The Drag-Net of S34f Inadmissibility under IRPA and its Implications for Refugee Claimants

S34 inadmissibility[1] and s98 exclusion[2] are two legal means under Canada’s Immigration and Refugee Protection Act (‘IRPA’) by which refugee claimants seeking asylum in Canada can be cast back into the proverbial sea. While the exclusion provision of the IRPA functions to exclude certain people from the legal definition of refugee, a s34 inadmissibility pre-empts making a refugee claim at the outset.[3]

Concerningly, the s34 inadmissibility regime is broad and permissive, and more easily drags asylees into its ambit than exclusion.[4] This makes s34 a more useful tool for barring entry to Canada than exclusion, and by entirely circumventing the refugee claims process[5], increases the likelihood that asylees will be expelled to conditions of persecution in contravention of the international refugee law principle of non-refoulement.[6]

Furthermore, in that s34 “more or less permits the government to ‘do as it pleases’”,[7] and that it is nevertheless used primarily against would-be refugees from the Global South often involved in liberatory struggles against oppressive regimes, also calls into question the integrity of the security regime that it is embedded in. In his 2016 dissertation, Angus Gavin Grant puts it this way[8]:

“Notionally at least, the scope of s34 extends to any present, former or future member of the militaries of, for example, the United States, Great Britain, Italy, Russia, France, Australia and Poland, all of which have engaged in the subversion by force of governments; to anyone affiliated with the current ANC government in South Africa; to every Russian former member of the Communist Party; and the list goes on, almost ad infinitum … The reality of course is that s34 is not generally applied to such individuals and this fact, combined with an examination of the kinds of persons who are subjected to s34 proceedings, lies at the very core of this dissertation.” ?

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The ‘startling’ effects of, and heavy reliance on, s34f of IRPA

Pursuant to s34, a permanent resident or foreign national is inadmissible on security grounds if they personally engage in espionage (34a), engage in or instigate the subversion of force of any government (34b), engage in acts of subversion against a democratic government, institution or process (34b.1), engage in terrorism (34c), are a danger to the security of Canada (34d), engage in acts of violence that would or might endanger the lives or safety of persons in Canada (35e) or, while not personally having engaged in or instigated any acts of subversion or terrorism, are a member of an organization that engages, has engaged, or will engage in acts of espionage, subversion, or terrorism (34f).[9]

Section 34f is a legal oddball in that it enshrines a form of “third party liability”[10] that holds people accountable for the criminal actions of other members. In international criminal law and the law of refugee exclusion, in contrast, “mere membership in an organization that has committed international crimes is never sufficient in and of itself to attract legal liability.”[11]

That s34f can therefore have “startling” impacts is well-established in the caselaw. As the Federal Court put it in Oremade v. Canada: “Arguably such revered and diverse figures as George Washington, Eamon De?Valera, Menachem Begin and Nelson Mandela might be deemed inadmissible to Canada” under its broad sweep.[12]

The broad, absolute liability of s34f may be why s34 inadmissibility cases are often brought under s34f focused on membership rather than personal involvement[13], why the test for exclusion, requiring evidence of individual contributions to the organization and its criminal purpose, is harder to meet[14], and why therefore inadmissibility has become a “preferred method for addressing individuals of particular backgrounds, as opposed to addressing them through the exclusion clause associated with the refugee process.”[15]

In his dissertation on this topic, Grant found that “the vast majority of s34 cases involve allegations of inadmissibility based on membership.”[16] This is no surprise given that s34f “is intended to cast a wide net in order to capture a broad range of conduct that is inimical to Canada’s interests.”[17] Not surprisingly, the evidentiary threshold is “relatively low”[18]. Since there “is no formal test for membership and members are not therefore easily identifiable”, and since s34f deals with subversion and terrorism, “the most serious concerns of government”, the term “member” is to “be given an unrestricted and broad interpretation.”[19] Finally, [o]nce membership is admitted, it is membership for all purposes”.[20] By indicating that you were a member of an organization (in your refugee forms, for instance), you become one for the purpose of s34f.

To take but one example. Consider a refugee claimant from Nigeria who, in their past, engaged in the democratic act of voting in the hope that their vote will help improve the economic and social conditions for the Nigerian people. Let’s say they voted for the All Progressives Congress (‘APC’), or alternatively, for their rival, the Peoples Democratic Party (‘PDP’). Later on, in Canada, and after having been forced to flee persecution in Nigeria, they then complete their refugee claim forms and respond “yes” to the broad question of whether they have “ever supported, been a member of, or been associated with any organization” including “trade unions, professional associations and any political, social, youth or student organizations.” Having voted once, and naively, perhaps somewhat proudly, indicated that they were associated with the APC in the past, they are now at risk of being caught under s34f and of being ineligible to make a refugee claim.[21]

Having voted once for the APC, they become, after having answered “yes” to a vague question about membership, a member of the APC for the purpose of s34f. As the Federal Court likes to remind applicants, “[a]ctual or formal membership in an organization is not required, nor is an actual involvement or active participation in the wrongful subversive or terrorist activities of the organization ... There is no need for a significant level of integration within the organization.”[22] All that is required is that you admit that you are a member, and then it is “membership for all purposes”, “regardless of the nature, frequency, duration or degree of involvement”.[23] ??

Regardless of the facts that Canada has diplomatic relations with Nigeria, including through APC or PDP leadership, that voting is generally championed and applauded in Canada, or that voting for a political party of your choice is a matter of speech and freedom of association that the Canadian Charter of Rights and Freedoms protects, s34f can, and often will, be used against this particular refugee claimant and many others like them. An officer of the Canada Border Services Agency (‘CBSA’), governed by the ethos of ‘enforcement and security’, will make the case, often with voluminous 400 to 700 pages of disclosure, that the APC or the PDP (or a variety of other organizations) is an organization that “there are reasonable grounds to believe” engages, has engaged, or will engage in acts of terrorism or subversion. Removal by CBSA is the “end-game” of this process.[24]

It might strike you as weird that someone could be denied access to the refugee claim process via a security provision despite little if any evidence of their risk to Canadian security, or the security of any other country for that matter. Catherine Dauvergne refers to this weirdness as a fact-resistant phenomenon that reflects “a state of being whereby once something (or someone) has been identified as a security threat and transported into the realm of the exceptional, facts take on an ever-diminishing importance.”[25] According to Grant, “[o]nce something, such as migration, has successfully been cast as a security issue, fact-resistance kicks in, analysis stops, scrutiny turns off like a light, and exceptional expressions of executive power come in through the dark.”[26]

Intriguingly, Grant’s study found that “the two provisions that relate directly to Canadian security – s 34(1)(d) and 34(1)(e) – have been essentially unused since the IRPA came into effect over a decade ago”.[27]

If s34f inadmissibility proceedings ignore whether someone is a security risk to Canada, and if it captures individuals and organizations that Canada has diplomatic relations with and or supports, then what is its point?

Is s34f, and CBSA’s use of it, what Grant calls the “acquiescence to the language of security”? A fact-resistant assumption that anyone who is a member of an organization captured by s34f is thereby de-facto a risk to Canadian security? Or is s34f a political tool that, as the Federal Court hinted at in Toronto Coalition to Stop the War v. Canada[28], can be used to keep undesirable people out of Canada?

Regardless the motivation, the result is that many people who most would argue are of no concern from a national-security perspective, get barred from making a refugee claim and therefore risk being sent back to persecution.

[1] Immigration and Refugee Protection Act (S.C. 2001, c. 27) at s 34 [Act].

[2] Ibid at s 98.

[3] Ibid at s 101(1)(f).

[4] Angus Gavin Grant, "Confronting (In)Security: Forging Legitimate Approaches to Security and Exclusion in Migration Law" (2016) PhD Dissertations 24 at p 288, online: https://digitalcommons.osgoode.yorku.ca/phd/24 [Grant].

[5] Ibid at p 131.

[6] Office of the United Nations High Commissioner for Human Rights, “The principle of non-refoulement under international human rights law” (2018), online: www.migrationnetwork.un.org/resources/principle-non-refoulement-under-international-human-rights-law.

[7] Grant, supra at p 116.

[8] Ibid at pp 115-116.

[9] Act, supra at s 34.

[10] Grant, supra at p 111.

[11] Ibid.

[12] Oremade v. Canada (Minister of Citizenship and Immigration) (F.C.), 2005 FC 1077 (CanLII), [2006] 1 FCR 393 at para 17.

[13] Grant, supra at p 134 & 143.

[14] Ibid at p 111.

[15] Ibid at p 134.

[16] Ibid at p 114.

[17] Ugbazghi v. Canada (Minister of Citizenship and Immigration) (F.C.), 2008 FC 694 at para 47.

[18] Ibid.

[19] Poshteh v. Canada (Minister of Citizenship and Immigration) (F.C.A.), 2005 FCA 85 at para 27.

[20] Canada (Public Safety and Emergency Preparedness) v. Ukhueduan, 2023 FC 189 at para 23 [Ukhueduan].

[21] See for e.g., X v Canada (Public Safety and Emergency Preparedness), 2022 CanLII 134801.

[22] Ukhueduan, supra at para 22.

[23] Ibid at para 23.

[24] Grant, supra at p 54.

[25] Ibid at p 56.

[26] Ibid.

[27] Ibid at p 144.

[28] Toronto Coalition to Stop the War v. Canada (Public Safety and Emergency Preparedness), 2010 FC 957 at para 8.