Complicity in Article 1FA Cases

In 2013, the Supreme Court of Canada in Ezokola v. Canada (Citizenship and Immigration) created a new test for determining Article 1F(a) exclusions.

Article 1F(a) of the 1951 Refugee Convention provides that:

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;

The issue that Ezokola addressed is how broad Article 1F(a) is.  It if it interpreted too narrowly, then Canada risks creating safe havens for perpetrators of international crimes.  If it is read too broadly, then the humanitarian aims of the 1951 Refugee Convention would be imperilled.

The Test

Ezokola provides that to exclude a claimant from the definition of “refugee” by virtue of Article 1F(A), there must be serious reasons for considering that the claimant voluntarily made a significant and knowing contribution to an organization’s crime or criminal purpose.  The refugee claimant’s contribution does not have to be “directed to specific identifiable crimes” but can be directed to “wider concepts of common design, such as the accomplishment of an organization’s purpose by whatever means are necessary including the commission of war crimes.”  The degree of contribution must be carefully assessed. Some of the more poignant paragraphs from Ezokola are:

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.

. . .

At a minimum, complicity under international criminal law requires an individual to knowingly (or, at the very least, recklessly) contribute in a significant way to the crime or criminal purpose of a group.

. . .

. . . unless an individual has control or responsibility over the individuals committing international crimes, he or she cannot be complicit by simply remaining in his or her position without protest.

. . .

Given that contributions of almost every nature to a group could be characterized as furthering its criminal purpose, the degree of the contribution must be carefully assessed. The requirement of a significant contribution is critical to prevent an unreasonable extension of the notion of criminal participation in international criminal law. (all emphasis is mine)

Hence, to be complicit, the individual must be aware of the government’s or organization’s crime or criminal purpose, and be aware that his or her conduct will assist in the furtherance of the crime or criminal purpose.

Complicity will not arise where an individual has committed no guilty act and has no criminal knowledge or intent, beyond a mere awareness that other members of the group have committed illegal acts.  In other words, complicity does not attach to omissions unless an individual is under a duty to act.  There is also no complicity by association or passive acquiescence.

Ezokola further provides that to determine whether an individual’s conduct meets the actus reus and mens rea for complicity, several factors may be considered.  These are:

  • The size and nature of the organization – This is relevant because it can help determine the likelihood that a claimant would have known of and participated in the crime or criminal purpose.  If an organization is multifaceted or heterogenous, the link between the contribution and the criminal purpose will be more tenuous.   Even for groups with a limited and brutal purpose, the individual’s conduct and role within the organization must still be carefully assessed, on an individualized basis, to determine whether the contribution was voluntary and significant. 
  • The part of the organization with which the refugee claimant was most directly concerned – A claimant’s exclusive affiliation with another part(s) of an organization can serve to exonerate him or her from Article 1FA.
  • The refugee claimant’s duties and activities within the organization – The Board must consider the link between the duties and activities of a claimant, and the crimes and purposes of the organization.
  • The refugee claimant’s position or rank in the organization – By virtue of their position and rank, individuals may have effective control over those directly responsible for criminal acts.
  • The length of time the refugee claimant was in the organization, particularly after acquiring knowledge of the group’s crime or criminal purpose – A lengthy period of involvement may also increase the significance of an individual’s contribution to the organization’s crime or criminal purpose.
  • The method by which the refugee claimant was recruited and the refugee claimant’s opportunity to leave the organization – An individual’s involvement may not be voluntarily if the individual was coerced into joining, supporting, or remaining in the organization.  Similarly, an individual’s involvement may not be voluntary if he did not have the ability to leave, especially after acquiring knowledge of crime or criminal purpose.

The purpose of Ezokola is perhaps best thought of as removing “guilt by association” as a reason for exclusion from refugee protection. For example, in Habibi v. Canada (Citizenship and Immigration), 2016-02-26, the Federal Court stated:

The Supreme Court noted in Ezokola that application of these factors is highly contextual, with the ultimate purpose “to determine whether there was a voluntary, significant, and knowing contribution to a crime or criminal purpose” (at para 92).

..

The RPD in this case failed to fully assess whether Mr. Habibi had personally made a significant and knowing contribution to some crime or crime against humanity. The RPD found Mr. Habibi was associated with the national police, who were in turn associated with other enforcement agencies in Iran who committed crimes against humanity. This reasoning is inherently problematic. The RPD essentially finds Mr. Habibi guilty by association; that is, Mr. Habibi is associated with the national police force, and because the police in turn are associated with other enforcement organizations which committed crimes against humanity, that makes him complicit in those crimes. There was no evidence before the RPD that Mr. Habibi in particular, or other members of the District 8 Police Station in Tabriz, had participated in any abuses or played any role in working with other enforcement agencies.

Habibi v. Canada (Citizenship and Immigration) is a good example of how Ezokola is being applied. There, Justice Boswell stated:

The RPD in this case failed to fully assess whether Mr. Habibi had personally made a significant and knowing contribution to some crime or crime against humanity. The RPD found Mr. Habibi was associated with the national police, who were in turn associated with other enforcement agencies in Iran who committed crimes against humanity. This reasoning is inherently problematic. The RPD essentially finds Mr. Habibi guilty by association; that is, Mr. Habibi is associated with the national police force, and because the police in turn are associated with other enforcement organizations which committed crimes against humanity, that makes him complicit in those crimes. There was no evidence before the RPD that Mr. Habibi in particular, or other members of the District 8 Police Station in Tabriz, had participated in any abuses or played any role in working with other enforcement agencies.

Implications for Membership in a Terrorist Organization

Ezokola may impact admissibility criteria beyond complicity in Article 1F cases.  In Kanagendran v. Canada (Citizenship and Immigration), for example, the applicant argued that Ezokola has the effect of changing the legal test for assessing membership in terrorist organizations pursuant to subsection 34(1)(f) of the Immigration and Refugee Protection Act.  Although Justice Strickland found that it did not, he did certify the following question of general importance:

Does Ezokola v Canada (Minister of Citizenship and Immigration), 2013 SCC 40 (CanLII), [2013] 2 SCR 678, change the existing legal test for assessing membership in terrorist organizations, for the purposes of assessing inadmissibility under paragraph 34(1)(f) of the Immigration and Refugee Protection Act, SC 2001, c 27?

In April, 2015, the Federal Court of Appeal determined that Ezokola did not change the existing IRPA 34(1)(f) test, stating that:

Nothing in paragraph 34(1)(f) requires or contemplates a complicity analysis in the context of membership. Nor does the text of this provision require a “member” to be a “true” member who contributed significantly to the wrongful actions of the group. These concepts cannot be read into the language used by Parliament.

This textual analysis of paragraph 34(1)(f) is informed by contextual and purposive considerations.

The first contextual factor is paragraph 34(1)(c) of the Act which renders a person inadmissible for “engaging in terrorism”. Thus, paragraph 34(1)(c) of the Act contemplates actual participation in acts of terrorism, while paragraph 34(1)(f) is only concerned with membership in a terrorist organization. On the appellant’s interpretation of “membership”, paragraph 34(1)(c) would be redundant.

Moreover, as noted by the Federal Court in Nassereddine v. Canada (Minister of Citizenship and Immigration), 2014 FC 85, 22 Imm. L.R. (4th) 297, at paragraph 74, while paragraph 34(1)(c) could possibly engage a consideration of complicity, this provision is not relevant to the finding under review that the appellant is inadmissible as a result of his membership in the TNA.

The second contextual factor is section 42.1 of the Act which permits the Minister to find a person not to be inadmissible pursuant to section 34 if the Minister is satisfied that such a finding is not contrary to the national interest. Because of the very broad range of conduct that gives rise to inadmissibility under paragraph 34(1)(f), the Minister is given discretion to grant relief against inadmissibility. There is no similar relieving provision applicable to a finding of inadmissibility under paragraph 35(1)(a). A relieving provision is not required where inadmissibility flows from the commission of an offence whether as perpetrator or accomplice.

Finally, I note that the purposes underlying subsection 34(1) and paragraph 35(1)(a) are very different. Paragraph 34(1)(f) is animated by security concerns. This purpose is served by a wide definition of membership. In contrast, paragraph 35(1)(a) guards against abuse of the Refugee Convention by those who create refugees: those who create refugees are not refugees themselves (Ezokola, at paragraph 34).

Implication for Human or International Rights Violations

While Ezokola did not change the test for IRPA s. 34(1) inadmissibility, the Federal Court in Concepcion v. Canada (Citizenship and Immigration), 2016 FC 544 that it does impact the IRPA s. 35(1)(a) inadmissibility analysis. IRPA s. 35(1)(a) states:

35 (1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for

(a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act.

In Zazai v. Canada (Minister of Citizenship and Immigration), 2005 FCA 303, the Federal Court of Appeal found that the definition of “crime against humanity” found at subsection 6(3) of the Crimes Against Humanity and War Crimes Act includes complicity.

Accordingly, as a result of the Supreme Court of Canada decision in Ezokola, the test for inadmissibility under s 35(1)(a) where the action involves complicity requires serious reasons for considering that a person has voluntarily made a significant and knowing contribution to an offence contrary to the Crimes Against Humanity and War Crimes Act, or to a group’s criminal purpose.

Hence, in Blazic v. Canada, 2016 FC 901, the Federal Court stated:

The reports relied upon in the Decision provide graphic details of the war crimes committed by the 43rd Motorized Brigade to which the husband belonged. There is no denying the magnitude of the crimes against humanity that were committed in the war in Bosnia. There is no denying the husband was present in Prijedor during the time those atrocities were committed. However, in Ezokola the Supreme Court at paragraph 74 warns that we must guard against “a complicity analysis that would exclude individuals from refugee protection on the basis of mere membership or failure to dissociate from a multifaceted organization which is committing war crimes.”

Implication for Being a Prescribed Member of a Government that Commits Human Rights Violations

The Federal Court, has, however, ruled that Ezokola does not change the analysis in IRPA s. 35(1)(b) analysis. IRPA s. 35(1)(b) states:

35 (1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for

(b) being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act;

In Al-Naib v. Canada (Public Safety and Emergency Preparedness), the Federal Court stated:

Nothing in the language of paragraph 35(1)(b) of the IRPA or in paragraph 16(f) of the IRPR contemplates the requirement for a complicity analysis in the context of determining if an individual is a senior diplomatic official in the service of a designated government; “These concepts cannot be read into the language used by Parliament” (Kanagendren at para 22).


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