Chapter 9 - Prosecution versus persecution

9.1. Introduction
9.2. Prosecution, or persecution for a convention reason
1. 9.2.1. Limits to acceptable legislation and enforcement
2. 9.2.2. Laws of general application
3. 9.2.3. Policing methods, national security and preservation of social order
4. 9.2.4. Enforcement and serious possibility
5. 9.2.5. Exit laws
6. 9.2.6. Military service: Conscientious objection, evasion, desertion
7. 9.2.7. One-child/two-child policy of China
8. 9.2.8. Religious or cultural mores
  1. 9.2.8.1. Restrictions upon women
  2. 9.2.8.2. Ahmadis from Pakistan

9. Prosecution versus persecution

9.1. Introduction

This Chapter explores situations where a person claims refugee status based on their fear of the punishment they may receive for violating a law in their home country. A person who faces punishment in their home country for violating a law of general application will generally not be able to successfully claim protection unless the purpose or enforcement of the law is persecutory.

9.2. Prosecution, or persecution for a convention reason?

9.2.1. Limits to Acceptable Legislation and Enforcement

Any state is entitled to have, and to enact, laws which will contribute to the better, safer, more just functioning of the national community and its government. And any state is entitled to impose penalties upon those who break its laws. However, from the standpoint of international human rights law, there is a line over which the state cannot legitimately step. To determine whether the state has limited itself to its proper sphere or has overstepped, the Refugee Protection Division must be mindful of the distinction between two kinds of cases: (a) cases in which the treatment foreseen for the claimant would be punishment for nothing other than the breach of a law that does not violate human rights, and does not adversely differentiate on a Convention ground, either on its face or in its application; and (b) cases in which the claimant’s actions might contravene a law of his homeland, but in which the law’s terms or its anticipated enforcement might infringe upon human rights and adversely differentiate.

9.2.2. Laws of general application

The Federal Court has dealt at some length with questions relating to “laws of general application”. This term refers to a law which, on its face, applies to a country’s entire population, without differentiation; and the term is not properly employed if the law in question targets only some subset of the population.^{Footnote 1} For a time, the leading decision on this topic was Musial;^{Footnote 2} however, in Zolfagharkhani,^{Footnote 3} the Court of Appeal examined the theme in greater depth and provided interpretation of Musial. Therefore, Zolfagharkhani must now be regarded as pre-eminent. Musial should be used with caution, and only after taking Zolfagharkhani into account.

In Zolfagharkhani, the Court rejected the proposition that, so long as the action taken by a government against a claimant is the enforcement of “an ordinary law of general application”, the government is necessarily engaging in prosecution and not persecution. In a dictatorial or totalitarian state, any ordinary law of general application may well be an act of political oppression.^{Footnote 4}

The Court of Appeal in Zolfagharkhani^{Footnote 5} set forth “some general propositions relating to the status of an ordinary law of general application in determining the question of persecution”:

The statutory definition of Convention refugee makes the intent (or any principal effect)^{Footnote 6} of an ordinary law of general application, rather than the motivation of the claimant, relevant to the existence of persecution.^{Footnote 7}
But the neutrality of an ordinary law of general application, vis-à-vis the five grounds for refugee status, must be judged objectively by Canadian tribunals and courts when required.^{Footnote 8}
In such consideration, an ordinary law of general application, even in non-democratic societies, should … be given a presumption of validity and neutrality, and the onus should be on a claimant, as is generally the case in refugee cases, to show that the laws are either inherently or for some other reason persecutory.
It will not be enough for the claimant to show that a particular regime is generally oppressive but rather that the law in question is persecutory in relation to a Convention ground.

Seriousness of harm is another issue which has been addressed in connection with laws of general application. It is quite possible that a law or policy of general application may well be violative of basic human rights.^{Footnote 9} Also, in Cheung it was decided that a law of general application may be persecutory where the penalty is disproportionate to the objective of the law, regardless of the authorities’ intent:

… if the punishment or treatment under a law of general application is so Draconian as to be completely disproportionate to the objective of the law, it may be viewed as persecutory. This is so regardless of whether the intent of the punishment or treatment is persecution. Cloaking persecution with a veneer of legality does not render it less persecutory. Brutality in furtherance of a legitimate end is still brutality.^{Footnote 10}

In Chan (S.C.C.), Mr. Justice La Forest approved the comments of Linden J.A. regarding “state authority arguments” (as they were called by La Forest J.).^{Footnote 11} And La Forest J. provided his own observations with respect to the “legitimate end” idea:

... I do not in general consider it appropriate for courts to make implicit or explicit pronouncements on the validity of another nation’s social policies. In the present case, the full extent of the Chinese population policy is unknown in this country and undue speculation as to its legitimacy serves no purpose. Whether the Chinese government decides to curb its population is an internal matter for that government to decide. Indeed, there are undoubtedly appropriate and acceptable means of achieving the objectives of its policy that are not in violation of basic human rights. However, when the means employed place broadly protected and well understood basic human rights under international law such as the security of the person in jeopardy, the boundary between acceptable means of achieving a legitimate policy and persecution will have been crossed. It is at this point that Canadian judicial bodies may pronounce on the validity of the means by which a social policy may be implemented in an individual case by either granting or denying Convention refugee status ... [Emphasis added.]^{Footnote 12}

(The distinction between the authorities’ objective and their means of achieving it is discussed further in section 9.2.3. of this chapter.)

Furthermore, a penalty which is disproportionate to the offence may constitute persecution.^{Footnote 13} When imposed for certain offences, the death penalty may not constitute persecution.^{Footnote 14}

If the Refugee Protection Division applies the term “law of general application”, it must be careful to include within this characterization only what is actually authorized by the law in question. Where a given policy constitutes a law of general application, a particular sanction used to enforce that policy may not be a law of general application.^{Footnote 15} And even if such a law does figure in the claim, the Division certainly must not disregard measures which are beyond the law. Where there is evidence of extra-judicial punishment or (other) lack of due legal process, consideration must not be limited to the actual legislation itself.^{Footnote 16} Indeed, perversions in the application of the law, such as the bringing of a trumped-up charge, and interference in the due process of law, may be aspects of persecutory treatment.^{Footnote 17} In one instance, the Court of Appeal has said that pursuit of a claimant for refusing to carry out a government order will constitute mere prosecution only if the order was a “valid” one, and not one that was “illegal” or with “no legal foundation”.^{Footnote 18}

If enforcement of the law against the claimant would proceed in accordance with due process, and if the sanctions for violating a particular law are not serious, the situation is not one of persecution.^{Footnote 19}

9.2.3. Policing methods, national security and preservation of social order

In some situations, the argument for the acceptability of state actions may rely not on the presence of any particular authorizing law (if any), but instead on the idea that those actions were aimed at the preservation of social order, against dangers such as crime and terrorism. Indeed, the actions in question, rather than being approved by law, may be of very doubtful legality.

In this context as well, the courts have grappled with the question of whether harmful conduct may be excused by the purpose which prompts the authorities to engage in the conduct. In the first place, the above-quoted statement from Cheung - that “[b]rutality in furtherance of a legitimate end is still brutality”^{Footnote 20} - is again apposite. It is not rendered less relevant by the fact that the brutality is perpetrated without the screen, or superficial legitimation, of an authorizing law. Moreover, in Thirunavukkarasu,^{Footnote 21} a later decision dealing more directly with the notion of preserving the social order, the Court of Appeal ruled that “beatings of suspects can never be considered ‘perfectly legitimate investigations’ [into criminal or terrorist activities], however dangerous the suspects are thought to be.”^{Footnote 22} The Court also affirmed that

… the state of emergency in Sri Lanka cannot justify the arbitrary arrest and detention as well as beatings and torture of an innocent civilian at the hands of the very government from whom the claimant is supposed to be seeking safety.^{Footnote 23}

It is inappropriate to dismiss mistreatment on the theory that, by transgressing the law, the claimant forfeited any right to complain about any treatment that was meted out to him or her in response. Rather than stating simply that the claimant could not expect to receive the authorities’ approval for committing illegal acts, the Refugee Protection Division must determine whether the treatment suffered by the claimant constituted persecution in the circumstances.^{Footnote 24}

In a number of cases, the Court has applied reasoning of the kind that was subscribed to in Cheung and Thirunavukkarasu.^{Footnote 25} However, there have also been cases in which such reasoning has not been applied.^{Footnote 26} In some of these latter cases, the Trial Division judgments appear to contradict the letter and spirit of the opinions from the Court of Appeal.

According to some judges, national security and peace and order are valid social objectives of any state, and temporary derogation of civil rights in an emergency does not necessarily amount to persecution.^{Footnote 27} In this regard, before finding mistreatment to be non-persecutory because there is an emergency, the Refugee Protection Division should consider several matters: Is there indeed an emergency? Is the particular right that is being violated a derogable right, or is it non-derogable?^{Footnote 28} If the right is derogable, what is the nature of the particular emergency, what is the extent of the particular derogation, and is there a logical nexus between the emergency and the derogation?

Some judges have said that short-term detentions for the purpose of preventing disruptions^{Footnote 29} or dealing with terrorism^{Footnote 430} do not constitute persecution. It may also be proper to conclude that some forms of violence, including beatings, do not amount to persecution in the circumstances of a particular case, even though they are reprehensible and violative of human rights;^{Footnote 31} for example, the mistreatment may not have been repetitive or sufficiently severe,^{Footnote 32} and there may be no prospect of its being repetitive or sufficiently severe in the future. However, given Cheung, and Thirunavukkarasu, the Refugee Protection Division should be cautious about deeming violent conduct to be non-persecutory.^{Footnote 33}

9.2.4. Enforcement and serious possibility

Even if the evidence speaks of some harm that would qualify as serious, the Refugee Protection Division must consider whether there is a serious possibility that the harm will actually come to pass.^{Footnote 34} A statute which outlaws the claimant’s conduct or characteristic may be in existence, and it may provide for unconscionably severe punishment for that conduct or characteristic, but this does not necessarily mean there is a serious possibility that the punishment will be inflicted on the claimant. The Supreme Court has emphasized that, in a determination as to whether the claimant’s fear is objectively well founded, the relevant factors include the laws in the claimant’s homeland, together with the manner in which they are applied. In this connection, the Court cited paragraph 43 of the UNHCR Handbook.^{Footnote 35} Enforcement measures may vary from area to area within a country, and if this is the case, “the reasonableness of a fear of persecution depends, inter alia, on the practices of the relevant local authority”.^{Footnote 36}

A pattern of non-enforcement might imply that there is less than a serious possibility.^{Footnote 37} However, a claimant should not have to live discreetly in order to avoid prosecution.^{Footnote 38} Also, Chairperson’s Guideline 9 indicates that even where laws criminalizing the claimant’s behaviour are not enforced, they may contribute to a climate of impunity and societal discrimination.^{Footnote 39}

9.2.5. Exit laws

Some countries have laws which impose restrictions on travel abroad. Such laws may make it an offence to depart without prior permission (illegal departure),^{Footnote 40} or to stay abroad beyond some stipulated period (overstay),^{Footnote 41} or to visit certain countries.^{Footnote 42} Where such laws exist, generally sanctions for breaching them are also on the books.

In Valentin,^{Footnote 43} the Court of Appeal held that individuals who have not been the subject of persecution cannot themselves create a cause to fear persecution by freely, of their own accord and with no reason, making themselves liable to punishment for violating a law of general application. An isolated sentence for the violation of a law of general application can satisfy the element of repetition and relentlessness at the heart of persecution only in very exceptional circumstances. Furthermore, the direct relationship that is required between the sentence that may be imposed and a recognized ground of persecution does not exist.

In Zandi,^{Footnote 44} the Court followed Valentin in holding that a defector cannot gain legal status in Canada under IRPA by creating a “need for protection” under section 97 by freely, of their own accord and with no reason, making themselves liable to punishment by violating a law of general application in their home country about complying with exit laws.

In Donboli,^{Footnote 45} the claimant alleged persecution on the basis of an illegal exit from Iran, a failed refugee claim and evidence that the state subjected individuals in those circumstances to severe or extra-judicial treatment. The Court found that the documentary evidence showed a repressive regime with a poor human rights record and systematic abuses. The Board had erred by not considering these risks:

[4] In Valentin v. Canada (Minister of Citizenship and Immigration), [1991] 3 FC 390, the Federal Court of Appeal held that punishment for an illegal exit from a country is not in itself a basis for a well-founded fear of persecution, when the punishment arises out of a law of general application. However, where a proper evidentiary basis exists it is necessary to consider whether excessive or extra-judicial punishment for an illegal exit could constitute a reasonable basis for a well-founded fear of persecution.

In Pernas, the Court noted that the Board must consider the validity of the exit visa and the circumstances under which it was obtained. Where the claimant had to pay a bribe to obtain the security clearance necessary to obtain the visa, that puts the validity of the exit visa in question.^{Footnote 46}

In Alfaro,^{Footnote 47} the Court considered the earlier decision in Donboli and set out a two-part test where a sur place claim is advanced on the basis of an illegal exit from a country or an expired exit visa:

Is the claimant in breach of exit procedures or the terms of an exit visa and, as a result, subject to penalties of such form?
Does that circumstance place the claimant at risk of severe or extrajudicial treatment in the hands of repressive regime?

Where the claimant has violated an exit law, the decision to punish the claimant for that infraction, or to impose a certain degree of punishment, might be due to some characteristic of the claimant such as his political record. Repercussions beyond the statutory sentence may suggest that the actions of the authorities are persecutory.^{Footnote 48} The Board errs where it fails to consider whether the claimant would risk severe or extra-judicial treatment as a result of his or her illegal exit.^{Footnote 49}

9.2.6. Military service: Conscientious objection, evasion, desertion

The claimant’s problems may be connected with a disinclination to serve in the military. Either the claimant entered the military and left it without authorization (i.e., the claimant deserted);^{Footnote 50} or the claimant was ordered to report for service, but refused to report or refused to be inducted; or the claimant has not yet received a call-up, but anticipates that the order will be forthcoming and does not wish to comply.

The courts have established some very basic points of departure for the analysis of such claims. Thus, conscientious objectors and army deserters are not automatically included in the Convention refugee definition, nor is a person precluded from being a Convention refugee because the person is a conscientious objector or deserter.^{Footnote 51} It is not persecution for a country to have compulsory military service.^{Footnote 52} An aversion to military service or a fear of combat is not in itself sufficient to justify a fear of persecution.^{Footnote 53}

Both human rights and humanitarian law prohibit the recruitment and engagement of children in armed conflict.^{Footnote 54}

Proceeding to a more detailed analysis of the claim, the Refugee Protection Division must consider whether the circumstances disclose a nexus between the treatment feared and one of the Convention grounds. Zolfagharkhani^{Footnote 55} is the leading case with respect to nexus (and other factors) in military-service situations.^{Footnote 56} The principles quoted from that case earlier on^{Footnote 57} should be referred to for guidance when determining whether the claimant’s difficulties regarding service should be ascribed to a Convention ground, or instead should be considered punishment for a violation of a law of general application.

However, as an aside from Zolfagharkhani, the decision of the Federal Court of Appeal in Ates^{Footnote 58} has put into question whether imprisonment of a conscientious to objector for refusing military service can ever be considered to be a ground for claiming Convention refugee status. The Court answered, without any analysis, the following certified question in the negative:

In a country where military service is compulsory, and there is no alternative thereto, do repeated prosecutions and incarcerations of a conscientious objector for the offence of refusing to do his military service, constitute persecution based on a Convention refugee ground?”

Zolfagharkhani indicates that it is not the claimant’s motivation for refusing to serve which is relevant, but rather the intent or principal effect of the conscription law.^{Footnote 59} In accordance with this guideline, one must ask whether the reaction of the authorities to the claimant’s refusal to serve would be a function of some Convention attribute which the claimant has, or would be perceived by the authorities as having (a political opinion often being the likeliest possibility).^{Footnote 60} Even where the claimant has no strong convictions which should be permitted to interfere with the claimant’s serving, his refusal might be regarded by the authorities as an indication of an opinion which is frowned upon by them.

However, it would seem that the motivation of the claimant has not been completely discarded as a factor in claims concerning military service, although the cases do not make clear to which element or elements (nexus, serious harm) it may relate, and exactly how it should be worked into the consideration of a particular element. In Zolfagharkhani itself, the Court of Appeal focused on the claimant’s reason of conscience for not wishing to serve, and laid considerable emphasis on the fact that the particular combat technique to which the claimant objected was abhorred by the international community; but the Court did not provide much explanation as to how such attending to the claimant’s reason of conscience was to be reconciled with the view that the claimant’s motivation is not relevant.^{Footnote 61} Furthermore, in subsequent decisions, the Court has repeatedly considered the claimant’s conscience, as well as the attitude of the international community to operations criticized by the claimant. Reliance has even been placed explicitly upon the “applicant’s motive”.^{Footnote 62} The reader should bear in mind these ambiguities in the case law when reviewing the following observations on reasons-of-conscience claims.^{Footnote 63}

There is some debate - and some confusion - about the meaning of the term “conscientious objector”. In Popov, the Trial Division indicated that, “in the usual sense”, this term applied to a person who “was a pacifist or was against war and all militarism on the grounds of principle, either religious or philosophical.”^{Footnote 64} It may be correct to reserve this particular term for persons who are opposed to all militarism; but at the same time, it must be appreciated that what is important for the determination of a claim is not whether this particular label fits.

The important question is whether a claimant’s reason of conscience will be sufficiently significant only if it entails an opposition to all militarism (or is otherwise broad in scope). In Zolfagharkhani, the Court of Appeal indicated that a claimant’s objection may be entitled to respect even if it is more specific: where the claimant did not object to military service in general or to the particular conflict, but was opposed to the use of a particular category of weapon (namely, chemical weapons), the Court found his objection to be reasonable and valid.^{Footnote 65} Similarly, the Trial Division has held that a claimant may object to serving in a particular conflict, rather than objecting to military service altogether, and may still be a Convention refugee.^{Footnote 66}

This is not to say that any narrow or limited objection of conscience will suffice. The objection may be regarded as sufficiently serious if the military actions objected to are judged by the international community to be contrary to basic rules of human conduct.^{Footnote 67} However, a military’s operations are not to be characterized as contravening international standards if there are only isolated violations of those standards. Instead, there must be offending military activity by the military forces which is condoned in a general way by the state.^{Footnote 68}

The serious harm that is a requisite for persecution may be found in the forcing of the claimant to perform military service; where reasons of conscience are involved, there is also a violation of the claimant’s freedom of conscience; where military actions violate international standards, the claimant might be forced into association with the wrongdoing.^{Footnote 69} One must also bear in mind that some conscription activities may be extra-legal, and may therefore lack any basis for claiming to constitute legitimate exercises of state authority. An organization may have de facto authority and an ability to coerce persons into performing military service, yet not be a legitimate government, and have no right to conscript.^{Footnote 70}

If a call-up for military service would not necessarily result in the claimant’s being compelled to perform military service, the injury to the claimant’s interests is less, and the legitimacy of the demands placed on the claimant by the state looms large. Therefore, where objections of conscience may enable the claimant to obtain an exemption from service, or assignment to alternative service (i.e., non-military service, or non-combat service, or service outside a particular theatre of operations), the conscription law may not be inherently persecutory.^{Footnote 71}

Nor is there persecution if the penalties for refusing to serve are not harsh,^{Footnote 72} except perhaps where the refusal to serve occurs in the context of a military operation condemned as contrary to basic rules of human conduct.^{Footnote 73} The Refugee Protection Division must consider the actual practice in the treatment of deserters, and not just the penalty prescribed by law.^{Footnote 74}

The Board must also consider whether the law of general application will be applied in a fair and neutral way to a particular claimant, both in regards to the prosecution and to the punishment.^{Footnote 75} Where the treatment of conscientious objectors is worse than that experienced by others who have been convicted of an offence, this may amount to persecution rather than prosecution of a crime of general application.^{Footnote 76} Where the claimant may face a prison term, it is an error to fail to consider whether harsh prison conditions in that country amount to cruel and unusual treatment or punishment under s. 97(1) of the IRPA.^{Footnote 77}

Somewhat akin to the idea that the claimant would not be persecuted if he would not be forced into military activity is the notion that the Refugee Protection Division should not endorse an objection to compulsory military service in the country of reference if the claimant chose to immigrate to that country, knowing that compulsory service existed there.^{Footnote 78}

The availability of state protection for deserters became the key issue in a series of cases involving U.S. servicemen during the war in Iraq. Two individuals, Hinzman and Hughey, voluntarily enlisted in the U.S. military. During their time in the military, they developed an objection to the war in Iraq, deserted, and came to Canada where they made refugee claims.

Their claims to refugee protection were rejected by the IRB. The RPD^{Footnote 79} found that the claimants would be afforded the full protection of a fair and independent military and civilian judicial process in the U.S. As a result, they had not rebutted the presumption of state protection and their claims for refugee protection must fail. The RPD also found that they were not conscientious objectors because; (1) their decision to desert the U.S. military was motivated by opposition to a specific war and not by objection to war in general and (2) because the war in Iraq did not fall within the meaning of paragraph 171 of the UNHCR Handbook as being waged contrary to basic rules of human conduct. Lastly, the RPD found that the punishment they would likely receive as a result of their desertion would not be applied to them in a discriminatory way and would not be excessive or disproportionately severe.

Mactavish J., of the Federal Court^{Footnote 80} upheld the RPD decisions, finding that paragraph 171 of the Handbook referred to “on the ground” conduct of a soldier and not to the legality of the war itself and that the claimants had not established that they would have been involved in unlawful acts had they gone to Iraq. Mactavish J. certified the following question:

When dealing with a refugee claim advanced by a mere foot soldier, is the question whether a given conflict may be unlawful in international law relevant to the determination which must be made by the Refugee Division under paragraph 171 of the UNHCR Handbook?

The Federal Court of Appeal,^{Footnote 81} in a unanimous decision, declined to answer the certified question. Evans J., writing for the Court, found that Hinzman and Hughey had not sufficiently pursued the opportunities to obtain state protection in the United States before asking for international protection. The following statements by the FCA are of interest:

The presumption of state protection applies equally to cases where an individual claims to fear prosecution by non-state entities and to cases where the state is alleged to be a persecutor. This is particularly so where the home state is a democratic country like the United States.
A claimant coming from a democratic country will have a heavy burden when attempting to show that they should not have been required to exhaust all of the recourses available to them domestically before claiming refugee status.

9.2.7. One-child/two-child policy of China

The People’s Republic of China had a policy which, subject to exceptions, restricted each couple to having one child. A variety of sanctions were used in attempts to secure compliance with the policy.^{Footnote 82} This policy was replaced in late 2015 with a two-child policy. To the extent that similar restrictions and sanctions are used for enforcing the two-child policy, the law that has developed with respect to the one-child policy is still relevant,^{Footnote 83} and members must carefully assess the evidence with respect to what penalties, if any, the claimant may face.^{Footnote 84}

Claims based on the one-child policy generated considerable jurisprudence. There are three leading decisions regarding this matter. In the earliest of the three, Cheung,^{Footnote 85} the Court of Appeal declared the claimants to be Convention refugees: they were a woman who was facing forced sterilization, and her minor daughter who had been born in violation of the policy. Cheung was a unanimous decision of three judges.

Next came the Court of Appeal’s decision in Chan,^{Footnote 86} where the majority found against a man who was allegedly facing forced sterilization. Two judges (Heald and Desjardins, JJ.A.) constituted the majority; the third (Mahoney J.A.), who had also been part of the bench in Cheung, dissented. Each of the three Court of Appeal judges in Chan produced a separate set of reasons, and there were significant differences even between the two majority decisions. It should be noted that the Supreme Court’s ruling in Ward^{Footnote 87} came out after Cheung but before Chan (F.C.A.). The Court of Appeal in Chan considered both Cheung and Ward.

Chan (F.C.A.) was appealed, yielding the third of the principal authorities, the decision of the Supreme Court in Chan.^{Footnote 88} Again there was a split decision: by a four-to-three majority, the Court dismissed the appeal, affirmed the decisions of the Court of Appeal and the Refugee Division, and found against the appellant (claimant).

The crux of the judgment of the Supreme Court majority (per Major J.) was that the evidence was inadequate to make out the claimant’s allegations - notably, his allegation that there was a serious possibility he would be physically coerced into undergoing sterilization. Apart from recording views expressed by the Court of Appeal in Chan (including views concerning Cheung and Ward), Mr. Justice Major declined to discuss, or rule on, certain legal issues which had occupied that lower court in this case: e.g., whether forced sterilization constitutes persecution; whether the claim involved a particular social group; and whether the claimant’s having a second child was to be construed as an act which expressed a political opinion (or an act which would be perceived by the authorities as the expression of a political opinion).

The Supreme Court’s dissenting minority (per La Forest J.) had a different appreciation of the evidence, and would have left it to the Refugee Division to perform a further assessment of the evidence; however, in finding that the appeal should be allowed, the minority also addressed some of the legal issues which the majority had bypassed. The minority’s comments on these issues carry considerable persuasive authority, inasmuch as they were not contradicted by the majority, and represent the views of a significant number of Supreme Court justices; furthermore, insofar as these comments are an explanation of the Ward decision, it must be noted that the explanation was provided by the author of that decision, Mr. Justice La Forest.

Further particulars of these three leading decisions are set forth in the material that follows.

In the context of claims involving the one-child policy, the Court of Appeal has reiterated that all elements of the Convention refugee definition must be present. Thus, it has been noted that, where the claim concerns the breach of a valid policy, abhorrence of the penalty, or the presence of a well-founded fear of persecution, does not justify a finding that the claimant is a Convention refugee; it is also necessary that the punishment be for a Convention reason.^{Footnote 89} Conversely, if a link to a Convention ground is established, the claimant must still show that he or she has a well-founded fear of persecution.^{Footnote 90}

On the issue of serious harm, both in Cheung and in Chan (F.C.A.) it was held that the anticipated mistreatment qualified. Thus, forced or strongly coerced^{Footnote 91} sterilization constitutes persecution, whether the victim is a woman^{Footnote 92} or a man.^{Footnote 93} In Cheung, Linden J.A. explained this conclusion as follows:^{Footnote 94}

Even if forced sterilization were accepted as a law of general application, that fact would not necessarily prevent a claim to Convention refugee status. Under certain circumstances, the operation of a law of general application can constitute persecution. In Padilla …, the Court held that a Board must consider extra-judicial penalties which might be imposed. Similarly, in our case, the appellant’s fear is not simply that she may be exposed to the economic penalties authorized by China’s one child policy. That may be acceptable. Rather, the [claimant], in this case, genuinely fears forced sterilization; her fear extends beyond the consequences of the law of general application to include extraordinary treatment in her case that does not normally flow from that law … Furthermore, if the punishment or treatment under a law of general application is so Draconian as to be completely disproportionate to the objective of the law, it may be viewed as persecutory. This is so regardless of whether the intent of the punishment or treatment is persecution. Cloaking persecution with a veneer of legality does not render it less persecutory. Brutality in furtherance of a legitimate end is still brutality.
The forced sterilization of women is a fundamental violation of basic human rights … The forced sterilization of a woman is a serious and totally unacceptable violation of her security of the person. Forced sterilization subjects a woman to cruel, inhuman and degrading treatment… I have no doubt, then, that the threat of forced sterilization can ground a fear of persecution within the meaning of Convention refugee under the Immigration Act.

In Chan (S.C.C.), Mr. Justice La Forest, in dissent, stated:

... [W]hatever technique is employed, it is utterly beyond dispute that forced sterilization is in essence an inhuman and degrading treatment involving bodily mutilation, and constitutes the very type of fundamental violation of basic human rights that is the concern of refugee law.^{Footnote 95}

The Trial Division has held that forced abortion, being an invasion of a woman’s body, is equivalent to or worse than forced sterilization and, accordingly, constitutes persecution.^{Footnote 96} The Court has also recognized that the forcible insertion of an IUD constitutes persecution.^{Footnote 97} However, economic sanctions as a means to enforce compliance with the law, do not amount to persecution.^{Footnote 98}

Regarding the requirement that the fear of persecution be well founded, the Trial Division observed that the issue was not whether the female claimant had been forced to undergo an abortion in the past, but instead whether there was a reasonable chance she would be forced to undergo one if returned to China.^{Footnote 99}

Nexus was the principal area of disagreement between Cheung and Chan (F.C.A.). The two cases offered quite different views on the issue of whether the feared sterilization would be inflicted by reason of a Convention ground. Cheung held that there was a targeted social group;^{Footnote 100} the majority in Chan (F.C.A.) found otherwise.^{Footnote 101} Speaking for the majority in Chan (S.C.C.), Mr. Justice Major chose not to address the question of whether the case involved a particular social group.^{Footnote 102} However, La Forest J. (dissenting) held that “[p]ersons such as the appellant, if persecuted on the basis of having had more than one child, would be able to allege membership in a particular social group”.^{Footnote 103} Please refer to Chapter 4 for a fuller description of the views of the Supreme Court of Canada regarding particular social group.

Political opinion is another ground which might be invoked with respect to the one-child policy. However, in Chan (F.C.A.), Heald J.A. ruled that the authorities’ reaction to the claimant’s non-compliance would not be by reason of political opinion;^{Footnote 104} and Desjardins J.A. was apparently inclined toward the same conclusion.^{Footnote 105}

In Cheng, while the claimant pointed to a social group (“those who violated Chinese government family planning policy”), religion also figured in the story. The claimant was a Roman Catholic, and it had been his religious beliefs that had prompted him to oppose the policy.^{Footnote 106}

9.2.8. Religious or cultural mores

Every society has limits on what it regards as acceptable behaviour. In some countries, the norms of the society (or the norms laid down by some ruling group) may be more constraining than elsewhere. The norms may interfere with the exercise of human rights, and may impose limitations on certain categories of people - categories which may be defined by Convention-protected characteristics. These restrictions may be entrenched in law, and may be backed up by coercive action and penalties. A claimant who transgresses the conventions of his or her homeland (and perhaps, at the same time, violates the law) may be at risk of serious harm.

When dealing with the norms of other societies, the Refugee Protection Division should bear in mind that an application of the Convention refugee definition involves measuring the claimant’s situation, and any actions visited upon the claimant, against human rights standards which are international (and which may sometimes be interpreted by reference to Canadian law).^{Footnote 107} It is not appropriate simply to defer to the notions of propriety favoured by the majority or the rulers in the claimant’s homeland. In this regard, reference should be made to Chapter 3, Section 3.1.1.1.^{Footnote 108}

Among the claims which concern societal norms are those of women who face restrictions associated with religion or tradition, and those of Ahmadis from Pakistan.

9.2.8.1. Restrictions upon women

In Namitabar, the Trial Division held that punishment under an Iranian law requiring women to wear the chador may constitute persecution. The Court noted that the penalty would be inflicted without procedural guarantees, and that the penalty was disproportionate to the offence.^{Footnote 109} In Fathi-Rad, another case involving the Iranian dress code, the Trial Division found that the treatment accorded the claimant for purely minor infractions of the Islamic dress code in Iran was completely disproportionate to the objective of the law.^{Footnote 110} On the other hand, in Hazarat,^{Footnote 111} the Trial Division upheld a finding that restrictions imposed on women by laws and practices under the Mujahadeen government in Afghanistan (including restrictions concerning dress, movement outside the home, travel, education and work) amounted to discrimination only, not persecution.

In Ameri,^{Footnote 112} the claimant, a woman who disliked the Iranian dress code, urged that women were victims of the means by which the code was enforced. In response, the Trial Division said:

There was not evidence that her activities and commitments or beliefs would challenge the policies and laws of Iran, if she were to return, in a manner that might result in retributive action by the state that would constitute persecution. Her expressed fear was thus found not to be objectively based. I am not persuaded that the tribunal’s conclusion on this aspect of her claim was unreasonable.^{Footnote 113}

In the same vein, or in a very similar vein, was the Pour case.^{Footnote 114} There it was argued that all women residents in a state who disagree with gender-specific discriminatory rules, such as the Iranian dress code for women, suffer from persecution. The Trial Division observed that this proposition went substantially beyond its decisions in Namitabar^{Footnote 115} and Fathi-Rad,^{Footnote 116} which concerned women who had engaged in a series of acts of defiance and had suffered punishments as a result.

This would appear to mean that a claim will fail if the claimant has not demonstrated, via past conduct, a readiness to assert some right and thereby express dissent (or if the claimant’s dissenting conduct has not resulted in mistreatment of the claimant). On the other hand, the Court has also considered it improper to effectively require that the claimant buy peace for herself by refraining from the exercise, or acquiescing in the denial, of one of her basic rights.^{Footnote 117}

Regarding nexus, the Trial Division has said that a law which specifically targets the manner in which women dress may not properly be characterized as a law of general application which applies to all citizens.^{Footnote 118} A woman’s breach of a dress code may be perceived as a display of opposition to a theocratic regime.^{Footnote 119} In other words, there may be a nexus to particular social group (gender), political opinion, or religion, depending on the circumstances.

A couple of cases have dealt with a woman’s breach of a dress code in a democratic, secular state. The context was a Turkish law that bans the wearing of headscarves in government places or buildings. In Sicak,^{Footnote 120} the Board rejected a claim based on religion and membership in a particular social group, namely, women wearing the headscarf in Turkey. The Board did not believe that the claimant was involved in any protest or that she was arrested or mistreated by the police, and found a lack of subjective fear and no persecution within the meaning of section 96 of IRPA. Without specifically referring to section 97 of IRPA the Board analyzed (and the Court appears to have agreed with the analysis) the objective basis of the claim. The Board noted that:

98% of the Turkish population is Muslim;
the principle of secularism as it is applied in Turkey, was established 60 years ago;
the law banning headscarves in public was upheld by the Turkish Constitutional Court and the European Human Rights Commission upheld this ruling;
Turkey is a democracy with free elections;

and concluded that the claimant did not face persecution but prosecution for a violation of a law of general application.

The Court in Kaya^{Footnote 121} was consistent with Sicak. In referring to the information contained in point (c) above, the Court noted that “[l]aws must be considered in their social context… “Mrs. Kaya is entitled to practice her religion in public, and to wear her Hejab in public.” The Court went on to say that Namitabar and Fathi-Rad dealt with Iranian women who were obliged by Iranian Law to wear the Chador and that “[I]t would be simple, but wrong, to say that the right of Iranian women not to wear the Chador and the right of Turkish women to wear the Hejab everywhere is a manifestation of the same fundamental right”.^{Footnote 122}

Kaya was cited with approval in Aykut.^{Footnote 123} The Court noted, in obiter, that the Turkish law applies to all forms of religious dress or insignia including beards, cloaks, turbans, fez, caps, veils, and headscarves…. “In fact, there is evidence that, insofar as medical or university cards are concerned, the requirement for a photograph showing one’s full face is definitely applied to men wearing beards.” In Vidhani, the Trial Division found that the claimant belonged to a particular social group consisting of women forced into arranged marriages without their consent. It also referred to another alleged particular social group: “Asian women in Kenya”. The Court observed that Ward’s category (1) (groups defined by an innate or unchangeable characteristic) seemed applicable to the claimant’s circumstances.^{Footnote 124}

In Ali, Shaysta-Ameer, the Refugee Division held that an adult claimant belonged to a group consisting of educated women. The Trial Division apparently considered her nine-year-old daughter to be a member of the same - or a similar - group.^{Footnote 125}

For additional guidance regarding claims by women who transgress conventions of their homelands, see Women Refugee Claimants Fearing Gender-Related Persecution.^{Footnote 126}

9.2.8.2. Ahmadis from Pakistan

In Pakistan, legislation prohibits persons belonging to the Ahmadi religious group from engaging in certain activities (activities connected with the practice of their religion or with their religious identification), and establishes penalties for violations of the prohibitions. One of the statutes concerned is known as Ordinance XX.

Over the years, cases of Ahmadi claimants have been analyzed in different ways, as the following paragraphs show.

The Trial Division has said that mere existence of an oppressive law (Ordinance XX) which is enforced only sporadically does not by itself show that all members of the group targeted by the law (Ahmadis) have good grounds for fearing persecution.^{Footnote 127}

In Ahmad,^{Footnote 128} the claimant had wished to argue before the Refugee Division that, given the nature of Ordinance XX, the simple existence of that law meant the claimant was persecuted. The Court acknowledged that it would be proper for the claimant to put forward such an argument (although, based on an evidentiary consideration, the Court also cast some doubt on the argument’s ability to succeed).

In Rehan,^{Footnote 129} the Refugee Division agreed with the following statement, taken from the judgment of the English Court of Appeal in Ahmad and others v. Secretary of State for the Home Department^{Footnote 130} :

... It has been accepted by ... the Secretary of State, that the Ordinance, by itself, was well capable of being regarded as discrimination against all members of the Ahmadi sect; but in my judgment the proposition that it was by itself capable of making the appellants liable to persecution simply by virtue of being members of the sect is quite unsustainable. The only members of the sect potentially liable to persecution would be those who proposed to act in contravention of its provisions. Nothing in the Ordinance prevented persons from holding the belief of the sect, without engaging in any of the specified prohibited activities.
It was apparent to the Secretary of State ... that most Ahmadis live ordinary lives, untroubled by the Government despite the existence of the Ordinance. In my judgment he would have been fully entitled to assume that if the appellants, on returning to Pakistan, would intend to disobey the Ordinance and such intention constituted the reason, or a predominant reason, for their stated fear, they would have said so ...

It would appear that the Trial Division held that it was reasonably open to the Refugee Division to rely on this analysis, but stopped short of holding that the analysis was correct.^{Footnote 131} Furthermore, the Trial Division indicated that if the applicant had stated or demonstrated an intention to violate Ordinance XX, and if his past conduct had been consistent with this intention, he might very well have established a claim.^{Footnote 132}

In Ahmed,^{Footnote 133} the Trial Division observed that “... the Federal Court has not yet clearly decided whether the discriminatory laws of Pakistan are indeed persecutory in relation to Ahmadis. It has preferred to adopt a case-by-case analysis of refugee claimants’ prospective fears of persecution.” In the Trial Division, the Minister conceded that the Refugee Division had erred in finding that the episodes of mistreatment experienced by the claimant did not constitute past persecution; however, the Trial Division upheld the further conclusion that there was no reasonable chance of persecution.

In Mehmood,^{Footnote 134} the Trial Division found that the Refugee Division had erred in restricting its analysis to whether or not the claimant was a registered or official member of the Ahmadi religion. On the basis of the evidence before it, the Refugee Division was required to determine whether or not the claimant had a well-founded fear of persecution arising from the perception that he was a member of the Lahori Ahmadi religion.

In a different Ahmad case,^{Footnote 135} the Court found that the PRRA officer did not err by concluding that in order to face persecution an Ahmadi needs to be in a position of leadership or has to publicly speak out about his faith. Also, that the officer did not err in concluding that blasphemy laws are rarely enforced by the Pakistani authorities.

On July 18, 2017, the IRB Chairperson identified as a Jurisprudential Guide (JG) a decision of the RAD dealing with an Ahmadi claimant.^{Footnote 136} The JG states that where a claimant is found to be an Ahmadi, the RPD is obligated to “consider whether the treatment of Ahmadis in Pakistan … constitutes persecution on the basis of religion”.

The JG finds that the RPD, in this and previous cases, wrongly applied a too-narrow definition of persecution. As stated in the JG:

[34] …The RPD focused on physical violence, and appeared to conclude that the Appellant will not be harmed or killed because of her religion. However, the RPD did not undertake a serious analysis of whether restrictions faced by Ahmadis, including the Appellant, amount to a denial of the fundamental right to freedom of religion.
[35] Freedom of religion includes the right to manifest one’s religion in practice, including in public, a freedom not enjoyed by Ahmadis in Pakistan. They face measures which lead to consequences of a substantially prejudicial nature, including the prohibition against describing themselves as Muslims, difficulty in applying for documents and for entrance to educational institutions, interference in mosque attendance and prayer, and a prohibition on proselytizing. Even if Ahmadis faced no threat of physical harm – and the evidence indicates that there is indeed such danger – there is considerable evidence to support the argument that they experience religious persecution.
[36] The RAD finds that the Appellant faces serious restrictions on the practice of her religion. She need not establish that she will be physically harmed. The evidence shows that she may not describe herself a Muslim; that she must deny her faith – choosing to either be Muslim or Ahmadi, but not both - to obtain documents or gain admission to government institutions; that she wishes to speak publicly of her faith, but is prohibited from doing so; that her prayers are deliberately interfered with by hate-spewing loudspeakers; that she could not attend a particular mosque because of the threat of violence; and that she risks prosecution under the blasphemy laws.
[38] It is not for the RPD, or the RAD, to determine whether “every Ahmadi would be a refugee,” though it is not uncommon for an entire group to be considered at risk of persecution in a particular country due to their profile, whether that be for reasons of sexual orientation, ethnicity, or religion. However, in considering claims such as that of the Appellant, the RPD is obligated to correctly apply the definition of religious persecution to the evidence, and to avoid restricting that definition to physical harm.

The RAD decision then concludes that as the State is one of the leading agents of persecution and the persecutory law and measures exist throughout the country, the Appellant could not expect adequate state protection or avail herself of an internal flight alternative. Contrast this with Haider, where the Federal Court upheld the RPD’s finding that the Ahmadi claimant would not face persecution in Pakistan as he was both non-devout and non-practicing, and the country evidence about Ahmadis “had no bearing on his personal circumstances.”^{Footnote 137}

Notes

Note 1

Fathi-Rad, Farideh v. S.S.C. (F.C.T.D., no. IMM-2438-93), McGillis, April 13, 1994. See also Namitabar v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 42 (T.D.). Compare Altawil, Anwar Mohamed v. M.C.I. (F.C.T.D., no. IMM-2365-95), Simpson, July 25, 1996."

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Note 2

Musial v. Canada (Minister of Employment and Immigration), [1982] 1 F.C. 290 (C.A.). Speaking for the majority, Pratte J. said:

A person who is punished for having violated an ordinary law of general application, is punished for the offence he has committed, not for the political opinions that may have induced him to commit it. … [A] person who has violated the laws of his country of origin by evading ordinary military service, and who merely fears prosecution and punishment for that offence in accordance with those laws, cannot be said to fear persecution for his political opinions even if he was prompted to commit that offence by his political beliefs.

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Note 3

Zolfagharkhani v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 540 (C.A.).

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Note 4

Zolfagharkhani, supra, note 3

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Note 5

Zolfagharkhani, supra, note 3. These propositions have been cited with regularity in subsequent decisions dealing with conscientious objection to military service. See section 9.3.6., infra.

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Note 6

In Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (C.A.), Linden J.A. said that the Refugee Division “wrongly required that a ‘persecutory intent’ be present, whereas a ‘persecutory effect’ suffices.”

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Note 7

Compare Antonio, Pacato Joao v. M.E.I. (F.C.T.D., no. IMM-1072-93), Nadon, September 27, 1994 (re: treason, espionage and sabotage).

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Note 8

In Daghighi, Malek v. M.C.I. (F.C.T.D., no. A-64-93), Reed, November 16, 1995, the Refugee Division had held that the Iranian claimant had simply run afoul of “laws or a policy of general application founded on fundamentalist principles of Islamic law”. But evidence indicated that the claimant had incurred the authorities’ displeasure for Western tendencies and unacceptable religious views, and that he had been obliged to undergo religious instruction. The Court rejected the conclusion that his difficulties were not related to a Convention ground.

In Chan (F.C.A.), Mr. Justice Heald ruled that punishment for breach of a government policy is not punishment for political opinion if the breach will be perceived by the authorities not as a challenge to their authority but only as a breach of a law: Chan v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 675; (1993), 20 Imm. L.R. (2d) 181 (C.A.). See also Ni, Kong Qiu v. M.C.I. (F.C. no. IMM-229-18), Walker, September 25, 2018; 2018 FC 948 where the Court confirmed the RPD decision that if the claimant were arrested in China, he faced prosecution due to his resistance to the expropriation of his home. He would not face persecution.

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Note 9

Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593, per La Forest J. (dissenting).

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Note 10

Cheung, supra, note 6, per Linden J.A.

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Note 11

Chan (S.C.C.), supra, note 9, per La Forest J. (dissenting).

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Note 12

Chan (S.C.C.), supra, note 9 per La Forest J. (dissenting).

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Note 13

Namitabar (T.D.), supra, note 1; Rodriguez-Hernandez, Severino Carlos v. S.S.C. (F.C.T.D., no. A-19-93), Wetston, January 10, 1994.

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Note 14

Antonio, supra, note 7/ See also Singh, Tejinder Pal v. M.C.I. (F.C.T.D., no. IMM-5294-97), Muldoon, December 23, 1997 (supplementary reasons), at paras 9-13.

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Note 15

In Cheung, supra, note 6, the Court noted that while China’s one-child policy is generally applicable, the forced sterilization of women who have had a child is not a law of general application. See also Lin, Qu Liang v. M.E.I. (F.C.A., no. 93-A-142), Rouleau, July 20, 1993. Reported: Lin v. Canada (Minister of Employment and Immigration) (1993), 24 Imm. L.R. (2d) 208 (F.C.T.D.), where the Court stated that “economic sanctions, as a means to enforce compliance with the law, does [sic] not amount to persecution”. The Court followed this reasoning in Li, Mei Yun v. M.C.I. (F.C., no. IMM-3375-10), Near, May 25, 2011; 2011 FC 610. See also Chan (S.C.C.), supra, note 9, where Major J., citing Cheung, noted that “forced sterilization is not a law of general application but rather an enforcement measure used by some local authorities with, at most, the tacit acceptance of the central government. Thus, the reasonableness of a fear of persecution depends, inter alia, on the practices of the relevant local authority”.

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Note 16

Regarding extra-judicial punishment, see Cheung, supra, note 6, at 323; and Moslim, Mahdi Fraih v. S.S.C. (F.C.T.D., no. 93-A-166), McGillis, February 14, 1994. Regarding lack of due process, see Namitabar, supra, note 1.

An enactment may itself allow for denial of due process, thereby increasing the chances that persecution will occur; see, for example, Balasingham, Satchithananthan v. S.S.C. (F.C.T.D., no. IMM-2469-94), Rothstein, February 17, 1995.

In M.E.I. v. Satiacum, Robert (F.C.A., no. A-554-87), Urie, Mahoney, MacGuigan, June 16, 1989. Reported: Canada (Minister of Employment and Immigration) v. Satiacum (1989), 99 N.R. 171 (F.C.A.), the Court held that the claimant’s fear of extra-judicial punishment, which was based partly on alleged irregularities in prosecution, was not well founded. Furthermore, the Court stated that “... Canadian tribunals have to assume a fair and independent judicial process in the foreign country. In the case of a non-democratic State contrary evidence might be readily forthcoming, but in relation to a democracy like the United States contrary evidence might have to go to the extent of substantially impeaching ... [some key element of the judicial system].” In Chowdhury, Hasan Mahmud v. M.C.I. (F.C., no. IMM-7284-05), Mosley, March 4, 2008; 2008 FC 290, the Court faulted the RPD for not considering evidence of enormous backlogs and prolonged or indefinite periods of detention before trial in the claimant’s country.

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Note 17

For example, in Pacificador, Rodolfo Guerrero v. M.C.I., no. IMM-4057-02), Heneghan, December 12, 2003; 2003 FC 1462, the Court held that the Board should have considered the objective basis of the claim relative to the claimant’s membership in a group consisting of persons in the Philippines who are prosecuted for political motives and whose prosecution appears to be tainted by corruption. In Altun, Ali v. M.C.I. (F.C., no. IMM-5854-11), Shore, August 29, 2012; 2012 FC 1034, the Court noted that the RPD had considered the matter as one of prosecution rather than persecution but failed to consider that a prosecution can be persecutory if there is clear evidence that the prosecution is not fair.

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Note 18

Mohamed, Abd Almoula Mohamed v. M.E.I. (F.C.A., no. A-26-92), Strayer, MacGuigan, Robertson, November 7, 1994. The Court offered little elaboration in its brief reasons, and did not clearly articulate its measure(s) of validity.

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Note 19

Drozdov, Natalia v. M.C.I. (F.C.T.D., no. IMM-94-94), Joyal, January 9, 1995.

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Note 20

Cheung, supra, note 6, per Linden J.A.

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Note 21

Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.).

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Note 22

Thirunavukkarasu, supra, note 21, per Linden J.A.

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Note 23

Thirunavukkarasu, supra, note 21, per Linden J.A

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Note 24

Toledo, Ruben Fernando San Martin v. M.E.I. (F.C.A., no. A-205-91), Hugessen, Desjardins, Décary, March 1, 1993.

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Note 25

For example, see Kaler, Minder Singh v. M.E.I. (F.C.T.D., no. IMM-794-93), Cullen, February 3, 1994. In Sran, Gurjeet Singh v. M.C.I. (F.C.T.D., no. IMM-3195-96), McKeown, July 29, 1997, where the claimant had been repeatedly and badly tortured while in police custody, the Court observed: “Torture can never be excused at any time and it is insufficient to characterize it simply as abuse.”

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Note 26

For example, see Manihani, Saravjit Singh v. M.E.I. (F.C.T.D., no. A-753-92), Noël, September 3, 1993; Naguleswaran, Pathmasilosini (Naguleswaran) v. M.C.I. (F.C.T.D., no. IMM-1116-94), Muldoon, April 19, 1995. In Naguleswaran the Court commented that those belonging to militant organizations ought not to be “treated with front-parlour civility”.

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Note 27

Brar, Jaskaran Singh v. M.E.I. (F.C.T.D., no. IMM-292-93), Rouleau, September 8, 1993; and Papou, Bhatia v. M.E.I. (F.C.T.D., no. A-1040-92), Rouleau, August 15, 1994. See also Naguleswaran, supra, note 26, where Muldoon J. expressed the view that “western concepts of the administration of justice will just not work in some other countries” (emphasis omitted), given the need of those countries to safeguard public security, cope with civil war, and combat terrorism.

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Note 28

Alfred, Rayappu v. M.E.I. (F.C.T.D., no. IMM-1466-93), MacKay, April 7, 1994: “The tribunal did not assess the physical mistreatment of the applicant by Colombo police in terms of persecution. Under the International Covenant on Civil and Political Rights [,] Articles 7 and 4 make clear that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment even in times of public emergency.”

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Note 29

Brar, supra, note 27.

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Note 30

Mahalingam, Paramalingam v. S.G.C. (F.C.T.D., no. A-79-93), Joyal, November 2, 1993; and Naguleswaran, supra, note 26. In Velluppillai, Selvaratnam v. M.C.I. (F.C.T.D., no. IMM-2043-99), Gibson, March 9, 2000, the Court concluded that while the statement “Short detentions for the purpose of preventing disruption or dealing with terrorism do not constitute persecution” may be generally true, the CRDD must take into account the special circumstances of the claimant, in particular his age and, given that age, the impact of his prior experiences as forecasted in a psychological report. Kularatnam, Suhitha v. M.C.I. (F.C., no. IMM-3530-03), Phelan, August 12, 2004; 2004 FC 1122, para 10, affirms this position. In Abu El Hof, Nimber v. M.C.I. (F.C., no. IMM-1494-05), von Finckenstein, November 8, 2005; 2005 FC 1515, the Court upheld as reasonable the RPD’s conclusion that the claimant’s two short detentions and interrogation, although humiliating, could be viewed as necessary security measures, given the heightened security in Israel at the time. In Kuzu, Meral v. M.C.I. (F.C. no. IMM-496-18), Lafrenière, September 14, 2018; 2018 FC 917, the Court came to a similar conclusion concerning two periods of detention for a total of eight hours. The Court noted that at no point did the police use violence towards the claimant nor interfere with his basic human rights.

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Note 31

Joseph, Christy Shanthakumar v. S.S.C. (F.C.T.D., no. IMM-7503-93), MacKay, November 18, 1994.

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Note 32

Murugiah, Rahjendran v. M.E.I. (F.C.T.D., no. 92-A-6788), Noël, May 18, 1993; Soma, Ester Elvira v. M.C.I. (F.C.T.D., no. A-1129-92), Richard, November 15, 1994.

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Note 33

In Wickramasinghe v. M.C.I. (F.C.T.D., no. IMM-2489-01), Martineau, April 26, 2002; 2002 FCT 470, the Trial Division, following Thirunavukkarasu, supra, note 21, held “that beatings, arbitrary arrests and detention of suspects, even in a state of emergency, can never be justified or considered a legitimate part of investigations into criminal or terrorist activities, however dangerous the suspects are thought to be.”

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Note 34

In Rafieyan, Majid v. M.C.I. (F.C., no. IMM-4221-06), Tremblay-Lamer, July 6, 2007; 2007 FC 727, the Court, reviewing a decision of an immigration officer on a humanitarian and compassionate application, noted that the officer did not err in finding that while penalties prescribed by law may be indicative of risk, they are not determinative of the issue where there is evidence that these laws are not being enforced.

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Note 35

Chan (S.C.C.), supra, note 9, per Major J.

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Note 36

Chan (S.C C.), ibid., per Major J.

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Note 37

John, Lindyann v. M.C.I. (F.C.T.D., no. IMM-2833-95), Simpson, April 24, 1996 (reasons signed July 29, 1996), (re law criminalizing homosexual acts). More generally, note Torres, Alejandro Rodriguez v. M.C.I. (F.C.T.D., no. IMM-503-94), Simpson, February 1, 1995 (reasons signed April 26, 1995): “In my view, refugee claims are not to be considered on a theoretical level which ignores the realities of the evidence. ... [The Refugee Division] was entitled to make a practical assessment of the possibility of the Applicant facing future persecution.”

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Note 38

See, for example, Mohebbi, Hadi v. M.C.I. (F.C., no. IMM-3755-13), Harrington, February 26, 2014; 2014 FC 182.

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Note 39

Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, May 1, 2017, section 8.5.6.

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Note 40

See, for example, Cheng v. M.C.I. (F.C.T.D., no. IMM-6589-00), Pinard, March 1, 2002; 2002 FCT 211; and Zheng v. M.C.I. (F.C.T.D., no. IMM-2415-01), Martineau, April 19, 2002; 2002 FCT 448.

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Note 41

There may be an overstay law which applies to all residents of a country or to all of the country’s citizens, and which provides for penalties of fine or incarceration. Alternatively, a law may provide that a non-citizen resident (including a stateless resident) who travels abroad must return and report periodically, and that failure to do so will result in the loss of resident status and the right to return: e.g. Altawil, supra, note 1.

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Note 42

For an example of this last situation, see Losolohoh, James Salah v. M.E.I. (F.C.T.D., no. IMM-2324-94), Wetston, December 13, 1994.

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Note 43

Valentin v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 390 (C.A.).

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Note 44

Zandi, Reza v. M.C.I. (F.C., no. IMM-4168-03), Kelen, March 17, 2004; 2004 FC 411.

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Note 45

Donboli v. Canada (Minister of Citizenship and Immigration), 2003 FC 883.

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Note 46

Pernas Hernandez, Euler v. M.C.I. (F.C., no. IMM-2072-08), Phelan, March 4, 2009; 2009 FC 229.

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Note 47

Alfaro, Victor Labrador v. M.C.I. (F.C., no. IMM-7390-10), Rennie, July 22, 2011; 2011 FC 912. See also: Canada (Citizenship and Immigration) v. Ibragimov, 2019 FC 830.

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Note 48

Castaneda, Robert Martinez v. M.E.I. (F.C.T.D., no. A-805-92), Noël, October 19, 1993(Cuba). In Chow, Wing Sheung v. M.C.I. (F.C.T.D., no. A-1476-92), McKeown, March 26, 1996, the Court noted that the Refugee Division had found that neither the maximum prescribed penalty nor the penalties actually imposed were harsh.

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Note 49

Donboli, supra, note 45;. See also Alfaro, Victor Labrador v. M.C.I. (F.C., no. IMM-7390-10), Rennie, July 22, 2011; 2011 FC 912 supra, note 47; and Gonzalez Salcedo, Maykel v. M.C.I. (F.C., no. IMM-5975-13), Phelan, August 25, 2014; 2014 FC 822.

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Note 50

For an example of a situation which was found not to constitute desertion, see Nejad, Saeed Javidani-Tabriz v. M.C.I. (F.C.T.D., no. IMM-4624-93), Richard, November 16, 1994.

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Note 51

Musial, supra, note 2, per Thurlow C.J.

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Note 52

Popov, Leonid Anatolievich v. M.E.I. (F.C.T.D., no. IMM-2567-93), Reed, April 11, 1994. Reported: Popov v. Canada (Minister of Employment and Immigration) (1994), 24 Imm. L.R. (2d) 242 (F.C.T.D.).

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Note 53

Garcia, Marvin Balmory Salvador v. S.S.C. (F.C.T.D., no. IMM-2521-93), Pinard, February 4, 1994. In Haoua, Mehdi v. M.C.I. (F.C.T.D., no. IMM-698-99), Nadon, February 21, 2000, the Court stated at para. 16 “… I also note that military service does not, in itself, constitute persecution. Rather, the Applicant’s claim hinged on the fear that he would be forced to commit atrocities if he were drafted. If there is no evidence of atrocities, as there was none in this case, there is no evidence of persecution.”

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Note 54

Convention on the Rights of the Child, Article 38(2) – under age 15; and Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, Article 2 - under age 18. The recruitment of child soldiers is a war crime under the Rome Statute of the International Criminal Court.

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Note 55

Zolfagharkhani, supra, note 3.

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Note 56

Musial, supra, note 2, also dealt with military service but Zolfagharkhani, supra, note 3 has replaced Musialas the chief authority not only with respect to the more encompassing topic of laws of general application, but also with respect to this particular example of such laws. See Chapter 9, section 9.3.2.

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Note 57

See Chapter 9, section 9.2.2.

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Note 58

Ates, Erkan v. M.C.I. (F.C.A., no. A-592-04), Linden, Nadon, Sharlow, October 5, 2005; 2005 FCA 322 [Appeal from Ates, Erkan v. M.C.I. (F.C., no. IMM-150-04), Harrington, September 27, 2004; 2004 FC 1316]; leave to appeal to the Supreme Court of Canada dismissed without costs March 30, 2006 (31246). This case was followed in Ielovski, Vladimir v. M.C.I. (F.C., no. IMM-3520-07), de Montigny, June 13, 2008; 2008 FC 739; and in Hinzman v. Canada (Minister of Citizenship and Immigration), [2007] 1 F.C.R. 561; 2006 FC 420, where the Court stated:

[207] At the present time, however, there is not internationally recognized right to either total or partial conscientious objection. While the UN Commission on Human Rights and the Council of Europe have encouraged member States to recognize a right to conscientious objection in various reports and commentaries, no international human rights instrument currently recognizes such a right, and there is no international consensus in this regard…

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Note 59

Zolfagharkhani, supra, note 3.

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Note 60

See Ahani, Roozbeh v. M.C.I. (F.C.T.D., no. IMM-4985-93), MacKay, January 4, 1995, where the Court said that the Refugee Division was entitled to find that the detentions and any associated mistreatment were related to the claimant’s failure to complete his military service, rather than to his Kurdish origin or related political views. On the other hand, see Diab, Wadih Boutros v. M.E.I. (F.C.A., no. A-688-91),Isaac, Marceau, McDonald, August 24, 1994, where the Court held that the Refugee Division erred in that it failed to consider whether the claimant’s opposition to serving in a particular militia (which had press-ganged him) constituted a political opinion which could result in persecution.

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Note 61

Zolfagharkhani, supra, note 3.

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Note 62

See for example Sladoljev, Dejan v. M.E.I. (F.C.T.D., no. IMM-3160-94), Cullen, July 4, 1995. The Court did not mention Zolfagharkhani, supra, note 3.

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Note 63

See also paragraphs 170 to 174 of the UNHCR Handbook.

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Note 64

Popov, supra, note52. In Lebedev, Vadim v. M.C.I. (F.C., no. IMM-2208-06), deMontigny, July 9, 2007; 2007 FC 728, the Court described conscientious objection as“genuine convictions grounded in religious beliefs, philosophical tenets orethical considerations”. In Basbaydarv. Canada (Citizenship and Immigration) 2019 FC 387, the Federal Courtupheld the RPD’s finding that the claimant did not have the sincerely heldopinion of a conscientious objector as he provided no evidence of his beliefother than an allegation that he hated his country’s military, but alsotestified that he would fight in the Canadian military.

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Note 65

Zolfagharkhani, supra, note 3.

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Note 66

Ciric v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 65 (T.D.).

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Note 67

Zolfagharkhani, supra, note 3. See also: Ciric, supra, note 66. It is not enough for the claimant to show that a particular conflict has been condemned by the international community; it must also be the case that his refusal to participate was based on the condemnation: Sladoljev, supra, note 62. And there must be a reasonable chance that the claimant would indeed be required to participate in the objectionable operations: Zolfagharkhani, supra, note 3;

Pronouncements from organizations such as Amnesty International, Helsinki Watch, and the Red Cross may constitute condemnation by the world community; condemnation by the United Nations is not necessary: Ciric, supra, note 66.

A non-defensive incursion into foreign territory is military activity that violates basic international standards, and United Nations condemnation of such an incursion is condemnation of the incursion as contrary to basic rules of human conduct: Al-Maisri, Mohammed v. M.E.I. (F.C.A., no. A-493-92), Stone, Robertson, McDonald, April 28, 1995.

There will also be instances where political expediency will prevent the UN or its member states from condemning the violation of international humanitarian law. This is why reports from credible non-governmental organizations, especially when they are converging and hinge on ground staff, should be accorded credit. Such reports may be sufficient evidence of unacceptable and illegal practices. See Lebedev, supra, note 63, cited with approval in Tewelde, Baruch v. M.C.I. (F.C., no. IMM-81-06), Gauthier, October 24, 2007; 2007 FC 1103.

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Note 68

Popov, supra, note 52. There must be a probability, and not merely a possibility, that the military will engage in the offending activity: Hashi, Haweya Abdinur v. M.C.I. (F.C.T.D., no. IMM-2597-96), Muldoon, July 31, 1997, alluding to Zolfagharkhani. In Sounitsky, Alexander v. M.C.I. (F.C., no. IMM-2184-07), Mosley, March 14, 2008; 2008 FC 345, the PRRA officer referred to evidence acknowledging the existence of abuses and the allegations by some international organizations about Israeli Defence force practices and gave a reasoned explanation for finding that the abuses were isolated and not systemic. A similar finding was made in Volkovitsky, Olga v. M.C.I. (F.C., no. IMM-567-09), Shore, September 10, 2009; 2009 FC 893. In Key, Joshua Adam v. M.C.I. (F.C., no. IMM-5923-06), Barnes, July 4, 2008; 2008 FC 838, the issue was raised as to whether widespread violations of international law carried out by a military force but not rising to the level of war crimes or crimes against humanity can support a refugee claim by a conscientious objector. The case law does not support the idea that refugee protection is only available where the particulars of one’s objection to military service would, if carried out, exclude a claim by that person to protection.

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Note 69

Zolfagharkhani, supra, note 3.

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Note 70

Diab, supra, note 60.

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Note 71

Talman, Natalia v. S.G.C. (F.C.T.D., no. IMM-5874-93), Joyal, January 11, 1995. In Kirichenko, Andrei v. M.C.I. (F.C., no. IMM-688-10), Russell, January 6, 2011; 2011 FC 12, the Court noted that the RPD erred by failing to mention and deal with the objective documentation on the record which said that conscientious objector status was not available to males in Israel. (Hinzman distinguished). The Court further noted that the evidence showed that there was no law allowing for conscientious objector status in Israel and the so-called Conscientious Objector Committee is “haphazard, secretive and difficult to access”, which is vague and arbitrary and cannot be considered an option. However, in the later case of Graider, Emil v. M.C.I. (F.C., no. IMM-2894-12), O’Reilly, April 29, 2013; 2013 FC 435, the Court referred to post Kirichenko evidence that indicated that Israel had established a “special military committee” that grants exemptions from military service to conscientious objectors, or recommends their assignment to non-combat roles. This committee was set up in response to a May 2009 judgment of the Israeli High Court of Justice that recognized the rights of conscientious objectors.

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Note 72

Frid, Mickael v. M.C.I. (F.C.T.D., no. IMM-6694-93), Rothstein, December 15, 1994. See also Moskvitchev, Vitalli v. M.C.I. (F.C.T.D., no. IMM-70-95), Dubé, December 21, 1995, where the Court upheld decisions of Post-Claim Determination Officers (PCDOs). In Moskvitchev, the PCDO found that a sentence of six months to five years for draft evasion in Moldova would not be inhuman [sic] or extreme. Insults and attacks on a conscientious objector while in prison do not constitute persecution: Treskiba, Anatoli Benilov v. M.C.I. (F.C., no. IMM-1999-08), Pinard, January 13, 2009; 2009 FC 15.

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Note 73

In Al-Maisri, supra, note 67, the claimant had deserted from an army which was participating in an operation condemned as contrary to basic rules of human conduct, and the Court noted that “the punishment for desertion which would likely be visited upon the [claimant] …, whatever that punishment might be, would amount to persecution.” (emphasis added).

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Note 74

Moz, Saul Mejia v. M.E.I. (F.C.T.D., no. A-54-93), Rothstein, November 12, 1993. Reported: Moz v. Canada (Minister of Employment and Immigration) (1993), 23 Imm. L.R. (2d) 67 (F.C.T.D.). In Lowell, Matthew David v. M.C.I. (F.C., no. IMM-4599-08), Zinn, June 22, 2009; 2009 FC 649, on an unsuccessful application for humanitarian and compassionate relief, the Court noted that the evidence indicated that the applicant (a U.S. deserter) would likely not serve more than 15 months (of a possible sentence of 7 years confinement or possibly the death penalty) and only then after receiving due process.

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Note 75

In Rivera, Kimberly Elaine v. M.C.I. (F.C., no. IMM-215-09), Russell, August 10, 2009; 2009 FC 814, the Court criticized the RPD because it had failed to conduct a meaningful examination in the decision of selected and targeted prosecution by the U.S. based upon the political opinion of those deserters who have spoken out against the war in Iraq. Similarly, in Walcott, Dean William v. M.C.I. (F.C., no. IMM-5527-10; F.C. no. IMM-5528-08), de Montigny, April 5, 2011; 2011 FC 415, the Court found that the PRRA Officer ignored the applicant’s evidence that his fear was based not so much on being punished for having been absent from his military unit without permission, but of being treated more harshly because of the high profile of his case and his public speeches in opposition to the war in Iraq. The Officer failed to address this risk, and more particularly the risk of being court-martialed and imprisoned rather than being administratively discharged. In Vassey, Christopher Marco v. M.C.I. (F.C., no. IMM-5834-10), Scott, July 18, 2011; 2011 FC 899, the Court found unreasonable the RPD’s failure to assess the evidence before it concerning the application of prosecutorial discretion on the grounds of political opinion. In R.S. v. M.C.I. (F.C., no. IMM-6056-11), Gleason, July 6, 2012; 2012 FC 860, the Court found that the RPD erred by failing to consider the applicant’s argument that the treatment afforded to selective conscientious objectors in Israeli military prisons was harsher than that afforded to those who were jailed because they had refused to serve for other reasons and that selective conscientious objectors received longer sentences. In Tindungan, Jules Guiniling v. M.C.I. (F.C., no. IMM-5069-12), Russell, February 1, 2013; 2013 FC 115, the Court found that the RPD had failed to consider evidence that supported the claimant’s allegation that he would be disproportionately punished if sent back to the US because of his publicly expressed political opinions.

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Note 76

In Canada v. Akgul 2015 FC 834, at paras 10-12, the Court held that the RPD reasonably found that the treatment of conscientious objectors in Turkey would amount to persecution as conscientious objectors were assaulted and inhumanely treated by authorities and others due to their refusal of military service.

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Note 77

Asgarov v. Canada (Citizenship and Immigration) 2019 FC 106, paras 14-18.

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Note 78

Kogan, Meri v. M.C.I. (F.C.T.D., no. IMM-7282-93), Noël, June 5, 1995. The operative idea seems to be that the claimant should be considered bound by his own voluntary decision. The fact that the claimant chose to immigrate despite knowing of compulsory service might also raise a question as to the strength (or even genuineness) of his conviction. But note that in Agranovski, Vladislav v. M.C.I. (F.C.T.D., no. IMM-2709-95), Tremblay-Lamer, July 3, 1996, whereat the time of immigrating to Israel, the claimant had known that there was compulsory military service, and the Refugee Division did not believe he had reasons of principle for refusing to serve, the Court overturned this conclusion, noting that the claimant had been brought to the country as a minor by his parents, and that he had thought he would be able to avail himself of alternative service.

Return to note 78 referrer

Note 79

Hinzman, Jeremy, RPD TA4-01429, B. Goodman, March 16, 2005; Hughey, Brandon David, RPD TA4-05781, B. Goodman, August 16, 2005.

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Note 80

Hinzman, supra, note 58; Hughey, Brandon David v.M.C.I. (F.C., no. IMM-5571-05), Mactavish, March 31, 2006; 2006 FC 421.

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Note 81

Hinzman, Jeremy v. M.C.I. and Hughey, Brandon David v. M.C.I. (F.C.A., nos. A-182-06; A-185-06), Décary, Sexton, Evans, April 30, 2007; 2007 FCA 171 (leave to appeal dismissed by the SCC on November 15, 2007, [2007] S.C.C.A. No. 321). In Colby, Justin v. M.C.I. (F.C., no. IMM-559-07), Beaudry, June 26, 2008; 2008 FC 805, the Court found that the claimant’s claim was materially indistinguishable from the decision in Hinzman except that the claimant was a medic who was deployed to Iraq instead of a foot soldier who deserted after his unit had been deployed to that country. Key, supra, note 68, confirms that the Hinzman decision set the bar very high for deserters from the United States military seeking refuge in Canada. However, because the Board took the issue of state protection “off the table” at the hearing, Mr. Key should be given the opportunity to address fully the issue of state protection in a rehearing before the Board. Landry, Dale Gene v. M.C.I. (F.C., no. IMM-5148-08), Harrington, June 8, 2009; 2009 FC 594 also followed Hinzman. While the preceding cases following Hinzman were based on conscientious objection (effectively, political opinion), in Smith, Bethany Lanae v. M.C.I. (F.C., no. IMM-677-09), de Montigny, November 20, 2009; 2009 FC 1194, the claim was based on sexual orientation and the Court noted that the RPD failed to consider evidence that the U.S. military judicial system was unfair to, and biased, against homosexuals and that the claimant could not effectively defend herself against a charge of desertion. At the re-hearing of the claim, the RPD again rejected the claim and did not believe the claimant’s allegation of having experienced persecution based on her sexual orientation. The Court upheld the decision and held, inter alia, that absent evidence of efforts by the applicant to avail herself of the remedies available in the United States, it was impossible for the RPD to assess the availability of state protection for her (Hinzman). It was reasonably open to the RPD to conclude there was adequate recourse in the US for those who felt they had been wronged in the US army. See Smith, Bethany Lanae v. M.C.I. (F.C., no. IMM-5699-11), Mosley, November 2, 2012; 2012 FC 1283.

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Note 82

In both Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (C.A.), and Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593, it was recognized that the fear of persecution under China’s one-child policy is largely dependent on the practices of the relevant local authority. A review of the documentary evidence in Shen, Zhi Ming v. M.C.I. (F.C., no. IMM-313-03), Kelen, August 15, 2003; 2003 FC 983 indicated that this was still the case at the time of the hearing. In Lau, Yei Wah v. M.C.I. (F.C., no. IMM-2329-07), Phelan, April 17, 2008; 2008 FC 499, a PRRA officer found that payment of a fee for a breach of the one-child policy was not persecution. It was incumbent on the claimant to put forward evidence that the fee was so large as to amount to persecution, either as a general proposition or in regard to the claimant personally.

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Note 83

Maiv. Canada (Citizenship and Immigration) 2017 FC 486, paras 25-28.

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Note 84

In Huang v. Canada (Citizenship and Immigration) 2019FC 120,the Court upheld the RAD’s finding that there was no evidence that coercedsterilization was being affected in Hebei after the implementation of thetwo-child policy. However, in Ou v. Canada (Citizenship and Immigration) 2018FC 968 and Zhang v. Canada (Citizenship and Immigration) 2019FC 870,the Federal Court overturned findings that the claimants would not be subjectto forced sterilization or IUD insertion as the decision-maker failed toaddress contradictory evidence in the NDP.

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Note 85

Cheung, supra, note 6.

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Note 86

Chan (F.C.A.), supra, note 8.

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Note 87

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689.

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Note 88

Chan (S.C.C.), supra, note 9.

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Note 89

Chan (F.C.A.), supra, note 8, per Heald J.A.

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Note 90

Cheung, supra, note 6. See also Chan (S.C.C.), supra, footnote 24, per Major J. The Supreme Court noted that, for the claim to succeed, evidence must show both that there is a subjective fear and that the fear is “objectively well-founded” (per Major J.). According to the Court, the evidence did not establish a serious possibility that certain harm would be inflicted - i.e., did not establish an objective basis (per Major J.). The Court also had doubts as to whether subjective fear was made out (per Major J.).

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Note 91

"Physical compulsion is not the only mechanism for forcing a person to do something which they would not of their own free choice choose to do”: Liu, Ying Yang v. M.C.I. (F.C.T.D., no. IMM-4316-94), Reed, May 16, 1995. The claimant had been subjected to “incredible pressure”: her work unit, and she herself and her husband, would have incurred fines if she had had a second child; also, on two occasions a member of the work unit had accompanied her to a hospital where she was to undergo sterilization. Such pressure amounts to “forcing”, as does denying a person 80% of his salary.

Compare Chan (S.C.C), supra, note 9, per Major J.: “... the [claimant] failed to provide ... evidence to substantiate his claim that the pressure from the Chinese authorities to submit to sterilization would extend beyond psychological and financial pressure to actual physical coercion.” It is unclear whether Mr. Justice Major (i) was of the view that psychological and financial pressure could not constitute forcing (and could not constitute persecution), or (ii) was simply focusing upon the specific allegation made by the appellant (namely, that he would be physically coerced), or (iii) did not think the particular psychological and financial pressures confronting this claimant would be severe enough to constitute persecution. Interpretation (i) might be a dubious one, given that Major J. did not clearly assert this view, and did not present a discussion of the issue.

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Note 92

Cheung, supra, note 6.

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Note 93

Chan (S.C.C.), supra, note 9, per La Forest J. (dissenting). The majority in the Supreme Court did not expressly comment on the issue, although Mr. Justice Major appeared to assume that forced sterilization would indeed constitute persecution. See also Chan (F.C.A.), supra, note 8, per Heald J.A. and per Mahoney J.A. (dissenting).

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Note 94

Cheung, supra, note 6. For a Supreme Court response to the “legitimate end” argument - a response complementing that of Linden J.A. in Cheung, supra, note 6 - see the remarks of La Forest J. (dissenting), in Chan (S.C.C.), supra, note 9.

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Note 95

Chan (S.C.C.), supra, note 9, per La Forest J. (dissenting).

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Note 96

Lai, Quang v. M.E.I. (F.C.T.D., no. IMM-307-93), McKeown, May 20, 1994. See also Xiao, Yan Liu v. M.C.I. (F.C.T.D., no., IMM-712-15), Harrington, October 21, 2015; 2015 FC 1193, where the Court stated: “ Both jurisprudence and common sense conclude that the violation of a woman’s reproductive and physical integrity, such as by means of forced abortion or the forced insertion of an IUD constitutes persecution and that the victim of such acts is a member of a particular social class under section 96 of IRPA and is entitled to Canada’s protection.”

Return to note 96 referrer

Note 97

Zheng, Jin Xia v. M.C.I. (F.C., no. IMM-3121-08), Barnes March 30, 2009; 2009 FC 327; and M.C.I. v. Ye, Yanxia (F.C., no. IMM-8797-12), Pinard, June 13, 2013; 2013 FC 634.

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Note 98

This ruling is from an old decision, Lin v. Canada (Minister of Employment and immigration), (1993), 66 FTR 207, 24 Imm LR (2d) 208 (FCTD) but it has been cited with approval in various cases, including Chen, Li Xing v. M.C.I. (F.C., no. IMM-8158-13), Rennie, February 19, 2015; 2015 FC 225. But note that in Huang, Wei Yao v. M.C.I. (F.C., no. IMM-10448-12), Simpson, October 23, 2013; 2013 FC 1074, the Court commented that the RPD should have considered the argument that if fines are imposed at six times the claimants’ annual income as an alternative to sterilization, such fines are persecutory because they have a coercive impact and essentially mean that sterilization will be preferred and will occur.

Return to note 98 referrer

Note 99

Lai, supra, note 96. In Liu, supra, note 91, the Court noted there was no evidence that the adult claimants, who had had a second child while in Canada, still objected to the family planning policy or methods of the Chinese government; on this basis, the Court held that evidence of subjective fear was lacking. See also Cheng, Kin Ping v. M.C.I. (F.C.T.D., no. IMM-176-97), Tremblay-Lamer, October 8, 1997,where the male claimant had no reason to fear persecution for violation of the family planning policy, since his wife had already been sterilized (following the birth of one child and a subsequent forced abortion).

Return to note 99 referrer

Note 100

Cheung, supra, note 6.

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Note 101

Chan (F.C.A.), supra, note 8, per Heald J.A., and Desjardins J.A. In his dissent, Mahoney J.A. rejected one delineation of a particular social group, but accepted another.

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Note 102

Chan (S.C.C.), supra, note 9, per Major J.

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Note 103

Chan (S.C.C.), supra, note 9, per La Forest J. (dissenting).

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Note 104

Chan (F.C.A.), supra, note 8, per Heald J.A.

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Note 105

Chan (F.C.A.), supra, note 8, per Desjardins J.A. Compare Kwong, Kam Wang (Kwong, Kum Wun) v. M.C.I. (F.C.T.D., no. IMM-3464-94), Cullen, May 1, 1995.

When Chan came before the Supreme Court, both the majority and the minority declined to decide whether the claimant’s action of having a second child “was sufficiently expressive of a political opinion to independently found a refugee claim” (per Major J. and per La Forest J. (dissenting). Mr. Justice La Forest thought the evidence pointed to other possible connections to political opinion (at 647-8). However, His Lordship’s broaching of these possibilities and his reading of the evidence were disapproved of by Mr. Justice Major.

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Note 106

Cheng, supra, note 99.

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Note 107

This principle has been incorporated in s. 3(3)(f) of IRPA, which provides that “[t]his Act is to be construed and applied in a manner that complies with international human rights instruments to which Canada is signatory.”

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Note 108

Also see the reference to Daghighi in note 8, above.

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Note 109

Namitabar (T.D.), supra, note 1. In Canada (Secretary of State) v. Namitabar (F.C.A., no. A-709-93), Décary, Hugessen, Desjardins, October 28, 1996, the Court overturned the Trial Division on the basis that the CRDD credibility findings were not ambiguous. With respect to the issue of wearing veils in Iran, the Court was of the view that "the Refugee Division may have expressed itself incorrectly [but] that has no importance in the case at bar since the female [claimant] voluntarily complied with the clothing code and did not even display reluctance to do so..."

Return to note 109 referrer

Note 110

Fathi-Rad, supra, note 1. In Rabbani, Farideh v. M.C.I. (F.C.T.D., no. IMM-2032-96), McGillis, June 3, 1997, the Refugee Division had concluded that a violation of Iran’s Islamic dress code could not form the basis of a well-founded fear of persecution. It had noted the dress conventions applicable to various groups elsewhere, had indicated that such conventions did not involve violations of basic human rights, and had said that the same was true of the Iranian dress code. The Court observed that, in making these comparisons, the Refugee Division had “... ignored, failed to appreciate or trivialized the persecutory aspects of the Islamic dress code ...” Furthermore, the Refugee Division had failed to acknowledge documentary evidence regarding the penalties for failure to comply with the code.

Return to note 110 referrer

Note 111

Hazarat, Ghulam v. S.S.C. (F.C.T.D., no. IMM-5496-93), MacKay, November 25, 1994.

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Note 112

Ameri, Ghulamali v. M.C.I. (F.C.T.D., no. IMM-3745-94), MacKay, January 30, 1996.

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Note 113

Ameri, ibid,.

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Note 114

Pour, Malek Mohammad Nagmeh Abbas v. M.C.I. (F.C.T.D., no. IMM-3650-95), Gibson, June 6, 1996.

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Note 115

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Note 116

Fathi-Rad, supra, note 1.

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Note 117

Ali, Shaysta-Ameer v. M.C.I. (F.C.T.D., no. IMM-3404-95), McKeown, October 30, 1996. Reported: Ali v. Canada (Minister of Citizenship and Immigration) (1996), 36 Imm. L.R. (2d) 34 (F.C.T.D.) Affirmed in Ali, Shaysta-Ameer v. M.C.I. (F.C.A., no. A-772-96), Décary, Stone, Strayer, January 12, 1999. One of the claimants was a nine-year-old girl who could have avoided persecution only by refusing to go to school, and thus forswearing the basic human right to an education. The Court considered her to be a Convention refugee. In a rather different context, the Court again indicated that the Refugee Division must not expect a claimant to buy peace for herself with an unconscionable self-denial (namely, continuing to lie about her lack of religious inclinations): Kazkan, Shahrokh Saeedi v. M.C.I. (F.C.T.D., no. IMM-1313-96), Rothstein, March 20, 1997.

Return to note 117 referrer

Note 118

Fathi-Rad, supra, note 1. See also Namitabar (T.D.), supra, note 1.

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Note 119

Namitabar (T.D.), supra, note 1. In Fathi-Rad, supra, note 1, the Convention ground invoked for the part of the claim pertaining to the dress code appears to have been membership in a particular social group; the social group in question was not expressly named in the Court’s reasons. In Canada (Secretary of State) v. Namitabar (F.C.A., no. A-709-93), Décary, Hugessen, Desjardins, October 28, 1996, the Court overturned the Trial Division on the basis that the CRDD credibility findings were not ambiguous. With respect to the issue of wearing veils in Iran, the Court was of the view that "the Refugee Division may have expressed itself incorrectly [but] that has no importance in the case at bar since the female [claimant] voluntarily complied with the clothing code and did not even display reluctance to do so..."

Return to note 119 referrer

Note 120

Sicak, Bucak v. M.C.I. (F.C., no. IMM-4699-02), Gauthier, December 11, 2003; 2003 FC 1457.

Return to note 120 referrer

Note 121

Kaya, Bedirhan Mustafa v. M.C.I. (F.C., no. IMM-5565-03), Harrington, January 14, 2004; 2004 FC 45. See also Abbes, Lotfi v.M.C.I. (F.C., no. IMM-2989-06), Tremblay-Lamer, February 1, 2007; 2007 FC 112, where the Court found that the prohibition against wearing a veil in Tunisia did not constitute persecution.

Return to note 121 referrer

Note 122

Kaya, ibid., para 18.

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Note 123

Aykut, Ibrahim v. M.C.I. (F.C., no. IMM-5310-02), Gauthier, March 26, 2004; 2004 FC 466. See also Karaguduk, Abdulgafur v. M.C.I. (F.C., no. IMM-2695-03), Henegan, July 5, 2004; 2004 FC 958, where the Court affirmed the decision of the Pre-Removal Risk Assessment Officer who “found that although the Principal Applicant’s daughter experienced discrimination as a result of wearing headscarves, this discrimination did not amount of persecution.”

Return to note 123 referrer

Note 124

Vidhani v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 60, (T.D.). See also Gwanzura, Unity v. M.C.I. (F.C.T.D., no. IMM-1907-96), Heald, July 10, 1997.

Return to note 124 referrer

Note 125

Ali, Shaysta-Ameer, supra, note 117.

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Note 126

Guidelines issued by the Chairperson pursuant to section 65(3) of the Immigration Act, updated November 25, 1996, as continued in effect by the Chairperson on June 28, 2002 under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act.

Return to note 126 referrer

Note 127

Butt, Abdul Majid (Majeed) v. S.G.C. (F.C.T.D., no. IMM-1224-93), Rouleau, September 8, 1993.; See also Thathaal, Sabir Hussain v. S.S.C. (F.C.T.D., no. A-1644-92), McKeown, December 15, 1993.

Return to note 127 referrer

Note 128

Ahmad, Masroor v. M.E.I. (F.C.T.D., no. A-555-92), Rothstein, June 16, 1994.

Return to note 128 referrer

Note 129

Rehan, Muhammad Arif v. M.C.I. (F.C.T.D., no. A-580-92), Gibson, October 18, 1996.

Return to note 129 referrer

Note 130

[1990] Imm. A.R. 61 (Eng.C.A.). Quoted in Rehan, ibid..

Return to note 130 referrer

Note 131

Rehan, supra, note 1.

Return to note 131 referrer

Note 132

Rehan, supra, note 1.

Return to note 132 referrer

Note 133

Ahmed, Irfan v. M.C.I. (F.C.T.D., no. IMM-2725-96), Joyal, July 4, 1997.

Return to note 133 referrer

Note 134

Mehmood, Nasir v. M.C.I. (F.C.T.D., no. IMM-2256-97), McGillis, May 14, 1998.

Return to note 134 referrer

Note 135

Ahmad, Tahir v. M.C.I. (F.C., no. IMM-3148-11), Scott, January 24, 2012; 2012 FC 89.

Return to note 135 referrer

Note 136

RAD TB0-01837, Bosveld, May 8, 2017.

Return to note 136 referrer

Note 137

Haider v. Canada (Citizenship and Immigration) 2019 FC 612

Return to note 137 referrer

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Chapter 9 - Prosecution versus persecution

On this page

9. Prosecution versus persecution

9.1. Introduction

9.2. Prosecution, or persecution for a convention reason?

9.2.1. Limits to Acceptable Legislation and Enforcement

9.2.2. Laws of general application

9.2.3. Policing methods, national security and preservation of social order

9.2.4. Enforcement and serious possibility

9.2.5. Exit laws

9.2.6. Military service: Conscientious objection, evasion, desertion

9.2.7. One-child/two-child policy of China

9.2.8. Religious or cultural mores

9.2.8.1. Restrictions upon women

9.2.8.2. Ahmadis from Pakistan

Notes

Thank you for your help!

Chapter 9 - Prosecution versus persecution

On this page​

9. Prosecution versus persecution​

9.1. Introduction

9.2. Prosecution, or persecution for a convention reason?

9.2.1. Limits to Acceptable Legislation and Enforcement

9.2.2. Laws of general application

9.2.3. Policing methods, national security and preservation of social order

9.2.4. Enforcement and serious possibility

9.2.5. Exit laws

9.2.6. Military service: Conscientious objection, evasion, desertion

9.2.7. One-child/two-child policy of China

9.2.8. Religious or cultural mores

9.2.8.1. Restrictions upon women

9.2.8.2. Ahmadis from Pakistan

Notes

Thank you for your help!

On this page

9. Prosecution versus persecution