Docket: IMM-2223-24
Citation: 2025 FC 470
Toronto, Ontario, March 13, 2025
PRESENT: The Honourable Mr. Justice A. Grant
BETWEEN: |
JEFFERSON MURINA MUHMUD |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. OVERVIEW
[1] The Applicant seeks judicial review of a decision in which he was found to be inadmissible to Canada because there were reasonable grounds to believe that, as a former prison official in Nigeria, he had been complicit in the commission of crimes against humanity.
[2] For the reasons that follow, this application will be granted.
II. BACKGROUND
A. Facts
[3] The Applicant – Jefferson Murina Muhmud – is a citizen of Nigeria. In 1990, Mr. Muhmud voluntarily joined the Nigerian National Prison Services [NPS] as a prison guard. Over the years he was promoted several times, rising to the ranks of prison inspector, then superintendent, then Deputy Superintendent. He worked with the NPS between 1990 and 2018, when he left the organization after the prisons – and the Applicant personally – were targeted by the Boko Haram Islamic militant organization.
[4] From 1990-1998, Mr. Muhmud worked in direct, daily contact with prisoners at three different prisons: Benin Prison, Warri Prison, and Agbor Prison. In these years, Nigeria was under a military dictatorship and the evidence suggested that the prison system was used as a tool of punishment and was used to mistreat political opponents and detainees. As will be discussed further below, it was only in respect of this period that the Applicant was found to be complicit in crimes against humanity.
[5] Mr. Muhmud testified that in the course of his responsibilities as a prison guard from 1990-1998 he: received inmates; liaised with legal aid services; communicated with family members; guarded the cells; escorted prisoners to different locations within the prison complex, or to court; guarded the prisoners from escaping; and supervised the cooking.
[6] Mr. Muhmud testified that he was aware of problems related to mistreatment and overcrowding of prisons in this period, but stated that these problems were most acute at prisons in other areas like Lagos, and not at the prisons where he worked.
[7] The Applicant arrived in Canada in 2019 and initiated a claim for refugee protection based on his fear of Boko Haram. His claim was not heard, however, as the Minister alleges that Mr. Muhmud is inadmissible to Canada pursuant to s.35(1)(a) of the Immigration and Refugee Protection Act [IRPA], because there are reasonable grounds to believe that he committed crimes against humanity, pursuant to ss.4-7 of the Crimes Against Humanity and War Crimes Act [CAHWCA]. As a result, the Minister referred his case to the Immigration Division [ID] of the Immigration and Refugee Board for an admissibility hearing.
B. Decision under Review
[8] The ID found the Applicant inadmissible to Canada pursuant to s.35(1)(a) of the IRPA. In coming to this conclusion, the ID found that the Minister had produced sufficient credible and trustworthy evidence to establish that the NPS had, under the authority of the military dictatorship, committed crimes against humanity in the period between 1990-1998. While, as noted above, the Applicant served in the NPS for roughly 28 years, the ID narrowed its analysis to this period. Of some significance, this period of military rule also coincides with the period in which the Applicant occupied lower-level (though, for part of this time, still supervisory) positions within the NPS. In any event, the tribunal determined that the NPS had:
committed inhumane acts that would be considered as crimes against humanity committed in a widespread manner and directed against detainees purging sentences and/or suspected criminal detainees while awaiting trials by the Courts with the full knowledge of the authorities, government and prison administration and the personnel involved in the system.
[9] In support of this determination, the ID found that:
a)During this period, prisons were used as a tool of punishment and mistreatment;
b)Although corporal punishment is prohibited by the United Nations Minimal Rules for the Treatment of Prisoners, Nigeria allows corporal punishment by caning and detention in isolation;
c)Overcrowding is a serious problem that has resulted in the death of inmates;
d)Sanitary conditions lead to rampant disease amongst inmates; and
e)Prisoners are regularly denied adequate food and medical care.
[10] In summary, the ID concluded that:
the Minister’s counsel has been able to demonstrate, base on credible and trustworthy evidence, that inhuman [sic] acts, such as gross overcrowding that lead to the death of detainees, deplorable sanitary conditions that lead to rampant diseases, lack of food, lack of access to medical, abject corporal punishments and extortion, were committed within the National Prison Services which must be considered as crimes against humanity, committed in a widespread manner across the country in the prison system.
[11] The ID further determined that the Applicant was complicit in the commission of those crimes against humanity. The tribunal found that Mr. Muhmud had joined the NPS voluntarily, and that, having worked directly with detainees for the eight years in question, he “was bound to be aware of the treatment of detainees”
and that “he was there and even if he did nothing bad, he had to be aware considering how important the issues were.”
[12] The ID also determined that the Applicant’s contributions to the NPS were significant, noting that, as an inspector with supervisory powers, he perpetuated the system and consequently “he was voluntarily contributing, by his work and management of prison guards, and the participation is significant considering there is no indication that he tried to do anything but to further the criminal purposes of the authorities.”
III. LEGAL FRAMEWORK
[13] S.35(1)(a) of the IRPA is the provision under which the Applicant was found to be inadmissible to Canada:
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;
[14] In terms of the definition of “crimes against humanity,”
subsection 6(3) of the Crimes Against Humanity and War Crimes Act [CAHWCA] sets out the current definition of the term as follows:
crime 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.
[15] However, as in Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 [Mugesera], the events relevant to this matter occurred before the coming into force of the CAHWCA, during which time the definition of “crimes against humanity”
was somewhat different. It was set out at subsection 7(3.76) of the Criminal Code, as follows:
“crime against humanity” means murder, extermination, enslavement, deportation, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group of persons, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission, and that, at that time and in that place, constitutes a contravention of customary international law or conventional international law or is criminal according to the general principles of law recognized by the community of nations;
[16] Of some significance, the definition of “crime against humanity”
that was in effect during the period relevant to this matter did not include “imprisonment,”
whereas the definition of the term under the CAHWCA does include imprisonment. I will comment further on this change in definition below.
[17] In Mugesera, the Supreme Court of Canada set out (at para 119) four elements that must be present in order to characterize an act as a crime against humanity:
- An enumerated proscribed act was committed;
- The act was committed as part of a widespread or systematic attack;
- The attack was directed against any civilian population or any identifiable groups of persons; and
- The person committing the proscribed act know of the attack and knew or took the risk that his or her act comprised a part of that attack.
[18] The Court in Mugesera also found that the widespread attack need not be carried out pursuant to a specific strategy, policy, or plan: para 154. However, in Canada (Public Safety and Emergency Preparedness) v Verbanov, 2021 FC 507 [Verbanov], this Court recently found that the incorporation of the Rome Statute of the International Criminal Court into domestic legislation through the CAHWCA also imported a policy requirement into the definition of a “crime against humanity”
: Verbanov at paras 4, 57-58. Once again, however, the alleged crimes in this matter took place prior to the coming into force of the Rome Statute or the CAHWCA.
[19] With these definitions of “crimes against humanity”
in mind, the next question that often arises is how to assess criminal responsibility for these crimes. In Ezokola v Canada (Citizenship and Immigration), 2013 SCC 40 [Ezokola], the Supreme Court of Canada set out a contribution-based approach for determining whether an individual has been complicit in crimes against humanity. The test was formulated in the context of an exclusion case under article 1F(a) of the Refugee Convention but is equally applicable to admissibility determinations under s.35(1)(a) of the IRPA.
[20] Ezokola established that an individual may only be excluded from refugee protection where there are serious reasons for considering that the person has voluntarily made a significant and knowing contribution to an organization’s crime or criminal purpose. To assist decision-makers in considering whether these contribution-based factors are present, the Court in Ezokola set out six non-exhaustive factors for consideration:
a)The size and nature of the organization;
b)The part of the organization with which the applicant was most directly concerned;
c)The applicant's duties and activities within the organization;
d)The applicant's position or rank in the organization;
e)The length of time the applicant was in the organization, particularly after acquiring knowledge of the group's crime or criminal purpose; and
f)The method by which the applicant was recruited and the applicant's opportunity to leave the organization.
[21] Under the Ezokola formulation, it is clear that passive acquiescence to, or mere association with, an organization that has committed international crimes is not sufficient to ground a finding of complicity. Rather, there must be a link between the individual and the crimes or the criminal purpose of the group: Ezokola at paras 8, 77. However, an individual may be complicit in a crime without being present at the crime and without having physically contributed to the crime: Ezokola at para 77.
[22] It is also worth noting that this link does not have to be “directed to specific identifiable crimes”
but may also relate to “wider concepts of common design”
: Ezokola at para 87, citing R. (J.S. (Sri Lanka)) v. Secretary of State for the Home Department, [2010] UKSC 15, [2011] 1 A.C. 184 at para 38. However, where, as here, an organization is multifaceted in nature – with both legitimate and (allegedly) criminal purposes – the link between an individual’s contribution and the criminal purpose may be more tenuous: Ezokola at para 94; Bedi v Canada (Public Safety and Emergency Preparedness), 2019 FC 1550 at para 26; Canada (Citoyenneté et Immigration) c Singh, 2021 FC 993 at paras 30-32.
[23] With regard to the significance of an individual’s contribution, the Supreme Court cautioned in Ezokola at para 88, that
Given that contributions of almost every nature to a group could be characterized as furthering its criminal purpose, the degree of the contribution must be carefully assessed. The requirement of a significant contribution is critical to prevent an unreasonable extension of the notion of criminal participation in international criminal law.
[24] The evidentiary burden for establishing the elements of complicity falls on the party seeking the exclusion (or, in this case, the finding of inadmissibility): Ezokola at para 29.
[25] The standard of proof for establishing inadmissibility under s.35(1)(a) of the IRPA is “reasonable grounds to believe”
. This requires more than a mere suspicion, but less than proof on a balance of probabilities. There must be an objective basis for the belief, based on compelling and credible information: IRPA, s.33; Mugesera at paras 114-116.
IV. ISSUES
[26] The Applicant makes two submissions. First, that the ID erred in determining that the NPS had committed crimes against humanity from 1990-1998. Second, that even where crimes against humanity were committed by the NPS, the ID erred in finding that Mr. Muhmud was complicit in those crimes.
V. STANDARD OF REVIEW
[27] It is common between the parties that this matter should be reviewed on a standard of reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 10, 16, 23, 25 [Vavilov].
[28] In conducting a reasonableness review, a court “must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified”
(Vavilov at para 15). It is a deferential standard, but remains a robust form of review and is not a “rubber-stamping”
process or a means of sheltering administrative decision-makers from accountability (Vavilov at para 13).
[29] It should also be noted here that the rights at stake in cases such as this are significant. The Applicant has asserted a well-founded fear of persecution in Nigeria, but this claim will not be adjudicated by the Immigration and Refugee Board if he is found to be inadmissible to Canada under s.35 of the IRPA. In Vavilov, the Court noted that the reasons provided in support of a decision – the justification for that decision – must reflect the stakes, which in this matter are at the high end of the spectrum: Vavilov at para 133.
VI. ANALYSIS
[30] I have concluded that the Immigration Division’s decision in this matter was unreasonable for the following reasons.
A. The ID erred in finding that the NPS had committed crimes against humanity
[31] The first, and most glaring reason the ID erred in finding that the NPS committed crimes against humanity is that it was based on a complete misreading of both the Applicant’s testimony, and the submissions provided by his lawyer.
[32] The ID member stated (at para. 24 of its reasons):
It is to be noted that the existence of crimes against humanity committed by the NPS is admitted by counsel for the person concerned with the proviso that because the person concerned spent the last 20 years of his career in positions where he was not dealings [sic] with detainees he should not be described.
[33] At the hearing into this matter, counsel for the Respondent reiterated that counsel for the Applicant had conceded before the ID that the NPS had committed crimes against humanity. I have reviewed the entirety of the record, including the transcript of the proceedings before the ID. There was no such concession. On the contrary, at the outset of his submissions before the ID, counsel for the Applicant was crystal clear that he was contesting both the allegations that the NPS had committed crimes against humanity and that the Applicant was complicit in any such crimes. Counsel stated:
The respondent, Mr. MAHMUD, submits that based on the evidence before the Panel, that the Minister's Counsel failed to discharge the burden of showing that — a reasonable ground to believe that the Nigerian Prison Service, NPS for short, is an organization that has committed crime against humanity, and that — also that Mr. MAHMUD, who had worked for that organization, was complicit in the acts of which the Minister has alleged that the embassy [sic] has committed.
[34] Beyond this, however, the entire thrust of both the Applicant’s testimony and his counsel’s submissions was that, while there were certainly instances of poor conditions within the prisons where the Applicant worked, these conditions did not amount to inhumane treatment, and did not amount to crimes against humanity. It is clear from the record that any concessions that the Applicant may have made were really not concessions at all, but were part of an alternative argument; namely that if the NPS was found to have committed international crimes, then the Applicant denied complicity in those crimes.
[35] It may have been open to the ID to reject the argument that the NPS had not engaged in crimes against humanity, although on my own review of the record I believe there remains some considerable doubt on this issue. However, it was not open to the ID to mischaracterize the Applicant’s testimony and submissions, and to find that the NPS had committed crimes against humanity, based, at least in part, on this mischaracterization. While it is clear to me that the ID member misconstrued the Applicant’s submissions as concessions, it is unclear what role this misunderstanding played in the member’s findings. For this reason alone, this application for judicial review must be granted.
[36] In reconsidering the question of the NPS’ involvement in crimes against humanity, it will be important for the next ID panel to consider: i) the period(s) of time it wishes to include in its analysis; and ii) the prevailing legal authority associated with that period. On this issue, I circle back to the fact that neither the Rome Statute, nor the CAHWCA, nor the definitions of “crimes against humanity”
contained therein were in force during the period considered by the first ID panel (1990-1998). While the previous Criminal Code definition of “crimes against humanity”
was similar to the current definition, it is notable that the older definition did not include imprisonment as a potential crime unto itself. Of course, other crimes against humanity may be committed within the confines of a prison, but regardless of this fact, it is important for the ID to consider the Applicant’s case on the basis of the correct legal authority - something the previous panel does not appear to have done.
[37] For the sake of the redetermination panel, I will also point out another shortcoming in the decision under review, which relates to a lack of precision in identifying the alleged crimes against humanity. In the section of the decision in which the ID purported to identify the crimes in question, it recited a laundry list of problems in the Nigerian prison system, all of which are serious, but several of which may very well not amount to crimes against humanity. On the one hand, it listed the detention of political opponents and the existence of torture and extra-judicial killings. On the other hand, the ID referred to more general problems such as overcrowding, a lack of sanitation, and inadequate dietary provisions. In the end, the ID appeared to rely primarily on these latter factors to conclude that the NPS had engaged in crimes against humanity:
The tribunal concludes that the Minister’s counsel has been able to demonstrate, base [sic] on credible and trustworthy evidence, that inhuman acts [sic], such as gross overcrowding that lead to the death of detainees, deplorable sanitary conditions that lead to rampant diseases, lack of food, lack of access to medical, abject corporal punishments and extortion, were committed within the National Prison Services which must be considered as crimes against humanity, committed in a widespread manner across the country in the prison system.
[38] The problem with the above is at least twofold: first, the ID appears to have omitted the most serious human rights concerns in the Nigerian prison system from its conclusions on crimes against humanity. Second, most of the “crimes”
that it did identify within the Nigerian prison system are, at root, problems of underfunding, underdevelopment, and poor resource allocation. Of course, poor prison conditions may constitute serious human rights violations, but it is a further conceptual leap to find that they are crimes against humanity. I pause to speculate that such conditions are unfortunately endemic in many parts of the world, and it is far from clear that they, as a general principle, constitute crimes against humanity, or that anyone associated with such prisons are complicit in such perceived crimes.
[39] On reconsidering this matter, I would urge the tribunal to define with greater precision the specific aspects of the Nigerian prison system that give rise to concerns under s.35 of the IRPA.
B. The ID erred in its complicity analysis
[40] While unnecessary for the sake of this application, I have also found that the ID’s complicity analysis was unreasonable. In arriving at this conclusion, I return to the relevant period between 1990 and 1998 when the military dictatorship was still in power in Nigeria, and when the Applicant occupied lower-level positions within the NPS. The Applicant testified that over this period he worked in three different prisons: Benin Prison, Warri Prison, and Agbor Prison. He further testified that he usually worked in the Benin Prison, but that he was deployed to the other prisons when they had staffing shortages. Furthermore, while the Applicant did have some local supervisory capacities during this time, there is no indication that his responsibilities extended beyond the local prisons where he was serving.
[41] In describing his responsibilities within these prisons, the Applicant acknowledged that they did suffer from overcrowding, and that there were many inmates who were detained for extended periods of time prior to their criminal trials. However, the Applicant emphatically denied that he had ever taken part in, or witnessed, the mistreatment of inmates. He described in significant detail his responsibilities, which included facilitating inmates’ access to legal aid, handling transfers to court for hearings, and supervising food preparation. The Applicant also denied that there were many political detainees in the prisons where he worked, and that typically these detainees had preferential treatment because of their access to funds.
[42] In finding that the Applicant was complicit in the alleged crimes of the NPS, the ID acknowledged that no evidence had been adduced about the treatment of prisoners at the specific prisons where the Applicant worked. Instead, it found that the evidence established problems affecting the NPS in its entirety. My concerns with this finding are as follows. First, there is little doubt that the NPS administered all of the prisons in Nigeria and that, at the relevant times, this included the general prison population of those convicted of crimes, as well as political detainees, and those awaiting trial. As the ID noted, the NPS employed some 25,000 people (at least in 2011).
[43] Assuming for the sake of the analysis that some crimes were committed at NPS facilities, the fact would remain that the NPS undertook both legitimate and illegitimate purposes. The documentary evidence also suggested that prison conditions varied as between prisons in Nigeria, though they were generally inadequate. In this context, I find it was unreasonable for the ID to simply prefer the general information contained within the documentary evidence, over the specific and detailed testimony provided by the Applicant as to his activities in this period. This Court has previously found that it is an error for a decision-maker to reject specific personal testimony, in favour of general statements found in the documentary record: Sarria v Canada (Minister of Citizenship and Immigration), 2005 FC 100; Cobian Flores v Canada (Citizenship and Immigration), 2010 FC 503; Doreitha Codogan v Canada (Minister of Citizenship and Immigration), 2006 FC 739 at para 32; Ferko v Canada (Citizenship and Immigration), 2012 FC 1284. At the very least, it was incumbent on the ID to explain why it preferred the general information contained in the documentary record, over the Applicant’s specific testimony as to what he observed at the prisons where he worked: Chaudhry v Canada (Minister of Citizenship and Immigration), 2000 CanLII 15378 at para 14. This is particularly the case because of the relevant time-period selected by the ID. During this period, the Applicant did not appear to have broad supervisory responsibility over multiple prison facilities, but a more limited set of responsibilities, confined to the prisons listed above.
[44] Moreover, assuming that the NPS undertook both legitimate and illegitimate purposes, and further assuming that these illegitimate purposes constituted crimes against humanity, it was also incumbent on the ID to explain why it came to the conclusion that the Applicant had made a serious, significant, and knowing contribution to the organization’s crime or criminal purpose. While the ID assessed the Ezokola factors, it did so on the basis of its previous findings that the Applicant had conceded the NPS had committed crimes against humanity, and on the basis of its preference for the documentary evidence over the Applicant’s testimony. As I noted above, the Applicant did not concede that the NPS committed crimes against humanity. And, to the extent that the ID expressed a preference for the documentary evidence over the testimony of the Applicant, I find that this amounted to a credibility finding that was not adequately justified. This Court has frequently found that where a tribunal casts doubt on an individual’s credibility, it must do so in clear and unmistakable terms: Hilo v Canada (Minister of Employment and Immigration) (1991), 130 NR 236 (FCA) at para 6. I do not find that the ID complied with that requirement in this case.
[45] The ID’s focus on the poor state of Nigerian prisons as the foundation for identifying crimes against humanity also muddled its complicity findings. In its concluding remarks, the ID stated:
The tribunal concludes that the person concerned had direct knowledge of the crimes against humanity committed while in direct contacts with the detainees from 1990 to 1998. He was there and even if he did nothing bad, he had to be aware considering how important the issues were. As well, for the last 20 years of his career, the person concerned occupied senior level positions such as Assistant Superintendent of prison and then Deputy Superintendent of prison. The person concerned was bound to know the treatment received within the carceral system by the detainees.
[46] The main problem with this passage relates to the circularity of the notion that even if the Applicant did nothing “bad,”
he had to have been aware of what was going on. This statement lacks intelligibility and transparency because it implies that, even if the Applicant did nothing wrong, he still knew what was happening and, as such, was complicit in the crimes in question. But of course, if he was complicit in a crime against humanity – meaning that he made a voluntary, knowing, and significant contribution to such a crime – he would, in the words of the tribunal, have done something “bad”
. It may well be that the tribunal meant to say that, even if the Applicant did not directly commit a crime against humanity, he was nevertheless complicit in such crimes. However, this is not what the ID member stated, and its imprecise language suggests a misunderstanding of the concept of complicity.
VII. CONCLUSION
[47] For the foregoing reasons, I believe this application for judicial review should be granted. The parties did not propose a question for certification, and I agree that none arises.
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