Roundtable: REPORT on the “Criminality in IRPA from an Academic and Practitioner’s Point of View (sections 34-35 of IRPA)”
May 23, 1:30-3, Session 2-1: Roundtable
Chair: Mr. Justice Richard Mosley of the Federal Court
Speakers: Holly Holtman, James C. Simeon, Joseph Rikhof, Nathan Benson
Holly Holtman, Senior General Counsel, Immigration and Refugee Board of Canada: Inadmissibility for Security Grounds, IRPA, section 34
This discussion, in this segment of the Roundtable, concentrated on the notions of espionage and subversion, that are contained in section 34(1)(a) and (b) of the Immigration and Refugee Protection Act (IRPA). Section 34 also contains aspects of inadmissibility based on security; namely: terrorism, (section 34(1)(c)); danger to the security of Canada, (section 34(1)(d)); and, acts of violence which would or might endanger the lives or safety of persons in Canada, (section 34(1)(e); while lastly, section 34(1)(f) also holds inadmissible members of an organization which has engaged in the above mentioned activities except the last two (danger to the security of Canada and acts of violence that might endanger the lives or safety of persons in Canada).
With respect to the concept of espionage, a broad meaning is to be given to this term, which is not defined in IRPA; according to the jurisprudence (Qu, FCTD, IMM-5114-98, aff’d 2001 FCA 399), espionage is simply a method of information gathering by spying; that is, by acting in a covert way. However, as a result of Bill-C-43 (Faster Removal of Foreign Criminals Act), as of June 19, 2013, section 34(1)(a) was narrowed to cover only acts of espionage that are “against Canada or that are contrary to Canada’s interests.
Like espionage, subversion is not defined in IRPA. There are two types of subversion in section 34(1); namely, engaging in or instigating subversion by force of any government (section 34(1)(b)} and engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada (section 34(1)(b.1)). In older case law, subversion connotes accomplishing change by illicit means or for improper purposes related to an organization (Qu, FCTD, IMM-5114-98, aff’d 2001 FCA 399), but, in Najafi (2014 FCA 262), the Federal Court of Appeal noted that Qu dealt with a predecessor of s. 34(1)(a), and held that, for the purposes of section 34(1)(b), subversion does not include any reference to the legality or legitimacy of such acts. Subversion has also been defined as “[any] act that is intended to contribute to the process of overthrowing a government, or most commonly as the use or encouragement of force, violence or criminal means with the goal of overthrowing a government, either in part of its territory or in the entire country” (U.S.A., 2014 FC 416; Re Shandi, FCTD, IMM-3-91)
The words “subversion by force of any government” do not imply a qualification of any kind with respect to the government in question in that legality or legitimacy may well be an issue that the Minister can consider under section 42.1 (the national interest exemption) but it is not relevant to the application of section 34(1)(b) (Najafi, 2014 FCA 262). Subversion of force of any government includes a plot to overthrow a despotic (non-democratic) government (Oremade, 2006 FC 1189; Suleyman, 2008 FC 780). Force must be an element, but not necessarily the exclusive element in the subversion (Oremade, 2005 FC 1077). The use of force in the subversion must be more than an accident – it must be the intended means by which to affect the overthrow of the government (Oremade, 2005 FC 1077)
The words “against a democratic government, institution or process as they are understood in Canada.” A democratic institution for the purpose of s. 34(1)(b.1) consists of a structured group of individuals established in accordance with democratic principles with preset goals and objectives who are engaged in lawful activities in Canada of a political, religious, social or economic nature (Qu, 2001 FCA 399) while the values and principles essential to a democratic society include respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect of cultural and group identity and faith in social and political institutions which enhance the participation of individuals and groups in society (Reference re Succession of Quebec,  2 S.C.R. 217, as cited in Qu, 2001 FCA 399).
James C. Simeon, Associate Professor, School of Public Policy and Administration, Faculty of Liberal Arts and Professional Studies, York University, Toronto: Section 34 (1) (c), engaging in terrorism
Like the other forms of inadmissibility in section 34, a finding based on section 34(1)(c) will preclude an appeal to the Immigration Appeal Division of the IRB by virtue of section 64 unless the appellant is the Minister (section 63). A finding of inadmissibility for security reasons (as well as the three other forms of inadmissibility found in section 35-37 of IRPA) will also prevent a refugee claimant from continuing with their refugee process (section 101(1)(f) but will result in a deportation order (section 229(1) of the IRPA Regulations).
Terrorism has been defined in the Canadian Criminal Code in section 83.01(1) in two ways; first, by referring to specific acts defined as terrorist acts as found in 12 international terrorist conventions; secondly, by including the following definition:
(b) an act or omission, in or outside Canada,
(i) that is committed
(A) in whole or in part for a political, religious or ideological purpose, objective or cause, and
(B) in whole or in part with the intention of intimidating the public, or a segment of the public, with regard to its security, including its economic security, or compelling a person, a government or a domestic or an international organization to do or to refrain from doing any act, whether the public or the person, government or organization is inside or outside Canada, and
(ii) that intentionally
(A) causes death or serious bodily harm to a person by the use of violence,
(B) endangers a person’s life,
(C) causes a serious risk to the health or safety of the public or any segment of the public,
(D) causes substantial property damage, whether to public or private property, if causing such damage is likely to result in the conduct or harm referred to in any of clauses (A) to (C), or
(E) causes serious interference with or serious disruption of an essential service, facility or system, whether public or private, other than as a result of advocacy, protest, dissent or stoppage of work that is not intended to result in the conduct or harm referred to in any of clauses (A) to (C),
The Criminal Code also defines what a terrorist group means, again in two ways, namely:
(a) an entity that has as one of its purposes or activities facilitating or carrying out any terrorist activity, or
(b) a listed entity and includes an association of such entities.
There have been 54 organizations listed as terrorist entities and while it is not a crime to be listed, one of the consequences of being listed is that the entity’s property can be the subject of seizure/restraint and/or forfeiture. In addition, institutions such as banks, brokerages, etc., are subject to reporting requirements with respect to an entity’s property and must not allow those entities to access the property. These institutions may not deal or otherwise dispose of the property. It is, however, an offence to knowingly participate in or contribute to, directly or indirectly, any activity of a terrorist group. This participation is only an offence if its purpose is to enhance the ability of any terrorist group to facilitate or carry out a terrorist activity.
There is no definition of terrorism in IRPA, but, the Supreme Court in Suresh defined terrorism by saying that terrorism includes “any act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.”
The concept of membership as set out in the section 34(1)(f) has been discussed in the jurisprudence by stating that some of the relevant criteria for this notion are a person’s intentions, his degree of involvement and his commitment to the organization (Krishnamoorthy v. Canada (Immigration and Citizenship), 2011, FC, 1342); the case goes on to say that “the jurisprudence points to a number of criteria – involvement, length of time, degree of commitment – that defines what membership in a broad sense may be. Not every act of support for a group that there are reasonable grounds to believe is involved in terrorist activities will constitute membership.” Another case has said that “to establish “membership” in an organization, there must at least be evidence of an “institutional link” with, or “knowing participation” in, the group’s activities.” (Saniyah v Canada (Minister of Citizenship and Immigration), 2004 FC 1576)
Joseph Rikhof, Adjunct Professor, Common Law Section, University of Ottawa: Exclusion – The Supreme Court of Canada and its views on section 35(1)(a) IRPA
The context in which to place the Ezokola decision of July 19, 2013 is the notion of criminal exclusion which removes the entitlement of persons to obtain refugee status, which is contained in article 1F(a) of the 1951 Refugee Convention and which reads as follows:
“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”;
While this decision was rendered in the context of exclusion in 1F(a), the Federal Court, in subsequent jurisprudence, that it applies equally in the inadmissibility context of section 35(1)(a), which states: “committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act;
In the Ezokola decision, the Supreme Court made the following findings:
-guilt by association or mere membership in a brutal, limited purpose organization is no longer an independent head of liability;
-the overarching test for establishing complicity is no longer “personal and knowing participation” but instead whether a person made a “voluntary, knowing and significant contribution to the group’s crime or criminal purpose” in carrying out international crimes;
-guidance for determining this test can be found in assessing several factors, six of which are specifically set out by the Supreme Court:
(i) the size and nature of the organization;
(ii) the part of the organization with which the refugee claimant was most directly
(iii) the refugee claimant’s duties and activities within the organization;
(iv) the refugee claimant’s position or rank in the organization;
(v) the length of time the refugee claimant was in the organization, particularly after
acquiring knowledge of the group’s crime or criminal purpose; and
(vi) the method by which the refugee claimant was recruited and the refugee claimant’s
opportunity to leave the organization;
-others forms of liability, such as aiding and abetting and command responsibility fall within the overarching test.
Nathan Benson, Legal and Research Director, University of Ottawa, “Refugee Hub: Too Wide a Net: How Canada’s Inadmissibility Regime Turns Away Valid Refugee Claims” (Based on research in progress with Prof. Jennifer Bond and Jared Porter)
Individuals seeking to obtain refugee status in Canada, even if they otherwise meet the definition of a refugee, must overcome not one but two distinct legal hurdles: exclusion and inadmissibility. The exclusion framework as set out in section 98 of the Immigration and Refugee Protection Act, is derived from Article 1F of the Refugee Convention. It excludes individuals from refugee protection where there are serious reasons for considering that they have committed serious international crimes, serious non-political crimes, or acts contrary to the purposes and principles of the United Nations. The inadmissibility framework is not present in the Refugee Convention but derives purely from Canadian legislation. It renders individuals ineligible to make a refugee claim if they are found to be inadmissible to Canada under several provisions of IRPA.
The application of the exclusion framework was modified by the Supreme Court’s 2013 Ezokola decision, dealing with the concept of complicity. There, the Supreme Court clarified that association with a particular group is not sufficient to justify exclusion from refugee protection. There must be a voluntary, knowing, and significant contribution to the group’s impugned conduct. However, under the inadmissibility framework, one can still be ineligible to make a refugee claim based on association in several circumstances. Thus, the inadmissibility framework casts a broader “net” than the exclusion framework of Article 1F in preventing access to refugee protection. This is inconsistent with Canada’s obligations under the Refugee Convention and leads to inconsistent and incoherent results.
One can point to four examples of the overbreadth in the inadmissibility framework, namely:
- individuals can be deemed inadmissible based on their “mere membership” in organizations that have engaged in violence or criminality as set out in sections 34(1)(f) and 37(1)(a);there is no requirement for the claimant to have made a significant contribution to the impugned activity of the group.
- if an individual meets the definition of designated senior official in section 35(1)(b), the individual is inadmissible regardless of whether the claimant was complicit in the violations allegedly committed by the designated regime.
- pursuant to section 33 a refugee claimant can be rendered inadmissible for being a member of an organization even if the group did not engage in violent or criminal activities while the claimant was a member (e.g., even if they left the organization before the impugned acts occurred).
- refugee claimants can be inadmissible for being a member of a group engaged in dangerous or criminal conduct, even if they had no knowledge that the group was involved in those activities.
Reform could be accomplished by:
- amending IRPA to exempt refugee claimants from the inadmissibility regime (making exclusion the sole basis for preventing access to refugee protection);
- reforming the inadmissibility regime for all immigration streams and categories;
- reforming the inadmissibility regime through targeted amendments relating to refugee claimants;
- reforms to the process for ministerial relief and/or humanitarian and compassionate grounds (H&C) applications.