Security inadmissibility (s 34)
Overview
Section 34 of the Immigration and Refugee Protection Act (IRPA) renders a permanent resident or foreign national inadmissible to Canada on security grounds. The main s 34 grounds are: engaging or having engaged in acts of espionage, subversion against a democratic government, terrorism, or acts of violence; or being a member of an organisation that there are reasonable grounds to believe engages, has engaged, or will engage in such activities. A person inadmissible under s 34 has no right of appeal to the IAD.
Security inadmissibility under s 34 is one of the most serious inadmissibility grounds in Canadian law. The standard of proof is "reasonable grounds to believe" — a lower standard than the balance of probabilities. This means that a person can be found inadmissible even without a conviction, based on intelligence information or circumstantial evidence.
The breadth of the membership provision — which can capture persons who were involuntary members, nominal members, or members who were unaware of the organisation's unlawful activities — has been a significant area of litigation.
Legal basis
- IRPA s 34(1)(a) — being a danger to Canadian security
- IRPA s 34(1)(b) — engaging in espionage or subversion against a democratic government, institution or process
- IRPA s 34(1)(c) — engaging in, or being instrumental to, the overthrow of a government by force
- IRPA s 34(1)(d) — engaging in terrorism
- IRPA s 34(1)(e) — being a danger to the security of Canada
- IRPA s 34(1)(f) — being a member of an organisation that there are reasonable grounds to believe engages, has engaged, or will engage in acts referred to in paragraphs (a) to (e)
- IRPA s 34(2) — Ministerial relief: the Minister of Public Safety may declare that a person is not inadmissible under s 34 if they satisfy the Minister that their presence in Canada would not be detrimental to the national interest
- IRPA s 64 — no right of appeal to IAD for persons found inadmissible on security grounds
How it works
The membership ground (s 34(1)(f))
The membership ground is the most commonly litigated s 34 provision. It captures persons who are or were members of an organisation that engages in security-related activities, even if the person did not personally participate in those activities. Key issues include:
- What is "membership"? The Federal Court has held that membership need not be formal; involvement or association with the organisation may suffice. However, merely sharing views with an organisation is generally not enough.
- Involuntary membership: persons who were forced to join or who had no practical choice (e.g., conscripted members) may still be found inadmissible — but this is a factor in Ministerial relief applications
- Past membership: the provision extends to past membership ("there are reasonable grounds to believe has engaged")
Standard of proof
The standard for a s 34 finding is "reasonable grounds to believe" — more than mere suspicion but less than balance of probabilities. In practice, the standard can be met by intelligence information that would not be admissible in a criminal court.
Ministerial relief (s 34(2))
A person inadmissible under s 34 may apply to the Minister of Public Safety for Ministerial relief. The Minister may declare the person not inadmissible if their presence in Canada would not be detrimental to the national interest. This is a high bar. Factors considered include the person's circumstances, the nature of the organisation, the person's level of involvement, and the time elapsed since membership.
Interaction with refugee protection
A person may be both a refugee and inadmissible under s 34. In such cases, Canada's non-refoulement obligations may prevent removal even though the person is inadmissible. The tension between security inadmissibility and non-refoulement obligations is managed through Ministerial relief and the Security Certificate process.