
Immigration and Multicultural Affairs v. Singh, [2002]
HCA 7, 209 C.L.R. 533, at paras. 15 and 95-96), as has New Zealand (Tamil X, at para. 82).Other jurisdictions,
however, like this Court in Pushpanathan, have expressly rejected the proposition that exclusion of dangerous
individuals is the underlying purpose of Article 1F(b), even if its application
may incidentally have that effect in some cases.
120 The
European Court of Justice concluded that it would be inconsistent with the
purposes of exclusion "to make exclusion from refugee status conditional
upon the existence of a present danger to the host Member State" (Bundesrepublik Deutschland v. B., at para.
104). The court held that the dangerousness of the individual is not considered
under Article 12(2) of the European directive (incorporating Article 1F), but
under the Articles of the directive which incorporate Article 33(2) of the Refugee Convention (para. 101). Notably, this case said nothing about whether -- or the
extent to which -- Article 1F(b) deals with non-fugitives. Nor did it conclude
that it automatically excludes anyone who has ever committed a serious crime.
121 And
still other jurisdictions have found that rehabilitation, the seriousness of
the crime, and other factors relating to the individual circumstance of the
claimant are relevant. In Belgium, in a case about a refugee claimant who had
committed and completed sentences for past crimes abroad, the Conseil du
contentieux des étrangers concluded that Article 1F(b) applied to exclude the
individual from the Refugee Convention on the basis of the individual's
lack of remorse for very grave criminal conduct ( X v.
Commissaire général aux refugiés et aux apatrides, No.
69656, Novembre 8, 2011). The Conseil du contentieux des étrangers observed
that the decision to exclude the individual at issue had been reached on
grounds which included an express reference to the "Background Note on the
Application of the Exclusion Clauses: Article 1F of the 1951 Convention
relating to the Status of Refugees" (Background
Note) (online), prepared by the UNHCR in 2003, that the
completion of a sentence for a crime may be considered a relevant form of
expiation, and that other factors such as the gravity of the offence and the
claimant's age and remorsefulness must also be considered. But in cases
involving truly heinous crimes, exclusion under Article 1F(b) will be mandated
even where the claimant has completed a sentence for a crime committed and
demonstrated remorse (XXX v. État belge, No. 199.079, A. 192.074/XI-16.797 Conseil d'État (Section du
contentieux administratif), December 18, 2009; 27.479, Conseil du contentieux
des étrangers), May 18, 2009).
122 In
the United Kingdom, earlier decisions of the Immigration Appeal Tribunal took a
literal approach to the words of Article 1F(b) and rejected an interpretation
in which expiation (understood as "punishment, pardon, or amnesty" or
"remorse or change of heart") is relevant to determining whether past
criminal conduct is a basis for exclusion under Article 1F(b): KK (Turkey) v. Secretary of State for the Home Department, [2004] UKIAT 00101, at para 92); Secretary
of State for the Home Department v. AA (Palestine),
[2005] UKIAT 00104, at paras. 59-62. Instead, the Tribunal considered it should
instead apply the words of Article 1F(b) "exactly as they are
written" (KK, at para. 92).
123 But
recently, a more generous approach has been taken to the interpretation of
Article 1F "because of the serious consequences of excluding a person who
has a well-founded fear of persecution from the protection of the Refugee Convention" [2010] 3 All E.R. 88). Al-Sirri at paras. 12 and 16; (R. (JS (Sri Lanka)) v.
Secretary of State for the Home Department, [2010] UKSC
15, [2010] 3 ALL E.R. 88).
124 In
a recent decision involving a refugee claimant who had been convicted of and
completed a sentence for a prior criminal offence, the Upper Tribunal
(Immigration and Asylum Chamber) adopted a high threshold of seriousness for
triggering Article 1F(b) where the individual had already completed a sentence
for the crime, and left open the possibility that supervening events may be
relevant to the analysis (AH).
The Tribunal found that Article 1F(b) has two purposes: the "prevention of
abuse of the asylum system by undermining extradition law or the mutual
interest amongst states in prosecuting serious offenders", and to exclude
"those who have demonstrated by their conduct they are not worthy of
it" (para. 85). In determining whether an individual is
"unworthy" on the basis of past conduct, the Tribunal found:
· ... that limbs 1F(a) and (c) serve to illustrate the level of
seriousness required to engage Article 1F(b); the genus
of seriousness is at a common level throughout. Those
who commit war crimes and acts against the principles and purposes of the
United Nations are clear examples of people who are unworthy of protection.
[Emphasis added; para. 86.]
125 It
also noted that the French text of Article 1F(b) provides important insight
into the level of seriousness required for exclusion under that clause:
· The French text of Article 1F(b) refers to "un
crime grave" whereas that for Article 33 (2) refers
to "un délit particulièrement grave". A crime in
French law is a more serious class of offence than a délit. According to Cornu's Vocabulaire Juridique (9th edition) 2011, "crime" is a "transgression particulièrement
grave". We accept, however, that the classification
of the offence in national law is not the issue (as it happens the offences of
which the appellant was convicted in France were both délits). The point is rather that the focus on the use of the English word
"crime" in both Articles loses the quality of seriousness reflected
in the French word. It may be that the language of the French text is where the
UNHCR and the commentators obtain the notion that serious crimes were once
capital crimes. [para. 88]
126 On
those facts, it was held that "personal participation in a conspiracy to
promote terrorist violence can be a particularly serious crime for the purpose
of Article 1F(b)" (para. 89). The Tribunal emphasized that "[w]e must
search for the autonomous international meaning of the term rather than what
might be purely national law concerns about what conduct should be penalised
and sentencing policy" (para. 83). Seriousness is to be examined at the
time the criminal acts were committed, but the Tribunal noted that events such
as a pardon, or a final acquittal in the "supervening passage of time may
be relevant to whether exclusion is justified" (para. 97).
127 The
UNHCR's "Background Note on the Application of the
Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of
Refugees", which "forms an integral part of
UNHCR's [position]" on the interpretation of Article 1F (UNHCR
Guidelines), provides guidance of particular relevance:
· ... it is arguable that an individual who has served a sentence
should, in general, no longer be subject to the exclusion clause as he or she
is not a fugitive from justice. Each case will require
individual consideration, however, bearing in mind issues such as the passage
of time since the commission of the offence, the seriousness of the offence,
the age at which the crime was committed, the conduct of the individual since
then, and whether the individual has expressed regret or renounced criminal
activities. In the case of truly heinous crimes, it may
be considered that such persons are still undeserving of international refugee
protection and the exclusion clauses should still apply. This is more likely to
be the case for crimes under Article 1F(a) or (c), than those falling under
Article 1F(b). [Emphasis added; para. 73.].
128 Two
related observations emerge from this review. The first is that, like the
international agreements relating to refugees which were consolidated and
revised by the Refugee Convention, Article 1F(b) was originally
intended to maintain the integrity of the status of refugee by excluding
fugitives. The travaux préparatoires confirm that the exclusion of
those who have committed serious and unpunished crimes was not only a practical
concern; it was a moral one for the integrity of the international system of
refugee protection.
129 But
as the recent international jurisprudence shows, it remains far from clear that
the signatories to the Refugee Convention intended to exclude all individuals
who were believed to have committed serious non-political crimes, without
regard for whether they had been rehabilitated. In my view, this leaves it open
to this Court to reach its own conclusion as to how to interpret the scope of
1F(b).
130 The
requisite good faith interpretive approach mandates not divorcing the text of
Article 1F(b) from its human rights purpose. This is particularly so given the
clear concern at the Conference of Plenipotentiaries that the basis for
exclusion under Article 1F(b) should be restrictively written so that it would
not be "too easy" for states to deny the humanitarian protections
guaranteed by the Refugee Convention (Plenipotentiaries, U.N. Doc. A/CONF. 2/S.R. 29 (1951)).
131 This
means, as the UNHCR Guidelines state, that there is room for discretion to
apply Article 1F(b) "only after a full assessment
of the individual circumstances of the case" (para.
2 (emphasis added)). There is little or no authority for the proposition that everyone who has committed a serious
non-political crime outside the country of refuge remains permanently
undeserving of the Refugee Convention's protection regardless of their
supervening personal circumstances. Such a relentlessly exclusionary -- and
literal -- approach would contradict both the "good faith" approach
to interpretation required by the Vienna Convention as well as the Refugee Convention's human rights purpose.
132 In
my view, depending on the seriousness of the crime, if an individual is
believed to have committed a serious non-political crime, the purpose of
Article 1F(b) can be met where the individual's circumstances reflect a
sufficient degree of rehabilitation or expiation that the claimant ought not to
be disqualified from the humanitarian protection of the Refugee Convention. The
completion of a sentence, along with factors such as the passage of time since
the commission of the offence, the age at which the crime was committed, and
the individual's rehabilitative conduct, will all be relevant. On the other
hand, individuals who have committed such serious crimes that they must be
considered undeserving of the status of being a refugee would be excluded.
133 Support
for this interpretation comes from the approach taken by the UNHCR and by
foreign courts in Belgium and the United Kingdom, which have emphasized that
those who have committed particularly serious crimes are excluded under the Refugee Convention on the basis that they are undeserving of the status of a refugee.
This approach also accords with the intention of the signatories to the Refugee Convention to protect the integrity and viability of the international system
of protection for refugees by limiting the obligations of the contracting
parties towards individuals who have committed very serious crimes.
Application
134 In
concluding that Mr. Febles was excluded from the Refugee Convention on the
basis of Article 1F(b), the Board considered "only the crime committed in
1984, for which there is more information" and found that Mr. Febles had
committed a "serious non-political crime" (para. 22). It observed
that Mr. Febles had completed the sentence imposed for the offence committed in
1984, and that "it might appear unfair to the claimant that, although he
served his sentence and took the second chance that life was offering him 17
years ago and chose to follow a straighter path, the crimes he committed many
years ago are coming back to haunt him" (para. 24). The question it did
not determine is whether this offence was so serious that Mr. Febles must be
considered undeserving of the status of a refugee.
135 Mr.
Febles expressed remorse immediately after the commission of the offence and
turned himself in to the police. He pleaded guilty and served his sentence for
his criminal conduct. He also admitted that he was suffering from problems with
alcohol at the time of the offence. While it is clear that the criminal conduct
was serious, what has yet to be determined is whether the crime is so serious
that Mr. Febles' personal circumstances since serving his sentence in 1984
ought to be disregarded in considering whether he is entitled to refugee
status.
136 I
would therefore allow the appeal and return the matter to the Immigration and
Refugee Board for redetermination in accordance with these reasons.
Appeal dismissed, ABELLA and CROMWELL
JJ. dissenting.
1 Yugoslavia
proposed that the text state: "... he has committed a serious crime under
common law outside the country of reception" (Plenipotentiaries, U.N. Doc. A/CONF. 2/S.R. 29 (1951)).
2 The final
version, as modified by Belgium, is reflected in the 1951 Convention: "... he has committed a serious
non-political crime outside the country of refuge prior to his admission to
that country as a refugee".
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