The Defence of Duress in Canadian Refugee Law
46 Pages Posted: 3 Feb 2015 Last revised: 11 Aug 2016
Date Written: January 1, 2016
The majority of refugees come from destabilized states and conflict zones where threats and fear are endemic, and immediate escape is not always possible. These environments may necessitate that a person commit crimes to prevent harm to themselves or third parties before they cross borders and seek international protection. Under Canada's current refugee regime, such persons may be prevented from accessing refugee protection and status on the basis of criminality. Doctrinal complexities concerning available defences and procedural incoherencies complicate Canada's refugee decision making and have the potential to perpetuate grave injustices against refugee claimants.
The author argues that defences should be available in any refugee case where status is denied on the basis of criminality, and emphasizes the unique and enhanced role that defences should play in this context. Further, that current confusion about when and how defences ought to be applied by decision makers in Canada's refugee system must be resolved such that all exculpatory factors are fully and properly considered where criminality is alleged. Uncertainty over relevant sources of law underpins significant inconsistency in decision making and is problematic given important substantive differences between domestic and international criminal law. The article discusses the implications for the defence of duress in particular, given its relevance to many refugee claimants. The author identifies sources of law that must be considered by decision makers in refugee inadmissibility and exclusion cases, and specifies three aspects of the defence of duress that are critical in this context: temporal connection, implied threats and the modified objective standard.
Keywords: refugee, exclusion, inadmissibility, defence, duress, criminality, IRPA
JEL Classification: K10, K14, K19
Suggested Citation: Suggested Citation