Jayasekara v. Canada

Jayasekara v. Canada (Minister of Citizenship and Immigration), [2009] 4 FCR 164, 2008 FCA 404 (CanLII)


• Deals with Article 1F(b) exclusion clause from the Refugee Convention:

The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
• Sri Lankan who had lived in the United States for a number of years without status; entered Canada and made a refugee claim
• He was excluded by the RPD because there were serious grounds for believing that he had committed a serious non-political crime, namely drug trafficking in the United States.

• For definition of “serious non-political crime”, look to UNHCR Background Note and Handbook, jurisprudence of foreign courts interpreting the Convention, and domestic legislation within Canada

• [44] I believe there is a consensus among the courts that the interpretation of the exclusion clause in Article 1F(b) of the Convention, as regards the seriousness of a crime, requires an evaluation of the elements of the crime, the mode of prosecution, the penalty prescribed, the facts and the mitigating and aggravating circumstances underlying the conviction.
[45] For instance, a constraint short of the criminal law defence of duress may be a relevant mitigating factor in assessing the seriousness of the crime committed. The harm caused to the victim or society, the use of a weapon, the fact that the crime is committed by an organized criminal group, etc. would also be relevant factors to be considered.
• If the offence is punishable by 10-year term of imprisonment if committed in Canada, this is a good indication that Parliament views it as serious
• However, see Febles: it is not automatic that an offence punishable by 10 years or more in Canada means it is serious for the purposes of 1F(b)
Febles (2014 SCC)

o [62] The Federal Court of Appeal in Chan v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 17150 (FCA), [2000] 4 F.C. 390 (C.A.), and Jayasekara has taken the view that where a maximum sentence of ten years or more could have been imposed had the crime been committed in Canada, the crime will generally be considered serious. I agree. However, this generalization should not be understood as a rigid presumption that is impossible to rebut. Where a provision of the Canadian Criminal Code, R.S.C. 1985, c. C-46, has a large sentencing range, the upper end being ten years or more and the lower end being quite low, a claimant whose crime would fall at the less serious end of the range in Canada should not be presumptively excluded. Article 1F (b) is designed to exclude only those whose crimes are serious. The UNHCR has suggested that a presumption of serious crime might be raised by evidence of commission of any of the following offences: homicide, rape, child molesting, wounding, arson, drugs trafficking, and armed robbery (G. S. Goodwin-Gill, The Refugee in International Law (3rd ed. 2007), at p. 179). These are good examples of crimes that are sufficiently serious to presumptively warrant exclusion from refugee protection. However, as indicated, the presumption may be rebutted in a particular case. While consideration of whether a maximum sentence of ten years or more could have been imposed had the crime been committed in Canada is a useful guideline, and crimes attracting a maximum sentence of ten years or more in Canada will generally be sufficiently serious to warrant exclusion, the ten-year rule should not be applied in a mechanistic, decontextualized, or unjust manner.\
Jayasekara and Febles in other case-law:
• See Jung v. Canada (Citizenship and Immigration), 2015 FC 464 and Tabagua v. Canada (Citizenship and Immigration), 2015 FC 709, where it was clear that the RPD had placed too much emphasis on the 10-year rule and applied it mechanically