No Second Chances: The Default Exclusion of Refugee Claimants on Grounds of Serious Criminality
Author | James Billingsley |
Position | Received his JD from the University of Victoria in 2014 |
Pages | 99-119 |
APPEAL VOLUME 20
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CASE COMMENT
NO SECOND CHANCES: THE DEFAULT
EXCLUSION OF REFUGEE CLAIMANTS
ONGROUNDS OF SERIOUS CRIMINALITY
ACASE COMMENT ON FEBLES V CANADA
James Billingsley*
CITED: (2015) 20 Appeal 99
INTRODUCTION.................................................100
I. THE BASIC DEFINITION OF ARTICLE 1FB......................101
II. THE JURISPRUDENCE OF ARTICLE 1FB ........................102
A. Phase One ...................................................102
i. War d .....................................................102
ii. Pushpanathan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
iii. Chan ....................................................103
B. Phase Two ...................................................104
i. Zrig .....................................................104
ii. Xie ......................................................104
iii. Jayasekara .................................................105
iv. Gavrila and Németh .........................................106
C. Phase ree ..................................................106
i. Febles—Facts ..............................................106
ii. Febles—Federal Court........................................107
iii. Febles—Federal Court of Appeal................................108
iv. Febles—Supreme Court of Canada ..............................110
a. Majority................................................110
b. Dissent.................................................112
III. ANALYSIS .....................................................113
A. Febles Overextends the Application of Article 1F(b) ....................113
B. Reinterpreting the Refugee Convention ..............................113
IV. PROCEDURAL BIFURCATION AND BILL C31 ....................117
CONCLUSION ...................................................119
* James Bill ingsley received his JD from the Univer sity of Victoria in 2014. Hewould like to thank
Professor Donald Galloway at th e University of Victoria Facult y of Law for his helpful guidance.
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APPEAL VOLUME 20
INTRODUCTION
Are rehabilitated cri minals deser ving of refugee protection? In the recent case of Febles
v Canada (Citizenship and Immig ration) (“Febles”), a majority of the Supreme Court
of Canada ans wered that question in the neg ative.1 According to the court , an asylum
seeker who has committe d a serious non-political crime outside the c ountry of refuge
is forever barred from obta ining refugee status by operation of Article 1F(b) of the
Convention Relating to t he Status of Refugee s (“Refugee Convention”).2 Such an individual
can never be granted refugee protection, even if the oence is dated and the as ylum
seeker is presently rehabilitated. Prior to the decision, courts str uggled to delineate
the appropriate scope of Article 1F(b) and oered divergent interpretations as to its
application. e majority judgment in Febles set tled the issue: the only factors relevant to
the application of Article 1F(b) are those re lated to the circumstances of the pa st oence.
Post-oence circumstance s, such as the expiation and rehabilitation of the clai mant, are
precluded from consideration.
e case of Febles rai ses the funda mental question of who deserves refugee status and
who does not. If Article 1F(b), like Articles 1F(a) and 1F(c), was conned to crime s of a
grave and heinous nature, t he mandatory exclusion of individuals with a ser ious criminal
past may perhaps be justi able.3 However, Parliament and the courts have adopted a
broad denition of what constitutes a ser ious crime. Under the Immigrati on and Refuge e
Protection Act (“IRPA”), serious crimina lity comprises oence s that, if committed in
Canada, could att ract a term of ten years imprisonment, including, for example, non-
violent propert y oences.4 Combined w ith the recent pronouncement of the Supreme
Court of Canada in Febles, this de nition casts too wide a net, e xcluding individua ls
who, despite their pasts, are de serving of protection. In t his article, I a rgue that the
majority’s interpretation of Article 1F(b) is contrar y to the humanitari an goals that t he
Refugee Convention is purported to adva nce. Individuals who have taken positive steps
to make reparations a nd reintegrate into society are automatically and u nfairly excluded
from refugee stat us.
In support of this arg ument, I rst introduce Ar ticle 1F(b) and situate the exclusion
clause within its st atutory context in the IRPA. I then t race the Canadian jurisprudence
on Article 1F(b) from its early interpretations to its c urrent iteration in Febles. Next, I
critically di scuss the Febles case. I argue for an a lternate interpretation of Article 1F(b) that
considers the present deserv ingness of a refugee clai mant together with the circum stances
of his or her criminal pa st. I conclude by considering the broader implic ations of Febles
with respect to the determ ination of refugee status under the IR PA.
1 Febles v Canada (Citizenship and Immigration), 2014 SCC 68 (available on CanLII) [Febles].
2 United Nations Convention Relating to the Status of Refugee s, 28 July 1951, 189 UNTS 150 [Refugee
Convention]; Protocol Relating to the Status of Refugees, 31 January 1967, Can TS 1969 No29.
3 Article 1F(a) excludes claimants who have commit ted a crime against peace, a war crime, or
a crime against humanity, and Ar ticle 1F(c) excludes claimants guilty of “serious, sus tained
or systemic violations o f fundamental human rights”: Pushpanathan v Canad a (Minister of
Citizenship and Immigration), [1998] 1 SCR 982 at para 64 (available on CanLII) [Pushpanathan].
4 Immigration and Refugee Protectio n Act, SC 2001, c 27 [IRPA]; see, for example, ss 98 , 36(1), 101(2),
112(3), 113(3). These provisions make Ar ticle 1F(b) a more sweeping tool of exclusion than Ar ticles
1F(a) and (c).
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