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Canada (Attorney General) v Ward, [1993] 2 SCR 689 (Link)

Facts:

** W joined INLA to protect his family, and was tasked with guarding 2 hostages
** When he found out they were to be executed, he helped them escape --- INLA found out it was him and tortured him threatening him with death
** He was arrested, and his family was taken hostage --- served time for role in the hostage taking and with help of prison padre got a passport to go to Canada to claim refugee status
** Found not to be a refugee, applied for redetermination, and the Board found him to be a refugee. Crown appealed and FC sent it back to Board for redetermination --- this is an appeal from the FC decision

Issue(s):

** (1) whether the element of state complicity is required to establish a refugee claim and the nature of the "unwillingness" or "inability" of a claimant to seek the protection of his or her home state;
** (2) the meaning of "particular social group";
** (3) the nature of persecution for political opinion and whether desertion from a politico-military organization for reasons of conscience may properly ground a claim based on that ground;
** (4) whether s. 15 of the Charter was applicable; and
** (5) in cases of multiple nationality, whether the claimant must establish want of protection in all states of citizenship.

Ratio:

** State complicity is not required to ground a claim for the purposes of ‘unable’ or ‘unwilling’ in the Convention definition.
** 3 categories of particular social group
** Political opinion can be imputed from actions --- it is the opinion attributed to the claimant by their persecutors that is determinative

Analysis:

Issue 1: claimant has to provide clear and convincing evidence of state’s inability to protect --- presumed that states are capable of protecting their citizens (except in state breakdown)
** if the state is able to protect the claimant, then from an objective standard the fear of persecution is not well-founded
** state complicity is not necessary to ground a claim, where the state cannot or will not protect the claimant
** ineffective state protection is part of ‘unable’ and ‘unwilling’
** protection from Irish police would not be effective therefore

Issue 2: 3 categories of ‘particular social group’, which are based on defence of HR and anti-discrimination:
** (1) groups defined by an innate, unchangeable characteristic; (2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and (3) groups associated by a former voluntary status, unalterable due to its historical permanence.
** INLA is not a particular social group, as it does not meet any of the 3 categories --- membership in INLA placed him in the circumstances that led to his fear, but fear was based on actions not affiliation

Issue 3: The examination of the circumstances should be approached from the perspective of the persecutor, since that is the perspective that is determinative in inciting the persecution
** Can impute W’s political opinion from his actions of setting the hostages free: he believed there were limits to means used for the achievement of political change--- his persecution stemmed from this fear

Issue 4: not necessary to resolve

Issue 5: The Board must investigate whether the claimant is unable or unwilling to avail him- or herself of the protection of each and every country of nationality
** There was evidence that the British gov't would likely not admit W on the basis of prohibiting nationals from entering Great Britain if they were connected with terrorism in Northern Ireland --- IRB needs to determine if presumption of protection is rebutted by state being unwilling or unable to protect him

Holding:

Appeal allowed, remitted to the IRB to evaluate case consistent with the reasons in this case and to determine the issue of British citizenship.


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