Like other terms in the Convention refugee definition, "persecution" is a word whose meaning is neither self-evident nor defined in the Immigration and Refugee Protection Act (IRPA). Therefore, it has fallen to the courts to identify the boundaries of the word. Case-law has not only labelled specific behaviours as instances of persecution, but also has gone some distance toward identifying general hallmarks that must be present, or criteria that must be met, in order for actions or omissions to constitute persecution.
18.104.22.168. Serious Harm
First, to be considered persecution, the mistreatment suffered or anticipated must be serious.Note 1 And in order to determine whether particular mistreatment would qualify as "serious", one must examine:
- what interest of the claimant might be harmed; and
- to what extent the subsistence, enjoyment, expression or exercise of that interest might be compromised.
This approach has been approved by the courts, which have equated the notion of a serious compromising of interest with a key denial of a core human right. Thus, in Ward,Note 2 the Supreme Court said as follows:
Underlying the Convention is the international community's commitment to the assurance of basic human rights without discrimination. This is indicated in the preamble to the treaty as follows:
CONSIDERING that the Charter of the United Nations and the Universal Declaration of Human Rights - have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination.
This theme … provides an inherent limit to the cases embraced by the Convention. Hathaway, - at p. 108, thus explains the impact of this general tone on the treaty on refugee law:
The dominant view, however, is that refugee law ought to concern itself with actions which deny human dignity in any key way and that the sustained or systemic denial of core human rights is the appropriate standard.
This theme sets the boundaries for many of the elements of the definition of Convention "refugee". "Persecution", for example, undefined in the Convention, has been ascribed the meaning of "sustained or systemic violation of basic human rights demonstrative of a failure of state protection"; see Hathaway, - at pp. 104-105. So too Goodwin-Gill, … at p. 38 observes that "comprehensive analysis requires the general notion [of persecution] to be related to developments within the broad field of human rights". This has recently been recognized by the Federal Court of Appeal in the Cheung case.Note 3
In Chan,Note 4 La Forest J. (in dissent) reiterated that "[t]he essential question is whether the persecution alleged by the claimant threatens his or her basic human rights in a fundamental way." Mr. Justice La Forest also said:
These basic human rights are not to be considered from the subjective perspective of one country ... By very definition, such rights transcend subjective and parochial perspectives and extend beyond national boundaries. This does not mean, however, that recourse to the municipal law [i.e. domestic or internal law] of the admitting nation may not be made. For such municipal law may well animate a consideration of whether the alleged feared conduct fundamentally violates basic human rights.Note 5
If the conduct does amount to persecution, there is no further requirement that the persecution be dramatic or appalling or horrendous,Note 6 unless the issue in the case involves the application of section 108(4) of the IRPA (section 2(3) of the former Immigration Act) (see Chapter 7, section 7.2).
The requirement that the harm be serious has led to a distinction between persecution on the one hand, and discrimination or harassment on the other, with persecution being characterized by the greater seriousness of the mistreatment which it involves.Note 7 Discrimination and harassment are sometimes conceived of as being distinct from persecution; alternatively, some references to persecution and discrimination imply that persecution is a subset of discrimination; but in either case, what distinguishes persecution - whether from discrimination or non-persecutory discrimination - is the degree of seriousness of the harm. The Court of Appeal has observed that "the dividing line between persecution and discrimination or harassment is difficult to establish."Note 8 As to the particular susceptibilities of a given claimant, the Court in NejadNote 9 said the following:
The CRDD did recognize and the Court agrees that there may be certain circumstances in which the particular characteristics or circumstances of a claimant ... might affect the assessment of whether certain acts or treatments are persecutory. [To] ... the extent that an agent of persecution intentionally plays upon or exploits the fact that a person suffers from a particular frailty or condition in order to cause harm, an act not normally or inherently persecutorial, may be transformed into an act of persecution.
That is beautiful in theory, but who knows what is the intention of the persecutor? Who knows what is the particular knowledge of the persecutor? One must look at the act and the effect.Note 10 And in this case, in particular, because of the old age of the applicants, it should have been more obvious to the CRDD panel that the effect upon them was that of persecution.
For additional material on the distinction between persecution and discrimination, see paragraph 54 of the UNHCR Handbook.
22.214.171.124. Repetition and Persistence
A second criterion of persecution is that the inflicting of harm occurs with repetition or persistence, or in a systematic way. This requirement has been approved in Ward (quoting Hathaway).Note 11 It also derives from the Court of Appeal decision in Rajudeen,Note 12 which is much-cited on this point:
The definition of Convention refugee in the Immigration Act does not include a definition of "persecution". Accordingly, ordinary dictionary definitions may be considered. The Living Webster Encyclopedic Dictionary defines "persecute" as:
"To harass or afflict with repeated acts of cruelty or annoyance; to afflict persistently, to afflict or punish because of particular opinions or adherence to a particular creed or mode of worship."
The Shorter Oxford English Dictionary contains, inter alia, the following definitions of "persecution":
"A particular course or period of systematic infliction of punishment directed against those holding a particular (religious belief); persistent injury or annoyance from any source."
...[the evidence] establishes beyond doubt a lengthy period of systematic infliction of threats and of personal injury. The applicant was not mistreated because of civil unrest in Sri Lanka but because he was a Tamil and a Muslim.Note 13
The Court of Appeal later provided something of an elaboration in ValentinNote 14:
…it seems to me … that an isolated sentence can only in very exceptional cases satisfy the element of repetition and relentlessness found at the heart of persecution (cf. Rajudeen…) …Note 15
Jurisprudence also recognizes that some sentences and forms of punishment of undue proportion by the state may be considered as persecution, such as in certain cases involving military evaders.Note 16
These authorities notwithstanding, it would seem that persistence or repetition should not be regarded as a necessary element in all cases. Some forms of harm are unlikely to be inflicted repeatedly (e.g., female genital mutilation), or are simply incapable of being repeated (e.g., the killing of the claimant's family as a form of retribution against the claimant); nevertheless, they are so severe that their characterization as persecution seems beyond dispute.Note 17
In the case of Ranjha,Note 18 the Court has further commented that there should not be an "exaggerated emphasis" on the need for repetition and persistence. Rather, the RPD should analyze the quality of incidents in terms of whether they constitute "a fundamental violation of human dignity".
For a claim to succeed, the definition of Convention refugee requires that the persecution be linked to a Convention ground. The Supreme Court of Canada noted in Ward that:
… the international community did not intend to offer a haven for all suffering individuals. The need for "persecution" in order to warrant international protection, for example, results in the exclusion of such pleas as those of economic migrants, i.e. individuals in search of better living conditions, and those of victims of natural disasters, even when the home state is unable to provide assistance. …Note 19
In Suvorova, the Court commented that in determining whether a nexus exits the claimant's narrative should be considered from the perspective of all Convention grounds. The Court noted that there is an obligation to consider all possible grounds for protection raised by the facts, even if they are not raised by a claimant.Note 20
Indirect persecution (see Chapter 9, section 9.4) does not constitute persecution within the meaning of the definition of Convention refugee as there is no personal nexus between the claimant's alleged fear and a Convention ground. Accordingly, the Federal Court of Appeal in Pour-Shariati held, overruling Bhatti,Note 21 a case recognizing the concept of indirect persecution, that:
We accordingly overrule Bhatti's recognition of the concept of indirect persecution as a principle of our refugee law. In the words of Nadon, J. in Casetellanos v. Canada (Solicitor General) (1994), 89 F.T.R. 1, 11, "since indirect persecution does not constitute persecution within the meaning of Convention refugee, a claim based on it should not be allowed." It seems to us that the concept of indirect persecution goes directly against the decision of this Court in Rizkallah v. Canada, A-606-90, decided 6 May 1992,  F.C.J. No. 412, where it was held that there had to be a personal nexus between the claimant and the alleged persecution on one of the Convention grounds. One of these grounds is, of course, a "membership in a particular social group," a ground which allows for family concerns in on [sic] appropriate case.Note 22
In GranadaNote 23, the Court set out the only circumstances in which the family can be considered a particular social group as follows:
 The family can only be considered to be a social group in cases where there is evidence that the persecution is taking place against the family members as a social group: [citations omitted]. However, membership in the social group formed by the family is not without limits, it requires some proof that the family in question is itself, as a group, the subject of reprisals and vengeance…Note 24.
126.96.36.199. Common Crime or Persecution?
Persecution has been distinguished from random and arbitrary violenceNote 25 and from suffering as a result of a criminal act or a personal vendetta.Note 26 In a few of the cases where the claimant has been victimized by what might be characterized as a "common" crime, there has been some discussion of whether the mistreatment in question might qualify as "persecution". The Trial Division has said that most acts of persecution can be characterized as criminal, but that in an individual case the Refugee Division (now Refugee Protection Division - RPD) may nevertheless distinguish between criminal acts and persecution.Note 27 In the case of Alifanova,Note 28 the Court has further commented that while most acts of persecution are criminal in nature, not all criminal acts can be considered acts of persecution. It continues to give the following example: "Extortion is a criminal act. Threats of bodily harm is a criminal act. Because these criminal acts are made by Kazakhs against Russians does not make the act one of persecution." Some of the cases in this area involve personal vendettas, or the misuse of official position, or the witnessing of criminal acts.
With respect to cases involving domestic abuse, the Court of Appeal in Mayers,Note 29 said that the Refugee Division might find domestic violence to be persecution, but in the circumstances of the case, the Court was not required to make that finding.Note 30 The Trial Division, in a number of cases has regarded domestic abuse as persecution.Note 31 The cases often intertwine the discussion of whether domestic violence constitutes persecution with the question of whether victims of domestic violence constitute a particular social group. For example, in Resulaj,Note 32 the Court made the following observation:
Nothing prevents a woman from being both a victim of domestic violence and a victim of crime. It is well established that a women [sic] subject to domestic violence constitute a particular social group entitled to convention refugee protection. [Diluna; Narvaez]
Another earlier example is Aros,Note 33 where the Court noted:
Accepting that the applicant suffered physical and psychological abuse at the hands of her common law husband …, the panel made no overriding error in concluding she was not a member of a social group that faced persecution within the definition…
In assessing claims based on criminal acts, it is suggested that members inquire whether the harm is serious,Note 34 whether there is a serious possibility of the harm's occurring, whether the harm is inflicted for a Convention reason,Note 35 and whether state protection is available.Note 36 The finding of state protection must be made on the basis of the evidence before the panel rather than on mere speculation.Note 37 See also Chapter 4, section 4.7.
188.8.131.52. Agent of Persecution
Serious human rights violations may in fact issue not only from higher authorities of the state, but also from subordinate state authorities, or from persons who are not attached to the government; and whichever is the case, the Convention may apply. In order to be categorized as persecution, the harm need not emanate from the state; and the state need not be involved or be complicit in the perpetration of the harm.Note 38
The fact that those who inflict mistreatment are schoolchildren and schoolyard bullies is not relevant to the question of whether the mistreatment amounts to persecution.Note 39 Similarly, serious mistreatment inflicted by teenagers upon a minor claimant may not reasonably be regarded as mere pranks.Note 40
For more regarding the role of the state with respect to mistreatment of a claimant, see Chapter 6.
3.1.2. Cumulative Acts of Discrimination and/or Harassment
A given episode of mistreatment may constitute discrimination or harassment, yet not be serious enough to be regarded as persecution.Note 41 Indeed, a finding of discrimination rather than persecution is within the jurisdiction of the RPD.Note 42 Even so, acts of harassment, none amounting to persecution individually, may cumulatively constitute persecution.Note 43 Where the claimant has experienced more than one incident of mistreatment, the Refugee Protection Division may err if it only looks at each incident separately.Note 44 However, "it is insufficient for the RPD to simply state that it has considered the cumulative nature of the discriminatory acts", without any further analysis.Note 45 Moreover, the Court has also commented on the need to consider whether the repeated incidents of harassment in the past may lead to a serious possibility of persecution in the future.Note 46
It is appropriate to consider both the actions of the government against the individual claimant and the overall atmosphere created by the state's intolerance.Note 47
See also paragraphs 53, 54, 55, 67 and 201 of the UNHCR Handbook.
The Federal Court in Liang, citing paragraphs 54 and 55 of the UNHCR Handbook affirmed that in the exercise of determining whether cumulative discrimination and harassment constitutes persecution it is necessary to evaluate the claimant's personal circumstances and vulnerabilities including age, health, and finances.Note 48
In assessing whether cumulative acts of discrimination amount to persecution it is necessary first to decide whether an individual act constitutes harassment or is discriminatory. The Federal Court in HundNote 49 concluded that it would be an error to consider acts that are erroneously characterized as discriminatory in assessing whether cumulative acts of discrimination amount to persecution. Such acts could include abandonment by one's own family, general threats made at community meetings, and relocating. Also, the "cumulative effect" should only consider incidents related to a Convention reason.
Where state protection is available for the types of events alleged as discriminatory, the cumulative assessment is not necessary.Note 50
In Munderere,Note 51 the Federal Court of Appeal stated that "there is nothing in paragraph 53 of the UNHCR Handbook which could justify an expansion of the cumulative effect of incidents doctrine to events that occurred in two different countries." The Court held that, when analyzing cumulative grounds, "[a]s a matter of principle, events which occur in a country other than that in respect of which a claimant seeks refugee status should not be considered."Note 52 However, the Court added the following caveat: 'except where the events which occur in a country other than that in respect of which a claimant seeks refugee status are relevant to the determination of whether the country where a claimant seeks refugee status can protect him or her from persecution."Note 53