Persons in Need of Protection

AuthorSasha Baglay/Martin Jones
As noted in Chapter 2, the Immigration and Refugee Protection Act creat-
ed a new category of individual: “per sons in need of protection.1 These
individuals are def‌i ned as persons who, if removed from Canada, would
be at risk of torture, would have their life placed at r isk, or would be at
risk of cruel and unusua l treatment or punishment. This chapter w ill
1 SC 2001, c 27, s 97(1) [IR PA].
97. (1) A person in need of prote ction is a person in Canad a whose removal to
their countr y or countries of national ity or, if they do not have a country of
nationalit y, their count ry of former habitual res idence, would subject them
(a) to a danger, believed on sub stantial grounds to e xist, of torture withi n
the meanin g of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a r isk of cruel and unusual t reatment or
punishment if
(i) the person is u nable or, because of that risk, unw illing to avail
themself of t he protection of that country,
(ii) the risk would be faced by the pe rson in every part of that cou n-
try and is not f aced generally by other indiv iduals in or from that
cou nt ry,
(iii) the risk is not inherent or inc idental to lawful sanct ions, unless
imposed in d isregard of accepted intern ational standards, a nd
(iv) the risk is not cau sed by the inability of t hat country to provide
adequate healt h or medical care.
Persons in Need of Prot ection 225
explore the criteria t hat must be satisf‌ied if a refugee clai mant is to be
recognized as a per son in need of protection. In international law, this
aspect of refugee status determ ination is known as “complementary”
or “subsidiary” protection; in Can adian jurisprudential parlance, the
criteria for being def‌ined a s a person in need of protection are known
as the “consolidated grounds” for protection.2
Persons in need of protection may be granted protection by either
the Immigration and Ref ugee Board (IRB) after a refugee hearing or by
the Minister after a pre-removal r isk assessment review. As a result of a
determination by either the Board or the Minister, a person in need of
protection becomes a protected person and benef‌its from the statutory
prohibition on refoulement.3
Before the IR PA, the Board did not have jurisdiction to grant pro-
tection to the category of persons in need of protection. Rather, failed
refugee claimants were considered for membership in a similarly de-
f‌ined category but only as a part of a post-determi nation process.4 The
post-determination process wa s plagued by strict deadline s and an ex-
tremely low acceptance rate.5 At the very least, the reloc ation of the
consideration of non-Convention refugee types of risk from a post-
claim process to the actual determination of the claim improves the
eff‌iciency of the refugee determinat ion process.6 Given that the Board
must already conduct a detailed analysi s of the evidence underlying
the claim, it would appear to be a good time to determine whether the
claimant may face other types of risk upon retur n. It also (at least for
claims determined by the Board) improves the quality of the decision
making.7 Those claimant s not eligible for determination by the Board,
and rejected claimants, will have their membership in t he category of
2 The term “consolid ated grounds” ref‌lects the hi storical reality t hat these grounds
were added (“consolidated” wit h the Convention refugee grounds) to the jur isdic-
tion of the Board by t he IRPA .
3 Interestin gly, in relat ion to persons in need of protection, t he statutory prohibi-
tion of s 115(1) prohibits on ly removal (1) to torture, and (2) to cruel and unusual
treatment or pun ishment. Despite indiv iduals who face a risk to li fe qualifying
as persons i n need of protection (and hence, after a determ ination, as protected
persons), there is no statutor y bar on removal of individu als to such a situation.
4 The Post-Determination R efugee Claimants in C anada (PDRCC) class.
5 In its early days, t he PDRCC accepta nce rate was as low as 0.5 percent (or con-
versely, the refusa l rate was a staggering 99.5 percent): see Sinnappu v Canada
(Minister of Citizenship and Immigratio n), [1997] FCJ No 173 at para 34 (FC)
6 Catherine Dauvergne, “Eva luating Canada’s New Immig ration and Refugee
Protection Act in It s Global Context” (2003) 41 Alberta L aw Review 725 at 729.
7 Claims a re determined by the Board a fter an oral hearing be fore what is a quasi-
judicial and i ndependent decision-making b ody. These ch aracteristics of deter-

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