Date: 20110715
Dossier: A-281-10
Citation: 2011 FCA 224
CORAM: NOËL J.A.
NADON J.A.
PELLETIER J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
and
Rachidi EKANZA EZOKOLA
Respondent
REASONS FOR
JUDGMENT
NOËL J.A.
[1]
The Minister of Citizenship and Immigration (the Minister)
is appealing a decision by Mainville J., then of the Federal Court (the
applications judge), in which he allowed an application for judicial review
filed by Rachidi Ekanza Ezokola (the respondent). The applications judge set
aside the finding of the Immigration and Refugee Board, Refugee Protection
Division (the Panel) that Article 1F(a) of the United Nations
Convention relating to the Status of Refugees (the Convention) applied to
the respondent and that he was therefore not covered by the refugee protection
provisions. He also certified a question of general importance, thereby making
this appeal possible.
[2]
The applications judge intervened on the ground that the
Panel could not have found serious reasons for considering that the respondent
had committed crimes against humanity as a result of his diplomatic duties with
the Permanent Mission of the Democratic Republic of Congo (DRC) to the United
Nations. The applications judge reached this conclusion on the basis of the
test that he adopted for complicity by association, namely, that the individual
must have personally participated in the crimes alleged, personally conspired
to commit them or personally facilitated the commission of those crimes.
Applying this test, he found that the facts relied on by the Panel could not
have allowed it to ascribe responsibility to the respondent for the crimes
alleged (reasons of the applications judge, para. 104), and that the matter
should be heard by a different panel in accordance with the test set out in his
reasons.
[3]
For the following reasons, I am of the view that the appeal
should be allowed, as the applications judge applied a test not found in the
law of complicity. Like him however, I have come to the conclusion that the
matter should be re-examined by another panel, but for different reasons.
RELEVANT FACTS
[4]
In January 1999, the respondent was hired as a
financial attaché at the Ministry of Finance and assigned to the Ministry of
Labour, Employment and Social Welfare. Between July 1999 and November 2000,
the respondent successively occupied the positions of financial attaché and
financial adviser at the Ministry of Human Rights. The respondent was then
transferred to the Ministry of Foreign Affairs and International Cooperation as
a financial adviser to the Minister’s office.
[5]
In June 2003, following the elimination of the
Minister’s office where he worked, the respondent joined the administration as
office manager in the Ministry of Foreign Affairs and International
Cooperation. However, it seems that the respondent did not work much at the
time because he was sick (reasons of the Panel, para. 25).
[6]
In July 2004, the respondent was assigned to the
Permanent Mission of the DRC to the United Nations as second counsellor of
embassy. The respondent’s duties consisted, among other things, of representing
the DRC at the Second Committee (Economic and Financial Committee) and the
Fifth Committee (Administrative and Budgetary Committee) of the United Nations.
The respondent also represented the DRC at the United Nations Economic and
Social Council, as well as acting as a focal point for least developed
countries (LDCs). In that capacity, the respondent represented the DRC at the
LDC Expert Meeting in Ethiopia and the LDC Ministerial Conference in Benin. The respondent acted as a liaison between the Permanent
Mission of the DRC and various United Nations development agencies (ibid.,
paras. 26, 27).
[7]
While on assignment to the United Nations, the respondent
led the Permanent Mission of the DRC as acting chargé d’affaires from February 11 to 19, 2007, and from June 16 to 30, 2007.
During one of these periods, he spoke before the Security Council regarding
natural resources and conflicts in the DRC (ibid., para. 5).
[8]
The respondent submits that the events leading up to his
claim for refugee status began during the campaign for the election of the
President of the DRC. The DRC’s permanent representative to the United Nations
was connected with President Joseph Kabila, who was a candidate, while the
respondent supported a change in government. The opposition candidate was Jean-Pierre Bemba of the Mouvement de
libération du Congo. According to the respondent,
the transfer order assigning him to the Permanent Mission of the DRC to the
United Nations had been signed by the Minister of Foreign Affairs, a position
held at the time within the Congolese transitional government by a member of
the Mouvement de libération du Congo
(reasons of the applications judge, paras. 11, 12).
[9]
The respondent submits that following President Kabila’s
election, an atmosphere of hostility set in against him in the Permanent
Mission. His membership in the Bangala ethnic group made him suspect in the
eyes of supporters of President Kabila, given the connection that ethnic group
had with Mr. Bemba (ibid., para. 14). In September 2007, the
respondent was questioned by two DRC intelligence agents about Mr. Bemba’s
presence in New York. According to the
respondent, the intelligence agents threatened and followed him (ibid.,
para. 15). On January 4, 2008, the respondent and the ambassador had
a [translation] “heated
discussion” about the organization of the conference on peace, security and
development in the provinces of North-Kivu and South-Kivu (reasons of the
Panel, para. 13).
[10]
On January 11, 2008, the respondent signed a letter of
resignation, which he mailed a few days later. The respondent attributes his
resignation to his refusal to serve the corrupt, anti‑democratic and
violent government of President Kabila and alleges that it would be interpreted
as an act of treason by the DRC government (reasons of the applications judge,
para.17). Following his resignation, he fled with his family to Canada. They arrived in Canada on January 17, 2008. The respondent claimed refugee protection
for himself, his wife and their eight children.
LEGISLATION
[11]
Section
98 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(IRPA), states that a person referred to in Article 1F(a) of the Convention is
not considered a refugee or a person in need of protection and, therefore,
cannot benefit from the protection offered by the Convention and the IRPA:
|
98. A person referred to in section E or F
of Article 1 of the Refugee Convention is not a Convention refugee or a
person in need of protection.
|
98. La personne visée aux sections E ou F
de l’article premier de la Convention sur les réfugiés ne peut avoir la
qualité de réfugié ni de personne à protéger.
|
[12]
Article
1F(a) of the Convention, set out in the Schedule to the
IRPA, reads as follows:
|
1. F. 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;
…
|
1. F. Les dispositions de cette Convention
ne seront pas applicables aux personnes dont on aura des raisons sérieuses de
penser :
a) Qu’elles ont commis un
crime contre la paix, un crime de guerre ou un crime contre l’humanité, au
sens des instruments internationaux élaborés pour prévoir des dispositions
relatives à ces crimes;
[…]
|
DECISION OF THE PANEL
[13]
The Panel rejected the respondent’s claim for refugee
protection because it believed that there were serious reasons for considering
that he had been complicit in crimes against humanity, and he was therefore a
person referred to in Article 1F(a) of the Convention and not entitled to
the protection offered by the Convention to refugees and persons in need of
protection.
[14]
The Panel divided its analysis into two parts. First, it
considered whether the government of the DRC had committed crimes against
humanity. The Panel concluded that the acts committed by the DRC government
constituted crimes against humanity, as defined by the Rome Statute of the
International Criminal Court, Can. T.S. 2002 No 13 [Rome Statute]
and by the decisions in Mugesera v. Canada (Minister of Citizenship and
Immigration), 2003 FCA 325; Sivakumar v. Canada (Minister of Employment
and Immigration), [1996] 2 F.C. 872 (C.A.) [Sivakumar II]; Gonzalez
v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 646
(C.A.); and Sumaida v. Canada (Minister of Citizenship and Immigration),
[2000] 3 F.C. 66 (C.A.) [Sumaida]. The Panel also determined that the
government of the DRC was not an organization pursuing a limited, brutal
purpose (reasons of the Panel, paras. 31, 43).
[15]
In the second part of its analysis, the Panel considered
whether the applicant was complicit in the acts committed by the government of
the DRC. Relying on the decisions of this Court in Ramirez v. Canada
(Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.) [Ramirez];
Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C.
298 (C.A.) [Moreno]; and Sivakumar II and on certain
decisions of the Federal Court, the Panel noted that for the purposes of
Article 1F(a) of the Convention, complicity requires knowledge that acts
are being committed and the failure to take steps to prevent them or to
disassociate oneself from the group.
[16]
Despite the respondent’s claims to the contrary, the Panel
concluded that he was aware of the violent acts committed by his government,
noting in particular that he held [translation]
“a very high-level position” and that he represented his country abroad (ibid.,
paras. 50, 51). The Panel also stated that his [translation] “meteoric career and his strategic position at
the Permanent Mission of the DRC in New York, as well as the fact that his
resignation was considered an act of treason, are evidence of a shared vision
in accomplishing his government’s objectives” and found that [translation] “he was aware of the
events and had a shared common purpose, which can be deduced from his voluntary
association with the Congolese authorities and is sufficient to find him
complicit by association” (ibid., paras. 67, 69).
[17]
The Panel recognized that the respondent did not personally
commit violent acts against civilians and did not point to any instances in
which the respondent, in the exercise of his duties, made statements for the
purpose of camouflaging or minimizing his government’s crimes. It found,
however, that given the importance of the respondent’s diplomatic duties, it
was sufficient that he knowingly enabled his government to perpetuate itself
while doing nothing to disassociate himself (ibid., para. 75).
DECISION OF THE
APPLICATIONS JUDGE
[18]
The applications judge begins by accepting the Panel’s
finding that, during the period that he held his position, the respondent had
personal knowledge of the crimes against humanity committed by the Congolese
government (reasons of the applications judge, para. 50). He notes,
however, that according to the Panel’s analysis, the respondent did not
participate physically or directly in these acts.
[19]
The applications judge opens his analysis by
distinguishing two types of complicity (ibid., para. 60):
There are two components in the concept of complicity in crimes against
humanity in Canadian jurisprudence: complicity in the traditional sense of
Canadian criminal law, and complicity by association. Here, only complicity by
association is in issue. Is this truly a particular mode of complicity, and
what elements must be present to establish complicity by association? These are
the questions that must be addressed.
[20]
He
continues his analysis by reviewing this Court’s decisions
on complicity by association. Citing Ramirez, he notes that there can be
no complicity “without personal and knowing participation” (reasons of the
applications judge, para. 62). He also notes, relying on Moreno,
that mere membership in an organization involved in international offences is
not a sufficient basis on which to invoke Article 1F(a) of the Convention
(ibid., para. 64). The applications judge also notes that in Canada
(Minister of Citizenship and Immigration) v. Bazargan (1996), 205 N.R. 282 (C.A.) [Bazargan], Décary J.A.
stated that it is contributing to the activities of the group, rather than
membership in the group, that establishes complicity by association (ibid.,
para. 66).
[21]
The applications judge then expresses his view that the
exclusion clause in Article 1F(a) does not apply because “there must be a
personal nexus between the refugee claimant and the crimes alleged, and no such
nexus was established in respect of the [respondent]” (ibid.,
para. 70). In reaching this conclusion, the applications judge relies on
certain decisions of the Federal Court, comments by the United Nations High
Commissioner for Refugees, the Rome Statute and foreign cases (ibid.,
paras. 71-82).
[22]
The applications judge notes that the existence of a
personal nexus between the refugee protection claimant and the crimes alleged
as a necessary condition for exclusion is the approach adopted in cases issued
by the Federal Court (Aden v. Canada (Minister of Employment and
Immigration), [1994] 1 F.C. 625 [Aden]; Sungu v. Canada (Minister
of Citizenship and Immigration), [2003] 3 F.C. 192 [Sungu]; and Bouasla
v. Canada (Minister of Citizenship and Immigration), 2008 FC 930 [Bouasla]).
This is also the approach adopted by the Office of the United Nations High
Commissioner for Refugees, according to its Background Note on the
Application of the Exclusion Clauses: Article 1F of the 1951 Convention
relating to the Status of Refugees. The decision of the Supreme Court of
the United Kingdom in R (on the
application of JS) (Sri Lanka) v. Secretary of State for the Home Department,
[2010] UKSC 15 [Sri Lanka],
seems to adopt a similar stance.
[23]
Furthermore, the applications judge’s reading of articles
25, 28 and 30 of the Rome Statute indicates that “criminal
responsibility for crimes against humanity requires personal participation in
the crime alleged or personal control over the events leading to the crime
alleged” (ibid., para. 86). He adds that “the concepts of individual
criminal responsibility and effective control over other persons and the mental
element described in the Rome Statute may and must be used to elucidate
what the Canadian case law refers to as complicity by association for the purposes
of Article 1F(a)” (ibid., para. 89).
[24]
The applications judge concludes with the following
statement (ibid., para. 90):
. . . complicity
by association must be understood as being a presumption that is based on a set
of facts from which it can be concluded that there are serious reasons for
considering that the refugee claimant personally participated in the crimes
alleged, personally conspired to commit them, or personally facilitated the
commission of those crimes.
[25]
Applying this approach, the applications judge expresses
the principle that merely working in the public service of a state whose
government commits crimes against humanity is not sufficient; there must be a
“personal nexus” between the refugee protection claimant and the crimes alleged
(ibid., para. 92). According to the applications judge, this conclusion
is supported by section 35 of the
IRPA, which distinguishes between an individual who has committed a crime
against humanity and a senior officer in the service of a government that has
committed such crimes (ibid., paras. 97-100). He adds that there is
“no evidence that tends to show direct or indirect personal participation by
the [respondent] in the crimes alleged, and there is no evidence of incitement
or active support by the [respondent] for those crimes” (ibid.,
paras. 104-107).
[26]
The applications judge therefore concludes that the Panel
applied the wrong test for complicity by association. The formal judgment
giving effect to this finding reads as follows:
1. The application for judicial review is allowed;
2. The decision of the panel is set aside as it relates to the conclusion
that the [respondent] is excluded by operation of Article 1F(a);
3. The matter is referred back to the Immigration and Refugee Board to be
heard by a different panel of the Refugee Protection Division, which will
determine it de novo in accordance with the provisions of this judgment.
[27]
After informing the parties of his decision, the
applications judge invited them to propose a serious question of general
importance. The Minister proposed the following question:
[translation]
Does a
public servant or diplomat of a country that has committed crimes against
humanity, who had knowledge of his country’s crimes, who voluntarily associated
with that country and who did not disassociate himself at the first
opportunity, for no valid reason, possess the required shared intention to be
excluded, as an accomplice, from the application of the definition of “refugee”
within the meaning of Article 1F of the United Nations Convention relating to
the Status of Refugees?
[28]
The applications judge chose to reformulate the question:
For the
purposes of exclusion pursuant to paragraph 1Fa) of the United Nations Refugee
Convention, is there complicity by association in crimes against humanity from
the fact that the refugee claimant was a public servant in a government that
committed such crimes, along with the fact that the refugee claimant was aware
of these crimes and did not denounce them, when there is no proof of personal
participation, whether direct or indirect, of the refugee claimant in these
crimes?
MINISTER’S POSITION
[29]
The Minister submits first that the certified question is
incorrectly formulated, since it implies an absence of personal and knowing
participation by the respondent in the crimes committed by the DRC government.
According to the Minister, the diplomatic duties exercised by the respondent
while he had knowledge of the violent acts committed by his government
constituted personal participation that made him an accomplice to the crimes
alleged (Minister’s Memorandum, para. 41).
[30]
Secondly, the Minister submits that the applications judge
erred in law in finding that a refugee protection claimant must have effective
control over those who commit crimes against humanity in order to be excluded
from the provisions of the Convention on the basis of complicity by association
under Article 1F(a). The Minister argues that the test established by the
applications judge, namely, “personal participation in the crime alleged” and
“personal control over the events leading to the crime alleged”, or that the
refugee protection claimant “personally participated in the crimes alleged,
personally conspired to commit them, or personally facilitated the commission
of those crimes”, reflects an overly rigid approach to the mens rea required
to establish complicity by association (ibid., para. 70).
[31]
The Minister instead submits, in light of the jurisprudence
of this Court, that complicity by association requires the existence of a
shared common purpose and knowledge of the crimes committed by the organization
of which the refugee protection claimant is a member. The failure to take
measures to prevent the organization’s crimes and the failure to disassociate
from them at the first opportunity are key elements in establishing complicity
by association (ibid., para. 54).
[32]
The Minister also submits that the jurisprudence of this
Court reflects the approach adopted by the Supreme Court of the United Kingdom
in Sri Lanka, cited by the applications judge, and by the Supreme Court
of New Zealand in The Attorney General (Minister of Immigration) v. Tamil X
and Anor SC, [2010] NZSC 107.
[33]
Thirdly, the Minister argues that the applications judge
erred in his appreciation of the Panel’s factual findings on the importance of
the duties exercised by the respondent within the DRC government. The Minister
notes that although he had knowledge of the violent acts committed by his
government, the respondent spoke before the Security Council, represented his
country on two United Nations Committees and was given the role of chargé
d’affaires in the ambassador’s absence. The Minister argues that the
applications judge failed to consider, or, at the very least, minimized, the
scope of the Panel’s factual findings regarding the respondent’s duties,
particularly the fact that he was representing his country while he had
knowledge of the crimes against humanity committed by his government (ibid.,
para. 80). The Minister submits that the respondent was not a mere public
servant.
RESPONDENT’S POSITION
[34]
The respondent submits that the applications judge
correctly interpreted and applied Article 1F(a) of the Convention. He argues
that [translation] “a senior
official of the state may be excluded from the definition of a refugee
under Article 1F(a) of the [Convention] if he was an accomplice to the crimes
committed by the state of which he is a member. However, one must look at all
of the facts of a case to establish a connection between his actions and the
commission of the crimes” (Respondent’s Memorandum, para. 1).
[35]
The respondent submits that the applications judge’s
interpretation is consistent with the jurisprudence of the Supreme Court of
Canada, this Court and the Federal Court. The respondent also submits that
Article 1F(a) of the Convention must be interpreted in light of the Rome
Statute, and that, accordingly, the applications judge was correct in
relying on it. The respondent submits that any cases decided prior to the
adoption of the Rome Statute, or that do not take it into consideration,
should be relied upon with caution. The respondent also submits that the
applications judge’s interpretation is consistent with that of the courts of
the United Kingdom, Australia, New Zealand and France.
[36]
Contrary to the argument submitted by the Minister, the
respondent claims that the applications judge did not minimize his role within
the DRC government. According to the respondent, the applications judge simply
concluded that the emphasis belonged on the nexus between the crimes committed
and the individual in question rather than on the rank occupied by that person
within the organization.
[37]
During his submissions, counsel for the respondent raised
for the first time the argument that the appeal could not be allowed regardless.
In his view, the Panel found that there had been complicity by association
based on the respondent’s “personal and knowing awareness” of his government’s
crimes, without asking itself whether the evidence established his “personal
and knowing participation” in these crimes.
ANALYSIS
The standard of review
[38]
In the case of an appeal of a decision dealing with an
application for judicial review, the Court must determine whether the
applications judge correctly identified and applied the proper standard of
review (Dr Q v. College of Physicians and Surgeons of British Columbia,
2003 SCC 19, para. 43; Canada (Attorney General) v. Davis,
2010 FCA 134, para. 3; Canada (Revenue Agency) v. Telfer, 2009 FCA
23, para. 18).
[39]
The fundamental issue identified by the applications judge
is the scope of the concept of complicity by association for the purposes of
applying Article 1F(a) of the Convention. As he indicates, this is a question
of law subject to the standard of correctness. Once the test has been properly
identified, the issue of whether the facts in this case trigger the application
of Article 1F(a) is a question of mixed fact and law with respect to which the
Panel is entitled to deference (Canada (Minister of Citizenship and
Immigration) v. Zeng, 2010 FCA 118, para. 11).
The certified question
[40]
Before embarking on the analysis, I must comment on the
question certified by the applications judge, which I restate once again with
emphasis on the last lines:
For the
purposes of exclusion pursuant to paragraph 1Fa) of the United Nations Refugee
Convention, is there complicity by association in crimes against humanity from
the fact that the refugee claimant was a public servant in a government that
committed such crimes, along with the fact that the refugee claimant was aware
of these crimes and did not denounce them, when there is no proof of
personal participation, whether direct or indirect, of the refugee claimant in
these crimes?
[Emphasis added.]
[41]
Those final lines are problematic, since they assume that
the respondent, by remaining in his position and continuing to defend the
regime’s interests despite his awareness of the crimes being committed by that
regime, could not make himself a direct or indirect participant
in those crimes. That, however, is the very issue which is at the heart of this
dispute.
[42]
The question must also take into account the importance
that the Panel attributes to the position held by the respondent within the
government (reasons of the Panel, para. 50), which is not called into
question by the applications judge (reasons of the applications judge,
para. 69) as well as the fact that the respondent remained in his position
notwithstanding his knowledge of the crimes committed by his government.
[43]
Finally, the question should evoke a possibility rather
than a certainty. As Linden J.A. explained in Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 [Sivakumar I] (p. 442):
. . . association
with a person or organization responsible for international crimes may
constitute complicity if there is personal and knowing participation or
toleration of the crimes. Mere membership in a group responsible for
international crimes . . . is not enough . . .
(see also Harb v. Canada (Minister of Citizenship and Immigration), 2003 FCA
39, para. 19 [Harb]).
[Emphasis
added.]
The final answer depends
on the specific facts of each case (Ramirez, p. 320; Sivakumar I,
p. 438; Bazargan, para. 12).
[44]
In light of the above, I would reformulate the certified
question as follows:
For the
purposes of exclusion pursuant to paragraph 1Fa) of the United Nations Refugee
Convention, can complicity by association in crimes against humanity be
established by the fact that the refugee claimant was a senior public servant
in a government that committed such crimes, along with the fact that the
refugee claimant was aware of these crimes and remained in his position without
denouncing them?
[45]
According to the reasons of the applications judge, the
answer to this question would seemingly be no, since in his view one cannot be
an accomplice without having personally participated in the crimes alleged,
personally conspired to commit them or personally facilitated their commission
(reasons of the applications judge, para. 90). With this test in mind, he
concludes that applying a “presumption of complicity by association” in the
absence of evidence that the respondent exercised some kind of control over the
DRC’s security forces or over any component of those forces or over any of
their members would be unreasonable (ibid., paras. 106, 107).
[46]
In my opinion, the test for complicity established and
applied by the applications judge is inconsistent with the jurisprudence of
this Court, and must therefore be set aside.
The
jurisprudence of the Court of Appeal
[47]
Article 1F(a) of the Convention states that a person is
excluded from the application of the refugee protection provisions if there are
“serious reasons for considering” that he has committed, among other things, a
crime against humanity. In Ramirez, MacGuigan J.A. specifies that the
expression “serious reasons for considering” represents a lower standard of
proof than the balance of probabilities (pp. 311, 312; see also Moreno, p. 308; Sumaida,
p. 77).
[48]
In Sivakumar I, Linden J.A. comments on the reasons
for the lower standard of proof established by Article 1F(a) of the
Convention (p. 445):
The
standard of proof in section F(a) of Article 1 of the Convention is whether the
Crown has demonstrated that there are serious reasons for considering that the
claimant has committed crimes against humanity. In Ramirez, supra,
MacGuigan J.A. stated that serious reasons for considering constitutes an
intelligible standard on its own which need not be assimilated to the
reasonable grounds standard in section 19 [as am. by R.S.C., 1985 (3rd Supp.),
c. 30, s. 3] of the Immigration Act. This conclusion was echoed by Mr.
Justice Robertson in Moreno, supra, although Robertson
J.A. indicated that, for practical purposes, there was no difference between
the standards. I agree that there is little, if any, difference of meaning
between the two formulations of the standard. Both of these standards
require something more than suspicion or conjecture, but something less than
proof on a balance of probabilities. This shows that the international
community was willing to lower the usual standard of proof in order to ensure
that war criminals were denied safe havens. When the tables are turned on
persecutors, who suddenly become the persecuted, they cannot claim refugee
status. International criminals, on all sides of the conflicts, are rightly
unable to claim refugee status.
[Emphasis added.]
[49]
The issue, therefore, is whether the individual in question
may claim refugee status in Canada, not whether he or she is criminally responsible. For this purpose, all
that is required are “serious reasons for considering” that the individual
committed a crime within the meaning of Article 1F(a).
[50]
It
is also useful to recall, given the reasons of the applications judge (see in
particular paragraphs 60 and 90, reproduced at paragraphs 19 and 24 of
these reasons), that there is only one form of complicity. As Létourneau J.A. explains
in Zazai v. Canada (Minister of
Citizenship and Immigration), 2005 FCA 303, 259 D.L.R. (4th) 281, at
paragraph 13:
. . . At common
law and under Canadian criminal law, [complicity] was, and still is, a mode of
commission of a crime. It refers to the act or omission of a person that helps,
or is done for the purpose of helping, the furtherance of a crime. An accomplice
is then charged with, and tried for, the crime that was actually committed and
that he assisted or furthered. In other words, whether one looks at it from
the perspective of our domestic law or of international law, complicity
contemplates a contribution to the commission of a crime.
[Emphasis
added.]
[51]
With this in mind, I will turn to a more in-depth review of
this Court’s jurisprudence on the scope of the concept of complicity with
respect to crimes against humanity, which the applications judge was, in
principle, bound to follow.
[52]
In Ramirez, MacGuigan J.A. states that an individual
cannot have committed crimes under Article 1F(a) of the Convention—including
crimes against humanity—“without personal and knowing participation” (pp. 316,
317). He adds that mere membership in an organization which from time to time
commits international offences is not normally sufficient for exclusion from
refugee status. This is not the case, however, where an organization is
principally directed to a limited, brutal purpose (p. 317). MacGuigan J.A. adds
that members of an organization may, depending on the facts, be considered to
be personal and knowing participants. In such cases, “complicity
rests . . . on the existence of a shared common purpose and the
knowledge that all of the parties in question may have of it” (pp. 317, 318).
He also states that it is undesirable to go beyond the criterion of “personal
and knowing participation” in persecutorial acts in establishing a general
principle; the rest should be decided in relation to the particular facts of
each case (p. 320).
[53]
In Moreno, Robertson J.A. reiterates the idea that
mere membership in an organization involved in international offences is not a
sufficient basis on which to invoke Article 1F(a) of the Convention, unless the
organization is principally directed to a limited, brutal purpose (p. 321).
Citing Ramirez, Robertson J.A. states that “[a]cts or omissions
amounting to passive acquiescence are not a sufficient basis for invoking the
exclusion clause”; what must be established is personal participation, which
depends on the existence of a shared common purpose (p. 323). He also states
that “the closer a person is involved in the decision-making process and the
less he or she does to thwart the commission of inhumane acts, the more likely
criminal responsibility will attach” (p. 324).
[54]
In Sivakumar I, Linden J.A. not only reiterates the
“personal and knowing participation” test established in Ramirez, but
adds the following with respect to complicity by association (p. 442):
. . . association with a person or organization responsible
for international crimes may constitute complicity if there is personal and knowing
participation or toleration of the crimes. . . .
[Emphasis added.]
In so saying, Linden J.A.
recognizes that complicity for the purposes of Article 1F(a) of the
Convention is a broad concept that is not limited to physical participation in
crimes or the exercise of effective control over their commission.
[55]
In Bazargan, Décary J.A. states that “personal and
knowing participation” may be direct or indirect and does not require formal
membership in the organization involved in the commission of international
offences. He adds that it is not the fact of working for an organization that
makes an individual an accomplice to the acts committed by that organization,
but rather the fact of knowingly contributing to these activities in any manner
whatsoever, whether from within the organization or from outside (para. 11). Décary
J.A. again notes that everything depends on the particular facts of each case
(para. 12).
[56]
The subsequent decisions of this Court in Sumaida
and Harb did not modify the principles previously set out regarding
Article 1F(a) of the Convention. In Harb, Décary J.A. states
(para. 11):
. . . It
is not the nature of the crimes with which the appellant was charged that led
to his exclusion, but that of the crimes alleged against the organizations with
which he was supposed to be associated. Once those organizations have committed
crimes against humanity and the appellant meets the requirements for membership
in the group, knowledge, participation or complicity imposed by precedent (see inter
alia, [Ramirez]; [Moreno]; [Sivakumar I]; [Sumaida]
and [Bazargan]), the exclusion applies even if the specific acts
committed by the appellant himself are not crimes against humanity as
such. . . .
[57]
In light of this Court’s decisions regarding complicity as
it relates to Article 1F(a) of the Convention, I am of the view that the
applications judge applied too narrow a test in requiring personal
participation by the individual in the crimes alleged, whether by carrying them
out personally or facilitating their commission in the manner described. The
“personal and knowing participation” test adopted by this Court is broader than
that.
[58]
The
same decisions also compel us to realize that the expression “complicity by
association” is fundamentally misleading. It implies that an individual who
associates with the perpetrators of international crimes becomes an accomplice
to their crimes based on this association alone. However, liability is
generated not by the association but rather by personal and knowing
participation in these crimes. In my view, the time has come to drop the term
“complicity by association” and henceforth to refer to complicity, period.
The jurisprudence of the
Federal Court
[59]
In my opinion, the Federal Court cases relied on by the
applications judge do not support his approach either. On the one hand, Gibson
J.’s decision in Aden,
which he cites with approval, does not take into account this Court’s decisions
in Moreno or Sivakumar I. As Gibson
J. explains at the end of his reasons, they were released too late for counsel
to refer to them so that he was unfortunately unable to consider their impact (Aden,
pp. 634, 635).
[60]
On the other hand, Blanchard J.’s decision in Sungu
and that of Lemieux J. in Bouasla both state that the evidence did not
support a sufficient shared common purpose to give rise to an exclusion under
Article 1F(a) de la Convention. Neither of these judges set out a rule
whereby the fact of remaining in one’s position while being fully cognizant of
the crimes being committed by the organization cannot be a sufficient basis for
an exclusion.
The Rome Statute
[61]
The applications judge seems to have drawn inspiration from
the Rome Statute, which was ratified by Canada in 2000 and which came
into force in 2002, to justify an approach that departs from the decisions
rendered by this Court prior to the coming into force of that Statute. According
to him, criminal responsibility for crimes against humanity under the Rome
Statute “requires personal participation in the crime alleged or personal
control over the events leading to the crime alleged” (reasons of the
applications judge, para. 86). He adds that this “requirement must also be used
to clarify the concept of participation through association” (ibid.).
[62]
In this respect, the applications judge cites articles
25(3) and 30 of the Rome Statute:
Article 25
. . .
3. In
accordance with this Statute, a person shall be criminally responsible and
liable for punishment for a crime within the jurisdiction of the Court if that
person:
(a) Commits such a
crime, whether as an individual, jointly with another or through another
person, regardless of whether that other person is criminally responsible;
(b) Orders, solicits
or induces the commission of such a crime which in fact occurs or is attempted;
(c) For the purpose of
facilitating the commission of such a crime, aids, abets or otherwise assists
in its commission or its attempted commission, including providing the
means for its commission;
(d) In any other
way contributes to the commission or attempted commission of such a crime
by a group of persons acting with a common purpose. Such contribution shall be
intentional and shall either:
(i) Be made with the
aim of furthering the criminal activity or criminal purpose of the group, where
such activity or purpose involves the commission of a crime within the
jurisdiction of the Court; or
(ii) Be
made in the knowledge of the intention of the group to commit the crime;
. . .
Article 30
1.
Unless otherwise provided, a person shall be criminally responsible and liable
for punishment for a crime within the jurisdiction of the Court only if the material
elements are committed with intent and knowledge.
2.
For the purposes of this article, a person has intent where:
(a) In relation
to conduct, that person means to engage in the conduct;
(b) In relation
to a consequence, that person means to cause that consequence or is aware that
it will occur in the ordinary course of events.
3.
For the purposes of this article, "knowledge" means awareness that a
circumstance exists or a consequence will occur in the ordinary course of
events. "Know" and "knowingly" shall be construed
accordingly.
[Emphasis added.]
[63]
The applications judge is correct in stating that
Article 1F(a) of the Convention must be interpreted in light of
international instruments such as the Rome Statute (Zrig v. Canada (Minister of Citizenship and
Immigration), 2003 FCA 178, para. 151). However,
I do not believe that the criminal responsibility described in the Rome
Statute is ascribed only in the case of “personal participation in the
crime alleged or personal control over the events leading to the crime alleged”
(reasons of the applications judge, para. 86).
[64]
The language of article 25(3), and in particular the
expressions “otherwise assists” and “[i]n any other way” in paragraphs (c)
and (d) respectively, clearly indicates that criminal responsibility for
international crimes falling under the Rome Statute is not limited to
personal participation in the crime or personal control over the events. This
provision is quite broad on its face and goes beyond the test adopted by the applications
judge.
[65]
The applications judge also cites article 28 of the Rome
Statute, which deals with the responsibility of military commanders for the
acts of their soldiers. He notes that, as with employers with respect to the
wrongful acts of their employees in civil law or at common law,
“effective control over other persons” must be exercised for any kind of
responsibility to be ascribed (ibid., para. 89).
[66]
Article 28 of the Rome Statute reads as follows:
In addition
to other grounds of criminal responsibility under this Statute for crimes
within the jurisdiction of the Court:
(a) A
military commander or person effectively acting as a military commander shall
be criminally responsible for crimes within the jurisdiction of the Court
committed by forces under his or her effective command and control, or
effective authority and control as the case may be, as a result of his or her
failure to exercise control properly over such forces, where:
(i)
That military commander or person either knew or, owing to the circumstances at
the time, should have known that the forces were committing or about to commit
such crimes; and
(ii)
That military commander or person failed to take all necessary and reasonable
measures within his or her power to prevent or repress their commission or to
submit the matter to the competent authorities for investigation and
prosecution;
(b)
With respect to superior and subordinate relationships not described in
paragraph (a), a superior shall be criminally responsible for crimes within the
jurisdiction of the Court committed by subordinates under his or her effective
authority and control, as a result of his or her failure to exercise control
properly over such subordinates, where:
(i)
The superior either knew, or consciously disregarded information which clearly
indicated, that the subordinates were committing or about to commit such
crimes;
(ii)
The crimes concerned activities that were within the effective responsibility
and control of the superior; and
(iii)
The superior failed to take all necessary and reasonable measures within his or
her power to prevent or repress their commission or to submit the matter to the
competent authorities for investigation and prosecution.
[67]
One can easily understand why military commanders cannot be
held responsible in that capacity for the conduct of individuals who are
not under their control, or employers with respect to employees who are outside
of their control. However, this issue does not arise under article 25(3) of the
Rome Statute, which covers any individual who orders, solicits, induces,
facilitates or in any other way contributes to the commission of a crime
against humanity, the sole requirement being that the individual in question
have acted knowingly.
[68]
In my opinion, the “personal and knowing participation”
test established in Ramirez is in harmony with the Rome Statute.
As Lord Brown explains in Sri Lanka, the language of the Rome Statute is particularly broad, as
compared with domestic legislative provisions establishing criminal
responsibility for crimes that are, in fact, committed by others
(para. 34). According to Lord Brown, only personal knowledge of the crimes
and an intention to contribute to their commission is required (para. 37).
In my opinion, this is entirely consistent with the “personal and knowing
participation” test adopted by MacGuigan J.A. in Ramirez and applied by
this Court ever since.
Section 35 of the
IRPA
[69]
The
applications judge also refers to the regime set out in section 35 of the
IRPA, which provides that individuals who have committed offences under
sections 4 to 7 of the Crimes Against Humanity and War Crimes Act,
S.C. 2000, c. 24 (paragraph 35(1)(a)) are inadmissible. He notes
that the same inadmissibility is imposed separately on those occupying senior
positions—defined by regulation—in a government that has committed such crimes
(paragraph 35(1)(b)). According to the applications judge, this implies
that, for the purposes of section 35, remaining in a position despite the
crimes committed by one’s government is not alone sufficient to make a senior
official an accomplice to these crimes. He adds that the same distinction must
be made for the purposes of applying Article 1F(a) of the Convention
(reasons of the applications judge, paras. 99, 100).
[70]
With
respect, this reasoning does not take into account the fact that a person
falling under Article 1F(a) of the Convention is automatically
inadmissible under paragraph 35(1)(a). Paragraph 35(1)(b)
merely extends the inadmissibility to senior officials in the service of the
government that has committed the crimes, without it being necessary to prove
their direct or indirect participation in them. Depending on the circumstances,
noting prevents a senior official, who remains in office despite the crimes
committed by his or her government, from becoming an accomplice to these crimes
and subject to paragraph 35(1)(a).
Presumption of
participation
[71]
Finally,
it was not open to the applications judge to find that complicity by
association must be understood as being a presumption and that it would be
unreasonable to apply that presumption on the basis of the respondent’s
membership in the DRC government (reasons of the applications judge,
paras. 90, 105 to 107). While it is true that membership in an organization
pursuing a limited, brutal purpose establishes a
presumption of participation in the crimes of that organization, the opposite
is true if the organization in question is not pursuing such a purpose, as the
Panel concluded with respect to the DRC (Ramirez, p. 317; Moreno,
p. 321; Sivakumar I, pp. 440, 442 and Sumaida, para. 24). In this
case, no presumption arises from the respondent’s membership in the DRC
government, and the onus was on the Minister to establish, on the applicable
standard of proof, his participation in his government’s crimes.
[72]
I
therefore find that the certified question as reformulated must be answered in
the affirmative. In my view, a senior official may, by remaining in his or her
position without protest and continuing to defend the interests of his or her
government while being aware of the crimes committed by this government
demonstrate “personal and knowing participation” in these crimes and be
complicit with the government in their commission. It is useful to remember, however,
that the final outcome will always depend on the facts particular to each case
(Ramirez, p. 220; Bazargan, para. 12).
[73]
The
next issue would be whether, given the particular facts of this case, it was
reasonable for the Panel to find that the respondent participated personally
and knowingly in the crimes of his government.
New error of law
[74]
Before
addressing this question, counsel for the respondent raised for the first time
the argument that, despite the above, the Panel applied the wrong test in deciding
the issue. According to counsel, the Panel did not apply the “personal and
knowing participation” test, but rather the “personal and knowing awareness”
test. In this respect, counsel for the respondent cited the following excerpts
of paragraphs 71 and 75 of the Panel’s reasons:
[71] . . . Therefore,
it is reasonable to conclude that the [respondent] had a “personal and knowing
awareness” in the Congolese government’s actions, which is the “element
required to establish complicity”.
[75] Upon examination of
the evidence on file, the [respondent] had “personal and knowing awareness” [Ramirez]
of the atrocities committed by the Congolese government and army through the
duties he carried out. . . .
[75]
These
passages are troubling, as there is a fundamental difference between “personal
and knowing awareness” of the crimes committed by the DRC, an awareness that is
no longer challenged, and “personal and knowing participation” in these crimes
as developed by this Court’s jurisprudence. The Panel has erred in stating that
Ramirez establishes a “personal and knowing awareness” test, as this
expression appears nowhere in the judgment and seems to confuse “awareness”
with “participation”. Also, by indicating that “personal and knowing awareness”
is [translation] “the element
required to establish complicity”, the Panel displays the same confusion. While
personal knowledge of the crimes is one of the elements required for “personal
and knowing participation”, only participation, so described, if established
according to the applicable burden of proof, may support a finding of
complicity.
[76]
Counsel
for the Minister, who was notified of the respondent’s argument during the week
preceding the hearing, was unable to persuade me that this error is of no
consequence. It is true that the Panel, at paragraph 75 of its reasons,
found that there were serious reasons for considering that the respondent had
“personally and wittingly participated” in the crimes committed by his
government. Although this comes sufficiently close to the correct test, I
cannot, in light of the language used earlier, rule out the respondent’s
argument that the Panel was confusing awareness and participation when it made
this finding.
[77]
The
Panel was required to apply the correct test and determine whether the
respondent, by remaining in his position while he had knowledge of the crimes
committed by his government in the circumstances described above, personally
and knowingly participated in the crimes of his government. The knowledge of
these crimes is not determinative on its own. Only the respondent’s personal
and knowing participation in these crimes can support a finding of complicity
for the purposes of Article 1F(a) (Ramirez, pp. 317, 318; Moreno,
p. 323). My reading of the Panel’s decision leaves me uncertain as to
whether it applied the correct test.
[78]
Because
of the nature of its duties, the Panel is in the best position to judge whether
there is sufficient evidence to support a finding of complicity
by the respondent, and deference is owed to it when it carries out this duty
according to the correct test. In the circumstances, the matter should be
remitted to a differently constituted panel for a new hearing to determine
whether, according to the correct test, the respondent was complicit in his government’s
crimes by virtue of his conduct.
[79]
For
these reasons, I would answer the certified question as reformulated in the
manner set out at paragraph 72 of these reasons, I would allow paragraphs
1 and 2 of the judgment rendered by the applications judge to stand and replace
paragraph 3 thereof by the following direction:
3. The matter is remitted to
the Immigration and Refugee Board to be heard by a different panel of the
Refugee Protection Division, which will determine it de novo and
determine whether the respondent was an accomplice to the crimes committed by
the Democratic Republic of Congo in accordance with the personal and knowing
participation test.
“Marc Noël”
“I
agree
M. Nadon J.A.”
“I
agree
J.D. Denis Pelletier J.A.”
Certified
true translation
Francie
Gow, BCL, LLB
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