Appeal Watch: “Serious” Non-Political Crimes and Refugee Protection in Febles v Canada
In late March of this year, the Supreme Court of Canada (SCC) held a hearing for Febles v Canada (Minister of Citizenship and Immigration). The case will determine how Article 1F(b) of the United Nations Convention relating to the Status of Refugees (the Convention), July 28, 1951,  Can. T.S. No 6 should be interpreted and applied in Canadian refugee law.
Article 1(F)(b) and s. 98 of the Immigration and Refugee Protection Act hold that persons who have been convicted of a serious non-political crime in another country before entering Canada are excluded from refugee protection. The purpose of this exclusion is to keep people who have committed serious crimes from bringing the asylum system into disrepute.
What is at issue is what constitutes a “serious” crime for the purposes of Article 1F(b). Because of the serious consequences of denying one from having his or her refugee protection claim heard, it is important that this exclusion is not applied arbitrarily, and a fair and clear test is implemented for its application.
The appellant, Luis Alberto Hernandez Febles, is from Cuba. He entered the United States in 1980, and received refugee status on the basis of political persecution. In 1984 and 1993, he was convicted in the United States for assault with a deadly weapon. and served prison time. Febles lost his refugee status as a result.
Febles entered Canada illegally in 2008 after serving his prison sentence, and subsequently filed for refugee status. During his eligibility interview with the Canada Border Services Agency, Febles voluntarily disclosed his criminal convictions in the United States.
The Immigration Division of the Immigration and Refugee Board (IRB) found Febles to be inadmissible and the Minister of Public Safety and Emergency Preparedness filed a notice of intervention arguing that Article 1F(b) excluded him from the convention refugee definition.
The Refugee Protection Division (RPD) of the IRB subsequently applied Article 1F(b), viewing Mr. Febles’s US convictions as serious non-political crimes.
At the Federal Court, Febles unsuccessfully argued that the purpose of Article 1F(b) is to prevent ordinary criminals from escaping criminal justice by acquiring refugee status, a position supported by the United Nations High Commissioner for Refugees (UNHCR) Guidelines on International Protection: Application of Exclusion Clause: Article 1F of the Convention relating to Refugees and the Handbook on Procedures and Criteria for determining Refugee status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees.
Essentially, the argument put forward by Febles was that, because he had already served his sentence and had shown signs of rehabilitation, he should not fall under the purview of Article 1F(b), and that the IRB had an obligation to consider whether he represented a present danger to the Canadian public.
The Federal Court and Federal Court of Appeal upheld the RPD’s decision, which was based on the fact that Febles’s second conviction could have been punished by a ten year sentence if it had been committed in Canada. This created a presumption that the crime was “serious” for the purposes of Article 1F(b). The Federal Court of Appeal relied on the decision in Jayasekara v Canada (Minister of Citizenship and Immigration), 2008 FCA 404, in which the Court held that those who have served their sentences are not excluded from the application of Article 1F(b).
On its face, Article 1F(b)’s purpose seems to be to protect receiving states from accepting “dangerous criminals” as refugees. However, it is troubling to imagine a refugee determination scheme that views all of those who have committed “serious” crimes as incapable of rehabilitation regardless of whether or not they have served their sentences.
In their factum, the Canadian Association of Refugee Lawyers, who acted as interveners in the Supreme Court hearing, argued that Canada’s approach to the definition of what constitutes a “serious” offence for the purposes of Article 1F(b) is overly broad. They submitted that this leads to the denial of refugee protection for persons who are deserving of protection, in spite of their past criminal convictions.
Given the current government’s law and order regime, it is unsurprising that the IRB’s utilization of Article 1F(b) has made the refugee protection scheme more restrictive. The SCC has, however, already cautioned the Federal Court of Appeal and the IRB against interpreting these types of exclusions too broadly.
In Ezokola v Canada (Minister of Citizenship and Immigration),  2 SCR 678, the SCC dealt with the interpretation of Article 1F(a), which excludes those who have committed or are complicit in the commission of crimes against peace, war crimes, and crimes against humanity from claiming refugee protection. In Ezokola, the SCC stated that refugee protection should not be denied on overly speculative and moralistic grounds, and firmly rejected the notion of guilt-by-association.
It will be interesting to see if the SCC is similarly cautious in determining how the exclusion for convictions of “serious” non-political crimes should be applied in Canada’s refugee protection regime. It seems overly simplistic to suggest that absolutely everybody who has committed a serious non-political crime before entering Canada is undeserving of refugee protection. Given the seriousness of the consequences associated with denying one from accessing Canada’s refugee determination system, it is important that the exclusion in Article 1F(b) is not applied in a binary fashion, but rather in accordance to the Article’s underlying purpose.