Should We Presume State Protection?


  • James C. Hathaway University of Michigan Law School
  • Audrey Macklin University of Toronto Law School



Canada, Supreme Court, Ward decision, refugee law, state protection


Professors Hathaway and Macklin debate the legality of the “presumption of state protection” that the Supreme Court of Canada established as a matter of Canadian refugee law in the Ward decision. Professor Hathaway argues that this presumption should be rejected because it lacks a sound empirical basis and because it conflicts with the relatively low evidentiary threshold set by the Refugee Convention’s “well-founded fear” standard. Professor Macklin contends that the Ward presumption does not in and of itself impose an unduly onerous burden on claimants, and that much of the damage wrought by the presumption comes instead from misinterpretation and misapplication of the Supreme Court’s dictum by lower courts.


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Author Biographies

James C. Hathaway, University of Michigan Law School

James C. Hathaway is James E. and Sarah A. Degan Profes-sor, and director, Program in Refugee and Asylum Law at the University of Michigan. The author may be contacted at

Audrey Macklin, University of Toronto Law School

Audrey Macklin is professor of law and chair in Human Rights at the University of Toronto. The author may be con-tacted at



How to Cite

Hathaway, J. C., & Macklin, A. (2016). Should We Presume State Protection?. Refuge: Canada’s Journal on Refugees, 32(3), 49–53.

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