The Supreme Court of Canada (SCC) recently granted leave to appeal in Febles v Canada (Minister of Citizenship and Immigration), 2012 FCA 324, a case involving a refugee claimant from Cuba. The SCC rarely grants leave in refugee cases.Febles examines inadmissibility and criminality. The certified question answered at the Federal Court of Appeal was:

When applying Article 1F(b) of the United Nations Convention relating to the Status of Refugees, is it relevant for the Refugee Protection Division of the Immigration and Refugee Board to consider the fact that the refugee claimant has been rehabilitated since the commission of the crime at issue?

The Federal Court of Appeal answered “No”. [1]

a) Febles v Canada (MCI): The Facts

Luis Alberto Hernandez Febles left Cuba in 1980 and was accepted by the United States (US) as a refugee because of his fear of persecution as a political dissent. In the US, Mr. Febles was twice convicted of assault with a deadly weapon. As a result of these convictions, he was subject to removal from the US after serving his sentences. Consequently, Mr. Febles entered Canada in October 2008 and claimed refugee status. During an interview with Canada Border Services Agency, he revealed his past criminal convictions. He was therefore referred to the Immigration and Refugee Board (IRB) for an inadmissibility hearing. He was found inadmissible because he had been convicted of an offense outside of Canada for which he could have been sentenced to a maximum of at least 10 years imprisonment if it had been committed in Canada.[2]

b) Febles v Canada (MCI): Relevant Law

Section 36(1) (b) of the Immigration and Refugee Protection Act (IRPA) applies to non-nationals and describes the circumstances in which they are inadmissible to Canada because of criminal convictions.[3] However, s. 36(3) (c) provides that persons to whom s. 36(1) (b) applies are not inadmissible if, after the prescribed period (5 years), they satisfy the Minister of Citizenship and Immigration that they have been rehabilitated.[4] Additionally, s. 98 of IRPA incorporates Article 1F (b) of the United Nations Convention relating to the Status of Refugees into Canadian legislation. Article 1F (b) provides that the Refugee Convention shall not apply to any person who has committed “a serious non-political crime outside of the country of refugee prior to his admission to that country as a refugee.”[5]

c) Interpreting Article 1F (b)

Febles argues that the purposes of Article 1F (b) are to prevent ordinary criminals from escaping local criminal justice by acquiring refugee status and to protect the public from dangerous convicted criminals. He claims that because he has served his sentences his is rehabilitated and that he does not pose a danger to Canadian society.[6] Alternatively, the Federal Court of Appeal held that “the seriousness of a crime is to be assessed as of the time of its commission; its seriousness does not change over time, depending on whether the claimant is subsequently rehabilitated and ceases to pose a danger to the public.”[7]

Febles also disagrees with the Court’s interpretation of how to apply Article 1F (b). While Febles argues that Article 1F (b) should primarily apply to refugee claims by fugitives from justice in another country, the Federal Court of Appeal points to the broad language of Article 1F (b) and states that when “Parliament has not expressly limited the application of the Article…Courts should normally avoid an interpretation of legislation that requires words to be read into it.”

The Court further pointed to recent case law from the European Court of Justice, which held that Article 1F (b) “does not require that a refugee claimant with a serious criminal conviction must also pose a present danger to the receiving state.”[8] It said that international law should be interpreted as uniformly as possible.

Finally, the Court found that there is “no inconsistency between a broad interpretation of Article 1F (b) and other provisions in IRPA dealing with criminality.”[9] It concluded that if Parliament intended to make rehabilitation relevant it would have done so.

d) Does Rehabilitation Influence the Meaning of ‘Serious’?

This case further hinges on two different interpretations of Jayasekara v Canada (Minister of Citizenship and Immigration), 2008 FCA 404, which is currently the leading case law in this area. In Jayasekara, Létourneau JA held that:

the seriousness of a crime, requires an evaluation of the elements of the crime, the mode of prosecution, the penalty prescribed, the facts and the mitigating and aggravating circumstances underlying the conviction…the presumption [of seriousness] may be rebutted by reference to the above factors. There is no balancing, however, with factors extraneous to the facts and circumstances underlying the conviction.[10]

In Febles, the Federal Court of Appeal upheld Jayasekara and emphasized that “an argument that a crime may be regarded as less serious years after its commission because the claimant is rehabilitated…would seem inconsistent with [Jayasekara]. Rehabilitation is indisputably a factor ‘extraneous to the facts and circumstances underlying the conviction’.”[11] Alternatively, Febles argued that Jayasekara allows for the length or completion of a sentence to be considered under Article 1F (b), and, therefore, rehabilitation is a relevant factor.[12]

e) Conclusion

Granting leave to Febles provides the SCC with an opportunity to revisit the nexus between inadmissibility and criminality in IRPA. It also provides the SCC with an opportunity to comment on international law in this area. While the Federal Court of Appeal has commented on this area in Jayasekara as well as in previous cases, this is the first time that the SCC has directly addressed the issue of rehabilitation and serious criminality.

 

[1] Febles v Canada (Minister of Citizenship and Immigration), 2012 FCA 324, at para 74, [Febles].

[2] Ibid at para 8.

[3] Immigration and Refugee Protection Act, SC 2001, c27.

[4] Ibid.

[5] United Nations Convention relating to the Status of Refugees, 28 July 1951, UNTS vol 189 (entered into force 22 April 1954).

[6] Supra note 1 at para 3.

[7] Ibid at para 52.

[8] Ibid at para 58.

[9] Ibid at para 73.

[10] Jayasekara v Canada (Minster of Citizenship and Immigration), 2008 FCA 404, at para 44.

[11] Supra note 1 at para 31.

[12] Supra note 1 at para 32-33.