Monday, July 22, 2013

Supreme Court Articulates Canadian Approach to Refugee Protection Convention

Article 1F(a) of the United Nations Convention Relating to the Status of Refugees ("Refugee Convention") denies 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;

Such article of the Refugee Convention is incorporated directly into Canadian law by section 98 of the Immigration and Refugee Protection Act ("Act").

In a case recently decided by the Supreme Court of Canada,  the appellant, Rachidi Ekanza Ezokola, began his career with the government of the Democratic Republic of Congo ("DRC") as a financial attachĂ© in Kinshasa. By 2007, Mr. Ezokola 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 protested that he could no longer work for the government of President Laurent Kabila, which he considered corrupt, anti-democratic and violent. He claimed that his resignation would be viewed as an act of treason by the DRC government and that the DRC's intelligence service had already harassed, intimidated, and threatened him. Mr. Ezokola sought refugee protection for himself and his family in Canada.

A confusing array of decisions resulted from Mr. Ezokola's application:  the Refugee Protection Division of the Immigration and Refugee Board excluded Mr. Ezokola from the definition of refugee under the article of the Refugee Convention ("Article") and found that he was complicit in crimes against humanity committed by the DRC government; the Federal Court allowed Mr. Ezokola's application for judicial review but certified a question regarding the nature of his complicity under the Article; the Federal Court of Appeal held that a senior official in a government, such as Mr. Ezokola, 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 offend the interest of his or her government while being aware of the crimes committed by the government. The FCA remitted the matter to a different panel of the Refugee Protection Division to apply that test to the facts of this case.
On further appeal to a full panel of the Supreme Court of Canada, the court held that Mr. Ezokola's appeal should be allowed and the matter remitted to a new panel of the Refugee Protection Division for redetermination in accordance with the Supreme Court's reasons.

The Supreme Court held that in order to exclude a claimant from the definition of refugee by virtue of the Article, 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 over-extend the concept of complicity to capture individuals based on mere association or passive acquiesces. The court held that it was necessary to articulate the Canadian approach to bring it in line with the purpose of the Refugee Convention and the Article, the role of the Refugee Protection Division, international law, the approach to complicity under the Article taken by other parties to the Refugee Convention and fundamental criminal law principles. These sources all supported 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.

Second, unlike international criminal tribunals, the Refugee Protection Division does not determine guilt or innocence but excludes those that are not bona fide refugees at the time of their claim for refugee status. While the evidentiary standard is lower than that applicable in actual war crimes trials, it requires more than mere suspicion.

Third, in international law, the broad concept of complicity does not hold individuals liable for crimes committed by a group simply because they are associated with the group or passively acquiesce to the group's criminal purposes. Common purpose liability requires a significant contribution to a crime committed or attempted by a group acting with a common purpose and encompasses recklessness with respect to the crime or criminal purpose. However, even it does not capture individuals merely based on rank or association.

Fourth, other state parties to the Refugee Convention have approached the Article in a manner that concentrates on the actual role played by the particular person. 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.

Fifth, and 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 is not attached to admissions unless an individual is under duty to act, and the principle that individuals can only be liable for their own culpable conduct.

The court held that 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 groups crime or criminal purpose; and (vi) the method by which the claimant was recruited and the 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 contribution to the crime or criminal purpose and any viable defences should be taken into account.


Regards,

Blair








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