Ezokola and the Test For Complicity

22nd Jul 2013 Comments Off on Ezokola and the Test For Complicity

Last updated on July 3rd, 2020

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;

Pursuant to the Supreme Court of Canada decision in Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40, a crime against humanity is committed when each of the following four elements is satisfied:

  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 who committed 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 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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Four Case Comments (Including Agraria)

27th Jun 2013 Comments Off on Four Case Comments (Including Agraria)

Agraria v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36

This is a Supreme Court of Canada decision so there is much to take from it, and I will barely be able to begin to scratch the surface in this post.

Mr. Agraria submitted an IRPA s. 34(2) application for ministerial relief in 2002.  The Minister of Public Safety and Emergency Preparedness refused this application in 2009, concluding that it was not in the national interest to admit individuals to Canada who had had sustained contact with known terrorists and/or terrorist-connected organizations.  Mr. Agraria’s role in the organization was apparently to engage people in political discourse, deliver envelops, and raise funds.  The Canada Border Services Agency actually recommended to then Minister that he admit Mr. Agraria, as, in their words:

He appears to have been a regular member who did not occupy a position of trust or authority within the LNSF.  He does not appear to have been totally committed to the LNSF specifically as he indicated to the immigration officer at CIC Oshawa that he would support anyone who tried to rmeove the current regime in Libya through non-violent means.

The Minister overruled his Department, and determined that it was not in the national interest to admit him.

(The above scenario raises two questions about current policy.  The first is that Mr. Agraria was determined inadmissible to Canada for security reasons in 2002.  Yet, he was allowed to remain in the public while the Minister took seven years to process his application.  If the Canadian government truly believed that this individual was a possible threat to the public, you’d think they would have either detained him or acted sooner.  And, if they didn’t think he was a threat to the public (as their actions imply),

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