Judgments

Decision Information

Atef v. Canada (Minister of Citizenship and Immigration) (T.D.)

Collection	Judgments
Date	1995-05-29
Report citation	[1995] 3 F.C. 86
File numbers	IMM-4014-94
Subjects	Citizenship and Immigration - Status in Canada - Convention Refugees and Persons in Need of Protection Constitutional Law - Charter of Rights - Life, Liberty and Security Criminal Justice - Narcotics

Decision Content

[1995] 3 F.C. 86

IMM-4014-94

Ahmad Atef (Applicant)

The Minister of Citizenship and Immigration (Respondent)

Indexed as: Atef v. Canada (Minister of Citizenship and Immigration) (T.D.)

Trial Division, Wetston J.—Toronto, March 23; Winnipeg, May 29, 1995.

Citizenship and Immigration — Status in Canada — Convention refugees — Judicial review of decision applicant not Convention refugee — Applicant convicted of possession of heroin for purpose of trafficking — Definition of Convention refugee excluding those to whom UN Convention Relating to Status of Refugees, Art. 1E, F applies — Art. 1F(c) excluding from application of Convention persons guilty of acts contrary to purposes, principles of UN — Once within exclusion, unnecessary to determine inclusion issues — Art. 1F(c) applicable to persons not in positions of authority, even absent specific international involvement — Domestic traffickers indispensable link in chain of distribution of narcotics — Meaning of purposes, principles of UN — Trafficking in heroin crime against which UN initiated, co-ordinated initiatives — Art. 1F(c) not void for vagueness.

Constitutional law — Charter of Rights — Life, liberty and security — Judicial review of decision applicant not Convention refugee — Conviction of possession of heroin for purpose of trafficking bringing applicant within exclusion in UN Convention, Art. 1F(c) incorporated into Immigration Act definition of Convention refugee — Argument Charter, s. 7 rights infringed premature as deportation not resulting from these proceedings — Art. 1F(c) not void for vagueness — “Principles and purposes” of UN question of law capable of being given constant, settled meaning by courts.

Criminal justice — Narcotics — Convention refugee applicant convicted of possession of heroin for purpose of trafficking — Whether excluded from application of Convention — UN’s efforts to control illicit drug trade within “purposes and principles of the United Nations” — Applicant’s conduct having international implications considering provenance of drug — Art. 1F(c) of Convention interpreted to apply to persons like applicant so Canada may satisfy international obligations regarding illegal narcotics trafficking — No difference between importing, possession for purpose, trafficking — Domestic traffickers indispensable link in narcotics distribution chain — Narcotics control element of “substratum of values held by society”.

This was an application for judicial review of a decision that the applicant was not a Convention refugee. The definition of “Convention refugee” in Immigration Act, subsection 2(1) includes any person who satisfies the requirements of paragraph 2(1)(a), but excludes any person to whom the United Nations Convention Relating to the Status of Refugees does not apply pursuant to Article 1E or F. Article 1F(c) excludes from the application of the Convention any person with respect to whom there are serious reasons for considering that he has been guilty of acts contrary to the “purposes and principles of the United Nations”. The Board held that Article 1F(c) applied to the applicant, who had been convicted of possession of heroin for the purpose of trafficking prior to the determination of his refugee claim. It held that the United Nations had undertaken initiatives to control and/or eliminate the illicit drug trade and that such activities were embraced by the “purposes and principles of the United Nations”. The applicant’s conviction was evidence that he was involved in the illicit drug trade and as the poppy plant is the main ingredient in heroin, trafficking therein involved international implications.

The Board interpreted the definition of “Convention refugee” as disjunctive, so that if the exclusion applied it was not necessary to determine the inclusion issues. The applicant submitted that the objectives of exclusion should be balanced with the issue of inclusion. The applicant also argued that the scope of Article 1F(c) must be determined with reference to the purposes and principles of the United Nations, which are limited by the UN Charter to the governing of relations between independent and sovereign states. The applicant argued that there was no basis in international law for individual liability other than with respect to persons in authority or those whose crimes have significant international implications.

The Board held that the applicant’s arguments alleging the infringement of his Charter, sections 7 (right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice) and 12 (right not to be subjected to cruel and unusual treatment) rights by virtue of the exclusion clause in Article 1F(c), were premature since there was no evidence that the applicant would be deported. The applicant argued that Immigration Act, subsection 2(1) violated his fundamental right to justice under Charter, section 7 because Article 1F(c) did not give any guidance as to what actions are contrary to the purposes and principles of the United Nations. Furthermore, Article 1F(c) did not provide meaningful boundaries of conduct or delineate areas of risk because the general public is unaware of the vast initiatives of the UN. The Board concluded that Article 1F(c) was not void because of vagueness.

The issues were (1) whether the Board erred in interpreting the definition of Convention refugee as disjunctive; (2) whether Article 1F(c) applied to persons not in positions of authority; (3) whether Article 1F(c) violated the applicant’s rights pursuant to Charter, section 7 or 12; and (4) whether Article 1F(c) was void for vagueness.

Held, the application should be dismissed.

(1) The definition of “Convention refugee” is disjunctive. There is no requirement for the Board to determine and balance inclusion with exclusion when applying Article 1F(c) of the Convention. While the Board could have conducted an inclusion analysis, there was no error in law in not doing so. Balancing might be considered in some circumstances, but not here.

(2) While the UN, in its capacity as an international organization, may not have jurisdiction over individuals, its initiatives can have domestic implications. Parliament has incorporated into the Immigration Act Canada’s obligations under the UN Convention relating to the status of refugees. Unless Article 1F(c) is interpreted as applying to individuals like the applicant who have been convicted of such offences under domestic criminal law, Canada would be unable to meet its international obligations either with respect to refugees or the elimination of the trafficking in illegal narcotics. The Court has consistently held that trafficking in heroin, a narcotic not produced in Canada, is a crime against which the UN has initiated and co-ordinated a range of international initiatives. There is no difference between the importation of heroin, the possession of heroin for the purpose of trafficking, and simply trafficking in this narcotic. Because the UN initiatives are directed nationally as well as internationally, Article 1F(c) may apply to a person who has been convicted of trafficking in heroin, in Canada, even absent any specific international involvement on the part of the claimant. Domestic traffickers are an indispensable link in the chain of distribution of narcotics, and their involvement ought not to be minimized.

(3) The applicant’s Charter arguments were premature in the context of a determination of whether the applicant is precluded from claiming the protection of the Convention by virtue of the exclusion contained in Article 1F(c). The Court was not dealing with execution of a deportation order.

(4) Article 1F(c) was not void because of vagueness. A law is unconstitutionally vague if it so lacks in precision that it does not give sufficient guidance for legal debate, that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria. It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion. The Board’s discretion to exclude is subject to objective limits. The Board must objectively determine the facts and apply the appropriate legal principles. What the purposes and principles of the UN are is a question of law; whether they have been contravened is a question of fact. The purposes and principles of the United Nations are capable of being given a constant and settled meaning by the courts. The substantive aspect of fair notice is a subjective understanding that the law touches upon some conduct based on the substratum of values underlying the legal enactment and on the role that the legal enactment plays in the life of society. An element of the “substratum of values held by society” is the control of the unlawful production, sale and use of narcotics. Article 1F(c) sufficiently delineates an area of risk and provides an adequate basis for legal debate, by reasonable analysis and the application of legal criteria.

The following questions were certified: (1) Is Article 1F(c) void due to vagueness?; (2) does Article 1F(c) apply to a person who is not in a position of authority?; (3) Is it necessary for the Board to balance exclusion with inclusion in the application of Article 1F(c)?

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 12.

Charter of the United Nations, [1945] Can. T.S. No. 7, Arts. 1, 2.

Combines Investigation Act, R.S.C. 1970, c. C-23.

Immigration Act, R.S.C., 1985, c. I-2, ss. 2(1) “Convention refugee” (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1), 114(2) (as am. by S.C. 1992, c. 49, s. 102), Sch. (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 34).

Narcotic Control Act, R.S.C. 1970, c. N-1, s. 4(2),(3).

United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1F(a),(b),(c).

United Nations Protocol relating to the Status of Refugees, January 31, 1967, [1969] Can. T.S. No. 29.

CASES JUDICIALLY CONSIDERED

APPLIED:

Thamotharampillai v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 99 (1994), 77 F.T.R. 114 (T.D.); Kabirian v. Canada (Solicitor General), [1995] A.C.F. No. 143 (T.D.) (QL); Arica v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 670 (C.A.) (QL); R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; (1992), 114 N.S.R. (2d) 91; 93 D.L.R. (4th) 36; 313 A.P.R. 91; 74 C.C.C. (3d) 289; 43 C.P.R. (3d) 1; 15 C.R. (4th) 1; 10 C.R.R. (2d) 34; 139 N.R. 241; R. v. Morales, [1992] 3 S.C.R. 711; (1992), 77 C.C.C. (3d) 91; 17 C.R. (4th) 74; 12 C.R.R. (2d) 31; 144 N.R. 176; 51 Q.A.C. 161.

DISTINGUISHED:

Canada (Minister of Employment and Immigration) v. Mehmet, [1992] 2 F.C. 598(C.A.); Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (1993), 107 D.L.R. (4th) 424; 21 Imm. L.R. (2d) 221; 159 N.R. 210 (C.A.).

CONSIDERED:

Gonzalez v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 646 (1994), 115 D.L.R. (4th) 403; 24 Imm. L.R. (2d) 229 (C.A.); Pushpanathan v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 870 (T.D.) (QL); Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; (1991), 84 D.L.R. (4th) 438; 67 C.C.C. (3d) 1; 8 C.R. (4th) 1; 129 N.R. 81; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; (1989), 59 D.L.R. (4th) 416; 26 C.C.E.L. 85; 89 CLLC 14,031; 93 N.R. 183.

REFERRED TO:

Tutu v. Minister of Employment and Immigration (1994), 74 F.T.R. 44 (F.C.T.D.); Gil v. Canada (Minister of Employment and Immigration), [1995] 1 F.C. 508 (1994), 174 N.R. 292 (C.A.); Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (1992), 89 D.L.R. (4th) 173; 135 N.R. 390 (C.A.); Hoang v. Canada (Minister of Employment & Immigration) (1990), 13 Imm. L.R. (2d) 35; 120 N.R. 193 (F.C.A.).

AUTHORS CITED

Bassiouni, M. Cherif (ed.). International Criminal Law, Vol. 1. Transnational Publishers, 1987.

“Draft Code of Crimes against the Peace and Security of Mankind” in Yearbook of the International Law Commission 1991, vol. II, Part 2 (New York: United Nations, 1994).

Garant, Patrice. L’imprécision en droit administratif et en droit constitutionnel: un défi à l’intelligence moyenne. Toronto: Carswell, 1994.

Goodwin-Gil, Guy S. The Refugee in International Law. Oxford: Clarendon Press, 1983.

Halewood, Michael. “Excluding Refugees Pursuant to the 1951 Convention: Should the Purposes and Principles of the United Nations Extend Beyond the Promotion of Human Rights to the Exclusion of Drug Traffickers?” (1995), 25 Imm. L.R. (2d) 305.

Hathaway, James C. The Law of Refugee Status. Toronto: Butterworths, 1991.

Kindred, H. M. et al. International Law: Chiefly as Interpreted and Applied in Canada, 5th ed. Toronto: Emond Montgomery Publications Limited, 1993.

Rikhof, J. “The Treatment of the Exclusion Clauses in Canadian Refugee Law” (1994), 24 Imm. L.R. (2d) 31.

APPLICATION for judicial review of a decision that the applicant, who had been convicted of possession of heroin for the purposes of trafficking, was not a Convention refugee. Application dismissed.

COUNSEL:

Howard C. Gilbert for applicant.

Claire A. H. Le Riche for respondent.

SOLICITORS:

Gilbert & Yallen, Toronto, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

Wetston J.: This is an application for judicial review of a decision of the Immigration and Refugee Board, Convention Refugee Determination Division (the Board), dated August 2, 1994, wherein the Board determined that the applicant was not a Convention refugee. The Board concluded that the applicant was a person to whom section F(c) of Article 1 of the United Nations Convention Relating to the Status of Refugees (the Convention), signed at Geneva on July 28, 1951 [[1969 Can. T.S. No. 6], including the Protocol [United Nations Protocol relating to the Status of Refugees] thereto, signed at New York City on January 31, 1967 [[1969] Can. T.S. No. 29], applied. Section F(c) of Article 1 of the Convention is incorporated into the Immigration Act [R.S.C., 1985, c. I-2] by virtue of the definition of “Convention refugee” contained in subsection 2(1) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1], and is set out as a schedule [as enacted idem, s. 34] to that Act. Article 1F(c) provides as follows:

F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

…

The applicant is a citizen of Iran. He arrived in Canada on February 2, 1986, at which time he made a Convention refugee claim on the basis of a well-founded fear of persecution by reason of his political opinion and his membership in a particular social group. However, on September 13, 1987, prior to the determination of his refugee claim, the applicant was charged with possession of heroin for purposes of trafficking, contrary to the subsection 4(2) of the Narcotic Control Act, R.S.C. 1970, c. N-1, an indictable offence under subsection 4(3) of that Act. Mr. Atef was convicted of that offence on December 11, 1987, and sentenced to 55 months imprisonment. Subsequently, on October 28, 1992, the applicant was found to have a credible basis for his refugee claim. Accordingly, his claim was referred to the Board for hearing. The hearing, with the Minister of Employment and Immigration’s participation, took place on June 1, 1993 and October 27, 1993.

Issues

The applicant argued the following issues with respect to this judicial review application:

1. Did the Board err in law in deciding to consider the issue of inclusion only if it determined the applicant not to be excluded pursuant to Article 1F(c); if so, did the Board err in not proceeding to balance inclusion with the issue of exclusion?

2. Does Article 1F(c) apply to the applicant, who is not a person in authority?

3. Does Article 1F(c) violate the applicant’s rights pursuant to section 7 or 12 of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]?

4. Does Article 1F(c) of the Convention violate the applicant’s section 7 Charter rights by reason of vagueness?

The Board issued extensive reasons with respect to all issues before the Court and determined that the applicant is a person to whom the Convention does not apply because, in terms of Article 1F(c) of the Convention, there are serious reasons for considering that the claimant has been guilty of acts contrary to the purposes and principles of the United Nations.

1. Inclusion/Exclusion

With respect to the application of the exclusion clause, Article 1F(c), the Board determined the following, at pages 5-6 of its reasons:

… the exclusionary prohibition in the definition [of Convention refugee] is disjunctive, and separate from the inclusion issues of the definition. It considers that if the exclusion applies, it is not necessary to determine the inclusion issues.

We are of the opinion that it was the intention of Parliament, as expressed in the exclusion clause in Article 1F(c) to exclude persons even if genuinely at risk of persecution…. we have concluded, that there is no requirement in law to engage in the balancing process referred to by the claimant’s counsel.

In the applicant’s submission, by interpreting the subsection 2(1) definition of “Convention refugee” as disjunctive, the Board erred in law. According to the applicant, it was incumbent on the Board to examine the inclusion issue, as well as all mitigating circumstances surrounding the applicant’s crime, and the present danger he poses to society, in conjunction with the exclusion issue. In this regard, the applicant argues that exclusion, within the meaning of the definition of Convention refugee, should not be read disjunctively but rather should be read as requiring that the objectives of exclusion be balanced with the issue of inclusion. It is submitted that the balancing is necessary to assure that the objectives of the Immigration Act and the Convention in relation to both the exclusion and inclusion issues are met.

The applicant argues that each paragraph in Article 1, section F, is different; he contends that a distinction must be drawn with respect to the application of Articles 1F(a), (b), and (c). While the applicant acknowledges that balancing may not be required in respect of Article 1F(a)[1], in his submission balancing is required with respect to Articles 1F(b) and 1F(c). In this regard, the applicant refers to Hathaway, James C. The Law of Refugee Status, (Toronto: Butterworths, 1991), at page 225; and Goodwin-Gil, The Refugee in International Law, 1983, at pages 62-63, which support the position that balancing is required within Article 1F(b). The applicant argues that the commentary regarding the necessity to balance within the context of Article 1F(b) is instructive with respect to the proper approach to the application of Article 1F(c) because the only distinction between Articles 1F(b) and 1F(c) is where the crime was committed. Accordingly, the applicant contends that balancing should also be required within Article 1F(c).

The applicant argues that the Federal Court of Appeal decision in Canada (Minister of Employment and Immigration) v. Mehmet, [1992] 2 F.C. 598 offers judicial support for his contention that the issue of inclusion must be determined and balanced with the objectives of exclusion, where, at page 607, the Court commented:

The application of an exclusion clause to a claimant who meets the eligibility test is never automatic, and will always require an assessment of the circumstances and the situation as a whole ….

The applicant further relies on the decision in Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298(C.A.), where the Court, at pages 326-327, in the context of Article 1F(a), commented that it would be preferable for the Board to consider the inclusion issue together with the exclusion issue.

The applicant also relies on the Federal Court of Appeal’s decision in Gonzalez, supra, where, at pages 655-656, Mr. Justice Mahoney commented as follows, on the possibility of balancing in relation to Article 1F(b):

The applicant based the argument that a finding on the merits is essential because the quality of persecution which a claimant might suffer if returned must be weighed against the gravity of what had been done to engage the exclusion clause and that the balance was a factor which the Refugee Board was required to take into account in deciding whether or not the exclusion clause ought to be invoked. That argument finds support in commentary, if not jurisprudence, for example ….

That passage appears under the subtitle of “Serious Non-Political Crimes” which are the subject of Article 1F(b), rather than 1F(a), but the commentary is not limited in its terms nor, given the way Article 1F is drafted, could the author apply his reasoning to anything but Article 1F in its entirety. Perusal of the other commentary to which we were referred satisfies me that it, too, finds its entire support in Article 1F(b).

Can crimes committed in the prosecution or suppression of a revolution be characterized as “non-political”? I doubt it. Perhaps the modifier “serious” in Article 1F(b) would make possible the balancing suggested but there is no room for it in Article 1F(a). The crimes of Article 1F(a) are, by any definition, extremely serious. In so far as the commentary has a message applicable to Article 1F(a), it may be that what has occurred in combat is not to be readily found to be a crime.

In the applicant’s submission, because each paragraph in Article 1, of section F is different, this Court should not follow the analysis set out in Pushpanathan v. Canada (Minister of Employment and Immigration), [[1993] F.C.J. No. 870 (T.D.) (QL)], and adopted by the Board, where the Court found that there was no distinction between Articles 1F(a) and 1F(c) and that therefore, no balancing is required when applying Article 1F(c).

Moreover, the applicant argues that the need to balance exclusion and inclusion issues is greatest with respect to Article 1F(c) due to its very broad nature. In this regard, the applicant argues that unless the Board balances the inclusion and exclusion issues, any act, regardless of how insignificant or unimportant, which might be contrary to any UN initiative, would provide a basis for exclusion under Article 1F(c).

The respondent argues that the statutory definition of “Convention refugee”, in subsection 2(1) of the Immigration Act, is clear. If a person falls within one of the exclusion clauses contained in section E or F of the Convention, that person is not entitled to the protection offered by Canada to Convention refugees. As such, it is contended that the Board was under no legal obligation to consider or to determine whether the claimant might be included in the definition but for the fact that there are serious reasons for considering that he has been guilty of acts contrary to the purposes and principles of the United Nations. The respondent relies upon a number of decisions to support its position: Gonzalez, supra, at pages 655-657; Tutu v. Minister of Employment and Immigration (1994), 74 F.T.R. 44 (F.C.T.D.), at page 47; and Gil v. Canada (Minister of Employment and Immigration), [1995] 1 F.C. 508(C.A.), at pages 534-535. The respondent further argues that exclusion clauses are completely external to the characteristics of a refugee and that no factors ought to be considered after the determination has been made that the claimant has committed a crime resulting in the Convention not applying to him: Mehmet, supra; and Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306(C.A.).

Subsection 2(1) of the Immigration Act defines a Convention refugee as any person who satisfies the requirements of paragraph 2(1)(a) but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof. It is clear that subsection 2(1) of the Immigration Act incorporates all of Article 1F. It is also clear that someone who falls within one of the exclusion clauses in sections E and F of the Convention may not claim the protection offered by Canada to Convention refugees. This view of subsection 2(1) and Article 1F is not one which may be described as literal; it is merely the only construction that the words in this section can bear. The definition of “Convention refugee”, contained in subsection 2(1) of the Immigration Act, is disjunctive. Accordingly, I am of the opinion that there is no requirement for the Board to determine and balance inclusion with exclusion when applying Article 1F(c) of the Convention.

I am not persuaded that the Court’s comments in Mehmet, supra, stand for the proposition that the exclusion clause requires balancing with inclusion. That decision dealt with eligibility issues emanating from a credible basis hearing. Furthermore, with respect to the Moreno decision, supra, it is clear that, in that case, the claims were interrelated which made it practical to consider the inclusion issue along with the exclusion issue. I agree with the Board’s interpretation of Moreno, supra.

Moreover, in Gonzalez, supra, at page 657, Mr. Justice Mahoney specifically comments that, in his opinion, there is no error in law in either approach. Therefore, while the Board could have conducted an inclusion analysis, there was no error law in not doing so. I do not consider that Justice Mahoney, in Gonzalez, supra, is stating that there is a balancing requirement within Article 1F(b) or 1F(c) of the Convention. He may be suggesting that balancing might be considered in some circumstances. However, in my opinion this is not one of these circumstances.

Indeed, counsel for the applicant, in his oral argument, indicated that if exclusion is disjunctive then there would be no requirement to consider inclusion and balance it with exclusion. In other words, if the Board is not required to consider the inclusion issue as part of its determination of Article 1F(c) of the Convention, then the Board need not engage in a balancing exercise.

The applicant further contends that, absent the need to balance inclusion and exclusion, Article 1F(c) results in a virtually automatic exclusion, regardless of the significance of the act, where any UN initiative has been contravened. I am of the opinion that the applicant’s argument departs from the language of Article 1F(c), which I have found to be unambiguous. Moreover, my examination of the Travaux Préparatoires for the Convention leads me to conclude that:

a) The acts committed must be criminal in nature;

b) The exclusion in Article 1F(c) appears to be capable of including acts committed both in the country of refuge and the country of origin: See Rikhof, J. “The Treatment of the Exclusion Clauses in Canadian Refugee Law” (1994), 24 Imm. L.R. (2d) 31, at page 62. For a contrary view regarding the application of Article 1F(c), see Michael Halewood, “Excluding Refugees Pursuant to the 1951 Convention: Should the Purposes and Principles of the United Nations Extend Beyond the Promotion of Human Rights to the Exclusion of Drug Traffickers?” (1995), 25 Imm. L.R. (2d) 305.

The meaning of purposes and principles of the UN is a question of law and subject, upon leave, to judicial review by the Federal Court. Moreover, as indicated by the Board on a number of occasions in its decision, an application to the Minister under subsection 114(2) [as am. by S.C. 1992, c. 49, s. 102] of the Immigration Act for humanitarian and compassionate considerations can still be brought, at which time mitigating circumstances regarding the crime that was committed in Canada may be properly considered. Accordingly, no error of law was committed by the Board in this regard.

2. Persons in a Position of Authority

Does Article 1F(c) apply to persons other than those individuals in a position of authority? The Board determined, at page 12 of its reasons, that:

… there is no reason to limit the operation of this Article [1F(c)] to only certain individuals or segments of society. To do so would be to limit the efficacy of the efforts of the United Nations to accomplish its purposes and principles which embrace the elimination of the said conduct.

The applicant argues that the scope of Article 1F(c) must be determined with reference to the “purposes and principles of the United Nations”, as contained in Articles 1 and 2 of the UN Charter [Charter of the United Nations, [1945] Can. T.S. No. 7]. It is the applicant’s contention that the application of Article 1F(c) must be limited by the UN’s legal mandate. In essence, the applicant argues that the purposes and principles contained in the UN Charter relate to the governing of relations between independent and sovereign states. Accordingly, unless an individual is in a government position of authority, or is involved with international activities, an individual, like the applicant, cannot be considered to have violated a purpose or principle of the UN because there is no basis, according to the principles of international law, to suggest that the UN has jurisdiction over the behaviour of individuals within a state.

The applicant concedes that the UN has taken a number of initiatives in the elimination of illegal trafficking of drugs. However, in the applicant’s submission, these initiatives, entered into by sovereign states, simply attempt to establish a co-ordinated strategy against the use and movement of illegal drugs. The applicant further contends that while the various initiatives provide a means to determine whether a particular state is fulfilling its international obligations, the initiatives do not amount to domestic laws. In so far as the Board determined that the fight against the use and trafficking in illegal drugs is a purpose of the UN, in the applicant’s submission, that determination is relevant only to the extent that it applies to the co-ordination of actions of independent states.

In the applicant’s submission, neither the Court’s decision in Pushpanathan, supra, nor the Court’s decision in Thamotharampillai v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 99(T.D.), provide authority for the application of Article 1F(c) to an individual not in a position of authority or with significant international involvement. It is contended that the decision in Pushpanathan, supra, is not authority for the proposition that Article 1F(c) can apply to an individual such as the applicant. Moreover, it is contended that the decision in Pushpanathan, supra, is not comprehensive, in that it does not discuss the purposes and principles of the UN.

The applicant also argues that the decision in Thamotharampillai, supra, does not support the proposition that Article 1F(c) applies to the applicant herein. In the applicant’s submission, Thamotharampillai, supra, broadens the scope of Article 1F(c) to include those individuals whose activities have “significant international implications”. According to the applicant, unlike in Thamotharampillai, supra, where the claimant was charged with conspiracy to traffic in narcotics and there was evidence of smuggling of narcotics into Canada from abroad, there are no international aspects to Mr. Atef’s crime. The applicant argues that the Board’s determination that the applicant’s crime had international implications because heroin is not grown in Canada is insufficient to establish “significant international implications”, as contemplated in Thamotharampillai, supra.

While the applicant argues that there is no basis in international law for individual liability, other than those persons in authority or those whose crimes have significant international implications, the respondent disagrees. In the respondent’s submission, on a clear reading of Article 1F(c), there is no reason to limit the application of that Article to individuals in a position of authority on those whose crimes are fundamentally international in scope. The respondent relies on this Court’s decisions in Pushpanathan, supra; Thamotharampillai, supra; as well as the decision in Kabirian v. Canada (Solicitor General), [1995] A.C.F. No. 143 (T.D.) (QL). In the respondent’s submission, the Court has adopted a broad and liberal approach to the application of Article 1F(c) rather than the restrictive approach suggested by the applicant and some academic sources. In essence, the respondent argues that, in keeping with the jurisprudence, trafficking in heroin is the kind of criminal activity in Canada that is contrary to the purposes and principles of the United Nations.

With respect to the applicant’s contention that all aspects of his crime were domestic and had no international implications, the respondent submits that the Board had before it the Minister’s evidence which establishes that the possession of heroin for the purpose of trafficking is a particularly serious offence internationally. In addition, the respondent relies upon Article 25 of the Draft Code of Crimes against the peace and Security of Mankind, from the [Yearbook of the International Law Commission 1991], Report of the Commission to the General Assembly of the United Nations, in support of its contention that individual liability exists within Article 1F(c). Article 25 [at page 97] provides that:

1. An individual who commits or orders the commission of any of the following acts:

— undertaking, organizing, facilitating, financing or encouraging illicit traffic in narcotic drugs on a large scale, whether within the confines of a State or in a transboundary context

shall, on conviction thereof, be sentenced [to … ].

…

3. Illicit traffic in narcotic drugs means any production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation of any narcotic drug or any psychotropic substance contrary to internal or international law.

I must disagree with the applicant’s contention that Article 1F(c) should be interpreted restrictively. While the UN, in its capacity as an international organization, may not have jurisdiction over individuals, its initiatives can have domestic implications. For instance, Parliament has incorporated, into the Immigration Act, Canada’s obligations under the UN Convention relating to the status of refugees. The Immigration Act provides that certain persons will be excluded from claiming the protection of the Convention, where, for instance, an individual has been guilty of an act “contrary to the purposes and principles” of the UN. Unless Article 1F(c) is capable of encompassing individuals like the applicant who have been convicted of such offences under domestic criminal law, Canada could be considered to not be meeting its international obligations either with respect to refugees or the elimination of the trafficking in illegal narcotics.

Moreover, in M. Bassiouni, International Criminal Law, Vol. 1, (Transnational Publishers, 1987), at pages 507-524, the author describes in some detail the international control of common crimes and narcotics. At page 521, Bassiouni, supra, describes how individuals, like the applicant, fit into the international narcotic trafficking scheme:

The illicit traffic in drugs and the criminal activities of international traffickers are of concern to the world community. The organizers of the international illicit traffic do not in most cases physically handle any drugs themselves, but instigate, finance, and direct these operations which are carried out by underlings and then diffused to the users by pushers who perpetuate and disseminate these drugs as part of an organized snowballing system.

In H. M. Kindred et al., International Law: Chiefly as Interpreted and Applied in Canada, 5th ed., (Emond Montgomery Publications Limited, 1993), at page 446, the authors also state:

During the twentieth century there has grown a recognition by the international community that individuals may be prosecuted and found liable for international criminal acts such as crimes against peace, war crimes, crimes against humanity, apartheid, genocide, torture, certain international terrorist acts, and the international traffic in narcotics and psychotropic substances…. however, in the absence of a permanent international criminal court, state cooperation to combat international criminal activity has taken the form of specific treaties requiring extradition or local prosecution. [Own emphasis.]

While the ultimate means to control the illegal narcotics trade by criminal enforcement and immigration sanctions may be described as largely domestic, there can be little doubt that the international effort to control narcotics began under the League of Nations and has been largely continued under the United Nations.

The Draft Code of 1991, referred to by the respondent, has not yet been completed. Nevertheless, it reveals a clear intention to control the illicit drug trade. Indeed, it can readily be seen that, at least in this context, international and domestic rules are becoming increasingly intermingled.

In addition, it appears that a relatively consistent body of jurisprudence, is developing with respect to the application of Article 1F(c) of the Convention. In this regard, the Court has consistently held that the trafficking in heroin, a narcotic not produced in Canada, is a crime against which the UN has initiated and co-ordinated a range of international initiatives. While the applicant seeks to distinguish Thamotharampillai, supra, in particular, on the basis that the nature of Mr. Atef’s crime was purely domestic and not as serious, I see no difference between the importation of heroin, the possession of heroin for the purposes of trafficking, and simply trafficking in this narcotic.

Moreover, I agree with Madam Justice McGillis in Kabirian, supra, where, at pages 6 and 7, in adopting the analysis in Thamotharampillai, supra, she suggests that, because the UN initiatives are directed nationally as well as internationally, Article 1F(c) may apply to a person who had been convicted of trafficking in heroin, in Canada, even absent any specific international involvement on the part of the claimant. I also agree with her observation that domestic traffickers are an indispensable link in the chain of distribution of narcotics, and their involvement ought not be minimized.

Accordingly, I am of the opinion that the Board made no error in determining the applicant to be a person within the meaning of Article 1F(c).

3. The application of sections 7 and 12 of the Charter

The Board determined that the applicant’s arguments alleging the infringement of his section 7 and 12 Charter rights, by virtue of the application of the exclusion clause in Article 1F(c), were premature, since there was no evidence that the applicant would be deported from Canada to Iran.

The Court of Appeal, in Arica v. Canada (Minister of Employment and Immigration), [[1995] F.C.J. No. 670 (QL)], has recently considered the application of section 7 of the Charter in the context of exclusion. While Arica, supra, dealt with the application of Article 1F(a) of the Convention, I see no reason to differentiate between the application of section 7 of the Charter in an Article 1F(a) case versus an Article 1F(c) case. With respect to the application of section 7, Mr. Justice Robertson concluded as follows, at page 17:

In my opinion, section 7 of the Charter does not alter the extant law. The argument that the appellant’s section 7 Charter rights have been infringed is at best premature since there was no evidence before the Board that the appellant would be deported from Canada to Peru. It is trite to note that we are not dealing with the execution of a deportation order but rather with an appeal from a decision in which it was found that the appellant is not entitled to claim refugee status. The exclusion of an individual from claiming such status does not by itself imply or lead to any positive act which may affect the life, liberty or security of the person. This conclusion is in keeping with the jurisprudence of this Court; see Barrera v. M.E.I. (1992), 18 Imm.L.R. (2d) 81 (F.C.A.). In my view, nothing that was said by the Supreme Court of Canada in Singh et al. v. M.E.I. [1985] 1 S.C.R. 177, detracts from this conclusion. That decision should be contrasted with the more recent decision of that Court in Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779.

Therefore, despite the applicant’s contention otherwise, I am of the opinion that the Board correctly determined that the applicant’s section 7 arguments were premature in the context of a determination as to whether the applicant is precluded from claiming the protection of the Convention by virtue of the exclusion contained in Article 1F(c).

With respect to the applicant’s section 12 argument, in that exclusion of the claimant amounts to cruel and unusual treatment, I am of the opinion that the reasons provided by Mr. Justice Robertson in Arica, supra, regarding the application of section 7 of the Charter are equally applicable with respect to section 12. In Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, the Court held that the extradition of an individual, even if the individual were to face the death penalty, did not infringe section 7 or section 12 of the Charter. Mr. Justice La Forest, at page 834, held that the government had the right and duty to keep out and to expel aliens from this country if it considered it advisable to do so: see also Hoang v. Canada (Minister of Employment & Immigration) (1990), 13 Imm. L.R. (2d) 35 (F.C.A.). While we are not dealing with a permanent resident in this case or with a person who has been granted Convention refugee status, I am of the opinion that the applicant’s section 12 Charter arguments are, at this time, premature since we are not dealing with the execution of a deportation order.

Accordingly, I am of the opinion that the Board committed no reviewable error with respect to section 7 or section 12 of the Charter.

4. Vagueness

Did the Board err in concluding that Article 1F(c) is not void or inoperative because of vagueness or overbreadth?

It is the applicant’s contention that subsection 2(1) of the Immigration Act, which incorporates Article 1F(c) of the Convention, violates the applicant’s right to fundamental justice under section 7 of the Charter on account of vagueness. In the applicant’s submission, Article 1F(c) provides no substantive notice to society. In other words, the applicant argues that society is given no guidance, by Article 1F(c), as to what actions are contrary to the “purposes and principles of the United Nations”. Furthermore, the applicant argues that Article 1F(c) does not provide meaningful boundaries of conduct or delineated areas of risk because the general public is unaware of the vast initiatives taken by the UN.

As discussed by the Supreme Court of Canada in R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, commencing at page 621, the doctrine of vagueness is founded on the principles of fair notice to citizens and the limitation of enforcement discretion. Fair notice comprises two aspects: a formal aspect, namely, an acquaintance with the actual text of the statute; and a substantive aspect, namely, an understanding that certain conduct is the subject of legal restrictions. The limitation of enforcement discretion relates to the fact that a law must not be so imprecise that, for instance, the power to decide becomes fused with the power to prosecute. In essence, as Mr. Justice Gonthier notes in Nova Scotia Pharmaceutical Society, supra, a law will be found to be unconstitutionally vague if it so lacks in precision that it does not give sufficient guidance for legal debate.

The Supreme Court again had another occasion to consider the vagueness doctrine in R. v. Morales, [1992] 3 S.C.R. 711, where at page 727, the Court explained the doctrine as follows:

After noting at p. 632 [Nova Scotia Pharmaceutical Society] that “the threshold for finding a law vague is relatively high”, Gonthier J. held at p. 643 that “a law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate.” The rationale for this conclusion was as follows (at pp. 639-40):

A vague provision does not provide an adequate basis for legal debate, that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria. It does not sufficiently delineate any area of risk, and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion. Such a provision is not intelligible, to use the terminology of previous decisions of this Court, and therefore it fails to give sufficient indications that could fuel a legal debate. It offers no grasp to the judiciary.

Thus the inability of a vague law to frame the legal debate in a coherent manner violates the principles of fundamental justice in s. 7 and affects the analysis under s. 1.

The various factors to be considered in determining whether a particular law is vague were enumerated by Mr. Justice Gonthier in Nova Scotia Pharmaceutical Society, supra, at page 627:

… [they] include (a) the need for flexibility and the interpretative role of the courts, (b) the impossibility of achieving absolute certainty, a standard of intelligibility being more appropriate and (c) the possibility that many varying judicial interpretations of a given disposition may exist and perhaps coexist ….

Therefore, keeping the above factors in mind, has Parliament, by incorporating Article 1F(c) into the Immigration Act, sufficiently delineated the area of risk and the terms of legal debate to meet the constitutional standard of precision? Is “contrary to the purposes and principles of the United Nations” unconstitutionally vague?

Prior to the decision in Morales, supra, the Court was called upon to consider the doctrine of vagueness wherein the provision at issue either defined an offence or prohibited certain conduct. For instance, in Nova Scotia Pharmaceutical Society, supra, the provision under consideration by the Court was the conspiracy provision under the former Combines Investigation Act [R.S.C. 1970, c. C-23] which prohibits conduct that “unduly” lessens competition in Canadian markets, a criminal offence punishable, on indictment, to both fines and imprisonment. In Morales, supra, the vagueness issue concerned the grounds on which pre-trial detention were authorized, namely, “public interest” and “public safety”. In this case, it is clear that Article 1F(c) is a provision which prohibits conduct. If the Board has serious reasons for considering that a person has been guilty of acts contrary to the purposes and principles of the United Nations then the Convention shall not apply.

While the respondent contended that the application of the Convention is a matter of public law, not criminal law or civil law, I do not accept the fact that describing Article 1F(c) as part of the public law administered by the CRDD minimizes or qualifies, in any way, the application of the vagueness doctrine. In this regard, the Court in Nova Scotia Pharmaceutical Society, supra, at page 642, confirmed that the doctrine of vagueness applies to all enactments:

Finally, I also wish to point out that the standard I have outlined applies to all enactments, irrespective of whether they are civil, criminal, administrative or other. The citizen is entitled to have the State abide by constitutional standards of precision whenever it enacts legal dispositions.

Article 1F(c) will not be found to violate the doctrine of vagueness simply because it is framed in general terms which are subject to interpretations. As the Chief Justice notes in Morales, supra, at page 729, “flexibility and vagueness are not synonymous”. What must be determined is whether Article 1F(c) confers an unfettered discretion. As was stated in Nova Scotia Pharmaceutical Society, supra, at page 642, by Mr. Justice Gonthier:

What becomes more problematic is not so much general terms conferring broad discretion, but terms failing to give direction as to how to exercise this discretion, so that this exercise may be controlled. Once more, an unpermissibly vague law will not provide a sufficient basis for legal debate; it will not give a sufficient indication as to how decisions must be reached, such as factors to be considered or determinative elements. In giving unfettered discretion, it will deprive the judiciary of means of controlling the exercise of this discretion.

Once again, Justice Gonthier, in Morales, supra, at page 754, commented regarding discretion as follows:

Consequently, the identification of a measure of discretion conferred by means of a legislative provision cannot alone provide the basis for a constitutional evaluation of that provision. Nor can the identification of possible parameters of that discretion, for a discretion which is referred to as being fettered can be one which is limited not only by appropriate constraints but also by those which are inappropriate or unsuitable. The more important issue which remains, therefore, is what kind of discretion is conferred, and the capacity of the words of the legislative provision to support the type of reasoning which the matter under adjudication requires. [Emphasis added.]

I have reviewed the reasons for decision of the Board and I am of the opinion that the Board did not err with respect to their determination that Article 1F(c) is not vague. Indeed, the Board’s review of the law and its application to Article 1F(c) reflects a thoughtful and thorough analysis of the issues. I would only add the following comments.

While the Board does exercise a discretion under Article 1F(c), it is not as broad or as wide as the discretion which may be exercised in respect of other matters under the Immigration Act. Indeed, the Article notes that the provisions of the Convention shall not apply to any person if there are serious reasons for considering that, (1) the person is guilty of acts, and (2) these acts are contrary to the purposes and principles of the United Nations.

In Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, Mr. Justice Lamer [as he then was], at page 1076, stated:

Parliament cannot have intended to authorize such an unreasonable use of the discretion conferred by it. A discretion is never absolute, regardless of the terms in which it is conferred. This is a long-established principle. H. W. R. Wade, in his text titled Administrative Law (4th ed. 1977), says the following at pp. 336-37:

For more than three centuries it has been accepted that discretionary power conferred upon public authorities is not absolute, even within its apparent boundaries, but is subject to general legal limitations. These limitations are expressed in a variety of different ways, as by saying that discretion must be exercised reasonably and in good faith, that relevant considerations only must be taken into account, that there must be no malversation of any kind, or that the decision must not be arbitrary or capricious. [Emphasis added.]

See also Patrice Garant, L’imprécision en droit administratif et en droit constitutionnel: un défi à l’intelligence moyenne, (Toronto: Carswell, 1994), at page 75.

In the exercise of its discretion to exclude, the Board must objectively determine the facts and apply the appropriate legal principles. This discretion does have an objective limit of some kind. As indicated above, what the purposes and principles of the UN are is a question of law; whether they have been contravened is a question of fact.

In Morales, supra, the Chief Justice stated, at page 730, that the term “public interest” is a term which is subject to interpretation and therefore he went on to assess whether or not it is capable of being given a constant and settled meaning by the courts. He found it could not, in that case. In this case, I conclude that the purposes and principles of the United Nations are capable of being given a constant and settled meaning by the courts. As Mr. Justice Gonthier said in Nova Scotia Pharmaceutical Society, supra, at page 638, “[l]egal rules only provide a framework, a guide as to how one may behave … conduct is guided by approximation”. At page 641, he notes even when the judiciary simply applies the law in the case of somewhat “‘mechanical’ provisions”, they nevertheless have a “mediating role in the actualization of the law, although the extent of this may vary.” Therefore, legal provisions delineate a “risk zone” and cannot do more.

In terms of the criminal law, ignorance of the law is no excuse. While this is public law, it is not unreasonable that a refugee claimant in Canada might face sanctions in another forum beyond that of sentencing by the criminal courts. This is part of the substantive notice that guides the area of risk to the claimant. The exclusion clauses, contained in the Immigration Act, are the boundaries which outline the area of risk when a refugee claimant commits serious criminal acts that are contrary to Canadian criminal law, and may also be contrary to the purposes and principles of the United Nations. Another sanction may be imposed. Mr. Justice Gonthier phrased this more elegantly in Nova Scotia Pharmaceutical Society, supra, at page 634:

The substantive aspect of fair notice is therefore a subjective understanding that the law touches upon some conduct, based on the substratum of values underlying the legal enactment and on the role that the legal enactment plays in the life of the society.