Canada (A.G.) v. Ward (1993), 153 N.R. 321 (SCC)
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Patrick Francis Ward (appellant) v. The Attorney General of Canada and United Nations High Commissioner for Refugees, Immigration and Refugee Board, Canadian Council for Refugees (respondents)
(21937)
Indexed As: Canada (Attorney General) v. Ward
Supreme Court of Canada
La Forest, L’Heureux-Dubé,
Gonthier, Stevenson and
Iacobucci, JJ.
June 30, 1993.
Summary:
Ward was a national of both Ireland and the United Kingdom. He was a member of a terrorist organization (INLA) in Northern Ireland dedicated to removing British rule. Ward had been convicted and imprisoned for his terrorist activities. When released, he was kidnapped by the INLA and sentenced to death for freeing hostages. Ward escaped and fled to Canada, where he claimed Convention refugee status. The Minister denied the claim. The Immigration Appeal Board, after redetermining Ward’s claim, found Ward to be a Convention refugee. The Attorney General applied under s. 28 of the Federal Court Act to set aside the decision.
The Federal Court of Appeal, MacGuigan, J.A., dissenting, in a judgment reported 108 N.R. 60, quashed the decision and held that Ward was not a Convention refugee. Ward appealed.
The Supreme Court of Canada allowed the appeal, set aside the order of the Federal Court of Appeal and remitted the matter to the Immigration and Refugee Board for reevaluation of his claim as directed by the court.
Aliens – Topic 163
Classification of aliens – Refugees – What constitute – Ward was a national of Ireland and the United Kingdom – He was a former member of a terrorist organization (INLA) who betrayed the INLA by releasing hostages and fled to Canada to avoid a death sentence – The Supreme Court of Canada held that Ward had a well-founded fear of persecution by the INLA for reasons of political opinion – Accordingly, he was a Convention refugee under s. 2(1) of the Immigration Act if he was unable or unwilling to avail himself of the protection of his country of nationality – It was conceded that Ireland could not protect him from persecution by the INLA – However, the issue of whether his other country of nationality (Great Britain) was unable or unwilling to protect him was not addressed – The court remitted the matter to the Immigration and Refugee Board to determine this issue.
Aliens – Topic 1322
Admission – Refugees – Grounds – Well-founded fear of persecution – Section 2(1) of the Immigration Act required that a Convention refugee prove, inter alia, a well-founded fear of persecution – The Supreme Court of Canada held that s. 2(1) did not require that the state be complicit in, or the source of, the persecution – Acts by private citizens, when combined with the state’s inability to protect the refugee claimant, constituted persecution – The court stated that “persecution … includes situations where the state is not in strictness an accomplice to the persecution, but is simply unable to protect its citizens.” – See paragraphs 19 to 34.
Aliens – Topic 1322
Admission – Refugees – Grounds – Well-founded fear of persecution – Section 2(1) of the Immigration Act required that a Convention refugee prove, inter alia, a well-founded fear of persecution – The Supreme Court of Canada stated that a Convention refugee claimant must prove that (1) he subjectively feared persecution and (2) that the fear was well-founded in an objective sense – See paragraph 47.
Aliens – Topic 1323.1
Admission – Refugees – “Particular social group” defined – Section 2(1) of the Immigration Act limited the grounds of a Convention refugee’s well-founded fear of persecution to five possibilities, including “membership in a particular social group” – The Supreme Court of Canada stated that “particular social group” included “(1) groups defined by an innate or 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; (3) groups associated by a former voluntary status, unalterable due to its historical permanence.” – See paragraph 70.
Aliens – Topic 1323.1
Admission – Refugees – “Particular social group” defined – Section 2(1) of the Immigration Act limited the grounds of a Convention refugee’s well-founded fear of persecution to five possibilities, including “membership in a particular social group” – The Supreme Court of Canada stated that the Irish National Liberation Army (INLA), a terrorist organization, was not a “particular social group” within the meaning of s. 2(1) – INLA members were not characterized by an innate or unalterable characteristic and the INLA was a voluntary association committed to the attainment of specific political goals by any means, including violence, but this objective was not so fundamental to the human dignity of its members such that it constituted a “particular social group” – See paragraph 78.
Aliens – Topic 1323.2
Admission – Refugees – Persecution – Protection of country of nationality – Section 2(1) of the Immigration Act required that a Convention refugee claimant be “unable or … unwilling to avail himself of the protection of [his country of nationality]” – The Supreme Court of Canada stated that “with respect to ‘unable’, it would appear that physical or literal impossibility is
one
means of triggering the definition, but it is not the
only
way. Thus ineffective state protection is encompassed within the concept ‘unable’ and ‘unwilling’ … The majority in the court below [Federal Court of Appeal] … appeared to suggest that ‘unable’ requires no state complicity, but that ‘unwilling’ does. This dichotomy is not, in my view, supported by text of the section or the relevant authorities.” – See paragraphs 36 to 37.
Aliens – Topic 1323.2
Admission – Refugees – Persecution – Protection of country of nationality – Section 2(1) of the Immigration Act required that a Convention refugee claimant be “unable or … unwilling to avail himself of the protection of [his country of nationality]” – The Supreme Court of Canada stated that “only in situations in which state protection ‘might reasonably have been forthcoming’, will the claimant’s failure to approach the state for protection defeat his claim. Put another way, the claimant will not meet the definition of ‘Convention refugee’ where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities; otherwise, the claimant need not literally approach the state.” – Where the state conceded its inability to protect a claimant from persecution, the claimant need not prove he literally sought the protection of the state – See paragraphs 48 to 49.
Aliens – Topic 1323.2
Admission – Refugees – Persecution – Protection of country of nationality – Section 2(1) of the Immigration Act required that a Convention refugee claimant be “unable or … unwilling to avail himself of the protection of [his country of nationality]” – The Supreme Court of Canada stated that “in considering the claim of a refugee who enjoys nationality in more than one country, 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.” – See paragraph 89.
Aliens – Topic 1323.8
Admission – Refugees – “Political opinion” defined – Section 2(1) of the Immigration Act limited the grounds of a Convention refugee’s well-founded fear of persecution to five possibilities, including “political opinion” – The Supreme Court of Canada stated that political opinion has been defined as persecution of persons on the ground that “they are alleged or known to hold opinions contrary to or critical of the policies of the government or ruling party” – It also applied where the claimant’s political opinion was seen as a threat by a group unrelated, or even opposed, to the state, including a terrorist organization – The court stated that the political opinion need not have been expressed outright and need not necessarily conform to the claimant’s true belief – A Convention refugee claimant feared persecution for acts betraying his duties as a member of a terrorist organization (INLA) – The court stated that his fear of persecution “stems from his political opinion as manifested by this act” – See paragraphs 80 to 84.
Words and Phrases
Unable
– The Supreme Court of Canada discussed the meaning of the word “unable”, as found in s. 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 – See paragraphs 36 to 37.
Words and Phrases
Unwilling
– The Supreme Court of Canada discussed the meaning of the word “unwilling”, as found in s. 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 – See paragraphs 36 to 37.
Cases Noticed:
Rajudeen v. Minister of Employment and Immigration (1984), 55 N.R. 129 (F.C.A.), consd. [para. 29].
Surujpal v. Minister of Employment and Immigration (1985), 60 N.R. 73 (F.C.A.), consd. [para. 30].
Zalzali v. Minister of Employment and Immigration, [1991] 3 F.C. 605; 126 N.R. 126 (C.A.), consd. [para. 31].
McMullen v. Immigration and Naturalization Service (1981), 658 F.2d 1312 (9th Cir.), consd. [para. 32].
Artiga-Turcios v. Immigration and Naturalization Service (1987), 829 F.2d 720 (9th Cir.), refd to. [para. 32].
Arteaga v. Immigration and Naturalization Service (1988), 836 F.2d 1227 (9th Cir.), refd to. [para. 32].
Estrada-Posadas v. Immigration and Naturalization Service (1991), 924 F.2d 916 (9th Cir.), refd to. [para. 32].
Satiacum v. Minister of Employment and Immigration (1989), 99 N.R. 171 (F.C.A.), refd to. [para. 47].
Astudillo v. Minister of Employment and Immigration (1979), 31 N.R. 121 (F.C.A.), refd to. [para. 55].
Gonzalez v. Minister of Employment and Immigration (1991), 129 N.R. 396 (F.C.A.), refd to. [para. 55].
Lai v. Minister of Employment and Immigration (1989), 8 Imm. L.R. 245, refd to. [para. 55].
Osorio-Cruz v. Minister of Employment and Immigration, [1988] I.A.B.D. M88-20043X, refd to. [para. 55].
Nalliah v. Minister of Employment and Immigration, [1987] I.A.B.D. M84-1642, refd to. [para. 55].
Escoto v. Minister of Employment and Immigration, [1987] I.A.B.D. T87-9024X, refd to. [para. 55].
Incirciyan v. Minister of Employment and Immigration, [1987] I.A.B.D. M87-1541X/M87-1248, refd to. [para. 55].
Balareso v. Minister of Employment and Immigration, [1985] I.A.B.D. M83-1542, refd to. [para. 55].
Cheung v. Minister of Employment and Immigration (1993), 153 N.R. 145 (F.C.A.), consd. [para. 55].
Minister of Employment and Immigration v. Mayers (1992), 150 N.R. 60; 97 D.L.R.(4th) 729 (F.C.A.), consd. [para. 55].
Sanchez-Trujillo v. Immigration and Naturalization Service (1986), 801 F.2d 1571 (9th Cir.), refd to. [para. 57].
Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255; [1989] 2 W.W.R. 289; 56 D.L.R.(4th) 1; 34 B.C.L.R.(2d) 273; 36 C.R.R. 193; 25 C.C.E.L. 255, refd to. [para. 68].
Immigration and Naturalization Service v. Elias-Zacarias (1992), 112 S.Ct. 812 (U.S.S.C.), refd to. [para. 85].
Statutes Noticed:
British Nationality Act, 1981 (U.K.), c. 61, generally [para. 88].
Canadian Charter of Rights and Freedoms, 1982, sect. 15 [para. 17].
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, sect. 28 [para. 7].
Immigration Act, S.C. 1976-77, c. 52, sect. 2(1) [para. 1].
Immigration Act, R.S.C. 1985, c. I-2, sect. 2(1) [para. 1]; sect. 4(2.1) [para. 92]; sect. 19(1)(c), sect. 19(1)(d), sect. 19(1)(e), sect. 19(1)(f), sect. 19(1)(g), sect. 19(2) [para. 72]; sect. 46.04(1)(c) [para. 91].
Immigration Act Regulations (Can.), SOR/78-172, sect. 19(4)(j) [para. 92].
Interpretation Act, R.S.C. 1985, c. I-21, sect. 33(2) [para. 90].
Prevention of Terrorism (Temporary Provisions) Act, 1984 (U.K.), c. 8, generally [para. 16].
Prevention of Terrorism (Temporary Provisions) Act, 1989 (U.K.), c. 4, generally [para. 96].
Authors and Works Noticed:
Compton, Daniel, Asylum for Persecuted Social Groups: A Closed Door Left Slightly Ajar — Sanchez-Trujillo v. I.N.S., 801 F.2d 1571 (9th Cir. 1986) (1987), 62 Wash. L. Rev. 913, p. 923 [para. 57].
Foighel, Isi, The Legal Status of the Boat-People, 48 Nordisk Tidsskrift for International Relations 217, pp. 222, 223 [para. 56].
Goodwin-Gill, Guy S., The Refugee in International Law (1983), pp. 25 [para. 36]; 30 [para. 57]; 31 [para. 81]; 38 [paras. 43, 45]; 39 [para. 64]; 42 [para. 28].
Grahl-Madsen, Atle, The Status of Refugees in International Law (1966), pp. 191 [para. 28]; 219 [para. 58]; 220 [para. 81].
Graves, Maureen, From Definition to Exploration: Social Groups and Political Asylum Eligibility (1989), 26 San Diego L. Rev. 739, pp. 747 to 749 [para. 58].
Gross, Douglas, The Right of Asylum under United States Law (1980), 80 Columbia L. Rev. 1125, p. 1139 [para. 28].
Hathaway, James C., The Law of Refugee Status (1991), pp. 108 [para. 63]; 130 [para. 48]; 135 [paras. 18, 64]; 136 [para. 64]; 221 [para. 75].
Helton, Arthur C., Persecution on Account of Membership in a Social Group As a Basis for Refugee Status (1983), 15 Columbia Human Rights L. Rev. 39, p. 45 [para. 56].
Hyndman, Patricia, The 1951 Convention Definition of Refugee: An Appraisal with Particular Reference to the Case of Sri Lankan Tamil Applicants (1987), 9 Hum. Rts. Q. 49, p. 67 [para. 28].
Plender, Richard, Admission of Refugees: Draft Convention on Territorial Asylum (1977), 15 San Diego L. Rev. 45, p. 52 [para. 59].
Takkenberg, Alex and Christopher C. Tahbaz, The Collected Travaux préparatoires of the 1951 Geneva Convention relating to the Status of Refugees, p. 415 [para. 36].
United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (1988), paras. 65 [para. 27]; 66 [para. 80]; 77 to 79 [para. 62]; 98 to 100 [para. 36].
United Nations, Report of the First Ad Hoc Committee on Statelessness and Related Problems (Feb. 17, 1950), U.N. Doc. E/1618, generally [para. 36].
van der Veen, Job, Does Persecution by Fellow-Citizens in Certain Regions of a State Fall Within the Definition of “Persecution” in the Convention Relating to Status of Refugees of 1951? Some Com-ments Based on Dutch Decisions (1980), 11 Netherlands Y.B. Intl. L. 167, p. 172 [para. 28].
Counsel:
Peter A. Rekai, M. Christina F. Kurata, Le Vern L. Robertson and Constance Nakatsu, for the appellant;
Roslyn J. Levine and Nanette Rosen, for the respondent;
Ronald B. Shacter and Phyllis Gordon, for the intervener, Canadian Council for Refugees;
Brian A. Crane, Q.C., and Gerald Stobo, for the intervener, Immigration and Refugee Board.
Solicitors of Record:
Rekai & Johnson, Toronto, Ontario, for the appellant;
Deputy Attorney General of Canada, Toronto, Ontario, for the respondent;
United Nations High Commissioner for Refugees, Ottawa, Ontario, for the intervener, United Nations High Commissioner for Refugees;
Immigration and Refugee Board, Ottawa, Ontario, for the intervener, Immigration and Refugee Board;
Parkdale Community Legal Services Inc., Toronto, Ontario, for the intervener, Canadian Council for Refugees.
This appeal was heard on March 25, 1992, before La Forest, L’Heureux-Dubé, Gonthier, Stevenson and Iacobucci, JJ., of the Supreme Court of Canada.
On June 30, 1993, La Forest, J., delivered the following judgment in both official languages for the Supreme Court of Canada.
Stevenson, J., did not participate in the judgment.
