If you were forced to join a militia as a child, the Canada Border Services Agency (CBSA) may try to exclude you from refugee protection under Section 98 of the IRPA (incorporating Article 1F(a) of the Refugee Convention) for complicity in war crimes. However, Canadian law strongly recognizes the defence of duress, meaning individuals forcibly conscripted as minors generally lack the legal intent to be held complicit.
Seeking asylum in Canada after escaping a violent civil war is a traumatic journey. The situation becomes legally disastrous when a refugee claimant is suddenly accused of being a perpetrator rather than a victim. Under Section 98 of the Immigration and Refugee Protection Act (IRPA), which incorporates Article 1F(a) of the Refugee Convention, Canada excludes anyone who has committed war crimes or crimes against humanity from receiving refugee status. The Canada Border Services Agency (CBSA) strictly enforces this rule. Unfortunately, their initial screening often flags individuals who were kidnapped and forcibly conscripted into rebel militias as children, treating them as dangerous criminals instead of survivors of severe abuse. 🚨
Defending against a Section 98 exclusion requires highly advanced legal strategy at the Immigration and Refugee Board (IRB). The Supreme Court of Canada has clearly ruled that “guilt by association” is not enough to exclude someone; there must be evidence of a significant and knowing contribution to the group’s crimes. For child soldiers, the defense focuses heavily on the age of the claimant at the time of the events and the absolute duress they faced. Whether you are dealing with a CBSA intervention in Toronto, Calgary, or Ottawa, establishing that a minor had no choice but to obey orders under threat of death is the key to securing protection. ⚖
Step-by-Step Process for Defending a Section 98 Exclusion
Facing the Minister’s counsel (representing CBSA) at a refugee hearing is intimidating. The burden of proof shifts dramatically, and the hearing essentially becomes a complex trial regarding international criminal law. Here is the legal process your refugee lawyer will use to fight the exclusion. 📝
Step 1: The Minister’s Notice of Intervention
The process usually begins when CBSA reviews your initial Basis of Claim (BOC) form and notices you mentioned being part of an armed group. The Minister will file a formal Notice of Intervention with the Refugee Protection Division (RPD). This notice states that the government will actively participate in your hearing for the sole purpose of proving you fall under Section 98 and should be excluded. 📄
Step 2: Establishing Minor Status and Forced Conscription
Your lawyer’s first line of defence is proving your age at the time of conscription. International law and Canadian jurisprudence generally agree that children (under 18) lack the legal capacity to consent to joining an armed group or participating in war crimes. You will need to provide birth certificates, school records, or family affidavits proving you were a minor when the militia forced you into their ranks. 🤔
Step 3: Building the Defence of Duress
Even if you were forced to commit violent acts, the legal defence of duress can save your claim. Your lawyer must demonstrate that you faced an immediate threat of death or severe bodily harm if you refused the commanders’ orders. Furthermore, you must prove that there was absolutely no safe avenue for escape. Testifying about the extreme violence the militia used against anyone who tried to run away is critical evidence of duress. 🔍
Step 4: The Contested RPD Hearing
During the hearing, the CBSA officer will aggressively cross-examine you. They will try to find inconsistencies in your story or prove that you voluntarily stayed with the group after becoming an adult. Your lawyer will protect your rights during this interrogation and present psychological assessments showing the trauma of child soldiering. If the RPD member agrees that duress applies, the Section 98 exclusion is defeated, and you can be recognized as a Convention Refugee. 🗟
How Much Does it Cost to Defend an Exclusion Case?
Section 98 exclusion cases are among the most difficult files in Canadian immigration law. You cannot navigate this without a highly experienced lawyer. Here is an estimate of costs in Canadian dollars (CAD). 💲
- Complex Legal Retainer: Hiring a senior refugee lawyer to defend against a Minister’s intervention typically costs between $10,000 and $25,000 CAD due to the massive amount of international legal research required.
- Psychological Reports: Obtaining a detailed clinical assessment from a trauma psychologist to prove you suffered from PTSD and duress generally costs $2,000 to $4,000 CAD.
- Legal Aid Option: If you are completely destitute, provincial Legal Aid programs may cover this, but you must specifically request a lawyer who is experienced in exclusion files.
How Long Does the Process Take?
When CBSA intervenes in a refugee claim, the standard processing times are completely derailed. The government often requests multiple postponements to gather intelligence or analyze your file. From the time you submit your claim, waiting for a highly contested Section 98 exclusion hearing can easily take 1.5 to 3 years. If the RPD rules against you, the appeals process at the Federal Court can add an additional 1 to 2 years before a final deportation decision is reached. ⏱
Frequently Asked Questions (FAQ)
What if I was a cook or a porter, not a fighter?
The Supreme Court ruled in the ‘Ezokola’ decision that you must have made a significant and knowing contribution to the group’s crimes. Merely being a forced cook or porter generally does not meet the threshold for complicity in war crimes.
Can I appeal a Section 98 decision to the RAD?
Yes. Claimants who have been excluded by the Refugee Protection Division (RPD) under Section 98 of the IRPA, including child soldiers facing allegations under Article 1F(a), have the full right to appeal the decision to the Refugee Appeal Division (RAD). The standard statutory exceptions to the right of appeal under the IRPA do not bar individuals excluded under Section 98 from seeking a RAD appeal, which must be launched within the strict 15-day deadline.
Can they exclude me if I stayed with the group after turning 18?
This is a dangerous legal grey area. If you remained with the militia voluntarily as an adult and rose through the ranks, CBSA will argue that the defence of being a child soldier no longer applies, making your duress argument much harder to win.
Will I be sent to prison in Canada?
Section 98 of the IRPA is an immigration exclusion, not a criminal conviction. If you are excluded, you will not go to a Canadian criminal prison, but you will be issued a deportation order and barred from remaining in Canada.
Can I apply for a Pre-Removal Risk Assessment (PRRA) if excluded?
Yes, but with severe limitations. If excluded under Section 98, a PRRA will only evaluate your risk of torture or death back home. Even if approved, you do not get Permanent Residence; you only receive a temporary ‘stay of removal.’
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