By Erin Roth
What does Canada consider a terrorist organization? If a person has given thought to this matter, the answer is likely ‘any organization designated by the Minister under Canada’s Anti-Terrorism Act’. Indeed, the Minister of Public Safety does keep a list and this list does contain individuals and organizations that Canada has determined are involved in terrorism. But, this is not the end of the story for those seeking to enter or remain in Canada.
The Minister also keeps another list, this one pursuant to section 35(1)(b) of the Immigration and Refugee Protection Act (IRPA):
35 (1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for…
- being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act;
This list only includes foreign governments engaged in terrorism. As can be expected, the decision of the Minister to designate a foreign government as being engaged in terrorism is very political, and as a consequence there are presently only nine governments listed and for very limited time frames.
This idea, that the Minister of Public Safety, makes a list of terrorist organizations makes sense. This is a political matter, possibly a contentious political matter, for Canada to apply the “terrorism” label to any person, government, or organization. As a Canadian, I would expect such a designation to be the result of thorough research and intelligence; it should be a conscious decision made by Canada’s Executive, the Minister of Public Safety.
Yet, while one might assume such a top-down approach – the Minister designates and his officers, members of the Canada Border Services Agency (CBSA), apply – this is not what happens in Canada. Rather than this approach, where a political decision is made based upon all of the evidence available and in consideration of political ramifications, decisions are being made at all levels of the immigration regime in a haphazard and inconsistent manner relying only on the evidence filed in a particular case. A person may ask (as I have myself), ‘how can the designation of a terrorist organization depend upon the evidence filed in a particular case?’ Or, ‘does this mean that the designation of a terrorist organization can change from one case to the other, based on the evidence filed?’ What this appears to come down to is poorly drafted law, given a “broad and unrestricted” interpretation by the Courts.
Section 34(1)(c) of the IRPA provides that a person involved in terrorism will be inadmissible to Canada. This is relatively uncontentious. There are international law understandings of ‘terrorism’, the Supreme Court in Suresh has provided guidance, and similarly the Criminal Code also defines terrorism. In proving a person was engaged in terrorism, evidence establishing this person’s conduct will be relied upon.
The difficulty comes under section 34(1)(f) of the IRPA:
34 (1) A permanent resident or a foreign national is inadmissible on security grounds for:…
- being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b), (b.1) or (c).
In this case, the personal conduct of the person concerned is irrelevant. The knowledge of the person of the terrorist conduct is irrelevant. In such cases, the evidence filed and relied upon to make this assessment is not about the person but instead about the organization. If the organization is determined to be a terrorist organization and the person is found to be a member of that organization, that individual will be found to be inadmissible to Canada.
These decisions are made by Visa Officers overseas and by the Immigration and Refugee Board (IRB) within Canada. In both cases, the decision is made based on the evidentiary record in that case. The decision is not made based upon the Minister of Public Safety’s opinion, it is not made based upon the Anti-Terrorism Act and the publicly available lists of designated individuals, governments, and organizations. As a consequence, the decisions made can vary from case to Case.
A case example of this is with the Bangladesh National Party (BNP). The BNP is a prominent political party in Bangladesh, it has formed government on occasion and sat in opposition on other occasions. A person who is a member of the BNP may or may not be a member of a terrorist organization, depending upon the evidence filed in that person’s case. The Federal Court has acknowledged this problem, that BNP has been found to be a terrorist organization in some cases and not in others, but have not been able to resolve this issue. In Rana v. Canada (P.S.E.P.), 2018 FC 1080, the Court provided: I recognize that other members of this Court have upheld as reasonable decisions finding the BNP to be an organization that engages in terrorism: see Gazi v Canada (Citizenship and Immigration), 2017 FC 94; SA v Canada (Public Safety and Emergency Preparedness), 2017 FC 494; Kamal v Canada (Immigration, Refugees and Citizenship), 2018 FC 480 [Kamal]; and Alam v Canada (Citizenship and Immigration), 2018 FC 922 [Alam]. These decisions, like the present one, were based on the particular records before the Court and on the reasons offered by the decision-maker (Kamal at para 77; Alam at para 45). While perhaps regrettable, it is inherent in the nature of judicial review under the reasonableness standard that perfect consistency across cases on questions of mixed fact and law will not always be achieved.
The Court is to give deference to decision makers, only intervening when the decision is incorrect in law, in breach of natural justice, or unreasonable. An unreasonable decision is not one which the Court disagrees with, but rather where the evidentiary record does not support the result reached.
And so the result is that the designation of terrorist organizations in Canada is not a political decision at all. It is not a decision made based on all available evidence nor based on political ramifications, but instead based upon the evidence presented to the decision maker considering one individual’s case. It is therefore not a consistent decision either, with some finding the BNP to be a terrorist organization and others not.
How can the designation of a group as being a terrorist organization be discretionary? There are implications of such a designation. There are implications for newcomers to Canada, who have no certainty as to whether their past activities are a problem in Canada. There are implications for other countries, who look to Canada’s conduct as a litmus test for such designations. There can also be political implications, as whether the Minister of Public Safety makes the decision or another decision maker, the designation is made by an agent of the government and therefore reveals Canada’s position.
So, in answer to my opening question ‘what does Canada consider a terrorist organization?’ the answer is not entirely clear. Certainly it must be an organization that intentionally engages in violence for political or ideological purposes, but specifically which organization will be captured will vary from case to case.
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.