Should We Presume State Protection?

Authors

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

DOI:

https://doi.org/10.25071/1920-7336.40407

Abstract

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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Published

2016-11-23

How to Cite

Hathaway, J. C., & Macklin, A. (2016). Should We Presume State Protection?. Refuge: Canada’s Journal on Refugees, 32(3), 49–53. https://doi.org/10.25071/1920-7336.40407