Canada (Attorney General) v. Ward  2 S.C.R. 689: Immigration -- Refugee status -- "Particular social group" -- Political opinion -- "Well-founded fear of persecution" necessary to establishment of claim to Convention refugee status -- Claimant a former member of Irish terrorist organization sentenced to death by organization for complicity in assisting escape of hostages -- Claimant citizen of Ireland and of United Kingdom -- Whether state complicity requirement for persecution -- Whether terrorist organization a "particular social group" -- Whether dissention from politico-military organization basis for persecution for political opinion
Present: La Forest, L'Heureux-Dubé, Gonthier, Stevenson and Iacobucci JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Immigration -- Refugee status -- "Particular social group" -- Political opinion -- "Well-founded fear of persecution" necessary to establishment of claim to Convention refugee status -- Claimant a former member of Irish terrorist organization sentenced to death by organization for complicity in assisting escape of hostages -- Claimant citizen of Ireland and of United Kingdom -- Whether state complicity requirement for persecution -- Whether terrorist organization a "particular social group" -- Whether dissention from politico-military organization basis for persecution for political opinion -- Whether s. 15 of Charter applicable to definition of Convention refugee -- Burden of proof of want of protection of each country of nationality -- Canadian Charter of Rights and Freedoms, s. 15 -- Immigration Act, 1976, S.C. 1976-77, c. 52, ss.2(1), 4(2.1), 19(1)(c), (d), (e), (f), (g), (2), 46.04(1)(c).
Appellant was a resident of Northern Ireland. Motivated by a perceived need to "take a stand" in order to protect his family, mainly from the IRA, he voluntarily joined the INLA, a para-military terrorist group dedicated to the political union of Ulster and the Irish Republic. Appellant, who had been detailed to guard innocent hostages, secured their escape when he learned that they were to be executed. This action was motivated by his conscience.
The police eventually let slip to an INLA member that one of their own had assisted the escape. The INLA, who had suspected appellant, confined and tortured him and sentenced him to death following a court-martial by a kangaroo court. Appellant escaped from the INLA, sought police protection and was charged for his part in the hostage incident. The INLA, in a pre-emptive move to prevent appellant's providing evidence to the police about INLA members and their activities, took his wife and children hostage.
Appellant pleaded guilty to the offence of forcible confinement and was sentenced to three years in jail. He did not give evidence against the INLA and never admitted publicly to having released the hostages. Towards the end of his prison sentence, appellant sought the assistance of the prison chaplain for protection from INLA members. The chaplain, with the assistance of police, obtained a Republic of Ireland passport for appellant and airline tickets to Canada.
Appellant arrived in Toronto in December 1985 and sought admission to Canada as a visitor. He became the subject of an inquiry in May, 1986, and claimed Convention refugee status citing a fear of persecution because of his membership in a particular social group (the INLA). The Minister of Employment and Immigration determined that appellant was not a Convention refugee and, as a result, appellant filed an application for redetermination of his claim before the Immigration Appeal Board. The Board allowed the redetermination and found appellant to be a Convention refugee. The Federal Court of Appeal granted the Attorney General of Canada's application under s. 28 of the Federal Court Act to set aside the decision and referred the matter back to the Board for reconsideration.
At issue before this Court were: (1) whether the element of state complicity is required to establish a refugee claim and the nature of the "unwillingness" or "inability" of a claimant to seek the protection of his or her home state; (2) the meaning of "particular social group"; (3) the nature of persecution for political opinion and whether desertion from a politico-military organization for reasons of conscience may properly ground a claim based on that ground; (4) whether s. 15 of the Charter was applicable; and (5) in cases of multiple nationality, whether the claimant must establish want of protection in all states of citizenship.
Held: The appeal should be allowed.
International refugee law was formulated to serve as a back-up to the protection owed a national by his or her state. It was meant to come into play only in situations where that protection is unavailable, and then only in certain situations. The international community intended that persecuted individuals be required to approach their home state for protection before the responsibility of other states becomes engaged.
"Persecution" includes situations where the state is not in strictness an accomplice to the persecution but is simply unable to protect its citizens. The dichotomy between "unable" and "unwilling" has become somewhat blurred. The inquiry as to whether a claimant meets the "Convention refugee" definition must focus on whether there is a "well-founded fear", which the claimant must first establish, and all that follows must be "by reason of" that fear. Two categories, both requiring the claimant to be outside his or her state of nationality by reason of that fear, exist. The first requires that the claimant be unable to avail him- or herself of that state's protection. It originally related only to stateless persons, but can now include those refused passports or other protections by their state of nationality. The second requires that the claimant be unwilling to avail him- or herself of his or her state's protection by reason of that fear. Neither category of the "Convention refugee" definition, however, requires that the state have been involved in the persecution.
The test as to whether a state is unable to protect a national is bipartite: (1) the claimant must subjectively fear persecution; and (2) this fear must be well-founded in an objective sense. The claimant need not literally approach the state unless it is objectively unreasonable for him or her not to have sought the protection of the home authorities. The Board, if the claimant's fear has been established, is entitled to presume that persecution will be likely and that the fear is well-founded if there is an absence of state protection. The presumption goes to the heart of the inquiry, which is whether there is a likelihood of persecution. The persecution must be real -- the presumption cannot be built on fictional events -- but the well-foundedness of the fears can be established through the use of such a presumption.
The presumption was of some importance to the Board in this case. It found that the appellant was a credible witness and therefore accepted that he had a legitimate fear of persecution. Since Ireland's inability to protect was established through evidence that state agents had admitted their ineffectiveness, the Board was then able to presume the well-foundedness of appellant's fears.
The claimant must provide clear and convincing confirmation of a state's inability to protect absent an admission by the national's state of its inability to protect that national. Except in situations of complete breakdown of the state apparatus, it should be assumed that the state is capable of protecting a claimant. This presumption, while it increases the burden on the claimant, does not render illusory Canada's provision of a haven for refugees. It reinforces the underlying rationale of international protection as a surrogate, coming into play where no alternative remains to the claimant.
In distilling the contents of the head of "particular social group", account should be taken of the general underlying themes of the defence of human rights and anti-discrimination that form the basis for the international refugee protection initiative. A good working rule for the meaning of "particular social group" provides that this basis of persecution consists of three categories: (1) groups defined by an innate, unchangeable characteristic; (2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and (3) groups associated by a former voluntary status, unalterable due to its historical permanence.
Exclusions on the basis of criminality have been carefully drafted in the Immigration Act to avoid the admission of claimants who may pose a threat to the Canadian government or to the lives or property of the residents of Canada. These provisions specifically give the Minister of Employment and Immigration enough flexibility to reassess the desirability of permitting entry to a claimant with a past criminal record, where the Minister is convinced that rehabilitation has occurred. This demonstrates that Parliament has not opted to treat a criminal past as a reason to be estopped from obtaining refugee status. The scope of the term "particular social group" accordingly did not need to be interpreted narrowly to accommodate morality and criminality concerns. Such a blanket exclusion is more appropriately to be avoided in the face of an explicit, comprehensive structure for the assessment of these potentially inadmissible claimants.
Appellant did not meet the definition of "Convention refugee" with respect to his fear of persecution at the hands of the INLA upon his return to Northern Ireland. The group of INLA members is not a "particular social group". Its membership is neither characterized by an innate characteristic nor is it an unchangeable historical fact. Its objective of obtaining specific political goals by any means, including violence, cannot be said to be so fundamental to the human dignity of its members that it constitutes a "particular social group". In any event, appellant's fear was not based on his membership. Rather, he felt threatened because of what he did as an individual. His membership in the INLA placed him in the circumstances that led to his fear, but the fear itself was based on his action, not on his affiliation.
A claimant is not required to identify the reasons for the persecution. The examiner must decide whether the Convention definition is met; usually there will be more than one applicable ground.
Political opinion can generally be interpreted to be any opinion on any matter in which the machinery of state, government, and policy may be engaged. The political opinion at issue need not have been expressed outright. Often the claimant is not even given the opportunity to articulate his or her beliefs; often they are imputed to the claimant from his or her actions. The political opinion ascribed to the claimant and for which he or she fears persecution need not necessarily conform to the claimant's true beliefs. The examination of the circumstances should be approached from the perspective of the persecutor, since that is the perspective that is determinative in inciting the persecution. Similar considerations apply to other bases of persecution.
Appellant's fear of being killed by the INLA, should he return to Northern Ireland, stemmed initially from the group's threat of executing the death sentence imposed by its court-martial. The act for which appellant was so punished was his assistance in the escape of the hostages he was guarding. From this act, a political opinion related to the proper limits to means used for the achievement of political change can be imputed. To appellant, who believed that the killing of innocent people to achieve political change is unacceptable, setting the hostages free was the only option that accorded with his conscience. The persecution appellant fears stemmed from his political opinion as manifested by this act.
Given that the relevant aspects of the majority decision were found to be incorrect for
other reasons, recourse to s. 15 of the Charter with respect to "particular
social group" and state complicity was unnecessary.
Appellant conceded dual nationality -- Irish and British. The burden of proof, including a showing of well-founded fear of persecution in all countries of which the claimant is a national, lies with appellant and not the Minister.
The Board must investigate whether the claimant is unable or unwilling to avail him- or herself of the protection of each and every country of nationality. Any home state protection is a claimant's sole option when available since international refugee protection is to serve as "surrogate" shelter coming into play only upon failure of national support. The inability of a state of nationality to protect can be established where the claimant has actually approached the state and been denied protection. Where, as in the case of appellant, the second state has not actually been approached by the claimant, that state should be presumed capable of protecting its nationals. An underlying premise of this presumption is that citizenship carries with it certain basic consequences, such as the right to gain entry to the country at any time. Denial of admittance to the home territory can amount to a refusal of protection. Here, evidence, albeit not expert opinion, was led to establish that British legislation enabled the British Government to prohibit a national from being in, or entering, Great Britain, if the national had been connected with terrorism with regard to Northern Ireland. The applicability of this presumption and its rebuttal depended on the particular circumstances of this case and was to be determined by the Board.
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