Judgments

[1996] 2 F.C. 49

A-535-93

Veluppillai Pushpanathan (Pushpanathan Veluppillai) (Appellant)

v.

The Minister of Citizenship and Immigration (Respondent)

Indexed as: Pushpanathan v. Canada (Minister of Citizenship and Immigration) (C.A.)

Court of Appeal, Stone, Strayer and Linden JJ.A.—Toronto, November 15; Ottawa, December 19, 1995.

Citizenship and Immigration — Status in Canada — Convention refugees — Appeal from dismissal of application for judicial review of IRB decision appellant, convicted of conspiracy to traffic in narcotic after arrival in Canada, excluded from claiming Convention refugee status under UN Convention Relating to Status of Refugees, Art. 1F(c), as guilty of acts contrary to purposes, principles of UN — Art. 1F(c) applies to acts committed by refugee claimant after arrival in Canada — Can apply to person already convicted of such acts — Can apply to person in respect of acts not committed on behalf of state — Conspiring to traffic in narcotics contrary to purposes, principles of UN.

Construction of statutes — UN Convention Relating to Status of Refugees, Art. 1F incorporated verbatim into Immigration Act — Appropriate to look at other provisions of Convention — Travaux préparatoires not helpful as unclear what text under discussion — Hazardous to assume meaning attributed to text by one or two delegations reflecting collective intention — Given nature of multilateral conventions, assumption every provision having distinct purpose, meaning — Where unresolved ambiguity, construction most agreeable to justice, reason should prevail.

This was an appeal from the dismissal of an application for judicial review of an Immigration and Refugee Board decision that the appellant was excluded from entitlement to claim the status of Convention refugee by virtue of United Nations Convention Relating to the Status of Refugees, Article 1F(c). The appellant, a citizen of Sri Lanka, claimed Convention refugee status when he arrived in Canada in 1985. In 1987 he was among eight individuals arrested on charges of conspiracy to traffic in a narcotic. The group held heroin with a street value of ten million dollars. He was convicted and sentenced to eight-years’ imprisonment. Article 1F provides that the Convention does not apply to any person who there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity; (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. The Trial Judge found that the Board had reasonably concluded that the appellant fell within Article 1F(c) and certified the following as a serious question of general importance for consideration: Is it an error of law for the Refugee Division to interpret Article 1F(c) to exclude from refugee status an individual guilty of a serious Narcotic Control Act offence committed in Canada?

The issues were whether Article 1F(c) applies to: (1) acts committed by a refugee claimant in the country of refuge after his arrival there; (2) a person already convicted of such acts; (3) a person in respect of acts not committed on behalf of a state or government; and (4) whether conspiring to traffic in narcotics is an act contrary to the purposes and principles of the United Nations.

Held, the appeal should be dismissed; the answer to the stated question was “No”.

Since Article 1F of the Convention was adopted verbatim in the Immigration Act, it was appropriate in interpreting that section to look at other provisions of the Convention, even though not incorporated into the Act. Other means of interpretation of a treaty, i.e. expressions of intention, might also be used, but here the travaux préparatoires were not clear as to exactly what text was under discussion. Also it is hazardous to assume that the meaning attributed to a text by one or two delegations in a multilateral international negotiation necessarily reflects the collective intention. It is safer to place the most emphasis on the final text. The drafting of multilateral conventions by the UN often lacks the discipline and cohesion imposed on the drafters of domestic Canadian laws. It is not surprising to find overlapping provisions without internal guidance as to which is paramount. It must be assumed that every provision was intended to have some distinct purpose and meaning unless it is impossible to ascribe one. Where there is unresolved ambiguity, the construction most agreeable to reason and justice must prevail.

(1) Article 1F(c) can apply to acts committed by a refugee claimant after his arrival in Canada. Articles 1F(b) and (c) apply to persons before they have attained refugee status. While (b) is confined to acts committed outside the country of refuge, (c) is not expressly so confined. There is no justification for reading such limiting words into (c) when the drafters have not included them. The drafters attached such importance to acts contrary to the purposes and principles of the UN that they were thought to justify an exclusion from refugee status, no matter where or when they were committed. If they had intended to limit the temporal and geographic scope of (c) to that of (b), they would have used the same wording as in (b).

(2) Article 1F(c) can apply to a person already convicted of the acts referred to. Article 1F(c) does not contain the word “committed” and there is a strong inference to be drawn that because that word is used in paragraph (a) and (b) and is absent from (c) that it was not intended to be part of the interpretation of (c). Further, paragraph (c) contains the word “guilty” which is more apt to describe those convicted rather than those only believed to have “committed” a crime but who have not yet been convicted of it.

(3) Article 1F(c) can apply to persons otherwise within its terms even with respect to acts not committed in the name of or on behalf of the state. On its face section F applies to individuals and is in no way qualified by expressions such as “in authority” or “acting on behalf of a State”. The concept that international law creates no rights or duties for individuals has been abandoned, at least since the time of the Nuremberg Tribunal. The involvement of the UN in this decade in internal disputes within member states also belies the suggestion that its concerns are confined to acts of governments. The Convention imposes obligations on states, but it is designed to confer benefits on individuals — benefits which may in some cases be denied due to the individual’s own past conduct. It may be only in rare cases that an act of an individual can be characterized as contrary to the purposes and principles of the United Nations, given the primary focus of that organization on the conduct of states, but this is a question for consideration in respect of the particular act in question.

(4) Conspiring to traffic in narcotics was an act contrary to the purposes and principles of the United Nations. The 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances is within the purposes of the UN as stated in paragraph 3 of Article 1 of the Charter of the United Nations, namely “to achieve international cooperation in solving international problems of an economic, social, cultural or humanitarian character”. Obviously, the UN considers that the drug trade has created an international problem of an economic, social and probably humanitarian character and to that end it requires its members to take the necessary domestic action to control these activities within their borders. This does not mean that when such crimes are prosecuted by a state they have only domestic implications. When the appellant violated a Canadian law which fulfills Canada’s obligation under the 1988 Convention, he acted contrary to the principles and purposes of the United Nations. On the facts surrounding his arrest, the Board had every justification for believing that the appellant was a major participant in a very substantial trafficking operation.

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].

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

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

Narcotic Control Act, R.S.C., 1985, c. N-1.

Protocol Amending the Single Convention on Narcotic Drugs, 1961, March 25, 1972, [1976] Can. T.S. No. 48.

Single Convention on Narcotic Drugs, 1961, March 30, 1961, [1964] Can. T.S. No. 30, Art. 36.

Statute of the Office of the United Nations High Commissioner for Refugees, GA Res. 428 (V), UN GAOR, December 14, 1950, Arts. 2, Annex, Art. 7.

United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, December 20, 1988, [1990] Can. T.S. No. 42, Art. 3.

United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Arts. 1F(a),(b),(c), 33.

Universal Declaration of Human Rights, GA Res. 217 A (III), UN GAOR, December 10, 1948, Art. 14.

CASES JUDICIALLY CONSIDERED

APPLIED:

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:

United States of America v. Cotroni; United States of America v. El Zein, [1989] 1 S.C.R. 1469; (1989), 23 Q.A.C. 182; 96 N.R. 321; 48 C.C.C. (3d) 193.

REFERRED TO:

Thamotharampillai v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 99 (1994), 77 F.T.R. 114 (T.D.); Sati v. Canada (Minister of Citizenship & Immigration) (1994), 26 Imm. L.R. (2d) 160 (F.C.T.D.); Kabirian v. Canada (Solicitor General) (1995), 93 F.T.R. 222 (F.C.T.D.); Atef v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 86 (1995), 89 F.T.R. 13; 27 Imm. L.R. (2d) 82 (F.C.T.D.); Yasin v. Canada (Secretary of State), [1995] A.C.F. No. 976 (T.D.) (QL); National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; (1990), 74 D.L.R. (4th) 449; 45 Admin. L.R. 161; 114 N.R. 81; R. v. Vasil, [1981] 1 S.C.R. 469; (1981), 121 D.L.R. (3d) 41; 58 C.C.C. (2d) 97; 20 C.R. (3d) 193; 35 N.R. 451; Thomson v. Thomson, [1994] 3 S.C.R. 551; (1994), 119 D.L.R. (4th) 253; [1994] 10 W.W.R. 513; 97 Man. R. (2d) 81; 173 N.R. 83; 6 R.F.L. (4th) 290; 79 W.A.C. 81; Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; (1993), 103 D.L.R. (4th) 1; 153 N.R. 321; Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 620; (1995), 187 N.R. 321; Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (1993), 163 N.R. 197 (C.A.).

AUTHORS CITED

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

Sullivan, Ruth. Driedger on the Construction of Statutes, 3rd ed. Toronto: Butterworths, 1994.

United Nations. Office of the United Nations High Commissioner for Refugees. Handbook on Pro-cedures 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 dismissal of an application for judicial review of an Immigration and Refugee Board decision that appellant, who had been convicted of conspiracy to traffic in a narcotic after his arrival in Canada, was excluded from entitlement to claim Convention refugee status by virtue of United Nations Convention Relating to the Status of Refugees, Article 1F(c) as a person with respect to whom there were serious reasons for considering was guilty of acts contrary to the purposes and principles of the United Nations (Pushpanathan v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 870 (T.D.) (QL)). Appeal dismissed.

COUNSEL:

Lorne Waldman for appellant.

Bonnie J. Boucher and Joseph Rikhof for respondent.

SOLICITORS:

Lorne Waldman, Toronto, for appellant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for judgment rendered in English by

Strayer J.A.:

Relief Requested

This is an appeal from a decision of McKeown J. [[1993] F.C.J. No. 870 (T.D.) (QL)] in which he dismissed an application for judicial review of a decision of the Immigration and Refugee Board (Refugee Division) dated January 25, 1993. While confirming the decision of the Board McKeown J. made possible an appeal of his decision by stating the following as a serious question of general importance for consideration by this Court.

Is it an error of law for the Refugee Division to interpret section F(c) of Article I of the United Nations Convention relating to the Status of Refugees to exclude from refugee status an individual guilty of a serious Narcotic Control Act offence committed in Canada?

Facts

The appellant, a citizen of Sri Lanka, left that country in May, 1983 and spent nearly two years in India. He then proceeded to Canada by way of France and Italy, arriving here on March 21, 1985 whereupon he made a claim for Convention refugee status. In December, 1987 the appellant was among eight individuals arrested in Toronto on charges of conspiracy to traffic in a narcotic under the Narcotic Control Act [R.S.C., 1985, c. N-1]. According to the Board, whose findings of fact are not in dispute here, at the time of the appellant’s arrest his group held heroin with a street value of some ten million dollars. Five of the eight were subsequently convicted of conspiracy to traffic in a narcotic, of whom one was the appellant. He received an eight-year sentence and is now on parole.

The appellant’s refugee claim was considered by the Board in the latter part of 1992. In its decision of January 25, 1993 the Board did not deal with the question of whether the appellant had a well-founded fear of persecution should he be returned to Sri Lanka. Instead, the Board determined that he was excluded from entitlement to claim the status of Convention refugee because he is excluded from the protection of the United Nations Convention Relating to the Status of Refugees [July 28, 1951, [1969] Can. T.S. No. 6] by virtue of section F(c) of Article 1 thereof. Article 1 generally defines the term “refugee”. Section F of that Article 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:

(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.

The Immigration Act[1] in effect adopts this language as part of the Act. Subsection 2(1) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1] of the Act states that the term “Convention refugee”

2. (1) …

… does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act.

The schedule referred to simply contains sections E and F of Article 1 of the Convention, of which section F is quoted above.

The Board held that because of his conviction of conspiracy to traffic in a narcotic, the appellant fell within Article 1F(c) as a person who had been found guilty of acts contrary to the purposes and principles of the United Nations. It rejected arguments that Article 1F(c) could not apply to crimes committed within Canada or could not apply to any person other than in respect of acts done as a government official. The Board also found the claimant to be within Article 1F(a). It was subsequently agreed by the parties when before the Trial Division that Article 1F(a) had not been argued before the Board and the Board should not have invoked it. That paragraph is not in issue before us.

The appellant sought judicial review before the Trial Division. McKeown J. found that the Board had reasonably concluded that the appellant fell within Article 1F(c). He found that there was evidence before the Board upon which it could reasonably have concluded that the suppression of traffic in illicit drugs is part of the purposes and principles of the United Nations. Nor did he consider that Article 1F(c) should be limited in its application to persons in a governmental or analogous position. I understand him to imply that the gravity of the offence in question had a bearing on whether there could be said to be “serious reasons for considering that” the appellant was guilty of acts contrary to the purposes and principles of the United Nations.

In his appeal to this Court the appellant alleges various errors in the conclusions of the Trial Division, essentially alleged errors of law in the interpretation of the Convention and the Immigration Act in respect of the circumstances of his case.

Issues

The various points raised in written and oral argument by the parties may be summarized as involving the following issues.

(1) Does Article 1F(c) of the Convention apply to acts committed by a refugee claimant in the country of refuge after his arrival there?

(2) Can Article 1F(c) apply to a person already convicted of such acts?

(3) Can Article 1F(c) apply to a person in respect of acts not committed on behalf of a state or government?

(4) Is the act of conspiring to traffic in narcotics an act contrary to the purposes and principles of the United Nations?

It should also be noted what is not in issue. As indicated above, there has never been a finding that this appellant has reasonable grounds to fear persecution within the meaning of the Convention if he is returned to Sri Lanka. The present proceedings do not address the issue of forcible return which would have to be considered, if ever, in other proceedings. If there are 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]] arguments to be made in such an eventuality, as counsel suggests, these are not for consideration now. Nor does this proceeding involve a further punishment for “guilt” in the commission of an act contrary to the purposes and principles of the UN, above and beyond the punishment already visited upon the appellant pursuant to his Narcotic Control Act conviction. If this were a proceeding involving, in effect, conviction and punishment, then other standards might arguably be brought to bear concerning the precision or lack thereof with which the “crime” of acts contrary to the purposes and principles of the United Nations is defined. However, the effect of a finding that a refugee claimant falls within Article 1F(c) is not conviction and punishment but his exclusion from special treaty entitlement to protection from a country to which he has no past attachment.

It should also be noted that apart from the application of Article 1F(c) to a drug offence in this case, the Trial Division has on several occasions come to a similar conclusion.[2] It appears that this is the first occasion for this Court to address the precise issue.

Conclusion

Principles of Interpretation

Before addressing the specific issues raised it may be useful to comment on the proper approach to interpreting a statute obviously intended to implement an international treaty. Counsel for the appellant devoted an inordinate amount of space in his factum to instructing the Court on this subject. But it was never in dispute, I believe, that while Canadian courts must respect domestic law where it is clearly inconsistent with a treaty to which this country is a party, where there is no clear conflict a court should try to give domestic law a meaning which is consistent with Canada’s international obligations. This may lead the court into using interpretative aids as to the meaning of the treaty being implemented even where such aids might not be available for the simple interpretation of a domestic statute. Where a statute incorporates a treaty, it is treaty interpretation rules which should apply.[3] (Having said this it may be observed that the difference in techniques of interpretation as between treaties and statutes has, in recent years, become somewhat attenuated in Canada with a growing resort to travaux préparatoires even in the interpretation of statutes.)[4]

While the Court should therefore use the arguably more relaxed rules of treaty interpretation for ascertaining the meaning of the Immigration Act where it seeks to implement a treaty, in the present circumstances one would in any event be led to the interpretation of the meaning of section F of Article 1 of the Convention since it has been adopted verbatim in the statute. It is also appropriate if necessary, in interpreting that section, to look at other provisions of the Convention which, though not incorporated in the Immigration Act, may assist in the interpretation of section F of Article 1.[5]

It is also accepted that in interpreting a treaty-implementing statute one may have regard to the treaty and the means for its interpretation even if the implementing statute is not on its face ambiguous.[6] But none of the rules of interpretation of statutes or treaties authorize a court to ignore completely the express terms of the language finally adopted in the treaty or the statute, in favour of vague expressions of intention derived from extrinsic sources which fail to demonstrate ambiguity in the text of the treaty or adopting statute. This has particular relevance to the lengthy invocation, by counsel on both sides of this case, of the travaux préparatoires of the Convention. Counsel for the appellant himself[7] recognized that travaux préparatoires are normally far from determinative and he suggested this should be even more so the situation where the interpretation of a human rights treaty is involved. In the present case I have read the travaux préparatoires referred to and I find them completely unhelpful. It is difficult to understand fully the committee discussions of the earlier drafts of section F of Article 1 because in the excerpts provided it is not clear what was the exact text under discussion. Further, much of the discussion appears to relate to the contents of what became Article 1F(b) without specific reference to Article 1F(c). Also it is hazardous to assume that the meaning attributed to a text by one or two delegations in a multilateral international negotiation necessarily reflects the collective intention, if indeed there was a common intention. I believe it would be wrong to conclude that paragraph (c) was thought to be of little consequence: it embraces some of the specific language of section 2 of Article 14 of the Universal Declaration of Human Rights [GA Res. 217 A (III), UN GAOR, December 10, 1948], which delegates were attempting to implement.[8]

In such circumstances it is far safer to place the most emphasis on the final text as approved. That is conspicuously true in this case.

It must also be kept in mind, when one seeks to infer the meaning of one provision of a treaty by reference to other provisions in that same treaty, that the drafting of multilateral conventions by the United Nations often lacks the discipline and cohesion imposed on the drafters of domestic Canadian laws. Thus, for example, it is not surprising to find in such conventions overlapping provisions without internal guidance as to which, if either, is to have paramountcy. It must be assumed, however, that every provision was intended to have some distinct purpose and meaning unless it is impossible to ascribe one.

Finally, I would observe that counsel for the appellant, relying in particular on various professional commentators, argued for a narrow construction of the exclusions from refugee status of section F of Article 1 because this Convention is a “human rights” instrument. I respectfully adopt the words of Robertson J.A. in Moreno v. Canada (Minister of Employment and Immigration) in reference to similar arguments.

As persuasive as the commentaries may be, I am bound to approach the application of the exclusion clause, first, by reference to the existing jurisprudence of this Court and, second, by reference to the clear intent of the signatories to the Convention. Where, however, there is an unresolved ambiguity or issue, the construction most agreeable to justice and reason must prevail.[9]

To this I would add the following observation. While I have no doubt that a refugee claimant should have the benefit of any law which clearly favours him, I find it difficult to understand in the circumstances of this case why any ambiguity must be resolved in his favour. Drug trafficking, preying directly as it does on some of the weakest members of our society and indirectly on those who as victims of crime are forced to sustain the cost of others’ addiction, involves a deliberate disregard for the welfare and security of very many Canadians—in effect, for their human rights. It is not clear to me why the Convention should prima facie be presumed to extend the extraordinary right of refuge to an alien convicted of committing this offence within our borders.

The Issues

(1) Does Article 1F(c) cover acts committed in the country of refuge by a putative refugee after arrival?

The appellant takes the position that Article 1F(c) applies only to acts committed outside the country of refuge whereas the appellant was convicted of acts committed in Canada. The appellant suggests only two significant arguments in support of this proposition. First it is argued that as Article 1F(b) is confined to crimes committed outside the country of refuge it could not have been intended that Article 1F(c) could be used to deny refugee status to persons who committed certain types of crime within Canada. The second argument is based on the text of Article 33 of the same Convention which provides as follows:

1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

It is argued that paragraph 2 of Article 33 covers persons convicted of crimes committed either outside or inside the country of refuge. It protects them from return to a country where they would be subject to persecution unless it can be shown that they are a danger to the country of refuge. Therefore, it is said, it should not be possible to exclude under Article 1F(c) putative refugees for crimes committed within the country of refuge even where they do not pose a danger to that country.

It is perhaps lamentable that the drafters did not provide some guidance as to which of these provisions—Articles 1F(b) and 1F(c), and paragraph 2 of Article 33—if any, is subject to the others, but this was not done. From a plain reading of all three provisions, however, and seeking to give each of them some distinct meaning and purpose, it is clear that they deal with different categories of persons although it may be true that two or more could apply to the same person at different times or for different reasons. Thus, it is clear that Articles 1F(b) and 1F(c) apply to persons before they have attained refugee status. Article 33 explicitly applies to persons already found to be refugees. At that stage the conviction of such a person, no matter where the serious crime was committed, is thought not to be a sufficient justification for sending him to a country where he would face persecution unless he is a demonstrated danger to the community of the country of refuge. Article 1F(b) is focussed on “serious non-political” crimes committed outside the country of refuge prior to admission as a refugee. The focus of Article 1F(c) is different. It is not confined to those who have “committed a serious non-political crime” but refers to those “guilty of acts contrary to the purposes and principles of the United Nations”. Thus while certain acts might come within both (b) and (c), the focus of the two paragraphs is obviously different. While (b) is confined to acts committed outside the country of refuge, (c) is not expressly so confined. I can see no justification for reading such limiting words into (c) when the drafters have not included them. I must assume that the drafters attached such importance to acts contrary to the purposes and principles of the United Nations that these were thought to justify an exclusion from refugee status no matter where or when they were committed. One must surely assume that if the drafters intended to limit the temporal and geographic scope of (c) to that of (b) they would have used the same wording as in (b).

I must therefore conclude that Article 1F(c) can apply to acts committed by a refugee claimant after his arrival in Canada if they otherwise fall within that paragraph.

(2) Does Article 1F(c) apply to persons already convicted of the acts referred to?

To the extent that I find it possible to understand the appellant’s argument on this point, it appears to be that section F of Article 1 was intended to deal with crimes committed outside the country of refuge but not yet prosecuted, and to make it clear that the country of refuge could have both the right and the duty to extradite such persons for trial elsewhere. As the appellant’s memorandum of fact and law states

Art. 1F deals with the commission of crimes that other states have a right to expect can be punished in the place in which those crimes have been committed but not yet prosecuted.[10]

As best I can understand, this argument is based on two propositions. The first is that because the word “committed” appears in both paragraphs (a) and (b) of section F of Article 1 it must be implied in paragraph (c) as well. The second is that, as paragraph 2 of Article 33, quoted above, permits the exclusion of a refugee already convicted of a serious crime, (without reference to where the crime or conviction occurred), this is exhaustive of the Convention’s provisions with respect to convicted persons and therefore Article 1F(c) should not be taken to apply to those already convicted.

I will not dwell at length on the paradox that this would create, namely that under section F of Article 1 persons who have simply committed serious crimes could be excluded from refugee status but those who have also been convicted could not. I will content myself with the observation that the appellant’s interpretation is completely at odds with the plain wording of Article 1F(c). That paragraph does not contain the word “committed” and there is surely a strong inference to be drawn that because that word is used in paragraphs (a) and (b) and is absent from (c) it was not intended to be part of the interpretation of (c). Further, paragraph (c) contains the word “guilty” which, while lamentably imprecise, is more apt to describe those convicted rather than those only believed to have “committed” a crime but who have not yet been convicted of it.

I therefore conclude that Article 1F(c) can apply to a person already convicted of the act in question.

(3) Can Article 1F(c) apply to a person who does not act on behalf of a state or government?

It is argued generally by the appellant that the concerns of the United Nations relate to the activities of states and their relations with each other, and therefore an act contrary to the purposes and principles of the United Nations must involve a person acting through or on behalf of a state. Apart from relying on some rather tendentious writings of commentators, the appellant cites the following passage from the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees of the Office of the U.N. High Commissioner for Refugees.[11] It states in part as follows:

163. The purposes and principles of the United Nations are set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations. They enumerate fundamental principles that should govern the conduct of their members in relation to each other and in relation to the international community as a whole. From this it could be inferred that an individual, in order to have committed an act contrary to these principles, must have been in a position of power in a member State and instrumental to his State’s infringing these principles. However, there are hardly any precedents on record for the application of this clause, which, due to its very general character, should be applied with caution. [Emphasis added.]

While I accept that this Handbook is worthy of careful consideration[12] as an aid to interpretation of the Convention, paragraph 163 as quoted is far from emphatic on this question. It uses such expressions as “it could be inferred” that an individual must have been in a position of power in a member State for Article 1F(c) to apply to him and it warns that this paragraph “should be applied with caution”. None of this is very persuasive. Further, the Handbook itself in the preceding paragraph 162 notes that Article 1F(c) overlaps to some extent with Article 1F(a) and that in certain circumstances both paragraphs could cover the same act. It is now established that Article 1F(a) is not limited in its application to persons in a position of power in a member State.[13]

Returning, as one should, to the precise text of section F it is patently directed to individuals. It is part of Article 1 of the Convention which, like subsection 2(1) of the Immigration Act incorporating section F of the Convention, is dedicated to defining which individuals may have the right in international law to be recognized as refugees. Just as the general definition potentially confers refugee status on a class of individuals, the exceptions such as found in section F of Article 1 of the Convention implemented by subsection 2(1) of the Immigration Act deny that status to certain individuals who might otherwise be within the global definition. Section F says that the provisions of the Convention “shall not apply to any person” (underlining added) who there are serious reasons to believe has been “guilty of acts” contrary to the purposes and principles of the United Nations. On its face this provision clearly applies to individuals and is in no way qualified by expressions such as “in authority” or “acting on behalf of a State”.

While in the past there might have been more force to the argument that international law creates no rights or duties for individuals, that concept has surely been abandoned at least since the time of the Nuremberg Tribunal. The involvement of the UN in this decade in internal disputes within member states also belies the suggestion that its concerns are confined to acts of governments. The Convention relating to the status of refugees of 1951 imposes obligations on states, but it is designed to confer benefits on individuals—benefits which may in some cases be denied due to the individual’s own past conduct. It may be only in rare cases that an act of an individual can be characterized as contrary to the purposes and principles of the United Nations, given the primary focus of that organization on the conduct of states, but this is a question for consideration in respect of the particular act in question.

I am therefore satisfied that Article 1F(c) can apply to persons otherwise within its terms even with respect to acts not committed in the name of or on behalf of a state.

(4) Is conspiring to traffic in narcotics an act “contrary to the purposes and principles of the United Nations”?

The argument of the appellant is essentially that there is no UN instrument in force which specifically prohibits the activity of which the appellant was found guilty. Therefore he cannot be guilty of an act contrary to the purposes and principles of the United Nations. It is said that the work of the International Law Commission, while definitely moving in the direction of the adoption of a draft code of crimes against the peace and security of mankind in which it is proposed to create the offence of illicit traffic in narcotic drugs as an international crime, has not completed its work nor have its recommendations been adopted by the UN Further it is said that the existing UN conventions and initiatives of the UN, while strongly promoting and facilitating the control by states of illicit trafficking in narcotics, do not establish norms binding on individuals with respect to acts committed within a member state.

One should first consider what may be meant by the expression “purposes and principles of the United Nations” in Article 1F(c). Paragraph 162 of the Handbook suggests that while this phrase includes the matters referred to in Article 1F(a) it is a residual clause going beyond those matters. That is, it was not confined to excluding persons such as war criminals or those guilty of crimes against humanity in the ordinary sense. As suggested in paragraph 163 of the Handbook as quoted above, one possible explanation of the expression can be found in Articles 1 and 2 of the Charter of the United Nations [1945] Can. T.S. No. 7] which purport to state respectively the UN’s purposes and the principles in accordance with which the UN and its members are to act. While I do not think the text of these articles should be seen as exhaustive of the purposes and principles of the United Nations—and clearly Article 1F(c) does not make any cross-reference to these particular articles—they provide a very important statement of some, if not most, of those purposes and principles. It would be unfortunate, however, if the purposes and principles of the United Nations could not be seen to evolve without an amendment of the Charter.

Perhaps the most relevant statement in Articles 1 and 2 of the Charter can be found in Article 1, paragraph 3 which states among the UN’s purposes the purpose

Article 1 …

3. To achieve international cooperation in solving international problems of an economic, social, cultural or humanitarian character ….

There is ample evidence in the material filed of the importance which the UN has attached to the control of what it regards as a very serious problem of drug trafficking. Its predecessor, the League of Nations, had given attention to this problem. The Economic and Social Council of the UN established in 1946 the Commission on Narcotic Drugs which has met regularly since to develop policy in this field with respect to prevention and control.[14] In 1961 the UN adopted the Single Convention on Narcotic Drugs, 1961 [March 30, 1961, [1964] Can. T.S. No. 30], later amended in 1972 [Protocol Amending the Single Convention on Narcotic Drugs, 1961, March 25, 1972 [1976] Can. T.S. No. 48], of which Canada was a signatory. This Convention was largely administrative and regulatory in nature although Article 36 did call on signatories to adopt penal measures to prohibit, inter alia, trafficking in illicit drugs including heroin.[15] Subsequently the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 was adopted.[16] In 1990 Canada ratified this Convention and it came into force that year. It is more specifically directed to requiring signatories to undertake legislative measures to control the drug trade. Perhaps the most relevant provision for our purposes is Article 3, paragraph 1 of which provides as follows:

Article 3

offences and sanctions

1. Each Party shall adopt such measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally:

(a) (i) The 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 the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention;

It will be seen, of course, that this provision does not purport to create an international crime. Instead, it calls upon Canada and other signatory states to adopt domestic measures such as the Narcotic Control Act under which this appellant was convicted.

I am satisfied that the 1988 Convention is within the purposes of the UN as stated in paragraph 3 of Article 1 of the Charter, namely “[t]o achieve international cooperation in solving international problems of an economic, social, cultural or humanitarian character.” Obviously the UN considers the drug trade to create an international problem of an economic, social and probably humanitarian character and to that end it requires its members to take the necessary domestic action to control these activities within their borders. This does not mean that when such crimes are prosecuted by a state they have only domestic implications. As La Forest J. of the Supreme Court of Canada has observed

Drug traffickers organize their affairs on the basis of the international market for narcotics. Modern communication means the territoriality of wrongdoing is no longer the determining factor for criminal law jurisdiction over international crime.[17]

When the appellant violated a Canadian law which fulfills Canada’s obligation under the 1988 Convention, therefore, he acted contrary to the principles and purposes of the United Nations.

Some argument was made by the appellant that if Article 1F(c) applies to drug traffickers, it should only apply to the “king-pins” or drug lords with respect to large quantities of drug. I find no authority for that proposition. While there might be minor offenders who would not fall within Article 1F(c) I do not think this appellant can be so regarded. As found by the Board, he was one of eight individuals arrested on trafficking charges. This group at the time of its arrest held heroin with a street value of some ten million dollars. Five were charged and convicted; the most severe sentence imposed was ten years and the least four years. The appellant received an eight-year sentence. I believe the Board had every justification for believing that the appellant was a major participant in a very substantial trafficking operation.

I therefore conclude that the act of which this appellant has been found guilty was contrary to the purposes and principles of the United Nations and he was therefore subject to exclusion from the Convention by virtue of Article 1F(c). I believe it unwise and unnecessary to embark on a more general definition of the scope of that paragraph although we have been invited to do so.

Disposition

In my view the answer to the question as stated by the Trial Judge should therefore be “No” and accordingly the appeal should be dismissed.

Stone J.A.: I agree.

Linden J.A.: I agree.

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