Judgments

[1995] 1 F.C. 508

A-375-92

Goody Gil (Appellant)

v.

Minister of Employment and Immigration (Respondent)

Indexed as: Gil v. Canada (Minister of Employment and Immigration) (C.A.)

Court of Appeal, Hugessen, Desjardins and Décary JJ.A.—Montréal, September 12, 14; Ottawa, October 21, 1994.

Citizenship and Immigration — Exclusion and removal — Inadmissible persons — Appeal from Immigration and Refugee Board (IRB) decision appellant having well-founded fear of persecution but excluded from refugee status by Immigration Act, s. 2, Convention, Art. 1F(b) — Appellant Iranian citizen involved in bombing, arson with group of anti-Khomeini activists — IRB finding responsible for murder of innocent people — Whether “serious non-political crime” under Convention — Extradition, refugee law distinguished — No direct link between crime committed by appellant and alleged political purpose — Means employed disproportionate to legitimate political objective.

Extradition — Characterization of crimes as “political” in extradition, refugee law — Whether two sides of same coin — Extradition, refugee contexts considered, distinguished — Necessity for greater caution in characterizing crime as political in refugee than in extradition context — Review of English, American case law on political offences in extradition matters — “Incidence” test discussed — Crime not “political” if act disproportionate to objective, of barbarous nature — Violence against civilians not political crime regardless of motive — Act must be directly proximate to government.

The appellant is an Iranian citizen who, in the years 1980 and 1981, became involved with a group of anti-Khomeini activists in incidents of bombing and arson directed against wealthy supporters of the regime. Those attacks consisted in the placing of bombs or Molotov cocktails in the supporters’ business premises located in the bazaar. Since such premises were usually crowded at the time of the attacks, the latter frequently resulted in injury and even death to innocent bystanders. The Immigration and Refugee Board found as a fact that the appellant “was personally responsible for the murder of innocent people.” It added that the crimes committed by the appellant were violent acts staged in crowded bazaars, with a blatant disregard for the safety of innocent civilians and that such crimes could not and should not be considered to be “political” in nature. The Board’s conclusion was that the appellant had a well-founded fear of persecution in the event of his return to Iran, but that he was excluded by the provisions of Article 1F(b) of the United Nations Convention Relating to the Status of Refugees. This appeal concerned the interpretation and application of the “serious non-political crime” exception in Article 1F(b) of the Convention.

Held, the appeal should be dismissed.

Although the concept of “political crime” is not normally thought of as known to Canadian criminal law, in two respects at least the laws of Canada recognize that the consequences of an otherwise criminal act may vary if that act can be characterized as political. In both instances the reference is to actions committed outside Canada but the standard to be applied is one which is mandated by Canadian law and administered by Canadian courts. The two exceptions are found in the law of refugee status and in extradition law. Although they are said to be but two sides of the same coin and serve to complement one another, there are important differences between the two. These differences would seem to point to a need for even greater caution in characterizing a crime as political for the purposes of applying Article 1F(b) than for the purpose of denying extradition. Case law on extradition, rather than refugee claims, in the United Kingdom, the United States and elsewhere has developed the so-called “incidence” test for determining whether or not an offence was of political character. The first requirement of the test is that the alleged crimes must be committed in the course of and incidental to a violent political disturbance such as a war, revolution or rebellion. The “political offense” exception is thus applicable only when a certain level of violence exists and when those resorting to violence are seeking to accomplish a particular objective such as to bring about political change or to combat violent political opposition. The second branch of the test is focused on the need for a nexus between the crime and the alleged political objective. The nature and purpose of the offense require examination, including whether it was committed out of genuine political motives or merely for personal reasons or gain, whether it was directed towards a modification of the political organization or the very structure of the state, and whether there is a close and direct causal link between the crime committed and its alleged political purpose and object. The political element should in principle outweigh the common law character of the offence, which may not be the case if the acts committed are grossly disproportionate to the objective, or are of an atrocious or barbarous nature.

Although a purely personal motive such as monetary gain or the settling of accounts with a hated adversary might serve to vitiate a claim that a crime was political, the Board’s characterization of the appellant’s motives as being “revenge” or “vindictiveness” was unfair. While he was, in a sense, seeking revenge against those thought responsible for his difficult political, social and economic situation, such perception was a normal component of a desire for political revenge. The appellant met the first branch of the incidence test as enunciated in the authorities, since the materials in the record showed that, in the years in question, Iran was a turbulent society in which a number of armed groups were in conflict with the Khomeini regime. He did not meet, however, the second branch of the test. There was no objective rational connection between injuring the commercial interests of certain wealthy supporters of the regime and any realistic goal of forcing the regime itself to fall or to change its ways or its policies. Even if some of the businesses targeted were owned by highly placed members of local revolutionary committees, the nexus between such businesses and the general structure of the Government of Iran at the time appeared far too tenuous to support or justify the kind of indiscriminate violence which the appellant admitted to. The Board had been correct in finding that the means employed by the appellant were such as to exclude his crimes from any claim to be political in nature. The crucial point was not merely that some of the victims were innocent bystanders but, much more importantly, that the attacks themselves were not carried out against armed adversaries and were bound to injure the innocent. Violence of this sort was wholly disproportionate to any legitimate political objective. The appellant’s claim failed for the lack of nexus between the crimes and any realistic political objective, and the fact that the means employed were unacceptable as a form of political protest against any regime, no matter how repressive, totalitarian or dictatorial.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Extradition Act, R.S.C., 1985, c. E-23, s. 21.

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

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

CASES JUDICIALLY CONSIDERED

APPLIED:

Castioni, In re, [1891] 1 Q.B. 149; Meunier, In re, [1894] 2 Q.B. 415; Regina v. Governor of Brixton Prison. Ex parte Kolczynski, [1955] 1 Q.B. 540; Regina v. Governor of Brixton Prison, Ex parte Schtraks, [1964] A.C. 556 (H.L.); Reg. v. Governor of Pentonville Prison, Ex parte Cheng, [1973] A.C. 931 (H.L.); Koskotas v. Roche, 931 F.2d 169 (1st Cir. 1991); McMullen v. I.N.S., 788 F.2d 591 (9th Cir. 1986); Quinn v. Robinson, 783 F.2d 776 (9th Cir. 1986); Eain v. Wilkes, 641 F.2d 504 (7th Cir. 1981); Suarez-Mason, Matter of Extradition of, 694 F. Supp. 676 (N.D. Cal. 1988); Folkerts v. Public Prosecutor (1978), 74 I.L.R. 498 (Netherlands S.C.); Ellis v. O’Dea, [1991] ILRM 346 (H.C.); affd [1991] 1 I.R. 251 (S.C.); Gonzalez v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 646; (1994), 115 D.L.R. (4th) 403 (C.A.).

CONSIDERED:

A. (T.W.) (Re), [1991] C.R.D.D. No. 430 (QL); Atta, Matter of Extradition of, 706 F. Supp.1032 (E.D.N.Y.); affd sub nom. Ahmad v. Wigen, 910 F.2d 1063 (2nd Cir. 1990).

REFERRED TO:

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.

AUTHORS CITED

Determination of Refugee Status of Persons Connected with Organizations or Groups which Advocate and/or Practice Violence. Prepared by Legal Project, UNHCR Branch Office in Canada, Note No. 5. Ottawa, August 2, 1989 (unpublished).

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

Grahl-Madsen, Atle. The Status of Refugees in International Law. Leyden: A. W. Sijthoff, 1966.

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

Immigration and Refugee Board. Documentation Centre. Iran: Country Profile. Ottawa: Immigration and Refugee Board, 1989.

La Forest, Anne W. La Forest’s Extradition to and from Canada, 3rd ed. Aurora, Ont.: Canada Law Book Inc., 1991.

Stephen, James Fitzjames, Sir. A History of the Criminal Law of England. London: Macmillan, 1883.

United Nations. Office of the United Nations High Commissioner for Refugees. Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. Geneva, September 1979.

APPEAL from a decision of the Immigration and Refugee Board that the appellant had a well-founded fear of persecution, but was excluded under Article 1F(b) of the United Nations Convention Relating to the Status of Refugees. Appeal dismissed.

COUNSEL:

Stewart Istvanffy for appellant.

Normand Lemyre for respondent.

SOLICITORS:

Stewart Istvanffy, Montréal, for appellant.

Deputy Attorney General of Canada, for respondent.

The following are the reasons for judgment rendered in English by

Hugessen J.A.

Introduction

The very expression “political crime” rings curiously and indeed offensively to Canadian ears. We do not think of crimes as being “political” except in the broadest sense of that word in that they cause injury not only to individuals but also to the public peace and therefore to the polity in which we live. Politicians who commit crimes are hounded from office as well as punished. Political motivation or political purpose are for us quite simply irrelevant to the determination of whether a given action is criminal and should be punished. The murders of D’Arcy McGee and Pierre Laporte were viewed by Canadian law as simply murders, no more and no less.

It may come therefore as some surprise to most Canadians to learn that in two respects at least the laws of Canada recognize that the consequences of an otherwise criminal act may vary if that act can be characterized as political. In both instances the reference is to actions committed outside Canada but the standard to be applied is one which is mandated by Canadian law and administered by Canadian courts.

The two exceptions in question are found in the law of refugee status and in extradition law.

Section 2 of the Immigration Act[1] in defining the term “Convention refugee” concludes with the words “but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof.” Section F of Article 1 of the Convention [United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6], set out in the schedule [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 34] to the Act, reads:[2]

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

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations. [Emphasis added.]

For its part, section 21 of the Extradition Act[3] reads:

21. No fugitive is liable to surrender under this Part if it appears that

(a) the offence in respect of which proceedings are taken under this Part is one of a political character; or

(b) the proceedings are being taken with a view to prosecute or punish the fugitive for an offence of a political character.

This case concerns the proper interpretation and application of the “serious non-political crime” exception contained in Article 1F(b) of the Convention. It is, as far as we have been informed, the first such case to be decided by a Canadian court.

The facts

The facts may be shortly stated. The appellant is an Iranian citizen, son of a wealthy family which had been an active supporter of the Shah’s regime. Indeed the appellant’s father had worked directly for the Shah’s brother. As might be expected, the family experienced considerable difficulties after the coming to power of the Ayatollah Khomeini’s government in 1979. The appellant was at that time a student and he experienced harassment at the hands of the local revolutionary committee and of the school authorities, one of whom later became a senior official in the Revolutionary Guards. The appellant joined an underground student group that met regularly and in due course became associated with a larger militant group of anti-Khomeini activists. In the years 1980 and 1981, the appellant personally took part in five or six incidents of bombing and arson. Those attacks were said to be directed against wealthy supporters of the regime and members of the local revolutionary committee and consisted in the placing of bombs or Molotov cocktails in their business premises in the bazaar. Since such premises were usually crowded at the time of the attacks (indeed the crowds seem to have served as cover for the attackers) they frequently resulted in injury and even death to innocent bystanders. The Board found as a fact, and there was evidence to support the finding, that the appellant “was personally responsible for the murder of innocent people”.[4]

Although he was three times arrested and interrogated by the authorities, the appellant never confessed to his activities and he was ultimately released on each occasion. In due course he left Iran and arrived in this country in 1986. Because he was subsequently imprisoned for an offence against the laws of Canada, his claim to refugee status was not heard until 1991.

The decision under review

By the decision now under review, the Board found that the appellant did indeed have a well-founded fear of persecution in the event of his return to Iran, but that he was excluded by the provisions of Article 1F(b) of the Convention, supra.

As I read the Board’s decision it turns largely on two findings. In the first place, the Board expressed some doubt as to whether the appellant’s crimes were politically motivated at all. As the Board put it, the appellant’s evidence led them to “question whether there was anything beyond revenge and anarchy in his mind and the mind of his group.”[5] And again “there is no indication … that their crimes attempted to go beyond personal vindictiveness towards something which would alter the political organisations that existed at the time.”[6]

The second and more telling finding of the Board deals with the methods employed by the appellant:

In a case such as this, the offenses are of such a particularly serious and disproportionate nature that it cannot be treated as “political” for the purpose of Section F(b), regardless of the alleged political motive. For the crimes committed by Mr. [Gil] go well beyond those considered to be political offenses. Rather they are violent acts which were staged in crowded bazaars, with a blatant disregard for the safety of innocent civilians. Such kinds of crimes cannot and should not ever be considered to be “political” in nature.

…

 … one must look to the target of the attack to determine whether a person can be classified as being a freedom fighter or a terrorist. The freedom fighter, or the resistance fighter, attempts to achieve his aim by going after military and government targets primarily, while the terrorist uses the innocent seeking to create chaos by striking out at the most vulnerable. That is what Mr. [Gil] did. As he said himself, he chose crowded market places so the innocent could serve as his cover. He did what he did knowing full well the consequences, knowing that some bystanders would die or be injured. In so doing, he has committed what must be defined as a “serious non-political crime”. [Supra, note 4.]

The law

I have previously indicated that the characterization of crimes as “political” is found in both extradition and refugee law. This has led some commentators to suggest that they are but two sides of the same coin and serve to complement one another:[7] the fugitive who cannot be extradited may seek asylum; the refugee claimant who is excluded may be extradited. While there is much truth to this observation, and while, as will be seen, we must rely almost entirely on cases relating to extradition rather than to refugee claims, it is, I think, of some utility to observe at the outset that there are important differences between the two. In particular:

1) Extradition is carried out as an obligation under treaty owed by Canada to the requesting state; the grant of refugee status arises from an obligation owed to the individual claimant under a domestic law enacted in compliance with an international convention;

2) In extradition the foreign state wants the fugitive returned and actively seeks that result; the judicial proceedings in this country are an offshoot of judicial proceedings in the requesting state. In refugee law, by contrast, only the claimant is before the court and there is generally no indication whether his country of origin knows or even cares about his criminal activities;

3) In extradition the fugitive generally contests his guilt and it is up to the requesting state to prove it; in refugee claims the claimant often admits his crimes (as this appellant did) but tries to show that they are political;

4) Since Article 1F(b) is stated as an exception to the definition of a refugee, the claimant against whom it is invoked is, ex hypothesi, in danger of persecution in the event of his return; if the crime is “political,” persecution for political opinion would therefore seem to be almost a foregone conclusion. In extradition, on the other hand, it is generally assumed that the requesting state will afford to the fugitive all the usual legal protections and no ulterior motive is presumed;

5) The Extradition Act draws a distinction between the “political” crime (paragraph 21(a) above) and the “political” motive of the prosecution (paragraph 21(b)). The implication is clear that a non-political crime may be prosecuted for political motives. The Convention definition in Article 1F(b) speaks only of the crime itself. In theory, therefore, there may be some offences which would not be extraditable under paragraph 21(b) but would still operate to exclude the offenders from refugee status under Article 1F(b);

6) The extradition exception applies to both “pure” and “relative” political offences,[8] and the rationale for the rule is clear enough. It is less clear why, in refugee law, an offence which is only “relatively” political, i.e. because it was committed for a political motive, should oblige a state to grant asylum to the criminal. It is one thing to refuse to return a political assassin; it is quite another to welcome him with open arms;

7) The refugee exception is limited to “serious” crimes; extradition law has no such qualification;

8) The result of a successful extradition is the return of the fugitive to face trial; the result of a failed refugee claim is not necessarily the return of the claimant to the country where his crime was committed, which may even not be his country of origin;

9) Extradition law is ultimately concerned with the punishment by foreign states of what are generally and internationally recognized to be crimes; refugee law, in this country at least, is concerned with the admission to Canada of permanent residents who may ultimately become citizens.

On balance, these considerations would seem to me to point to a need for even greater caution in characterizing a crime as political for the purposes of applying Article 1F(b) than for the purpose of denying extradition.

In the light of these general observations I turn now to look at the state of the authorities in the United Kingdom, the United States and elsewhere. All the decided cases, except where otherwise specifically noted, concern extradition rather than refugee claims and must therefore be read in the light of the foregoing comments.

United Kingdom cases

The first decision, and one that is still cited, is the judgment of the Divisional Court in Castioni, In re.[9] The Court allowed a writ of habeas corpus to block the extradition to Switzerland of a fugitive who had killed a Cantonal official in the course of an armed uprising against the Government of the Canton. The Court laid down what was subsequently to become known as the “incidence” test for determining whether or not an offence was of a political character. Hawkins J., quoting and adopting the test suggested in the well-known treatise of Stephen J. [A History of the Criminal Law of England] (who was also a member of the Court), put the matter thus:

I think, therefore, that the expression in the Extradition Act ought (unless some better interpretation of it can be suggested) to be interpreted to mean that fugitive criminals are not to be surrendered for extradition crimes, if those crimes were incidental to and formed a part of political disturbances. [Emphasis added.]

Denman J. expressed the same thing in somewhat different language (at pages 158-159):

 … an act done, not only in the course of a political rising, but as part of a political rising …. The question really is, whether, upon the facts, it is clear that the man was acting as one of a number of persons engaged in acts of violence of a political character with a political object, and as part of the political movement and rising in which he was taking part. [Emphasis added.]

A few years latter in Meunier, In re,[10] the Divisional Court used the incidence test to deny the “political offence” exception claimed by, and thereby permit the extradition of, an anarchist who had thrown a bomb into a military barracks. The case is important in that it appears to draw a distinction between offences committed against governments and their officials and those committed against private citizens. Cave J., speaking for the Court, set out both the test and the distinction in the following words:

The last point taken is, that, so far as regards the outrage at the barracks, the offence charged is one of a political character, and therefore the accused is not liable to be surrendered under the Extradition Acts; for it is said that the outrage was an attack on Government property, and was an attempt to destroy the quarters occupied by the troops of the French Government. It appears to me that, in order to constitute an offence of a political character, there must be two or more parties in the State, each seeking to impose the Government of their own choice on the other, and that, if the offence is committed by one side or the other in pursuance of that object, it is a political offence, otherwise not. In the present case there are not two parties in the State, each seeking to impose the Government of their own choice on the other; for the party with whom the accused is identified by the evidence, and by his own voluntary statement, namely, the party of anarchy, is the enemy of all Governments. Their efforts are directed primarily against the general body of citizens. They may, secondarily and incidentally, commit offences against some particular Government; but anarchist offences are mainly directed against private citizens. [Emphasis added.]

Some of the weaknesses inherent in seeking to apply the incidence test in all cases appear from the decision in Regina v. Governor of Brixton Prison. Ex parte Kolczynski.[11] In that case, the crew of a Polish fishing trawler had overpowered the master and the political officer and had brought the ship to Britain where they sought asylum. Clearly this was an extraditable offence and it could even arguably be said to constitute the international crime of piracy. Equally clearly, the crew were not participating in any revolution or uprising against the Polish government and could not reasonably have expected their actions to bring about any change of government in Poland. They were simply seeking to escape. Extradition was nonetheless refused. Cassels J. put the matter in this way:

The words “offence of a political character” must always be considered according to the circumstances existing at the time when they have to be considered. The present time is very different from 1891, when Castioni’s case was decided. It was not then treason for a citizen to leave his country and start a fresh life in another. Countries were not regarded as enemy countries when no war was in progress. Now a state of totalitarianism prevails in some parts of the world and it is a crime for citizens in such places to take steps to leave. In this case the members of the crew of a small trawler engaged in fishing were under political supervision and they revolted by the only means open to them. They committed an offence of a political character, and if they were surrendered there could be no doubt that, while they would be tried for the particular offence mentioned, they would be punished as for a political crime.

The judgment of Lord Goddard C.J., at page 550 is also helpful in that it emphasises the political nature of the prosecution to which the seamen would be subject:

Prima facie the evidence in support of the requisition merely show a revolt by two or more of the persons charged on board a ship on the high seas against the authority of the master, and this is a scheduled offence. The evidence, the truth of which the magistrate accepted, showed that these men while at sea found that a political officer was overhearing and recording their conversations and keeping observation upon them for the purpose of preparing a case against them on account of their political opinions, presumably in order that they might be punished for holding or at least expressing them. A resultant prosecution would thus have been a political prosecution. The revolt of the crew was to prevent themselves being prosecuted for a political offence and in my opinion, therefore, the offence had a political character.

In Regina v. Governor of Brixton Prison, Ex parte Schtraks,[12] the House of Lords, while rejecting a political offence claim urged in opposition to an extradition request, cast some doubt on the validity of the formulation of the incidence test in Castioni and Meunier, supra. Lord Reid, in particular, went much farther than any of the other law Lords in questioning the rigidity and utility of that formulation in modern conditions:

We cannot inquire whether a “fugitive criminal” was engaged in a good or a bad cause. A fugitive member of a gang who committed an offence in the course of an unsuccessful putsch is as much within the Act as the follower of a Garibaldi. But not every person who commits an offence in the course of a political struggle is entitled to protection. If a person takes advantage of his position as an insurgent to murder a man against whom he has a grudge I would not think that that could be called a political offence. So it appears to me that the motive and purpose of the accused in committing the offence must be relevant and may be decisive. It is one thing to commit an offence for the purpose of promoting a political cause and quite a different thing to commit the same offence for an ordinary criminal purpose.

Moreover, I do not think that the application of the section can be limited to cases of open insurrection. An underground resistance movement may be attempting to overthrow a government and it could hardly be that an offence committed the day before open disturbances broke out would be treated as non-political while a precisely similar offence committed two days later would be of a political character. And I do not see why the section should be limited to attempts to overthrow a government. The use of force, or it may be other means, to compel a sovereign to change his advisers, or to compel a government to change its policy may be just as political in character as the use of force to achieve a revolution. And I do not see why it should be necessary that the refugee’s party should have been trying to achieve power in the State. It would be enough if they were trying to make the government concede some measure of freedom but not attempting to supplant it.

…

It appears to me that the provisions of section 3 of the Act of 1870 are clearly intended to give effect to the principle that there should in this country be asylum for political refugees, and I do not think that it is possible, or that the Act evinces any intention to define the circumstances in which an offence can properly be held to be of a political character.

With an expression so vague as “an offence of a political ‘character’ there must be many borderline cases, for example, actions against a turbulent group trying to seize power which the government is too weak to suppress. But the present case appears to me to be beyond any possible extension of that category. I am willing to assume that the accused did what he believed to be right, and that many people, and even a whole political party, agreed with him, but I cannot find any political character in the alleged offences. There is nothing to indicate that he acted as he did in order to force or even promote a change of government, or even a change of government policy, or to achieve a political objective of any kind. I do not say that every act done for such purposes would necessarily be of a political character, but without any such purpose it could only be in some exceptional case which I cannot foresee that the act could, in my view, be said to be of a political character. [Emphasis added.]

Viscount Radcliffe, for his part, while agreeing with the need to liberalize the test, retained the requirement of a political struggle for power (at pages 591-592):

In my opinion the idea that lies behind the phrase “offence of a political ‘character’” is that the fugitive is at odds with the State that applies for his extradition on some issue connected with the political control or government of the country. The analogy of “political” in this context is with “political” in such phrases as “political refugee,” “political asylum” or “political prisoner.” It does indicate, I think that the requesting State is after him for reasons other than the enforcement, of the criminal law in its ordinary, what I may call its common or international, aspect. It is this idea that the judges were seeking to express in the two early cases of In re Castioni and In re Meunier when they connected the political offence with an uprising, a disturbance, an insurrection, a civil war or struggle for power: and in my opinion it is still necessary to maintain the idea of that connection. It is not departed from by taking a liberal view as to what is meant by disturbance or these other words, provided that the idea of political opposition as between fugitive and requesting State is not lost sight of: but it would be lost sight of, I think, if one were to say that all offences were political offences, so long as they could be shown to have been committed for a political object or with a political motive or for the furtherance of some political cause or campaign. There may, for instance, be all sorts of contending political organisations or forces in a country and members of them may commit all sorts of infractions of the criminal law in the belief that by so doing they will further their political ends: but if the central government stands apart and is concerned only to enforce the criminal law that has been violated by these contestants, I see no reason why fugitives should be protected by this country from its jurisdiction on the ground that they are political offenders. [Emphasis added.]

Viscount Radcliffe’s views were specifically approved by the majority of the House of Lords in Reg. v. Governor of Pentonville Prison, Ex parte Cheng.[13] Once again, however, the comments of the law Lords must be viewed as obiter dicta, since the case was actually decided on the ground that Cheng‘s alleged offence, an attempt to assassinate a Taiwanese government official, could have no political character in the United States, which was both the country where the crime was committed and the state requesting extradition. Lord Diplock’s comments in particular, however, are useful in their emphasis on the need for a real connection between the crime and the alleged political object:

My Lords, the noun that is qualified by the adjectival phrase “of a political character,” is “offence.” One must, therefore, consider what are the juristic elements in an offence, particularly one which is an extradition crime, to which the epithet “political” can apply. I would accept that it applies to the mental element: the state of mind of the accused when he did the act which constitutes the physical element in the offence with which he is charged. I would accept, too, that the relevant state of mind is not restricted to the intent necessary to constitute the offence with which he is charged, for in the case of none of the extradition crimes can this properly be described as being political. The relevant mental element must involve some less immediate object which the accused sought to achieve by doing the physical act. It is unnecessary for the purposes of the present appeal, and would, in my view, be unwise, to attempt to define how remote that object might be. If the accused had robbed a bank in order to obtain funds to support a political party, the object would, in my view, clearly be too remote to constitute a political offence. But if the accused had killed a dictator in the hope of changing the government of the country, his object would be sufficiently immediate to justify the epithet “political.” For politics are about government. “Political” as descriptive of an object to be achieved must, in my view, be confined to the object of overthrowing or changing the government of a state or inducing it to change its policy or escaping from its territory the better so to do. [Emphasis added.]

United States cases

The courts of the United States have adapted and refined the incidence test as originally laid down in Castioni, supra and have brought it into line with modern political reality in much the same way as have the British courts. A recent and succinct statement of the test in an extradition case is found in Koskotas v. Roche:[14]

In order to come within the “political offense” exception, Koskotas must meet the so-called “incidence” test, by demonstrating that the alleged crimes were “committed in the course of and incidental to a violent political disturbance such as a war, revolution or rebellion.”

…

The “political offense” exception historically has embraced only offenses aimed either at accomplishing political change by violent means or at repressing violent political opposition. The exception is “applicable only when a certain level of violence exists and when those engaged in that violence are seeking to accomplish a particular objective.” [Emphasis added.]

There has been some dispute in the United States courts as to whether or not the incidence test is comprehensive and, in particular, as to whether it is subject to a further requirement which looks to the means employed for the purposes of bringing about the alleged political ends. In McMullen v. I.N.S.[15] (one of the very few refugee cases to deal with the question) the test was stated as follows:

Under this standard, a “serious non-political crime” is a crime that was not committed out of “genuine political motives,” was not directed toward the “modification of the political organization or … structure of the state,” and in which there is no direct, “causal link between the crime committed and its alleged political purpose and object.” In addition, even if the preceding standards are met, a crime should be considered a serious nonpolitical crime if the act is disproportionate to the objective, or if it is “of an atrocious or barbarous nature.” [Emphasis added.]

The underlined words indicate where the controversy lies. McMullen, supra, was decided by the 9th Circuit Court on April 25, 1986. Only two months earlier, on February 18, 1986, a different panel of the same Court in Quinn v. Robinson,[16] by a majority, and in what was in fact an obiter dictum,[17] had taken vigorous issue with any suggestion that the Court should look at the means employed:

We do not believe it appropriate to make qualitative judgments regarding a foreign government or a struggle designed to alter that government …. Such judgments themselves cannot be other than political and, as such, involve determinations of the sort that are not within the judicial role.

A second premise may underlie the analyses of courts that appear to favour narrowing the exception, namely, that modern revolutionary tactics which include violence directed at civilians are not politically “legitimate.” This assumption, which may well constitute an understandable response to the recent rise of international terrorism, skews any political offense analysis because of an inherent conceptual short-coming. In deciding what tactics are acceptable, we seek to impose on other nations and cultures our own traditional notions of how internal political struggles should be conducted.

The structure of societies and governments, the relationships between nations and their citizens, and the modes of altering political structures have changed dramatically since our courts first adopted the Castioni test. Neither wars nor revolutions are conducted in as clear-cut or mannerly a fashion as they once were. Both the nature of the acts committed in struggles for self-determination … and the geographic location of those struggles have changed considerably since the time of the French and American revolutions. Now challenges by insurgent movements to the existing order take place most frequently in Third World countries rather than in Europe or North America. In contrast to the organized, clearly identifiable, armed forces of past revolutions, today’s struggles are often carried out by networks of individuals joined only by a common interest in opposing those in power.

It is understandable that Americans are offended by the tactics used by many of those seeking to change their governments. Often these tactics are employed by persons who do not share our cultural and social values or mores. Sometimes they are employed by those whose views of the nature, importance, or relevance of individual human life differ radically from ours. Nevertheless, it is not our place to impose our notions of civilized strife on people who are seeking to overthrow the regimes in control of their countries in contexts and circumstances that we have not experienced, and with which we can identify only with the greatest difficulty. It is the fact that the insurgents are seeking to change their governments that makes the political offense exception applicable, not their reasons for wishing to do so or the nature of the acts by which they hope to accomplish that goal.

Politically motivated violence, carried out by dispersed forces and directed at private sector institutions, structures, or civilians, is often undertaken—like the more organized, better disciplined violence of preceeding revolutions—as part of an effort to gain the right to self-government …. We believe the tactics that are used in such internal political struggles are simply irrelevant to the question whether the political offense exception is applicable. [Emphasis added; references omitted.]

It will be recalled that as early as in Meunier, supra, there had been an indication that random acts of indiscriminate violence against civilians could not qualify as political crimes regardless of motive. That view had found resonance in a large number of American decisions of which a leading example is Eain v. Wilkes:[18]

The reason that the bombing was not “incidental to” the conflict does not lie in the motivation for the act, since, for purposes of extradition, motivation is not itself determinative of the political character of any given act …. The definition of “political disturbance,” with its focus on organized forms of aggression such as war, rebellion and revolution, is aimed at acts that disrupt the political structure of a State, and not the social structure that established the government. The exception does not make a random bombing intended to result in the cold-blooded murder of civilians incidental to a purpose of toppling a government, absent a direct link between the perpetrator, a political organization’s political goals, and the specific act. Rather, the indiscriminate bombing of a civilian populace is not recognized as a protected political act even when the larger “political” objective of the person who sets off the bomb may be to eliminate the civilian population of a country. Otherwise, isolated acts of social violence undertaken for personal reasons would be protected simply because they occurred during a time of political upheaval, a result we think the political offense exception was not meant to produce.

This policy long has been articulated in extradition cases of this and other nations in the context of terrorist activities, particularly those of anarchists.

…

Anarchy presents the extreme situation of violent political activity directed at civilians and serves to highlight the considerations appropriate for this country’s judiciary in construing the requirements of our extradition laws and treaties. But we emphasize that in this case, even assuming some measure of PLO involvement, we are presented with a situation that solely implicates anarchist-like activity, i.e., the destruction of a political system by undermining the social foundation of the government. The record in this case does not indicate that petitioner’s alleged acts were anarchist-inspired. Yet the bombing, standing detached as it is from any substantial tie to political activity (and even if tied, as petitioner insists, to certain aspects of the PLO’s strategy to achieve its goals), is so closely analogous to anarchist doctrine considered in cases like In re Meunier, as to be almost indistinguishable. [Emphasis added; reference omitted.]

The critisism of Eain, supra, and similar cases which was expressed by the 9th Circuit Court in Quinn, supra, was not long unanswered. In McMullen, supra, which, as indicated, was decided only a little more than two months later, a different panel of the same Court both quoted and followed Eain, at page 598:

If acts of violence directed at ordinary citizens were deemed “political crimes” for the purposes of this subsection, then the Attorney General would be required to withhold deportation of the perpetrators. As the Seventh Circuit observed, if such were the law:

[N]othing would prevent an influx of terrorists seeking a safe haven in America. Those terrorists who flee to this country would avoid having to answer to anyone anywhere for their crimes. The law is not so utterly absurd. Terrorists who have committed barbarous acts elsewhere would be able to flee to the United States and live in our neighbourhoods and walk our streets forever free from any accountability for their acts. We do not need them in our society. We have enough of our own domestic criminal violence with which to contend without importing and harbouring with open arms the worst that other countries have to export. We recognize the validity and usefulness of the political offense exception, but it should be applied with care lest our country become a social jungle and an encouragement to terrorists everywhere. Eain, 641 F.2d at 520.

McMullen was, as indicated, a refugee case and the Court emphasised some of the differences between refugee law and extradition law which I have enumerated earlier in these reasons. However, any thought that the majority view in Quinn, supra, might survive in extradition matters, even if not for refugee cases, was short-lived. In the Atta, Matter of Extradition of,[19] the District Court specifically refused to follow Quinn, and its decision was approved on appeal (sub nom. Ahmad v. Wigen):[20]

We agree that an attack on a commercial bus carrying civilian passengers on a regular route is not a political offense. Political motivation does not convert every crime into a political offense. [Emphasis added.]

In one respect, however, Quinn has survived unscathed and that is in its development of a detailed and sophisticated articulation of the incidence test, at page 817:

The incidence test has two components, designed so that the exception comports with its original justifications and protects acts of the kind that inspired its inclusion in extradition treaties. First, there must be an uprising—a political disturbance related to the struggle of individuals to alter or abolish the existing government in their country. An uprising is both temporally and spatially limited. Second, the charged offense must have been committed in furtherance of the uprising; it must be related to the political struggle or be consequent to the uprising activity.

The second branch of the test thus stated, focusing as it does on the need for a nexus between the crime and the alleged political objective, brings to mind the concerns expressed by Viscount Radcliffe in Schtracks, supra, and by Lord Diplock in Cheng, supra. Those concerns are also usefully articulated in recent United States District Court decisions such as Suarez-Mason, Matter of Extradition of:[21]

American Courts appear to have taken a liberal view toward the “incidental to” requirement. See, e.g., Quinn, 783 F.2d at 797; Garcia-Mora, The Nature of Political Offenses: A Knotty Problem of Extradition Law, 48 Va. L. Rev. 1226, 1244 (1962). Nevertheless, as persuasively articulated in Extradition of Artukovic, 628 F. Supp. 1370 (C.D. Cal. 1986), the person seeking to invoke the exception must show a rational nexus between the uprising and the offense:

[R]espondent cannot avail himself of the defense merely because the alleged crimes occurred at the same time as a political disturbance. A rational nexus between the alleged crimes and the prevailing turmoil must be demonstrated … the focus of the inquiry is on the circumstances, and on the status of those harmed, and not on whether the acts merely were committed during the disorder. [Emphasis added.]

Cases from other countries

While we have been referred to a fairly considerable body of cases from other countries, I find that the Anglo-American jurisprudence is more developed and more consonant with our own legal traditions. It is, however, helpful to refer to two such decisions, both of them extradition cases. In Folkerts v. Public Prosecutor,[22] the Supreme Court of the Netherlands put the requirement of nexus rather neatly when it emphasized the objective nature of the standard:

In judging whether the political aspect of the offences concerned is of predominant importance, the Court has at all times applied the following criterion: could the offenders reasonably have expected that the offences—separately or combined—would yield any result directly related to the ultimate political goal described above? [Emphasis added.]

In Ellis v. O’Dea[23] (affirmed [1991] 1 I.R. 251 (S.C.)) the President of the High Court of Ireland echoed the prevailing modern American view when he said [at page 362]:

For the reasons set out by me when dealing with the nature and object of the acts alleged against the applicant in the course of this judgment, I am satisfied that, independent of the provisions of the Extradition Act of 1987, the offences set forth in the two warrants therein cannot be regarded as political offences or offences connected with a political offence as they contemplate and involve indiscriminate violence and can be correctly characterised as terrorism. [Emphasis added.]

Other writings

To complete this survey of the relevant authorities, I would also refer to the following.

Paragraph 152 of the UNHCR Handbook [Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees] reads:

152. In determining whether an offence is “non-political” or is, on the contrary, a “political” crime, regard should be given in the first place to its nature and purpose i.e. whether it has been committed out of genuine political motives and not merely for personal reasons or gain. There should also be a close and direct causal link between the crime committed and its alleged political purpose and object. The political element of the offence should also outweigh its common-law character. This would not be the case if the acts committed are grossly out of proportion to the alleged objective. The political nature of the offence is also more difficult to accept if it involves acts of an atrocious nature.

Goodwin-Gill in The Refugee in International Law,[24] says:

The nature and purpose of the offence require examination, including whether it was committed out of genuine political motives or merely for personal reasons or gain, whether it was directed towards a modification of the political organization or the very structure of the state, and whether there is a close and direct causal link between the crime committed and its alleged political purpose and object. The political element should in principle outweigh the common law character of the offence, which may not be the case if the acts committed are grossly disproportionate to the objective, or are of an atrocious or barbarous nature.

The following comments in La Forest, supra, at pages 94-95, on the political offence exception in extradition matters are useful:

These two decisions [referring to Armstrong v. The State of Wisconsin[25] and Commonwealth of Puerto Rico v. Hernandez][26] combined appear to suggest that, at least in most cases, for an offence to be considered as political by a Canadian court, the act must be for a political purpose which is in direct opposition to the government of the country; the object of the act must be directly proximate to that government; the person acting must prove that he is a member of some political group or organization and that it is the policy of such a movement to use such measures; and the government of the state must be seeking the return of the offender for some other reason than the enforcement of the criminal law in its ordinary aspect.

…

The underlying rationale seems to be that political asylum ought to be granted individuals in direct confrontation with the state, whether overt or covert, because of a desire not to be involved in the internal political struggles of other states and a recognition that such activities are the only means of effecting political change in many states. But terrorism strikes at the very nature of political order provided by states and the security of its citizens in every walk of life. So it is treated as akin to anarchy. Looked at in this light, bombings of postboxes and the like, such as occurred in the period of terrorism in Quebec, would probably not be regarded as political by Canadian or British courts. And incidents like those of the Cross kidnapping or the Laporte murder, though directly aimed at obtaining concessions from the state, would pose difficult problems, not only because there was no uprising, but because the victims were at best only tangentially related to the central state authorities. [Emphasis added.]

Finally, an unpublished document dated August 2, 1989, and prepared by the Legal Project of the UNHCR Branch Office in Canada [Determination of Refugee Status of Persons Connected with Organizations or Groups which Advocate and/or Practice Violence], contains the following commentary:

10. When seeking to establish whether or not a common law offence constitutes both a “serious” and a “non-political” crime, regard should be had to the motive and purpose of the offence (the subjective element), as well as to its gravity and the extent to which the offence is proportional to the alleged goal (the objective elements).

11. Motive should be examined in the first instance, in the light whether it can be clearly demonstrated that the offence was not committed for personal reasons or gain but out of a genuine political commitment and towards a clearly identifiable political goal. Such might be the case, for example, where the offence was directed towards modification of the political organization (or the very structure) of the State. Where there is, from the outset, no identifiable political motive, the exemption from exclusion for political offenders does not arise.

12. Assuming there is an identifiable political motive, this fact has, in the overall judgment, to be set off against the character of the act in question. Where the offence is of a particularly serious and disproportionate nature it can not be treated as “political” for the purpose of Article 1(F) regardless of alleged political motive. In determining the gravity and proportionality of the offence, the following factors should be taken into account:

—   The means used and the possibility of attaining the ultimate goal through alternative means (was, for example, murder or indiscriminate bombing the sole or even the most reasonable and explicable means of attaining the alleged, political end?).

—   The proportionality of the offence to any alleged political goal (clearly the more atrocious, the less proportional);

Analysis

Applying these authorities and, in particular, the most recent case law from the United States and the United Kingdom, to the facts of the present case, I am of the opinion that the conclusion reached by the Board was correct notwithstanding that the reasons given in support of such conclusion are not above reproach.

In particular, the Board’s scepticism as to whether the appellant was politically motivated seems to me to be misconceived. While there is no doubt that a purely personal motive such as monetary gain or the settling of accounts with a hated adversary might serve to vitiate a claim that a crime was political, I do not think that characterizing this appellant’s motives as being “revenge” or “vindictiveness” does him justice. There is no indication in the evidence that the rich merchants who were the target of the appellant’s attacks were personally known to him,[27] and indeed he indicated that he took orders from higher ranking members of his group who selected the targets for him. In a sense, of course, the appellant was seeking revenge in that he perceived those targets as being responsible for the difficult political, social and economic situation in which he found himself. Such perception, however, is a normal component of a desire for political revenge and the emotion, although not the action, is common enough in political relationships even in this country.

Also, while the Board does not mention it, I think it is clear enough from the evidence that the appellant meets the first branch of the incidence test as enunciated in the authorities. The materials in the record show that, in the years in question, Iran was a turbulent society in which a number of armed groups were in conflict with the Khomeini regime.[28] The Board found the appellant to be generally credible and his assertion that he was a member of such a group appears consistent with this material.

Where the appellant’s claim fails the incidence test, however, is in the second branch thereof. There is, in my view, simply no objective rational connection between injuring the commercial interests of certain wealthy supporters of the regime and any realistic goal of forcing the regime itself to fall or to change its ways or its policies. This, I think, is what the Board was attempting to convey when it talked of the appellant’s crimes failing “to go beyond personal vindictiveness towards something which would alter the political organisations that existed at the time.” Even if we accept (which the Board appears not to have done) that some of the businesses targeted were owned by highly placed members of local revolutionary committees, the nexus between such businesses and the general structure of the Government of Iran at the time appears far too tenuous to support or justify the kind of indiscriminate violence which the appellant admitted to.

It is also my view that the Board was correct to find that the means employed by the appellant were such as to exclude his crimes from any claim to be political in nature. The Board, in the passage of its reasons earlier quoted, puts emphasis on the fact that innocent civilians were killed and maimed in the attacks. That, in itself, is not quite enough in my view: the accidental killing of innocent bystanders is a risk inherent to any armed conflict. Indeed, such accidents have been known to take place even in this country and innocent bystanders have been killed or wounded in police shoot-outs with armed criminals. If an armed conflict is the occasion for political crimes the fact that some of the victims may be non-participants does not serve to make the crimes any less political. As my colleague Létourneau J.A. said in a different context:

… the Board misconstrued the very notion of crime against humanity and erred in law in too readily assuming that the essential elements of the crime can consist of the mere killing of innocent civilians by military personnel during an action against an armed enemy.[29]

The crucial point in the present case is not merely that some of the victims were innocent bystanders but, much more importantly, that the attacks themselves were not carried out against armed adversaries and were bound to injure the innocent. It is one thing, under the first branch of the incidence test, to accept that the appellant’s crimes were committed in the general context of violent opposition to the government; it is quite another thing to condone the use of deadly force against an unarmed civilian commercial target in circumstances where serious injury or death to innocent bystanders was simply inevitable. Violence of this sort is wholly disproportionate to any legitimate political objective.

One final point. Another panel of this Court has already rejected the suggestion made by a number of authors that Article 1F(a) requires a kind of proportionality test which would weigh the persecution likely to be suffered by the refugee claimant against the gravity of his crime.[30] Whether or not such a test may be appropriate for Article 1F(b) seems to me to be even more problematical. As I have already indicated, the claimant to whom the exclusion clause applies is ex hypothesi in danger of persecution; the crime which he has committed is by definition “serious” and will therefore carry with it a heavy penalty which at a minimum will entail a lengthy term of imprisonment and may well include death. This country is apparently prepared to extradite criminals to face the death penalty[31] and, at least for a crime of the nature of that which the appellant has admitted committing, I can see no reason why we should take any different attitude to a refugee claimant. It is not in the public interest that this country should become a safe haven for mass bombers.

Where it is appropriate to use a proportionality test under Article 1F(b) is in the weighing of the gravity of the crime as part of the process of determining if we should brand it as “political.” A very serious crime, such as murder, may be accepted as political if the regime against which it is committed is repressive and offers no scope for freedom of expression and the peaceful change of government or government policy. Under such a regime the claimant might be found to have had no other option to bring about political change. On the other hand, if the regime is a liberal democracy with constitutional guarantees of free speech and expression (assuming that such a regime could ever produce a genuine refugee) it is very difficult to think of any crime, let alone a serious one, which we would consider to be an acceptable method of political action. To put the matter in concrete terms, the plotters against Hitler might have been able to claim refugee status; the assassin of John F. Kennedy could never do so. These considerations, however, do not come into play in the present case for, although there is no doubt as to the extremely repressive nature of the regime in Iran, the appellant’s claim fails for other reasons: notably, the lack of nexus between the crimes and any realistic political objective, and the fact that the means employed are unacceptable as a form of political protest against any regime, no matter how repressive, totalitarian or dictatorial.

Conclusion

I would dismiss the appeal.

Desjardins J.A.: I concur.

Décary J.A.: I concur.

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