Chapter 14 - Persons in need of protection

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  1. 1​4.1. Introduction
  2. 14.2. Legislative framework
    1. Person in need of protection – IRPA, s. 97(1)(a) and (b)
  3. 14.3. s. 97(1) Elements that apply to both paragraphs (a) and (b)
    1. 14.3.1 Legal test for the degree of risk
    2. 14.3.2 Prospective risk
    3. 14.3.3 Claimant would be personally subject to the risk
    4. 14.3.4 No subjective fear component
  4. 14.4. Danger of torture – IRPA, s. 97(1)(A)
    1. 14.4.1. Harm feared – Torture
      1. 14.4.1.1 Intentional infliction of severe pain or suffering
      2. 14.4.1.2 Inflicted for a purpose
      3. 14.4.1.3 State involvement
      4. 14.4.1.4 Lawful sanctions exception
    2. 14.4.2. Torture claims often accepted under s. 96
    3. 14.4.3. Need to deal with s. 97(1)(a) if rejecting a claim
    4. 14.4.4. State protection may be relevant if state involvement is limited
    5. 14.4.5. Internal flight alternative
  5. 14.5. Risk to life, risk of cruel and unusual treatment or punishment – IRPA, s. 97(1)(b)
    1. 14.5.1. Harm feared – Risk to life, Cruel and unusual treatment or punishment
    2. 14.5.2. Conditions specifically applicable to s. 97(1)(b) risks
      1. 14.5.2.1. First condition - No state protection
      2. 14.5.2.2. Second condition – No IFA
      3. 14.5.2.3. Third condition - The risk is not faced generally
        1. 14.5.2.3.1. Confusion caused by imprecise wording
        2. 14.5.2.3.2. Two distinct, conjunctive elements
        3. 14.5.2.3.3. Assessing prospective risk before considering conditions
        4. 14.5.2.3.4. Individualized inquiry
        5. 14.5.2.3.5. Risk arising from criminal activity
        6. 14.5.2.3.6. Being “specifically” or “personally” targeted
        7. 14.5.2.3.7. The nature of a risk can change
        8. 14.5.2.3.8. Comparing the claimant’s risk
      4. 14.5.2.4 Fourth condition - Lawful sanctions
        1. 14.5.2.4.1. Punishment
        2. 14.5.2.4.2. Prison Conditions
        3. 14.5.2.4.3. Exit Laws
        4. 14.5.2.4.4. Military Service
      5. 14.5.2.5 Fifth condition - Inability to provide adequate health or medical care

14. Persons in need of protection

14.1. Introduction

Before the Immigration and Refugee Protection ActFootnote 1 (IRPA) came into force on June 28, 2002, a claim for refugee protection could only be made on the grounds in the United Nations 1951 Convention Relating to the Status of Refugees and the 1967 Protocol to that Convention (Refugee Convention). Those grounds are set out in section 96 of the IRPA and, if met, the person claiming protection is determined to be a “Convention refugee”.

With the enactment of the IRPA, the jurisdiction of the Immigration and Refugee Board was expanded to allow the Refugee Protection Division (RPD) Footnote 2 to grant protection based on two additional grounds set out in paragraphs 97(1)(a) and (b) of the IRPA: namely (a) danger of torture, and (b) risk to life or risk of cruel and unusual treatment or punishment. This chapter discusses those two grounds, either of which can be the basis for finding a claimant to be a “person in need of protection”.

“Consolidated grounds” is a term that has been used to refer to all the three grounds together - section 96, paragraph 97(1)(a), and paragraph 97(1)(b).Footnote 3

Under the IRPA, a claimant found to be a person in need of protection is granted the same rights as a Convention refugee. Those rights include the right of non-refoulement and the right to apply for permanent residence.

While the three grounds differ in a number of respects, they also have much in common. Previous chapters covering principles related to the country of reference (chapter 2), state protection (chapter 6), internal flight alternative (chapter 8), change of circumstances and compelling reasons (chapter 7), and the exclusion clauses (chapters 10 and 11) apply to refugee determination under all three grounds. This chapter focuses on those aspects of the two s. 97(1) grounds that set them apart from s. 96 and from each other.

14.2. Legislative framework

Person in need of protection – IRPA, s. 97(1)(a) and (b)​

Person in need of protection

97 (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally

(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or

(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if

(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,

(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,

(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and

(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.

14.3. s. 97(1) Elements that apply to both paragraphs (a) and (b)

14.3.1. Legal test for the degree of risk

The Federal Court of Appeal in LiFootnote 4 decided that the same legal test (degree of risk) applied to both paragraphs of s. 97(1), namely, it must be more likely than not that the risk would occur; i.e. the risk would occur on a balance of probabilities.

[28] … the test for the degree of danger of torture in paragraph 97(1)(a) is a balance of probabilities or more likely than not.

[39] … The degree of risk under paragraph 97(1)(b) is that the risk is more likely than not.

“Balance of probabilities” is a higher degree of proof than that used for assessing the degree of risk of harm under s. 96, where claimants must establish only a “serious possibility” or “reasonable chance” of being persecuted on return to their country.

14.3.2. Prospective risk

Just as it is under s. 96, refugee determination under s. 97(1) is concerned with assessing prospective risk.Footnote 5 The use of the conditional tense, “would subject” in s. 97(1) leaves no doubt that the risk to be assessed is prospective. Evidence of past experiences of torture or cruel and unusual treatment may be relevant in assessing whether or not a claimant would be at risk of similar harm if returned to their country, but is not required to claim protection. Nor would such past experience alone be sufficient to qualify a claimant as a person in need of protection.

14.3.3. Claimant would be personally subject to the risk

In addition, s. 97(1) specifies that the prospective risk must be one to which the claimant would be subject personally. It is important to remember that “personally” in s. 97(1) applies to both paragraphs a and b;it is not exclusive to the latter.

In order to find that a claimant would be subject personally to one of the risks covered by s. 97(1), there must be evidence to establish, on a balance of probabilities, that the particular claimant would be subject to the prospective risk of harm in question.

In Bouaouni,Footnote 6 the Federal Court held that evidence of a pattern of human rights abuses in a country was not, in itself, sufficient for a claim under section 97(1) to succeed because it did not show that any individual claimant would be personally at risk. Consequently, documentary evidence on country conditions describing generalized human rights violations is not sufficient to ground a claim, unless there is evidence linking it to the claimant’s specific situation.Footnote 7

The following cases offer additional insight as to the meaning of “personally”:

RazaFootnote 8: sections 96 and 97 require the risk to be personalized in that they require the risk to apply to the specific person making the claim. This is particularly apparent in the context of s. 97 which utilizes the word “personally”.

SarriaFootnote 9: s. 97 of the IRPA requires that the risk be personal to an applicant. Evidence of a murdered relative does not, without more, demonstrate risk to a specific claimant.

In LopezFootnote 10: the documentary evidence addressed only the risk faced by some young males in El Salvador. The applicants did not provide objective and reliable evidence of the risk faced by them, which is the starting point for the s. 97 analysis.

CorreaFootnote 11: To say that someone is “personally” subject to a risk means simply that they are at risk. The alleged risk is real.

14.3.4. No subjective fear component

Subjective fear relates to the presence of a fear of harm in the mind of the claimant. The assessment of such fear is often based on the claimant's behaviour, such as not leaving the country as soon as possible after the threatened harm, and whether such behaviour is compatible with the way a person would normally be expected to act, if that person truly believed they were at risk of imminent harm. (See Chapter 5 regarding subjective fear under s. 96.)

Unlike s. 96, where fear of persecution is an element of the Convention refugee definition, s. 97(1) does not refer to any “fear” of harm in relation to the enumerated risks. Moreover, the Federal Court of Appeal has clearly stated in obiter, in LiFootnote 12 and Sanchez,Footnote 13 that s. 97(1) does not incorporate a subjective component. Determinations under s. 97(1) require an objective assessment of ongoing or prospective risk, rather than an evaluation of the claimant's subjective fear.

However, while there is no distinct element of fear in s. 97(1), the subjective component can be relevant in both s. 96 and s. 97(1) when assessing the credibility of a claimant's allegation that a risk exists. In Sainnéus, the Court wrote that subjective fear is “first and foremost a question of credibility.”Footnote 14 It considered the behaviours used to assess subjective fear under s. 96 to be equally relevant to assessing credibility under s. 97(1). The Court found it unnecessary to rule on whether the Board had erred in finding no nexus to the Convention, saying, “Whether it is a question of section 96 or 97 of the Act, refugee claimants must be believed by the Board, which is not the case in this case for the specific reasons that were provided in the Board's decisions.”Footnote 15

More recently, in Louis,Footnote 16 the Court pointed out that the same elements used to analyze subjective fear are relevant in assessing the credibility of the existence of the alleged s. 97(1) risks:

[18] Although the RPD's analysis is similar to that which would be employed by a panel considering a Convention refugee's claim of subjective fear, it used this information in its assessment of Mr. Louis' credibility on the path to finding a lack of credibility and lack of proof of risk to return. It was, in my view, appropriate for the RPD to consider the risks alleged by Mr. Louis and consider them in conjunction with all of the other evidence in assessing his credibility. The factors used in the credibility assessment included his several returns to Haiti, the timing of his departure after the loss of his job, the confusion regarding the identity of the agent of persecution and the confusion surrounding the nature of Force 50, among others. The RPD effectively determined that Mr. Louis would not, on a balance of probabilities, be subjected to a danger of torture or face a risk to life or a risk of cruel and unusual treatment or punishment should he be returned to Haiti. This is the proper test under section 97 of the IRPA.

[19] In any claim for protection under section 97 of the IRPA, it is relevant to consider whether or not the risks alleged by the applicant exist in the country in question. In making that determination, it is relevant to consider the applicant's credibility, including his or her behaviour and their motivations for leaving a country.

Thus, whether the relevant ground for a claim is s. 96 or 97(1), unless the claimant provides a satisfactory explanation for behaviour considered incompatible with being fearful, that behaviour can undermine the claimant's credibility concerning the existence of any risk of harm. However, in s. 96 cases, conclusions based on incompatible behaviour can be framed either in terms of “subjective fear” or credibility, whereas in s. 97(1) cases, the conclusions drawn from incompatible behaviour should refer only to credibility.

Imprecise wording can result in a decision being overturned on review, as happened in the MamakFootnote 17 case:

The RPD made a finding of “no subjective fear” without indicating whether the finding applied to the s 96 issues or the s 97. If the finding related to s 96, it must be assessed as to reasonableness. If, on the other hand, it was germane to s 97, it is an error of law on the “face of the record” as subjective fear is not a determinative issue on a s 97 analysis. To the extent that the RPD conflated the section 96 and 97 tests, it committed a reviewable error (Barros v Canada (Minister of Citizenship and Immigration), 2013 FC 894 at para 20; Li v Canada (Minister of Citizenship and Immigration), 2005 FCA 1 at para 33). Further, if it was not made in respect of s 97, the RPD erred because it failed to give any consideration to s 97. The entirety of the decision is focused on the Applicant's subjective fear which is irrelevant to the s 97 determination. [emphasis added]

While credibility findings based on behaviour can point to an absence of risk, a careful assessment of ongoing or prospective risk should be undertaken to make sure there is no remaining objective risk that could support the claim. Thus, country conditions documentation or other evidence that can be linked to the claimant's particular circumstances may be sufficient to establish that a claimant meets the legal test under s. 97(1) despite credibility concerns.Footnote 18

However, where there is no objective evidence of risk to the claimant, credibility assessments based on behaviour can be determinative. MarkauskasFootnote 19 is an example of such a case. The Lithuanian claimant feared his former girlfriend's father, who was involved with an organization that trafficked in drugs. The girlfriend's father and the organization threatened the claimant's life when he refused to work for them. The RPD rejected the claim because of a lack of nexus under s. 96 and a lack of credibility. The claimant stayed in Lithuania for almost a year after his life was threatened, and after arriving in Canada, he waited a year before claiming protection. The Court upheld the RPD's decision with respect to s. 97(1). The Court held that because the delays were not adequately explained, it was reasonable for the Board to conclude that the claimant was not credible when he said he feared his former girlfriend's father and the mafia. That conclusion eliminated the only evidence of risk faced by the Applicant. Since there was no objective evidence of any other risk, the Board's decision was reasonable.

Thus, behavioural factors may be relevant when analyzing claims under s. 97(1) where such behaviours are inconsistent with the existence of a risk of harm. The Federal Court has upheld RPD decisions rejecting claims under s. 97(1) based on behavioural factors.

Examples of such behaviours and their effect on credibility can be found in the following cases:

  • In Borges,Footnote 20 the Court held, “The Applicant's failure to make a claim for 12 years while residing in the US completely undermines the threat alleged by the Applicant.”
  • In Dos Santos,Footnote 21 the Board rejected his claim, finding that he had state protection and he was not credible. The claimant lived in the U.S. for over a year but did not claim there. Deported back to Brazil, he stayed there for eight months before returning to the U.S. for another seven months, again without making a claim. Then he left for Canada. He did not file a claim for refugee protection until fifteen months later, and only after he was apprehended for a traffic violation. The Court considered that the Board had reasonably concluded that the claimant's behaviour coupled with the internal inconsistencies to his testimony undermined his credibility as well as the subjective basis for his fear of persecution . While the Court's refers to the subjective basis and persecution, it is clearly a s. 97(1)(b) case as it concerns a claimant allegedly fleeing a drug trafficking gang.
  • In Licao,Footnote 22 the Applicants feared extortion by the New People's Army. The RPD rejected the claim primarily on the basis of the Applicants' 2½ year delay in claiming protection.  The Board did not accept that a family who had left the Philippines because of fear for their lives as they described would take the chance that their visitor visas would be renewed on four occasions, prior to seeking refugee status. That is, “their conduct was inconsistent with that of persons exposed to the risk, experience and fear that they alleged.”
  • In Gutierrez,Footnote 23 the basis of the Applicant's claim dated back to the 1990s when the AUC, a Colombian paramilitary group, targeted his parents for extortion, threatening the family. His siblings left Colombia between 1997 and 1999 and his parents in 2006. The Applicant did not leave until September 2016. He arrived in Canada and made a claim for refugee protection in December 2016. The RPD rejected his claim based on delay in leaving and credibility. The Court considered that it was not unreasonable for the Board to find that the Applicant's remaining in Colombia for such a long period of time cast at least some doubt on whether he was ever threatened by the same group that had threatened his other family members.

14.4. Danger of torture – IRPA, s. 97(1)(a)

14.4.1. Harm feared – Torture

The term “torture” is defined in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture), which is set out in the Schedule to the IRPA. It reads as follows:

For the purposes of this Convention,

  • torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person
  • for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind,
  • when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
  • It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

The present chapter is intended to provide only a basic description and some practical pointers regarding the s. 97(1)(a) ground as it is a ground that members may seldom, if ever, use to accept a claim. It does, however, need to be dealt with, along with the other two grounds, when a claim is rejected.

14.4.1.1. Intentional infliction of severe pain or suffering

It is interesting to note that although the definition of torture is detailed, one of its basic elements, namely "severe pain or suffering", is not. Nonetheless, it is clear that only acts of a certain gravity can be considered torture. Acts causing severe physical pain or suffering are perhaps the most commonly recognized forms of torture and examples come easily to mind: electric shocks, beatings, suffocation, burns,sexual assault, prolonged denial of sleep.

Severe mental pain or suffering can be inflicted in various ways such as: creating fear in the victim that they will be killed or that reprisals will be taken against a spouse or children; forcing a person to witness events such as the execution or the torture of other detainees or of family members; or depriving a person of human contact through prolonged isolation.

A single act is sufficient to make a finding of torture; repeated infliction of severe pain or suffering is not required.

14.4.1.2. Inflicted for a purpose

Another characteristic of torture as defined in the Convention Against Torture (CAT), is that the torture must be inflicted for a purpose. The purposes set out in the CAT are: obtaining from the person or a third person information or a confession, punishing the person for an act they or a third person has committed or is suspected of having committed, or intimidating or coercing the person or a third person, or for any reason based on discrimination of any kind.

14.4.1.3. State involvement

The requirement of state involvement is met if a public official or other person acting in an official capacity is either directly or indirectly involved in the acts causing severe pain or suffering. However, when a public official commits acts for purely private reasons and completely outside the context of his or her position of authority, it may be concluded that they are not committing the acts as a public official, but merely as a private individual. Even in such a case, if the evidence shows that the state consents to or acquiescences in those "unofficial" acts, it is possible to conclude there is state involvement.

State acquiescence or consent may be inferred in various situations, including the state's failure to: (i) intervene when there are reasonable grounds to believe that an act of torture will be, or is being, committed; (ii) investigate when there are reasonable grounds to believe that an act of torture has been committed; or (iii) prosecute those responsible for such acts.

14.4.1.4. Lawful sanctions exception

The definition of torture specifically excludes pain or suffering arising only from, inherent in or incidental to lawful sanctions. The starting point in determining whether a sanction is lawful for the purposes of s. 97(1)(a), is assessing the legality of the sanction in the country of reference. A sanction that is not imposed or carried out in accordance with the laws of the country of reference, will not be considered "lawful". However, not all sanctions that are valid according to the legal norms of the country of reference would be considered lawful according to international standards.

Decisions of the Supreme Court interpreting section 2(b) of the Canadian Bill of Rights andsection 12 of the Canadian Charter of Rights and Freedoms (the Charter) provide guidance on assessing the lawfulness of a sanction. Both provisions prohibit cruel and unusual treatment or punishment. The Supreme Court has said that torture falls into the same category.Footnote 24

In SmithFootnote 25 and more recently in Latimer,Footnote 26 the Supreme Court considered whether the imposition of mandatory minimum sentences, under the Narcotic Control Act and the Criminal Code respectively, breached s. 12 of the Charter. In order to determine whether a punishment was cruel and unusual, the Supreme Court relied on the test established by Chief Justice Laskin in Miller and Cockriell,Footnote 27 namely “whether the punishment prescribed is so excessive as to outrage standards of decency."

In Smith, Justice Lamer stated that some treatments or punishments, such as corporal punishment, would always be grossly disproportionate and would always outrage standards of decency. He then went on to describe the elements of a "gross disproportionality" analysis. This would include consideration of not only the gravity of the offence, but also the personal characteristics of the offender and the particular circumstances of the case, in order to determine the range of sentences that would have been appropriate to punish, rehabilitate or deter the particular offender or protect the public.Footnote 28

Contrary to s. 97(1)(b), s. 97(1)(a) and Article 1 of the Convention Against Torture do not expressly require an assessment as to whether or not the sanction imposed respects accepted international standards. However, in the context of the IRPA, various factors militate towards considering international standards in evaluating the lawfulness of a sanction. Perhaps most persuasive is the argument that this approach would be consistent with that provided at s. 97(1)(b)(iii) for ill-treatment which is often similar, if not identical in severity to torture.

Madam Justice Mactavish in HarveyFootnote 29 explains why, in her view, despite considerable overlap between Canadian Charter guarantees and accepted international standards, not every violation of the Charter is necessarily contrary to accepted international standards:

[55] For example, in Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, the Supreme Court of Canada observed that “the Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified”: at para. 70 [the Court's emphasis]. The Court's use of the phrase “at least” signals that Canadian Charter protections may in some cases actually exceed those provided by international law.

14.4.2. Torture claims often accepted under s. 96

It is rare to see a claim accepted under s. 97(1)(a), because acts considered sufficiently severe to constitute torture may be also be qualified as persecution or as cruel and unusual treatment or punishment. In order for a claim to succeed, a refugee claimant need only establish that any one of the three grounds of protection applies. In almost all cases involving torture, the purpose for which it is inflicted can be related to one of the grounds of the refugee Convention and can therefore be accepted under s. 96, which has a less stringent legal test for the degree of risk of harm.

14.4.3. Need to deal with s. 97(1)(a) if rejecting a claim

Although a claim for refugee protection may be accepted without referring to s. 97(1)(a), all three grounds must fail before a claim can be rejected. In some cases, the same reasons for rejecting a claim (availability of state protection, IFA or lack of credibility) apply to all three grounds. When they do not, reasons for each ground must be provided.

In many cases, the s. 97(1)(a) ground can be ruled out because the acts alleged to be torture are not inflicted by, or at the instigation of, or with the consent or acquiescence of a public official or other person acting in an official capacity. However, in Selvarajah,Footnote 30 where there was evidence that state officials at times worked with, or acquiesced in the actions of the Karuna group, the facts alleged by the claimant raised a potential torture claim. The RPD erred by failing to provide reasons for not finding that the claimant would be personally subjected to a danger of torture under s. 97(1)(a). The RPD accepted that the claimant was at risk from the Karuna group because of his perceived wealth, but rejected his claim under s. 97(1)(b). It did not consider s. 97(1)(a). Justice Russell stated:

What we are left with is a finding that the Applicant was at risk from the Karuna group, and evidence that the Karuna group sometimes carries out torture (particularly of Tamil males) at the behest of or with the acquiescence of Sri Lankan authorities. Some justification is required for why this does not amount to a risk of torture that the Applicant realistically faces if returned to Sri Lanka. [emphasis added]

In another Sri Lankan caseFootnote 31 in which the possibility of torture was brought up at the hearing, the RPD was held to have erred because it addressed only the claimant’s risk of extortion under s. 97(1)(b). The RPD failed to conduct any substantive analysis as to whether there were substantial grounds to conclude that the claimant, who had visible scars and a history of detention, would be subjected to a danger of torture if returned to Sri Lanka, as is required by s. 97(1)(a).

14.4.4. State protection may be relevant if state involvement is limited

Unlike the Convention refugee definition and the risk to life or risk of cruel and unusual treatment or punishment ground, s. 97(1)(a) and Article 1 of the Convention Against Torture do not indicate that a person must be unable or unwilling to seek the protection of the country of reference. This may be explained by the fact that in all claims where a danger of torture is found to exist, the state is either directly or indirectly involved in the abuse.

Nonetheless, in claims where the involvement of the state is limited to only some of its agents or agencies, the availability and adequacy of state protection from other state agents or agencies should be considered at the time of the assessment of risk.

14.4.5. Internal flight alternative

As with the issue of state protection, although the legislation does not make it explicit that IFA applies to the torture ground, there are circumstances in which it could. The IFA concept was considered by the Committee Against Torture in Hayden v. Sweden, (CAT communication No. 101/1997). That case involved a Kurdish citizen of Turkey. There was evidence of widespread police torture in south-eastern Turkey, but also of integrated Kurds living in other parts of Turkey without problems. The CAT acknowledged IFA could apply, but rejected it based on the specific facts of the case.

IFA under s. 97(1)(a) is analyzed using the same two-pronged test as for s. 96, with some modification to the wording of the first prong to reflect the different harm (or risk) in question and the different legal test for the degree of risk:

1st prong : no danger of torture – on a balance of probabilities

2nd prong : must not be unreasonable in all the circumstances to relocate

14.5. Risk to life, risk of cruel and unusual treatment or punishment – IRPA, s. 97(1)(b)

Section 97(1)(b) covers persons who need protection because their lives would be at risk or because they would be subjected to cruel and unusual treatment or punishment in circumstances unrelated to a Convention ground. For example, a person targeted for death because of a blood feud arising from a land dispute would not be a Convention refugee because there is no nexus to a Convention ground, but could be recognized as a person in need of protection.

However, there are conditions attached to protection under s. 97(1)(b). If the conditions in s. 97(1)(b)(i) to (iv) are not met, even claimants who have established, on a balance of probabilities, that they would be personally subject to a risk to life or to a risk of cruel and unusual treatment or punishment do not qualify as persons in need of protection. These conditions will be discussed in greater detail below.

14.5.1. Harm feared – Risk to life, Cruel and unusual treatment or punishment

The Federal Court has not interpreted the meaning of the term “risk to life”, nor has it provided comprehensive guidance on the meaning of the term “cruel and unusual treatment or punishment” in the context of section 97(1) of the IRPA.

For s. 97(1)(b), unlike s. 97(1)(a), there is no requirement that the harm be carried out by the state or its agents, or that there be any state involvement at all. The agent of harm can be a private individual or a group of non-state actors.

For “risk to life” to be engaged, the harm faced by the claimant must constitute a real and serious threat to the claimant’s life. However, claimants are not required to establish the veracity of threats of killing by showing that there have been attempts to act upon them.Footnote 32

Mistreatment that is not sufficiently serious to constitute persecution would necessarily fall short of the higher threshold of harm required by section 97(1)(b). Discrimination does not generally constitute cruel and unusual treatment but in particular circumstances, it is possible for discrimination (for a non-Convention reason) to give rise to a risk to life.Footnote 33

On the specific facts of the cases in question, the Federal Court has held that the harm in the following circumstances did not meet the threshold of seriousness required to qualified as a risk to life or risk of cruel and unusual treatment or punishment:

  • mistreatment that does not rise to the level of persecutionFootnote 34
  • being slapped without threat of serious physical harmFootnote 35
  • detention for lengthy questioningFootnote 36
  • constant harassment of civilians at military checkpoints and excessive interventionsFootnote 37

The term “cruel and unusual treatment or punishment” has received very little attention from the Federal Court in the context of section 97(1)(b) of the IRPA. However, there is considerably more case law, even decisions of the Supreme Court, concerning section 12 of the Canadian Charter of Rights and Freedoms (Charter) which contains the same wording as section 97(1)(b): “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.” Although case law relating to section 12 of the Charter deals with punishment by the authorities, and not with mistreatment by private individuals, it can be useful in interpreting the concept of “cruel and unusual treatment or punishment”.

The governing principles to interpret whether a certain punishment offends s. 12 of the Charter come from the Supreme Court of Canada decision in R. v. Smith.Footnote 38 The standard to be applied in determining whether punishment is cruel and unusual is whether the punishment is so excessive as to outrage standards of decency and surpass all rational bounds of punishment. The test is one of proportionality: is the punishment grossly disproportionate to what would have been appropriate, given the gravity of the offence and the effect of the punishment on the particular offender? Regarding the meaning of s. 12 of the Charter the Court stated:

[55] … The test for review under s. 12 of the Charter is one of gross disproportionality, because it is aimed at punishments that are more than merely excessive. We should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation, and should leave to the usual sentencing appeal process the task of reviewing the fitness of a sentence. Section 12 will only be infringed where the sentence is so unfit having regard to the offence and the offender as to be grossly disproportionate.

[56] In assessing whether a sentence is grossly disproportionate, the court must first consider the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case in order to determine what range of sentences would have been appropriate to punish, rehabilitate or deter this particular offender or to protect the public from this particular offender…

At paragraph 57 of that case, Mr. Justice Lamer explains that there may be a number of reasons for which punishment would be considered grossly disproportionate. In addition, he gives examples of some kinds of treatment or punishment that will always fail the proportionality test and thus always be considered cruel and unusual:

[57] […] The effect of the sentence is often a composite of many factors and is not limited to the quantum or duration of the sentence but includes its nature and the conditions under which it is applied Sometimes by its length alone or by its very nature will the sentence be grossly disproportionate to the purpose sought. Sometimes it will be the result of the combination of factors which, when considered in isolation, would not in and of themselves amount to gross disproportionality. For example, twenty years for a first offence against property would be grossly disproportionate, but so would three months of imprisonment if the prison authorities decide it should be served in solitary confinement. Finally, I should add that some punishments or treatments will always be grossly disproportionate and will always outrage our standards of decency: for example, the infliction of corporal punishment, such as the lash, irrespective of the number of lashes imposed, or, to give examples of treatment, the lobotomisation of certain dangerous offenders or the castration of sexual offenders.

In Djebli,Footnote 39 a judicial review of a PRRA decision, the Applicant argued that the penalties for desertion under Algerian law were grossly disproportionate considering the nature of the offence, and that the PRRA officer should have considered whether such imprisonment constitutes cruel and unusual punishment. The Federal Court noted that the Applicant had not undertaken the analysis prescribed in R. v. SmithFootnote 40 in relation to section 12 of the Charter. In particular, the Court held that the Applicant had not provided any foundation for his argument that a sentence of imprisonment for desertion of a ship is so unfit, having regard to the offence and the offender, as to be grossly disproportionate.

14.5.2. Conditions specifically applicable to s. 97(1)(b) risks

As mentioned above, not everyone whose life is at risk or who would personally be subject to cruel and unusual treatment qualifies as a person in need of protection. This is due to the conditions listed in subparagraphs 97(1)(b)(i) to (iv).
There are five conditions set out in the four subparagraphs:

  • there must be no state protection available for the claimant [97(1)(b)(i)]
  • there must be no IFA available for the claimant [97(1)(b)(ii)]
  • the risk must not be “generalized”, i.e. faced generally by others in or from the claimant’s country [97(1)(b)(ii)]
  • the risk must not be inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards [97(1)(b)(iii)]
  • the risk must not be caused by the country’s inability to provide adequate health or medical care [97(1)(b)(iv)]

The first two conditions - the unavailability of state protection and IFA apply to all claims and the legal principles are the same for s. 97(1) as for s. 96. A claimant who would have adequate state protection or an IFA is neither a Convention refugee nor a person in need of protection.

The last three conditions however, apply in circumstances not present in every claim; whether any one of them needs to be considered will depend on the nature of the case.

These three conditions are sometimes referred to as the “generalized risk exception”, the “lawful sanctions exception” and the “medical exception”.

Of all the conditions, the one that has given rise to the most case law is the third condition that the risk must be one that is not faced generally by other individuals in or from that country. This involves an analysis of the precise nature of the risk at issue, the likelihood that the claimant would be subject to that risk, and, if so, whether the same risk is faced generally by others. The interpretation of this condition has raised numerous issues that will be examined in detail below.

14.5.2.1. First condition - No state protection

The relevant principles for analyzing state protection are the same whether the claim for refugee protection is made under s. 96 or s. 97(1). There is a presumption of state protection that can be rebutted by clear and convincing evidence of the state’s unwillingness or inability to provide adequate protection. For example, in Pjetracaj,Footnote 41 in which the Albanian claimant alleged his life was at risk because of a blood feud, the Federal Court upheld the RAD decision, confirming the RPD’s decision that Mr. Pjetracaj had failed to rebut the presumption of adequate state protection.

14.5.2.2. Second condition – No IFA

The Federal Court has accepted, without explicitly commenting on the question, that the same test developed by the Federal Court of Appeal in RasaratnamFootnote 42 for IFA analysis under s. 96 applies to s. 97(1). That test entails a consideration of two matters: (1) would the claimant be at risk in the IFA, and (2) is it reasonable for the claimant to relocate there? In Hamdan, the Court expressed the test for the first prong as follows:

[11] First, in the context of section 96 of the IRPA, the RPD must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which an IFA exists [citation omitted]. In the context of section 97, the corresponding test is that the RPD must be satisfied on a balance of probabilities that the claimant would not be personally subjected to a danger described in paragraph 97(1)(a), or to a risk described in paragraph 97(1)(b).Footnote 43 [emphasis added]

Moreover, the Federal Court has held that if the RPD concludes that there is an IFA under s. 96, that finding is also valid for s. 97(1).Footnote 44 The underlying premise for this appears to be that, under s. 97(1), the nature of the harm faced is narrower (risk to life, etc. as opposed to persecution), and the legal test for the degree of risk of harm is more stringent (balance of probabilities as opposed to serious possibility). Consequently, the s. 96 analysis would necessarily encompass an assessment of the potential risk faced under s. 97(1).

For a discussion of the issue of internal flight alternative in the Convention refugee context, see Chapter 8.

14.5.2.3. Third condition - The risk is not faced generally

This condition, often referred to as the “generalized risk exception,” most often comes into play when the claimant seeking protection is from a country where criminality is rampant.

14.5.2.3.1. Confusion caused by imprecise wording

This condition has generated a great deal of jurisprudence, much of it the result of deviating from the wording of the Act and replacing the longer wording of the negative condition in s. 97(1)(b)(ii)- “not faced generally by other individuals” - with a single adjective such as “personal”, “personalized”, “particularized”Footnote 45 or “individualized”. These efforts to simplify the terminology have led to some confusion.

When reading case law, it is not always clear in what sense the terms “personal” or “personalized” is being used. These terms are not used consistently. In some cases, “personal” or “personalized” risk may refer to the prospective risk to which a claimant would be “subject personally” as per the opening words of section 97(1).Footnote 46 In other cases, one of those same words, or even another, such as “particularized” or “individualized” is used to describe a risk that meets the condition in s. 97(1)(b)(ii) because it is not “faced generally”Footnote 47 – or in other words, it is the opposite of a generalized risk. The reader is left to rely on the context to try to understand the sense of terms that do not appear in the wording of the IRPA provision.

In a decision rendered in 2011,Footnote 48 Mr. Justice Zinn discusses the confusion caused by the use of imprecise language:

The majority of cases turn on […] whether the risk faced by the claimant is a risk faced generally by others in the country. I pause to observe that regrettably too many decisions of the RPD and of this Court use imprecise language in this regard. No doubt I too have been guilty of this. Specifically, many decisions state or imply that a generalized risk is not a personal risk. What is usually meant is that the claimant’s risk is one faced generally by others and thus the claimant does not meet the requirements of the Act. It is not meant that the claimant has no personal risk. [emphasis added]

14.5.2.3.2​. Two distinct, conjunctive elements

The condition in s. 97(1)(b)(ii) that the risk not be faced generally is not a reiteration of the requirement in s. 97(1) that the claimant would be “subject personally.” The presumption against tautologyFootnote 49 makes it clear that “personally” in the opening words of s. 97(1) is not synonymous with the condition in s. 97(1)(b)(ii) that the risk “not (be) faced generally”. Nor are the two elements mutually exclusive. Madam Justice Tremblay-Lamer in Prophète explained how the two can co-exist:

[18] […] the Court may be faced with applicant who has been targeted in the past and who may be targeted in the future but whose risk situation is similar to a segment of the larger population. Thus, the Court is faced with an individual who may have a personalized risk, but one that is shared by many other individuals.Footnote 50 [emphasis added]

The Federal Court of Appeal implicitly endorsed Justice Tremblay-Lamer's view by dismissing the appeal in Prophète and by emphasizing that two distinct elements need to be proven:

[3] To be a person in need of protection, the appellant had to show the Board, on a balance of probabilities, that his removal to Haiti would subject him personally, in every part of that country, to a risk to his life or to a risk of cruel and unusual treatment that is not faced generally by other individuals in or from Haiti.Footnote 51 [emphasis added - by the FCA]

Mr. Justice Crampton in ​Paz Guifarro clearly expressed the need to establish both of the two conjunctive elements:

[32] Given the conjunctive nature of the two elements contemplated by paragraph 97(1)(b)(ii), a person applying for protection under section 97 must demonstrate not only a likelihood of a personalized risk contemplated by that section, but also that such risk is not faced generally by other individuals in or from that country.”Footnote 52

One often-quoted passage from the Portillo decisionFootnote 53 seems to suggest that the two elements are not conjunctive, that they are mutually exclusive. The RPD, using the wording of s. 97(1), had accepted that the claimant was “subjected personally to a risk to his life”, but then rejected his claim because it found that his risk was generalized. Madam Justice Gleason rephrased the RPD's finding, writing “[T]he RPD held that the applicant faced a unique personalized risk of death but that this risk was a generalized one within the meaning of paragraph 97(1)(b)(ii) of IRPA.” Justice Gleason then went on to say that the RPD's interpretation of s. 97 of IRPA was both incorrect and unreasonable:

“It is simply untenable for the two statements of the Board to coexist: if an individual is subject to a personal risk to his life or risks cruel and unusual treatment or punishment, then that risk is no longer general.”Footnote 54

It is not clear whether “personal risk” in this citation refers to the RPD's conclusion expressed in the wording of s. 97(1), or to the “unique personalized risk of death” in Justice Gleason's reworded version of that conclusion. Although the statement is quoted by several judges in cases that followed, the reasoning in those cases shows that there are various approaches to defining what would, or would not, constitute a personal risk. There are cases that suggest a risk is no longer general and becomes personal once a person has been specifically targeted.Footnote 55 Specific targeting is discussed in 14.5.2.3.6 below. Other cases take issue with an older line of cases which adopted “consequential harm” reasoning, whereby a risk which at its origin is generalized does not subsequently become personal despite escalating threats and reprisals.Footnote 56 This now discredited line of reasoning is discussed in 14.5.2.3.7 below.

It must be noted that many cases that cite Justice Gleason's statement also cite and follow paragraphs 40–41 where she sets out a two-step analysis comprised of conjunctive elements:

[40] In my view, the essential starting point for the required analysis under section 97 of IRPA is to first appropriately determine the nature of the risk faced by the claimant. This requires an assessment of whether the claimant faces an ongoing or future risk (i.e. whether he or she continues to face a “personalized risk”), what the risk is, whether such risk is one of cruel and unusual treatment or punishment and the basis for the risk. (…)

[41] The next required step in the analysis under section 97 of IRPA, after the risk has been appropriately characterized, is the comparison of the correctly-described risk faced by the claimant to that faced by a significant group in the country to determine whether he risks are of the same nature and degree​. If the risk is not the same, then the claimant will be entitled to protection under section 97 of IRPA (….)Footnote 57

This analysis is clearly conjunctive.Footnote 58 Justice Gleason uses “personalized,” not “personal” in the first step to qualify the ongoing or future risk to which the claimant would be personally subject. Then, in the next step, that correctly-described personalized risk is compared to the risk that is faced generally. The analysis Justice Gleason sets out is a strong indication that when she wrote that a “personal” risk could not also be general, she was referring to an accurately characterized risk; and not to whether the claimant could be “subject personally” to a risk that was generalized.

14.5.2.3.3. Assessing prospective risk before considering conditions

In Guerrero,Footnote 59 Mr. Justice Zinn sets out the order to follow when analyzing a s. 97(1)(b) risk that may be faced generally:

It is important that a decision-maker finds that a claimant has a personal risk because if there is no personal risk to the claimant, then there is no need to do any further analysis of the claim; there is simply no risk. It is only after finding that there is a personal risk that a decision-maker must continue to consider whether that risk is one faced generally by the population. [emphasis added]

It is clear from the context that when he uses “personal risk”, he is referring to the risk to which the claimant would be subject personally. The prospective risk to which the claimant would be subject personally should be found to exist before considering whether it satisfies relevant conditions.

Madam Justice Gleason, first in Portillo and again in Ortega Arenas, set outs the same sequence for the analysis, so that determining whether the claimant would be subject personally to a prospective risk under s. 97(1)(b) comes before considering whether the same risk is faced generally by others:

[9] As I held in Portillo, section 97 of the IRPA mandates the following inquiry. First, the RPD must correctly characterize the nature of the risk faced by the claimant. This requires the Board to consider whether there is an ongoing future risk, and if so, whether the risk is one of cruel or unusual treatment or punishment. Most importantly, the Board must determine what precisely the risk is. Once this is done, the RPD must next compare the risk faced by the claimant to that faced by a significant group in the country to determine whether the risks are of the same nature and degree.Footnote 60 [emphasis added]

In Komaromi, the RPD followed this order of analysis. It began by considering whether there was evidence that the claimant would be facing a prospective personal risk. The RPD did not accept that the agent of harm who had threatened the lives of the claimant and his family would still be interested in the claimants. At the time of the hearing, several years had passed since Mr. Komaromi had left Hungary. It had also been several years since the agent of harm or his group last had contact with Mr. Komaromi or any members of his family although they knew where the family members lived. The Court held that the claim failed at the “first stage of the Portillo analysis,” as the applicants had “failed to establish an ongoing, particularized future risk.”Footnote 61

The passage of time, however, does not always rule out ongoing or prospective risk. In Callender, Madam Justice Elliott disagreed with the RPD’s finding that there was no risk to the claimant because it was implausible that the perpetrator of a murder would pursue the claimant more than 13 years after he witnessed the murder. She wrote, “It is far from self-evident that if an eye-witness to a murderer’s crime was alive and back in the country, it would be of no interest or concern to the murderer.”Footnote 62

14.5.2.3.4. Individualized inquiry

Prophète is the only case concerning subparagraph 97(1)(b)(ii) which has gone before the Federal Court of Appeal. In that case, the Court declined to answer the certified question in a factual vacuum, saying that each claim necessitated an individualized inquiry, taking into consideration the claimant’s evidence in the context of present and prospective risk.Footnote 63

As indicated in the cases above and in numerous others, before the two-step analysis can proceed, the risk must be correctly identified. Mischaracterization of the risk is the reason that many RPD decisions have been overturned. An individualized inquiry into a claimant’s personal circumstances is necessary to accurately identify the risk the claimant would be facing if returned to their country so that that risk can then be compared to risks faced generally by others in or from the same country.

Madam Justice Gagné explained the importance of considering evidence of the claimant’s specific circumstances:

[14] The RPD must answer the following question: whether in the context of the alleged present or prospective risks, the applicants provided evidence of their specific circumstances that would make their risk distinct from that of the general population given the widespread presence of gangs in their country.Footnote 64

Failing to take into consideration a claimant’s evidence of their specific situation is a reviewable error. This can happen in a number of ways; some will be described under this general subheading. Failure to conduct an individualized inquiry can be the root cause of error irrespective of whether cases are analyzed in terms of criminal activity, personal targeting or changes to the nature of the risk. Cases in each of these categories will be discussed in greater depth under the more specific subheadings that follow.

In Guerrero,Footnote 65 Mr. Justice Zinn found the RPD mischaracterized the risk the claimant was facing by disregarding relevant evidence. The Member did not refer to the risk to the claimant’s life despite evidence that his grandmother was killed when gang members were shooting at the house where the claimant was living, and evidence that the gang reportedly took out a contract on his life:

[29] […] The closest the decision-maker in this case comes to actually stating the risk she finds this applicant faces is the following: "[T]he harm feared by the claimant; that is criminality (recruitment to deliver drugs)...." But this is not the risk faced by the applicant. […] At best, the risk as described forms part of the reason for the risk to the applicant’s life. When one conflates the reason for the risk with the risk itself, one fails to properly conduct the individualized inquiry of the claim that is essential to a proper s. 97 analysis and determination. [emphasis added]

Similarly, in Aguilar,where the Board considered that the claimant’s life was threatened as the result of his resisting recruitment into the Maras, Madam Justice Strickland found that the Board had ignored significant evidence:

[40] […] the Board had no reason to doubt the Applicant’s evidence. That evidence established that the Applicant, a young man, was initially approached by the Maras asking for money, followed by an attempt to recruit him as a member. It also established the occurrence of a subsequent physical altercation and the reaction of the Maras, being to vow revenge for the injury the Applicant had inflicted on one of their own.

[41] Given this, I find that the Board misconstrued or misapprehended the Applicant’s evidence concerning the fight, minimizing the event itself by describing it as a stone throwing incident, and ignored the evidence that his life was threatened because of the injury he inflicted on the Maras member during that fight. The failure to appreciate and analyze this significant evidence, and the resultant change in the nature of the risk to life faced by the Applicant, resulted in an erroneous finding of fact made without regard to the evidence. It further resulted in an unreasonable finding as to the personalized risk to which the Applicant was exposed […].Footnote 66

Madam Justice Mactavish described a different type of error in Tomlinson.Footnote 67 This case is significant because it tells us that an individualized inquiry requires consideration not only of the nature of the risk but also of the degree of risk.

[18] The Board further erred in stating that what mattered was whether the risk faced by Mr. Tomlinson was “a type of risk that is also faced by a generality of others in Jamaica…” The question for determination was not just the type of risk faced but also the degree of risk. […][emphasis added]

In Balcorta Olvera,Footnote 68 Mr. Justice Shore gave an often-quoted example to illustrate what is meant by degree, or as it is sometimes called, “proximity” of risk: “The risks of those standing in the same vicinity as the gunman cannot be considered the same as the risks of those standing directly in front of him.”

However, the notion of degree or proximity is not limited to physical proximity; it can also refer to time. Comparing risk in terms of temporal proximity, Madam Justice Gleason wrote, “There is in this regard a fundamental difference between being targeted for death and the risk of perhaps being potentially so targeted at some point in the future.” She found that it was both incorrect and unreasonable to conflate the actual risk faced by the claimants with a potential risk that could eventually be faced generally by others in their country.Footnote 69

14.5.2.3.5. Risk arising from criminal activity

As observed by Mr. Justice Zinn in Mendoza, “In examining the nature of the risk, the question is not whether the risk amounts to being a victim of crime.”Footnote 70 As many judges have pointed out, the consequence of considering any risk created by criminal activity to be a risk which is faced “generally”, is that almost no claimant from a country with a high rate of criminality will be able to meet the requirements of s. 97(1)(b)​ and to acquire protection under that ground.Footnote 71 This is important because most cases where generalized risk is potentially a determinative issue concern claimants from countries where criminality is rampant.

In Correa, Mr. Justice Russell explained that the Court of Appeal was careful to avoid unduly narrowing or broadening the interpretation of s. 97(1)(b). For claimants from countries with a lot of criminality, if “criminality” is considered the risk, the condition would make protection under s. 97(1)(b) virtually unattainable. Conversely, if everyone who faced a prospective risk from criminals were found to be a person in need of protection, the condition would be rendered meaningless:

[50] In my view, careful attention should be paid to the reason the Court of Appeal (in Prophète) gave for declining to answer the certified question: it was concerned that doing so in the circumstances would unduly narrow or broaden the interpretation of s. 97(1)(b)(ii) as it applied to victims of criminal gangs. In view of this, I think it necessary to avoid both extremes in interpreting the provision. At one end of the spectrum this would mean emptying s. 97(1)(b) of any protection for victims of criminal gangs. At the other end would be an interpretation that is so broad that essentially all those with a real and personal risk related to these gangs qualify for protection. The latter may be more in line with Canada’s international human rights obligations, but, in my view, it cannot be reconciled with the language of s. 97(1)(b).Footnote 72

As indicated in Vivero, an individualized inquiry is required to make a determination under s. 97(1)(b):

[25] […] The fact that the risk faced by an applicant arises from criminal activity does not in itself mean that the risk is one faced generally by other individuals in the country - rather, each case must be assessed on its facts to determine if the requirements of section 97 are met, as some risks arising from criminal activity will constitute a general risk, and others will not.Footnote 73

It is instructive to contrast the decisions rendered in two cases, just one day apart, by the same judge, Mr. Justice Rennie. In both cases, the claimants were extorted by, and received death threats from criminal gangs and in both cases, the Board concluded that the applicants would not be subject to a risk not faced generally by others in their respective countries.

In Vivero, the Court upheld the Board’s decision rejecting the claim, finding no fault with Board’s analysis or its conclusion that the claimants had failed to establish that they would be subject to any prospective risk apart from the risk faced generally by other individuals:

[26] In this case, the Board did undertake in individualized inquiry and concluded that the prospective risk faced by the applicants was no more than the general risk faced by other individuals in Mexico. The Board based this conclusion on the finding that the Zetas did not appear to be continuing to search for the applicant, and therefore that gang did not present a continued threat.

[27] Because the Board did not accept the evidence that the Zetas would continue to pursue the applicant, the Board concluded that the future risk faced by the applicants was no more than the general risk of violence from criminal activity faced by all Mexicans. These findings were specific to the applicants’ circumstances, and they were reasonably open to the Board. The Court therefore has no basis to intervene.Footnote 74

It is interesting to note that the Court specifically made a point of explaining that the decision could be different for other victims of gang violence from Mexico, depending on their circumstances - another reminder of the importance of the individualized inquiry.

[30] In this case, the Board’s decision can be upheld, but not for the reason that citizens of Mexico are at a general risk of violence from criminal activity - a section 97 claim could potentially succeed based on a risk from gang violence in Mexico, depending on the circumstances. However, in this case the applicants’ circumstances were considered, and the Board reasonably concluded that they faced no more than a risk faced generally by others in Mexico.Footnote 75

In the Lovato decision rendered the next day,Justice Rennie reiterated basic principles governing the interpretation of s.97(1)(b)(ii), namely that “an individualized inquiry must be conducted in each case, and the fact that the risk to an applicant arises from criminal activity does not in itself foreclose the possibility of protection under section 97.”Footnote 76 He found that although the Board said it had undertaken an individualized inquiry, it failed to do so properly because of its misplaced focus on the reasons for which the claimant was being targeted. The Board identified those reasons as the same ones that motivate the MS to target any member of the Salvadoran population. The Court’s view was that the correct focus would have been “the evidence that the MS was specifically targeting the applicant to an extent beyond that experienced by the population at large.”Footnote 77 [emphasis added]

14.5.2.3.6. Being “specifically” or “personally” targeted

The case law is clear that victims of random crime do not qualify as persons in need of protection.Footnote 78 While threats and extortion cannot be considered “random” when a claimant has been targeted personally by a known adversary,Footnote 79 the case law has been less clear on whether a risk could still be qualified as generalized once a person has been specifically or personally targeted.Footnote 80

In April 2007, two years before the Federal Court of Appeal decision in Prophète spoke of the need for an individualized inquiry, Mr. Justice de Montigny overturned the RPD’s decision in the case of Martinez Pineda becausethe RPDfailed to consider the evidence that the claimant, who had been threatened and assaulted after being specifically targeted for recruitment by the Maras Salvatruchas gang, “was subjected to a greater risk than the risk faced by the population in general.”Footnote 81

Soon after Prophète was confirmed by the Federal Court of Appeal, Madam Justice Gauthier rendered her decision in Acosta. She made a clear reference to Prophète when she compared the risk of bus fare collectors in Honduras to wealthy businessmen in Haiti:

“It is no more unreasonable to find that a particular group that is targeted, be it bus fare collectors or other victims of extortion and who do not pay, faces generalised violence than to reach the same conclusion in respect of well known wealthy business men in Haiti who were clearly found to be at a heightened risk of facing the violence prevalent in that country.Footnote 82

Martinez Pineda and Acosta came to be known as the lead cases for what were widely considered two divergent lines of authority. Mr. Justice Shore described the essential difference in their approaches:

[37] The jurisprudence is less settled, however, on whether persons personally targeted by criminal gangs face a generalized risk. One strand holds that claimants who have been specifically targeted face general risk if most of their countrymen (or a subgroup to which they belong) experience that risk generally (Acosta, above). The other is of the opinion that it is unreasonable to accept that a claimant has been specifically targeted and yet, nevertheless, to conclude that the risk is not personal simply because it is widespread in his or her country (Pineda, above).Footnote 83

Not all judges believed that there were two approaches to cases involving personal targeting. They ascribed different outcomes in ostensibly similar cases to the particular facts of each case. In Vivero,Footnote 84 Mr. Justice Rennie stated plainly that in his view there was no divergence, that “differences in the outcomes of section 97 cases stem[med] from the need for an individualized inquiry in each case.” In another case two months later, Mr. Justice Mosley refused to certify a question, writing that the “supposed divergence” arose from the varying circumstances in particular cases.Footnote 85

In 2014, Mr. Justice Russell conducted an exhaustive analysis of the case law and came to the same conclusion about personal targeting that he had expressed in an earlier decision:Footnote 86

[45] In my view, the differences between these two lines of cases arise both from different facts and different approaches to interpreting and applying the language of s. 97(1)(b)(ii). I agree with Justice Gleason that whether or not personal targeting is found to have occurred has been an important and even decisive factor in many cases, but there have also been cases where a denial of the claim has been upheld despite a finding of personal targeting or circumstances that clearly demonstrate it. […]

[46] While a full consensus has yet to emerge, I think that there is now a preponderance of authority from this Court that personal targeting, at least in many instances, distinguishes an individualized risk from a generalized risk, resulting in protection under s. 97(1)(b). Since “personal targeting” is not a precise term, and each case has its own unique facts, it may still be the case that “in some cases, personal targeting can ground protection, and in some it cannot” (Rodriguez, 2012 FC 11, at para 105 quoted with approval in Arvevalo Pineda, 2012 FC 493.) […]Footnote 87

To summarize, specific or personal targeting, though it often does, does not systematically provide a basis for protection under s. 97. Concerning specific and personal targeting, Mr. Justice Zinn wrote in Guerrero:

[34] […] This is not to say that persons who face the same or even a heightened risk as others face of random or indiscriminate violence from gangs are eligible for protection. However, where a person is specifically and personally targeted for death by a gang in circumstances where others are generally not , then he or she is entitled to protection under s. 97 of the Act if the other statutory requirements are met.Footnote 88 [emphasis added]

It is important to note the qualifiers. “If the other statutory requirements are met” makes it clear that specific and personal targeting alone is not sufficient, the two-step analysis must still be carried out. “In circumstances where others are generally not” refers to the need for an individualized inquiry in the analysis.

Regarding prospective personal risk under s. 97(1)(b), past targeting may be indicative of the likelihood of future risk, but not necessarily. As the Court held in Flores, it is not sufficient for claimants to establish that they were targeted before leaving their country, what they must show is that they risk being targeted if they return to that country. In other words, they must show that their risk is prospective,Footnote 89 as required by s. 97(1).

The claimant’s precisely-defined prospective risk then has to be compared to the risk faced generally by others in or from the country. Even victims who are known to, and specifically sought out by the agent of harm, may face a risk that is no different in nature or degree than the risk faced generally by others. This must be assessed in light of the context and particular circumstances of each claimant, to see whether the condition in s. 97(1)(b)(ii) is met.

Though personal targeting is not determinative of whether a risk is generalized, it is nonetheless a relevant factor to consider. In Tomlinson, Madam Justice MacTavish firmly rejected the Board’s finding that “[t]he fact that this claimant has been specifically and personally targeted by the gang is irrelevant to the determination of whether the risk that he faces at their hands is generalized,” stating:

[17] The fact that [the] gang had specifically and personally targeted Mr. Tomlinson was clearly not irrelevant to the determination of whether the risk that he faced was personalized or generalized. Indeed, it is precisely the type of consideration that the Board must take into account in carrying out the individualized inquiry mandated by the Federal Court of Appeal in Prophète. The Board thus erred in failing to properly consider this important fact in its section 97 analysis.Footnote 90 [emphasis added]

Another aspect of targeting mentioned in a number of cases is the significance of the reasons for which a person is targeted. Mr. Justice Russell explains in Correa that the reasons may be related to some characteristic of the person targeted, or to the motivation of the person doing the targeting. However, irrespective of the reason a person has been targeted, it is the present and prospective risk that must be assessed:

[56] […] Someone may be initially targeted for extortion because he/she is a shopkeeper, but that is irrelevant to the risk faced now and in the future except to the extent that it provides clues to the nature and extent of the threat objectively considered. It does not matter what personal characteristic of the victim prompted the perpetrator to target them (e.g. youth, perceived wealth or ownership of a business) or what motivates the perpetrator to target anyone in the first place (e.g. increasing wealth through extortion or acquiring “drug mules” through forced recruitment).

[57] The analysis under s. 97 is objective and forward looking. We should not be concerned with what is in the mind of the perpetrator, except to the degree it assists with that analysis. It may well play a role in that sense: if a gang always kills those who report them to police, it will be quite relevant to a risk analysis that this is the “reason” the gang is currently targeting an applicant.Footnote 91

In Komaromi, Mr. Justice Norris warned against conflating the reason for targeting with the risk:

[26] […] In Correa, as in some other cases under section 97, the reviewable error arose from the RPD conflating the reason for targeting with the risk itself (at paras 93-94). Thus, in the case of, say, a business person who had been targeted for extortion, it would be an error for the RPD to find that the risk was generalized because business people generally are targeted for extortion without considering the particular manner in which the claimant had been targeted in the past and whether it gave rise to an ongoing future risk to the claimant personally as compared to others.Footnote 92 [emphasis added]

The cases that warn against conflating the “reason for targeting” with the risk itself are usually referring to the motivation of criminals who target victims for financial gain or for the acquisition of new recruits.Footnote 93 And although in many countries the original risk of extortion or attempted recruitment would be generalized, a careful analysis of the claimant’s evidence may show that they are not the risks against which the claimant is seeking protection. As will be discussed in the next section, the nature of the risk can change.

When the reason for targeting relates to a personal characteristic of the person targeted, it is likely to be a relevant consideration for the individualized inquiry into that person’s risk. For example, in Ponce Uribe, the reason the Ponce Uribe brothers were targeted was because they ran a business located in premises which suited the particular needs of Los Zetas’ drug operations. The risk they faced if they refused to allow Los Zetas to use the premises was the murder of family members. Mr. Justice Harrington found the RPD’s decision that their risk was generalized to be unreasonable due to an inadequate analysis of the Ponce Uribes’ personal situation. “This is not simply a case in which the Ponce Uribe brothers were targeted because they ran a business. They were targeted because they ran a particular business [….]”Footnote 94

In Barrios Pineda, Madam Justice Snider distinguished between the situation of a doctor who was targeted because he was perceived to have “ratted out” an MS-18 gang member, as opposed to the situation of victims of gangs who were not targeted for any reason personal to them :

[13] In virtually all of the cases cited by the Respondent, the applicants were not targeted personally per se. While the gangs may have known their names, their personal information, and may have even threatened them or assaulted them on a number of occasions, the nature of the threat was still generalized. The gang could have gone after anyone with perceived wealth, or any young person who may be recruited into their gang. These people were essentially means to an end for the gang members. I doubt that it really mattered whether person A or person B gave the gang the money for which they were searching, even if both parties were personally threatened. Similarly, I doubt that it really mattered whether person C or person D joined their cause, provided that they continued to increase their membership. The situation before me is fundamentally different. The Applicant presented a story to the Board of being at risk because he was perceived to be a person who “ratted out” an individual gang member.Footnote 95 [emphasis added]

Although the reason for targeting a person may be a factor in the individualized inquiry, it is the present and prospective risk that must be precisely identified and assessed, in accordance with the principles discussed below.

14.5.2.3.7. The nature of a risk can change

It is essential to keep in mind that the specific risk to be identified and later compared to the risk generally faced by others is the prospective risk to which the claimant would be personally subject. The nature of a risk faced by a claimant can, and often does, change.

In countries where crime is rampant, the risks, such as extortion, that a claimant initially experiences can often be characterized as risks that are faced generally. However, when the threats and violence escalate in response to a claimant's failure to comply with demands, it is the new risk (often death) the claimant would be facing that must be assessed.

At one time, there were some cases that characterized the carrying out of threats, or reprisals for failure to comply with demands, as “consequential harm” or “resulting risk.”Footnote 96 The reasoning in these cases was that if the risks stemmed from generalized risks such as extortion or forced recruitment, they were part and parcel of the original generalized risk.

For example, regarding reprisals for reporting extortion to the police, Mr. Justice Rennie stated in Flores Romero:

[18] Counsel, creatively, argues that the fact that the applicant sought to resist the extortion by reporting it to the police makes him unique, or brings him within a unique or discreet sub-group of the general population and hence within subsection 97(1)(b)(ii). In my view, the risk or threat of reprisal cannot be parsed or severed from the demand for payment. The act of criminality is established on the demand of payment and implicit or explicit threat of reprisal for failure to pay. The fact that the threat is implemented or the victim reports the extortion does not bring them outside of the operative words of subsection 97(1)(b)(ii), namely whether the threat they face is generalized. Footnote 97 [emphasis added]

Madam Justice Simpson agreed with similar reasoning in Wilson, a case in which the claimant was shot after he refused to meet gang members' demands for protection payments. The RPD determined that the claimant feared generalized crime and violence in Jamaica, holding that the shooting and subsequent threats of violence were “part and parcel” of the gang's criminal extortion business rather than a personal vendetta against the claimant. The Court accepted the Respondent's submission that “the [claimant's] refusal to pay the gang members and their subsequent violence is part of the ongoing criminal act of extortion, since anyone who refuses to pay is subject to reprisals.”Footnote 98

In March 2014, Mr. Justice Russell signalled the end of this line of cases when he spoke of an emerging consensus that it is an error to dismiss risks as “merely extensions of,” “implicit in” or “consequential harm resulting from” an initial risk that was generalized:

“It is an error to dismiss reprisals or the carrying out of threats as merely “consequential harm” or “resulting risk” stemming from the initial risk of extortion or forced recruitment.Footnote 99 [emphasis added]

Two months later, Mr. Justice de Montigny endorsed the principle in this paragraph as a “complete answer” to the Respondent's argument that the fact that criminals may act on their threats when people refuse to pay extortionists does not bring them outside of a generalized risk.Footnote 100

Without referring to the cases expressing Justice Russell's view,Footnote 101 the Court the following year in Galeas,Footnote 102 rejected the reasoning in Wilson. The claimant argued that the Board had erred by characterizing the risk he faced as a generalized risk of extortion due to his perceived wealth. He maintained that Board had failed in its obligation to examine whether the general risk he faced from criminality had escalated to a personal risk in light of his specific circumstances. The Respondent cited Wilson as supportfor the proposition that the threats and violence against the claimant after he refused to pay were part of the ongoing criminal act of extortion, since anyone who refused to pay was subject to reprisals. Mr. Justice O'Keefe rejected the Respondent's argument, finding that the Board's characterization of the risk faced by the claimant was unreasonable; the claimant's risk had escalated from a generalized risk to a personalized risk when the gang made threats against his children and caused the death of his brother.

14.5.2.3.8. Comparing the claimant’s risk

As Madam Justice Gleason wrote in Ortega Arenas,once the precise prospective risk facing the claimant has been established and it qualifies as a risk under s. 97(1)(b), then the next step is to compare that risk to the risk faced generally by others in or from the same country:

[9] As I held in Portillo, section 97 of the IRPA mandates the following inquiry. First, the RPD must correctly characterize the nature of the risk faced by the claimant. This requires the Board to consider whether there is an ongoing future risk, and if so, whether the risk is one of cruel or unusual treatment or punishment. Most importantly, the Board must determine what precisely the risk is. Once this is done, the RPD must next compare the risk faced by the claimant to that faced by a significant group in the country to determine whether the risks are of the same nature and degree.Footnote 103

In Osario the Court considered whether "faced generally" required the entire population of a country to be facing the risk. In Osario, Madam Justice Snider stated:

[24] It seems to me that common sense must determine the meaning of s. 97(1)(b)(ii) […]

[26] Further, I can see nothing in s. 97(1)(b)(ii) that requires the Board to interpret "generally" as applying to all citizens. The word "generally" is commonly used to mean "prevalent" or "wide-spread". Parliament deliberately chose to include the word "generally" in s. 97(1)(b)(ii), thereby leaving to the Board the issue of deciding whether a particular group meets the definition. Provided that its conclusion is reasonable, as it is here, I see no need to intervene.Footnote 104

In InnocentFootnote 105 and again in Batalla Rodriguez,Footnote 106 the Court rejected the Applicants' arguments that the Osario interpretation was wrong and that "generally" was meant to refer to the entire population of the country of reference.

It is thus clear that a risk experienced by only a part of the population of a country is considered generalized if the subgroup is large enough that the risk posed to its members can be said to be widespread or prevalent. However, case law provides little guidance as to how many members are required to constitute a significant group. Some guidance is provided by Mr. Justice Crampton in Paz Guifarro:

[33] […] In my view, a subgroup of such persons numbering in the thousands would be sufficiently large as to render the risk they face widespread or prevalent in their home country, and therefore "general" within the meaning of paragraph 97(1)(b)(ii), even though that subgroup may only constitute a small percentage of the general population in that country.Footnote 107

Examples from case law of subgroups for the purposes of s. 97(1)(b)(ii) include: business people such as shopkeepers;Footnote 108 bus drivers and fare collectors;Footnote 109 delivery drivers and transportation business operators;Footnote 110 the Haitian diaspora or Haitian returnees;Footnote 111 parents who fear their children might be kidnapped;Footnote 112 and young men subject to gang recruitment.Footnote 113

While a person claiming protection under s. 96 can establish a serious possibility of persecution by showing that similarly situated individuals have been or are persecuted,Footnote 114 under s. 97(1)(b), the treatment of others belonging to the same subgroup as the claimant cannot be used to prove that on a balance of probabilities, that claimant would personally be subject to a risk to life or to cruel and unusual treatment or punishment.Footnote 115

In many of the cases that come before the Board, the claimant (or appellant at the RAD) is a member of a subgroup that is targeted more frequently than the general population in the country. For example, subgroups of persons perceived to be wealthy or to have ready access to cash are more likely than others to be the victims of extortionists or kidnappers for ransom. However, s. 97(1) is concerned exclusively with the personal risk of an individual claimant. Where the claimant is considered to be a member of a subgroup, the condition in s. 97(1)(b)(ii) calls for the comparison of that individual claimant's risk vis-à-vis the risk facing others within the same subgroup. Mr. Justice Russell in Correa cautioned against what he called "subgroup analysis":

It is an error to treat the s. 97(1)(b) analysis as a "sub-group" analysis rather than an individualized assessment. The point is not to identify what "sub-group the applicant belongs to and then assess the risk faced by that subgroup, but to assess the risk faced by the applicant and then determine whether it is one "faced generally by individuals in and from" the country in question.Footnote 116

Thus, when the claimant can be considered a member of a subgroup, the question is not whether the subgroup faces a heightened risk but whether the prospective risk faced by the claimant can be distinguished from risk faced generally. This distinction between a heightened risk for a subgroup, as opposed to the risk for an individual within the subgroup can be seen in Acosta, where the Court found it reasonable to conclude that the claimant, a bus fare collector in Honduras, was facing a generalized risk. The documentary evidence confirmed that bus fare collectors were frequently subject to extortion by the MS gang and to the violence that resulted from not paying. The Court considered the claimant's situation analogous to that of a successful businessman in Haiti where persons who were perceived as wealthy were members of a subgroup at heightened risk:

It is no more unreasonable to find that a particular group that is targeted, be it bus fare collectors or other victims of extortion and who do not pay, faces generalised violence than to reach the same conclusion in respect of well known wealthy business men in Haiti who were clearly found to be at a heightened risk of facing the violence prevalent in that country.Footnote 117

An individual claimant's risk, however, may be distinguished from risk faced generally on the basis of its greater, or heightened, degree.Footnote 118 In Romero Aguilar,Footnote 119 the Board member found the claimant's allegations of extortion and death threats were credible but rejected his claim, saying that he was guided by the Court to find that even a heightened risk was generalized and therefore came under the exception in s. 97(1)(b)(ii). Mr. Justice Zinn identified two errors in the member's analysis: first, his failure to precisely identify the risk facing the claimant by making no mention of the reason the gang was so determined to kill him; and second, his misapprehension concerning heightened risk, believing that it was always generalized:

[9] This Court has not held that all heightened risks due to targeting are still generalized risks; it has held that heightened risks due to targeting may still be generalized if, based on the documentary evidence, that heightened risk is one a sufficiently large number of individuals face. Indeed, this Court could not make such a pronouncement. Deciding the issue of whether a heightened risk is faced by a large enough number of individuals in any given country involves, first, an assessment of the facts unique to each case and each country.

[11] As a result of its error, the Board never engages with any of the documentary evidence about Mexico to assess how many individuals are facing the kind of risk it seems to accept is facing Mr. Aguilar. It may be that a sufficiently large number of Mexicans face this kind of imminent and targeted risk of death or harm by criminals for the reason that the Applicant here does such that it is a risk generally faced by others, but that determination involves first a determination of fact based on the documentary evidence about Mexico which the Board must make. That factual determination cannot simply be taken for granted based on what is no more than a simple proposition that a heightened risk may still be a generalized risk. It may, or it may not be. [emphasis added]

Comparing a claimant's risk to the risk faced generally, involves looking for a difference in the nature or the degree of the risk. In the sections above, there are many examples of cases where the failure to conduct an individualized inquiry resulted in overlooking significant differences. Evidence that a claimant's specific circumstances differ from those of the general population or others in their subgroup, has been considered to affect the "nature" of the risk faced by the claimant. In other cases it is the "degree" of risk, its proximity, that differentiates a claimant's risk from the risk faced generally.

Here are a few more examples of cases in which the Court found that the claimant's risk was distinguishable from the risk faced generally:

RichardsFootnote 120 is a case where the Minister sought review of the Board's finding that the nature of the claimant's risk to life was not shared by other Jamaicans. Mr. Richards had been labelled a "rat" and was targeted for retaliation in Jamaica after testifying against criminals in Canada. The Court stated:

[24] The respondent's situation is also, I believe, distinct from that of others in the general population in Jamaica who are at risk of generalized crime and violence: he was a key Crown witness contributing to the conviction and sentencing of two men, originally from Jamaica, for a revenge murder. News of Mr. Richards' participation in the trial had spread very quickly to Jamaica; his relatives had been wounded and in one case killed in a shooting which may have been connected to the threats he had been receiving. He himself had been shot at and threatened after being removed to Jamaica. These factors made his risk a personalized one and the Board's finding to that effect was not unreasonable or erroneous in law.

In Aguilar Zacarias,Footnote 121 the claimant was a vendor in a market where the MS gang was extorting money from the vendors. The Board found that the claimant's risk was generalized, as he was part of a category of people who were regularly targeted by street gangs. The Court held that the Board erred by failing to take into account that the claimant, along with Mr. Vicente, a fellow vendor, warned the market's security service, who in turn informed the police of the ongoing extortion by gang members, resulting in the arrest of one of them. During his detention, other gang members informed the claimant and Mr. Vicente that they knew who was at the source of the complaint and they made threats to the vendors' lives. During a confrontation with gang members, Mr. Vicente was shot and died from his wounds. Mr. Justice Simon Noël wrote:

[17] […] It appears that the Applicant was not targeted in the same manner as any other vendor in the market: reprisal was sought because he had collaborated with authorities, refused to comply with the gang's requests and knew of the circumstances of Mr. Vicente's death.

In Dieujuste-Phanor,Footnote 122 the applicants feared harm at the hands of men who accused the principal applicant, a nurse, of failing to admit a patient into her hospital and threatened revenge. Her children, the minor applicants, were kidnapped but released when their parents paid the ransom demanded. The principal applicant also feared the kidnappers' threats to kill her. The RPD defined the risk faced by the applicants as a "risk of kidnapping," and rejected the claim on the basis that kidnapping was a risk faced generally by other individuals in Haiti. The Court found that the RPD did not fully analyse either the principal applicant's evidence that the kidnappers had threatened her as a result of the incident at the hospital and because she had reported the kidnapping to the police; or her husband's evidence that he was repeatedly threatened by individuals looking for the principal applicant after she and her two children had left Haiti. Consequently, it failed to appreciate that the applicants were not targeted in the same manner as any other person in Haiti.

In Garcia Vasquez,Footnote 123 a young man from El Salvador was originally targeted by a criminal gang for recruitment. After joining an anti-gang military task force, he was assaulted and threatened with death in retaliation for his part in apprehending gang members. The Federal Court found this latter risk was not faced by other young men in the armed forces or in the population at large.

In Alvarez Castaneda,Footnote 124 a shop owner from Honduras was beaten and shot and left for dead after he was unable to make extortion payments demanded by the Mara Salvatrucha. He alleged that if he were to return to Honduras, the gang would not just pursue him for money but would seek to kill him since he represented the gang's failure to kill people which they targeted: he was, in effect, "living proof of their ineptitude." The Court held that the Board failed to give appropriate consideration to the evidence of personal risk to the claimant.

In Monroy Beltran,Footnote 125 the Court found that the Board failed to conduct the required individualized inquiry, and erroneously concluded that the claimant's risk of forced recruitment was the same as many other young boys in Colombia. Although there was a general risk of forced recruitment because the FARC targeted boys indiscriminately to fill its ranks, the claimant's situation was different. He was specifically targeted for forced recruitment because his father had refused to pay the obligatory contribution demanded by the FARC.

In Portillo,Footnote 126 the applicant was targeted, threatened, assaulted and stabbed by members of the Mara Salvatrucha [the MS]. Madam Justice Gleason disagreed with the RPD's conclusion that the risk the applicant faced was a generalized one since gang-related crime is rampant in El Salvador:

[50] […] the applicant in this case faced a heightened and different risk not faced by other young men in El Salvador because the MS had threatened him in order to obtain retribution for his having spoken to the police and provided Carlos' mother's address to them. Carlos was shown to have joined the MS and he personally made a death threat to the applicant. The applicant's situation was thus fundamentally different from that of others, who might be generally at risk of recruitment, threats or even assault by the MS. The applicant, though, was found to directly and personally face the risk of death. This is a far cry from the risk of extortion, recruitment or assault and thus the applicant's risk is much more significant and more direct than that faced by other men in El Salvador. Accordingly, the RPD's decision is both unreasonable and incorrect.

The proximity of risk, in the physical or temporal sense, is a critically important factor to consider. In Ortega Arenas,Footnote 127 Madam Justice Gleason addressed the comparison of risk in terms of its temporal proximity:

[14] The focus of the second step in the inquiry is to compare the nature and degree of the risk faced by the claimant to that faced by all or a significant part of the population in the country to determine if they are the same. This is a forward-looking inquiry and is concerned not so much with the cause of the risk but rather with the likelihood of what will happen to the claimant in the future as compared to all or a significant segment of the general population. […] There is in this regard a fundamental difference between being targeted for death and the risk of perhaps being potentially so targeted at some point in the future. Justice Shore provides a useful analogy to explain this difference in Olvera (2012 FC 1048), where he wrote at para 41, "The risks of those standing in the same vicinity as the gunman cannot be considered the same as the risks of those standing directly in front of him".

The judge went on to say that to conflate the actual risk faced by a claimant with a potential risk faced by all others in Mexico is both an incorrect and unreasonable interpretation. In other words, when comparing risks, what must be considered is whether a significant number of others are presently facing the same risk, not whether they could, or are even likely to be facing that risk sometime in the future.

CorreaFootnote 128 is another case of a businessman whose life was at risk after he reported to police that he had been threatened for resisting extortion demands. Mr. Justice Russell set out some principles extracted from jurisprudence concerning the comparison of risk:

  • It is an error to conflate the reason for the risk with the risk itself or to ignore differences in the individual circumstances of persons who may be targeted for the same reasons. The motivation of the perpetrator is not relevant to the analysis, except to the degree that it helps to assess the nature and degree of the risk, considered objectively and prospectively.
  • When considering whether an applicant faces the same risk as the population generally (or a significant sub-group of the population), both the nature of the risk and proximity to the risk (or degree of risk) must be considered.

The RPD found that Mr. Correa was a victim of attempted extortion and that the resulting threat of harm or risk to life was a generalized risk faced by others who are perceived to be successful business people in Colombia and refuse to submit to the demands of criminal gangs. However, Justice Russell stated that the evidence was clear that the risk Mr. Correa faced was not a risk of extortion. "[T]he nature of the risk he faced had fundamentally changed."

[94] […] The original motivation of the gang in targeting Mr. Correa (extortion) does not define his risk. Rather, the Board was obligated to look at his present risk in both nature and degree and determine if it is fundamentally the same or different from that faced by the population generally, or some significant sub-group. The fact that this risk may have stemmed from extortion is irrelevant, except to the extent that it helps to objectively assess the nature and degree of the risk. Mr. Correa faced a risk that he and his family would be killed because he had refused the gang's demands and reported them to police. Business owners faced a risk that they would be extorted. The general population faced a risk that various demands (on pain of violence) would be made of them by various gangs. These are not the same risks. As outlined above, determining whether a risk is the same requires consideration of both the nature and the degree of the risk. [citations omitted]

[95] It would perhaps be open to the Board to show that there were enough individuals in essentially the same position as Mr. Correa vis-à-vis the risk he faced from Los Paisas to make his risk a generalized one – that is, that his risk is similar in nature and degree to a sufficient number of people to make it a widespread or prevalent risk. However, I do not think this was the basis of the Board's Decision, nor did it cite evidence that could reasonably support such a conclusion. Instead, the analysis equated the Applicants' situation with that of individuals who face a fundamentally different and less proximate risk.

14.5.2.4. Fourth condition - Lawful sanctions

In accordance with this condition, protection under s. 97(1)(b) against a risk to life or a risk of cruel and unusual treatment or punishment which is inherent or incidental to lawful sanctions, is available only if the sanction is imposed in disregard of accepted international standards. This is often referred to as the "lawful sanctions exception."

It should be noted that some aspects of the concept of a "law of general application", which arose in the context of determining under s. 96 whether a claimant faces "prosecution or persecution", are applicable to the "lawful sanctions" condition in s. 97(1)(b)(iii).Footnote 129

Madam Justice Mactavish of the Federal Court dealt with a claimant facing lawful sanctions, in Harvey.Footnote 130 It was agreed that there are three elements that a claimant in this situation must satisfy in order to be found to be a person in need of protection in accordance with s. 97(1)(b). These are:

  1. The claimant must demonstrate that they face a risk to life or a risk of cruel and unusual treatment or punishment (as that term is understood in Canadian law) in their country of origin;
  2. The treatment or punishment in question must not be inherent or incidental to lawful sanctions; and
  3. If the treatment or punishment is inherent or incidental to lawful sanctions, the claimant must then demonstrate that it was imposed in disregard of accepted international standards.

Ms. Harvey, convicted in Florida of unlawful sexual activity with a 16 year-old, was sentenced to 30 years in prison. The Board examined sentences handed down by Canadian courts for similar offences, and determined that the sentence imposed was at least 15 times longer than the sentence that she would have received in Canada, had her actions been criminal in Canada. It also considered anecdotal evidence that sentences handed down by other Florida courts in similar cases typically ranged from probation to two years imprisonment.

The Board then applied the test in R. v. SmithFootnote 131 on the question of what constitutes "cruel and unusual punishment" and found the 30-year sentence imposed on Ms. Harvey was "so excessive as to outrage standards of decency and surpass all rational bounds of punishment." The Board concluded that the sentence was grossly disproportionate to her crimes, making it "cruel and unusual punishment" under Canadian law, thereby satisfying the first element of the section 97(1)(b)(iii) test.Footnote 132

With respect to the second element of the test, Justice Mactavish considered there to be no question that the punishment was "inherent or incidental to lawful sanctions" imposed on Ms. Harvey in accordance with Florida law.

The error in this case was the Board's failure to address the third element, namely whether the cruel and unusual punishment was imposed in disregard of accepted international standards. Despite referring to that element at the outset and conclusion of its analysis, the Board did not identify what it considered to be the accepted international standards, or whether those standards were or were not met.Footnote 133 As observed by the Court in the same paragraph, if it were sufficient to find a sanction cruel and unusual by Canadian standards, there would have been no reason for Parliament to include the words "unless imposed in disregard of accepted international standards" in the statute.

In Cao,Footnote 134 the Board concluded that a sentence of three years at a labour camp in China would not offend international human rights standards The applicant alleged that he was being sought by the Public Security Bureau for participating in a protest to demand fair compensation for his expropriated fish farm. He was charged with inciting a riot, punishable by three years at a labour camp. Despite concluding that he was not credible, the Board nonetheless considered the merits of the applicant's claim, as an alternative assessment. It referred to the documentary evidence and acknowledged that the penalty for inciting a riot was more severe than that which would be imposed in Canada and that the conditions in many penal institutions in China were harsh and degrading. The Board concluded, however, that this possible consequence was incidental to lawful sanctions and would not offend international human rights standards. The Court agreed that the possible penalty for inciting a riot appeared to be disproportionate and acknowledged documentary evidence suggesting that conditions in China's prisons are not monitored by international bodies. However, the Court found the Board's rejection of the applicant's s. 97(1) claim fell within the range of reasonable outcomes.

On the issue of accepted international standards, Mr. Justice LeBlanc in RodriguezFootnote 135 states, "The onus was on the applicants to establish that the sentence Mr. Rodriguez would be facing upon his return to Mexico, albeit harsh, is disproportionate when compared to the practice of other States." He was not persuaded that the French and American prison sentences for the offence of desertion, (three years and five years respectively) compared to the eight-year sentence in Mexico, or statistics taken from the Hinzman decision were adequate evidence that the Mexican sanction did not comply with international standards.

Regarding international standards and the Canadian Charter of Rights and Freedoms (the Charter), Madam Justice Mactavish in HarveyFootnote 136 did not agree with the applicant that a violation of the Charter will necessarily be contrary to accepted international standards. She explains why, in her view, despite considerable overlap between the Canadian Charter guarantees and accepted international standards, "the two are not always co-extensive":

[55] For example, in Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, the Supreme Court of Canada observed that "the Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified": at para. 70 [the Court's emphasis]. The Court's use of the phrase "at least" signals that Canadian Charter protections may in some cases actually exceed those provided by international law.

14.5.2.4.1. Punishment

The United States v. BurnsFootnote 137 is an extradition case that provides useful guidance regarding capital punishment. The issue before the Supreme Court of Canada was whether it would violate the principles of fundamental justice, and thus be contrary to section 7 of the Charter, to extradite two Canadians accused of brutal murders in Washington State without first obtaining assurances that the death penalty would not be imposed if they were convicted. The Supreme Court reviewed the factors for and against unconditional extradition before concluding that assurances are constitutionally required in all but exceptional cases.

In considering the respondents’ argument that their unconditional extradition to face the death penalty would “shock the Canadian conscience”, the Court observed that “An extradition that violates the principles of fundamental justice will always shock the conscience. The important inquiry is to determine what constitutes the applicable principles of fundamental justice in the extradition context.” [SCC’s emphasis] Examples of punishments that could violate our sense of fundamental justice included death by stoning for adulterers or lopping off the hands of a thief.Footnote 138

Although the Court was not required to take a position on whether or not capital punishment constituted cruel and unusual treatment or punishment under s. 12 of the Charter, it considered that the death penalty had been abolished in Canada and found that in the Canadian view of fundamental justice, capital punishment was unjust. With regard to the question of accepted international standards, the Court examined important initiatives in the international community denouncing the death penalty but concluded:Footnote 139

[89] This evidence does not establish an international law norm against the death penalty, or against extradition to face the death penalty. It does show, however, significant movement towards acceptance internationally of a principle of fundamental justice that Canada has already adopted internally, namely the abolition of capital punishment.

The question of whether indefinite detention is cruel and unusual treatment was considered by the Supreme Court of Canada in Charkaoui,Footnote 140 where the issue was the constitutionality of the IRPA’s security certificate provisions. The Court’s analysis included the IRPA provisions regarding detention pursuant to a security certificate. Noting that although in principle, the IRPA imposes detention only pending deportation, in fact, detention could prove to be lengthy, possibly indeterminate. The Court referred to a decision of the European Court of Human Rights regarding the circumstances in which it considered indefinite detention would be cruel and unusual:

98. …[I]t has been recognized that indefinite detention in circumstances where the detainee has no hope of release or recourse to a legal process to procure his or her release [emphasis added] may cause psychological stress and therefore constitute cruel and unusual treatment: Eur. Court H.R. [European Court of Human Rights], Soering case, judgment of 7 July 1989, Series A, No. 161, at para. 111. … However, for the reasons that follow, I conclude that the IRPA does not impose cruel and unusual treatment within the meaning of s. 12 of the Charter because, although detentions may be lengthy, the IRPA, properly interpreted, provides a process for reviewing detention and obtaining release and for reviewing and amending conditions of release, where appropriate.

14.5.2.4.2. Prison Conditions

When the punishment involves incarceration, it is also necessary to consider whether prison conditions render the punishment cruel and unusual. Mr. Justice Mosley allowed the application for judicial review in Kilic,Footnote 141 because, despite evidence from the Turkish Ministry of National Defence stating that the applicant was facing a "serious prison sentence" for evading Turkish military service, the Board did not address the country documentation and other evidence related to prison conditions in Turkey in order to determine whether the applicant would be a "person in need of protection" if returned to that country.

Similarly, in Asgarov,Footnote 142 the Court found that the determinative issue was the RAD’s failure to consider prison conditions in Azerbaijan. whether this might support Mr. Asgarov’s claim for protection under s 97 of the IRPA”:

[17] There was evidence before the RAD that prison conditions in Azerbaijan are “sometimes harsh and potentially life threatening due to overcrowding, inadequate nutrition, deficient heating and ventilation, and poor medical care.” Some Azerbaijani prisons are Soviet-era facilities which do not meet international standards. While awaiting trial, detainees are held in crowded basement detention facilities below the local courts. Guards may punish prisoners with beatings and isolation.

In Usta,Footnote 143 where the applicant claimed that if he refused to perform his military service, he would be jailed and that jails in Turkey were brutal, Mr. Justice Phelen held that “[t]he fact that the law is more harsh than laws in Canada or that Turkish prisons are not of the same standard as Canadian prisons is not sufficient to establish this ground under section 97.” [emphasis added] The Court further found that “[i]t was open to the Board to find, on the evidence, that the Turkish law, its application and its consequences, including prison treatment, did not rise to the section 97 threshold.”

In Lebedev,Footnote 144 the Federal Court indicated that prison conditions should be measured against objective standards. The applicant submitted evidence showing that Russian prison conditions were extremely harsh and even life threatening. Mr. Justice de Montigny found the PRRA officer’s comparative approach to analyzing prison conditions problematic:

[96] ... the PRRA officer who decided Mr. Lebedev’s application actually accepted that Russian prison conditions did not meet government standards. While she noted they are improving, that was a comparative analysis – evaluating conditions compared with previous years. The analysis ought to have been normative, and the officer should have therefore asked whether conditions met objective standards.

14.5.2.4.3. Exit Laws

Punishment for violating a country’s exit laws is most often examined under s. 96, as the usual allegation is that exit laws are used to punish imputed political opinion. However, where there is no nexus, punishment for violating exit laws may be examined under s. 97(1).Footnote 145 In such cases, the analysis will unfold in same manner described earlier in this section, namely, whether the punishment would amount to cruel and unusual treatment or punishment, and if it is pursuant to a lawful sanction, whether it would be imposed in disregard of accepted international standards. Thus, disproportional or extra-judicial punishment for an illegal exit could constitute a basis for acceptance under s. 97(1).

14.5.2.4.4. Military Service

In the context of failure to perform military service, the Federal Court has stated that a separate section 97(1)(b) analysis is necessary to assess possible sanctions.Footnote 146

In Asgarov,Footnote 147 the 30 year-old applicant claimed to fear persecution, and cruel and unusual punishment, due to his evasion of military service, which is mandatory for Azerbaijani men between the ages of 18 and 35. The RAD found Mr. Asgarov would be prosecuted upon his return to Azerbaijan and might face up to two years’ imprisonment. The Court remitted the matter back to the RAD to consider the evidence of prison conditions in Azerbaijan and whether that evidence might support Mr. Asgarov’s claim for protection under s. 97(1).

14.5.2.5. Fifth condition - Inability to provide adequate health or medical care

The condition in s. 97(1)(b)(iv) of the IRPA will result in a claimant not qualifying as a person in need of protection under s. 97(1)(b) if the risk is "caused by the inability of the claimant's country to provide adequate health or medical care." This is often referred to as the "medical exception."

The leading case on s. 97(1)(b)(iv) is the Federal Court of Appeal decision in Covarrubias,Footnote 148 an appeal from a decision of the Federal Court which upheld the pre-removal risk assessment (PRRA) decision that denied the appellants protected person status by reason of s. 97(1)(b)(iv) of the IRPA. The certified question that brought the appeal before the FCA, but which the Court declined to answer, was whether the provision infringed the Canadian Charter of Rights and Freedoms.Footnote 149 The Court did, however, establish a number of important principles, particularly regarding the interpretation of a state's "inability" to provide care.

Before Mr. Justice Mosley at the Federal Court,Footnote 150 the applicants argued that the phrase "inability of that country" should be construed narrowly, so that the exclusion from protection would not apply where a state has the capacity to provide adequate care but chooses not to provide it to its residents who cannot afford to pay for health care. Mr. Ramirez (the adult male applicant in Covarrubias) was in end-stage renal failure and required dialysis three times a week, without which he would die within a week. The treatment was available in Mexico for those who had the means to pay for it, but the applicants did not. According to the applicants, the PRRA officer erred in law by not considering whether the reason Mr. Ramirez would be denied medical treatment in Mexico was not the state's inability to provide dialysis to him, but rather the state's unwillingness to provide it at no cost or at a cost he can afford.

The fact situation in Singh,Footnote 151 acase dismissed by Mr. Justice Russell eighteen months earlier, was very similar. The applicants in Singh did not dispute the PRRA officer's finding that there were medical facilities in India where the female applicant could have access to the dialysis treatments she needed. The officer did not, however, address the argument that her family could not afford to pay for those treatments. The applicants alleged that the officer committed a reviewable error by failing to deal with the issue of the applicant's lack of access to appropriate health care.

The respondent in Singh argued that this factor belonged in an H & C consideration, not in a pre-removal risk assessment. The respondent also referred the Court to the clause-by-clause analysis of the IRPA contained in Bill C-11, which said about section 97 and health facilities:

Cases where a person faces a risk due to lack of adequate health or medical care can be more appropriately assessed through other means in the Act and are excluded from this definition. Lack of appropriate health or medical care are not grounds for granting refugee protection under the Act.Footnote 152

Mr. Justice Russell considered this evidence concerning Parliament's intent when in enacting s. 97(1)(b)(iv) and concluded that the PRRA officer did not commit any reviewable error:

[23] I believe the honest answer to this issue is that it is not entirely clear what Parliament's intent was in this regard, and that we are left to deal with a statutory provision that, on the facts of this application, is somewhat ambiguous. The applicants' arguments would mean accepting that Parliament intended to exclude risks based upon the non-availability of adequate health care but not risks associated with a particular applicant's ability to access adequate health care. Bill C-11 tells us that lack of "appropriate" health or medical care are not grounds for granting refugee protection under IRPA and that these matters are more appropriately assessed by other means under the statute.

[24] This leads me to the conclusion that the respondent is correct on this issue. A risk to life under section 97 should not include having to assess whether there is appropriate health and medical care available in the country in question. There are various reasons why health and medical care might be "inadequate." It might not be available at all, or it might not be available to a particular applicant because he or she is not in a position to take advantage of it. If it is not within their reach, then it is not adequate to their needs.Footnote 153

In Covarrubias, Mr. Justice Mosley agreed with Justice Russell's interpretation and referred explicitly to inadequacy of health care or treatment for a claimant who is unable to pay:

[33] I think it is clear that the intent of the legislative scheme was to exclude claims for protection under section 97 based on risks arising from the inadequacy of health care and medical treatment in the claimant's country of origin, including those where treatment was available for those who could afford to pay for it. I agree with Justice Russell's interpretation of the statute. Thus I find that the PRRA officer did not err in applying the exclusion to Mr. Ramirez and the application cannot succeed on that ground.Footnote 154

The Federal Court of Appeal (FCA) in Covarrubias considered the question of whether Mr. Justice Mosley erred when he upheld the PRRA officer's decision to deny the appellants' application for protection on the basis that the risks they identified were excluded from consideration under s. 97(1)(b)(iv).

Regarding the issue of a state's inability to provide adequate health or medical care, the FCA rejected the narrow interpretation of s. 97(1)(b)(iv) proposed by the appellants, whereby it would be a bar to protection only for persons from countries which are unable in an absolute sense to provide needed medical treatment to their nationals. The appellants submitted that when a country has the financial ability to provide emergency medical care, but chooses, as a matter of public policy, not to provide such care free of charge to its underprivileged citizens, the country's unwillingness to provide health care violates the internationally recognized human right of access to medical care and is precisely the type of risk to life against which s. 97 should provide protection.Footnote 155

The FCA instead endorsed a broad interpretation of the medical exception, recognizing that it imposed a burden of proof that was difficult to meet:

[31] Having considered the parties' arguments and the limited authorities, I am of the view that the provision in issue is meant to be broadly interpreted, so that only in rare cases would the onus on the applicant be met. The applicant must establish, on the balance of probabilities, not only that there is a personalized risk to his or her life, but that this was not caused by the inability of his or her country to provide adequate health care. Proof of a negative is required, that is, that the country is not unable to furnish medical care that is adequate for this applicant. This is no easy task and the language and the history of the provision show that it was not meant to be.Footnote 156

The FCA rejected the notion that it was Parliament's intention, when it enacted s. 97(1), to impose an obligation on the Canadian government to provide medical care to failed refugee claimants suffering from life‑threatening illnesses where they could show that their native country would be financially able to provide the needed medical care, but chose not to do so for whatever reason, justifiable or not.Footnote 157

On the issue of inability versus unwillingness to pay for medical and health care, the Court was not prepared to challenge a country's public policy decisions regarding fiscal priorities in its allocation of financial resources to medical and other obligations:

[38] In my view, the words "inability to provide adequate medical services" must include situations where a foreign government decides to allocate its limited public funds in a way that obliges some of its less prosperous citizens to defray part or all of their medical expenses. Any other interpretation would require this Court to inquire into the decisions of foreign governments to allocate their public funds and possibly second-guess their decisions to spend their funds in a different way than they would choose. In other words, this Court would have to decide that foreign governments must provide free medical services to their citizens who cannot pay for them to the detriment of other areas for which the governments are responsible.Footnote 158

However, the Court also explained that there are circumstances in which a claimant denied adequate health or medical care would be entitled to protection. Individuals who are denied care or treatment may be able to establish a claim under s. 97(1)(b) or if the risk arises from a country's unwillingness to provide adequate care or treatment to certain persons for reasons related to a Convention ground, under s. 96:

[39] This is not to say that the exclusion in subparagraph 97(1)(b)(iv) should be interpreted so broadly as to exclude any claim in respect of health care. The wording of the provision clearly leaves open the possibility for protection where an applicant can show that he faces a personalized risk to life on account of his country's unjustified unwillingness to provide him with adequate medical care, where the financial ability is present. For example, where a country makes a deliberate attempt to persecute or discriminate against a person by deliberately allocating insufficient resources for the treatment and care of that person's illness or disability, as has happened in some countries with patients suffering from HIV/AIDS, that person may qualify under the section, for this would be refusal to provide the care and not inability to do so. However, the applicant would bear the onus of proving this fact.Footnote 159 [emphasis added]

The focus should be on the availability of medical treatment for the particular claimant (under s. 97(1)(b)) or persons such as the claimant (under s. 96), rather than on the availability of medical treatment in the country. To summarize the FCA's conclusions regarding the interpretation of s. 97(1)(b)(iv):

[41] For these reasons, I find that the phrase "not caused by the inability of that country to provide adequate health or medical care" in subparagraph 97(1)(b)(iv) of the IRPA excludes from protection persons whose claims are based on evidence that their native country is unable to provide adequate medical care, because it chooses in good faith, for legitimate political and financial priority reasons, not to provide such care to its nationals. If it can be proved that there is an illegitimate reason for denying the care, however, such as persecutorial reasons, that may suffice to avoid the operation of the exclusion.Footnote 160

An issue that did not come up in Covarrubias was the quality of care in comparison to Canadian standards. In Babar,Footnote 161 the claim of the principal claimant's infant son was based upon the fact that he suffered from Downs' Syndrome, a medical condition for which the Board acknowledged that the medical reports demonstrated that broader medical services were available in Canada than in Pakistan. However, s. 97(1)(b)(iv) precluded protection against a risk attributable to inadequate health or medical care. The Board found the lack of health care in Pakistan of the same or equivalent standard as that available in Canada did not support a claim pursuant to section 97(1)(b). Madam Justice Heneghan was satisfied that the Board's conclusion that the claim was barred on the basis of s. 97(1)(b)(iv) of IRPA was reasonable.

In Begum,Footnote 162 the applicant was receiving chemotherapy treatments after being diagnosed with cancer when she came to Canada to visit her daughter. She did not want to return to Pakistan, where she said she feared to live alone because she was sick, elderly, and female, with no male protector. She alleged her life was threatened by a neighbour and the tenant to whom she rented her house. The Board found that she had an IFA in Karachi. Although the Board acknowledged she would enjoy better medical care in Canada, it found that " subparagraph 97(1)(b)(iv) of the Act precludes claims based on inadequate health care in the country of origin."

Manyclaims raising the issue of medical care deal with what the FCA in Covarrubias termed "illegitimate" reasons for its refusal. NicolasFootnote 163 is an unusual case because one of the issues Mr Justice Pinard addressed was risk to life resulting from discrimination unrelated to any s. 96 ground. The claimant alleged that, as a prisoner in Haiti, he would be denied life-saving medication for his HIV condition. The Court held that if that had been the case, such discrimination would have constituted a risk to life. However, the Court found it was unlikely that the claimant would have access to the medical treatment that he needed even if he were not a victim of discrimination, because of the Haitian government's inability to care for its population. Thus, s. 97(1)(b)(iv) precluded consideration of the risk to his life.

When a claimant succeeds in showing that they would be refused health care or treatment for persecutorial (i.e. related to a Convention ground) reasons, it is clear that s. 97(1)(b)(iv) is not applicable. For example, in Ogbebor,Footnote 164 the Court found the PRRA officer's evaluation of the risks for an HIV positive individual living in Nigeria was unreasonable because the officer was selective in his use of the evidence and failed to address relevant evidence:

[18] … In addressing the issue of access to healthcare for an individual with HIV, the Officer focused on the fact that the major barrier to treatment was the cost of travel from the countryside to cities. […] However, the US Department of State Country Report on Nigeria's Human Rights also states the following: (i) there is severe discrimination by health care providers and of the general population; (ii) individuals with HIV can be denied medical care or refused admittance to hospital and confidential medical data can be disclosed without patient consent; (iii) HIV individuals often lose their jobs, which in turn, has an impact on the cost and access to treatment. (emphasis added)

NebieFootnote 165 is an example ofa case where the applicant failed to establish a serious possibility he would be denied health care because of his HIV-positive status. He alleged, first, that he risked being persecuted in the IFA location contemplated because he was HIV positive and second, that access to health care for individuals with HIV in Burkina Faso, especially in rural areas, was minimal, even non-existent. The officer found that the evidence relating to the lack of health care to treat HIV fell within the condition in subparagraph 97(1)(b)(iv). Mr. Justice Shore upheld the decision:

[39] Among other things, it was open to the officer to find that the applicant did not show that the lack of health care in Burkina Faso stemmed from discriminatory treatment or was linked to persecution, which would have resulted in excluding the application of subparagraph 97(1) (b)(iv) of the IRPA. (emphasis added)

There are a number of cases that deal with claimants suffering from mental illnesses. The RichmondFootnote 166 case is an example of a decision based on the Covarrubias principle that s. 97(1)(b)(iv) does not apply where medical care is denied for illegitimate reasons, such as persecutory grounds. In Richmond, the claimant, who experienced schizophrenia and epilepsy, had a history of criminal behaviour and substance abuse. After losing his appeal of a deportation order, he applied for a pre-removal risk assessment (PRRA) based on the unavailability of treatment for mental health issues in Guyana. The PRRA officer concluded that Mr. Richmond could not claim protection as a result of inadequate medical care given that such a claim is excluded by s 97(1)(b)(iv). Mr. Justice O'Reilly agreed with the applicant's argument that mental health services are limited in Guyana due to discrimination against the mentally ill, not merely because of a lack of resources:

[10] In my view, the officer unreasonably concluded that Mr Richmond's claim was excluded under s 97(1)(b)(iv). The evidence before the officer showed that mentally ill persons in Guyana are commonly viewed as "cursed" or experiencing "spirit possession". The mistreatment of patients and the inadequacy of mental health resources derive, at least in part, from discriminatory attitudes toward those experiencing mental health issues.

Mr. Justice O'Reilly described AverinFootnote 167 as "one of those rare cases where an applicant could succeed on a PRRA application notwithstanding that it was based on a concern about medical care." Although the application could not succeed on the issue of whether Mr. Averin could afford to buy medication and access mental health treatment in Ukraine, he also produced documentary evidence showing that abuse and inhumane treatment of the mentally ill in psychiatric hospitals was common. Ukraine had laws prohibiting discrimination against people with mental disabilities, but those laws were not enforced. The Court held that "Obviously, discriminatory treatment and abusive conduct cannot be considered legitimate reasons for Ukraine's inability to provide adequate medical care to the mentally ill."

In Ferreira,Footnote 168 the PRRA officer accepted that Mr. Ferreira experienced schizophrenia and that mentally ill persons were stigmatized and suffered discrimination in Jamaica. However, the officer found that all the risks Mr. Ferreira identified (homelessness, imprisonment, violence) flowed from the unavailability of suitable medical treatment. Mr. Justice O'Reilly drew a distinction between cases where the applicant's risk relates directly to the inability of the country of origin to provide adequate medical care, so that s. 97(1)(b)(iv) is applicable; versus cases where the risk stems from an applicant's inability to access treatment, as in Mr. Ferreira's case, where without sufficient medical oversight or the support of his family, the applicant was unlikely to seek out treatment or stay on the medication that kept his condition stable:

[13] Therefore, no matter what level of treatment might be available in Jamaica, Mr Ferreira would probably not benefit from it. He would likely be drawn into a life of homelessness, crime and incarceration in a country where the mentally ill endure undeniable hardship. His case parallels others in which this Court has recognized that mistreatment resulting from an applicant's particular symptoms of mental disorder may be relevant to an applicant's PRRA because s. 97(1)(b)(iv) only excludes protection where the inadequacy of medical care is directly responsible for the anticipated harm. …

In an earlier case, Lemika,Footnote 169 the applicant who was suffering from schizophrenia alleged that his lack of access to medical care would lead to a deterioration in his mental state and would allow the symptoms of his illness to emerge. His bizarre behaviour could then lead to arrest and detention by the state security forces and mistreatment by fellow citizens in the Democratic Republic of the Congo (DRC). The Court held that the claim required an assessment of causation. The PRRA officer erred by not assessing whether the risks asserted by the applicant were in fact caused by the DRC's inability to provide adequate health care, or whether "the apprehended intervening actions of third parties mean[t] that the harm was sufficiently removed from the initial inability to access medical care as to escape the purview of paragraph 97(1)(b)(iv) of the Immigration and Refugee Protection Act." [emphasis added]

A similar argument was raised in MwayumaFootnote 170 where the RAD upheld the RPD's decision rejecting the claims of a mother and her three children, including her son A.B., who had been diagnosed in Canada as suffering from schizophrenia. The applicants alleged that A.B. faced a risk of persecution in the DRC because mental illness is not understood, and many in the general population view mental illness as a sign of possession or witchcraft. It was also argued that the lack of adequate treatment facilities meant that A.B. would be unable to obtain ongoing medical treatment, which increased the risk that he would come to the attention of the police, or end up in jail or prison, just as had happened in Canada. If this happened in the DRC, the conditions in the jails and prisons there would put his life in danger. The RAD rejected the claim that A.B. was a person in need of protection because such a finding is expressly prohibited by s. 97(1)(b)(iv) if the risk is caused by the inability of a country to provide adequate health or medical care. The Court however, did not discuss the applicability of s. 97(1)(b)(iv). Instead, it described A.B.'s claim strictly in terms of s. 96, whether he would be at risk of persecution because of his mental illness. The Court considered the documentary evidence that indicated widespread discrimination and mistreatment of persons with mental illness as well as a critical shortage of appropriately trained doctors, medical facilities, and medication to treat mental illness and mental disability. It concluded that it was unreasonable for the RAD to conclude as it had that the family's wealth or the father's standing in society would overcome these obstacles such that there was not a well-founded fear of persecution.

The Federal Court of Appeal in Covarrubias declined to answer the certified question,Footnote 171 as to whether s. 97(1)(b)(iv) infringed the Charter. The FCA agreed with the lower Court that there was no factual basis for entering into a Charter analysis. The FCA also agreed that the appellants had adequate alternative remedies and that it was inappropriate for the appellants to turn to the Court for relief under the Charter before exhausting their other remedies.Footnote 172

In Laidlow,Footnote 173 the claimant suffered from a chronic condition that required daily access to specialized medication. Before the RPD, he sought to challenge the constitutionality of s. 97(1)(b)(iv) of the IRPA under sections 7 and 15 of the Charter. He sought a postponement of his refugee protection hearing so he could await the result of his humanitarian and compassionate (H&C) application for permanent residence and thereby exhaust his alternative remedies before bringing his Charter challenge, as required by the Federal Court of Appeal decision in Covarrubias. The RPD denied the postponement request. It also found the claimant would have access to the drugs and other care he needed in St. Vincent, so a return to St. Vincent would not endanger his life. On judicial review, the Federal Court found the RPD reasonably denied the postponement request; that the RPD's conclusion as to the claimant's risk was reasonable; and that his Charter rights were not infringed.Footnote 174 The Federal Court certified the following question:

"Does the Immigration and Refugee Board violate the provisions of section 7 of the Charter if it declines to postpone its hearing based on risk to life where there is a pending humanitarian and compassionate application also based on risk to life?"

The Federal Court of Appeal answered the certified question in the negative. The Court of Appeal held that nothing in Covarrubias supports the argument that the RPD was required to hold its proceeding in abeyance indefinitely pending the H&C application.Footnote 175 The appellant's right to request an adjournment to exhaust his non-constitutional remedies does not create an obligation on the RPD to structure its hearing so his constitutional arguments could be heard last. The Federal Court committed no palpable and overriding error, nor did it rely on a wrong legal principle, in concluding the RPD's determination on risk was reasonable. As the Charter claims lacked an evidentiary foundation, it was unnecessary for the FCA to consider the Federal Court's analysis of the Charter challenge to s. 97(1)(b)(iv).Footnote 176

The constitutionality of s. 97(1)(b)(iv) was again the issue in the application for judicial review in Spooner.Footnote 177 The applicant, who was HIV-positive, alleged in his PRRA application that removal to Barbados would violate his right to life pursuant to section 7 of the Charter and that s. 97(1)(b)(iv) offended section 15 (right to equal treatment without discrimination). The PRRA officer acknowledged evidence that the medication the applicant was taking was not available in Barbados, but was not satisfied that the Applicant had submitted sufficient evidence to show that he was at risk if he returned to Barbados, as a result of his HIV positive status. Madam Justice Heneghan referred to Supreme Court cases which stated that that Charter applications should not be decided in a factual vacuum and concluded that the Spooner case, like Covarrubias, lacked the evidentiary context adequate for adjudicating the Charter issues raised by the applicant. Moreover, she accepted the Respondent's submissions that an H & C application was an alternate remedy available to the applicant.

Notes

Note 1

Immigration and Refugee Protection Act, S.C. 2011, c. 27, s. 2(1).

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Note 2

Formerly the Convention Refugee Protection Division (CRDD), referred to simply as the Refugee Division.

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Note 3

For simplicity, hereafter the grounds will be referred to as s. 96, s. 97(1)(a) and s. 97(1)(b).

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Note 4

Li v. Canada (Minister of Citizenship and Immigration), 2005 FCA 1, at paras 28 and 39. Reported: [2005] 3 FCR 239 (FCA) — 41 Imm LR (3d) 157.

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Note 5

Sanchez v. Canada (Citizenship and Immigration), 2007 FCA 99, at para 15: “[…] Subsection 97(1) is an objective test to be administered in the context of a present or prospective risk for the claimant.” Reported: 360 NR 344 — 62 Imm LR (3d) 5.

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Note 6

Bouaouni v. Canada (Minister of Citizenship and Immigration), 2003 FC 1211, at para 39. Reported: 126 ACWS (3d) 686. Although the Court in Bouaouni focussed its analysis on paragraph (a), the principle applies to both paragraphs of s. 97(1).

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Note 7

In Ahmad v. Canada (Minister of Citizenship and Immigration), 2004 FC 808, at paras 21-22, the Court found that although there was evidence of a systematic and generalized violation of human rights in Pakistan, it was not sufficiently tied to the claimant's personal circumstances to establish that his removal would expose him personally to the risks and dangers referred to in s. 97(1). “Absent the least proof that might link the general documentary evidence to the applicant's specific circumstances, I conclude that the Board did not err in the way it analyzed the applicant's claim under section 97.”

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Note 8

Raza v. Canada (Citizenship and Immigration), 2006 FC 1385 , at para 29. Reported: 304 FTR 46 — 58 Admin LR (4th) 283.

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Note 9

Sarria v. Canada (Citizenship and Immigration), 2007 FC 98, at para 20. Reported: 161 ACWS (3d) 466.

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Note 10

Lopez v. Canada (Citizenship and Immigration), 2014 FC 102, at para 46. Reported: 23 Imm LR (4th) 4.

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Note 11

Correa v. Canada (Citizenship and Immigration), 2014 FC 252 at para 77. Reported: [2015] 2 FCR 732 . In the same paragraph, with regard to s. 97(1)(b) cases, Mr. Justice Russel added, “[…] very few claims from the victims of criminal gangs will turn on whether the risk was “personal”; most will turn on whether that risk, in addition to being personal, was also “non-generalized”.

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Note 12

Li v. Canada (Minister of Citizenship and Immigration), 2005 FCA 1. Reported: [2005] 3 FCR 239 (FCA).

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Note 13

Sanchez v. Canada (Citizenship and Immigration), 2007 FCA 99 , at para 15. Reported: 360 NR 344 — 62 Imm LR (3d) 5.

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Note 14

Sainnéus v. Canada (Citizenship and Immigration), 2007 FC 249, at para 12.

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Note 15

Sainnéus v. Canada (Citizenship and Immigration), 2007 FC 249, at para 8. Those reasons, set out in paragraph 6, focussed primarily on the claimants' delay in leaving the country where they were allegedly at risk (Haiti); voluntary returns to that country, failure to seek protection in a country that is signatory to the Convention (the U.S.) and finally, delay in seeking protection in Canada.

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Note 16

Louis v. Canada (Citizenship and Immigration), 2019 FC 355, at paras 18-19.

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Note 17

Mamak v. Canada (Citizenship and Immigration), 2014 FC 730, at para 6.

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Note 18

Abdi v. Canada (Citizenship and Immigration), 2015 FC 643.

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Note 19

Markauskas v. Canada (Citizenship and Immigration), 2012 FC 902, at para 20.

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Note 20

De Mello Borges v. Canada (Minister of Citizenship and Immigration), 2005 FC 491, at para 11.

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Note 21

Dos Santos v. Canada (Citizenship and Immigration), 2007 FC 706, at para 1.

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Note 22

Licao v. Canada (Citizenship and Immigration), 2014 FC 89, at para 60. Reported: 303 CRR (2d) 228 — 237 ACWS (3d) 739.

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Note 23

Gutierrez v. Canada (Immigration, Refugees and Citizenship), 2018 FC 4, at para 102.

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Note 24

Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, at para 51. Reported: [2002] 1 SCR 3. In determining the constitutionality of a provision that allowed deportation to a country where the refugee would face torture, the Court considered the meaning of “cruel and unusual treatment or punishment” under s. 12 of the Charter: “It [i.e., the treatment or punishment] must be so inherently repugnant that it could never be an appropriate punishment, however egregious the offence. Torture falls into this category.”

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Note 25

R. v. Smith (Edward Dewey), 1987 CanLII 64 (SCC). Reported: [1987] 1 SCR 1045.

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Note 26

R. v. Latimer, 2001 SCC 1 (CanLII). Reported: [2001] 1 SCR 3.

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Note 27

Miller et al. v. The Queen, 1976 CanLII 12 (SCC). Reported: [1977] 2 SCR 680, at p. 688. The decision in this case, which preceded the Charter, was that the mandatory death penalty then applicable was not cruel and unusual punishment within the meaning of s. 2(b) of the Canadian Bill of Rights.

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Note 28

R. v. Smith (Edward Dewey), 1987 CanLII 64 (SCC). Reported: [1987] 1 SCR 1045, at p. 1073.

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Note 29

Canada (Citizenship and Immigration) v. Harvey, 2013 FC 717 , [2015] 1 RCF 3, at para 55.

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Note 30

Selvarajah v. Canada (Citizenship and Immigration), 2014 FC 769, at para 73.

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Note 31

Kanagarasa v. Canada (Citizenship and Immigration), 2015 FC 145.

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Note 32

Muckette v. Canada (Citizenship and Immigration), 2008 FC 1388, at para 9. The claimant alleged a long history of actions taken against him, including being threatened with death. The Court found that the RPD erred in dismissing the importance of the death threats on the ground that no one had attempted to kill him.

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Note 33

In Nicolas v. Canada (Citizenship and Immigration), 2010 FC 452, at paras 32-33, the claimant alleged that, as a prisoner in Haiti, he would be denied live-saving medication for his HIV condition. The Court held that if that had been the case, such discrimination would have constituted a risk to life. However, it was unlikely that the claimant would have access to the medical treatment that he needed even if he were not a victim of discrimination, simply because of the Haitian government’s inability to care for its population. Reported: 367 FTR 223.

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Note 34

Kharrat v. Canada (Minister of Citizenship and Immigration), 2005 FC 106, at para 7. The claimant complained that as a hearing-impaired person, he was treated with scorn and misunderstanding. In school, he had had his ears pulled, his fingers struck with a ruler and his trousers lowered so he could be hit in front of the other students. The Board also considered Mr. Kharrat's fundamental rights, not only to determine whether the question was one of persecution, but also to assess whether the mistreatment he suffered was cruel and unusual treatment within the meaning of paragraph 97(1)(b) of the Act. The Board found that Mr. Kharrat was a victim of discrimination and determined that he was neither a Convention refugee nor a person in need of protection.

Malik v. Canada (Minister of Citizenship and Immigration), 2005 FC 1707. Upon returning to Pakistan, Mr. Malik was questioned for less than 24 hours, with no infliction of physical harm and released after having to pay a bribe. His claim was based on membership in a particular social group - terror suspects. At para 15, the Court declared that because it was satisfied that the Board's analysis of Mr. Malik’s risk was sufficient to support its conclusion that he was not at risk of persecution, “it follows that he is equally not a person in need of protection.”

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Note 35

Ghazaryan v. Canada (Citizenship and Immigration), 2011 FC 1036. Her daughter’s ex-boyfriend slapped the claimant on one occasion when she refused to reveal the daughter’s whereabouts. The RPD found that the claimant was not threatened with serious physical harm. The Court upheld the RPD’s decision that the claimant was not at risk of cruel and unusual treatment or punishment.

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Note 36

In Kuzu v. Canada (Citizenship and Immigration), 2018 FC 917, at para 22, the Court found that it was reasonable for the RPD to conclude that being questioned twice by the police for a total of eight hours did not reach the level required to constitute persecution, as the police did not use violence or interfere with the claimant’s basic human rights. Although the RPD’s conclusion concerned persecution, the same treatment would clearly not rise to the level of cruel and unusual treatment.

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Note 37

Khalifeh v. Canada (Minister of Citizenship and Immigration), 2003 FC 1044, at para 25-26. Reported: 239 FTR 190. The Palestinian claimant who had to pass through Israeli military checkpoints every day on his way to work in Jerusalem suffered “more or less constant harassment” and was often delayed but was never detained or arrested. The Court held that it was not unreasonable under the circumstances for the RPD panel to find that the inconveniences the claimant suffered were insufficient as a whole to give rise to an objective fear for his life and that he was not faced with a real danger of torture or (cruel and) unusual treatment.

Return to note 37 referrer

Note 38

R. v. Smith (Edward Dewey), 1987 CanLII 64 (SCC), at paras 54-57. Reported: [1987] 1 SCR 1045. The Court held that the mandatory minimum sentence of seven years for drug trafficking constituted cruel and unusual punishment in contravention of s. 12 of the Charter.

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Note 39

Djebli v. Canada (Citizenship and Immigration), 2007 FC 772, at para 46.

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Note 40

R. v. Smith (Edward Dewey). v. Smith, 1987 CanLII 64 (SCC). Reported: [1987] 1 SCR 1045.

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Note 41

Pjetracaj v. Canada (Citizenship and Immigration), 2019 FC 1390.

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Note 42

Rasaratnam v. Canada (Minister of Employment and Immigration), Reported:[1992] 1 F.C. 706, at 709-710; and 140 N.R. 138 (C.A.).

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Note 43

Hamdan v. Canada (Immigration, Refugees and Citizenship), 2017 FC 643 , at para 11.

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Note 44

Hinostroza Soto v. Canada (Minister of Citizenship and Immigration), 2005 FC 1325, at para 9, relying on Ankamah v. Canada (Minister of Citizenship and Immigration), 2004 FC 1258, at para 18.

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Note 45

In Garcia Kanga v. Canada (Citizenship and Immigration), 2012 FC 482,at para 13, the Court held that the terms “particularized risk” and “personalized risk” are synonymous.

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Note 46

In Correa v. Canada (Citizenship and Immigration), 2014 FC 252, Justice Russell refers to this as the “personal risk” stage, to distinguish it from the later stage where the issue is whether the risk is faced generally. He writes at para 74: “Because the ‘personal risk’ stage of the test is so often not distinguished from the ‘non-generalized risk’ stage of the test, it is worth specifically identifying what each step requires.” Reported: [2015] 2 FCR 732.

Return to note 46 referrer

Note 47

For example, in Salazar v. Canada (Citizenship and Immigration), 2018 FC 83 , at para 62, Madam Justice Kane refers to section 97 analysis differentiating “between personalized or particularized risk and generalized risk”.

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Note 48

Guerrero v. Canada (Citizenship and Immigration), 2011 FC 1210, at para 27. Reported: [2013] 3 FCR 20.

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Note 49

Explained in Placer Dome Canada Ltd. v. Ontario (Minister of Finance), 2006 SCC 20), [2006] 1 S.C.R. 715, at para 45: “Under the presumption against tautology, ‘[e]very word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose': see R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at p. 159. To the extent that it is possible to do so, courts should avoid adopting interpretations that render any portion of a statute meaningless or redundant [citation omitted].”

Return to note 49 referrer

Note 50

Prophète v. Canada (Citizenship and Immigration), 2008 FC 331, at para 18. Reported: 70 Imm LR (3d) 128 — 167 ACWS (3d) 151.

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Note 51

Prophète v. Canada (Citizenship and Immigration), 2009 FCA 31 , at para 3. Reported: 387 NR 149 — 78 Imm LR (3d) 163.

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Note 52

Paz Guifarro v. Canada (Citizenship and Immigration), 2011 FC 182 , at para 32.

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Note 53

Portillo v. Canada (Citizenship and Immigration), 2012 FC 678. Reported: [2014] 1 RCF 295.

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Note 54

Portillo v. Canada (Citizenship and Immigration), 2012 FC 678, at para 36. Reported: [2014] 1 RCF 295.

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Note 55

Tomlinson v. Canada (Citizenship and Immigration), 2012 FC 822, at paras 18-19, Madam Justice Mactavish writes:

[18] […] As in Portillo, the Board erred in conflating a highly individualized risk faced by Mr. Tomlinson with a generalized risk of criminality faced by others in Jamaica.

[19] That is, Mr. Tomlinson does not just fear a criminal gang in Jamaica because he lives there or because he works as a shopkeeper in that country. That would be a generalized risk faced by a substantial portion of the population. Indeed, the risk that Mr. Tomlinson faces is not the same risk that existed before his brother began arresting members of the Ambrook Lane Clan gang. Prior to the arrests, Mr. Tomlinson may have been at risk of extortion or violence like many other shopkeepers in Jamaica. However, unlike the general population, Mr. Tomlinson is now at a significantly heightened risk as a result of having been, to quote the Board, “specifically and personally targeted by the gang”.

Reported: 414 FTR 285.

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Note 56

In Wilson v. Canada (Citizenship and Immigration), 2013 FC 103, at para 5, Madam Justice Simpson accepted the Respondent's submission that “[…] the Applicant's refusal to pay the gang members and their subsequent violence is part of the ongoing criminal act of extortion, since anyone who refuses to pay is subject to reprisals.” The Court upheld the RPD's conclusion that the Applicant feared generalized crime and violence in Jamaica rather than a personal risk of harm.

Return to note 56 referrer

Note 57

Portillo v. Canada (Citizenship and Immigration), 2012 FC 678 , at paras 40-41. Reported: [2014] 1 RCF 295.

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Note 58

In Correa v. Canada (Citizenship and Immigration), 2014 FC 252, at para 73, Mr. Justice Russell also expressly states that he does not think that Justice Gleason's statement collapsed the two parts of the conjunctive test. Reported: [2015] 2 FCR 732 — 23 Imm LR (4th) 193.

Return to note 58 referrer

Note 59

Guerrero v. Canada (Citizenship and Immigration), 2011 FC 1210 at para 27. Reported: 5 Imm LR (4th) 74 — 208 ACWS (3d) 815.

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Note 60

Ortega Arenas v. Canada (Citizenship and Immigration), 2013 FC 344 , at para 9.

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Note 61

Komaromi v. Canada (Citizenship and Immigration), 2018 FC 1168 , at para 27.

In Montano v. Canada (Citizenship and Immigration), 2013 FC 207, at paras 10-11, Madame Justice Gleason found that the RPD did not err in its section 97 analysis. The claimant had left Colombia 12 years earlier and submitted no evidence to show that if he returned there was any likelihood of “risk on a go-forward basis” of being personally singled out by the FARC or other criminal gangs that would put him at greater risk than the risk of extortion, a risk which would be insufficient to found a claim under section 97 of the IRPA.​

​See similar reasoning in Zuniga v. Canada (Citizenship and Immigration) , 2018 FC 634, where Mr. Justice Brown wrote at para 25, “the RPD was entitled and obliged to weigh and assess the evidence of forward-looking risk.” At para 37, he found it was reasonable to conclude that there was insufficient evidence of a personalized forward-looking risk, given that the the claimants had been away from El Salvador for several years and there was no evidence that anyone was looking for them.

Return to note 61 referrer

Note 62

Callender v. Canada (Citizenship and Immigration), 2020 FC 515, at para 50.

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Note 63

Prophète v. Canada (Citizenship and Immigration), 2009 FCA 31, at paras 7-8. Reported 387 NR 149 — 78 Imm LR (3d) 163. The certified question was:

Where the population of a country faces a generalized risk of crime, does the limitation of section 97 (1)(b)(ii) of the IRPA apply to a subgroup of individuals who face a significantly heightened risk of such crime?

Return to note 63 referrer

Note 64

Burgos Gonzalez v. Canada (Citizenship and Immigration), 2013 FC 426, at para 14. Reported: 431 FTR 268.

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Note 65

Guerrero v. Canada (Citizenship and Immigration), 2011 FC 1210, at para 29. Reported: [2013] 3 FCR 20. Justice Zinn found that the RPD conflated the basis for the risk with the risk itself. The same error has been identified in other cases. See for example Coreas Contreras v. Canada (Citizenship and Immigration), 2013 FC 510, at para 19 where Mr. Justice Mosley held that the member’s error was “in conflating the current risk with the original reason for that risk.”

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Note 66

De Jesus Aleman Aguilar v. Canada (Citizenship and Immigration), 2013 FC 809, at paras 40-41. Reported: 437 FTR 168.

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Note 67

Tomlinson v. Canada (Citizenship and Immigration), 2012 FC 822, at para 18. Reported: 414 FTR 285.

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Note 68

Balcorta Olvera v. Canada (Citizenship and Immigration), 2012 FC 1048, at para 41. Reported: 417 FTR 255.

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Note 69

Ortega Arenas v. Canada (Citizenship and Immigration), 2013 FC 344, at paras 14-15.

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Note 70

Castillo Mendoza v. Canada (Citizenship and Immigration), 2010 FC 648, at para 35. Reported: 368 FTR 309.

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Note 71

Mr. Justice Rennie, in Vaquerano Lovato v. Canada (Citizenship and Immigration), 2012 FC 143, at para 14 wrote:

“[S]ection 97 must not be interpreted in a manner that strips it of any content or meaning. If any risk created by ‘criminal activity’ is always considered a general risk, it is hard to fathom a scenario in which the requirements of section 97 would ever be met. Instead of focusing on whether the risk is created by criminal activity, the Board must direct its attention to the question before it: whether the claimant would face a personal risk to his or her life or a risk of cruel and unusual treatment or punishment, and whether that risk is one not faced generally by other individuals in or from the country. [….]

Return to note 71 referrer

Note 72

Correa v. Canada (Citizenship and Immigration), 2014 FC 252 , at para 50. Reported: [2015] 2 FCR 732.

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Note 73

Vivero v. Canada (Citizenship and Immigration), 2012 FC 138 , at para 25.

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Note 74

Vivero v. Canada (Citizenship and Immigration), 2012 FC 138, at paras 26-27.

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Note 75

Vivero v. Canada (Citizenship and Immigration), 2012 FC 138 , at paras 26, 27 and 30.

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Note 76

Vaquerano Lovato v. Canada (Citizenship and Immigration), 2012 FC 143 , at para 9.

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Note 77

Vaquerano Lovato v. Canada (Citizenship and Immigration), 2012 FC 143, at para 13.

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Note 78

In Michel-Querette v. Canada (Citizenship and Immigration), 2019 FC 827, at para 18, Mr Justice Pentney stated that “random crime indiscriminately and generally faced by everyone living in that country does not meet the standards of paragraph 97(1)(b) of the IRPA.”

Return to note 78 referrer

Note 79

Munoz v. Canada (Citizenship and Immigration), 2010 FC 238, at para 3.

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Note 80

At para 11 of Palomo v. Canada (Citizenship and Immigration) , 2011 FC 1163, Mr. Justice Harrington wrote, “Although examples may be given of what is obviously a random act of violence, which is certainly not personal, and a case where a person is specifically targeted because of who he or she is or his or her special situation, there is a broad spectrum of situations which fall between the two extremes.”

Return to note 80 referrer

Note 81

Martinez Pineda v. Canada (Citizenship and Immigration), 2007 FC 365, at para 15. Reported: 65 Imm LR (3d) 275.

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Note 82

Acosta v. Canada (Citizenship and Immigration), 2009 FC 213 , at para 16.

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Note 83

Balcorta Olvera v. Canada (Citizenship and Immigration), 2012 FC 1048, at para 37. Reported: 417 FTR 255.

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Note 84

Vivero v. Canada (Citizenship and Immigration), 2012 FC 138, at para 11.

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Note 85

Luna Pacheco v. Canada (Citizenship and Immigration), 2012 FC 682, at para 29. Reported: 410 FTR 250.

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Note 86

Refusing to certify a question proposed by the Applicant, Mr. Justice Russell in Rodriguez v. Canada (Citizenship and Immigration), 2012 FC 11, wrote at para 105, “The jurisprudence of the Federal Court of Appeal and of this Court clearly establishes that the question of generalized risk is highly fact specific; in some cases, personal targeting can ground protection, and in some it cannot.” Reported 403 FTR 1.

Return to note 86 referrer

Note 87

Correa v. Canada (Citizenship and Immigration), 2014 FC 252, at paras 45-46. Reported: [2015] 2 FCR 732.

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Note 88

Guerrero v. Canada (Citizenship and Immigration), 2011 FC 1210, at para 34. Reported: [2013] 3 FCR 20.

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Note 89

Flores c. Canada (Citizenship and Immigration), 2015 FC 201, at para 25. The Applicant received notes threatening to kill her if she did not make weekly payments to the Maras. However, she failed to establish that her risk was prospective given that after her departure, neither she nor her sister who lived in the same city had any further contact with the people the Applicant feared.

Return to note 89 referrer

Note 90

Tomlinson v. Canada (Citizenship and Immigration), 2012 FC 822, at para 17. Reported: 414 FTR 285.

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Note 91

Correa v. Canada (Citizenship and Immigration), 2014 FC 252, at paras 56-57. Reported: [2015] 2 FCR 732.

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Note 92

Komaromi v. Canada (Citizenship and Immigration), 2018 FC 1168, at para 26.

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Note 93

Pineda Cabrera v. Canada (Citizenship and Immigration), 2017 FC 239, at para 35. Even more broadly, Madam Justice Strickland identifies “crime” as the reason for risk when she finds that the RPD appeared to have conflated the reason for the risk (crime) with the risk itself.

Return to note 93 referrer

Note 94

Ponce Uribe v. Canada (Citizenship and Immigration), 2011 FC 1164, at para 10. Reported: 398 FTR 165.

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Note 95

Barrios Pineda v. Canada (Citizenship and Immigration), 2011 FC 403, at para 13.

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Note 96

The concept was expressed in a number of ways. Mr Justice Kelen in Rodriguez Perez v. Canada (Citizenship and Immigration), 2009 FC 1029, referred to the harassment and threats the claimants received simply as “a continuation” of extortion. In Servellon Melendez v. Canada (Citizenship and Immigration), 2014 FC 700, at para 54, Mr. Justice Russell referred to the reasoning as “consequential risk logic.”

Return to note 96 referrer

Note 97

Flores Romero v. Canada (Citizenship and Immigration), 2011 FC 772, at para 18. Reported: 392 FTR 248.

Return to note 97 referrer

Note 98

Wilson v. Canada (Citizenship and Immigration), 2013 FC 103, at para 5.

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Note 99

Correa v. Canada (Citizenship and Immigration), 2014 FC 252, at para 84. Reported: [2015] 2 FCR 732.

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Note 100

Herrera Chinchilla v. Canada (Citizenship and Immigration), 2014 FC 546, at paras 33 and 32.

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Note 101

In July 2014, Mr. Justice Russell rendered another two cases in which he reiterated his view that there was an emerging consensus that it was not permissible to dismiss personal targeting as “merely an extension of,” “implicit in” or “ consequential harm resulting from” a generalized risk: Ore v. Canada (Citizenship and Immigration), 2014 FC 642, at para 33; and Servellon Melendez v. Canada (Citizenship and Immigration), 2014 FC 700 , at para 51.

Return to note 101 referrer

Note 102

Galeas v. Canada (Citizenship and Immigration), 2015 FC 667, at para 48.

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Note 103

Ortega Arenas v. Canada (Citizenship and Immigration), 2013 FC 344, at para 9.

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Note 104

Osorio v. Canada (Minister of Citizenship and Immigration), 2005 FC 1459, at paras 24 and 26. In Prophète v. Canada (Citizenship and Immigration), 2008 FC 331, at para 19, Madam Justice Tremblay-Lamer, referring to Osario, wrote "Recently, the term 'generally' was interpreted in a manner that may include segments of the larger population, as well as all residents or citizens of a given country." Reported: 70 Imm LR (3d) 128.

Return to note 104 referrer

Note 105

Innocent v. Canada (Citizenship and Immigration), 2009 FC 1019. Reported 364 FTR 17. At para 40, Mr. Justice Mainville stated that the analysis of the risk faced by other individuals from the country in question could be an analysis of the risk faced by only one segment of the population.

Return to note 105 referrer

Note 106

Rodriguez v. Canada (Citizenship and Immigration), 2012 FC 11. Reported 403 FTR 1. At para 93, Mr. Justice Russell describes the Osario approach as "well-settled in the jurisprudence of [the Federal] Court."

Return to note 106 referrer

Note 107

In Paz Guifarro v. Canada (Citizenship and Immigration), 2011 FC 182, at para 33.

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Note 108

Ventura De Parada v. Canada (Citizenship and Immigration), 2009 FC 845 (business persons in El Salvador); Rodriguez Perez v. Canada (Citizenship and Immigration), 2009 FC 1029 (small business owners in Guatemala); Palomo v. Canada (Citizenship and Immigration) 2011 FC 1163 (shopkeepers in Guatemala).

Return to note 108 referrer

Note 109

Olmedo Rajo v. Canada (Citizenship and Immigration), 2011 FC 1058 (bus drivers in El Salvador); Acosta v. Canada (Citizenship and Immigration), 2009 FC 213 (bus fare collectors in Honduras).

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Note 110

Cruz Pineda v. Canada (Citizenship and Immigration), 2011 FC 81 (delivery drivers in Honduras); Paz Guifarro v. Canada (Citizenship and Immigration), 2011 FC 182 (cargo transportation business owners in Honduras); Hernandez Terriquez v. Canada (Citizenship and Immigration), 2011 FC 1356 (long-distance truck drivers in Mexico).

Return to note 110 referrer

Note 111

Marcelin Gabriel v. Canada (Citizenship and Immigration), 2009 FC 1170; Cius v. Canada (Citizenship and Immigration), 2008 FC 1.

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Note 112

Osorio v. Canada (Minister of Citizenship and Immigration), 2005 FC 1459.

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Note 113

Perez v. Canada (Citizenship and Immigration), 2010 FC 345 and Maldonado Lainez v. Canada (Citizenship and Immigration), 2011 FC 707 (young men recruited to become members of gangs in Honduras); Garcia Arias v. Canada (Citizenship and Immigration), 2010 FC 1029 and Baires Sanchez v. Canada (Citizenship and Immigration), 2011 FC 993 (young men recruited to become members of gangs in El Salvador).

Return to note 113 referrer

Note 114

In Garces Canga v. Canada (Citizenship and Immigration), 2020 CF 749, at para 49, Mr. Justice Gascon described how the elements required to establish a claim under s. 96 were different from those required under s. 97:

"On the other hand, where the claim is based on section 96, the applicant does not necessarily have to prove that he or she has personally been persecuted in the past or would be persecuted in the future; the applicant need only show that his or her fear stems from wrongdoing committed or likely to be committed against members of a group to which he or she belongs, not that it stems from wrongdoing committed or likely to be committed against him or her." [emphasis added]

Return to note 114 referrer

Note 115

In Rodriguez v. Canada (Citizenship and Immigration), 2012 FC 11, at para 75, Justice Russell cites the RPD's findings with apparent approval "… the fact that a specific number of individuals may be targeted more frequently does not mean that they are not subject to a generalized risk of violence. The fact that they share the same risk as other persons similarly situated does not make their risk a personalized risk subject to protection under section 97." Reported 403 FTR 1.

Return to note 115 referrer

Note 116

Correa v. Canada (Citizenship and Immigration), 2014 FC 252 , at para 84 where Justice Russell summarizes a number of principles drawn from his analysis of the case law. Reported: [2015] 2 FCR 732.

Return to note 116 referrer

Note 117

Acosta v. Canada (Citizenship and Immigration), 2009 FC 213, at para 16.

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Note 118

For example, in the seminal case of Martinez Pineda v. Canada (Citizenship and Immigration), 2007 FC 365, Justice de Montigny wrote at para 15:

"[…]It could very well be that the Maras Salvatruchas recruit from the general population; the fact remains that Mr. Pineda, if his testimony is to be believed, had been specifically targeted and was subjected to repeated threats and attacks. On that basis, he was subjected to a greater risk than the risk faced by the population in general. [emphasis added]

Reported: 65 Imm LR (3d) 275.

Return to note 1118 referrer

Note 119

Ramos Aguilar v. Canada (Citizenship and Immigration), 2013 FC 708, at paras 8-11.

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Note 120

Canada (Minister of Citizenship and Immigration) v. Gladstone Richards, 2004 FC 1218, at para 24.

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Note 121

Aguilar Zacarias v. Canada (Citizenship and Immigration), 2011 FC 62, at para 17.

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Note 122

Dieujuste-Phanor v. Canada (Citizenship and Immigration), 2011 FC 186, at paras 26-32.

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Note 123

Garcia Vasquez v. Canada (Citizenship and Immigration), 2011 FC 477, at para 32.

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Note 124

Alvarez Castaneda v. Canada (Citizenship and Immigration), 2011 FC 724, at paras 4-5 and 7.

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Note 125

Monroy Beltran v. Canada (Citizenship and Immigration), 2012 FC 275, at para 20.

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Note 126

Portillo v. Canada (Citizenship and Immigration), 2012 FC 678, at para 50. Reported: [2014] 1 RCF 295.

Return to note 126 referrer

Note 127

Ortega Arenas v. Canada (Citizenship and Immigration), 2013 FC 344, at paras 14-15.

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Note 128

Correa v. Canada (Citizenship and Immigration), 2014 FC 252, at paras 83 and 94-95. Reported: [2015] 2 FCR 732.

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Note 129

In Wai v. Canada (Citizenship and Immigration), 2007 FC 364, Mr. Justice de Montigny disagreed with counsel who argued that it was an error to apply the notion of a law of general application to a s. 97 application. At para 16, he wrote, "While the 'law of general application" concept has evolved through cases involving Convention refugee claims under section 96 of the IRPA that does not mean using the concept in the context of a PRRA decision undermined the officer's analysis." For a discussion of the application of this concept in the Convention refugee context, see Chapter 9.

Return to note 129 referrer

Note 130

Canada (Citizenship and Immigration) v. Harvey, 2013 FC 717, at para 41. Reported: [2015] 1 RCF 3.

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Note 131

R. v. Smith (Edward Dewey) , 1987 CanLII 64 (SCC). Reported: [1987] 1 SCR 1045.

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Note 132

Canada (Citizenship and Immigration) v. Harvey, 2013 FC 717 , at para 53. Reported: [2015] 1 RCF 3.

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Note 133

Canada (Citizenship and Immigration) v. Harvey, 2013 FC 717, [2015] 1 RCF 3, at para 45. Mr. Justice O'Reilly allowed the judicial review because of the same error in Klochek v. Canada (Citizenship and Immigration), 2010 FC 474, at para 10: "If a person is to be denied protection because the risk to which he or she is subject derives from a lawful sanction, the next question is whether that sanction accords with accepted international standards."

Return to note 133 referrer

Note 134

Cao v. Canada (Citizenship and Immigration), 2015 FC 790, at paras 57-58.

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Note 135

Rodriguez v. Canada (Citizenship and Immigration), 2015 FC 972, at paras 23-26.

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Note 136

Canada (Citizenship and Immigration) v. Harvey, 2013 FC 717, [2015] 1 RCF 3 at para 55.

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Note 137

United States v. Burns, 2001 SCC 7 , [2001] 1 SCR 283, at para 143.

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Note 138

United States v. Burns, 2001 SCC 7, [2001] 1 SCR 283, at paras 68–69.

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Note 139

United States v. Burns, 2001 SCC 7, [2001] 1 SCR 283, at paras 78, 84 and 89.

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Note 140

Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 SCR 350, at para 98.

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Note 141

Kilic v. Canada (Minister of Citizenship and Immigration), 2004 FC 84, at para 27.

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Note 142

Asgarov v. Canada (Immigration, Refugees and Citizenship), 2019 FC 106 at paras 2 and 17.

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Note 143

Usta v. Canada (Minister of Citizenship and Immigration), 2004 FC 1525, at paras 15 and 16.

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Note 144

Lebedev v. Canada (Minister of Citizenship and Immigration), 2007 FC 728, at paras 18 and 91.

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Note 145

Perez v. Canada (Citizenship and Immigration), 2010 FC 833, at para 15: “In short, the jurisprudence is clear that the Applicant, who failed to renew her valid exit visa, cannot rely on the possibility of punishment under Cuba’s Criminal Code as grounds for protection under s. 96 or s. 97. [emphasis added]

Return to note 145 referrer

Note 146

Kilic v. Canada (Minister of Citizenship and Immigration), 2004 FC 84, at para 27. The evidence included a letter from the Turkish Ministry of National Defence stating that the applicant was regarded as an absentee from conscription, an offense punished “with a serious prison sentence.” Mr. Justice Mosley allowed the application for judicial review:

[27] In my opinion, the Board in this case did not address the country documentation and other evidence related to prison conditions in Turkey and failed to consider whether the applicant could be a "person in need of protection" if returned to that country, in light of the possibility that he may face a "serious prison sentence" for evading Turkish military service.

Return to note 146 referrer

Note 147

Asgarov v. Canada (Immigration, Refugees and Citizenship), 2019 FC 106 at paras 9, 2, 17 and 18.

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Note 148

Covarrubias v. Canada (Minister of Citizenship and Immigration), 2006 FCA 365 , [2007] 3 FCR 169.

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Note 149

The certified question was: Does the exclusion of a risk to life caused by the inability of a country to provide adequate medical care to a person suffering a life‑threatening illness under section 97 of the Immigration and Refugee Protection Act infringe the Canadian Charter of Rights and Freedoms in a manner that does not accord with the principles of fundamental justice, and which cannot be justified under section 1 of the Charter?

Return to note 149 referrer

Note 150

Covarrubias v. Canada (Minister of Citizenship and Immigration), 2005 FC 1193 . Case law regarding the s. 97(1)(b)(iv) provision consists primarily of judicial reviews of decisions taken by pre-removal risk assessment (PRRA) officers.

Return to note 150 referrer

Note 151

Singh v. Canada (Minister of Citizenship and Immigration), 2004 FC 288 , [2004] 3 FCR 323.

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Note 152

Singh v. Canada (Minister of Citizenship and Immigration), 2004 FC 288, [2004] 3 FCR 323, at para 21.

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Note 153

Singh v. Canada (Minister of Citizenship and Immigration), 2004 FC 288, [2004] 3 FCR 323, at paras 23-24.

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Note 154

Covarrubias v. Canada (Minister of Citizenship and Immigration), 2005 FC 1193, at para 33.

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Note 155

Covarrubias v. Canada (Minister of Citizenship and Immigration), 2006 FCA 365 , [2007] 3 FCR 169, at paras 24-25.

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Note 156

Covarrubias v. Canada (Minister of Citizenship and Immigration), 2006 FCA 365 , [2007] 3 FCR 169, at para 31.

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Note 157

Covarrubias v. Canada (Minister of Citizenship and Immigration), 2006 FCA 365, [2007] 3 FCR 169, at para 37.

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Note 158

Covarrubias v. Canada (Minister of Citizenship and Immigration), 2006 FCA 365, [2007] 3 FCR 169, at para 38.

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Note 159

Covarrubias v. Canada (Minister of Citizenship and Immigration), 2006 FCA 365, [2007] 3 FCR 169, at para 39.

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Note 160

Covarrubias v. Canada (Minister ofCitizenship and Immigration),2006 FCA 365, [2007] 3 FCR 169, at paras38, 39 and 41.

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Note 161

Babar v. Canada (Minister of Citizenship and Immigration), 2005 FC 586, at paras 2 and 5.

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Note 162

Begum v. Canada (Citizenship and Immigration), 2011 FC 10, at para 62.

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Note 163

Nicolas v. Canada (Citizenship and Immigration), 2010 FC 452; 367 FTR 223, at para 33.

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Note 164

Ogbebor v. Canada (Citizenship and Immigration), 2011 FC 1331, at para 18.

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Note 165

Nebie v. Canada (Citizenship and Immigration), 2015 FC 701, at para 39.

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Note 166

Richmond v. Canada (Citizenship and Immigration), 2013 FC 228.

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Note 167

Averin v. Canada (Citizenship and Immigration), 2012 FC 1457, at paras 9-11.

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Note 168

Ferreira v. Canada (Citizenship and Immigration), 2014 FC 756, at paras 13-14.

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Note 169

Lemika v. Canada (Citizenship and Immigration), 2012 FC 467, at para 29.

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Note 170

Mwayuma v. Canada (Citizenship and Immigration), 2019 FC 1573, at paras 20 and 24-26.

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Note 171

Covarrubias v. Canada (Minister of Citizenship and Immigration), 2006 FCA 365 , [2007] 3 FCR 169, at para 62.

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Note 172

Covarrubias v. Canada (Minister of Citizenship and Immigration), 2006 FCA 365, [2007] 3 FCR 169, at paras 60-61.

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Note 173

Laidlow v. Canada (Citizenship and Immigration), 2012 FC 144.

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Note 174

Laidlow v. Canada (Citizenship and Immigration), 2012 FC 144, at paras 16, 19, 31 and 37.

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Note 175

Laidlow v. Canada (Citizenship and Immigration), 2012 FCA 256, at para 17.

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Note 176

Laidlow v. Canada (Citizenship and Immigration), 2012 FCA 256 , at paras 19-20.

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Note 177

Spooner v. Canada (Citizenship and Immigration), 2014 FC 870, at paras 16, 24-26, and 29-30.

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