Chan v. Canada (Minister of Employment and Immigration)

Chan v. Canada (Minister of Employment and Immigration)
Collection
Supreme Court Judgments
Date
1995-10-19
Report
[1995] 3 SCR 593
Case number
23813
Judges
La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; Iacobucci, Frank; Major, John C.
On appeal from
Federal Court of Appeal
Subjects
Immigration
Notes
SCC Case Information: 23813
Decision Content
Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593
Kwong Hung Chan Appellant
v.
The Minister of Employment and Immigration Respondent
and
Immigration and Refugee Board and
Canadian Council for Refugees Interveners
Indexed as: Chan v. Canada (Minister of Employment and Immigration)
File No.: 23813.
1995: January 31; 1995: October 19.
Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.
on appeal from the federal court of appeal
Immigration ‑‑ Convention refugee ‑‑ Well‑founded fear of persecution because of membership in particular social group or political opinion ‑‑ Likelihood of forced sterilization following breach of China's one‑child policy ‑‑ Confession as to involvement in pro‑democracy movement ‑‑ Whether or not appellant had well‑founded fear of persecution for reasons of membership in a particular social group (his family) or political opinion ‑‑ Whether or not sterilization a form of "persecution" within the meaning of s. 2(1)(a) of the Immigration Act ‑‑ Whether or not persons facing forced sterilization members of a "particular social group" ‑‑ Whether or not persons refusing forced sterilization expressing a "political opinion" ‑‑ Immigration Act, R.S.C., 1985, c. I‑2, ss. 2(1) "Convention refugee", (a)(i), (ii), (b), 3(g), 19(1)(c).
Appellant sought Convention refugee status because of his fear of being forcibly sterilized for a violation of China's one-child birth control laws. To be classified a Convention refugee, the appellant had to establish that he had a well‑founded fear of persecution for reasons of membership in a particular social group (his family) or political opinion. He had been visited at his restaurant on a number of occasions by the Public Security Bureau (PSB) because of alleged involvement in the pro-democracy movement and had signed a confession to this effect in July 1989. He had been visited at home on five occasions by the PSB following the discovery of the second child in April 1990 and his wife lost her job because of the breach. To end these PSB visits appellant submitted a written undertaking to undergo sterilization within three months. He then fled China. Appellant alleged a fear of persecution by being forced to undergo sterilization. He testified that since leaving, his family had suffered harassment from the PSB and that, if returned to China, he might face arrest, imprisonment, long‑term unemployment or even murder. The Immigration and Refugee Board found that the appellant was not a Convention refugee. It held that forced sterilization did not constitute a form of persecution, so made no finding as to whether the appellant had a well‑founded fear of forced sterilization. The Federal Court of Appeal upheld the Board's decision. The issues to be considered here included: (1) whether forced sterilization is a form of "persecution" within the meaning of s. 2(1)(a) of the Immigration Act; (2) whether persons facing forced sterilization are members of a "particular social group"; (3) whether those refusing forced sterilization are expressing a "political opinion"; and (4) whether, assuming persons who have a well‑founded fear of sterilization for violating China's one‑child policy are eligible to be considered Convention refugees, the appellant has a well‑founded fear of forced sterilization or of other persecution.
Held (La Forest, L'Heureux-Dubé and Gonthier JJ. dissenting): The appeal should be dismissed.
Per Sopinka, Cory, Iacobucci and Major JJ.: A person facing forced sterilization was assumed (without its being decided) to be a member of a particular social group. The claimant, to establish a well‑founded fear of sterilization, must demonstrate subjective fear persecution and establish that this fear is well‑founded in the objective sense, both on a balance of probabilities.
A refugee claimant must establish to the Board's satisfaction that the alleged fear exists in his or her mind in order to meet the subjective aspect of the test for a well‑founded fear of persecution. Normally the claimant's evidence will be sufficient to meet the subjective aspect of the test where the claimant is found to be a credible witness and his or her testimony is consistent. Here, appellant's testimony, even with respect to his own fear of forced sterilization, was equivocal and inconsistent at times.
The appellant did not meet the burden of proof on the objective aspect of the test. Evidence with respect to the enforcement procedures used within a claimant's particular region at the relevant time was not presented to the Board. Such evidence, if not available in documentary form, can be established through testimony with respect to similarly situated individuals. Appellant provided neither. Nor did he produce any evidence that the forced sterilization is inflicted upon men in his area. In fact, the documentary evidence produced by the appellant strongly suggested that penalties for breach of the one‑child policy only applied against women. Then, too, the local authorities had taken no action to enforce appellant's signed consent to sterilization even though more than a year had lapsed and the fine levied for the breach of the birth control laws had still not been paid and, indeed, had been reduced. Absent any evidence to establish that his alleged fear of forced sterilization was objectively well‑founded, the Board was unable to determine that the appellant had a well‑founded fear of persecution in the form of a forced sterilization. The issue of whether or not the forced sterilization was related to the appellant's alleged involvement with the pro-democracy movement was not raised by the appellant at the Board level or on appeal and was not before this Court.
Per La Forest, L'Heureux‑Dubé and Gonthier JJ. (dissenting): The Court could not safely decide whether or not there was evidence on which the Board could conclude that the appellant was a member of a particular group. The matter should be remitted back to the Board to be decided in accordance with the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status (the "UNHCR Handbook"). Using these guidelines for establishing the facts of a given case, a determination could be made as to whether a Convention refugee was entitled to any benefit of the doubt regarding his story.
Here, the appellant's account of events so closely mirrors the known facts concerning the implementation of China's population policy that, given the absence of any negative finding as to the credibility of the appellant or of his evidence, his quite plausible account is entitled to the benefit of any doubt that may exist. Sections of his testimony should not be seized upon in isolation. Such a technique is antithetical to the guidelines of the UNHCR Handbook. In light of these explicit guidelines, Canada's refugee burden should not be thwarted by an unduly stringent application of exacting legal proof that fails to take account of the contextual obstacles customary to refugee hearings.
The implementation of China's one-child policy, through sterilization by local officials, can constitute a well-founded fear of persecution. The alleged persecution does not have to emanate from the state itself to trigger a Convention obligation. Serious human rights violations may well issue from non‑state actors or from subordinate state authorities if the state is incapable or unwilling to protect its nationals from abuse. Determination of the precise degree of involvement by the Chinese government was neither necessary nor possible from the evidentiary record.
When the means employed place broadly protected and well understood basic human rights under international law such as the security of the person in jeopardy, the boundary between acceptable means of achieving a legitimate policy and persecution is crossed. Canadian judicial bodies may at that juncture pronounce on the validity of the means by which a social policy may be implemented in an individual case by either granting or denying Convention refugee status, assuming of course that the claimant's credibility is not in question and that his or her account conforms with generally known facts.
Basic human rights transcend subjective and parochial perspectives and extend beyond national boundaries. Recourse can be had to the municipal law of the admitting nation, nevertheless, because that law may well animate a consideration of whether the alleged feared conduct fundamentally violates basic human rights. Forced sterilization constitutes a gross infringement of the security of the person and readily qualifies as the type of fundamental violation of basic human rights that constitutes persecution. Notwithstanding the technique, forced sterilization is in essence an inhuman, degrading and irreversible treatment.
A well‑founded fear must be evaluated both subjectively and objectively. The fact that the appellant did not specifically invoke the term "fear of persecution" or equivalent words to that effect was of no particular import. The testimony of his harassment, together with his flight from China, directs a finding that he had an implicit well-founded fear of persecution. The generally known facts establish the existence of objective grounds for appellant's fearing forced sterilization. This was an issue for consideration by the Board.
A refugee alleging membership in a particular social group does not have to be in voluntary association with other persons similar to him‑ or herself. Rather, he or she must be voluntarily associated with a particular status for reasons so fundamental to that person's human dignity that he or she should not be forced to forsake that association. The association or group exists by virtue of a common attempt made by its members to exercise a fundamental human right. The right asserted can be categorized as the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children. This fundamental right has been recognized in international law. The possibility also exists that the appellant may have a well-founded fear of persecution on the basis of a political opinion held by or imputed to him.
Cases Cited
By Major J.
Distinguished: Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314; referred to: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680; R. v. Secretary of State for the Home Department, ex parte Sivakumaran, [1988] 1 All E.R. 193.
By La Forest J. (dissenting)
Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314; E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388; H. (W.I.) (Re), [1989] C.R.D.D. No. 15; Guo Chun Di v. Carroll, 842 F.Supp. 858 (1994); Xin‑Chang Zhang v. Slattery, 859 F.Supp. 708 (1994); Matter of Chang, Int. Dec. 3107 (1989); Minister for Immigration and Ethnic Affairs v. Respondent A (1995), 130 A.L.R. 48, rev'g (1994), 127 A.L.R. 383; Canada (Minister of Employment and Immigration) v. Mayers, [1993] 1 F.C. 154; Rajudeen v. Minister of Employment and Immigration (1984), 55 N.R. 129; Chen Zhou Chai v. Carroll, 48 F.3d 1331 (1995); Shu‑Hao Zhao v. Schiltgen, 1995 WL 165562; A. (W.R.) (Re), [1989] C.R.D.D. No. 98; K. (H.H.) (Re), [1991] C.R.D.D. No. 484; X. (D.K.) (Re), [1989] C.R.D.D. No. 293.
Statutes and Regulations Cited
Convention on the Elimination of All Forms of Discrimination against Women, March 1, 1980, Can. T.S. 1982 No. 31, art. 16(1)(e).
Immigration Act, R.S.C., 1985, c. I‑2, ss. 2(1) "Convention refugee" [rep. & sub. c. 28 (4th Supp.), s. 1], (a)(i), (ii), (b), 3(g), 19(1)(c).
International Covenant on Civil and Political Rights, December 19, 1966, Can. T.S. 1976 No. 47, art. 23(2).
Authors Cited
Aird, John S. Slaughter of the Innocents: Coercive Birth Control in China. Washington, D.C.: The AEI Press, 1990.
Gewirtz, Daniel S. "Toward a Quality Population: China's Eugenic Sterilization of the Mentally Retarded" (1994), 15 N.Y.L. Sch. J. Int'l & Comp. L. 139.
Gregory, Lisa B. "Examining the Economic Component of China's One-Child Family Policy Under International Law: Your Money or Your Life" (1992), 6 J. Chinese L. 45.
Lin, Stanford M. "China's One‑Couple, One-Child Family Planning Policy as Grounds for Granting Asylum ‑‑ Xin‑Chang Zhang v. Slattery, No. 94 Civ. 2119 (S.D.N.Y. Aug. 5, 1994)" (1995), 36 Harv. Int'l L.J. 231.
Macklin, Audrey. "Canada (Attorney‑General) v. Ward: A Review Essay" (1994), 6 Int'l J. of Refugee L. 362.
Moriarty, Tara A. "Guo v. Carroll: Political Opinion, Persecution, and Coercive Population Control in the People's Republic of China", 8 Geo. Immigr. L.J. 469.
Shiers, E. Tobin. "Coercive Population Control Policies: An Illustration of the Need for a Conscientious Objector Provision for Asylum Seekers" (1990), 30 Va. J. Int'l L. 1007.
United Nations. Office of the United Nations High Commissioner for Refugees. Handbook on Procedures and Criteria for Determining Refugee Status. Geneva: 1979.
United Nations. Programme of Action of the United Nations International Conference on Population and Development. Draft, unedited version, Principle 8; c. VII, para. 7.2.
United States of America. Department of State. Report submitted to the Committee on Foreign Affairs, U.S. House of Representatives and the Committee on Foreign Relations, U.S. Senate. Country Reports on Human Rights Practices for 1993. Washington: U.S. Government Printing Office, 1994.
United States of America. Department of State. Report submitted to the Committee on Foreign Relations, U.S. Senate and the Committee on Foreign Affairs, House of Representatives. Country Reports on Human Rights Practices for 1990. Washington: U.S. Government Printing Office, 1991.
Valpy, Michael. "The suspicion of a gelded refugee process", Globe and Mail, Toronto, March 7, 1995, p. A2.
APPEAL from a judgment of the Federal Court of Appeal, [1993] 3 F.C. 675, 156 N.R. 279, 20 Imm. L.R. (2d) 181, dismissing an appeal from a judgment of the Immigration and Refugee Board (Refugee Division). Appeal dismissed, La Forest, L'Heureux-Dubé and Gonthier JJ. dissenting.
Rod Holloway and Jennifer Chow, for the appellant.
Gerald Donegan, for the respondent.
Brian A. Crane, Q.C., and Howard Eddy, for the intervener Immigration and Refugee Board.
Ronald Shacter, for the intervener Canadian Council of Refugees.
The reasons of La Forest, L'Heureux-Dubé and Gonthier JJ. were delivered by
1 La Forest J. (dissenting) -- This case raises several issues concerning the definition of a "Convention refugee" in s. 2(1) of the Immigration Act, R.S.C., 1985, c. I‑2 (rep. & sub. c. 28 (4th Supp.), s. 1), first considered by this Court in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. That section reads:
2. (1) . . .
"Convention refugee" means any person who
(a)by reason of a well‑founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or
(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and
(b)has not ceased to be a Convention refugee by virtue of subsection (2),
but 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;
2 The present appeal is from a judgment of the Federal Court of Appeal which dismissed an appeal from an Immigration and Refugee Board decision denying the appellant's claim for Convention refugee status. At issue is whether a well‑founded fear of forced sterilization for failure to comply with China's birth control policy is a "well‑founded fear of persecution" for reasons of "membership in a particular social group". The appeal also deals with the proper interpretation of "persecution", "membership in a particular social group", and "political opinion" as defined in the Act and explained by this Court in Ward, supra. In considering these questions it will be necessary to determine the proper evidentiary approach to be applied to the testimony of a refugee claimant.
Facts
3 The appellant, Kwong Hung Chan, is a citizen of the People's Republic of China (China) from Guangzhou City. His ethnic origin is Han Chinese. During the Cultural Revolution, he and his family suffered persecution because of his father's background as a landowner, but there was no other evidence of persecution for this reason beyond the period of the Cultural Revolution.
4 In June, 1989, pro‑democracy students demonstrated in front of his restaurant. The appellant donated food and drinks and some money to support the students. From July 1989, until April 1990, officers of the Public Security Bureau (PSB) visited the appellant's restaurant ten or more times, usually the same group of four to six officers. The PSB officers accused the appellant of having participated in the pro‑democracy movement and of being a counter‑revolutionary. Staff and customers of the restaurant were interrogated. After the officers' second visit in mid‑July 1989, the appellant voluntarily reported to the local PSB office to write a confession of his pro‑democracy activities. The interrogatory visitations of PSB officers continued for months after this confession.
5 In November 1989, 12 years after their first child was born, the appellant's wife gave birth to their second child, thereby violating China's much publicized one-child birth policy. His evidence was that the PSB learned of the second child while conducting a census in April 1990. In late May 1990, the appellant and his family were accused by PSB officers and local neighbourhood committee members of violating China's birth control policy. The PSB officers immediately informed his wife's work unit of the family's population policy violation, causing her to lose her job.
6 PSB officers together with members of the neighbourhood committee visited the appellant's home on five different occasions in all before his flight from China. He testified that they insulted his family, calling them the "enemy of the class" and stating that they had purposely disobeyed the government's birth control policy, thereby causing the neighbourhood committee to be deprived of a low birth rate bonus. The officers demanded that the appellant pay a substantial fine and that either the appellant or his wife be sterilized. The appellant testified that the PSB officers stated that if neither he nor his wife was willing to be sterilized then one of them would be forced to submit to this procedure. The appellant's family discussed their dilemma and decided that, in order to prevent further PSB harassment, the appellant would give the PSB officers a signed document stating that he would agree to undergo sterilization within three months. The appellant testified, however, that he "never thought of going to have this kind of cruel operation".
7 During the last of the five visits to the appellant's family home, the PSB officers demanded payment of the monetary sanction imposed for violation of the one-child policy. The appellant told the officers that his family did not have sufficient money to pay the fine.
8 The appellant left China on July 19, 1990, three weeks after the fifth visit of the PSB officers to his home, and before the expiration of the three-month period within which he had agreed to submit to sterilization. The appellant travelled initially to Hong Kong and, on July 23, 1990, proceeded to Canada where he immediately sought Convention refugee status. His hearing before the Board occurred 16 months after he left China.
9 Before the Board the appellant claimed that after his departure his family continued to be harassed by the PSB for violating the one-child policy. Appellant's counsel submitted in evidence two letters sent from the appellant's wife in China, respectively six and ten months after his arrival in Canada. These letters recounted further PSB and neighbourhood visits in which the authorities continued to seek the appellant, demanding his arrest and sterilization. According to the second letter, the authorities seized certain items of the family's personal property as security for the still unpaid fine. The appellant's wife expressed concern that if the fines were not paid, the couple's second child would not be able to be a registered household member, thereby affecting the child's future social benefits. Subsequent to the second letter, the appellant was informed by telephone that his wife was taken and detained overnight by the police. The appellant further testified that the neighbourhood committee prevented the appellant's wife from getting another job by refusing to exercise their authority to issue the requisite job replacement certificate. The appellant stated that if he were returned to China he could be imprisoned, permanently prevented from working, and possibly murdered. He testified that the government would not listen to his complaints and that the neighbourhood committee might attempt to exact revenge for having adversely affected the bonus of some of its members.
Judgments
Immigration and Refugee Board (Refugee Division) October 23, 1991
10 Before the Refugee Board, the appellant claimed refugee status on the grounds of his political opinion and his membership in a particular social group.
11 The Board first set forth the facts substantially as I have just given them. As Mahoney J.A. later observed, the Board neither made nor implied any adverse finding as to the credibility of his evidence, and the appellant's Personal Information Form and viva voce evidence are entirely consistent with one another.
12 The Board then proceeded to examine the appellant's claim on the stated grounds. As to membership in a particular social group, the Board identified the relevant group as his family, and dismissed his claim on that basis because it did not find the claimant had good ground for fearing persecution because of his family background. This portion of its reasons read as follows:
Membership in a Particular Social Group
This panel accepts that the various members of the claimant's family, including the claimant, have suffered persecution during the Cultural Revolution due to their family background. However, no evidence was adduced to suggest that the claimant was persecuted beyond the period of the Cultural Revolution. Furthermore, he was able to subsequently obtain a university education and several managerial positions. According to all the above, this panel does not find the claimant to have good grounds for fearing persecution based on his membership in a particular social group, namely, his family background.
13 The Board then considered the appellant's claim to refugee status on the basis of well-founded fear of persecution because of his political opinion on two separate bases. First it found that the appellant did not have good grounds for fearing persecution by reason of his political opinion as manifested through his pro‑democracy activities. It then dealt with the appellant's allegation of a fear of persecution by being forced to undergo sterilization, which became the principal issue on appeal. The Board dismissed this ground because it did not find sterilization to be a form of persecution for a Convention reason, but rather as a government measure to implement a general family planning policy. There was, it added, no evidence adduced to suggest the appellant would be physically abused during the sterilization process. It also noted the appellant's testimony that he did not wish to have any more children. The Board, in consequence, held that the appellant's claim on this ground to be unfounded. Its reasons regarding political opinion read:
Political Opinion
Sometime between July and August 1989, the claimant voluntarily handed in a written confession of his pro‑democracy activities to the PSB. Thereafter, the claimant remained in the PRC until July 1990. Subsequent to his confession, the PSB officers visited the claimant's restaurant on numerous occasions to conduct interrogations of the claimant, his staff, and his customers on the subject of the pro‑democracy movement. The claimant was present during three such interrogations. Despite their knowledge of the claimant's participation in the pro‑democracy activities, the PSB never arrested or detained him, even though they had ample opportunity. Furthermore, no evidence was adduced to suggest that the investigation into the matter of the claimant's involvement with the pro‑democracy movement went beyond April 1990. Finally, the claimant's family encountered no difficulties in renewing the claimant's driver's licence (exhibit # 3) with the PSB in December 1990, five months after the claimant had fled the PRC. Based on the evidence, this panel does not find the claimant to have good grounds for fearing persecution by reason of his political opinion as manifested through his pro‑democracy activities.
The claimant alleged a fear of persecution by being forced to undergo sterilization. This panel does not find sterilization in itself to be a form of persecution for a Convention reason but rather we accept it as a measure on the part of the PRC government to implement a family planning policy applicable to all of its citizens. Furthermore, the claimant testified that he does not wish to have any more children and no evidence was adduced to suggest that the claimant would be physically abused during the sterilization process. According to all the above, this panel does not find the claimant's fear of persecution in the form of a forced sterilization to be well‑founded.
14 The Board accordingly found that the appellant was not a Convention refugee.
Federal Court of Appeal, [1993] 3 F.C. 675
15 An appeal to the Court of Appeal was dismissed by a majority; Heald and Desjardins JJ.A. gave separate reasons. Mahoney J.A. dissented.
Heald J.A.
16 Heald J.A. initially noted the appellant's oral submission that the sole issue he would be raising was "the sterilization issue". He added that there was support on the record for the Board's finding that the appellant was neither persecuted because of his family membership nor because of his political opinion, so that these findings should not be disturbed. This left as the sole issue whether coerced sterilization could give rise to a well‑founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion.
17 On the latter issue, Heald J.A. observed, at p. 686, that in Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (C.A.), a decision rendered shortly before the present case, the court had concluded, at p. 322, that "forced or strongly coerced sterilization" constituted persecution since sterilization violated a woman's security of the person and subjected her to cruel, inhuman and degrading treatment. He agreed that it had not been shown that sterilization of a man was qualitatively different from that of a woman and that, therefore, forced or strongly coerced sterilization would amount to persecution.
18 Heald J.A. then noted, however, that in Cheung a distinction had been made between women who have more than one child and have a reasonable fear of forced sterilization and those who have more than one child but do not have such a fear. Only the former could claim a well‑founded fear of persecution under the Refugee Convention. He recognized that forced sterilization is not a law of general application in China, but rather an enforcement measure taken by some local authorities and tacitly accepted by the central government. He observed that the reasonable chance that acceptable sanctions such as economic measures might exist made the determination of whether or not a person has a well‑founded fear of persecution a subtle finding of fact.
19 Heald J.A. contrasted the record of the present case to the uncontested testimony in Cheung, and found on the evidence that the appellant had a well‑founded fear of persecution equivocal. He seized upon specific portions of the appellant's translated testimony as revealing ambiguity by the appellant on whether or not he faced a reasonable chance of sterilization. Heald J.A. observed that the appellant's testimony evidenced the imposition of important economic sanctions which, as Cheung indicated, were not sufficient to establish persecution. Upon a consideration of the evidence, Heald J.A. remained unconvinced that the appellant had a well-founded fear of persecution in the form of sterilization. Nonetheless, he proceeded to consider the second branch of the Convention refugee test, the enumerated grounds, i.e., membership in a "particular social group" and "political opinion".
20 Heald J.A., at p. 691, considered the appellant's particular social group as "parents in China with more than one child who disagree with forced sterilization". That group did not, he noted, fall within any of the three categories set out in the working rule in Ward, at p. 739, namely:
(1) groups defined by an innate or unchangeable characteristic;
(2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and
(3) groups associated by a former voluntary status, unalterable due to its historical permanence.
The group did not fall within the first category because the number of offspring one has is neither innate nor unchangeable. The conditions of the second category were also not met because of the lack of voluntary association amongst members of this group. Finally, he noted that the group failed the third Ward category because it had no historical permanence.
21 Heald J.A. then elaborated upon his finding that the appellant's particular social group failed to meet any of the Ward categories. He noted that while parents who have breached the one-child policy are identifiable, the sub‑group of those persons faced with sterilization could not be recognized until after the treatment had been ordered. Indeed, he found that the group was defined solely by the fact that its members face a particular form of persecutory treatment; the finding of membership in a particular social group was dictated by the finding of persecution. Heald J.A. found that to employ this logic would reverse the statutory definition in which persecution must be driven by one of the enumerated grounds and not the inverse. He also noted, at p. 693, that Ward had rejected an approach whereby groups were defined "merely by virtue of their common victimization as the objects of persecution". He decided that the appellant's fear clearly stemmed from what he did as opposed to what he was.
22 Heald J.A. then considered the argument that a failure by a citizen to agree to sterilization under the policy in force in China was tantamount to a political statement in that it would be perceived as an anti‑governmental political opinion, which would constitute a well‑founded fear of persecution. He examined the appellant's testimony and found there was little evidence to support such a finding. Although this Court in Ward, at p. 746, adopted a broad definition of political opinion ‑‑ "any opinion on any matter in which the machinery of state, government, and policy may be engaged" ‑‑, some limits on the definition of political opinion were required to prevent the enumerated grounds from being obviated. The persecutory treatment emanated not from a refusal to submit to sterilization but from breach of the one-child policy which he likened to a breach of a provision of Canada's Criminal Code , generally not viewed as a political statement. He could see no evidence that the authorities perceived the appellant's acts as a political statement or as a challenge to their authority. Heald J.A. then considered that the population policy was well within the jurisdiction of the Chinese government, and could not, in itself, be categorized as persecutory. While Heald J.A. abhorred the penalty, he concluded, at p. 696, that the appellant had not succeeded in establishing that the alleged persecution was by reason of "political opinion".
Desjardins J.A.
23 The other majority judge, Desjardins J.A., noted that while she found the appellant's testimony and evidence not free from ambiguity, she would not decide this appeal on its facts alone, choosing instead to address the highly complex issues regarding the meaning of the terms "particular social group", "political opinion", and "persecution".
24 Desjardins J.A. quickly disposed of the contention that the appellant belonged to a "particular social group" under the second or third branches of the Ward working rule because these involved a voluntary status and there was none here. Turning then to the first branch, "a group `defined by an innate or unchangeable characteristic'", she found that the "innate or unchangeable characteristic" had to be distinguished from the basic human right which the group might defend. The innate characteristic had to be so strong that it would make a group of individuals what they are, independently of that for which they fight. While she accepted that forced sterilization violated the basic human right of reproductive control, Desjardins J.A. found that while the basic rights of the group were threatened, the appellant's group was not affiliated in so fundamental a manner as to qualify as a particular social group. A violation of a basic human right did not, by itself, create a "particular social group". She stated, at p. 721:
The appellant is essentially targeted because of what he did (i.e., he violated the one‑child policy) and not because of what he is (i.e., a Chinese father). The reprimand, i.e., forced sterilization, is in violation of his basic human right, but this right is common to humanity, not common to his group. He objects, rightly so, to forced sterilization. But that is what he is fighting against. It cannot be an "innate" characteristic of his group. [Emphasis in original.]
25 She further found that the procedure carried out by some local officials in China was not a sterilization policy to prevent childbearing, but was instead a measure of punishment for excess births. She noted that the policy itself had not been challenged before the court and therefore remained legitimate.
26 Desjardins J.A. then examined whether there was any basis for a claim on the ground of political opinion, under the guidelines provided by this Court in Ward. She considered whether the appellant's action, motivated in defence of his basic human rights, could be viewed by the Chinese local authorities as a gesture of defiance to the national authority, particularly since that country was governed by an authoritarian form of government. Absent specific evidence, however, she hesitated to make such an inference considering that local authorities enforced the sterilization policy.
27 Desjardins J.A. added, however, that she preferred not to decide the case on the sole basis of lack of evidence, so she proceeded to a substantive examination of the issues as framed by the appellant. The claimant's objection, she noted, related to the means employed by some local authorities to enforce a general policy. This, she stated, raised two questions: first, whether forced sterilization as a measure of population control amounted to "persecution" under the Convention relating to the status of refugees and the Immigration Act, and second what the scope of the Convention itself should be.
28 As to the first question, Desjardins J.A. acknowledged that the term persecution itself was broad but, as the record was silent as to the medical procedure followed, she found, at p. 724, that she "must assume . . . that it is carried out through a normal [medical] procedure currently in use by those who voluntarily opt for this procedure elsewhere, including this country".
29 As to the second question, Desjardins J.A. held, at p. 724, that since the validity of the Chinese government's population control policy was not in question, it could not be said "that when a foreign government employs means that violate basic human rights, as known in Canada, so as to ensure the respect of a valid social objective, such means amount to `persecution' under the Convention". She found that the Convention was not meant to protect those who resist the realization of valid state objectives but rather those who become victims by virtue of the pursuit of illegitimate goals by the state.
Mahoney J.A. (dissenting)
30 Like Heald J.A., Mahoney J.A. began by observing that the appellant's counsel had chosen not to argue any of the grounds raised in her memorandum but, instead, relying entirely on the Cheung case, supra, asserted, at p. 705, a claim based solely on the appellant's fear of sterilization as a member of a particular social group, namely, "parents in China with more than one child who do not agree with the Government's sterilization policy". Under these circumstances, he found it necessary to confine himself to the sterilization ground.
31 Having examined the record, he then cited, at p. 702, the penultimate paragraph of the refugee panel's reasons as being the "entirety of the decision" dealing with the appellant's fear of sterilization, which reads:
The claimant alleged a fear of persecution by being forced to undergo sterilization. This panel does not find sterilization in itself to be a form of persecution for a Convention reason but rather we accept it as a measure on the part of the PRC government to implement a family planning policy applicable to all of its citizens. Furthermore, the claimant testified that he does not wish to have any more children and no evidence was adduced to suggest that the claimant would be physically abused during the sterilization process. According to all the above, this panel does not find the claimant's fear of persecution in the form of a forced sterilization to be well‑founded.
32 Mahoney J.A. then reviewed the Board's decision, at p. 702. He first observed that "[t]he suggestion that evidence is necessary to establish that forced sterilization entails physical abuse calls into question the panel's understanding of what is meant by `physical abuse' in any ordinary sense of the term". He then added that the appellant's testimony that he did not wish to have more children and another remark expressing his personal intention did not support a conclusion that his fear of persecution in the form of forced sterilization was not well‑founded, because there was no suggestion that the authorities shared his opinion or that he thought they did.
33 Mahoney J.A. then concluded these preliminary comments, at p. 702, by stating that "[t]he validity of the tribunal's finding that `sterilization (is not) a form of persecution for a Convention reason' depends entirely on the qualification `for a Convention reason'".
34 The remainder of his reasons are devoted to that issue. In undertaking that task Mahoney J.A. first considered the case of Cheung, in which a unanimous panel of the Feder