Ezokola v. Canada (Citoyenneté et Immigration)

Ezokola v. Canada (Citoyenneté et Immigration)
Court (s) Database
Federal Court Decisions
Date
2010-06-17
Neutral citation
2010 FC 662
File numbers
IMM-5174-09
Notes
Reported Decision
Decision Content
Federal Court
Cour fédérale
Unrevised certified translation
Date: 20100617
Docket: IMM-5174-09
Citation: 2010 FC 662
Montréal, Quebec, June 17, 2010
PRESENT: The Honourable Mr. Justice Mainville
BETWEEN:
RACHIDI EKANZA EZOKOLA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review made under sections 72 et seq. of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) by Rachidi Ekanza Ezokola (the applicant) concerning decision number MA8‑00814 of the Refugee Protection Division of the Immigration and Refugee Board (the panel), dated September 25, 2009, but in which the reasons are dated September 23, 2009. The applicant, a former diplomat for the Democratic Republic of the Congo (the DRC) at the United Nations, was excluded by the panel from the definition of “refugee” in Article 1F(a) of the United Nations Convention Relating to the Status of Refugees (Article 1F(a)).
[2] The panel’s decision is essentially based on the applicant’s complicity by association in the crimes committed by the security forces of various governments of the DRC, in view of the position he held in his country’s public service.
[3] The application for judicial review will be allowed for the following reasons.
[4] In short, merely being an employee of a state whose government commits crimes against humanity is not sufficient for exclusion under Article 1F(a), any more than mere knowledge of those crimes is sufficient. There must be a nexus between the claimant and the crimes alleged. That nexus may be established by presumption if the claimant held a senior position in the public service, where there are serious reasons for considering that the position in question made it possible for the refugee claimant to commit, incite or conceal the crimes, or to participate or collaborate in the crimes.
[5] Background
[6] The applicant was the economic adviser and second counsellor of embassy to the Permanent Mission of the DRC to the United Nations starting on December 1, 2004, and held that position until a few days before he arrived in Canada on January 17, 2008, to claim refugee protection, with his wife and eight children.
[7] The applicant was born in the DRC on May 26, 1966. Through his mother, he is a member of the Bangala ethnic group in Équateur province, while is father is from Bandundu. He completed all of his university education in the DRC and finished with a degree in economics from the University of Kinshasa in 1994.
[8] After a short time in the private sector, with intermittent periods of unemployment and underemployment, he was hired as a financial attaché at the Ministry of Finance and assigned to the Ministry of Labour, Employment and Social Welfare of the DRC in Kinshasa in January 1999, where he worked for several months. In July 1999 he was assigned to the Ministry of Human Rights, also in Kinshasa, first as a financial attaché and then as a financial adviser, until November 2000. The applicant was then transferred to the Ministry of Foreign Affairs and International Cooperation of the DRC as a financial adviser to the Minister’s office.
[9] The Minister’s office where he worked was eliminated in a ministerial reorganization. The applicant was then assigned to the foreign affairs administration, in June 2003, but he did not really hold a position as he was on sick leave. In July 2004 he was appointed as a member of the diplomatic mission of the DRC to the United Nations in New York. That is one of the DRC’s most important diplomatic missions. The applicant then served as a delegate to various United Nations commissions. As well, he made a speech to the Security Council. He also took part in various diplomatic meetings in Ethiopia and Benin as a representative of the DRC.
[10] The applicant’s rise in the Ministry of Foreign Affairs and International Cooperation of the DRC is explained by the fact that on June 30, 2003, a transitional government was created following the Inter-Congolese Dialogue held in Sun City, South Africa. The transitional government was composed of members of various opposing political parties, and was given the task of managing a three-year transition leading to elections. The President was Joseph Kabila, and four Vice-President positions were allocated among the leaders of the other parties.
[11] When ministerial positions were allocated, the Ministry of Foreign Affairs and International Cooperation was assigned to the Mouvement de libération du Congo (MLC) led by Jean‑Pierre Bemba, who was one of the Vice-Presidents in the transitional government at the time. He appointed Antoine Ghonda as Minister for his party. The applicant states that he was the Minister who signed his transfer order for him to be a diplomat at the United Nations, after reviewing his file and satisfying himself as to his political convictions.
[12] The applicant submits that his problems at the Permanent Mission of the DRC to the United Nations began during the campaign for the election of the President of the DRC, following the Inter-Congolese Dialogue in Sun City. The ambassador of the mission had ties to the party of President Kabila, who was a candidate, while the applicant wanted a new President. We note that the opposition candidate in that election was Jean‑Pierre Bemba.
[13] After the disputed electoral victory won by President Kabila in November 2006, Jean‑Pierre Bemba was compelled to resign from the government. On March 22 and 23, 2007, in Kinshasa, the presidential guard and certain elements in the armed forces confronted the people guarding former Vice‑President Jean‑Pierre Bemba, then a senator. The confrontations had a number of victims and led to the departure of a number of Bangalese and people from Équateur province from the government, and to the forced exile of Jean‑Pierre Bemba. Mr. Bemba is currently facing international criminal prosecution; he is charged with taking part in crimes against humanity because of the abuses committed by his party’s armed militia in the DRC.
[14] The applicant submits that in August 2007 an atmosphere of hostility set in against him in the DRC mission to the United Nations. His name was then left off the new Minister’s mission list, he was given instructions implying that he should not speak on behalf of the DRC at the United Nations commission where he sat as a delegate, and he was denied access to internal meetings. His membership in the Bangala ethnic group in Équateur province, through his mother, made him suspect in the eyes of supporters of President Kabila, given the connection that ethnic group had with Jean‑Pierre Bemba.
[15] In September 2007, the applicant was visited by two DRC intelligence agents who questioned him about Jean‑Pierre Bemba’s presence in New York. The agents suspected the applicant of having a relationship with Jean‑Pierre Bemba. They threatened the applicant, stating: [TRANSLATION] “We will eliminate you, and the people who sent you here are no longer in power” (Applicant’s Record, page 58). The applicant was then followed by the DRC intelligence agents.
[16] The applicant’s situation at the mission became increasingly intolerable, and on January 4, 2008, it led to a heated discussion between him and the ambassador about the organization of the conference on peace, security and development in Nord‑Kivu and Sud‑Kivu provinces.
[17] The applicant ultimately decided to resign. He signed a letter of resignation dated January 11, 2008, but did not mail it until January 16, 2008. He then fled with his family by car to Canada. The applicant attributes his resignation to his refusal to serve the corrupt, anti-democratic and violent government of President Kabila. He alleges that his resignation is considered to be an act of treason. In view of the threats made against him and the methods used by the Congolese system, he is convinced that if he returned to the DRC he and his family would be arrested and subjected to inhuman and degrading treatment, tortured and killed.
Decision of the Panel
[18] The claim for refugee protection concerns the applicant, his wife and their eight children. The claims by the wife and children are largely dependent on the applicant’s claim.
[19] After three days of hearing and lengthy deliberation, the panel concluded that the applicant’s wife and their children (except one of the children, who was born in New York and is an American citizen) are Convention refugees by reason of their membership in the claimant’s family. The panel therefore accepted their refugee protection claims.
[20] However, the applicant was excluded from the protection of the Convention, because the panel believed there were serious reasons for considering that he had been complicit by association in crimes against humanity and war crimes, and that he was therefore not entitled to the protection of Canada, under Article 1F(a).
[21] In its lengthy decision, the panel cited no evidence that the applicant had himself participated in crimes against humanity or war crimes, or that he had himself conspired to commit such crimes, or that he had himself ordered that such crimes be committed. The panel’s decision essentially turns on the fact that the applicant was a public servant and diplomat in the service of the DRC, and that by virtue of that fact alone he was associated with the crimes against humanity and war crimes committed by the government of the DRC, even if he had committed no crimes of that nature himself. Note that the applicant was never a member of a political party and never did military service, nor was he a member of a police force or an intelligence service.
[22] The panel identified two questions to be decided: (a) whether the government of the DRC committed crimes against humanity; and (b) whether the applicant was complicit in the acts committed by the government of the DRC.
[23] The panel concluded, without hesitation, that the many abuses committed by the government of the DRC, both before and after the 2006 election, fall within the definition of crimes against humanity. The panel relied on the abundant documentary evidence in the record in drawing that conclusion as regards all successive governments of the DRC in recent years, whether they be the government of Kabila Sr. or his son, or what was called the transitional government that preceded the 2006 election.
[24] The accounts and reports of massacres, murders and other killings, mutilations, rapes, abductions, kidnappings, torture, arbitrary arrests, extrajudicial executions, humiliation, looting, displacement of persons and other human rights violations by the various armed forces in the service of the DRC and by the various rebel forces operating are legion and are consistent for the entire period to which this case relates, and all come from reliable sources. In fact, reading those accounts and reports is a depressing exercise, and one that leaves the reader puzzled as to the true nature of the human spirit, when contemplating so much pointless and savage cruelty.
[25] Although the panel found that the government of the DRC is not an organization pursuing a limited, brutal purpose, it concluded that there was no doubt that the various successive governments committed serious crimes and inhumane acts against the civilian population, and that those acts were systematic and widespread.
[26] The second question, concerning the applicant’s complicity in the acts committed by those various governments, is more complex.
[27] The panel relied on various decisions of this Court and the Federal Court of Appeal in concluding that complicity is established by knowledge of the acts committed and failure to take measures to prevent them or dissociate from them. The panel noted that knowledge may be inferred from the rank held within the organization.
[28] Applying those principles to the applicant’s case, the panel concluded that the applicant’s knowledge of wrongdoing by the various successive governments in the DRC was established by his brilliant career, which shows the confidence the government had in him, and by the very senior position he held as a diplomatic representative of the DRC at the United Nations.
[29] Although the applicant tried to minimize his role by portraying himself as a mere accountant and denied knowledge of the atrocities committed, the panel doubted his credibility on those points and was of the opinion that he was simply trying to establish wilful blindness in an attempt to justify his totally implausible ignorance of the systematic human rights violations that ravaged his country. The panel was of the opinion that it was not plausible that the applicant did not know what was happening in the DRC, since he was a representative of his country at the United Nations.
[30] At paragraph 67 of its decision, the panel added that “the principal male claimant’s meteoric career and his strategic position at the DRC’s Permanent Mission in New York, as well as the fact that his resignation was considered an act of treason, are evidence of a shared vision in accomplishing his government’s objectives”. The panel also relied on Omar v. Canada (Minister of Citizenship and Immigration), 2004 FC 861, [2004] F.C.J. No. 1061 (QL) (Omar) in concluding that the ambassador of a country may be considered to be complicit by association in crimes committed by the government of the country he or she represents, because of his or her close association with the government that appointed him or her to that position of trust.
[31] The panel therefore concluded as follows regarding the applicant’s complicity, at paragraph 71 of its decision:
Therefore, it is reasonable to conclude that the principal male claimant had a “personal and knowing awareness” in the Congolese government’s actions, which is the “element required to establish complicity”.
[32] On the element of dissociation, the panel concluded that the applicant would not have suffered any reprisals if he had resigned from his position before his personal problems began, at the time of the 2006 election. The panel criticized the applicant for not taking the opportunity offered to him, when he addressed the United Nations Security Council in June 2007, to denounce the abuses in the DRC. The panel noted that it was not until his personal safety was jeopardized that the applicant resigned. The panel therefore drew the following conclusion, at paragraph 75 of its decision:
Consequently, the panel finds that there are “serious reasons for considering” that the principal male claimant personally and knowingly participated in the DRC government’s crimes by making himself complicit by association with these serious crimes against humanity. Although the principal male claimant obviously did not personally commit acts of violence against civilians, assuming important duties and responsibilities allows the Congolese government to perpetuate itself, and he did nothing to dissociate himself from the government.
[33] The panel therefore excluded the applicant under Article 1F(a).
Position of the Applicant
[34] The applicant notes that at paragraph 43 of its decision the panel acknowledged that the government of the DRC is not an organization that has a limited, brutal purpose.
[35] After stating that conclusion, the panel cannot legally find that mere association or membership in the public service of the DRC in itself warrants exclusion under Article 1F(a) for complicity.
[36] Since the government of the DRC does not have a limited, brutal purpose, a systematic connection cannot be made between working in the public service of that government and the abuses committed by certain actors in that government. That is particularly true given that the government was not “banished” by international bodies.
[37] Accordingly, it cannot be inferred from the mere fact of working in the government’s diplomatic corps and assisting an ambassador to the United Nations that the applicant participated, by complicity or association, in the commission of crimes against humanity in the DRC.
[38] The panel therefore erred in law when it concluded that mere personal and knowing awareness of the acts of the government was sufficient to prove complicity in crimes against peace, war crimes or crimes against humanity. Rather, the panel had to identify the shared common purpose within the government, and mens rea on the part of the applicant.
[39] However, the evidence is that the crimes committed were not the result of concerted government action; they were the acts of various autonomous and difficult-to-control elements acting in a confused and chaotic political and military situation, particularly given that the coalition government that came out of the Sun City accords included several divergent and opposing factions. It is absurd to draw the conclusion that there was a “shared common purpose” in a government of that nature.
[40] As well, the applicant publicly denounced the human rights violations committed during the armed conflicts, before both the United Nations Economic and Social Council and the Security Council. The panel did not take into account those speeches or the abundant documentary evidence showing the enormous confusion that prevailed in the DRC and the absence of a shared common purpose on the part of the various state actors in the DRC. That in itself warrants intervention by this Court.
[41] The panel established no nexus between the applicant and specific crimes. The panel did not identify the crimes in which the applicant was allegedly shown to have been complicit. The panel’s approach is contrary to the guidance given by this Court. In short, the applicant submits that he did not personally participate in any crime against humanity, and that it is unreasonable to ascribe such participation to him on the sole ground that he held a position in his country’s public service.
Position of the Respondent
[42] The respondent notes that the fact that the various governments of the DRC committed crimes against humanity is not disputed. This is therefore not an issue in this case. The question that arises in this case is whether the panel erred when it concluded that the applicant was complicit in those crimes.
[43] The case law indicates that persons are complicit in crimes against humanity if they have knowledge of the abuses, if they share a common purpose with the organization that commits the crimes, and if they do nothing to dissociate themselves from them.
[44] The respondent notes that the government of the DRC committed crimes against humanity, that the applicant voluntarily joined the public service of the DRC, that he held a high rank as a diplomat at the United Nations, that he could not have been unaware of the abuses committed by the government in the DRC, that the applicant worked for the DRC for nearly nine years, and that he never tried to leave that government voluntarily or to dissociate himself from it.
[45] Having regard to all those factors, the panel concluded that the applicant was associated with the government of the DRC in a shared common purpose, and that he was therefore complicit by association with that government.
[46] The respondent submits that the applicant’s case bears similarity to the decision in Omar, above. In that decision, the Refugee Protection Division had concluded that Mr. Omar was complicit in crimes against humanity as a result of his duties at the Ministry of Foreign Affairs of the Republic of Djibouti, and in particular as Ambassador of Djibouti in France.
Legislative Framework
[47] The main statutory provision in issue is Article 1F of the United Nations Convention Relating to the Status of Refugees, which is reproduced in the schedule to the Act:
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non‑political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.
F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser :
a) Qu'elles ont commis un crime contre la paix, un crime de guerre ou un crime contre l'humanité, au sens des instruments internationaux élaborés pour prévoir des dispositions relatives à ces crimes;
b) Qu'elles ont commis un crime grave de droit commun en dehors du pays d'accueil avant d'y être admises comme réfugiés;
c) Qu'elles se sont rendues coupables d'agissements contraires aux buts et aux principes des Nations Unies.
[48] That provision should be examined in light of section 96, subsection 97(1), section 98, subsection 112(1) and paragraph 112(3)(c) of the Act, reproduced below:
96. A Convention refugee is a person who, by reason of a well‑founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards; and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
...
98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.
112. (1) A person in Canada, other than a person referred to in subsection 115(1), may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force or are named in a certificate described in subsection 77(1).
...
(3) Refugee protection may not result from an application for protection if the person
...
(c) made a claim to refugee protection that was rejected on the basis of section F of Article 1 of the Refugee Convention; ...
96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la torture au sens de l'article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats.
...
98. La personne visée aux sections E ou F de l'article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger.
112. (1) La personne se trouvant au Canada et qui n'est pas visée au paragraphe 115(1) peut, conformément aux règlements, demander la protection au ministre si elle est visée par une mesure de renvoi ayant pris effet ou nommée au certificat visé au paragraphe 77(1).
...
(3) L'asile ne peut être conféré au demandeur dans les cas suivants :
...
c) il a été débouté de sa demande d'asile au titre de la section F de l'article premier de la Convention sur les réfugiés;
...
Relevant Questions
[49] Having regard to the applicable standard of review, discussed below, we need not question the panel’s findings of fact unless they are unreasonable.
[50] For the purposes of judicial review, I take as given the panel’s findings that the various successive governments in the DRC were not organizations pursuing a limited, brutal purpose, but that they nonetheless all committed crimes against humanity; that the applicant had personal knowledge of the criminal acts committed by those governments; and that he did little to denounce those governments or dissociate himself from them as long as his personal situation was not jeopardized.
[51] In this case, the question that arises is whether holding a diplomatic post and having personal and knowing awareness of the acts committed by those Congolese governments are in themselves sufficient to establish that there was complicity by association with them and that there was personal and knowing participation in the crimes committed. That was the panel’s conclusion, at paragraphs 71 and 75 of its decision.
[52] The panel confirmed that the applicant did not himself participate in crimes against humanity or war crimes, or conspire to commit crimes of that nature or order that they be committed. The panel’s entire decision turns on the fact that the applicant served as a public servant and diplomat for the DRC and was therefore associated with the crimes against humanity and war crimes committed by the successive governments of the DRC, even though he committed no crimes of that nature himself, was never a member of a political party, never did military service, and was never a member of a police force or intelligence service.
[53] The fundamental question that therefore arises in this case is the scope of complicity by association in relation to crimes against humanity. That is a question of law. Once the legal framework that applies to complicity by association is established, that framework must be applied to the facts.
Standard of Review
[54] As the Supreme Court of Canada noted in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paragraphs 54, 57 and 62, the first step in determining the applicable standard of review is to ascertain whether the jurisprudence has already determined in a satisfactory manner what standard is applicable to the issue.
[55] There are a number of decisions of the Federal Court of Appeal and this Court from which that standard can be ascertained. In Harb v. Canada (Minister of Citizenship and Immigration), 2003 FCA 39, [2003] F.C.J. No. 108 (QL) (Harb), Justice Décary observed, at paragraph 14:
In so far as these are findings of fact they can only be reviewed if they are erroneous and made in a perverse or capricious manner or without regard for the material before the Refugee Division (this standard of review is laid down in s. 18.1(4)(d) of the Federal Court Act, and is defined in other jurisdictions by the phrase “patently unreasonable”). These findings, in so far as they apply the law to the facts of the case, can only be reviewed if they are unreasonable. In so far as they interpret the meaning of the exclusion clause, the findings can be reviewed if they are erroneous. ...
[56] As well, in Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100 (Mugesera), at paragraph 38, the Supreme Court of Canada unambiguously affirmed that the reviewing court must exhibit great deference to the findings of fact made by the panel.
[57] However, at paragraph 59 of the decision in Mugesera, the Supreme Court of Canada added that questions of law will be subject to the correctness standard, and this includes the elements of a crime against humanity. That approach applies not only to the applicable standard of review, but also to the application of the standard of proof. As the Supreme Court of Canada observed at paragraph 116 of Mugesera:
When applying the “reasonable grounds to believe” standard, it is important to distinguish between proof of questions of fact and the determination of questions of law. The “reasonable grounds to believe” standard of proof applies only to questions of fact: Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.), p. 311. This means that in this appeal the standard applies to whether Mr. Mugesera gave the speech, to the message it conveyed in a factual sense and to the context in which it was delivered. On the other hand, whether these facts meet the requirements of a crime against humanity is a question of law. Determinations of questions of law are not subject to the “reasonable grounds to believe” standard, since the legal criteria for a crime against humanity will not be made out where there are merely reasonable grounds to believe that the speech could be classified as a crime against humanity. The facts as found on the “reasonable grounds to believe” standard must show that the speech did constitute a crime against humanity in law.
[58] Complicity for the purposes of Article 1F(a) is a legal concept that must be established and reviewed by applying the correctness standard. The panel may not misinterpret or modify the concept of complicity as it is established by law: Bouasla v. Canada (Minister of Citizenship and Immigration), 2008 FC 930, [2008] F.C.J. No. 1160 (QL), at paragraph 132 (Bouasla); Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298, [1993] F.C.J. No. 912 (QL) (F.C.A.), at paragraph 27 (Moreno); and Nagamany v. Canada (Minister of Citizenship and Immigration), 2005 FC 1554, [2005] F.C.J. No. 1930 (QL), at paragraph 20 (Nagamany).
[59] Accordingly, the requisite analysis must be carried out with these considerations in relation to the applicable standard of review in mind.
Analysis
Legal Framework
[60] There are two components in the concept of complicity in crimes against humanity in Canadian jurisprudence: complicity in the traditional sense of Canadian criminal law, and complicity by association. Here, only complicity by association is in issue. Is this truly a particular mode of complicity, and what elements must be present to establish complicity by association? These are the questions that must be addressed.
[61] The leading decisions on complicity by association in crimes against humanity are Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306, [1992] F.C.J. No. 109 (QL) (F.C.A.) (Ramirez); Moreno, above; and Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433, [1993] F.C.J. No. 1145 (QL) (F.C.A.) (Sivakumar).
[62] In Ramirez, Justice MacGuigan laid down the basic principle that a person cannot commit this type of crime by complicity “without personal and knowing participation” (at page 317). Justice MacGuigan then distinguished organizations directed to a limited, brutal purpose, where mere membership may suffice to establish personal and knowing participation.
[63] However, in Ramirez, Justice MacGuigan did not rule clearly as to the principles of complicity by association that are applicable to participation in an organization that does not meet the definition of limited, brutal purpose. Rather, Justice MacGuigan referred to concepts of complicity that are analogous to the criminal law concepts, which are to be determined based on the unique fact situation, keeping in mind that the criterion referred to above, personal and knowing participation in persecutorial acts (at page 320 of Ramirez), must not be exceeded. The concept of complicity by association in an organization that is not directed to a limited, brutal purpose is therefore not directly addressed in Ramirez.
[64] In Moreno, however, Justice Robertson directly addressed the question, stating at the outset that it is “well settled that mere membership in an organization involved in international offences is not sufficient basis on which to invoke the exclusion clause” (at page 321). Justice Robertson also confirmed the remarks in Ramirez to the effect that to find complicity, personal and knowing participation in persecutorial acts must be established, and this implies that mens rea is an essential element of a crime committed by complicity (at page 323). Therefore, acts or omissions amounting to passive acquiescence are not a sufficient basis for invoking the exclusion clause; there must be personal participation in the acts alleged.
[65] In Sivakumar, the Federal Court of Appeal had to decide whether responsibility for crimes against humanity allegedly committed by the Liberation Tigers of Tamil Eelam extended by complicity to the applicant in that case, who held a leadership position in that organization but had not personally participated in the crimes. In deciding that the applicant was complicit in the crimes, Justice Linden addressed certain criteria in order to establish complicity by association in crimes against humanity (at pages 439 to 442):
Another type of complicity, particularly relevant to this case is complicity through association. In other words, individuals may be rendered responsible for the acts of others because of their close association with the principal actors. This is not a case merely of being “known by the company one keeps.” Nor is it a case of mere membership in an organization making one responsible for all the international crimes that organization commits (see Ramirez, at page 317). Neither of these by themselves is normally enough, unless the particular goal of the organization is the commission of international crimes. It should be noted, however, as MacGuigan J.A. observed: “someone who is an associate of the principal offenders can never, in my view, be said to be a mere on-looker. Members of a participating group may be rightly considered to be personal and knowing participants, depending on the facts” (Ramirez, supra, at page 317).
In my view, the case for an individual's complicity in international crimes committed by his or her organization is stronger if the individual member in question holds a position of importance within the organization. Bearing in mind that each case must be decided on its facts, the closer one is to being a leader rather than an ordinary member, the more likely it is that an inference will be drawn that one knew of the crime and shared the organization's purpose in committing that crime. Thus, remaining in an organization in a leadership position with knowledge that the organization was responsible for crimes against humanity may constitute complicity. In Crimes Against Humanity in International Criminal Law (1992), M. Cherif Bassiouni states, at page 345:
Thus, the closer a person is involved in the decision-making process and the less he does to oppose or prevent the decision, or fails to dissociate himself from it, the more likely that person's criminal responsibility will be at stake.
...
It should be noted that, in refugee law, if state authorities tolerate acts of persecution by the local population, those acts may be treated as acts of the state (see, for example, the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, at page 17). Similarly, if the criminal acts of part of a paramilitary or revolutionary non-state organization are knowingly tolerated by the leaders, those leaders may be equally responsible for those acts. Complicity by reason of one's position of leadership within an organization responsible for international crimes is analogous to the theory of vicarious liability in torts, but the analogy is not altogether apt, since it is clear that, in the context of international crimes, the accused person must have knowledge of the acts constituting the international crimes.
To sum up, association with a person or organization responsible for international crimes may constitute complicity if there is personal and knowing participation or toleration of the crimes. Mere membership in a group responsible for international crimes, unless it is an organization that has a “limited, brutal purpose”, is not enough (Ramirez, supra, at page 317). Moreover, the closer one is to a position of leadership or command within an organization, the easier it will be to draw an inference of awareness of the crimes and participation in the plan to commit the crimes.
[66] In Bazargan v. Canada (Minister of Citizenship and Immigration), No. A‑400‑95, September 18, 1996, 205 N.R. 282, [1996] F.C.J. No. 1209 (QL) (F.C.A.), Justice Décary stated that it is contributing to the activities of the group, rather than membership in the group, that establishes complicity by association:
In our view, it goes without saying that “personal and knowing participation” can be direct or indirect and does not require formal membership in the organization that is ultimately engaged in the condemned activities. It is not working within an organization that makes someone an accomplice to the organization's activities, but knowingly contributing to those activities in any way or making them possible, whether from within or from outside the organization. At p. 318, MacGuigan J.A. said that “[a]t bottom, complicity rests ... on the existence of a shared common purpose and the knowledge that all of the parties in question may have of it”. Those who become involved in an operation that is not theirs, but that they know will probably lead to the commission of an international offence, lay themselves open to the application of the exclusion clause in the same way as those who play a direct part in the operation.
[67] In Sumaida v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 66, [2000] F.C.J. No. 10 (QL) (F.C.A.), Justice Létourneau clarified that evidence of complicity by association in crimes against humanity does not require evidence that an applicant is linked to specific crimes as the actual perpetrator (at paragraph 31). That clarification was also confirmed by Justice Décary in Harb, above, at paragraph 11:
... It is not the nature of the crimes with which the appellant was charged that led to his exclusion, but that of the crimes alleged against the organizations with which he was supposed to be associated. Once those organizations have committed