In criminal law, a well-founded defence will absolve criminal liability. A defence is not an element of the offence, but rather excuses the defendant’s conduct as “morally involuntary”. As the Supreme Court explained in R. v. Ruzic, 2001 SCC 24: “It is a principle of fundamental justice that only voluntary conduct – behaviour that is the product of a free will and controlled body, unhindered by external constraints – should attract the penalty and stigma of criminal liability.”
Common-law defences include, for example: self-defence, the defences of necessity or duress, and the defence of superior orders. If a defendant injures or kills his attacker, this may be found to be non-culpable conduct if self-defence is established. If a defendant commits theft because her son’s life is being threatened, the defence or duress or necessity may be well-founded. Similarly, if a soldier destroys property at the command of a superior officer, a defense of superior orders may be applicable. In each case, the crime committed is not to exceed the threatened harm and the defendant must not have had a reasonable means to avoid his or her criminal conduct.
The applicability of these defences to the criminal law regime is long-established. These common-law defences have been legislated into section 8 of the Criminal Code and said to apply to all offences provided for within Acts of Parliament. Section 17 of the Criminal Code places limits on the common-law defence of necessity and section 34 codifies self-defence. The application of these defences to immigration law however continues to be challenged by the Minister.
There is a long-established line of jurisprudence that finds that the common-law defences are applicable to immigration law when immigration tribunals consider criminality and security paragraphs in the Immigration and Refugee Protection Act (IRPA). In 1992 the Federal Court of Appeal in Ramirez v. Canada (MEI), 1992 CanLII 8540 (FCA), [1992] 2 FC 306, held that the defence of duress was to be considered in refugee determinations when Article 1F(a) of the Refugee Convention – addressing crimes against humanity and war crimes – was being considered. This was confirmed in 2013 by the Supreme Court in Ezokola v. Canada (CI), 2013 SCC 40:
[86] It goes without saying that the contribution to the crime or criminal purpose must be voluntarily made. While this element is not in issue in this case, it is easy to foresee cases where an individual would otherwise be complicit in war crimes but had no realistic choice but to participate in the crime. To assess the voluntariness of a contribution, decision makers should, for example, consider the method of recruitment by the organization and any opportunity to leave the organization. The voluntariness requirement captures the defence of duress which is well recognized in customary international criminal law, as well as in art. 31(1)(d) of the Rome Statute: Cassese’s International Criminal Law, at pp. 215-16.
In 1996 the Federal Court of Appeal in Li v. Canada (MCI), 1996 CanLII 4086 (FCA), [1997] 1 FC 235 confirmed that the assessment of serious criminality (now subsection 36(1)(b) of the IRPA) must consider the applicability of the defence of duress in Canada and in the country where the crime was committed.
While the common-law defences have a lengthy history when assessing criminal inadmissibility and even exclusion for war crimes and crimes against humanity, there remains debate as to the application of these defences to allegations of inadmissibility for organized crime, under section 37(1) of the IRPA. It is the Minister’s position in many recent cases and as argued before the Immigration Division, Immigration Appeal Division, and to the Federal Court, that the common-law defences are not applicable to the assessment of inadmissibility for organized crime. The Minister would reserve the right to consider the defences to the Minister, within an application for Ministerial Relief. This position is currently before the Federal Court of Appeal in Lopez Gaytan (A-392-19), which is to answer this certified question:
In determining whether an individual is inadmissible under paragraph 37(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27, are the Immigration Division and Immigration Appeal Division of the Immigration and Refugee Board entitled to consider the defence of duress?
It is expected that the Federal Court of Appeal will hear and decide this question in 2021.
From my perspective, there is no principled method to distinguish inadmissibility for organized criminality, from other admissibility provisions within the IRPA. As noted, the common-law defences have been applied regularly for some thirty years to assessments within immigration law. Indeed, there are dozens of reported cases from the Tribunals and the Federal Court that apply the defences to the assessment of multiple admissibility paragraphs and to exclusion under section 98 of the IRPA.
Notably, the Federal Court has approved the application of the defences to the assessment of organized crime since at least 2012 in Lopez Gayton v. Canada (PSEP), 2012 FC 1075. At this time the Minister did not even argue that the defences were outside the jurisdiction of the tribunal.
The IRPA itself is silent on the application of the defences. Although the defences were applied to immigration law prior to the enactment of the IRPA, Parliament did not act to limit their utility. Recently, the Federal Court in Gil Luces v. Canada (PSEP), 2019 FC 1200, noted that “the IRPA does not contain any provision which defines [the defence of] duress in a different way.” Parliament’s silence, in the face of the jurisprudential record, speaks volumes.
There is good reason to apply the common law defences to all criminality and security provisions within IRPA. Individuals would not be found inadmissible for involuntary, nonculpable conduct. While the Minister suggests that applications for Ministerial Relief could act to forgive individuals who acted involuntarily, this forgiveness would come too late. In Canada applications for Ministerial Relief take at least five years, and at times more than ten years, to be processed. In the interim, the individual faces significant immigration consequences such as loss of permanent residence, loss of the ability to have a refugee claim determined under the Refugee Convention, deportation, and separation from family members in Canada. By the time relief is granted, individuals who acted in self-defence or under duress have already suffered years of ‘punishment’. In effect, a victim is further victimised if common law defences cannot be considered from the outset.
It is further the case that criminality and security provisions rely on criminal law to shape their meaning and significance. In criminal law, the court does not examine only the elements of an offence, but also the available defences. This happens prior to sentencing. The need for immigration tribunals to rely on criminal law when interpreting criminality and security under IRPA was explicitly articulated by the Supreme Court of Canada in Canada (M.C.I.) v. Vavilov, 2019 SCC 65: “where an immigration tribunal is required to determine whether an applicant’s act would constitute a criminal offence under Canadian law (see, e.g., Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 35-37), it would clearly not be reasonable for the tribunal to adopt an interpretation of a criminal law provision that is inconsistent with how Canadian criminal courts have interpreted it.”
Erin C. Roth is an immigration, citizenship and refugee lawyer at Edelmann & Company. Her practice focuses on complex litigation, including by addressing allegations for all areas of inadmissibility and multi-applicant challenges to the Federal Court. She is a regular speaker at immigration conferences provincially and nationally, represents the Immigration Bar (Canada Bar Association) at the Federal Courts Bench and Bar Liaison Committee meetings, and is an active volunteer through Access ProBono.