"Canada (Attorney-General) v. Ward: A Review Essay"

The Supreme Court of Canada's recent judgment in Canada (Attorney-General) v. Ward considers various aspects of the international Convention refugee definition. The claimant fled Northern Ireland to escape retaliation by the Irish National Liberation Army (INLA) for his effective defection from that organization. The Ward judgment reinforces the position that State complicity is not a pre-requisite to a determination of persecution by finding that the inability of the Irish and UK police to protect the claimant from INLA reprisal could suffice for purposes of establishing a well-founded fear of persecution. Second, the decision adopts a relatively expansive interpretation of the term 'particular social group' by linking the designation to concepts of anti-discrimination in Canadian and international law. In obiter, the Court declares that gender and sexual orientation are permissible bases for social group ascription. On the facts of this case, however, the claimant failed to establish that he was persecuted because of his membership in a particular social group. On the other hand, the Court was sympathetic to the alternative of political opinion. In its analysis of this ground, the Court confirms that a claimant may be persecuted for reasons of political opinion even where the opinion is inferred from conduct or wrongly imputed to the claimant. In the present case, Ward's political opposition to the tactics of the INLA could be inferred from his conduct in releasing hostages he was ordered to guard. Finally, the decision clarifies the scope of the 'dual nationality' exclusion that may be used to bar a refugee claim. In this case, the Court found that the Federal Court of Appeal had erred by failing to consider the fact that Ward was a citizen of the United Kingdom as well as Ireland, but cautioned that it might still be possible to conclude that the United Kingdom would be unable or unwilling to protect him from INLA retaliation.