Section 97 — Person in need of protection
Text of provision
(1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.
Plain English
Section 97 provides a complementary protection ground to s 96. A person in Canada is a "person in need of protection" if their removal would subject them personally to:
- s 97(1)(a) — a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
- s 97(1)(b) — a risk to their life or a risk of cruel and unusual treatment or punishment, if the risk exists in every part of their country and is not faced generally by other individuals in or from that country.
The risk under s 97(1)(b) must be personalised — a risk that is generally faced by the population of the country does not qualify unless it is for a reason other than the person's race, religion, nationality, membership in a particular social group, or political opinion.
Practical effect
Section 97 fills gaps in the s 96 refugee definition. It applies where the risk of serious harm does not arise from a Convention ground but is nonetheless serious and personal. For example, a person at risk of torture by a criminal gang for a purely personal reason would not qualify under s 96 but might qualify under s 97.
The standard of proof under s 97 is "balance of probabilities" for the underlying facts, with the risk assessed on a prospective basis. Unlike s 96, s 97 does not require a nexus to a Convention ground — only that the risk is personal and not generally faced.