“The centrality of the principle of non-refoulement to international refugee protection schemes cannot be overstated. It has been described as “the cornerstone of the international refugee protection regime” and aims at preventing human rights violations: Németh, at paras. 18-19. Importantly, it is also complemented, and enlarged beyond its application to refugees, by international human rights law prohibitions on the removal of a person to a real risk of torture or other cruel, inhuman or degrading treatment or punishment or other forms of serious harm: see, e.g., Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, 1465 U.N.T.S. 85, at art. 3(1); International Covenant on Civil and Political Rights, December 16, 1966, 999 U.N.T.S. 171, at art. 7; European Convention for the Protection of Human Rights and Fundamental Freedoms, November 4, 1950, 213 U.N.T.S. 222, at art. 3; Németh, at para. 19.
In Canada, the statutory codification of the principle of non-refoulement is found in s. 115(1) of the IRPA. That provision states:
115(1) A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.
Also relevant is art. 32 of the Refugee Convention, which stipulates in part that contracting states “shall not expel a refugee lawfully in their territory save on grounds of national security or public order”. Article 32 applies to persons lawfully present in the country of refuge, including those recognized by the host country as refugees, while art. 33(1) is broader in scope, and applies to any person present in the country of refuge. Does section 46 of the CLRA conflict with section 115 of the IRPA?
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In our view, properly interpreted, the Hague Convention contemplates respect for and fulfillment of Canada’s non- refoulement obligations. Specifically, art. 13(b) of the Hague Convention permits the refusal of an order of return concerning a child, who would otherwise be automatically returnable under art. 12, if “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. In addition, art. 20 provides for the denial of an order of return if it would not be permitted “by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms”. In accordance with the interpretive principles set out above, arts. 13(b) and 20 must be construed in a manner that takes account of the principle of non-refoulement.
Moreover, in addition to its commitments under the Hague and Refugee Conventions, Canada acceded to the Vienna Convention on the Law of Treaties. Articles 31(1) and 31(3)(c) of that Convention stipulate that a treaty is to be interpreted in good faith in light of its context, object and purpose and any applicable rules of international law. Consequently, under the Vienna Convention principles of treaty interpretation, the interpretation of the Hague Convention, which came into force in 1983, must take account of the Refugee Convention of 1951, as a relevant rule of international law in force at the time of entry into force of the Hague Convention. This ensures that s. 46 of the CLRA is interpreted in a manner consistent with Canada’s treaty obligations under the Refugee Convention.”