Criminality and Refugee Claims – Febles v Canada (Citizenship and Immigration), 2014 SCC 68

Mr. Febles is a Cuban citizen who was granted refugee status in the United States. While in the United States, he was convicted and served time in prison for two assaults with deadly weapons. As a result, he was subject to removal after having served his sentences. Shortly after his release from prison, he entered Canada illegally and claimed refugee status.

Before the Refugee Protection Division of the Immigration and Refugee Board (RPD), Mr. Febles argued that he had served his sentences, posed no danger to Canadian and was now rehabilitated. The RPD dismissed his claim stating that he has committed a serious non-political crime outside the country of refuge prior to his admission to Canada. Both the Federal Court and the Federal Court of Appeal dismissed his application for judicial review.

Does Article 1F(b) – the serious criminality exclusion – of the Convention Relation to the Status of Refugees, incorporated in Canada by section 98 of the Immigration and Refugee Protection Act bar Mr. Febles from refugee protections because of the crimes committed in the US?

In 5:2 split decision, the Supreme Court of Canada found that there is nothing in the text of the provision suggesting that Article 1F(b) only applies to fugitives, or that factors such as current lack of dangerousness or post-crime expiation or rehabilitation are to be considered or balanced against the seriousness of the crime. The only question is whether the claimant committed a serious non-political crime before seeking refugee protection in Canada.

Is precluding a decision-maker from considering other factors or balancing them against the seriousness of the crime inconsistent with the humanitarian purposes of the Refugee Convention? As Justice Abella, writing the dissenting judgment, said: “[t]here is little or no authority for the proposition that everyone who has committed a serious non-political crime outside the country of refuge remains permanently undeserving of the Refugee Convention’s protection regardless of their supervening personal circumstances. Such a relentlessly exclusionary – and literal – approach would contradict both the “good faith” approach to interpretation required by the Vienna Convention as well as the Refugee Convention’s human rights purpose.”