Should We Presume State Protection?

Author:Hathaway, James C.


Professors Hathaway and Macklin debate the legality of the "presumption of state protection" that the Supreme Court of Canada established as a matter of Canadian refugee law in the Ward decision. Professor Hathaway argues that this presumption should be rejected because it lacks a sound empirical basis and because it conflicts with the relatively low evidentiary threshold set by the Refugee Convention's "well-founded fear" standard. Professor Macklin contends that the Ward presumption does not in and of itself impose an unduly onerous burden on claimants, and that much of the damage wrought by the presumption comes instead from misinterpretation and misapplication of the Supreme Court's dictum by lower courts.


Les professeurs Hathaway et Macklin reconsiderent la legalite de la > que La Cour supreme du Canada avait promulge comme principe de droit canadien en matiere de refugies dans le jugement Ward. Le professeur Hathaway soutient que cette presomption devrait etre rejetee en raison de son manque de fondement empirique rigoureux ainsi que de son incompatibilite avec le niveau de preuve relativement faible implique par la norme de > etablie par la Convention relative au statut des refugies. La professeure Macklin estime que la presomption Ward n'impose guere en soi un fardeau excessivement lourd sur les demandeurs, et que la plupart des problemes engendres par la presomption decoulent des erreurs d'interpretation ou d'application de la decision de la Cour supreme de la part des tribunaux inferieurs.


More than two decades later, the Supreme Court of Canada's decision in Ward v Canada, [1993] 2 SCR 689 remains one of the world's most significant refugee law decisions. Ward's holdings on such matters as the meaning of both "membership of a particular social group" and the relevance of non-state agents of persecution were groundbreaking and of indisputable value to the evolution of refugee protection in Canada and around the world. Indeed, Ward made clear the overarching purpose of refugee law, which informs nearly every interpretive question: "International refugee law was formulated to serve as a back-up to protection one expects from the state of which an individual is a national. It was meant to come in to play only in situations when that protection is unavailable, and then only in certain situations. The international community intended that persecuted individuals be required to approach their home state for protection before the responsibility of other states becomes engaged."

More controversially, however, the Court addressed the question of how best to operationalize the surrogate protection principle. While in Ward the home country had conceded its inability to protect, the Court nonetheless opined about how to proceed in the more usual case where there is no such concession: "Clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus ..., it should be assumed that the state is capable of protecting a claimant" (emphasis added).

While clearly obiter dicta, this passage has generated real controversy. First, courts have struggled with the question of whether the adequacy of state protection focuses on the efforts made by the state to protect, or on whether state action is effective in reducing the risk of persecution below the threshold of "reasonable chance." Second and more generally, the basic notion of a "presumption" of state protection has led lower courts to impose a significant burden on persons seeking recognition of refugee status. For example, the Federal Court of Appeal in Carrillo v Canada, 2008 FCA 94, at [30], interpreted Ward as imposing on refugee claimants a burden to "adduce relevant, reliable and convincing evidence which satisfies the trier of fact on the balance of probabilities that the state protection is inadequate."

In The Law of Refugee Status (1) James Hathaway and Michelle Foster argue that the notion that states are "presumed to protect" their citizens, as suggested in Canada v Ward, [1993] 2 SCR 689, is unsound. In their view the resultant duty on refugee claimants to rebut a presumption of state protection is at odds with the duty of the applicant to show no more than a "well-founded fear" of being persecuted. More generally, Hathaway and Foster endorse the view of the Full Federal Court of Australia in A. v Minister for Immigration and Multicultural Affairs, (1993) 53 ALD 545, at [41] that the Ward presumption should be rejected on the grounds that there is no basis in principle for importing a presumption that lacks a solid empirical foundation. They contend that the question of whether a state is unable or unwilling to provide protection is a simple...

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