Ezokola v. Canada (Citizenship and Immigration)

Ezokola v. Canada (Citizenship and Immigration)
Collection
Supreme Court Judgments
Date
2013-07-19
Neutral citation
2013 SCC 40
Report
[2013] 2 SCR 678
Case number
34470
Judges
McLachlin, Beverley; LeBel, Louis; Fish, Morris J.; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard
On appeal from
Federal Court of Appeal
Subjects
Immigration
Notes
SCC Case Information: 34470
Decision Content
SUPREME COURT OF CANADA
Citation: Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678
Date: 20130719
Docket: 34470
Between:
Rachidi Ekanza Ezokola
Appellant
and
Minister of Citizenship and Immigration
Respondent
- and -
United Nations High Commissioner for Refugees,
Amnesty International, Canadian Centre for International Justice,
International Human Rights Program at the University of Toronto Faculty of Law, Canadian Council for Refugees, Canadian Civil Liberties Association and
Canadian Association of Refugee Lawyers
Interveners
Coram: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
Reasons for Judgment:
(paras. 1 to 103)
LeBel and Fish JJ. (McLachlin C.J. and Abella,
Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ. concurring)
Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678
Rachidi Ekanza Ezokola Appellant
v.
Minister of Citizenship and Immigration Respondent
and
United Nations High Commissioner for Refugees,
Amnesty International,
Canadian Centre for International Justice,
International Human Rights Program at the University of Toronto Faculty of Law,
Canadian Council for Refugees,
Canadian Civil Liberties Association and
Canadian Association of Refugee Lawyers Interveners
Indexed as: Ezokola v. Canada (Citizenship and Immigration)
2013 SCC 40
File No.: 34470.
2013: January 17; 2013: July 19.
Present: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
on appeal from the federal court of appeal
Immigration law — Convention refugees — Complicity in crimes against humanity — Former representative of the Democratic Republic of Congo seeking refugee protection in Canada — Immigration and Refugee Board rejecting claim for refugee protection on grounds that representative was complicit in crimes against humanity committed by the government of the Democratic Republic of Congo — Whether mere association or passive acquiescence are sufficient to establish complicity — Whether a contribution‑based test for complicity should be adopted — Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 98 — United Nations Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6, art. 1F(a).
In January 1999, E began his career with the government of the Democratic Republic of Congo (“DRC”) as a financial attaché in Kinshasa. By 2007, he was leading the Permanent Mission of the DRC at the United Nations in New York. In January 2008, he resigned that post and fled to Canada. He says that he could no longer work for the government of President Kabila, which he considered corrupt, antidemocratic and violent. He claims that his resignation would be viewed as an act of treason by the DRC government, and that the DRC’s intelligence service had harassed, intimidated, and threatened him. He sought refugee protection for himself and his family in Canada.
The Refugee Protection Division of the Immigration and Refugee Board excluded E from the definition of “refugee” under art. 1F(a) of the United Nations Convention Relating to the Status of Refugees (“Refugee Convention”), finding that he was complicit in crimes against humanity committed by the government of the DRC. The Federal Court allowed E’s application for judicial review, but certified a question concerning the nature of complicity under art. 1F(a). The Federal Court of Appeal held that a senior official in a government could demonstrate personal and knowing participation and be complicit in the crimes of the government by remaining in his or her position without protest and continuing to defend the interests of his or her government while being aware of the crimes committed by the government. It remitted the matter to a different panel of the Refugee Protection Division to apply that test to the facts of this case.
Held: The appeal should be allowed and the matter remitted to a new panel of the Refugee Protection Division for redetermination in accordance with these reasons.
To exclude a claimant from the definition of “refugee” by virtue of art. 1F(a), there must be serious reasons for considering that the claimant has voluntarily made a significant and knowing contribution to the organization’s crime or criminal purpose. Decision makers should not overextend the concept of complicity to capture individuals based on mere association or passive acquiescence. In Canada, the personal and knowing participation test has, in some cases, been overextended to capture individuals on the basis of complicity by association. It is therefore necessary to rearticulate the Canadian approach to bring it in line with the purpose of the Refugee Convention and art. 1F(a), the role of the Refugee Protection Division, the international law to which art. 1F(a) expressly refers, the approach to complicity under art. 1F(a) taken by other state parties to the Refugee Convention, and fundamental criminal law principles. These sources all support the adoption of a contribution‑based test for complicity — one that requires a voluntary, knowing, and significant contribution to the crime or criminal purpose of a group.
First, the Refugee Convention embodies profound concern for refugees and a commitment to assure refugees the widest possible exercise of fundamental rights and freedoms. However, it also protects the integrity of international refugee protection by ensuring that the authors of crimes against peace, war crimes, and crimes against humanity do not exploit the system to their own advantage. A strict reading of art. 1F(a) properly balances these two aims.
Second, unlike international criminal tribunals, the Refugee Protection Division does not determine guilt or innocence, but excludes, ab initio, those who are not bona fide refugees at the time of their claim for refugee status. This is reflected in and accommodated by the unique evidentiary burden applicable to art. 1F(a) determinations: a person is excluded from the definition of “refugee” if there are serious reasons for considering that he has committed a crime against peace, a war crime, or a crime against humanity. While this standard is lower than that applicable in actual war crimes trials, it requires more than mere suspicion.
Third, the modes of commission recognized in international criminal law articulate a broad concept of complicity, but, even at their broadest, they do not hold individuals liable for crimes committed by a group simply because they are associated with the group or passively acquiesced to the group’s criminal purposes. Common purpose liability, the broad residual mode of commission recognized in the Rome Statute of the International Criminal Court, appears to require a significant contribution to a crime committed or attempted by a group acting with a common purpose, and, while joint criminal enterprise, as recognized by the ad hoc tribunals, encompasses recklessness with respect to the crime or criminal purpose, even it does not capture individuals merely based on rank or association.
Fourth, other state parties to the Refugee Convention have approached art. 1F(a) in a manner that concentrates on the actual role played by the particular person. They allow that an individual can be complicit without being present at or physically contributing to the crime, but they require evidence that the individual knowingly made a significant contribution to the group’s crime or criminal purpose before excluding the person from the definition of “refugee”.
Finally, a concept of complicity that leaves any room for guilt by association or passive acquiescence violates two fundamental criminal law principles: the principle that criminal liability does not attach to omissions unless an individual is under a duty to act, and the principle that individuals can only be liable for their own culpable conduct.
In light of the foregoing, exclusions based on the criminal activities of the group and not on the individual’s contribution to that criminal activity must be firmly foreclosed in Canadian law. Whether an individual’s conduct meets the actus reus and mens rea for complicity will depend on the facts of each case, including (i) the size and nature of the organization; (ii) the part of the organization with which the claimant was most directly concerned; (iii) the claimant’s duties and activities within the organization; (iv) the claimant’s position or rank in the organization; (v) the length of time the claimant was in the organization, particularly after acquiring knowledge of the group’s crime or criminal purpose; and (vi) the method by which the claimant was recruited and claimant’s opportunity to leave the organization. These factors are not necessarily exhaustive, nor will each of them be significant in every case. Their assessment will necessarily be highly contextual, the focus must always remain on the individual’s contribution to the crime or criminal purpose, and any viable defences should be taken into account.
Cases Cited
Referred to: Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433; Zrig v. Canada (Minister of Citizenship and Immigration), 2003 FCA 178, [2003] 3 F.C. 761; Thamotharem v. Canada (Minister of Citizenship and Immigration), 2007 FCA 198, [2008] 1 F.C.R. 385; Kumar v. Canada (Citizenship and Immigration), 2009 FC 643 (CanLII); Harb v. Canada (Minister of Citizenship and Immigration), 2003 FCA 39, 302 N.R. 178; Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100; Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298; R. (J.S. (Sri Lanka)) v. Secretary of State for the Home Department, [2010] UKSC 15, [2011] 1 A.C. 184; Prosecutor v. Callixte Mbarushimana, ICC‑01/04‑01/10‑465‑Red, 16 December 2011, aff’d ICC‑01/04‑01/10‑514, 30 May 2012; Prosecutor v. Thomas Lubanga Dyilo, ICC‑01/04‑01/06‑2842, 14 March 2012, aff’g ICC‑01/04‑01/06‑803‑tEN, 29 January 2007; Prosecutor v. William Samoei Ruto, ICC‑01/09‑01/11‑373, 23 January 2012; Prosecutor v. Jean‑Pierre Bemba Gombo, ICC‑01/05‑01/08‑424, 15 June 2009; Prosecutor v. Jovica Stanišić, IT‑03‑69‑T, 30 May 2013; Prosecutor v. Duško Tadić, IT‑94‑1‑A, 15 July 1999; Prosecutor v. Radoslav Brđanin, IT‑99‑36‑A, 3 April 2007; Ryivuze v. Canada (Minister of Citizenship and Immigration), 2007 FC 134, 325 F.T.R. 30; Xu Sheng Gao v. United States Attorney General, 500 F.3d 93 (2007); Osagie v. Canada (Minister of Citizenship and Immigration) (2000), 186 F.T.R. 143; Mpia‑Mena‑Zambili v. Canada (Minister of Citizenship and Immigration), 2005 FC 1349, 281 F.T.R. 54; Fabela v. Canada (Minister of Citizenship and Immigration), 2005 FC 1028, 277 F.T.R. 20.
Statutes and Regulations Cited
Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24 .
Criminal Code, R.S.C. 1985, c. C‑46, s. 21(2) .
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 98 , 162(2) , 170 (g), (h).
Treaties and Other International Instruments
Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6, Preamble, art. 1F(a).
Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, July 17, 1998, arts. 25, 28, 30, 31(1)(d).
Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37, art. 31.
Authors Cited
Cassese, Antonio. “From Nuremberg to Rome: International Military Tribunals to the International Criminal Court”, in Antonio Cassese, Paola Gaeta and John R. W. D. Jones, eds., The Rome Statute of the International Criminal Court: A Commentary, vol. I. Oxford: Oxford University Press, 2002, 3.
Cassese, Antonio. “The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal Enterprise” (2007), 5 J.I.C.J. 109.
Cassese’s International Criminal Law, 3rd ed., revised by Antonio Cassese, et al. Oxford: Oxford University Press, 2013.
Cryer, Robert, et al. An Introduction to International Criminal Law and Procedure, 2nd ed. Cambridge: Cambridge University Press, 2010.
Goy, Barbara. “Individual Criminal Responsibility before the International Criminal Court: A Comparison with the Ad Hoc Tribunals” (2012), 12 Int’l. Crim. L. Rev. 1.
Human Rights Watch. World Report 2006: Events of 2005. New York: Human Rights Watch, 2006.
Kaushal, Asha, and Catherine Dauvergne. “The Growing Culture of Exclusion: Trends in Canadian Refugee Exclusions” (2011), 23 Int’l. J. Refugee L. 54.
Lafontaine, Fannie. Prosecuting Genocide, Crimes Against Humanity and War Crimes in Canadian Courts. Toronto: Carswell, 2012.
Manacorda, Stefano, and Chantal Meloni. “Indirect Perpetration versus Joint Criminal Enterprise: Concurring Approaches in the Practice of International Criminal Law?” (2011), 9 J.I.C.J. 159.
United Nations High Commissioner for Refugees. “Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees”, HCR/GIP/03/05, September 4, 2003 (online: www.unhcr.org).
van Sliedregt, Elies. Individual Criminal Responsibility in International Law. Oxford: Oxford University Press, 2012.
Werle, Gerhard. “Individual Criminal Responsibility in Article 25 ICC Statute” (2007), 5 J.I.C.J. 953.
Zambelli, Pia. “Problematic Trends in the Analysis of State Protection and Article 1F(a) Exclusion in Canadian Refugee Law” (2011), 23 Int’l. J. Refugee L. 252.
APPEAL from a judgment of the Federal Court of Appeal (Noël, Nadon and Pelletier JJ.A.), 2011 FCA 224, [2011] 3 F.C.R. 417, 420 N.R. 279, 335 D.L.R. (4th) 164, 1 Imm. L.R. (4th) 181, [2011] F.C.J. No. 1052 (QL), 2011 CarswellNat 2546, setting aside in part a decision of Mainville J., 2010 FC 662, [2011] 3 F.C.R. 377, 373 F.T.R. 97, [2010] F.C.J. No. 766 (QL), 2010 CarswellNat 6199, setting aside a decision of the Immigration and Refugee Board (Refugee Protection Division), 2009 CanLII 89027. Appeal allowed.
Jared Will, Annick Legault and Peter Shams, for the appellant.
François Joyal and Ginette Gobeil, for the respondent.
Lorne Waldman, Jacqueline Swaisland, Kylie Buday and Rana Khan, for the intervener the United Nations High Commissioner for Refugees.
Michael Bossin, Chantal Tie and Laïla Demirdache, for the intervener Amnesty International.
John Terry, Sarah R. Shody and Renu Mandhane, for the interveners the Canadian Centre for International Justice and the International Human Rights Program at the University of Toronto Faculty of Law.
Catherine Dauvergne, Angus Grant and Pia Zambelli, for the intervener the Canadian Council for Refugees.
Sukanya Pillay, for the intervener the Canadian Civil Liberties Association.
Jennifer Bond, Carole Simone Dahan, Aviva Basman and Andrew Brouwer, for the intervener the Canadian Association of Refugee Lawyers.
The judgment of the Court was delivered by
LeBel and Fish JJ. —
I. Introduction
[1] Criminal responsibility does not fall solely upon direct perpetrators of crime. A murder conviction, for example, can attach equally to one who pulls the trigger and one who provides the gun. Complicity is a defining characteristic of crimes in the international context, where some of the world’s worst crimes are committed often at a distance, by a multitude of actors.
[2] While principal perpetrators may be distinguished from secondary actors for sentencing, the distinction is irrelevant for the purposes of art. 1F(a) of the United Nations Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (“Refugee Convention”). Article 1F(a) excludes individuals from the definition of “refugee” if there are “serious reasons for considering that [they have] committed a crime against peace, a war crime, or a crime against humanity”. Those who commit these offences are not entitled to the humanitarian protection provided by the Refugee Convention. Where exclusion from refugee status is the only “sanction”, it is not necessary to distinguish between principals, aiders and abettors, or other criminal participants. Individuals may be excluded from refugee protection for international crimes through a variety of modes of commission.
[3] Guilt by association, however, is not one of them.
[4] This appeal homes in on the line between association and complicity. It asks whether senior public officials can be excluded from the definition of “refugee” by performing official duties for a government that commits international crimes. It is the task of this Court to determine what degree of knowledge and participation in a criminal activity justifies excluding secondary actors from refugee protection. In other words, for the purposes of art. 1F(a), when does mere association become culpable complicity?
[5] In contrast to international crime, determining responsibility for domestic crime is often direct. While party liability plays a role, domestic criminal law, in its simplest form, asks whether one individual has committed one crime against one victim. In international criminal law, the focus often switches to the collective and to the links between individuals and collective action. International criminal law typically asks whether a group of individuals, an organization or a state has committed a series of crimes against a group of victims. In other words, party liability plays a much greater role in the commission of those crimes recognized as some of the most serious in the international legal order: R. Cryer et al., An Introduction to International Criminal Law and Procedure (2nd ed. 2010), at p. 361.
[6] Aware of the collective aspects of international crime, the Federal Court of Appeal correctly concluded that senior officials may be held criminally responsible for crimes committed by their government if they are aware of the crimes being committed yet remain in their position without protest and continue to defend the interests of the government.
[7] However, this does not mean that high-ranking government officials are exposed to a form of complicity by association. Complicity arises by contribution. The collective nature of many international crimes does not erase the importance of holding an individual responsible only for his or her own culpable acts: G. Werle, “Individual Criminal Responsibility in Article 25 ICC Statute” (2007), 5 J.I.C.J. 953, at p. 953.
[8] While individuals may be complicit in international crimes without a link to a particular crime, there must be a link between the individuals and the criminal purpose of the group — a matter to which we will later return. In the application of art. 1F(a), this link is established where there are serious reasons for considering that an individual has voluntarily made a significant and knowing contribution to a group’s crime or criminal purpose. As we shall see, a broad range of international authorities converge towards the adoption of a “significant contribution test”.
[9] This contribution-based approach to complicity replaces the personal and knowing participation test developed by the Federal Court of Appeal in Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306. In our view, the personal and knowing participation test has, in some cases, been overextended to capture individuals on the basis of complicity by association. A change to the test is therefore necessary to bring Canadian law in line with international criminal law, the humanitarian purposes of the Refugee Convention, and fundamental criminal law principles.
[10] We would therefore allow the appeal and send the matter back to a different panel of the Refugee Protection Division of the Immigration and Refugee Board (the “Board”) for redetermination in accordance with these reasons. The panel will decide whether there are serious reasons for considering that the appellant’s knowledge of, and participation in, the crimes or criminal purposes of his government meet the complicity by contribution test. As always, whether art. 1F(a) operates to exclude an individual from refugee protection will depend on the particular facts of the case.
A. Background Facts
[11] The appellant, Rachidi Ekanza Ezokola, began his career with the government of the Democratic Republic of Congo (“DRC”) in January 1999. He was hired as a financial attaché at the Ministry of Finance and was assigned to the Ministry of Labour, Employment and Social Welfare in Kinshasa. He later worked as a financial adviser to the Ministry of Human Rights and the Ministry of Foreign Affairs and International Cooperation.
[12] In 2004, the appellant was assigned to the Permanent Mission of the DRC to the United Nations (“UN”) in New York. In his role as second counsellor of embassy, the appellant represented the DRC at international meetings and UN entities including the UN Economic and Social Council. He also acted as a liaison between the Permanent Mission of the DRC and UN development agencies. In 2007, the appellant served as acting chargé d’affaires. In this capacity, he led the Permanent Mission of the DRC and spoke before the Security Council regarding natural resources and conflicts in the DRC.
[13] The appellant worked at the Permanent Mission until January 2008 when he resigned and fled to Canada.
[14] The appellant says he ultimately resigned because he refused to serve the government of President Kabila which he considered to be corrupt, antidemocratic and violent. He claims his resignation would be viewed as an act of treason by the DRC government. He claims that the DRC’s intelligence service harassed, intimidated, and threatened him because it suspected he had links to Jean-Pierre Bemba, President Kabila’s opponent. It was on this basis that he sought refugee protection for himself, his wife, and their eight children in Canada.
B. Judicial History
(1) Immigration and Refugee Board — Refugee Protection Division, 2009 CanLII 89027
[15] The issue for the Board in determining the appellant’s application for refugee protection was whether the appellant should be excluded from Canada on the basis of s. 98 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA ”). This provision directly incorporates art. 1F(a) of the Refugee Convention into Canadian law. The Board excluded the appellant from the definition of “refugee” under art. 1F (a). It held that, although the government of the DRC was not an organization with a limited and brutal purpose, it had committed crimes against humanity as defined by the Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, July 17, 1998 (“Rome Statute”), and Canadian jurisprudence: paras. 31 and 43. The Board concluded that the government’s crimes continued even as the government itself changed: para. 33.
[16] The Board relied on various reports — including media, governmental, and non-governmental — to find international crimes were committed on both sides of conflicts spanning several years. For instance, at para. 39, it cited a report by Human Rights Watch, dated January 18, 2006, which condemned the conduct of the DRC government (and others):
In 2005, combatants from armed groups as well as government soldiers deliberately killed, raped, and abducted civilians and destroyed or looted their property in repeated attacks, particularly in eastern Congo. A feeble justice system failed to prosecute these recent crimes and did nothing to end impunity for war crimes and crimes against humanity committed during the previous two wars. The September 2005 discovery of mass graves from 1996 in the eastern region of Rutshuru served as a reminder of the unpunished mass slaughter of civilians in Congo in the last decade.
. . .
The government failure to integrate troops of former belligerent groups into the national army and to properly train and pay its soldiers underlay some military abuses. Military abuses such as those that occurred in December 2004 in North Kivu where government soldiers and combatants refusing integration fought and killed at least one hundred civilians, many of them targeted on an ethnic basis, were repeated elsewhere in 2005. In Walungu, South Kivu, government soldiers raped civilians and looted property during operations against the FDLR in late 2004 and early 2005. In Equateur, poorly paid and undisciplined troops went on a rampage in July 2005, killing, raping, and stealing from civilians.
As government soldiers tried to take control of Ituri and parts of North and South Kivu, Maniema and Katanga in late 2004 and 2005, both they and the combatants fighting them committed grave violations of international humanitarian and human rights law.
(World Report 2006: Events of 2005 (2006), at pp. 90-92)
[17] The Board also cited reports condemning the DRC authorities’ practice of recruiting child soldiers: paras. 36 and 40.
[18] The Board concluded that “[t]he evidence clearly shows that the Congolese government represses human rights, carries out civilian massacres and engages in governmental corruption”: para. 43.
[19] In the Board’s view, the appellant was complicit in these crimes. Based on the appellant’s official rank, he had “personal and knowing awareness” of the crimes committed by his government: para. 71. The Board pointed out that the appellant had joined the government voluntarily and continued to act in his official capacity until he feared for his own safety. In the Board’s view, the appellant’s functions and responsibilities helped to sustain the government of the DRC. The Board therefore had serious reasons for considering that the appellant was complicit in the crimes committed by the government.
(2) Federal Court — Mainville J., 2010 FC 662, [2011] 3 F.C.R. 377
[20] The Federal Court allowed the appellant’s application for judicial review. The court determined that an individual cannot be excluded under art. 1F(a) merely because he had been an employee of a state whose government commits international crimes. Complicity requires a nexus between the claimant and the crimes committed by the government.
[21] In order to determine whether this link existed, the court considered the modes of commission provided for in the Rome Statute and concluded that “criminal responsibility for crimes against humanity requires personal participation in the crime alleged or personal control over the events leading to the crime alleged”: para. 86.
[22] In the court’s view, the required nexus between the claimant and the crimes “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”: para. 4. However, in this case there was “no evidence that tend[ed] to show direct or indirect personal participation by the applicant in the crimes alleged, and there [was] no evidence of incitement or active support by the applicant for those crimes”: para. 104. It was an error to assign responsibility to the appellant solely on the basis of his position within the government, absent a personal nexus between his role and the army or police of the DRC.
[23] The court certified the following question:
For the purposes of exclusion pursuant to paragraph 1F(a) of the United Nations Refugee Convention, is there complicity by association in crimes against humanity from the fact that the refugee claimant was a public servant in a government that committed such crimes, along with the fact that the refugee claimant was aware of these crimes and did not denounce them, when there is no proof of personal participation, whether direct or indirect, of the refugee claimant in these crimes?
(2011 FCA 224, [2011] 3 F.C.R. 417, at para. 28)
(3) Federal Court of Appeal — Noël J.A. (Nadon and Pelletier JJ.A.)
[24] The Federal Court of Appeal answered the certified question in the affirmative, but not before reformulating it as follows:
For the purposes of exclusion pursuant to paragraph 1F(a) of the United Nations Refugee Convention, can complicity by association in crimes against humanity be established by the fact that the refugee claimant was a senior public servant in a government that committed such crimes, along with the fact that the refugee claimant was aware of these crimes and remained in his position without denouncing them? [para. 44]
[25] The Federal Court of Appeal rejected the Federal Court’s approach to complicity, describing it as inconsistent with Canadian jurisprudence and too narrow: paras. 46 and 57. The Federal Court of Appeal concluded that
a senior official may, by remaining in his or her position without protest and continuing to defend the interests of his or her government while being aware of the crimes committed by this government demonstrate “personal and knowing participation” in these crimes and be complicit with the government in their commission. [para. 72]
[26] The court added that “the final outcome will always depend on the facts particular to each case”: para. 72.
[27] The Federal Court of Appeal decided it was unnecessary to determine whether the conclusion of the Board was reasonable because it had applied the wrong test for complicity. Instead of applying the “personal and knowing participation” test, the Board considered the appellant’s “personal and knowing awareness”: para. 75. The Federal Court of Appeal therefore remitted the matter to a different panel of the Board to apply the personal and knowing participation test to determine whether the appellant was an accomplice in the crimes committed by the DRC.
II. Analysis
A. Issues
[28] Whether or not the appellant should ultimately be excluded from refugee protection for having committed international crimes will be determined by the Board at a de novo hearing. The task for this Court is to determine what test for complicity will be applied by the art. 1F(a) decision maker. To answer this question, the Court must also address the evidentiary standard applicable to art. 1F(a) determinations.
[29] For the reasons that follow, we conclude that an individual will be excluded from refugee protection under art. 1F(a) for complicity in international crimes if there are serious reasons for considering that he or she voluntarily made a knowing and significant contribution to the crime or criminal purpose of the group alleged to have committed the crime. The evidentiary burden falls on the Minister as the party seeking the applicant’s exclusion: Ramirez, at p. 314.
[30] In rejecting a guilt-by-association approach to complicity, we have considered (i) the purpose of the Refugee Convention and art. 1F(a); (ii) the role of the Board; (iii) the international law to which art. 1F(a) expressly refers; and (iv) the approach to complicity under art. 1F(a) taken by other state parties to the Refugee Convention. Each of these demonstrates the need to rein in the Canadian approach to complicity under art. 1F(a) to ensure that individuals are not excluded from refugee protection for merely being associated with others who have perpetrated international crimes.
B. The Purpose of the Refugee Convention and Article 1F(a)
[31] In our view, the purpose of the Refugee Convention, together with the purpose of art. 1F(a), sheds light on the proper approach for determining exclusions from refugee protection based on complicity in international crimes: Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37, art. 31.
[32] The preamble to the Refugee Convention highlights the international community’s “profound concern for refugees” and its commitment “to assure refugees the widest possible exercise of . . . fundamental rights and freedoms”. Our approach to art. 1F(a) must reflect this “overarching and clear human rights object and purpose”: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at para. 57.
[33] That said, the Refugee Convention’s commitment to refugee protection is broad, but not unbounded. It does not protect international criminals. Incorporated directly into Canadian law by s. 98 of the IRPA, art. 1F (a) guards against abuses of the Refugee Convention by denying refugee protection
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;
[34] As the Federal Court of Appeal recognized in Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433, at p. 445: “When the tables are turned on persecutors, who suddenly become the persecuted, they cannot claim refugee status. International criminals, on all sides of the conflicts, are rightly unable to claim refugee status.” In other words, those who create refugees are not refugees themselves: Pushpanathan, at para. 63; Zrig v. Canada (Minister of Citizenship and Immigration), 2003 FCA 178, [2003] 3 F.C. 761, at para. 118.
[35] On the one hand then, if we approach art. 1F(a) too narrowly, we risk creating safe havens for perpetrators of international crimes — the very scenario the exclusion clause was designed to prevent. On the other hand, a strict reading of art. 1F(a) arguably best promotes the humanitarian aim of the Refugee Convention: United Nations High Commissioner for Refugees (“UNHCR”), “Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees”, HCR/GIP/03/05, September 4, 2003 (online), at para. 2.
[36] The foregoing demonstrates the need for a carefully crafted test for complicity — one that promotes the broad humanitarian goals of the Refugee Convention but also protects the integrity of international refugee protection by ensuring that the authors of crimes against peace, war crimes, and crimes against humanity do not exploit the system to their own advantage. As we will explain, these two aims are properly balanced by a contribution-based test for complicity — one that requires a voluntary, knowing, and significant contribution to the crime or criminal purpose of a group.
C. The Role of the Refugee Protection Division: Exclusion Determinations, Not Findings of Guilt
[37] In addition to the purposes of the Refugee Convention and art. 1F(a), the test for complicity must reflect the role of the Board and must work within the practical realities of refugee proceedings.
[38] A refugee hearing is not a criminal trial before an international tribunal. International criminal tribunals render verdicts for some of the most serious crimes in the international legal order. In contrast, the Board makes exclusion determinations; it does not determine guilt or innocence. The purpose of art. 1F(a) “is to exclude ab initio those who are not bona fide refugees at the time of their claim for refugee status”: Pushpanathan, at para. 58.
[39] To achieve this purpose, Board hearings tend to be less formal than criminal trials. The Board is not bound by traditional rules of evidence: IRPA , at s. 170 (g) and (h); Thamotharem v. Canada (Minister of Citizenship and Immigration), 2007 FCA 198, [2008] 1 F.C.R. 385, at para. 41; Kumar v. Canada (Citizenship and Immigration), 2009 FC 643 (CanLII), at paras. 28-29. Section 162(2) of the IRPA instructs each division of the Board to “deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit”.
[40] As we will discuss in more detail below, the differences between a criminal trial and a Board hearing are further reflected in — and accommodated by — the unique evidentiary burden applicable to art. 1F(a) determinations: a person is excluded from the definition of “refugee” on the basis of the “serious reasons for considering” standard.
[41] In light of these features of refugee proceedings, it is unnecessary to craft a multitude of tests for each mode of commission through which a government official may be held complicit in the crimes committed by his or her government. Unique considerations may arise in cases where the individual is said to have control or responsibility over the alleged perpetrators, or where the individual allegedly made specific contributions to a specific crime (in the form of instigating, ordering, or inciting, for example). However, here we are concerned with general participation in a group’s criminal activity. We must determine when that participation becomes a culpable contribution.
D. The Board Must Rely on International Law to Interpret Article 1F(a)
[42] Following the express direction in the text of art. 1F(a), we now turn to international law for guidance. As mentioned, art. 1F(a) excludes individuals when “there are serious reasons for considering that” they have “committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments”. We must therefore consider international criminal law to determine whether an individual should be excluded from refugee protection for complicity in international crimes: Harb v. Canada (Minister of Citizenship and Immigration), 2003 FCA 39, 302 N.R. 178, at para. 8. We will also look to international jurisprudence for guidance: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at paras. 82 and 126.
[43] In our view, international law is relevant both for the elements of the offences and their potential modes of commission. As the appellant stated, art. 1F(a) is not concerned with simply identifying the substantive elements of the offence, but with whether there are serious reasons for considering that the individual has committed a crime as defined in international law. Since there is no dispute in this appeal that the elements of the crimes have been carried out by the government of the DRC, we are concerned here with modes of commission.
[44] Whether an individual is complicit in an international crime cannot be considered in light of only one of the world’s legal systems: Ramirez, at p. 315; Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.), at p. 323. This flows not only from the explicit instruction in art. 1F(a) to apply international law, but also from the extraordinary nature of international crimes. They simply transcend domestic norms. As Fannie Lafontaine explains in Prosecuting Genocide, Crimes Against Humanity and War Crimes in Canadian Courts (2012), at p. 95:
Genocide, crimes against humanity and war crimes, because of their very raison d’être, their particular magnitude and the context of their commission, cannot be assimilated to ordinary crimes, regardless of the latter crimes’ intrinsic gravity.
[45] International criminal law, while built upon domestic principles, has adapted the concept of individual responsibility to this setting of collective and large-scale criminality, where crimes are often committed indirectly and at a distance. As Gerhard Werle puts it, at p. 954:
When allocating individual responsibility within networks of collective action, it must be kept in mind that the degree of criminal responsibility does not diminish as distance from the actual act increases; in fact, it often grows. Adolf Hitler, for example, sent millions of people