Ezokola and the Test For Complicity

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

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.

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Duress and Inadmissibility to Canada

The Supreme Court of Canada has “clarified” the elements of the duress defence.  The defence is important because it can affect admissibility.  For example, in Guerra Diaz v. Canada (Citizenship and Immigration), 2013 FC 88, the Court determined that the Immigration and Refugee Board improperly applied the test of whether duress applied, and ordered a new hearing by a different member.

It is basically trite law that where there is duress, then a person does not have the mens rea do either commit a crime or be a member in a group that renders the individual inadmissible to Canada.  In Jalloh v. Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC 317, the Federal Court stated that:

In my view, it is preferable to consider the evidence of membership along with the evidence of coercion in determining whether there are reasonable grounds to believe the person genuinely was a member of the group. One way of looking at this issue is to regard evidence of duress as defeating the mens rea of membership (Thiyagarajah v Canada (Minister of Citizenship and Immigration), 2011 FC 339). Accordingly, evidence relating to duress must be considered along with the evidence relating to membership in deciding whether the person really was a member of the group or, rather, was motivated by self-preservation.

In sum, a person cannot be considered to be a member of a group when his or her involvement with it is based on duress. At a minimum, a member is someone who intentionally carries out acts in furtherance of the group’s goals. A person who performs acts consistent with those goals while under duress cannot be said to be a genuine member.

Therefore, the finding of membership should rest on indicia that the person’s intentions were consonant with the group’s objects, not survival. The evidence should be considered as a whole to determine whether the person was truly a member or whether his or her acts carried out in the group’s name were coerced. It must be remembered, of course, that the issue to be decided under s 34(1)(f) is whether there are reasonable grounds to believe that the person was a member, not whether the evidence establishes such a connection on a balance of probabilities, or whether duress has been made out on any particular standard of proof. This, too, suggests that all of the relevant evidence should be considered together.

That duress can negate membership in a group rendering a person inadmissible was again recently affirmed in T.K v. Canada (The Minister of Public Safety and Emergency Preparedness), 2013 FC 327.

Individuals and representatives intending to rely on the defense of duress should accordingly carefully read the Supreme Court of Canada’s decision.

In R v. Ryan, Supreme Court clarified the elements of the defence of duress, which was raised when a battered spouse tried to have her husband murdered.  The Supreme Court took the opportunity to clarify the law of duress.  The following requirements must be met for there to be duress:

  • There must be an explicit or implicit threat of death or bodily harm proffered against the accused or a third person.  The threat may be of future harm, although there must be a close connection in time such that the accused essentially loses the ability to act freely;
  • The accused reasonably believed that the threat would be carried out as analyzed on a modified objective basis according to the test of the reasonable person similarly situated;
  • There is non-existence of a safe avenue of escape, evaluated on a modified objective standard.  In other words, a reasonable person in the same situation as the accused and with the same personal characteristics and experience would conclude that there was no safe escape or legal alternative to committing the offence;
  • There is a close temporal connection between the threat and the harm threatened.  This does not preclude the availability of the defence for cases where there is threat of future harm;
  • There must be proportionality between the harm threatened and the harm inflicted by the accused. This is also evaluated on a modified objective standard.  The harm threatened must be equal to or greater than the harm inflicted by the accused; and
  • The accused is not a party to a conspiracy or association whereby the accused is subject to compulsion and actually knew that threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association.  In other words, did the accused voluntarily put himself into a position where he or she could be coerced?

Supreme Court Clarifies Elements of Conspiracy

On March 1, 2013, the Supreme Court of Canada (the “SCC“) in R v. J.F., clarified the elements of the offence of conspiracy.  The decision has immigration implications because people who have been convicted of conspiracy may be inadmissible to Canada.


Section 465 of Canada’s Criminal Code criminalizes the offence of conspiracy.  Conspiracy is a form of inchoate liability.  In other words, the actual result of the conspiracy need not occur for someone to be convicted under s. 465.  For example, a person can be convicted of “conspiracy to commit murder” even if the murder does not occur.  Furthermore, members in a conspiracy need not personally commit, or intend to commit, the offence which each has agreed should be committed.  Any degree of assistance in the furtherance of the unlawful object can lead to a finding of membership as long as agreement to a common plan can be inferred and the requisite mental state has been established.

Aiding or abetting the formation of an agreement between conspirators amounts to aiding or abetting the principals in the commission of the conspiracy.  Party liability is limited, however, to cases where the accused aids or abets the initial formation of the agreement, or aids or abets a new member to join a pre‑existing agreement.  The SCC ruled that acts that further the unlawful object of a conspiracy are not an element of the offence of conspiracy.  Aiding or abetting the furtherance of the unlawful object does not establish aiding or abetting the principal with any element of the offence of conspiracy.  However, the SCC noted that where a person, with knowledge of a conspiracy, does or omits to do something for the purpose of furthering the unlawful object, with the knowledge and consent of one or more of the existing conspirators, this provides powerful circumstantial evidence from which membership in the conspiracy can be inferred.  Specifically, the Court stated that:

In my view, where a person, with knowledge of a conspiracy (which by definition includes knowledge of the unlawful object sought to be attained), does (or omits to do) something for the purpose of furthering the unlawful object, with the knowledge and consent of one or more of the existing conspirators, this provides powerful circumstantial evidence from which membership in the conspiracy can be inferred.  To be precise, it would be evidence of an agreement, whether tacit or express, that the unlawful object should be achieved.  Ultimately, that issue is one for the trier of fact, who must decide whether any inference other than agreement can reasonably be drawn on the evidence.

A Note on Attempted Conspiracy

It is important to note that there is no such thing in Canada as “attempted conspiracy.”  In R. v. Déry, 2006 SCC 53, the SCC noted that:

When applied to conspiracy, the justification for criminalizing attempt is lost, since an attempt to conspire amounts, at best, to a risk that a risk will materialize.

This differs with some US States, and accordingly any foreign convictions for “attempted conspiracy” would not result in inadmissibility to Canada.