Guilt by Association: Ezokola’s Unfinished Business in Canadian Refugee Law

2020 ◽  
Vol 39 (1) ◽  
pp. 1-25
Author(s):  
Jennifer Bond ◽  
Nathan Benson ◽  
Jared Porter
Keyword(s):  
Supreme Court Of Canada ◽  
Unfinished Business ◽  
Refugee Convention ◽  
International Crimes ◽  
Refugee Protection ◽  
Refugee Law ◽  
The Supreme Court ◽  
Guilt By Association ◽  
Refugee Claimant ◽  
The Relationship

Abstract Guilt by association is an insufficient ground on which to deny international refugee protection. This was the finding in Ezokola v. Canada, a landmark case holding that Article 1F(a) of the Refugee Convention requires a “voluntary, knowing and significant contribution” to a crime or criminal purpose before a refugee claimant can be excluded from protection on the basis of alleged involvement in international crimes. However, the same kinds of underlying acts that were before the Supreme Court of Canada in Ezokola – and are routinely considered under the Article 1F(a) exclusion framework – are also assessed under a second, distinct part of Canada's refugee system called the inadmissibility framework. This article explores the relationship between exclusion and inadmissibility, and demonstrates critical differences in the scope of each framework. We ultimately conclude that Canada's inadmissibility provisions bar asylum seekers from refugee protection on grounds broader than those permitted under Article 1F(a). This renders Canada's refugee claims system fundamentally inconsistent with the Refugee Convention and means that the business started in Ezokola urgently needs to be finished.

scholarly journals A Canadian Perspective on the Subjective Component of the Bipartite Test for “Persecution”: Time for Re-evaluation

Refuge ◽  
2004 ◽  
pp. 108-118
Author(s):  
Michael Bossin ◽  
Laila Demirdache
Keyword(s):  
Federal Court ◽  
Decision Makers ◽  
Supreme Court Of Canada ◽  
Refugee Protection ◽  
The Supreme Court ◽  
State Of Mind ◽  
Canadian Perspective ◽  
Objective Sense ◽  
Subjective Aspect ◽  
Refugee Claimant

Canadian decision makers refer so regularly to the bipartite nature of the test for persecution in refugee claims that one rarely gives the matter a second thought. After all, the Supreme Court of Canada in Ward clearly affirmed that a refugee claimant must subjectively fear persecution, and this fear must be wellfounded in an objective sense. In this article, the authors focus on the meaning and validity of the subjective aspect of the bipartite test. It is especially appropriate to do so at this time, given the introduction of the term “person in need of protection” in section 97 of the Immigration and Refugee Protection Act, and recent Federal Court decisions holding that the subjective fear is not a requirement in section 97 cases. Looking at the issue of subjective fear from historical, psychological, and legal perspectives, the authors argue: (a) that the drafters of the UN Convention never intended claimants to be “subjectively afraid” in order to qualify for protection; (b) determining an asylum seeker’s state of mind presents a minefield of potential problems for decision makers; and (c) given the new IRPA provisions dealing with persons in need of protection, the question is not whether there is a bipartite test for determining well-founded fear, but whether, indeed, there ought to be such a test.

Canadian Exclusion Jurisprudence post-Febles

2021 ◽  
Author(s):  
Molly Joeck
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Asylum Seekers ◽  
Refugee Status ◽  
The Rule Of Law ◽  
Refugee Protection ◽  
Refugee Law ◽  
The Supreme Court ◽  
The Status ◽  
International Refugee Law

Abstract This article examines the state of Canadian refugee law since the decision of the Supreme Court in Febles v Canada (Citizenship and Immigration) [2014] 3 SCR 431. Drawing upon an analysis of a set of decisions of the Immigration and Refugee Board, the administrative tribunal tasked with refugee status determination in Canada, the article seeks to determine whether administrative decision makers are heeding the guidance of Febles when excluding asylum seekers from refugee protection on the basis of serious criminality pursuant to article 1F(b) of the 1951 Convention relating to the Status of Refugees. In doing so, it examines the controversy around article 1F(b) since its inception across various jurisdictions and amongst academic commentators, situating Febles within that controversy in order to demonstrate that the Supreme Court’s reluctance to clearly set out the purpose underlying article 1F(b) is in step with a longstanding tendency to understand the provision as serving a gatekeeping function, that prevents criminalized non-citizens from obtaining membership in our society. It argues that by omitting to set out a clear and principled standard by which asylum seekers can be excluded from refugee protection pursuant to article 1F(b), the Supreme Court failed to live up to a thick understanding of the rule of law. It concludes by calling for a reassertion of the rule of law into exclusion decision making, both nationally and internationally, in order to ensure that the legitimacy of the international refugee law regime is maintained.

Part I International Refugee Law— Reflections on the Scholarly Field, Ch.8 The Intersection of International Refugee Law and International Statelessness Law

2021 ◽  
Author(s):  
van Waas Laura
Keyword(s):  
First Century ◽  
Forced Displacement ◽  
Refugee Protection ◽  
Refugee Law ◽  
Durable Solutions ◽  
Twenty First Century ◽  
International Refugee Law ◽  
The Relationship ◽  
Insight Into ◽  
Stateless Person

This chapter focuses on the intersection of international refugee law and international statelessness law. While refugee law, policy, doctrine, and research evolved, it was not until after the turn of the twenty-first century that international statelessness law started to draw much attention and to begin to emerge as a field of its own. As global interest in statelessness grows, the interaction between statelessness and forced displacement has also come back under the spotlight. Thus, the chapter provides an insight into the relationship between statelessness and forced displacement. It starts by unpacking how statelessness can manifest itself as a cause or consequence of displacement, as well as how statelessness can be a complicating factor for refugee protection and durable solutions. The chapter then offers a brief overview of key norms relating to the protection of stateless persons and the prevention and resolution of statelessness, setting out the contours of international statelessness law. It also looks at the implications of the statelessness–displacement nexus by exploring the conceptual and practical questions that arise when a refugee is also stateless, and when a stateless person is also a refugee.

Part II Sources, Ch.11 Moving Towards an Integrated Approach of Refugee Law and Human Rights Law

2021 ◽  
Author(s):  
Chetail Vincent
Keyword(s):  
Human Rights ◽  
International Law ◽  
Integrated Approach ◽  
Human Rights Law ◽  
Refugee Convention ◽  
Refugee Protection ◽  
Refugee Law ◽  
Gradual Process ◽  
New Perspective ◽  
Human Rights Based Approach

This chapter highlights the interface between human rights law and refugee law. The broader evolution of international law reflects the changing pattern of refugee protection as initially grounded in the Refugee Convention and subsequently informed by human rights treaties. As a result of a gradual process of pollination, human rights law has shaped, updated, and enlarged refugee law. While revamping the basic tenets of the Refugee Convention, it has become the normative frame of reference. Refugee law and human rights law are now so interdependent that they are bound to work in tandem. Their intermingling paves the way for a human rights-based approach to refugee protection. Instead of regarding the two branches of international law as silos, this new perspective offers a broader vision of refugee protection. This comprehensive design acknowledges that refugee law and human rights law complement and reinforce each other within one single continuum of protection.

Part V The Scope of Refugee Protection, Ch.38 The Internal Protection Alternative

2021 ◽  
Author(s):  
Ghráinne Bríd Ní
Keyword(s):  
Refugee Convention ◽  
Safe Place ◽  
Refugee Protection ◽  
Refugee Law ◽  
State Practice ◽  
Treaty Interpretation ◽  
Risk Of Exposure ◽  
The Individual ◽  
Risk Driving ◽  
The City

This chapter discusses the Internal Protection Alternative (IPA), which stems from the premise that if there is a safe place within an individual’s State of nationality or habitual residence where they can relocate, they are not a refugee. Examples of the application of the IPA could include relocating from the countryside to the city where an individual is less likely to be found by their persecutors; or relocating to an area where a clan, tribe, militia, or international organization could provide protection. As refugee law lacks an international mechanism capable of providing a common interpretation of the Refugee Convention, the IPA’s interpretation has primarily been left to Contracting States by means of domestic court decisions. Using the rules of treaty interpretation, it is nonetheless possible to distil a minimum binding standard of relevant IPA criteria from both State practice and the text of the Refugee Convention itself. These criteria are that (i) the proposed IPA must be accessible to the applicant, (ii) there is no risk of exposure to the original risk of persecution, and (iii) there must be no new risk of persecution or of refoulement in the proposed IPA, and the conditions there must not be so unreasonable as to risk driving the individual to a place where there is a risk of persecution.

scholarly journals Religious Diversity, Education, and the “Crisis” in State Neutrality

2013 ◽  
Vol 29 (01) ◽  
pp. 103-122 ◽  
Author(s):  
Benjamin L. Berger
Keyword(s):  
Public Education ◽  
Religious Diversity ◽  
Diversity Education ◽  
Supreme Court Of Canada ◽  
Religious Difference ◽  
State Neutrality ◽  
Politics And Religion ◽  
Religion And Law ◽  
The Supreme Court ◽  
The Relationship

Abstract Education—and particularly public education—has become a crucible for the relationship between state and religious diversity, a principal site for contemporary debates about the meaning of secularism and the management of religious difference. This is so across a variety of national traditions, and despite wide differences in the historical and “emotional inheritances” surrounding the configuration of law, politics, and religion. Through an exploration of Hannah Arendt’s thought about responsibility and freedom in education, this article works towards a better understanding of why education is such a crucial and fraught field in the modern encounter between religion and law. The article turns to the recent jurisprudence of the Supreme Court of Canada to draw out the implications of these ideas, arriving ultimately at a claim about the nature and limits of the concept of state neutrality.

scholarly journals The Freedom of Association Mess: How We Got into It and How We Can Get out of It

2009 ◽  
Vol 54 (1) ◽  
pp. 177-212 ◽  
Author(s):  
Brian Langille
Keyword(s):  
Constitutional Law ◽  
Supreme Court Of Canada ◽  
Freedom Of Association ◽  
Labour Law ◽  
Labour Relations ◽  
State Action ◽  
Starting Point ◽  
The Supreme Court ◽  
The Impact ◽  
The Relationship

Abstract Canadian constitutional law regarding freedom of association for workers is a mess. The jurisprudence to date has taken an approach to state action and positive obligations to legislate which is inconsistent with section 15, and has failed to articulate the relationship between the abstract statement of basic rights or freedoms and the detailed statutes and regulations that instantiate and enforce them. This paper focuses on the impact of the recent decision of the Supreme Court of Canada in BC Health. The author argues that this case misunderstood Canada’s labour law history, international labour law obligations, “Charter values”, and the distinction between “freedoms” and “rights”. This paper argues that by using labour relations statutes as a starting point and applying the constitutional idea of equality, courts can protect freedom of association for workers and find a way out of the mess we are in.

scholarly journals “It Is Better to Be a Refugee Than a Turkana in Kakuma”: Revisiting the Relationship between Hosts and Refugees in Kenya

Refuge ◽  
1969 ◽  
pp. 73-83
Author(s):  
Ekuru Aukot
Keyword(s):  
Negative Impact ◽  
Local Economy ◽  
Refugee Protection ◽  
Refugee Law ◽  
Local Integration ◽  
International Refugee Law ◽  
International Instruments ◽  
International Conventions ◽  
The Relationship ◽  
Host Relations

The article echoes stories and perceptions of the hosts to the refugees in their day-to-day relations in Kakuma refugee camp with little emphasis on academic abstraction of refugee protection contained in international instruments but rather on the realities on the ground. It is argued that good refugee-host relations enhance refugees’ enjoyment of their rights under the international conventions and promote local integration. The article discusses areas of conflict between refugees and their hosts and how these factors endanger refugees’ physical protection, and it echoes the hosts’ solutions to the conflicts. The failure of local integration is attributed to poor refugee-host relations. Consequently, it is argued that even the enactment of refugee specific legislation “that would give force” to the international conventions will not necessarily improve refugees’ enjoyment of their rights as long as, through a practice of selective compassion by humanitarian agencies and international refugee law, refugees are targeted for assistance without regard to the negative impact on the local economy and its residents.

Part V Rights and Freedoms, B Rights and Freedoms under the Charter, Ch.39 Equality and Anti-discrimination: The Relationship between Government Goals and Finding Discrimination in Section 15

2017 ◽  
Author(s):  
Lawrence Sonia
Keyword(s):  
Supreme Court ◽  
Complete Separation ◽  
Supreme Court Of Canada ◽  
Government Action ◽  
Canadian Charter ◽  
Doctrinal Development ◽  
Substantive Equality ◽  
The Supreme Court ◽  
The Relationship

This chapter considers the effect of section 1, the “justification” section of the Canadian Charter, on the doctrinal development of section 15, the equality section. It begins by describing the development of the section 15 substantive equality analysis, including the claim of a conceptually complete separation from the section 1 analysis of state justification. The chapter then identifies some features of section 15 which suggest that this separation is less than complete, including the existence of section 15(2), and anxieties over constraining government action. The chapter then turns to three post-2001 cases in which the Supreme Court of Canada found discrimination under the Charter but then held that discrimination was “justified” through section 1, and asks what these cases might reveal about the symbolic significance of a finding of discrimination and the Court’s struggle with institutional competence concerns in equality claims.

Refugee Law in Crisis

2018 ◽  
Author(s):  
Eddie Bruce-Jones
Keyword(s):  
United Kingdom ◽  
State Violence ◽  
Border Control ◽  
Refugee Convention ◽  
Refugee Protection ◽  
The United Kingdom ◽  
Refugee Law ◽  
The Way

This chapter aims to critically interrogate foundational aspects of refugee law from a decolonial perspective. Considered within the context of contemporary debates on counterterrorism and border control in the United Kingdom, it argues that the way we conceptualize violence within the broader project of refugee protection underpins our complicity in the global ordering of violence and suffering. The chapter aims to reveal this dynamic and to propose teaching and conceptualizing of refugee law in a way that frames state violence more broadly than the ‘persecution’ detailed in the Refugee Convention. This approach seeks to ensure that the violence facing the refugee is not seen through the lenses of exceptionalism and crisis that govern refugee law, but rather within the broader frameworks of criminalization and the racial and economic structures of colonialism.

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