Chapter 14 - Persons in need of protection

14.5.2.3.1. Confusion caused by imprecise wording

This condition has generated a great deal of jurisprudence, much of it the result of deviating from the wording of the Act and replacing the longer wording of the negative condition in s. 97(1)(b)(ii)- “not faced generally by other individuals” - with a single adjective such as “personal”, “personalized”, “particularized”^{Footnote 45} or “individualized”. These efforts to simplify the terminology have led to some confusion.

When reading case law, it is not always clear in what sense the terms “personal” or “personalized” is being used. These terms are not used consistently. In some cases, “personal” or “personalized” risk may refer to the prospective risk to which a claimant would be “subject personally” as per the opening words of section 97(1).^{Footnote 46} In other cases, one of those same words, or even another, such as “particularized” or “individualized” is used to describe a risk that meets the condition in s. 97(1)(b)(ii) because it is not “faced generally”^{Footnote 47} – or in other words, it is the opposite of a generalized risk. The reader is left to rely on the context to try to understand the sense of terms that do not appear in the wording of the IRPA provision.

In a decision rendered in 2011,^{Footnote 48} Mr. Justice Zinn discusses the confusion caused by the use of imprecise language:

The majority of cases turn on […] whether the risk faced by the claimant is a risk faced generally by others in the country. I pause to observe that regrettably too many decisions of the RPD and of this Court use imprecise language in this regard. No doubt I too have been guilty of this. Specifically, many decisions state or imply that a generalized risk is not a personal risk. What is usually meant is that the claimant’s risk is one faced generally by others and thus the claimant does not meet the requirements of the Act. It is not meant that the claimant has no personal risk. [emphasis added]

14.5.2.3.2​. Two distinct, conjunctive elements

The condition in s. 97(1)(b)(ii) that the risk not be faced generally is not a reiteration of the requirement in s. 97(1) that the claimant would be “subject personally.” The presumption against tautology^{Footnote 49} makes it clear that “personally” in the opening words of s. 97(1) is not synonymous with the condition in s. 97(1)(b)(ii) that the risk “not (be) faced generally”. Nor are the two elements mutually exclusive. Madam Justice Tremblay-Lamer in Prophète explained how the two can co-exist:

[18] […] the Court may be faced with applicant who has been targeted in the past and who may be targeted in the future but whose risk situation is similar to a segment of the larger population. Thus, the Court is faced with an individual who may have a personalized risk, but one that is shared by many other individuals.^{Footnote 50} [emphasis added]

The Federal Court of Appeal implicitly endorsed Justice Tremblay-Lamer's view by dismissing the appeal in Prophète and by emphasizing that two distinct elements need to be proven:

[3] To be a person in need of protection, the appellant had to show the Board, on a balance of probabilities, that his removal to Haiti would subject him personally, in every part of that country, to a risk to his life or to a risk of cruel and unusual treatment that is not faced generally by other individuals in or from Haiti.^{Footnote 51} [emphasis added - by the FCA]

Mr. Justice Crampton in ​Paz Guifarro clearly expressed the need to establish both of the two conjunctive elements:

[32] Given the conjunctive nature of the two elements contemplated by paragraph 97(1)(b)(ii), a person applying for protection under section 97 must demonstrate not only a likelihood of a personalized risk contemplated by that section, but also that such risk “is not faced generally by other individuals in or from that country.”^{Footnote 52}

One often-quoted passage from the Portillo decision^{Footnote 53} seems to suggest that the two elements are not conjunctive, that they are mutually exclusive. The RPD, using the wording of s. 97(1), had accepted that the claimant was “subjected personally to a risk to his life”, but then rejected his claim because it found that his risk was generalized. Madam Justice Gleason rephrased the RPD's finding, writing “[T]he RPD held that the applicant faced a unique personalized risk of death but that this risk was a generalized one within the meaning of paragraph 97(1)(b)(ii) of IRPA.” Justice Gleason then went on to say that the RPD's interpretation of s. 97 of IRPA was both incorrect and unreasonable:

“It is simply untenable for the two statements of the Board to coexist: if an individual is subject to a personal risk to his life or risks cruel and unusual treatment or punishment, then that risk is no longer general.”^{Footnote 54}

It is not clear whether “personal risk” in this citation refers to the RPD's conclusion expressed in the wording of s. 97(1), or to the “unique personalized risk of death” in Justice Gleason's reworded version of that conclusion. Although the statement is quoted by several judges in cases that followed, the reasoning in those cases shows that there are various approaches to defining what would, or would not, constitute a personal risk. There are cases that suggest a risk is no longer general and becomes personal once a person has been specifically targeted.^{Footnote 55} Specific targeting is discussed in 14.5.2.3.6 below. Other cases take issue with an older line of cases which adopted “consequential harm” reasoning, whereby a risk which at its origin is generalized does not subsequently become personal despite escalating threats and reprisals.^{Footnote 56} This now discredited line of reasoning is discussed in 14.5.2.3.7 below.

It must be noted that many cases that cite Justice Gleason's statement also cite and follow paragraphs 40–41 where she sets out a two-step analysis comprised of conjunctive elements:

[40] In my view, the essential starting point for the required analysis under section 97 of IRPA is to first appropriately determine the nature of the risk faced by the claimant. This requires an assessment of whether the claimant faces an ongoing or future risk (i.e. whether he or she continues to face a “personalized risk”), what the risk is, whether such risk is one of cruel and unusual treatment or punishment and the basis for the risk. (…)

[41] The next required step in the analysis under section 97 of IRPA, after the risk has been appropriately characterized, is the comparison of the correctly-described risk faced by the claimant to that faced by a significant group in the country to determine whether he risks are of the same nature and degree​. If the risk is not the same, then the claimant will be entitled to protection under section 97 of IRPA (….)^{Footnote 57}

This analysis is clearly conjunctive.^{Footnote 58} Justice Gleason uses “personalized,” not “personal” in the first step to qualify the ongoing or future risk to which the claimant would be personally subject. Then, in the next step, that correctly-described personalized risk is compared to the risk that is faced generally. The analysis Justice Gleason sets out is a strong indication that when she wrote that a “personal” risk could not also be general, she was referring to an accurately characterized risk; and not to whether the claimant could be “subject personally” to a risk that was generalized.

14.5.2.3.3. Assessing prospective risk before considering conditions

In Guerrero,^{Footnote 59} Mr. Justice Zinn sets out the order to follow when analyzing a s. 97(1)(b) risk that may be faced generally:

It is important that a decision-maker finds that a claimant has a personal risk because if there is no personal risk to the claimant, then there is no need to do any further analysis of the claim; there is simply no risk. It is only after finding that there is a personal risk that a decision-maker must continue to consider whether that risk is one faced generally by the population. [emphasis added]

It is clear from the context that when he uses “personal risk”, he is referring to the risk to which the claimant would be subject personally. The prospective risk to which the claimant would be subject personally should be found to exist before considering whether it satisfies relevant conditions.

Madam Justice Gleason, first in Portillo and again in Ortega Arenas, set outs the same sequence for the analysis, so that determining whether the claimant would be subject personally to a prospective risk under s. 97(1)(b) comes before considering whether the same risk is faced generally by others:

[9] As I held in Portillo, section 97 of the IRPA mandates the following inquiry. First, the RPD must correctly characterize the nature of the risk faced by the claimant. This requires the Board to consider whether there is an ongoing future risk, and if so, whether the risk is one of cruel or unusual treatment or punishment. Most importantly, the Board must determine what precisely the risk is. Once this is done, the RPD must next compare the risk faced by the claimant to that faced by a significant group in the country to determine whether the risks are of the same nature and degree.^{Footnote 60} [emphasis added]

In Komaromi, the RPD followed this order of analysis. It began by considering whether there was evidence that the claimant would be facing a prospective personal risk. The RPD did not accept that the agent of harm who had threatened the lives of the claimant and his family would still be interested in the claimants. At the time of the hearing, several years had passed since Mr. Komaromi had left Hungary. It had also been several years since the agent of harm or his group last had contact with Mr. Komaromi or any members of his family although they knew where the family members lived. The Court held that the claim failed at the “first stage of the Portillo analysis,” as the applicants had “failed to establish an ongoing, particularized future risk.”^{Footnote 61}

The passage of time, however, does not always rule out ongoing or prospective risk. In Callender, Madam Justice Elliott disagreed with the RPD’s finding that there was no risk to the claimant because it was implausible that the perpetrator of a murder would pursue the claimant more than 13 years after he witnessed the murder. She wrote, “It is far from self-evident that if an eye-witness to a murderer’s crime was alive and back in the country, it would be of no interest or concern to the murderer.”^{Footnote 62}

14.5.2.3.4. Individualized inquiry

Prophète is the only case concerning subparagraph 97(1)(b)(ii) which has gone before the Federal Court of Appeal. In that case, the Court declined to answer the certified question in a factual vacuum, saying that each claim necessitated an individualized inquiry, taking into consideration the claimant’s evidence in the context of present and prospective risk.^{Footnote 63}

As indicated in the cases above and in numerous others, before the two-step analysis can proceed, the risk must be correctly identified. Mischaracterization of the risk is the reason that many RPD decisions have been overturned. An individualized inquiry into a claimant’s personal circumstances is necessary to accurately identify the risk the claimant would be facing if returned to their country so that that risk can then be compared to risks faced generally by others in or from the same country.

Madam Justice Gagné explained the importance of considering evidence of the claimant’s specific circumstances:

[14] The RPD must answer the following question: whether in the context of the alleged present or prospective risks, the applicants provided evidence of their specific circumstances that would make their risk distinct from that of the general population given the widespread presence of gangs in their country.^{Footnote 64}

Failing to take into consideration a claimant’s evidence of their specific situation is a reviewable error. This can happen in a number of ways; some will be described under this general subheading. Failure to conduct an individualized inquiry can be the root cause of error irrespective of whether cases are analyzed in terms of criminal activity, personal targeting or changes to the nature of the risk. Cases in each of these categories will be discussed in greater depth under the more specific subheadings that follow.

In Guerrero,^{Footnote 65} Mr. Justice Zinn found the RPD mischaracterized the risk the claimant was facing by disregarding relevant evidence. The Member did not refer to the risk to the claimant’s life despite evidence that his grandmother was killed when gang members were shooting at the house where the claimant was living, and evidence that the gang reportedly took out a contract on his life:

[29] […] The closest the decision-maker in this case comes to actually stating the risk she finds this applicant faces is the following: "[T]he harm feared by the claimant; that is criminality (recruitment to deliver drugs)...." But this is not the risk faced by the applicant. […] At best, the risk as described forms part of the reason for the risk to the applicant’s life. When one conflates the reason for the risk with the risk itself, one fails to properly conduct the individualized inquiry of the claim that is essential to a proper s. 97 analysis and determination. [emphasis added]

Similarly, in Aguilar,where the Board considered that the claimant’s life was threatened as the result of his resisting recruitment into the Maras, Madam Justice Strickland found that the Board had ignored significant evidence:

[40] […] the Board had no reason to doubt the Applicant’s evidence. That evidence established that the Applicant, a young man, was initially approached by the Maras asking for money, followed by an attempt to recruit him as a member. It also established the occurrence of a subsequent physical altercation and the reaction of the Maras, being to vow revenge for the injury the Applicant had inflicted on one of their own.

[41] Given this, I find that the Board misconstrued or misapprehended the Applicant’s evidence concerning the fight, minimizing the event itself by describing it as a stone throwing incident, and ignored the evidence that his life was threatened because of the injury he inflicted on the Maras member during that fight. The failure to appreciate and analyze this significant evidence, and the resultant change in the nature of the risk to life faced by the Applicant, resulted in an erroneous finding of fact made without regard to the evidence. It further resulted in an unreasonable finding as to the personalized risk to which the Applicant was exposed […].^{Footnote 66}

Madam Justice Mactavish described a different type of error in Tomlinson.^{Footnote 67} This case is significant because it tells us that an individualized inquiry requires consideration not only of the nature of the risk but also of the degree of risk.

[18] The Board further erred in stating that what mattered was whether the risk faced by Mr. Tomlinson was “a type of risk that is also faced by a generality of others in Jamaica…” The question for determination was not just the type of risk faced but also the degree of risk. […][emphasis added]

In Balcorta Olvera,^{Footnote 68} Mr. Justice Shore gave an often-quoted example to illustrate what is meant by degree, or as it is sometimes called, “proximity” of risk: “The risks of those standing in the same vicinity as the gunman cannot be considered the same as the risks of those standing directly in front of him.”

However, the notion of degree or proximity is not limited to physical proximity; it can also refer to time. Comparing risk in terms of temporal proximity, Madam Justice Gleason wrote, “There is in this regard a fundamental difference between being targeted for death and the risk of perhaps being potentially so targeted at some point in the future.” She found that it was both incorrect and unreasonable to conflate the actual risk faced by the claimants with a potential risk that could eventually be faced generally by others in their country.^{Footnote 69}

14.5.2.3.5. Risk arising from criminal activity

As observed by Mr. Justice Zinn in Mendoza, “In examining the nature of the risk, the question is not whether the risk amounts to being a victim of crime.”^{Footnote 70} As many judges have pointed out, the consequence of considering any risk created by criminal activity to be a risk which is faced “generally”, is that almost no claimant from a country with a high rate of criminality will be able to meet the requirements of s. 97(1)(b)​ and to acquire protection under that ground.^{Footnote 71} This is important because most cases where generalized risk is potentially a determinative issue concern claimants from countries where criminality is rampant.

In Correa, Mr. Justice Russell explained that the Court of Appeal was careful to avoid unduly narrowing or broadening the interpretation of s. 97(1)(b). For claimants from countries with a lot of criminality, if “criminality” is considered the risk, the condition would make protection under s. 97(1)(b) virtually unattainable. Conversely, if everyone who faced a prospective risk from criminals were found to be a person in need of protection, the condition would be rendered meaningless:

[50] In my view, careful attention should be paid to the reason the Court of Appeal (in Prophète) gave for declining to answer the certified question: it was concerned that doing so in the circumstances would unduly narrow or broaden the interpretation of s. 97(1)(b)(ii) as it applied to victims of criminal gangs. In view of this, I think it necessary to avoid both extremes in interpreting the provision. At one end of the spectrum this would mean emptying s. 97(1)(b) of any protection for victims of criminal gangs. At the other end would be an interpretation that is so broad that essentially all those with a real and personal risk related to these gangs qualify for protection. The latter may be more in line with Canada’s international human rights obligations, but, in my view, it cannot be reconciled with the language of s. 97(1)(b).^{Footnote 72}

As indicated in Vivero, an individualized inquiry is required to make a determination under s. 97(1)(b):

[25] […] The fact that the risk faced by an applicant arises from criminal activity does not in itself mean that the risk is one faced generally by other individuals in the country - rather, each case must be assessed on its facts to determine if the requirements of section 97 are met, as some risks arising from criminal activity will constitute a general risk, and others will not.^{Footnote 73}

It is instructive to contrast the decisions rendered in two cases, just one day apart, by the same judge, Mr. Justice Rennie. In both cases, the claimants were extorted by, and received death threats from criminal gangs and in both cases, the Board concluded that the applicants would not be subject to a risk not faced generally by others in their respective countries.

In Vivero, the Court upheld the Board’s decision rejecting the claim, finding no fault with Board’s analysis or its conclusion that the claimants had failed to establish that they would be subject to any prospective risk apart from the risk faced generally by other individuals:

[26] In this case, the Board did undertake in individualized inquiry and concluded that the prospective risk faced by the applicants was no more than the general risk faced by other individuals in Mexico. The Board based this conclusion on the finding that the Zetas did not appear to be continuing to search for the applicant, and therefore that gang did not present a continued threat.

[27] Because the Board did not accept the evidence that the Zetas would continue to pursue the applicant, the Board concluded that the future risk faced by the applicants was no more than the general risk of violence from criminal activity faced by all Mexicans. These findings were specific to the applicants’ circumstances, and they were reasonably open to the Board. The Court therefore has no basis to intervene.^{Footnote 74}

It is interesting to note that the Court specifically made a point of explaining that the decision could be different for other victims of gang violence from Mexico, depending on their circumstances - another reminder of the importance of the individualized inquiry.

[30] In this case, the Board’s decision can be upheld, but not for the reason that citizens of Mexico are at a general risk of violence from criminal activity - a section 97 claim could potentially succeed based on a risk from gang violence in Mexico, depending on the circumstances. However, in this case the applicants’ circumstances were considered, and the Board reasonably concluded that they faced no more than a risk faced generally by others in Mexico.^{Footnote 75}

In the Lovato decision rendered the next day,Justice Rennie reiterated basic principles governing the interpretation of s.97(1)(b)(ii), namely that “an individualized inquiry must be conducted in each case, and the fact that the risk to an applicant arises from criminal activity does not in itself foreclose the possibility of protection under section 97.”^{Footnote 76} He found that although the Board said it had undertaken an individualized inquiry, it failed to do so properly because of its misplaced focus on the reasons for which the claimant was being targeted. The Board identified those reasons as the same ones that motivate the MS to target any member of the Salvadoran population. The Court’s view was that the correct focus would have been “the evidence that the MS was specifically targeting the applicant to an extent beyond that experienced by the population at large.”^{Footnote 77} [emphasis added]

14.5.2.3.6. Being “specifically” or “personally” targeted

The case law is clear that victims of random crime do not qualify as persons in need of protection.^{Footnote 78} While threats and extortion cannot be considered “random” when a claimant has been targeted personally by a known adversary,^{Footnote 79} the case law has been less clear on whether a risk could still be qualified as generalized once a person has been specifically or personally targeted.^{Footnote 80}

In April 2007, two years before the Federal Court of Appeal decision in Prophète spoke of the need for an individualized inquiry, Mr. Justice de Montigny overturned the RPD’s decision in the case of Martinez Pineda becausethe RPDfailed to consider the evidence that the claimant, who had been threatened and assaulted after being specifically targeted for recruitment by the Maras Salvatruchas gang, “was subjected to a greater risk than the risk faced by the population in general.”^{Footnote 81}

Soon after Prophète was confirmed by the Federal Court of Appeal, Madam Justice Gauthier rendered her decision in Acosta. She made a clear reference to Prophète when she compared the risk of bus fare collectors in Honduras to wealthy businessmen in Haiti:

“It is no more unreasonable to find that a particular group that is targeted, be it bus fare collectors or other victims of extortion and who do not pay, faces generalised violence than to reach the same conclusion in respect of well known wealthy business men in Haiti who were clearly found to be at a heightened risk of facing the violence prevalent in that country.^{Footnote 82}

Martinez Pineda and Acosta came to be known as the lead cases for what were widely considered two divergent lines of authority. Mr. Justice Shore described the essential difference in their approaches:

[37] The jurisprudence is less settled, however, on whether persons personally targeted by criminal gangs face a generalized risk. One strand holds that claimants who have been specifically targeted face general risk if most of their countrymen (or a subgroup to which they belong) experience that risk generally (Acosta, above). The other is of the opinion that it is unreasonable to accept that a claimant has been specifically targeted and yet, nevertheless, to conclude that the risk is not personal simply because it is widespread in his or her country (Pineda, above).^{Footnote 83}

Not all judges believed that there were two approaches to cases involving personal targeting. They ascribed different outcomes in ostensibly similar cases to the particular facts of each case. In Vivero,^{Footnote 84} Mr. Justice Rennie stated plainly that in his view there was no divergence, that “differences in the outcomes of section 97 cases stem[med] from the need for an individualized inquiry in each case.” In another case two months later, Mr. Justice Mosley refused to certify a question, writing that the “supposed divergence” arose from the varying circumstances in particular cases.^{Footnote 85}

In 2014, Mr. Justice Russell conducted an exhaustive analysis of the case law and came to the same conclusion about personal targeting that he had expressed in an earlier decision:^{Footnote 86}

[45] In my view, the differences between these two lines of cases arise both from different facts and different approaches to interpreting and applying the language of s. 97(1)(b)(ii). I agree with Justice Gleason that whether or not personal targeting is found to have occurred has been an important and even decisive factor in many cases, but there have also been cases where a denial of the claim has been upheld despite a finding of personal targeting or circumstances that clearly demonstrate it. […]

[46] While a full consensus has yet to emerge, I think that there is now a preponderance of authority from this Court that personal targeting, at least in many instances, distinguishes an individualized risk from a generalized risk, resulting in protection under s. 97(1)(b). Since “personal targeting” is not a precise term, and each case has its own unique facts, it may still be the case that “in some cases, personal targeting can ground protection, and in some it cannot” (Rodriguez, 2012 FC 11, at para 105 quoted with approval in Arvevalo Pineda, 2012 FC 493.) […]^{Footnote 87}

To summarize, specific or personal targeting, though it often does, does not systematically provide a basis for protection under s. 97. Concerning specific and personal targeting, Mr. Justice Zinn wrote in Guerrero:

[34] […] This is not to say that persons who face the same or even a heightened risk as others face of random or indiscriminate violence from gangs are eligible for protection. However, where a person is specifically and personally targeted for death by a gang in circumstances where others are generally not , then he or she is entitled to protection under s. 97 of the Act if the other statutory requirements are met.^{Footnote 88} [emphasis added]

It is important to note the qualifiers. “If the other statutory requirements are met” makes it clear that specific and personal targeting alone is not sufficient, the two-step analysis must still be carried out. “In circumstances where others are generally not” refers to the need for an individualized inquiry in the analysis.

Regarding prospective personal risk under s. 97(1)(b), past targeting may be indicative of the likelihood of future risk, but not necessarily. As the Court held in Flores, it is not sufficient for claimants to establish that they were targeted before leaving their country, what they must show is that they risk being targeted if they return to that country. In other words, they must show that their risk is prospective,^{Footnote 89} as required by s. 97(1).

The claimant’s precisely-defined prospective risk then has to be compared to the risk faced generally by others in or from the country. Even victims who are known to, and specifically sought out by the agent of harm, may face a risk that is no different in nature or degree than the risk faced generally by others. This must be assessed in light of the context and particular circumstances of each claimant, to see whether the condition in s. 97(1)(b)(ii) is met.

Though personal targeting is not determinative of whether a risk is generalized, it is nonetheless a relevant factor to consider. In Tomlinson, Madam Justice MacTavish firmly rejected the Board’s finding that “[t]he fact that this claimant has been specifically and personally targeted by the gang is irrelevant to the determination of whether the risk that he faces at their hands is generalized,” stating:

[17] The fact that [the] gang had specifically and personally targeted Mr. Tomlinson was clearly not irrelevant to the determination of whether the risk that he faced was personalized or generalized. Indeed, it is precisely the type of consideration that the Board must take into account in carrying out the individualized inquiry mandated by the Federal Court of Appeal in Prophète. The Board thus erred in failing to properly consider this important fact in its section 97 analysis.^{Footnote 90} [emphasis added]

Another aspect of targeting mentioned in a number of cases is the significance of the reasons for which a person is targeted. Mr. Justice Russell explains in Correa that the reasons may be related to some characteristic of the person targeted, or to the motivation of the person doing the targeting. However, irrespective of the reason a person has been targeted, it is the present and prospective risk that must be assessed:

[56] […] Someone may be initially targeted for extortion because he/she is a shopkeeper, but that is irrelevant to the risk faced now and in the future except to the extent that it provides clues to the nature and extent of the threat objectively considered. It does not matter what personal characteristic of the victim prompted the perpetrator to target them (e.g. youth, perceived wealth or ownership of a business) or what motivates the perpetrator to target anyone in the first place (e.g. increasing wealth through extortion or acquiring “drug mules” through forced recruitment).

[57] The analysis under s. 97 is objective and forward looking. We should not be concerned with what is in the mind of the perpetrator, except to the degree it assists with that analysis. It may well play a role in that sense: if a gang always kills those who report them to police, it will be quite relevant to a risk analysis that this is the “reason” the gang is currently targeting an applicant.^{Footnote 91}

In Komaromi, Mr. Justice Norris warned against conflating the reason for targeting with the risk:

[26] […] In Correa, as in some other cases under section 97, the reviewable error arose from the RPD conflating the reason for targeting with the risk itself (at paras 93-94). Thus, in the case of, say, a business person who had been targeted for extortion, it would be an error for the RPD to find that the risk was generalized because business people generally are targeted for extortion without considering the particular manner in which the claimant had been targeted in the past and whether it gave rise to an ongoing future risk to the claimant personally as compared to others.^{Footnote 92} [emphasis added]

The cases that warn against conflating the “reason for targeting” with the risk itself are usually referring to the motivation of criminals who target victims for financial gain or for the acquisition of new recruits.^{Footnote 93} And although in many countries the original risk of extortion or attempted recruitment would be generalized, a careful analysis of the claimant’s evidence may show that they are not the risks against which the claimant is seeking protection. As will be discussed in the next section, the nature of the risk can change.

When the reason for targeting relates to a personal characteristic of the person targeted, it is likely to be a relevant consideration for the individualized inquiry into that person’s risk. For example, in Ponce Uribe, the reason the Ponce Uribe brothers were targeted was because they ran a business located in premises which suited the particular needs of Los Zetas’ drug operations. The risk they faced if they refused to allow Los Zetas to use the premises was the murder of family members. Mr. Justice Harrington found the RPD’s decision that their risk was generalized to be unreasonable due to an inadequate analysis of the Ponce Uribes’ personal situation. “This is not simply a case in which the Ponce Uribe brothers were targeted because they ran a business. They were targeted because they ran a particular business [….]”^{Footnote 94}

In Barrios Pineda, Madam Justice Snider distinguished between the situation of a doctor who was targeted because he was perceived to have “ratted out” an MS-18 gang member, as opposed to the situation of victims of gangs who were not targeted for any reason personal to them :

[13] In virtually all of the cases cited by the Respondent, the applicants were not targeted personally per se. While the gangs may have known their names, their personal information, and may have even threatened them or assaulted them on a number of occasions, the nature of the threat was still generalized. The gang could have gone after anyone with perceived wealth, or any young person who may be recruited into their gang. These people were essentially means to an end for the gang members. I doubt that it really mattered whether person A or person B gave the gang the money for which they were searching, even if both parties were personally threatened. Similarly, I doubt that it really mattered whether person C or person D joined their cause, provided that they continued to increase their membership. The situation before me is fundamentally different. The Applicant presented a story to the Board of being at risk because he was perceived to be a person who “ratted out” an individual gang member.^{Footnote 95} [emphasis added]

Although the reason for targeting a person may be a factor in the individualized inquiry, it is the present and prospective risk that must be precisely identified and assessed, in accordance with the principles discussed below.

14.5.2.3.7. The nature of a risk can change

It is essential to keep in mind that the specific risk to be identified and later compared to the risk generally faced by others is the prospective risk to which the claimant would be personally subject. The nature of a risk faced by a claimant can, and often does, change.

In countries where crime is rampant, the risks, such as extortion, that a claimant initially experiences can often be characterized as risks that are faced generally. However, when the threats and violence escalate in response to a claimant's failure to comply with demands, it is the new risk (often death) the claimant would be facing that must be assessed.

At one time, there were some cases that characterized the carrying out of threats, or reprisals for failure to comply with demands, as “consequential harm” or “resulting risk.”^{Footnote 96} The reasoning in these cases was that if the risks stemmed from generalized risks such as extortion or forced recruitment, they were part and parcel of the original generalized risk.

For example, regarding reprisals for reporting extortion to the police, Mr. Justice Rennie stated in Flores Romero:

[18] Counsel, creatively, argues that the fact that the applicant sought to resist the extortion by reporting it to the police makes him unique, or brings him within a unique or discreet sub-group of the general population and hence within subsection 97(1)(b)(ii). In my view, the risk or threat of reprisal cannot be parsed or severed from the demand for payment. The act of criminality is established on the demand of payment and implicit or explicit threat of reprisal for failure to pay. The fact that the threat is implemented or the victim reports the extortion does not bring them outside of the operative words of subsection 97(1)(b)(ii), namely whether the threat they face is generalized. ^{Footnote 97} [emphasis added]

Madam Justice Simpson agreed with similar reasoning in Wilson, a case in which the claimant was shot after he refused to meet gang members' demands for protection payments. The RPD determined that the claimant feared generalized crime and violence in Jamaica, holding that the shooting and subsequent threats of violence were “part and parcel” of the gang's criminal extortion business rather than a personal vendetta against the claimant. The Court accepted the Respondent's submission that “the [claimant's] refusal to pay the gang members and their subsequent violence is part of the ongoing criminal act of extortion, since anyone who refuses to pay is subject to reprisals.”^{Footnote 98}

In March 2014, Mr. Justice Russell signalled the end of this line of cases when he spoke of an emerging consensus that it is an error to dismiss risks as “merely extensions of,” “implicit in” or “consequential harm resulting from” an initial risk that was generalized:

“It is an error to dismiss reprisals or the carrying out of threats as merely “consequential harm” or “resulting risk” stemming from the initial risk of extortion or forced recruitment.”^{Footnote 99} [emphasis added]

Two months later, Mr. Justice de Montigny endorsed the principle in this paragraph as a “complete answer” to the Respondent's argument that the fact that criminals may act on their threats when people refuse to pay extortionists does not bring them outside of a generalized risk.^{Footnote 100}

Without referring to the cases expressing Justice Russell's view,^{Footnote 101} the Court the following year in Galeas,^{Footnote 102} rejected the reasoning in Wilson. The claimant argued that the Board had erred by characterizing the risk he faced as a generalized risk of extortion due to his perceived wealth. He maintained that Board had failed in its obligation to examine whether the general risk he faced from criminality had escalated to a personal risk in light of his specific circumstances. The Respondent cited Wilson as supportfor the proposition that the threats and violence against the claimant after he refused to pay were part of the ongoing criminal act of extortion, since anyone who refused to pay was subject to reprisals. Mr. Justice O'Keefe rejected the Respondent's argument, finding that the Board's characterization of the risk faced by the claimant was unreasonable; the claimant's risk had escalated from a generalized risk to a personalized risk when the gang made threats against his children and caused the death of his brother.

14.5.2.3.8. Comparing the claimant’s risk

As Madam Justice Gleason wrote in Ortega Arenas,once the precise prospective risk facing the claimant has been established and it qualifies as a risk under s. 97(1)(b), then the next step is to compare that risk to the risk faced generally by others in or from the same country:

[9] As I held in Portillo, section 97 of the IRPA mandates the following inquiry. First, the RPD must correctly characterize the nature of the risk faced by the claimant. This requires the Board to consider whether there is an ongoing future risk, and if so, whether the risk is one of cruel or unusual treatment or punishment. Most importantly, the Board must determine what precisely the risk is. Once this is done, the RPD must next compare the risk faced by the claimant to that faced by a significant group in the country to determine whether the risks are of the same nature and degree.^{Footnote 103}

In Osario the Court considered whether "faced generally" required the entire population of a country to be facing the risk. In Osario, Madam Justice Snider stated:

[24] It seems to me that common sense must determine the meaning of s. 97(1)(b)(ii) […]

[26] Further, I can see nothing in s. 97(1)(b)(ii) that requires the Board to interpret "generally" as applying to all citizens. The word "generally" is commonly used to mean "prevalent" or "wide-spread". Parliament deliberately chose to include the word "generally" in s. 97(1)(b)(ii), thereby leaving to the Board the issue of deciding whether a particular group meets the definition. Provided that its conclusion is reasonable, as it is here, I see no need to intervene.^{Footnote 104}

In Innocent^{Footnote 105} and again in Batalla Rodriguez,^{Footnote 106} the Court rejected the Applicants' arguments that the Osario interpretation was wrong and that "generally" was meant to refer to the entire population of the country of reference.

It is thus clear that a risk experienced by only a part of the population of a country is considered generalized if the subgroup is large enough that the risk posed to its members can be said to be widespread or prevalent. However, case law provides little guidance as to how many members are required to constitute a significant group. Some guidance is provided by Mr. Justice Crampton in Paz Guifarro:

[33] […] In my view, a subgroup of such persons numbering in the thousands would be sufficiently large as to render the risk they face widespread or prevalent in their home country, and therefore "general" within the meaning of paragraph 97(1)(b)(ii), even though that subgroup may only constitute a small percentage of the general population in that country.^{Footnote 107}

Examples from case law of subgroups for the purposes of s. 97(1)(b)(ii) include: business people such as shopkeepers;^{Footnote 108} bus drivers and fare collectors;^{Footnote 109} delivery drivers and transportation business operators;^{Footnote 110} the Haitian diaspora or Haitian returnees;^{Footnote 111} parents who fear their children might be kidnapped;^{Footnote 112} and young men subject to gang recruitment.^{Footnote 113}

While a person claiming protection under s. 96 can establish a serious possibility of persecution by showing that similarly situated individuals have been or are persecuted,^{Footnote 114} under s. 97(1)(b), the treatment of others belonging to the same subgroup as the claimant cannot be used to prove that on a balance of probabilities, that claimant would personally be subject to a risk to life or to cruel and unusual treatment or punishment.^{Footnote 115}

In many of the cases that come before the Board, the claimant (or appellant at the RAD) is a member of a subgroup that is targeted more frequently than the general population in the country. For example, subgroups of persons perceived to be wealthy or to have ready access to cash are more likely than others to be the victims of extortionists or kidnappers for ransom. However, s. 97(1) is concerned exclusively with the personal risk of an individual claimant. Where the claimant is considered to be a member of a subgroup, the condition in s. 97(1)(b)(ii) calls for the comparison of that individual claimant's risk vis-à-vis the risk facing others within the same subgroup. Mr. Justice Russell in Correa cautioned against what he called "subgroup analysis":

It is an error to treat the s. 97(1)(b) analysis as a "sub-group" analysis rather than an individualized assessment. The point is not to identify what "sub-group the applicant belongs to and then assess the risk faced by that subgroup, but to assess the risk faced by the applicant and then determine whether it is one "faced generally by individuals in and from" the country in question.^{Footnote 116}

Thus, when the claimant can be considered a member of a subgroup, the question is not whether the subgroup faces a heightened risk but whether the prospective risk faced by the claimant can be distinguished from risk faced generally. This distinction between a heightened risk for a subgroup, as opposed to the risk for an individual within the subgroup can be seen in Acosta, where the Court found it reasonable to conclude that the claimant, a bus fare collector in Honduras, was facing a generalized risk. The documentary evidence confirmed that bus fare collectors were frequently subject to extortion by the MS gang and to the violence that resulted from not paying. The Court considered the claimant's situation analogous to that of a successful businessman in Haiti where persons who were perceived as wealthy were members of a subgroup at heightened risk:

It is no more unreasonable to find that a particular group that is targeted, be it bus fare collectors or other victims of extortion and who do not pay, faces generalised violence than to reach the same conclusion in respect of well known wealthy business men in Haiti who were clearly found to be at a heightened risk of facing the violence prevalent in that country.^{Footnote 117}

An individual claimant's risk, however, may be distinguished from risk faced generally on the basis of its greater, or heightened, degree.^{Footnote 118} In Romero Aguilar,^{Footnote 119} the Board member found the claimant's allegations of extortion and death threats were credible but rejected his claim, saying that he was guided by the Court to find that even a heightened risk was generalized and therefore came under the exception in s. 97(1)(b)(ii). Mr. Justice Zinn identified two errors in the member's analysis: first, his failure to precisely identify the risk facing the claimant by making no mention of the reason the gang was so determined to kill him; and second, his misapprehension concerning heightened risk, believing that it was always generalized:

[9] This Court has not held that all heightened risks due to targeting are still generalized risks; it has held that heightened risks due to targeting may still be generalized if, based on the documentary evidence, that heightened risk is one a sufficiently large number of individuals face. Indeed, this Court could not make such a pronouncement. Deciding the issue of whether a heightened risk is faced by a large enough number of individuals in any given country involves, first, an assessment of the facts unique to each case and each country.

…

[11] As a result of its error, the Board never engages with any of the documentary evidence about Mexico to assess how many individuals are facing the kind of risk it seems to accept is facing Mr. Aguilar. It may be that a sufficiently large number of Mexicans face this kind of imminent and targeted risk of death or harm by criminals for the reason that the Applicant here does such that it is a risk generally faced by others, but that determination involves first a determination of fact based on the documentary evidence about Mexico which the Board must make. That factual determination cannot simply be taken for granted based on what is no more than a simple proposition that a heightened risk may still be a generalized risk. It may, or it may not be. [emphasis added]

Comparing a claimant's risk to the risk faced generally, involves looking for a difference in the nature or the degree of the risk. In the sections above, there are many examples of cases where the failure to conduct an individualized inquiry resulted in overlooking significant differences. Evidence that a claimant's specific circumstances differ from those of the general population or others in their subgroup, has been considered to affect the "nature" of the risk faced by the claimant. In other cases it is the "degree" of risk, its proximity, that differentiates a claimant's risk from the risk faced generally.

Here are a few more examples of cases in which the Court found that the claimant's risk was distinguishable from the risk faced generally:

Richards^{Footnote 120} is a case where the Minister sought review of the Board's finding that the nature of the claimant's risk to life was not shared by other Jamaicans. Mr. Richards had been labelled a "rat" and was targeted for retaliation in Jamaica after testifying against criminals in Canada. The Court stated:

[24] The respondent's situation is also, I believe, distinct from that of others in the general population in Jamaica who are at risk of generalized crime and violence: he was a key Crown witness contributing to the conviction and sentencing of two men, originally from Jamaica, for a revenge murder. News of Mr. Richards' participation in the trial had spread very quickly to Jamaica; his relatives had been wounded and in one case killed in a shooting which may have been connected to the threats he had been receiving. He himself had been shot at and threatened after being removed to Jamaica. These factors made his risk a personalized one and the Board's finding to that effect was not unreasonable or erroneous in law.

In Aguilar Zacarias,^{Footnote 121} the claimant was a vendor in a market where the MS gang was extorting money from the vendors. The Board found that the claimant's risk was generalized, as he was part of a category of people who were regularly targeted by street gangs. The Court held that the Board erred by failing to take into account that the claimant, along with Mr. Vicente, a fellow vendor, warned the market's security service, who in turn informed the police of the ongoing extortion by gang members, resulting in the arrest of one of them. During his detention, other gang members informed the claimant and Mr. Vicente that they knew who was at the source of the complaint and they made threats to the vendors' lives. During a confrontation with gang members, Mr. Vicente was shot and died from his wounds. Mr. Justice Simon Noël wrote:

[17] […] It appears that the Applicant was not targeted in the same manner as any other vendor in the market: reprisal was sought because he had collaborated with authorities, refused to comply with the gang's requests and knew of the circumstances of Mr. Vicente's death.

In Dieujuste-Phanor,^{Footnote 122} the applicants feared harm at the hands of men who accused the principal applicant, a nurse, of failing to admit a patient into her hospital and threatened revenge. Her children, the minor applicants, were kidnapped but released when their parents paid the ransom demanded. The principal applicant also feared the kidnappers' threats to kill her. The RPD defined the risk faced by the applicants as a "risk of kidnapping," and rejected the claim on the basis that kidnapping was a risk faced generally by other individuals in Haiti. The Court found that the RPD did not fully analyse either the principal applicant's evidence that the kidnappers had threatened her as a result of the incident at the hospital and because she had reported the kidnapping to the police; or her husband's evidence that he was repeatedly threatened by individuals looking for the principal applicant after she and her two children had left Haiti. Consequently, it failed to appreciate that the applicants were not targeted in the same manner as any other person in Haiti.

In Garcia Vasquez,^{Footnote 123} a young man from El Salvador was originally targeted by a criminal gang for recruitment. After joining an anti-gang military task force, he was assaulted and threatened with death in retaliation for his part in apprehending gang members. The Federal Court found this latter risk was not faced by other young men in the armed forces or in the population at large.

In Alvarez Castaneda,^{Footnote 124} a shop owner from Honduras was beaten and shot and left for dead after he was unable to make extortion payments demanded by the Mara Salvatrucha. He alleged that if he were to return to Honduras, the gang would not just pursue him for money but would seek to kill him since he represented the gang's failure to kill people which they targeted: he was, in effect, "living proof of their ineptitude." The Court held that the Board failed to give appropriate consideration to the evidence of personal risk to the claimant.

In Monroy Beltran,^{Footnote 125} the Court found that the Board failed to conduct the required individualized inquiry, and erroneously concluded that the claimant's risk of forced recruitment was the same as many other young boys in Colombia. Although there was a general risk of forced recruitment because the FARC targeted boys indiscriminately to fill its ranks, the claimant's situation was different. He was specifically targeted for forced recruitment because his father had refused to pay the obligatory contribution demanded by the FARC.

In Portillo,^{Footnote 126} the applicant was targeted, threatened, assaulted and stabbed by members of the Mara Salvatrucha [the MS]. Madam Justice Gleason disagreed with the RPD's conclusion that the risk the applicant faced was a generalized one since gang-related crime is rampant in El Salvador:

[50] […] the applicant in this case faced a heightened and different risk not faced by other young men in El Salvador because the MS had threatened him in order to obtain retribution for his having spoken to the police and provided Carlos' mother's address to them. Carlos was shown to have joined the MS and he personally made a death threat to the applicant. The applicant's situation was thus fundamentally different from that of others, who might be generally at risk of recruitment, threats or even assault by the MS. The applicant, though, was found to directly and personally face the risk of death. This is a far cry from the risk of extortion, recruitment or assault and thus the applicant's risk is much more significant and more direct than that faced by other men in El Salvador. Accordingly, the RPD's decision is both unreasonable and incorrect.

The proximity of risk, in the physical or temporal sense, is a critically important factor to consider. In Ortega Arenas,^{Footnote 127} Madam Justice Gleason addressed the comparison of risk in terms of its temporal proximity:

[14] The focus of the second step in the inquiry is to compare the nature and degree of the risk faced by the claimant to that faced by all or a significant part of the population in the country to determine if they are the same. This is a forward-looking inquiry and is concerned not so much with the cause of the risk but rather with the likelihood of what will happen to the claimant in the future as compared to all or a significant segment of the general population. […] There is in this regard a fundamental difference between being targeted for death and the risk of perhaps being potentially so targeted at some point in the future. Justice Shore provides a useful analogy to explain this difference in Olvera (2012 FC 1048), where he wrote at para 41, "The risks of those standing in the same vicinity as the gunman cannot be considered the same as the risks of those standing directly in front of him".

The judge went on to say that to conflate the actual risk faced by a claimant with a potential risk faced by all others in Mexico is both an incorrect and unreasonable interpretation. In other words, when comparing risks, what must be considered is whether a significant number of others are presently facing the same risk, not whether they could, or are even likely to be facing that risk sometime in the future.

Correa^{Footnote 128} is another case of a businessman whose life was at risk after he reported to police that he had been threatened for resisting extortion demands. Mr. Justice Russell set out some principles extracted from jurisprudence concerning the comparison of risk:

• It is an error to conflate the reason for the risk with the risk itself or to ignore differences in the individual circumstances of persons who may be targeted for the same reasons. The motivation of the perpetrator is not relevant to the analysis, except to the degree that it helps to assess the nature and degree of the risk, considered objectively and prospectively.
• When considering whether an applicant faces the same risk as the population generally (or a significant sub-group of the population), both the nature of the risk and proximity to the risk (or degree of risk) must be considered.

The RPD found that Mr. Correa was a victim of attempted extortion and that the resulting threat of harm or risk to life was a generalized risk faced by others who are perceived to be successful business people in Colombia and refuse to submit to the demands of criminal gangs. However, Justice Russell stated that the evidence was clear that the risk Mr. Correa faced was not a risk of extortion. "[T]he nature of the risk he faced had fundamentally changed."

[94] […] The original motivation of the gang in targeting Mr. Correa (extortion) does not define his risk. Rather, the Board was obligated to look at his present risk in both nature and degree and determine if it is fundamentally the same or different from that faced by the population generally, or some significant sub-group. The fact that this risk may have stemmed from extortion is irrelevant, except to the extent that it helps to objectively assess the nature and degree of the risk. Mr. Correa faced a risk that he and his family would be killed because he had refused the gang's demands and reported them to police. Business owners faced a risk that they would be extorted. The general population faced a risk that various demands (on pain of violence) would be made of them by various gangs. These are not the same risks. As outlined above, determining whether a risk is the same requires consideration of both the nature and the degree of the risk. [citations omitted]

[95] It would perhaps be open to the Board to show that there were enough individuals in essentially the same position as Mr. Correa vis-à-vis the risk he faced from Los Paisas to make his risk a generalized one – that is, that his risk is similar in nature and degree to a sufficient number of people to make it a widespread or prevalent risk. However, I do not think this was the basis of the Board's Decision, nor did it cite evidence that could reasonably support such a conclusion. Instead, the analysis equated the Applicants' situation with that of individuals who face a fundamentally different and less proximate risk.

14.5.2.4.1. Punishment

The United States v. Burns^{Footnote 137} is an extradition case that provides useful guidance regarding capital punishment. The issue before the Supreme Court of Canada was whether it would violate the principles of fundamental justice, and thus be contrary to section 7 of the Charter, to extradite two Canadians accused of brutal murders in Washington State without first obtaining assurances that the death penalty would not be imposed if they were convicted. The Supreme Court reviewed the factors for and against unconditional extradition before concluding that assurances are constitutionally required in all but exceptional cases.

In considering the respondents’ argument that their unconditional extradition to face the death penalty would “shock the Canadian conscience”, the Court observed that “An extradition that violates the principles of fundamental justice will always shock the conscience. The important inquiry is to determine what constitutes the applicable principles of fundamental justice in the extradition context.” [SCC’s emphasis] Examples of punishments that could violate our sense of fundamental justice included death by stoning for adulterers or lopping off the hands of a thief.^{Footnote 138}

Although the Court was not required to take a position on whether or not capital punishment constituted cruel and unusual treatment or punishment under s. 12 of the Charter, it considered that the death penalty had been abolished in Canada and found that in the Canadian view of fundamental justice, capital punishment was unjust. With regard to the question of accepted international standards, the Court examined important initiatives in the international community denouncing the death penalty but concluded:^{Footnote 139}

[89] This evidence does not establish an international law norm against the death penalty, or against extradition to face the death penalty. It does show, however, significant movement towards acceptance internationally of a principle of fundamental justice that Canada has already adopted internally, namely the abolition of capital punishment.

The question of whether indefinite detention is cruel and unusual treatment was considered by the Supreme Court of Canada in Charkaoui,^{Footnote 140} where the issue was the constitutionality of the IRPA’s security certificate provisions. The Court’s analysis included the IRPA provisions regarding detention pursuant to a security certificate. Noting that although in principle, the IRPA imposes detention only pending deportation, in fact, detention could prove to be lengthy, possibly indeterminate. The Court referred to a decision of the European Court of Human Rights regarding the circumstances in which it considered indefinite detention would be cruel and unusual:

98. …[I]t has been recognized that indefinite detention in circumstances where the detainee has no hope of release or recourse to a legal process to procure his or her release [emphasis added] may cause psychological stress and therefore constitute cruel and unusual treatment: Eur. Court H.R. [European Court of Human Rights], Soering case, judgment of 7 July 1989, Series A, No. 161, at para. 111. … However, for the reasons that follow, I conclude that the IRPA does not impose cruel and unusual treatment within the meaning of s. 12 of the Charter because, although detentions may be lengthy, the IRPA, properly interpreted, provides a process for reviewing detention and obtaining release and for reviewing and amending conditions of release, where appropriate.

14.5.2.4.2. Prison Conditions

When the punishment involves incarceration, it is also necessary to consider whether prison conditions render the punishment cruel and unusual. Mr. Justice Mosley allowed the application for judicial review in Kilic,^{Footnote 141} because, despite evidence from the Turkish Ministry of National Defence stating that the applicant was facing a "serious prison sentence" for evading Turkish military service, the Board did not address the country documentation and other evidence related to prison conditions in Turkey in order to determine whether the applicant would be a "person in need of protection" if returned to that country.

Similarly, in Asgarov,^{Footnote 142} the Court found that the determinative issue was the RAD’s failure to consider prison conditions in Azerbaijan. whether this might support Mr. Asgarov’s claim for protection under s 97 of the IRPA”:

[17] There was evidence before the RAD that prison conditions in Azerbaijan are “sometimes harsh and potentially life threatening due to overcrowding, inadequate nutrition, deficient heating and ventilation, and poor medical care.” Some Azerbaijani prisons are Soviet-era facilities which do not meet international standards. While awaiting trial, detainees are held in crowded basement detention facilities below the local courts. Guards may punish prisoners with beatings and isolation.

In Usta,^{Footnote 143} where the applicant claimed that if he refused to perform his military service, he would be jailed and that jails in Turkey were brutal, Mr. Justice Phelen held that “[t]he fact that the law is more harsh than laws in Canada or that Turkish prisons are not of the same standard as Canadian prisons is not sufficient to establish this ground under section 97.” [emphasis added] The Court further found that “[i]t was open to the Board to find, on the evidence, that the Turkish law, its application and its consequences, including prison treatment, did not rise to the section 97 threshold.”

In Lebedev,^{Footnote 144} the Federal Court indicated that prison conditions should be measured against objective standards. The applicant submitted evidence showing that Russian prison conditions were extremely harsh and even life threatening. Mr. Justice de Montigny found the PRRA officer’s comparative approach to analyzing prison conditions problematic:

[96] ... the PRRA officer who decided Mr. Lebedev’s application actually accepted that Russian prison conditions did not meet government standards. While she noted they are improving, that was a comparative analysis – evaluating conditions compared with previous years. The analysis ought to have been normative, and the officer should have therefore asked whether conditions met objective standards.

14.5.2.4.3. Exit Laws

Punishment for violating a country’s exit laws is most often examined under s. 96, as the usual allegation is that exit laws are used to punish imputed political opinion. However, where there is no nexus, punishment for violating exit laws may be examined under s. 97(1).^{Footnote 145} In such cases, the analysis will unfold in same manner described earlier in this section, namely, whether the punishment would amount to cruel and unusual treatment or punishment, and if it is pursuant to a lawful sanction, whether it would be imposed in disregard of accepted international standards. Thus, disproportional or extra-judicial punishment for an illegal exit could constitute a basis for acceptance under s. 97(1).

14.5.2.4.4. Military Service

In the context of failure to perform military service, the Federal Court has stated that a separate section 97(1)(b) analysis is necessary to assess possible sanctions.^{Footnote 146}

In Asgarov,^{Footnote 147} the 30 year-old applicant claimed to fear persecution, and cruel and unusual punishment, due to his evasion of military service, which is mandatory for Azerbaijani men between the ages of 18 and 35. The RAD found Mr. Asgarov would be prosecuted upon his return to Azerbaijan and might face up to two years’ imprisonment. The Court remitted the matter back to the RAD to consider the evidence of prison conditions in Azerbaijan and whether that evidence might support Mr. Asgarov’s claim for protection under s. 97(1).