Pushpanathan v. Canada

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982, 1998 CanLII 778 (SCC)


• Sri Lankan entered Canada in 1985 and initially filed a refugee claim that was never adjudicated
• Was admitted to Canada through another administrative program (not refugee)
• Then convicted of conspiracy to traffic heroine, sentenced to eight years in prison
• After out on parole, renewed his refugee claim to avoid deportation, avail himself of refoulement protections
• This case is important for:

o (1) Commentary on Exclusion clause 1F(C) of the Refugee Convention and 1F generally (although see Febles specifically for 1F(b))
o (2) The “pragmatic and functional” approach to judicial review, expanded on by Dunsmuir

• Pragmatic and functional factors to be taken into account: (1) presence or absence of privative clause; (2) expertise; (3) purpose of act as a whole and provision in particular; (4) nature of legal question

• Standard of review here is correctness because no expertise in determining the ambit of 1F(c) of the Convention; little human rights expertise; this is a question of law of general importance to the legal system

• Art. 1F(c) of the Convention provides that the provisions of the Convention do not apply to a person who “has been guilty of acts contrary to the purposes and principles of the United Nations”

• The Federal Court, Trial Division dismissed the appellant’s application for judicial review and certified the following as a serious question of general importance for consideration: Is it an error of law for the Refugee Division to interpret Art. 1F(c) of the Convention to exclude from refugee status an individual guilty of a serious narcotics offence committed in Canada?

o SCC’s answer: Yes.

• The Court sets out a human rights approach to interpreting the Immigration Act. Interpret in a manner consistent with the Convention. Look to Articles 31 and 32 of the Vienna Convention on the Law of Treaties for interpretive principles (plain language, look to travaux preparatoires for clarification in case of ambiguity or manifestly absurd result)

• The rationale of Art. 1F of the Convention is that those who are responsible for the persecution which creates refugees should not enjoy the benefits of a convention designed to protect those refugees. In the light of the general purposes of the Convention and the indications in the travaux préparatoires as to the relative ambit of Arts. 1F(a) and 1F(c), the purpose of Art. 1F(c) is to exclude those individuals responsible for serious, sustained or systemic violations of fundamental human rights which amount to persecution in a non war setting.

• [74] There is no rational connection between the objectives of the Convention and the objectives of the limitation on Article 1F(c) as stated by the respondent. Until the international community makes clear its view that drug trafficking, in one form or another, is a serious violation of fundamental human rights amounting to persecution, then there can be no rationale for counting it among the grounds of exclusion. The connection between persecution and the international refugee problem is what justifies the definitional exclusions in Article 1F(a) and F(c).

Pushpanathan in recent case-law:

• However, with respect to the application of the Court’s dicta in Pushpanathan to 1F(b), the SCC in Febles (2014) held as follows:

o [49] The restrictive views contained in the passing comments regarding Article 1F(b) made in obiter dicta in Ward and Pushpanathan find little support in the international case law. Recent jurisprudence out of the United Kingdom, Australia, New Zealand, and the European Union rejects the view that the purpose of Article 1F(b) is confined to exclusion of fugitives.