Supreme Court of Canada and “Serious Non-Political Crimes”

Supreme Court of Canada: Article 1F(b) Excludes Individuals Who Are Not Fugitives From Justice

Dr. Amar Khoday

On October 30, 2014, the Supreme Court of Canada released its long awaited decision in Febles v Canada (Citizenship and Immigration), interpreting the scope of Article 1F(b) of the 1951 Convention Relating to the Status of Refugees as implemented through s.98 of the Immigration and Refugee Protection Act. Article 1F(b) provides that a person who “has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee” is excluded from the protections afforded under the Refugee Convention.

At issue was whether Article 1F(b) excludes any person who commits a serious non-political crime outside the country of refuge prior to admission, regardless of evidence that the person was not a fugitive from justice and without consideration of the impact of post-crime events, such as rehabilitation or expiation. The Court concluded that such evidence was irrelevant to the inquiry. It determined that the focus of an Article 1F(b) analysis concerns the circumstances surrounding the commission of a non-political crime and whether the crime qualifies as serious.

The majority decision, written by Chief Justice Beverley McLachlin, justified its conclusion on the basis of several considerations. First, the Court posited that the plain language of the text clearly mandates exclusion once the conditions stated in the provision are established. It observed that “[n]othing in the words used suggests that the parties to the Refugee Convention intended subsequent considerations, like rehabilitation, expiation, and actual dangerousness, to be taken into account.” Furthermore, the Court also concluded that a contextual analysis of Article 1F(b)—which entails an examination of the general purposes of the Convention, the purpose of Article 1F(b) and consideration of foreign case law—confirmed its legal interpretation.

By contrast, Justice Rosalie Abella, in a dissenting opinion, articulated that the travaux preparatoires signaled the intent of the Convention’s framers that Article 1F(b) be applied only to fugitives from justice who would take advantage of the Convention’s protections. She observed that Article 1F(b) should not necessarily lead to the exclusion of those who are convicted and are subsequently rehabilitated. Justice Abella asserted that an interpretation of Article 1F(b) which focuses on excluding fugitives from justice is in accordance with the human rights purpose of Article 1F(b). Furthermore, her interpretation found support in the positions of the United Nations High Commissioner for Refugees and recent British and Belgian jurisprudence.

Assuming that the Court’s interpretation is correct, steps should be taken to revise the language of Article 1F(b) so as not to lead to the automatic exclusion of those who have committed serious non-political crimes, including those who have been punished and served time for such offenses. States implementing the Convention should be permitted the flexibility to adopt a contextual approach that considers various factors in determining whether exclusion is appropriate even where such crimes have been committed.

Read Dr. Khoday’s discussion of the case.

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