The Passing of a great Canadian Refugee Law Scholar - Nicole LaViolette

It is with sadness that we have learned of the passing of Professor Nicole LaViolette of the University of Ottawa Law Faculty. 

Professor LaViolette was a prolific scholar whose work covered numerous areas of law. Amongst her various accomplishments was a sustained and profound scholarship concerning refugee law and the protection of sexual minorities.

Her work may be found at: https://uottawa.academia.edu/NicoleLaViolette  

We wish to offer our heartfelt condolences to her partner, family, friends and colleagues. 

Excluding Atonement: The Supreme Court of Canada and Serious Non-Political Crimes

The 1951 Convention Relating to the Status of Refugees was created to provide protection to those fleeing their country of nationality or place of last habitual residence and who are unwilling or unable to return on account of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion.[1] However, its protections are not without limitations. Amongst them is Article 1F(b) of the Convention which states that the "provisions of the Convention shall not apply to any person with respect to whom there are serious reasons to consider that [...] he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee."[2]

An important question that arises is whether an individual who has committed a "serious non-political crime" prior to their admission into the country of refuge can avoid exclusion if he or she has already been prosecuted and served time for the offence. If such persons are not fugitives from justice, should the exclusion clause apply? The questions were resolved by the Supreme Court of Canada in yesterday's decision, Febles v Canada (Citizenship and Immigration).[3] The Court concluded after examining the text of Article 1F(b), its context, and the overall object and purpose of the Convention that the provision is aimed at not only excluding fugitives escaping prosecution for having committed serious non-political crimes. It also pertained to those who have committed such crimes at all regardless of whether they have already been found criminally responsible, punished and have been rehabilitated.

Justice Abella, writing in dissent (with Justice Cromwell concurring) articulated that special attention needed to be paid toward the overall purpose of the Convention which was to protect human rights and advance certain humanitarian aims. Furthermore, an examination of the legislative history of Article 1F(b) suggested to the dissenting justices that the exclusion mandated under this provision was intended for those who were fleeing prosecution, but not to those who have already been punished and have served time. She observed:

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.[4]

While this perspective has not achieved broad consensus amongst courts or tribunals in all other jurisdictions, Justice Abella correctly posits that this position is supported by recent jurisprudence from England and Belgium, as well as the positions of the United Nations High Commissioner for Refugees.[5]

Assuming for the moment that the Court majority's position in Febles represents the correct legal interpretation, it perhaps signals the need for revisiting and revising the terms of Article 1F via a new international protocol.[6] The current language unjustly excludes individuals who may nevertheless warrant asylum (particularly where substantial mitigating circumstances may exist). Although, exclusion proceedings are technically not criminal proceedings, the impact of an adverse finding can be more severe than imprisonment - this is especially so where there is a well-founded fear of persecution for a Convention ground. In a typical criminal proceeding, if a person is found guilty of a crime, a court will usually weigh aggravating and mitigating circumstances to arrive at a proper punishment. 

With respect to an Article 1F(b) analysis, once it has been determined that an individual has committed a serious non-political crime (or any other crime identified under Article 1F), there is no analogous process to weigh the consequences of exclusion against any mitigating factors militating against this result. Some factors to consider in weighing for or against the exclusion, once it is found that there are serious grounds to consider that an individual has committed a serious non-political crime(s), should include the following: (a) the fact that a claimant would otherwise qualify as a refugee; (b) the fact of rehabilitation and having served time for the offences; (c) the relative seriousness of the crime; and (d) any other relevant circumstances surrounding the crime (including those articulated by Justice Abella). 

Not surprisingly, if a claimant would not even qualify as a refugee, any other factors would be moot in such an analysis. However, at present, many adjudicators do not even bother to make any assessment of whether claimants would otherwise qualify for refugee status once they have determined that a person is excluded. The existence of mitigating factors by itself should of course not have to mean that exclusion would be inappropriate either. Some crimes and/or the aggravating factors surrounding a serious non-political crime or set of crimes may very well militate against the granting of refugee status as Justice Abella indicated.[7]

Not surprisingly, the likelihood of seeing such a new international protocol come to fruition is not especially promising. We exist in an environment that is not particularly sympathetic to refugees and/or asylum-seekers. Added to this, those who would otherwise qualify for refugee status but have committed a serious non-political crime are deemed automatically unworthy regardless of circumstances and the existence of mitigating factors. They are viewed as criminals - period. In addition, a new protocol mandating the consideration and weighing of various factors for exclusion (including whether a claimant otherwise qualifies for refugee status) would require more work for States and particularly their administrative bodies and courts. Weighed against the humanitarian concerns underlying the Convention, they may not be compelling reasons to all, but they nevertheless exist.

Notwithstanding the factors that would militate against its creation, such a protocol would nevertheless work toward balancing the humanitarian objectives of the Convention with other considerations that could still favour exclusion in the appropriate circumstances. Ultimately, a more nuanced approach to these issues would be desirable.  

Notes

[1] Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954).

[2] Ibid, art 1F(b). 

[3] Febles v Canada (Citizenship and Immigration), 2014 SCC 68. 

[4] Ibid at para 132.

[5] Ibid at para 133

[6] I am of course fully aware that many aspects of the Refugee Convention should be revisited (including from the point of view of what is not in the Convention at present), but for the purpose of this post, I shall focus on this particular issue.    

[7] I have developed similar arguments with respect to Article 1F(a) in a chapter in my doctoral thesis, which I have since revised for publication. 

Climate Change Refugees and the Refugee Convention

Climate change is impacting human populations and environments around the world in numerous ways. One of these ways includes rising sea levels which, amongst other things, are endangering the very existence of various island-states. The rise in sea levels not only poses dangers of flooding with ensuing damage to agriculture and aquifers, there are also serious dangers of such islands completely being consumed by the ocean/sea. 

The dangers that these developments pose have led some to seek refuge in other countries on the basis of the 1951 Convention Relating to the Status of Refugees (as amended by the 1967 Protocol Relating to the Status of Refugees). Yet, as a recent decision of the New Zealand Court of Appeal illustrates, those seeking protection under the Refugee Convention likely have little chance of success. In Teitiota v The Chief Executive of the Ministry of Business, Innovation and Employment, [2014] NZCA 173, the asylum-seeker unsuccessfully argued that he qualified for refugee status. As I discuss below, the Court's conclusion was based on a sound interpretation of the Convention. However, what it also signals is the need for international attention to the plight of these islands and a considered response to the real dangers faced by their residents.  

The Case

Ioane Teitiota's country of nationality is the state of Kiribati situated in the Pacific Ocean between Australia and Hawaii. It consists of 32 atolls and one raised island. The situation for Kiribati has become increasingly dire. Rising tides and flooding in various parts have led to many of the 100,000-plus population to migrate to the Kiribatian island of Tarawam. This has led to overpopulation on Tarawam, scarcity of employment, in addition to the continued dangers of rising sea levels. 

Teitiota was a subsistence farmer and fisherman who became increasingly concerned with the rising sea levels and its impact on his family's survival. This was in addition to the overpopulation of the main island due to internal migration. Teitiota in turn decided to migrate to New Zealand. He lived there illegally for several years but was eventually intercepted by immigration officials. Teitiota sought refugee status to prevent being returned to Kiribati.

The Immigration and Protection Tribunal (IPT) concluded that Teitiota failed to demonstrate that he had a well-founded fear of persecution. By his own admission, Teitiota testified that his fear of persecution stemmed not from human agents but from "mother nature". He asserted that 
  

the refugees they run away from persecution and comparing that to myself and my family, especially my children, going back to the Island I won’t face persecution as such but I will face a lot of problems from the sea level rise and that problem includes flooding and us drowning.

The claim was also bound to fail because as the IPT concluded, amongst other reasons, "the effects of environmental degradation were faced by the population of Kiribati generally[...]." This was something that Teitiota concurred with in his testimony before the IPT. As a general rule, persecution requires that a refugee claimant have a well-founded fear that is in some way individualized and differentiated from the general population. 

The Court of Appeal affirmed the IPT's decision. The Court's judgment was reasonable given the text of the Convention (as incorporated into national legislation). Persecution is an intentional act. Climate change affects populations broadly and indiscriminately. Climate change resulting in mass flooding impacts populations regardless of race, nationality, religion, membership in a particular social group or political opinion.

Broadening the Scope of Protection

 

For the reasons mentioned, the Convention as it stands does not and was not designed to help applicants such as Teitiota. What a decision such as this suggests is that the discourse surrounding the protection of vulnerable peoples needs to shift away from paradigms constructed during the immediate post-World War Two era. 

Some guidance may be sought from regional treaties to understand that refugees (as legally defined) are not just those who have a well-founded fear of persecution. For instance, the African Union Convention Governing Specific Aspects of Refugee Problems in Africa includes (in addition to the Refugee Convention definition) the following definition. Article 2 states

The term "refugee" shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality. 

Individual  states have also sought to grant greater protections than those which the Convention and/or Protocol provide. For instance, section 10(2) of the Constitution of East Timor states that the government "shall grant political asylum, in accordance with the law, to foreigners persecuted as a result of their struggle for national and social liberation, defence of human rights, democracy and peace." Article 53-1 of the French Constitution of 1958 provides that the authorities: "shall remain empowered to grant asylum to any foreigner who is persecuted for his action in pursuit of freedom or who seeks the protection of France on other grounds."

Drawing from these examples, refugee status does not have to be limited to the terms of the Convention. The Convention provides a floor, it is not a ceiling. 

Humanitarian Grounds

A legal avenue which those fleeing the impacts of climate change may seek to exploit, however limited, is through appeals to humanitarian grounds. These are not subject to the limits imposed by the Refugee Convention. In a very recent decision reported in the news media, Sigeo Alesana, a claimant from Tuvalu along with his spouse and two children (the children were born in New Zealand and never lived in Tuvalu) were granted residency. Mr. Alesana and his wife left Tuvalu on account of climate change issues and rising sea water levels. After residing in New Zealand, Mrs. Alesana gave birth to their two children. 


Although the IPT concluded (in a separate decision) that they were ineligible for refugee status, it determined that the family had strong ties to New Zealand and there were “exceptional circumstances which would make it unjust and unduly harsh to deport the particular appellant from New Zealand" back to Tuvalu. The IPT posited that Mr. Alesana had six sisters residing in New Zealand as well as an elderly mother who needed assistance and relied heavily on him. In addition, both children were born and raised in New Zealand and part of an extensive family network. The IPT noted that "[l]ife in New Zealand as part of an extended family network is the only life they have known." The tribunal also observed that the children's young age "makes them inherently more vulnerable to natural disasters and the adverse impact of climate change." The decision is fact-specific and climate change matters formed only part of the analysis. Indeed emphasis was placed on other considerations, and to the extent that climate change played a role, it appeared to be in connection with the impact on the children. 

What this suggests is that humanitarian grounds as a a basis for legally remaining in the country for those fleeing their country of nationality on account of climate change will likely be limited and dependent on other compelling factors.

Conclusion

Through little, if any, fault of their own, a number of societies are facing drastic and imperiling changes to their living conditions due to climate change and rising sea waters. There is a serious need for the international community to address these issues in a more comprehensive and attentive way. If current protection regimes are unable to address these matters, new ones need to be contemplated and the sooner the better. Regional and national approaches to refugee protection may provide some guidance.

 
Sources

 

Judgments

AD (Tuvalu) [2014] NZIPT 501370 (4 June 2014), online: <http://www.nzlii.org/nz/cases/NZIPT/2014/501370.html>.

Teitiota v The Chief Executive of the Ministry of Business, Innovation and Employment, [2014] NZCA 173, online: <http://img.scoop.co.nz/media/pdfs/1405/Teitiota_v_MBIE_CA502014_judgment.pdf>. 

Articles

"NZ: Tuvalu ‘refugees’ given residency" Cook Island News (6 August 2014), online: <http://www.cookislandsnews.com/regional/item/47900-nz-tuvalu-refugees-given-residency/47900-nz-tuvalu-refugees-given-residency>.

Randy Astaiza, "11 Islands That Will Vanish When Sea Levels Rise" Business Insider (12 October 2012) online: Business Insider: <http://www.businessinsider.com/islands-threatened-by-climate-change-2012-10?op=1>.

Raveena Aulakh, "New Zealand decision created world’s first climate refugees" The Toronto Star (6 August 2014), online: The Toronto Star <http://www.thestar.com/news/world/2014/08/06/new_zealand_decision_created_worlds_first_climate_refugees.html>. 

Amy Maas, "Tuvalu climate change family win NZ residency appeal" The New Zealand Herald (3 August 2014), online: The New Zealand Herald <http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11303331>.

Rick Noack, "Has the era of the ‘climate change refugee’ begun?" The Washington Post (7 August 2014), online: The Washington Post <http://www.washingtonpost.com/blogs/worldviews/wp/2014/08/07/has-the-era-of-the-climate-change-refugee-begun/>.

Can Human/People Smuggling Be Qualified As A Humanitarian Act

Are all human smugglers cut from the same cloth? How should they be constructed and how does the law as well as those who formulate the law do so? As we shall see below, human smugglers tend to be constructed as being motivated by money and vultures feeding off the vulnerabilities of others. While many human smugglers do engage in their acts for profit, others may do so largely for humanitarian purposes. From a legal perspective, international law defines human smuggling differently from domestic jurisdictions such as, amongst others, Canada and Australia.

The Law

Under article 3(a) of the Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, the smuggling of migrants is defined as the "procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident." By the Protocol's terms, unlawfully shepherding individuals facing persecution into another country for humanitarian purposes is not proscribed activity. Such recognition is important for it acknowledges that individuals fleeing persecution may need assistance to secure their migration to another jurisdiction even if illegally.[1]

States have however taken a different approach to human smuggling. Under Canadian law for example, it is defined much more broadly. Section 117(1) of the Immigration and Refugee Protection Act states the following: "No person shall organize, induce, aid or abet the coming into Canada of one or more persons knowing that, or being reckless as to whether, their coming into Canada is or would be in contravention of this Act." The breadth of this provision suggests that even those who do so for humanitarian reasons are captured under these provisions. This is further confirmed by the fact that under s.121(1)(c) of the IRPA, the commission of acts committed under s.117 for "profit, whether or not any profit [is] realized" (amongst other reasons) is considered an aggravating factor.  The British Columbia Court of Appeal arrived at this very conclusion in R v Appulonappa. By contrast, engaging in human smuggling for humanitarian reasons might be considered a mitigating factor, but it is clear by the language that it will not relieve the smuggler of liability. 

In addition, engaging in "people" smuggling is grounds for inadmissibility into Canada, even where, as in s.117, such conduct is for humanitarian reasons. In Canada (Public Safety and Emergency Preparedness) v JP, Canada's Federal Court of Appeal concluded that people smuggling even for humanitarian grounds was a valid ground for inadmissibility (just as it is valid as basis for criminal liability under s.117 for human smuggling). As part of its decision, the Court of Appeal observed that in criminal cases, motives are usually irrelevant with respect to the elements of the crime. As such, whether or not someone engages in people smuggling with a humanitarian motive is irrelevant with respect to the intent to commit the prohibited act.

Rethinking Human Smugglers

To be sure, human/people smuggling for the purpose of financial gain should be appropriately outlawed. It exploits the vulnerabilities of those who may be fleeing on account of a well-founded fear of persecution. This is however clearly distinguishable from instances where a person assists another without seeking any financial gain. Furthermore, even where the smuggler receives some compensation which essentially covers the costs of the smuggling operation (i.e. food for the trip, fuel etc), one can hardly say that receipt of such compensation constitutes a "gain". Assisting other persons out of a desire to help does not necessitate that they become paupers or risk impoverishment. It is also useful to remember that not everyone is capable of undertaking an arduous journey without some assistance. If there is a right to seek asylum, it seems rather incongruous to deem as criminal behavior efforts to help asylum-seekers reach their destination (assuming again it is not undertaken for profit). The efforts of smugglers can assist many in obtaining refugee status. For example, it is worth noting that in the case of one human smuggler, Hadi Ahmadi, 886 of the 911 individuals he brought/smuggled into Australia received refugee status (this represents a 97% success rate).

This rather uncompromising approach which deems all human/people smuggling as criminal behavior is well represented in political discourse. Speaking as the Australian Prime Minister (as he then was) Kevin Rudd asserted that "People smugglers are engaged in the world's most evil trade and they should all rot in jail because they represent the absolute scum of the earth." He added, ""People smugglers are the vilest form of human life. They trade on the tragedy of others and that's why they should rot in jail and in my own view, rot in hell."

In contrast to this rather stark image projected by Mr. Rudd, others have articulated a rival image - that of a humanitarian seeking to help others escape persecution. One such person is Ali Al Jenabi, an Iraqi citizen, who, along with his family, was persecuted by Saddam Hussein's regime. Mr. Al Jenabi managed to escape Iraq and reach Australia. He sought to bring his family and others into the country. However as Bruce Haigh explains, due to lack of money and dishonest operatives in the informal transport networks, Al Jenabi entered the people smuggling "business" and managed to bring members of his family and hundreds more into Australia. Refugees such as Al Jenabi are well acquainted with the perils of fleeing persecution and can operate to help assist and navigate others to safety. While some human smugglers may personify the type of individuals Mr. Rudd described, they do not represent the entirety of those who attempt to assist others to find safe harbour.

Current Canadian (and Australian) law has not responded well to the diversity that exists among human smugglers. Furthermore, current domestic law in these and other jurisdictions has failed to consider the humanitarian purposes of the Refugee Convention and the protection of those fleeing persecution. Politicians have blinded themselves to the challenges faced by asylum-seekers in getting to their destination through legitimate routes. Lawmakers must appreciate the need for nuance and distinctions between smugglers and should design a system that countenances these differences.

[1] It is perhaps worth noting that article 31(1) of the 1951 Convention Relating to the Status of Refugees provides that contracting states shall not impose penalties on refugees for their illegal entry or presence into the contracting state. The terms of the article are directed at the refugees themselves and not those who may smuggle them in. However, it nevertheless reflects an understanding that refugee's migration into a contracting state may have to take place through illegal means or entry. If a bona fide refugee's illegal entry should not be punished under the terms of the Convention, should those who smuggle them in (provided it is not for profit) also be exposed to penalties and legal sanctions? Imposing penalties on those who can assist a refugee's migration to a safe territory may deter those from engaging in such assistance. Professor Guy S. Goodwin-Gill has observed however that notwithstanding the terms of s.31, states have nevertheless imposed penalties on refugees themselves. See Guy S. Goodwin-Gill, "Article 31 of the 1951 Convention Relating to the Status of Refugees: Non-Penalization, Detention, and Protection" in Erika Feller et al, Refugee Protection in International Law: UNHCR's Global Consultations on International Protection (London: Cambridge University Press, 2003), online: <http://www.refworld.org/docid/470a33b10.html>.

 

Sources

Primary Sources

B010 v Canada (Citizenship and Immigration), 2013 FCA 87, online: CanLII  <http://canlii.ca/t/fwmwt>.

Canada (Public Safety and Emergency Preparedness) v JP, 2013 FCA 262, online: CanLII <http://canlii.ca/t/g1t6s>.

Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 150 (entered into force22 April 1954). 

Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, 15 December 2000, 40 ILM 384 (2001) (28 January 2004), online: <http://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf>.

Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, 40 ILM 335 (2001), UN Doc A/55/383 at 25 (2000) (entered into force 29 September 2003), online: <http://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf>. 

R v Appulonappa, 2014 BCCA 163, online: CanLII <http://canlii.ca/t/g6pg1>.

United Nations Convention against Transnational Organized Crime, 15 November 2000, 40 ILM 335 (2001), UN Doc A/55/383 at 25 (2000) (entered into force 29 September 2003), online: <http://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf>. 

Secondary Sources

Guy S. Goodwin-Gill, "Article 31 of the 1951 Convention Relating to the Status of Refugees: Non-Penalization, Detention, and Protection" in Erika Feller et al, Refugee Protection in International Law: UNHCR's Global Consultations on International Protection (London: Cambridge University Press, 2003).

Bruce Haigh, "People smuggler or the Schindler of Asia?" The Drum (7 May 2012), online: <http://www.abc.net.au/news/2012-05-07/haigh-people-smuggler-or-the-schindler-of-asia3f/3994310>.

Project Safecom, "The Case of Mr. Hadi Ahmadi" (undated), online: <http://www.safecom.org.au/ahmadi-case.htm>.

Refugee Action Coalition Sydney, "People Smuggling" (undated), online: <http://www.refugeeaction.org.au/?page_id=1809>.

Emma Rodgers, "Rudd wants people smugglers to 'rot in hell'" ABC News (17 April 2009), online: <http://www.abc.net.au/news/2009-04-17/rudd-wants-people-smugglers-to-rot-in-hell/1653814>.

Andreas Schloenhardt & Connor Davies, "Smugglers and Samaritans: Defences to People Smuggling in Australia" (2013) 36(3) University of New South Wales Law Journal 954, online: <http://www.austlii.edu.au/au/journals/UNSWLJ/2013/36.html>.

Judicial Review, Questions of Law of Central Importance and Refugee Appeals.

Over the past year, there has been a lack of comity amongst Federal Court of Canada justices regarding the appropriate standard of review of decisions emerging from the Immigration and Refugee Board of Canada (IRB) and particularly with respect to questions of law relating to or arising from the Immigration and Refugee Protection Act (IRPA).[1]

Since the Supreme Court of Canada's decision in Dunsmuir v New Brunswick, there are currently two standards of review in effect at common law with respect to administrative law decisions - reasonableness and correctness. Reasonableness represents a deferential standard that is concerned "mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law."[2] By contrast, under a correctness standard, a "reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question."[3]

The Dunsmuir Court also highlighted that questions of law will not necessary deserve a correctness standard. The SCC has specifically identified constitutional questions, questions of jurisdiction, questions regarding the jurisdictional lines between two or more competing specialized tribunals, and questions of law that are of central importance to the legal system and outside of the expertise of the decision maker as deserving a correctness standard.[4] However the Court has asserted in post-Dunsmuir decisions that when decision-makers are interpreting or applying their "home" statute, there is a presumption of deference that should be accorded to their decisions.[5] 

All of this brings us back to the decisions of the IRB and in particular the Refugee Protection Division's (RPD) interpretations of law with respect to provisions of the IRPA in connection with s.96 (incorporating article 1A(2) of the Convention Relating to the Status of Refugees and as modified by article 1 of the 1967 Protocol Relating to the Status of Refugees).[6] In order to establish that one is a refugee, it must be established that the individual seeking refugee status is outside of their country of nationality or place of last habitual residence and is unable or unwilling to return on account of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion. Interpreting what constitutes, for example, a particular social group or a political opinion is (and has been interpreted to be) a question of law. However, when the RPD engages with such legal questions rooted in their home statute, should it be accorded deference? Or, because the grounds are derived from the Refugee Convention which is fundamentally about human rights protection, is what is involved a question of law of central importance to the legal system and outside the expertise of the RPD members?

While it may be fair to presume a deferential standard given the home statute presumption, there are nevertheless legitimate reasons for why a correctness standard is appropriate when reviewing the RPD's legal interpretations of s.96 and other related refugee provisions in the IRPA such as s.98. In Pushpanathan v Canada (Minister of Citizenship and Immigration), the Supreme Court of Canada applied a correctness standard when interpreting article 1F(c) of the Refugee Convention as incorporated into the former Immigration Act.[7] The Court concluded that article 1F(c) was primarily about the protection of human rights and the IRB had no relative expertise on such matters.[8]

Although Pushpanathan was a pre-Dunsmuir decision, more recently the Court in Ezokola v Canada (Citizenship and Immigration), interpreted the concept of complicity with respect to article 1F(a) of Convention.[9] In the process of doing so, the Court rather unhelpfully made no attempt to address the standard of review. However, in arriving at its interpretation, the Court appears to have engaged in its own legal interpretation rather than assessing whether the RPD's legal interpretation was reasonable. 

In Canada (Citizenship and Immigration) v B472, Justice Harrington articulated that a correctness standard was appropriate for interpreting the concept of "membership in a particular social group" as part of the definition of the Convention refugee situated within s.96 of the IRPA.[10] He observed that this was fundamentally about human rights and the IRPA imposed no requirements that RPD members have legal expertise in order to hold positions.[11] This was distinct from the conclusions arrived at by other justices of the Federal Court of Canada - see. e.g. Canada (Citizenship and Immigration) v B380; PM v Canada (Citizenship and Immigration); and SK v Canada (Citizenship and Immigration). It is also noteworthy that Justice Shore in Dufour v Canada (Citizenship and Immigration) applied a correctness standard with respect to other portions of the IRPA. 

A recent decision of the Federal Court of Appeal also suggests a correctness standard might be appropriate when dealing with human rights provisions of the IRPA. In Canada (Attorney General) v Johnstone,[12] the Court of Appeal was tasked with determining whether "family status" under the Canadian Human Rights Act [CHRA] incorporated parental obligations such as necessary and immutable childcare obligations that engaged a parent's legal responsibility for the child.[13] The Court concluded that the correctness standard was appropriate. It did so by following the SCC's decision in Mowat which indicated that where broad human rights principles were in play, a correctness standard may well apply.[14] It is useful to remember here that the CHRA is the Canadian Human Rights Tribunal's home statute. Thus, if legal interpretations of the Canadian Human Rights Tribunal with respect to broad human rights principles found within the CHRA are to be accorded no deference, surely it is legitimate to accord no deference to the RPD's legal interpretations of human rights provisions within its own home statute - the IRPA. 

The lack of comity amongst Federal Court justices on the standard of review in such cases may lead to some disparate results. Justice Harrington at the end of his decision in B472 certified the following question of general importance for the Federal Court of Appeal to consider: "Is review by this Court of the meaning of “membership in a particular social group” in section 96 of the Immigration and Refugee Protection Act as determined by a member of the Refugee Protection Division of the Immigration and Refugee Board on the correctness or reasonableness standard?"[15] Answering this question will likely help to resolve the current lack of comity and give parties a better degree of certainty as to what the appropriate standard of review will be.

Notes

1. Immigration and Refugee Protection Act, SC 2001, c 27.

2. Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 SCR 190.

3. Ibid at para 50.

4. Ibid at paras 58-61.

5. Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association, 2011 SCC 61, [2011] 3 SCR 654; Smith v Alliance Pipeline Ltd, 2011 SCC 7, [2011] 1 SCR 160.

6.  Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954); Protocol Relating to the Status of Refugees, 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).

7. Pushpanathan v Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982 at para 42, 160 DLR (4th) 193.

8. Ibid at paras 46-50.  

9. Ezokola v Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 SCR 678.

10.  Canada (Citizenship and Immigration) v B472, 2013 FC 151.

11. Ibid.

12. Canada (Attorney General) v Johnstone, 2014 FCA 110.

13. Canadian Human Rights Act, RSC 1985, c H-6, s 3.

14. Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53, [2011] 3 SCR 471.

15. B472, supra note 10 at para 32.