Alternative Fact? More Democratic States Are More Likely to Provide Refugee Protection

Abstract

Democracy is explicitly engaged in two aspects of the Canadian refugee determination process: state protection findings and Designated Country of Origin determinations. Democracy is also implicitly engaged in the selection of countries as so-called “safe countries.” This paper reviews the literature on measuring the level of democracy in a given state, and the empirical evidence linking this level to a state’s willingness and ability to provide adequate protection to its citizens. The paper argues the Federal Court of Appeal was misguided in taking judicial notice of a correlation between the level of democracy in a given state and its ability to provide state protection. The paper also reviews and questions the use of “democratic governance” as a factor in Immigration, Refugees and Citizenship Canada’s Designated Country of Origin regime, as well as the implicit use of democracy in designating the United States as a “safe” country under the Safe Third Country Agreement. The paper contends the time has come to reconsider how democracy measurements are used in Canada’s refugee determination process and advocates for an individualized approach to state protection determinations, one that eschews the alternative fact presumption of a connection between democracy and protection, and instead focuses on the protective mechanisms available to a refugee claimant based on their unique circumstances.

Keywords: refugee law, state protection, designated countries of origin, social science evidence, democracy, empirical legal studies