Case Notes - Canada (Attorney-General) V. Ward (1993)

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CASE NOTES: CANADA (ATTORNEY-GENERAL) V. WARD

(1993)1 Naveen Prem, Vellore Institute of Technology, School of Law, Chennai Campus

ABSTRACT

This Case Comment critically examines the judgement of the Supreme Court of Canada in the case of Canada (Attorney-General) v. Ward (1993) which was responsible for the redefinition of the core principles of refugee law especially with respect to the interpretation of terms such as persecution, state protection, asylum, etc. With that, the case also revitalized the scope of the Refugee Convention in the world forum. Through the case, the court had also broadened the understanding of political opinions while rejecting statecentric view of persecution. This paper highlights and examines the heart of the judgement which were the doctrinal questions that were reasoned and held. It also enumerates in detail the ambiguities that came with the progressive aspects of the judgement.

The commentary will dwell on the lack in the provision of a robust or consistent test to define the term particular social group. Through doctrinal analysis and critical examination, this paper evaluates the impacts of the judgment in cases of future adjudications on similar instances while aligning it with international human rights norms. Thus, this case comment on the judgement stives to critically analyses and establish the foundational nature of the case that has continued to shape the silhouettes of Refugee law while revealing the contemporary need for in inclusivity and legal clarity in the determination of refugee status.

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

CITATION [1993] 2 S. C. R. 689 DATE OF JUDGMENT June 30, 1993 COURT FEDERAL COURT OF APPEAL, CANADA APPELLANT Patrick Francis Ward RESPONDENT The Attorney General of Canada Judges: La Forest, Gérard V. ; L'Heureux-Dubé, Claire; Gonthier, BENCH Charles Doherty; Stevenson, William; Iacobucci, Frank FACTS OF THE CASE The appellant, Patrick Francis Ward, born in Northern Ireland in 1955, became a member of the Irish National Liberation Army (INLA) in 1983. He was convicted of possessing firearms, conspiring to transport items illegally into Northern Ireland, and aiding acts of terrorism. Ward testified that due to the ongoing conflict in Northern Ireland, individuals felt compelled to take action to protect their loved ones. He stated that his decision to join the INLA was influenced partly by a desire to safeguard himself and his family, particularly from the IRA.

Ward's initiation into the INLA involved guarding two hostages in a farmhouse in the Republic of Ireland. Shortly after beginning his duties, the INLA ordered the execution of the hostages. Despite the risks, Ward freed the captives without alerting his comrades. Suspicion fell on Ward when the police hinted at his involvement in the hostages' escape, leading to his confinement and torture by the INLA. Though he never confessed, Ward was court-martialed by a kangaroo Court was sentenced to death. However, he managed to escape, seeking refuge with the police, who, in turn, charged him based on evidence found at the farmhouse for his involvement in the hostage incident. Meanwhile, the INLA had taken Ward’s family hostage to stop him from cooperating with authorities. Ward later admitted to the forcible confinement, serving a prison term without betraying his former comrades.

Later on, concerned for his safety, he eventually reached Canada in 1985 and sought asylum. Despite initial denial, Ward's appeal for refugee status was granted after a reevaluation, recognizing the threat posed by his former association with the INLA. With respect to this, the respondent that is the Attorney General of Canada filed an application under section 3 of the Federal Court Act, R. S. C. 1970, to review and set aside the decision of the Board. On granting of the application, the decision was set aside and referred back to the board to be reconsidered. ISSUES INVOLVED

1. Whether State involvement is required to establish a refugee claim and the

unwillingness or inability of a claimant to seek the protection of their home State.

2. Whether the meaning of the term “Particular Social Group” would include Ward’s

claim.

3. Whether persecution for political opinion desertion from a politico‐military

organization for reasons of conscience be considered as a proper ground to claim refugee status.

4. Whether section 15 of the Charter is applicable.

5. Whether the claimant should establish a need for protection in all States where he holds

citizenship in case of multiple nationality. ARGUMENTS The Attorney General presented three main arguments in the appeal to the Federal Court of Appeal regarding Ward's refugee status. First, they argued that the Immigration and Refugee Board (IRB) failed to properly consider whether the Irish National Liberation Army (INLA) constituted a "particular social group" under the Immigration and Refugee Protection Act (IRPA). Second, they contended that the IRB wrongly concluded that state complicity was not necessary for persecution. Third, they claimed that the IRB made an error in determining Ward's countries of nationality.

REASONING The reasoning of the court with respect to the first issue centers on the definition of "persecution" within the framework of the Convention refugee status, particularly in situations involving non-state actors like the INLA, where the Government of Ireland isn't directly implicated. The Key issues revolve around whether persecution necessitates state involvement. The appellant asserted that persecution should be neutrally defined without requiring state involvement. They acknowledged a distinction between being "unable" and "unwilling", contending that unwillingness could relate back to persecution. Both the parties eventually agreed that the claimant's fear need not originate from the state and that a state's inability to protect is pivotal in determining refugee status. However, they disagreed on precisely when this inability becomes integral to the definition.

The Council for Refugees and the United Nations High Commissioner for Refugees supported the stance that a claimant must demonstrate their state's incapacity to protect them from non-governmental persecution. They emphasized that this requirement is implicit in the definition, irrespective of whether the claim is based on being "unable" or "unwilling" to seek state protection. Certain Canadian decisions and U. S. jurisprudence show the growing consensus that state complicity is not necessary. Firstly, in the case of Rajudeen v. Minister of Employment and Immigration (1984)2, the Federal Court of Appeal gave a ruling that persecution don’t have be solely by state agents, since the case involved a refugee claimant persecuted by non-state actors due to his religious beliefs, with the indifferentiable police behavior reinforcing the claimant's fear leading to him seeking protection.

Similarly, in Surujpal v. Minister of Employment and Immigration (1985)3, claimants persecuted for political reasons were denied police assistance. Though the phrase "police complicity" was noted, it was not intended to set a precedent; rather, it described the specific circumstances of the case. In the case of Zalzali v. Canada (Minister of Employment and Immigration) (1991)4 it was reinforced that if a state is unable to protect then it would constitute the state’s complicity in the persecution. Further, in the U. S. , McMullen v. Immigration and Naturalization Service (1981)5 case, the concept of persecution was expanded to include actions by non-governmental groups when the state is unable to control them, broadening the understanding of persecution beyond actions solely by state actors.

2 Rajudeen v. Minister of Employment and Immigration, (1984) 55 N.R. 129 (FCA)

3 Surujpal v. Minister of Employment and Immigration (1985), 60 N.R. 73

4 Zalzali v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 605

5 McMullen v. Immigration and Naturalization Service, 658 F.2d 1312 (1981)

Unable Or Unwilling The difference between both the terms ‘unable’ and ‘unwilling’ plays a major role in deciding complicity and in this case, initially, there's a clear differentiation between the terms ‘unable’ which suggests physical incapacity and ‘unwilling’ which indicates a voluntary decision not to seek protection. However, this distinction was blurred over time and with due examinations, it is to be noted that early drafts of refugee definitions linked "unwillingness" with claimants able to seek state protection, while "unable" was associated with stateless individuals. However, later revisions have led to the usage of the term "unable" for both nationals and stateless persons, blurring the distinction between them. In case of Zalzali, the Court of Appeal ruled in favor of a Lebanese national fearing persecution from non-state militias during the civil war.

Despite the persecutors not being state agents, the claimant was deemed a "refugee". The court affirmed that state complicity was necessary only under the term "unwilling" but not under "unable", as demonstrated by the collapse of the Lebanese government during the civil war. Finally, whether a claimant is "unable" or "unwilling" to seek state protection, state complicity in persecution becomes irrelevant. The crux lies in whether the claimant precludes resorting to state protection. If protection is denied that is unable, or if the claimant chooses not to approach the state due to fear that’s is unwilling, the state's involvement in persecution is not essential. Instead, the focus is on determining the existence of a fear of persecution.

Test for Determining Fear of Persecution The criteria for establishing a well-founded fear of persecution in refugee law can be drawn focusing on the bipartite test articulated by Heald J. A. in the Rajudeen case which was later reiterated in the case of Minister of Employment and Immigration v. Satiacum6. The test requires for the presence of a subjective fear and an objective justification for such a fear. With respect to the objective test, a claimant may establish a well-founded fear of persecution even if the official authorities are not directly involved in persecution, provided that they are unable or unwilling to offer adequate protection. Further if a claimant's fear is combined with evidence of the state’s inability to protect,

6 Minister of Employment and Immigration v. Satiacum (1989), 99 N.R. 171

there is a presumption that the fear is well-founded. However, this presumption must be balanced with the requirement for clear and convincing proof of the state's inability to protect, especially in cases where admission of such inability by state authorities is not available. Membership in a Particular Social Group In this case, the court analyzes whether Ward would meet the definition of a "Convention refugee" under the interpretation of "particular social group. " Although Ward's affiliation with the INLA is identified and described both as a "member of the INLA" and as "former member of the INLA" in the Court of Appeal, his fear stems from potential retaliation by the INLA due to his release of hostages and their concern that he might become a supergrass, that is a police informer, by revealing organization secrets.

The court concluded that Ward's fear is not solely based on his status as a former member of the INLA, as the possibility of persecution exists for both present and former members due to their knowledge of organization secrets. Thus, any subsequent disassociation from the group would not alleviate his fear, as it is a consequence of the persecution feared, not its foundation. The three-pronged test was used to determine if the member of INLA would come under the term particular social group. The three branches of the test includes that the group should be defined by an unchangeable characteristic, the group whose members voluntarily involve in it due to reasons that are fundamental to their dignity should not be forced to forsake that association and lastly the group associated by its earlier voluntary status should be unalterable due to its historical stability.

In examination with the test, it was established that Ward does not meet the definition of a Convention refugee under the interpretation of particular social group. The INLA members do not possess an innate or unalterable characteristic, making the third branch irrelevant. The group's political goals, including the use of violence, do not constitute a fundamental aspect of human dignity qualifying them as a particular social group. And finally, Ward's fear is deemed to be individualized rather than based on his group membership. While his affiliation with the INLA led to the circumstances causing his fear, the fear itself stems from his individual actions, not his group association.

Political Opinion The concept of political opinion as a basis for a well-founded fear of persecution in refugee law, was raised for the first time in the Supreme Court by the United Nations High Commissioner for Refugees in Ward's case. The court addressed the definition and application of political opinion as a ground for persecution. Political opinion is defined as persecution based on holding opinions contrary to or critical of government policies or ruling parties, with the aim of suppressing dissent perceived as a threat. This definition acknowledges situations where the persecutor may not be the government but an unrelated group opposed to it, yet targeting individuals for their political beliefs.

In Ward's case, his fear of persecution by the INLA stems from his act of releasing hostages, which can be imputed as a political opinion opposing the use of violence for political change. Regardless of Ward's overall sympathies towards the INLA's goals, his act marked him as a political traitor in the eyes of the organization. Thus, his fear of persecution is rooted in his political opinion as demonstrated by his actions. Granting Ward refugee status based on political opinion addressed concerns about allowing entry to those who dissent from any organization, as it requires dissent rooted in political conviction. This approach distinguishes political dissent from other forms of disagreement, ensuring a focused inquiry into the nature of the persecution.

Section 15 of the Charter7 The Canadian Council for Refugees, as an intervener, argues that the majority decision of the Federal Court of Appeal imposes two requirements that disproportionately affect historically disadvantaged groups like women and children, making it harder for them to obtain refugee status in Canada. These requirements are that social group activities must pose a potential danger to the state to qualify as a social group, and that state complicity must be present. However, the judge found this argument unconvincing and decided not to delve further into it because they have already found both aspects of the majority decision to be incorrect for other reasons. Therefore, there was no need to invoke section 15 of the Charter, which deals with equality rights.

7 Canadian Charter of Rights and Freedoms, s. 15.

Dual Nationality Ward, being a resident of Northern Ireland, effectively holds British citizenship according to the British Nationality Act 1981. His counsel admitted Ward's dual nationality during the oral hearing, eliminating the need to consider burden of proof. When assessing a refugee claimant with multiple nationalities, the Board must investigate whether the claimant is unable or unwilling to seek protection from each country of nationality. While inability to obtain protection from a second nationality can be established if the claimant has approached the state and been denied protection, the principles applied to the claimant's home state should generally extend to other nationalities. A presumption exists that citizenship carries certain basic rights, including the right to enter the country at any time.

However, evidence presented suggested that the British government can prohibit a national from entering Great Britain if they are involved in acts of terrorism connected with Northern Ireland. Such evidence may rebut the presumption of protection by demonstrating a lack of protection afforded by Great Britain. The applicability of this presumption and its rebuttal depends form case to case circumstances and must be determined by the Board.

JUDGMENT In accordance to the cases referred and provisions invoked, the reasoning that the court established concluded with the judgment stating that with regards to the reasons put forth, the appeal to set aside the order of the Federal Court of Appeal will be allowed and the case will be referred back to the Immigration and Refugee Board for an evaluation that is consistent with the reasons that the Appellant’s claim has forwarded in regards to his second Citizenship in Great Britain.

ANALYSIS

The Ward decision is a significant step forward in refugee law, particularly for its recognition of the responsibilities of a state towards its citizens. It expands the scope of state obligations with a broader understanding aligning with a more comprehensive view of human rights and state responsibility. One of the notable aspects of the Ward decision is its refusal to narrow the refugee definition, ensuring that certain individuals are not denied the availability to refugee protection by the reason that they are labeled as criminals. Instead, the decision uses a wide interpretation of the term "political opinion," acknowledging the diverse ways in which political views can manifest.

By intertwining the definition to anti-discrimination principles, the decision also removes some of the barriers that previously limited the interpretation of the category termed as particular social group. Furthermore, the content discusses the influence of Section 15 of the Canadian Charter of Rights and Freedoms on the interpretation of "particular social group. " Section 15 emphasizes equality and non-discrimination, relieving the victims of discrimination based on certain grounds. The jurisprudence surrounding this section has informed the approach to defining "particular social group," particularly by highlighting the theme of antidiscrimination. Although the court had not invoked or relied on this section, the fact that it was mentioned indicates the broader aspect of the interpretation of them term “particular social group.

” Irrespective of these meritorious aspects, there are concerning areas of ambiguity within the Ward decision should also be highlighted. One such area is the equivocation regarding the threshold at which state inability to protect its citizens becomes relevant in the refugee analysis. While the decision ultimately acknowledges the relevance of state inability, it departs from the international human rights regime's general focus on state responsibility for human rights violations. Another point of critique is the lack of clarity in defining "particular social group" and determining its parameters in specific cases. The content underscores the complexity of this task, citing examples such as the Mayers case, where the defined social group seemed repetitive and failed to adequately isolate risk factors for persecution.

This lack of clarity can lead to confusion and may result in overly restrictive interpretations of the refugee definition. The Ward decision missed the chance to establish clear grounds for defining the term particular social group. It proposed that the characteristics that are used to define the group should be in relation to the persecution that is feared, and the nature of persecution should not dictate the definition of the group. Additionally, the reliance on U. S. jurisprudence in the Ward decision, particularly in cases involving political opinion has to be appropriately noted and questioned since such reliance may be problematic due to the contextual differences between the two countries and the potential biases inherent in the foreign policy of the United States.

The Ward decision represents a significant advancement in refugee law, particularly recognizing the broad interpretation of the term particular social group. However, areas of ambiguity and concern remain, including the definition of social group and the reliance on foreign jurisprudence. Clarifying these issues would enhance the decision's effectiveness in ensuring fair and consistent refugee determinations.

CONCLUSION

The Ward decision not only represents progress in refugee jurisprudence but also establishes stronger connections between refugee law and emerging principles of human rights, particularly those related to anti-discrimination. While much of the judgment offers a framework for a compassionate and reasoned look into the determination of refugees, there are some aspects that raise concerns. Furthermore, Ward's alignment of the definition with antidiscrimination principles, particularly the Canadian Charter of Rights and Freedoms in its section 15, dismantles juridical constraints that previously limited the category termed as particular social group. By intertwining social group definitions to principles of equality and non-discrimination, Ward opens avenues for a more inclusive understanding of refugee claims, especially those involving gender-based persecution.

The future impact of the Ward decision will depend on how subsequent tribunals and courts develop, apply, and interpret its principles. REFERENCE

Supreme Court of Canada: https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do