Chan v. Canada

Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593, 1995 CanLII 71 (SCC)

• Forced sterilization, one child policy in China
• Dissent by La Forest J continues to be persuasive
• Majority dismissed the appeal based on an insufficiency of evidentiary record and didn’t deal with persecution, social group analysis, etc.
• In Chan (S.C.C.), Mr. Justice La Forest, in dissent, commented on forced sterilization as amounting to persecution:

… [W]hatever technique is employed, it is utterly beyond dispute that forced sterilization is in essence an inhuman and degrading treatment involving bodily mutilation, and constitutes the very type of fundamental violation of basic human rights that is the concern of refugee law.

• La Forest also dealt with the concept of laws of general application amounting to persecution:

o 65 I should say that I do not in general consider it appropriate for courts to make implicit or explicit pronouncements on the validity of another nation’s social policies. In the present case, the full extent of the Chinese population policy is unknown in this country and undue speculation as to its legitimacy serves no purpose. Whether the Chinese government decides to curb its population is an internal matter for that government to decide. Indeed, there are undoubtedly appropriate and acceptable means of achieving the objectives of its policy that are not in violation of basic human rights. However, when the means employed place broadly protected and well understood basic human rights under international law such as the security of the person in jeopardy, the boundary between acceptable means of achieving a legitimate policy and persecution will have been crossed. It is at this point that Canadian judicial bodies may pronounce on the validity of the means by which a social policy may be implemented in an individual case by either granting or denying Convention refugee status, assuming of course that the claimant’s credibility is not in question and that his or her account conforms with generally known facts.

• La Forest discussed the second prong of the social group analysis from Ward and concluded that it is the perspective of the persecutor which counts:

o [87] In order to avoid any confusion on this point let me state incontrovertibly that a refugee alleging membership in a particular social group does not have to be in voluntary association with other persons similar to him- or herself. Such a claimant is in no manner required to associate, ally, or consort voluntarily with kindred persons.

After all, it hardly matters to a racist whether a person of colour sees himself or herself as united with other people of colour in a stable association to achieve common purposes.

As Professor Macklin recognizes, the question that must be asked is whether the appellant is voluntarily associated with a particular status for reasons so fundamental to his human dignity that he should not be forced to forsake that association. The association or group exists by virtue of a common attempt made by its members to exercise a fundamental human right.

• Then he applies the second prong of Ward to the specific facts of this case at paras 88-89:

o I accept the respondent’s categorization of the right asserted as the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children

I think that the majority of the Court of Appeal erred in its determination of the appellant’s particular social group. Persons such as the appellant, if persecuted on the basis of having had more than one child, would be able to allege membership in a particular social group.