Rewriting Febles, Decolonialising Exclusion

Article 1F(b) of the 1951 Convention relating to the Status of Refugees denies refugee protection to persons who have committed a “serious non-political crime.” In Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, a majority of the Supreme Court of Canada held that the “seriousness” of a crime is to be determined based on the offence at the time it was committed. Later developments, such as serving a sentence or rehabilitation, do not factor in the analysis. Febles remains the leading apex court decision on determining seriousness. We argue the majority’s analysis creates the potential for both material and epistemic injustice. We then rewrite Febles by drawing on criminal law theory and a variety of critical perspectives, most notably critical race theory, decolonial theory, and Third World Approaches to International Law. On our rewrite, crimes meet the threshold of “seriousness” if they represent an intrinsic threat to the civil order of any State, hence indirectly a threat to the international order. Exclusion holds refugee status in abeyance until the goals of criminal justice have been met with respect to such crimes. If they have, either through formal or informal means, a claimant should not be excluded.