Li v. Canada

Li v. Canada (Minister of Citizenship and Immigration), 2005 FCA 1 (CanLII)

• Chinese claimant appeals to the FCA after a negative JR of a negative RPD decision
• Claims protection under s. 97(1)(a), which was meant to give effect to Canada’s obligations under the CAT
• Article 3 of the CAT has been previously interpreted by Robertson JA of the FCA in Suresh, which held that “substantial grounds for believing that” adopted a balance of probabilities (BOP) legal test for risk (in addition to the BOP test for establishing facts)
• This is consistent with jurisprudence on Article 3 CAT in other countries
• Since 97(1)(a) was meant to adopt Article 3 of CAT and should be interpreted in the same way – we presume the legislators knew about the judicial interpretation of the model legislation when they adopted this provision
• Standard for s. 97(1)(b) is the same BOP standard for risk given no indication of a lower standard (as we see in s. 96) or a higher standard