Blog Post by Lorne Waldman, Barrister & Solicitor (Ontario), Founder, Waldman and Associates, Toronto. This post is part of the blog series on the application of refugee law in military service-related cases.
As a starting point for an analysis of whether conscientious objectors can obtain refugee status in Canada, we note that Canadian jurisprudence recognizes first that prosecution for a law of general application will not, in most cases, give rise to a claim for refugee status: Musial v Canada (MEI), 1982 1 FC 290. This reasoning will also apply to persons who are prosecuted for refusing to do military service or who desert while serving. However, there are circumstances where prosecution for refusing to serve can give rise to a claim for refugee status if the claimant can establish that the refusal is related to their religious or political beliefs, and if the claimant will either suffer disproportionate treatment or will be compelled to engage in activities which violate international law. The circumstances in which claims can be accepted will be discussed in the following sections.
Canadian Jurisprudence on Conscientious Objection
The Canadian jurisprudence adopts, to a large extent, the position of the UNHCR in its Handbook (See: UNHCR Handbook at paras 167- 174, <https://www.unhcr.org/fr-fr/en/media/handbook-procedures-and-criteria-determining-refugee-status-under-1951-convention-and-1967). The following principles emerge from the jurisprudence.
- A conscientious objector is a person who objects to serving in the military because service would violate their religious or political beliefs. One need not object to all military service, but if the particular service that the person would be required to engage in violates his or her values, then a person should be considered a conscientious objector.
- The fact that a person is a conscientious objector subject to punishment through a law of general application is not sufficient in and of itself to sustain a claim.
- A person can obtain refugee protection in Canada if they are a conscientious objector and their service would require them to engage in activities that are a violation of international law.
- If the person who is a conscientious objector will suffer extrajudicial punishment that is sufficiently serious to be considered persecution as a result of his conscientious objection, this will sustain a claim.
- If a person who is sentenced to a term in prison as a conscientious objector will be subjected to cruel inhumane or degrading treatment or torture while in prison due to prison conditions, then they may be able to sustain a claim for refugee protection.
A. The fact that the claimant is subject to a law of general application is not sufficient in and of itself to sustain a claim
The Federal Court has held that the fact that a person who will be punished by a law of general application as a conscientious objector will not in and of itself warrant granting refugee status. The leading case is that of Musial v MEI.[1] In that case, a Polish seaman jumped ship and claimed refugee status. The Federal Court upheld the decision that the application of a law of general application could not sustain a claim for refugee protection.[2]
This decision would appear to suggest that prosecution in and of itself will not normally constitute persecution, regardless of the motivation behind the commission of the offence. However, the two judges noted that this is the case if the applicant merely fears prosecution and punishment for that offence in accordance with those laws. This dictum would appear to leave open the possibility of demonstrating in a particular case that the punishment would be disproportionate to the offence, or that the applicant might fear other reprisals from the state that go beyond mere prosecution. In Musial v. Canada (Minister of Employment & Immigration), 1982 1 FC 290, the Chief Justice in concurring reasons recognized the need to go beyond the offence per se and to look at inter alia the motivation of the applicant for evading military service or deserting as a relevant factor in any analysis. There is no indication in Musial as to the nature of the sentence to which the applicant would have been subjected for being a draft resister, or whether there was any possibility of unusually severe sanctions or extra-judicial punishment. Further, there was no analysis of whether or not he would suffer disproportionately for any Convention Refugee reason.
B. A conscientious objector is a person who objects to serving in the military because service would violate their religious or political beliefs.
A conscientious objector is a person who objects to serving in the military because service would violate their religious or political beliefs. One need not object to all military service but if the particular service that the person would be required to engage in violates his or her values, then a person should be considered a conscientious objector.
In the case of Basbaydar v MCI, 2014 FC 158, the Federal Court set aside a decision where the tribunal found that the applicant was not a conscientious objector because he did not join organizations in Canada opposed to the war (paras 29–33). Thus, a person can be considered a conscientious objector if they object to serving on religious or political grounds. In the case of Basbaydar, his objection was based on his refusal to be complicit in the illegal treatment of Kurds by the Turkish Army. The Court found that his claim could succeed given the evidence that conscientious objectors are often subject to torture as a result of their objection to service.
C. A person can obtain refugee status in Canada if they are a conscientious objector and their service would require them to engage in activities which are a violation of international law.
The jurisprudence recognizes that a person can obtain refugee protection if they are a conscientious objector, and their service would require them to engage in activities which are a violation of international law. In the decision in Zolfagharkhani v. Canada (Minister of Employment & Immigration), 1993 FCJ 584 (C.A.), the Court determined that each case must be decided on its own particular facts, and that if the applicant is required to serve in a war which would entail a breach of international law, then a claim for refugee status can be sustained. In dealing with the particular circumstances of the appellant’s claim the court noted:
‘The U.N.H.C.R. Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1988, par. 171, states:
Where … the type of military action with which an individual does not wish to be associated is condemned by the international legal community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could … in itself be regarded as persecution.
In my view, that is precisely the situation in the case at bar. The probable use of chemical weapons, which the Board accepts as a fact, is clearly judged by the international community to be contrary to basic rules of human conduct, and consequently the ordinary Iranian conscription law of general application, as applied to a conflict in which Iran intended to use chemical weapons, amounts to persecution for political opinion….
There can be no doubt that the appellant’s refusal to participate in the military action against the Kurds would be treated by the Iranian Government as the expression of an unacceptable political opinion.’
The court was prepared to infer that the Iranian government would treat his act of conscientious objection as an unacceptable political act. The court was also prepared to accept that the application of the ordinary law of conscription to the appellant would be a persecutory act because of the illegality of some of the acts of war engaged in by the Iranian authorities. Thus, a person is entitled to violate an ordinary law of general application if compliance with the law would result in the violation of accepted international legal norms. In such circumstances, prosecution for the violation of such a law can constitute persecution so that the claimant’s refusal to serve or desertion could form the basis for a claim to refugee status.
In Ciric v. Canada (Minister of Employment & Immigration) [1994] 2 FC 65, 1993 CanLII 3028 (FCA) the Court followed the dicta set out in Zolfagharkhani v. Canada (Minister of Employment & Immigration) when dealing with the claim of a conscientious objector who had deserted from the Serbian army. The Board had rejected the claim, holding that the applicant was merely a victim of a law of general application. The Court quashed the decision, noting that the Board had failed to apply the dicta of the court in Zolfagharkhani.
Hinzman v. Canada (Minister of Citizenship and Immigration) [3]is another decision of the Federal Court on the question of “conscientious objection” which raised the issue of illegality. In this case, the applicant deserted from the U.S. forces so as to not serve in Iraq. He contended that if he were forced to serve in Iraq, he would be compelled to engage in violations of international law. The tribunal rejected his claim. The Federal Court upheld the finding of the tribunal and concluded that although there were violations of international law carried out by U.S. forces, a foot soldier would not be obliged to engage in such acts. What is unclear from this decision is what is the level proximity required in order to be able to refuse to participate. In Hinzman the Court concluded that the possible violation of international law was too remote to justify a refusal on the part of the claimant, a mere foot solider. Where the Court purports to draw the line is unclear. It could be argued that once the conflict is considered illegal under international law and its illegality is accepted by the majority of states, then it would be open to a claimant to seek asylum based on a fear of punishment based on a refusal to participate in the war. Certainly if the claimant’s participation in the war will require them to be complicit in any way in the commission of war crimes or crimes against humanity then a claim should be made out.
In Hinzman the Court again affirmed that there was no internationally held right to object to a particular war. Thus, punishment for draft evasion or refusal to serve because the claimant is a conscientious objector can constitute persecution if the service would involve the possibility that the claimant would be forced to commit international crimes, or if the claimant would receive a punishment which is either unduly severe or outside the realm of what is acceptable under international law.
In the case of Tindungan v. Canada (Minister of Citizenship and Immigration), 2013 FC 115, the Court set aside a decision of the tribunal which rejected a claim based on conscientious objection. The applicant had adduced evidence to show that he would not get a fair trial for desertion because the U.S. military courts did not meet international standards. The Court concluded that the tribunal had erred in failing to consider the evidence of an expert which cast doubt on the fairness of the U.S. military justice system.
In R.S. v. Canada (Minister of Citizenship and Immigration), 2012 FC 860, the Court set aside a decision of the Refugee Protection Division regarding an Israeli citizen who claimed to be opposed to the occupation and refused to serve in the military in Israel. The Court noted that it was incumbent on the tribunal to assess whether the applicant would be compelled to serve in circumstances where the acts of the Israeli military were condemned by the international community and whether the punishment might constitute persecution.[4] In Nazhmetdinov v MCI, 2024 FC 389, the Court overturned a decision which rejected the applicant’s claim for protection because the tribunal failed to consider whether the applicant would be forced to fight for Russia in Ukraine given that there was evidence that the conduct of the Russian Army in Ukraine was being conducted in a manner which violated international law:[5]
D. If the person who is a conscientious objector will suffer extrajudicial punishment that is sufficiently serious to be considered persecution as a result of his conscientious objection, this will sustain a claim.
The Federal Court has determined that when a person who is a conscientious objector will suffer extrajudicial punishments which are sufficiently severe to be considered persecution, a claim for refugee status can be made out. In the case of Padilla v. Canada (Minister of Employment & Immigration), [6] the Court dealt with the question of desertion as constituting the basis for a claim to be a Convention refugee. The Board had rejected the claim on the basis of desertion because it found that the consequences the applicant faced did not constitute persecution. The Court in Padilla accepts that in certain circumstances, a conscientious objector can have a valid claim if he or she faces a risk of extrajudicial punishment, including torture. If the potential punishment is outside what is considered acceptable under international human rights law, then the prosecution for desertion or draft evasion can constitute persecution.
In the case of Abramov v. Canada (Minister of Citizenship & Immigration),[7] the Court quashed a determination of the CRDD that the applicant was not a Convention refugee because the Board failed to consider that punishment of undue proportion by the state for military evaders could be considered persecution.[8]
In Bakir v. Canada (Minister of Citizenship and Immigration), 2004 FC 70, the Court set aside a decision that rejected a claim that was based on conscientious objection. The Court found that the tribunal erred because it failed to consider whether or not the applicant would be subjected to extrajudicial sanctions due to his conscientious objection.
In Canada (Minister of Citizenship and Immigration) v. Akgul, 2015 FC 834 the Court upheld a decision of the tribunal which found that the applicant was a convention refugee due to being a conscientious objector. The tribunal accepted that the applicant was a conscientious objector and there was evidence that demonstrated that conscientious objectors received harsh treatment that could constitute persecution.[9]
E. If a person who is sentenced to a term in prison as a conscientious objector will be subjected to cruel inhumane or degrading treatment or torture while in prison due to prison conditions, then they may be able to sustain a claim for refugee protection.
The jurisprudence has also determined that when a person faces a prison term for conscientious objection and if the evidence demonstrates that the person will be subjected to cruel, inhumane or degrading treatment while in prison due to their race, religion or political opinion, then a claim as a Convention Refugee can succeed. If there is no nexus to any of the Convention refugee grounds, then the claimant can still succeed under section 97 of the Immigration and Refugee Protection Act (“IRPA”) which protects persons from cruel, inhumane or degrading treatment and torture.[10]
In Lebedev v. Canada (Minister of Employment & Immigration), 2007 FC 728, the applicant had argued that given the fact that he was subject to a warrant for arrest and that he would certainly face detention, he had a valid claim under s. 97 due to inhumane prison conditions. The Court accepted the proposition and quashed the decision (at paras 95 – 96). In Elamin v Canada (MCI), 2020 FC 847 at para 30the Court set aside a decision due to the failure of the tribunal to consider whether the prison conditions associated with the possible sentence for deserting his post were persecutory. [11] Thus, a prosecution can lead to a successful claim under s. 97 if, as a result of the prosecution, the person will be detained in conditions that constitute cruel, inhumane or degrading treatment.[12]
F. The Canadian position is inconsistent with the position of the Human Rights Committee and does not recognize the right of a person to freely express their religious or political beliefs.
The jurisprudence in Canada does not recognize a right to alternative service as a conscientious objector. Therefore, if a person refuses to serve in the military due to their religious or political opinions, and they are subject to a fair trial and are sentenced to a term of imprisonment as a result, this will not in and of itself be sufficient to sustain a claim for refugee protection. [13] However, if the punishment for refusal to serve is grossly disproportionate then a claim can be made out. [14] This position is unduly restrictive and does not recognize the persons right to free religious or political expression. Indeed it is inconsistent with other jurisprudence in Canada recognizes that a person can be considered a victim of persecution if they are denied the right to practice their religion in their country of nationality. [15] If a person genuinely believes that enlisting in the armed forces would violate their religious beliefs, if there is no possibility of alternate service, and if the punishment is sufficiently severe to be considered persecutory, then the person should be able to seek international protection.
This position is supported by reference to the decisions of the United Nations Human Rights Committee which has affirmed that prosecution of a conscientious objector could be a violation of the ICCPR. [16] In the recent decision of the Supreme Court of Canada in Mason v MCI [17] the Supreme Court of Canada held that the provisions of the Immigration and Refugee Protection Act (IRPA) [18] must be interpreted in a manner consistent with Canada’s international obligations and the Conventions that Canada has ratified. As the ICCPR has been ratified by Canada, the views of the Human Rights Committee as to the proper interpretation of the Covenant should provide guidance to the Courts and tribunals that consider cases involving conscientious objectors. Such an approach would require Canadian courts to recognize that a conscientious objector can sustain a claim for refugee status if they will be subjected to serious sanctions for refusal to serve if they are not offered the possibility of alternative service.
[1] See also: Valentin v Canada (Minister of Employment and Immigration), 1991 CanLII 13585 (FCA), [1991] 3 FC 390 (CA); Ates v Canada (Minister of Citizenship and Immigration), 2005 FCA 322. González Salcedo v Canada (Citizenship and Immigration), 2014 FC 822.
[2] 1982 1 FC 290 at p. 294
[3] 2006 FC 420. See also: Hinzman v Canada (Citizenship and Immigration), 2007 FCA 171 in which Hinzman v Canada (MCI), 2005 FC 420 is affirmed. The Federal Court of Appeal held that the appellant had failed to avail himself alternate service and found that this amounted to a failure to seek state protection.
[4] Ibid at paras 12, 20.
[5] Ibid at para 35.
[6] [1991] F.C.J. No. 71, 160 N.R. 156 at pp. 157–58 (C.A.).
[7] [1998] F.C.J. No. 844, 150 F.T.R. 119 at p. 121 (T.D.).
[8] Ibid.
[9] Ibid at paras 10, 12.
[10] Immigration and Refugee Protection Act, S.C. 2001, c. 27 at s 97 [IRPA].
[11] See also: Asgarov v Canada (MCI), 2019 FC 106.
[12] In Rodriguez v MCI 2015 FC 972 the Court affirmed a decision dismissing a claim for refugee protection. The applicant was a deserter from the Mexican army. As he did not desert due to conscientious objection he could not sustain a claim for refugee protection. He maintained however that he would be subject to cruel treatment due to a lengthy prison sentence for desertion in harsh conditions. This was rejected due to the absence of evidence to sustain the claim.
[13] See Ates v MCI 2004 FC 1316 affirmed 2005 FCA 322 see also Sahin v MCI 2013 FC 990
[14] See MCI v Harvey 2013 FC 717
[15] See Fosu v MEI 1994 FCJ 1813
[16] See for example Ahmet Hudaybergenov v Turkmenistan, https://docs.un.org/en/CCPR/C/115/D/2222/2012
[18] The definition of Convention Refugee is incorporated into Canada law through IRPA section 96 .
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