Inadmissible for Crimes Against Humanity

Section 35 of the Immigration and Refugee Protection Act (the “IRPA“) provides that:

Human or international rights violations

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;

(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; or

(c) being a person, other than a permanent resident, whose entry into or stay in Canada is restricted pursuant to a decision, resolution or measure of an international organization of states or association of states, of which Canada is a member, that imposes sanctions on a country against which Canada has imposed or has agreed to impose sanctions in concert with that organization or association.

Internal Guideline

Immigration, Refugees and Citizenship Canada (“IRCC“) has produced a useful internal document summarizing the jurisprudence (up to about 2010) on the interpretation of this section, and I have reproduced it below. More recent jurisprudence can be found throughout my blog, but the IRCC document is a very useful summary.

Please note that what I have reproduced below should not be viewed as legal advice. I obtained a copy of this internal Citizenship and Immigration Canada training guide through an Access to Information Act request (the “ATI”). The reproduction of question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada. (I have decided not to reproduce the names of the Service Canada officers involved.) Please e-mail me if you want a copy of the original question and answer contained in the ATI.

35 - Inadmissibility

Onus of Proof

In order for IRCC to establish that someone is inadmissible to Canada for human or international rights violations, the standard of proof required is more than a flimsy suspicion, but less than the civil test of balance of probabilities. It is much lower threshold than the criminal standard of “beyond a reasonable doubt”.

Pursuant to the Federal Court decision in Andeel v. Canada (Minister of Citizenship and Immigration), 2003 FC 1085, it is also necessary for officers to explicitly state why an action constitutes a crime against humanity according to international law, conventional international law or by virtue of its being criminal according to the general principles of law recognised by the international community.

Test for Senior Official

Regulation 16 of the Immigration and Refugee Protection Regulations, SOR/2002-227 provides a non-exhaustive list of the positions which may meet the definition of “prescribed senior official” in paragraph 35(1)(b) of the IRPA. It states:

16 For the purposes of paragraph 35(1)(b) of the Act, a prescribed senior official is a person who, by virtue of the position they hold or held, is or was able to exert significant influence on the exercise of government power or is or was able to benefit from their position, and includes

(a) heads of state or government;

(b) members of the cabinet or governing council;

(d) senior members of the public service;

(e) senior members of the military and of the intelligence and internal security services;

(f) ambassadors and senior diplomatic officials; and

(g) members of the judiciary.

The test that has evolved to determine whether someone is a “senior” member of an organization is whether the position is in the top half of an organization. In Younis v. Canada (Citizenship and Immigration), 2010 FC 1157, it was found that an individual who had been a lieutenant-colonel in the Iraqi army during the Saddam regime was a senior official because it was the sixth highest rank out of 15, and because there were only 5,400 lieutenant colonels in an army of 1.4-million during the relevant time.

Federal Court jurisprudence has established that there are two stages to the analysis that an officer must undertake when determining if an individual is a prescribed senior official within the meaning of paragraph 35(1)(b) of the IRPA. At the first stage of the analysis, the officer should look to see whether the individual has held one of the positions enumerated in section 16 of the Regulations. If the officer determines that the individual has held one of the enumerated positions, then there is an irrefutable presumption that the individual is or was a prescribed senior official. If the officer determines that the individual has not held one of the enumerated positions, the officer may then consider whether the individual, despite not holding an enumerated position, was able to exercise significant influence on the regime’s actions or policies or was able to benefit from their position. If the officer determines that the individual is or was a prescribed senior official, they should then proceed to the second stage of the analysis, the application of paragraph 35(1)(b) of the IRPA. At this stage, the individual deemed to be or have been a prescribed senior official does not have the opportunity to demonstrate that even though he or she in theory had high-level responsibilities, he or she was not able to exert any influence on the exercise of government power.

It can often be difficult to determine whether someone is a “senior” advisor, a “senior” member of the public service, or a “senior” member of the military. For the purpose of determining whether someone was a senior member of the military, the Federal Court in Sekularac v Canada (Citizenship and Immigration), 2018 FC 381 stated that if it can be demonstrated that the individual falls within the top half of the military hierarchy, that is sufficient to find that the individual is a senior member of the military within the meaning of subsection 16(e).

In Kassab v. Canada (Citizenship and Immigration), 2018 FC 1215, Justice Manson expressed scepticism that such an approach makes sense in the civil service, and certified the following question:

In determining whether an individual is a prescribed senior official within the meaning of paragraph 35(1)(b) of the Immigration and Refugee Protection Act, SC 2001, c 27 on the basis that the individual may be a senior member of the public service as enumerated in subsection 16(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227, when significant evidence is put forward that the individual was unable to exert significant influence or benefit from their position, can an officer conclude that an individual is a senior member of the public service solely on the basis that the individual is within the top half of the government hierarchy, or is the officer required to conduct a broader analysis and consider such evidence?

However, in Canada (Citizenship and Immigration), 2020 FCA 10, the Federal Court of Appeal found that such a strict approach does make sense. It answered the certified question by stating:

If an officer is satisfied that an individual occupies or occupied a senior position in the reporting hierarchy of the public service of a designated regime, the officer may reasonably conclude that the individual is or was a “senior member of the public service” and a “prescribed senior official” within the meaning of paragraph 35(1)(b) of the Act and section 16 of the Regulations. A broader analysis into the individual’s ability to benefit or exert influence is not required in this circumstance.

The Court stated:

In the third edition of her work Statutory Interpretation (Toronto: Irwin Law, 2016) at page 80, Professor Ruth Sullivan explains that non-exhaustive definitions “are usually introduced by the expression ‘includes,’ or ‘does not include,’ followed by a directive which adds or subtracts from the ordinary (or technical) meaning of the defined term.” She provides the following example:

In this Part,

“nets” includes crab pots and lobster traps but does not include gill nets.

Professor Sullivan then explains:

This definition presupposes that the interpreter knows or will be able to determine the ordinary meaning of “nets” in this context. The point of the definition is not to fix the meaning of “nets” but to ensure that provisions governing the use of nets apply equally to crab pots and lobster traps, which are functional equivalents, and do not apply to gill nets, which are meant to be governed by different rules.

Applying this principle to the definition of “prescribed senior official”, the definition is worded so as to ensure that “senior members of the public service” are included within the definition of a “prescribed senior official”. In every case, the focus of the inquiry is to be on whether a member of the public service qualifies as a “senior” member of the public service. Senior members of the public service are deemed “by virtue of the position they hold or held” to be or to have been “able to exert significant influence” on the regime.

The Federal Court of Appeal’s main reasoning was that in order to avoid evidentiary issues in proving that someone could have exerted influence on a brutal government, Canadian immigration law deems that they could.

It is necessary, however, that there be evidence as to the size of the organization. In Al-Rubaye v. Canada (Citizenship and Immigration), 2023 FC 1089, Justice Southcott stated:

I agree with the Applicant that the case at hand is more akin to Lutfi v Canada (Minister of Citizenship and Immigration), 2005 FC 1391, which held to be unreasonable a conclusion that a lieutenant colonel was inadmissible to Canada as a prescribed senior official in the Iraqi government. Justice Harrington’s reasoning included the fact that there was no information on file as to the size of the armed forces, the number of rankings ahead of lieutenant colonel, and how many persons occupied those positions. As Justice Harrington expressed the point – for all the Court knew, there may have been 100,000 generals in the Iraqi armed forces (at para 14).

While that comment is perhaps expressed in hyperbolic terms, it makes the point that an officer making an inadmissibility determination under paragraph 35(1)(b) must rely on evidence rather than assumptions, including assumptions that the structure of a foreign civil service is the same as or comparable to that of Canada. As explained in Hamidi, it is an error to apply Canadian standards to foreign hierarchies (at para 26).

History of Provision

Please note that much of the following explanation below on the legal framework for the prosecution of crimes against humanity in Canada has been reproduced word for word from the Federal Court of Canada’s decision in Canada (Public Safety and Emergency Preparedness) v. Verbanov, 2021 FC 507.

As the Court stated, not all crimes are of international concern. In most cases, punishing crimes is a domestic matter. Nonetheless, some crimes threaten the security and well-being of the global community and their repression rightly belongs to the realm of international law. Crimes against humanity constitute one category of international crimes. Defining international crimes such as crimes against humanity is a complex endeavour drawing upon the multiple sources of international law—treaties, custom, general principles, jurisprudence and academic commentary. To distinguish crimes against humanity from domestic crimes not deserving of international attention, their definition includes an additional element aimed at fully capturing their scale and gravity, over and above the elements of underlying offences such as murder or torture.

The first international prosecution of crimes against humanity was in response to the tragedy of the Holocaust and the horrendous crimes of the Nazi regime. The distinguishing element of crimes against humanity was then defined in terms of the relationship of the crime with armed conflict, or what became known as the “war nexus.” In the 1990s, the commission of mass-scale atrocities in several countries led to the creation of ad hoc tribunals with the limited jurisdiction to prosecute international crimes in relation to those events. Most influential amongst them were the International Criminal Tribunal for the former Yugoslavia (the “ICTY”) and the International Criminal Tribunal for Rwanda (the “ICTR”). As a “war nexus” was not readily established with respect to the events unfolding in Rwanda, the distinguishing element of crimes against humanity was reformulated as a “systematic or widespread attack against any civilian population […]” in the ICTR Statute. On its part, the ICTY Statute retained the “war nexus” in its Statute, but the ICTY interpreted it as a jurisdictional requirement, not an essential element of the crime. Thus, in practice, the “war nexus” was set aside.

Nonetheless, the ICTY adopted the concept of “widespread or systematic attack” as the necessary threshold to distinguish between ordinary crimes and crimes against humanity, even though it was not explicitly mentioned, let alone defined, in its own statute. It emphasized the “special nature” and “greater degree of moral turpitude” at the core of these crimes: Tadić, at paragraph 271. From that point onward, this requirement had clearly become an essential part of the definition of crimes against humanity.

Yet, the requirement of a “widespread or systematic attack” gave rise to interpretive difficulties. While everyone agreed that random and isolated attacks should not be a matter of international concern and that the concept of “widespread and systematic attack” implied a certain degree of coordination, the articulation of this standard remained controversial. One manner of expressing this degree of coordination was the policy requirement, that is, that the underlying offences must have been committed pursuant to a policy or ideology or to achieve a collective goal. Another issue was whether crimes against humanity could only be committed by States or also by other organizations such as guerilla groups. In this regard, the two issues intersected, as the policy requirement was sometimes considered as an impediment to the accountability of non-State groups.

In 1987, Parliament amended the Criminal Code, RSC 1985, c C-46, to make crimes against humanity a distinct offence under Canadian law. Section 7(3.76) of the Code defined these crimes by reference to customary or conventional international law. Moreover, Parliament amended the former Immigration Act, RSC 1985, c I-2, to render inadmissible to Canada “persons who there are reasonable grounds to believe have committed … a crime against humanity within the meaning of subsection 7(3.76) of the Criminal Code”.

Mugusera v. Canada (Minister of Citizenship and Immigration), was a 2005 Supreme Court of Canada decision that determined which elements of an offence must be present in order for an action to constitute a crime against humanity. It dealt with the admissibility of a Rwandan national alleged to have incited murder, genocide and hatred in a speech made in Rwanda in 1992 The Court stated at paragraph 19 that:

As we shall see, based on the provisions of the Criminal Code and the principles of international law, a criminal act rises to the level of a crime against humanity when four elements are made out:

1. An enumerated proscribed act was committed (this involves showing that the accused committed the criminal act and had the requisite guilty state of mind for the underlying act);

2. The act was committed as part of a widespread or systematic attack;

3. The attack was directed against any civilian population or any identifiable group of persons; and

4. The person committing the proscribed act knew of the attack and knew or took the risk that his or her act comprised a part of that attack.

The Supreme Court also discussed whether an attack needed to be carried according to a government policy or plan, which was a matter of controversy in international law at the time. It found that customary international law did not impose such a requirement. In Canada (Citizenship and Immigration) v. Jozepović, 2023 FC 1660, the Federal Court affirmed the applicability of this test in the immigration context.

In July, 2002, the Rome Statute of the International Criminal Court (the “Rome Statute”) came into effect and established the International Criminal Court (the “ICC”). It shifted the nature of State response to crimes against humanity from a retroactive, situation-driven and localized approach to a proactive, global and collaborative mindset. It provided a comprehensive definition for all crimes under the ICC’s jurisdiction, including crimes against humanity.

Sections 4 to 7 of the CAHWCA

Pursuant to s. 35(1)(a) of the IRPA, a permanent resident or a foreign national is inadmissible to Canada on grounds of violating human or international rights for 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 (the “CAHWCA”). Parliament enacted the Crimes Against Humanity Act to fulfil Canada’s obligations under the Rome Statute. While the new legislation retains certain aspects of the former provisions of the Criminal Code, for example the definition of crimes against humanity by reference to international conventional and customary law, this is done in a manner that recognizes that the Rome Statute is the result of a significant codification effort and now occupies a pre-eminent place among the sources of international criminal law, given that it attracts the broad consensus of the international community.

Section 4 of the CAHWCA includes genocide, a crime against humanity and war crimes.

Crimes against humanity means murder, extermination, enslavement, deportation, imprisonment, torture, sexual violence, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group and that, at the time and in the place of its commission, constitutes a crime against humanity according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.

Genocide means an act or omission committed with intent to destroy, in whole or in part, an identifiable group of persons, as such, that, at the time and in the place of its commission, constitutes genocide according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.

War crime means war an act or omission committed during an armed conflict that, at the time and in the place of its commission, constitutes a war crime according to customary international law or conventional international law applicable to armed conflicts, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.

The Rome Statute provides guidance in interpreting some of the provisions above.

Article 6 of the Rome Statute defines “genocide” as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group; or

(e) Forcibly transferring children of the group to another group.

Under the Rome Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) Murder;

(b) Extermination;

(d) Deportation or forcible transfer of population;

(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

(f) Torture;

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

(i) Enforced disappearance of persons;

(j) The crime of apartheid;

(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

The Rome Statute further states that for the purpose of the above definitions:

(a) “Attack directed against any civilian population” means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;

(b) “Extermination” includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population;

(c) “Enslavement” means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children;

(d) “Deportation or forcible transfer of population” means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law;

(e) “Torture” means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;

(f) “Forced pregnancy” means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy;

(g) “Persecution” means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;

(h) “The crime of apartheid” means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime;

(i) “Enforced disappearance of persons” means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.

Finally, the Rome Statute defines war crimes as including:

(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

(i) Wilful killing;

(ii) Torture or inhuman treatment, including biological experiments;

(iii) Wilfully causing great suffering, or serious injury to body or health;

(iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;

(v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;

(vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;

(vii) Unlawful deportation or transfer or unlawful confinement;

(viii) Taking of hostages.

(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:

(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

(ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;

(iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;

(iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;

(v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;

(vi) Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;

(vii) Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury;

(viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;

(ix) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;

(x) Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;

(xi) Killing or wounding treacherously individuals belonging to the hostile nation or army;

(xii) Declaring that no quarter will be given;

(xiii) Destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war;

(xiv) Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party;

(xv) Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent’s service before the commencement of the war;

(xvi) Pillaging a town or place, even when taken by assault;

(xvii) Employing poison or poisoned weapons;

(xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;

(xix) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions;

(xx) Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123;

(xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;

(xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions;

(xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;

(xxiv) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;

(xxv) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions;

(xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.

Section 5 of the CAHWCA includes commanders and superiors of who fail to execute proper control over individuals, or fail to prevent the commission, of the crimes described above.

Sections 6 and 7 of the CAHWCA include the substantially the same offences as sections 4 and 5, but apply to actions outside of Canada.

Widespread and Systemic

A widespread attack may be defined as massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims. It need not be carried out with a specific strategy, policy, or plan.

A systemic attack is one that is thoroughly organized and follows a regular pattern on the basis of a common policy involving substantial public or private resources. It is carried out pursuant to a policy or plan, although the policy need not be an official state policy and the number of victims is not determinative. The word “systemic” signifies the organized nature of the acts of violence and the improbability of their random occurrence. Patterns of crime – that is the non-accidental repetition of similar criminal conduct on a regular basis – are a common expression of such systemic occurrence.

The widespread or systemic nature of an attack will ultimately be determined by examining the means, methods, resources, and results of the attack on a civilian population. Only the attack need to be widespread or systemic, not the act of the accused.

In Ali v. Canada (Citizenship and Immigration), 2021 FC 698 the Federal Court of Canada ruled that it was reasonable for the Immigration Division to determine that membership in Pakistan’s Punjab Police could render someone inadmisisble for crimes against humanity.

State Policy

As the Federal Court summarized in Canada (Public Safety and Emergency Preparedness) v. Verbanov, 2021 FC 507:

In particular, the Rome statute settled the debate regarding the policy element and adopted it as a necessary ingredient of crimes against humanity:

7(1) For the purpose of this Statute, “crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(2) For the purpose of paragraph 1:

The meaning of policy was further defined through the following provision of the Elements of Crimes, a set of guidelines adopted by the Assembly of State Parties pursuant to article 9 of the Rome Statute:

[…] It is understood that “policy to commit such attack” requires that the State or organization actively promote or encourage such an attack against a civilian population.⁶

⁶ A policy which has a civilian population as the object of the attack would be implemented by State or organizational action. Such a policy may, in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack. The existence of such a policy cannot be inferred solely from the absence of governmental or organizational action.

As such, Mugesera’s holding that there does not need to be a policy requirement in order for there to be a crime against humanity no longer applies.

Complicity

Pursuant to the Federal Court of Canada decision in Talpur v Canada (Citizenship and Immigration), 2016 FC 822, an individual is complicit in crimes against humanity if there are reasonable grounds to believe that he or she has voluntarily made a significant and knowing contribution to the organization’s crime or criminal purpose. Reasonable grounds to believe exist where there is an objective basis for the belief that is based on compelling and credible information.

Pursuant to the Federal Court of Canada decision in Ghazala Asif Khan v Canada (Citizenship and Immigration), 2017 FC 269, in assessing whether an individual has made a significant and knowing contribution to the crimes committed by an organization, consideration should be given to the following non-exhaustive factors:

(a) the size and nature of the organization;

(b) the part of the organization with which the individual was most directly concerned;

(d) the individual’s position or rank within the organization;

(e) the length of time the individual was in the organization, particularly after acquiring knowledge of the group’s crime or criminal purpose; and

(f) the method by which the individual was recruited and his or her opportunity to leave the organization.

Pursuant to the Federal Court decision in Jelaca v. Canada (Citizenship and Immigration), 2018 FC 887 an individual can be inadmissible under s. 35(1)(a) even if they were a low level grunt conscripted into the military.

Russia – Ukraine War

In 2022 Russia invaded Ukraine. According to IRCC, as of February, 2023, more than 65000 war crimes were reported. IRCC is monitoring the conflict to determine which Russian military units were involved in war crimes for the purpose of A35(1)(a) inadmissibility.

Russia

Iran

On September 15, 2024, Canada announced that:

Canada stands with the people of Iran, who continue to fight for their human rights. We have taken action to stop senior members of the Iranian regime from seeking or finding safe haven in Canada.

The Minister of Public Safety first designated the Iranian regime in November 2022, under paragraph 35(1)(b) of the IRPA. This was because Canada identified the Islamic Republic of Iran as a regime that engages or has engaged in terrorism and systematic or gross human rights violations. This earlier designation meant that all senior officials who served in the regime from November 15, 2019 onwards became inadmissible to Canada.

In September 2024, the Minister of Public Safety amended the start date of the designation of the Iranian regime from November 15, 2019 to June 23, 2003. On this day in June, 2003, the Iranian regime arbitrarily detained Iranian-Canadian photo-journalist Zahra Kazemi, who was subsequently tortured while in detention and died within weeks.

This amendement means that all senior officials who served in the regime from June 23, 2003 onwards are now inadmissible to Canada.

IRCC Presentations

The following are several IRCC powerpoints about inadmissibility under s. 35.

Revocation of Citizenship
DOJ Section 35