Violent Determinations for LGBTQ and Marginalized Minorities: A Retrospective Look at How State Protection in Canadian Refugee Law Has Limited Protection
University of Ottawa - Common Law Section
December 19, 2016
Ottawa Faculty of Law Working Paper No. 2017-03
Canadian refugee law has evolved substantially in the last two decades, especially when it comes to making findings of whether a state provides protection to a refugee claimant. We are making presumptions, increasing burdens on claimants, asking claimants whether they have done their due diligence and accepting just the best efforts of a state to assuage concerns that protection is necessary. All of these measures have been adopted without consideration as to the true object and purpose of the refugee protection regime and the international law principles that support this regime. Currently in Canada, there is not only confusion as to what the refugee definition calls for in terms of assessing state protection, but the inconsistent application of various approaches gives rise to concerns that legitimate refugee claimants are being denied protection, especially those who make claims based on gender and sexual orientation.
This paper argues that the integrity of Canada's refugee protection regime is at stake and decision-makers and judges should reconsider the path Canada has taken since Canada v Ward. The recommendation is to eliminate presumptions, do away with the expectations that claimants need to exercise all due diligence, and accept nothing but effective state protection.
Number of Pages in PDF File: 23
Keywords: refugee, law, immigration, state protection, Canada
Date posted: December 19, 2016 ; Last revised: January 26, 2017