Are IRGC conscripts "members" of a terrorist organization under Canadian law?

It was in June of earlier this year that Canada officially listed the Islamist Revolution Guard Corps or “IRGC” as a terrorist entity under the Criminal Code.

Canadians and immigrants alike are subject to criminal prosecution under this law.

Immigrants and visitors to Canada who have yet to gain citizenship and are members of any terrorist group are additionally subject to inadmissibility provisions of the Immigration and Refugee Protection Act or “IRPA,” specifically paragraph 34(1)(f). A person does not have to engage in terrorist acts under this paragraph in order to have their status in Canada refused or revoked, so long as they are considered members of a terrorist group. Hamas or the IRGC’s trusted cook or accountant, for instance, could be considered a member without ever having picked up a gun.

The question has arisen as whether Iranian men immigrating to Canada who were conscripted into the IRGC by the Military Draft Board in Iran as part of their mandatory military service are considered members of the IRGC and subject to inadmissibility law and must have their immigration applications rejected and/or their status revoked.

A single Instagram post from just a few days ago has made a tremendous hubbub with the author’s conclusive answer to the question as being an emphatic yes. The author of the Instagram post has stated as absolute fact that yes, conscripts will be deemed inadmissible and ultimately kicked out of Canada, creating stress in the community.

The first step in understanding the actual answer to the question are IRGC conscripts inadmissible to Canada? is understanding where to find the law on this topic. Canada is a common law jurisdiction inherited from the British. It is important to know that in common law systems, it is not only Parliament that makes laws, but judges also make the laws. It is in fact the judicial interpretation of the law that governs the answer to most legal questions in Canada.

In the case of inadmissibility of IRGC conscripts, the legislation says:

Immigration and Refugee Protection Act

Section 34(1):

A permanent resident or a foreign national is inadmissible on security grounds for…

(f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in[terrorist] acts…

Parliament could have defined what “being a member” means but they left it somewhat vague, which is normal in common law jurisdictions that rely so much on judicial interpretation.

So the question is, is an IRGC conscript a member of the IRGC or not?

The case that clarifies whether forced membership counts as membership under section 34(1)(f) is a case from 2012 called Jalloh v Canada (Public Safety and Emergency Preparedness), 2012 FC 317.

The judicial interpretation in that case has been re-affirmed as late as 2023 in the case of Zigta v. Canada (Citizenship and Immigration), 2023 FC 93 (CanLII).

All of this is publicly available information accessible through canlii.org. Simply copy/paste the case name and read the whole case for yourself.

Here is what Justice O’Reilly said in the lead case of Jalloh:          

“a person cannot be considered to be a member of a group when his or her involvement with it is based on duress.”

Put simply, someone who is truly forced into an organization, in legal terms was under duress, can not be considered a member of that organization.

If an IRGC conscript is ever brought under inadmissibility rules, they will have to prove that they only cooperated out of duress, which essentially means that they had no alternative or safe way out of the service (otherwise it wouldn’t exactly be considered forced, would it?).

In the case of Iran, the consequences of avoiding conscription and/or avoiding the assignment to the IRGC are significant. Numerous punishments are automatically instituted, but the objector would also expose themselves as a political opponent.

With the regime in Iran being a highly punitive ISIS-like regime, having the highest rates of torture, execution, and other human rights violations, it is clear to me that duress can be easily established for true conscripts.  

There is at least one other argument in favor of the conscript. Since the Military Draft Board is the organization that assigns conscripts to the IRGC, conscripts can argue that they are members of the Military Draft Board instead of the IRGC even on paper.

For me there is no ambiguity on either of these points: conscripts are not voluntary members of the IRGC nor are they technical members on paper.

But it is for the judicial system to clarify the matter if necessary. Upon clarification in cases of any ambiguity, the new clarified law becomes the law and serves as a precedent for future cases.