Problematic Trends in the Analysis of State Protection and Article 1F(a) Exclusion in Canadian Refugee Law

In Canada, recent years have seen a proliferation of both Convention refugee status refusals based on the application of the exclusion clause in Article 1F(a) and refusals based on the notion that adequate 'state protection' already exists in the claimant's home country. Both phenomena have resulted from deficiencies in the framework of analysis undertaken by first-level decision makers. In the case of refusals based on 'state protection', there has been a movement away from the traditional role assigned to the concept by the UNHCR and the jurists as relating to the second 'state-source' prong in the two-pronged definition of 'persecution'. The result has been the emergence of a 'lack of state protection' as a stand-alone criterion for refugee status and concomitant developments, such as a difficult-to- rebut presumption of state ability to protect; the use of a 'state protection' analysis even where state agents are the direct perpetrators of the harm; and the lack of a standard for measuring the adequacy of state protection, etc. In order to remedy this situation, the analysis must be refocused to reflect traditional notions around the role of the concept of 'state protection' within the refugee definition itself; to eliminate any presumption of state ability to protect, to clearly identify what constitutes a state agent and to develop a comprehensive standard for assessing the adequacy of domestic protective mechanisms. With regard to the exclusion clause in Article 1F(a), an examination of Canadian jurisprudence reveals a gradual widening of the clause's scope to the point where there is virtually no mens rea or even actus reus requirement and the notion of 'guilt by association' has become the norm. This situation is essentially the result of confusion between the concept of 'personal and knowing participation in international crimes', on the one hand, and the concept of 'personal and knowing participation in a group whose members commit international crimes', on the other. Fortunately, revisiting criteria developed in some early appellate-level judgments and making use of recent guidelines from the UNHCR on the subject are just some ways in which Canadian decision makers can point themselves in the right direction. Adapted from the source document.