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SUPREME
COURT OF CANADA
Citation:
Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2
S.C.R. 678
|
Date:
20130719
Docket:
34470
|
Between:
Rachidi
Ekanza Ezokola
Appellant
and
Minister
of Citizenship and Immigration
Respondent
-
and -
United
Nations High Commissioner for Refugees,
Amnesty
International, Canadian Centre for International Justice,
International
Human Rights Program at the University of Toronto Faculty of Law, Canadian
Council for Refugees, Canadian Civil Liberties Association and
Canadian
Association of Refugee Lawyers
Interveners
Coram: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell,
Moldaver, Karakatsanis and Wagner JJ.
Reasons for
Judgment:
(paras. 1 to 103)
|
LeBel and Fish JJ. (McLachlin C.J. and Abella,
Rothstein, Cromwell, Moldaver, Karakatsanis and
Wagner JJ. concurring)
|
Ezokola v.
Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678
Rachidi Ekanza Ezokola Appellant
v.
Minister of Citizenship and
Immigration Respondent
and
United Nations High Commissioner for
Refugees,
Amnesty International,
Canadian Centre for International
Justice,
International Human Rights Program at
the University of Toronto Faculty of Law,
Canadian Council for Refugees,
Canadian Civil Liberties Association and
Canadian Association of
Refugee Lawyers Interveners
Indexed as: Ezokola v. Canada (Citizenship and Immigration)
2013 SCC 40
File No.: 34470.
2013: January 17; 2013: July 19.
Present: McLachlin C.J. and LeBel, Fish, Abella, Rothstein,
Cromwell, Moldaver, Karakatsanis and Wagner JJ.
on appeal from the federal court of appeal
Immigration
law — Convention refugees — Complicity in crimes against humanity — Former
representative of the Democratic Republic of Congo seeking refugee protection
in Canada — Immigration and Refugee Board rejecting claim for refugee
protection on grounds that representative was complicit in crimes against
humanity committed by the government of the Democratic Republic of Congo —
Whether mere association or passive acquiescence are sufficient to establish
complicity — Whether a contribution‑based test for complicity should be
adopted — Immigration and Refugee Protection Act, S.C. 2001, c. 27,
s. 98 — United Nations Convention Relating to the Status of Refugees, Can.
T.S. 1969 No. 6, art. 1F(a).
In
January 1999, E began his career with the government of the Democratic Republic
of Congo (“DRC”) as a financial attaché in Kinshasa. By 2007, he 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 says that he could no longer
work for the government of President Kabila, which he considered corrupt,
antidemocratic and violent. He claims that his resignation would be viewed as
an act of treason by the DRC government, and that the DRC’s intelligence
service had harassed, intimidated, and threatened him. He sought refugee
protection for himself and his family in Canada.
The
Refugee Protection Division of the Immigration and Refugee Board excluded E
from the definition of “refugee” under art. 1F(a) of the United Nations Convention
Relating to the Status of Refugees (“Refugee Convention”), finding
that he was complicit in crimes against humanity committed by the government of
the DRC. The Federal Court allowed E’s application for judicial review, but
certified a question concerning the nature of complicity under art. 1F(a).
The Federal Court of Appeal held that a senior official in a government 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 defend the interests of his or her government while being aware
of the crimes committed by the government. It remitted the matter to a
different panel of the Refugee Protection Division to apply that test to the facts
of this case.
Held:
The appeal should be allowed and the matter remitted to a new panel of the
Refugee Protection Division for redetermination in accordance with these
reasons.
To
exclude a claimant from the definition of “refugee” by virtue of art. 1F(a),
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 overextend the concept of
complicity to capture individuals based on mere association or passive
acquiescence. In Canada, the personal and knowing participation test has, in
some cases, been overextended to capture individuals on the basis of complicity
by association. It is therefore necessary to rearticulate the Canadian
approach to bring it in line with the purpose of the Refugee Convention
and art. 1F(a), the role of the Refugee Protection Division, the
international law to which art. 1F(a) expressly refers, the approach to
complicity under art. 1F(a) taken by other state parties to the Refugee
Convention, and fundamental criminal law principles. These sources all
support 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. A strict reading of art. 1F(a) properly balances these two
aims.
Second,
unlike international criminal tribunals, the Refugee Protection Division does
not determine guilt or innocence, but excludes, ab initio, those who are
not bona fide refugees at the time of their claim for refugee status. This
is reflected in and accommodated by the unique evidentiary burden applicable to
art. 1F(a) determinations: a person is excluded from the definition of
“refugee” if there are serious reasons for considering that he has committed a
crime against peace, a war crime, or a crime against humanity. While this
standard is lower than that applicable in actual war crimes trials, it requires
more than mere suspicion.
Third,
the modes of commission recognized in international criminal law articulate a
broad concept of complicity, but, even at their broadest, they do not hold
individuals liable for crimes committed by a group simply because they are
associated with the group or passively acquiesced to the group’s criminal
purposes. Common purpose liability, the broad residual mode of commission
recognized in the Rome Statute of the International Criminal Court, appears
to require a significant contribution to a crime committed or attempted by a
group acting with a common purpose, and, while joint criminal enterprise, as
recognized by the ad hoc tribunals, encompasses recklessness with
respect to the crime or criminal purpose, even it does not capture individuals
merely based on rank or association.
Fourth,
other state parties to the Refugee Convention have approached art. 1F(a)
in a manner that concentrates on the actual role played by the particular
person. They allow that an individual can be complicit without being present
at or physically contributing to the crime, but 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”.
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 does not attach to omissions unless an
individual is under a duty to act, and the principle that individuals can only
be liable for their own culpable conduct.
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 group’s crime or criminal purpose; and
(vi) the method by which the claimant was recruited and 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’s contribution to the crime or criminal purpose, and any
viable defences should be taken into account.
Cases Cited
Referred
to: Ramirez v. Canada (Minister of Employment and Immigration),
[1992] 2 F.C. 306; Pushpanathan v. Canada (Minister of Citizenship and
Immigration), [1998] 1 S.C.R. 982; Sivakumar v. Canada (Minister of
Employment and Immigration), [1994] 1 F.C. 433; Zrig v. Canada (Minister
of Citizenship and Immigration), 2003 FCA 178, [2003] 3 F.C. 761; Thamotharem
v. Canada (Minister of Citizenship and Immigration), 2007 FCA 198, [2008] 1
F.C.R. 385; Kumar v. Canada (Citizenship and Immigration), 2009 FC 643
(CanLII); Harb v. Canada (Minister of Citizenship and Immigration), 2003
FCA 39, 302 N.R. 178; Mugesera v. Canada (Minister of Citizenship and Immigration),
2005 SCC 40, [2005] 2 S.C.R. 100; Moreno v. Canada (Minister of Employment
and Immigration), [1994] 1 F.C. 298; R. (J.S. (Sri Lanka)) v. Secretary
of State for the Home Department, [2010] UKSC 15, [2011] 1 A.C. 184; Prosecutor
v. Callixte Mbarushimana, ICC‑01/04‑01/10‑465‑Red, 16
December 2011, aff’d ICC‑01/04‑01/10‑514, 30 May 2012; Prosecutor
v. Thomas Lubanga Dyilo, ICC‑01/04‑01/06‑2842, 14 March
2012, aff’g ICC‑01/04‑01/06‑803‑tEN, 29 January 2007; Prosecutor
v. William Samoei Ruto, ICC‑01/09‑01/11‑373, 23 January
2012; Prosecutor v. Jean‑Pierre Bemba Gombo, ICC‑01/05‑01/08‑424,
15 June 2009; Prosecutor v. Jovica Stanišić, IT‑03‑69‑T,
30 May 2013; Prosecutor v. Duško Tadić, IT‑94‑1‑A, 15 July 1999; Prosecutor v. Radoslav
Brđanin, IT‑99‑36‑A, 3 April 2007; Ryivuze v.
Canada (Minister of Citizenship and Immigration), 2007 FC 134, 325 F.T.R.
30; Xu Sheng Gao v. United States Attorney General, 500 F.3d 93 (2007); Osagie
v. Canada (Minister of Citizenship and Immigration) (2000), 186 F.T.R. 143;
Mpia‑Mena‑Zambili v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1349, 281 F.T.R. 54; Fabela v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1028, 277 F.T.R. 20.
Statutes and Regulations Cited
Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24 .
Criminal Code, R.S.C. 1985, c. C‑46,
s. 21(2) .
Immigration and Refugee Protection Act,
S.C. 2001, c. 27, ss. 98 , 162(2) , 170 (g), (h).
Treaties and Other International
Instruments
Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6, Preamble, art. 1F(a).
Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, July 17, 1998, arts. 25, 28, 30,
31(1)(d).
Vienna Convention on the Law of Treaties,
Can. T.S. 1980 No. 37, art. 31.
Authors Cited
Cassese, Antonio. “From Nuremberg to Rome: International Military
Tribunals to the International Criminal Court”, in Antonio Cassese, Paola Gaeta
and John R. W. D. Jones, eds., The Rome Statute of the
International Criminal Court: A Commentary, vol. I. Oxford: Oxford
University Press, 2002, 3.
Cassese, Antonio. “The Proper Limits of Individual Responsibility
under the Doctrine of Joint Criminal Enterprise” (2007), 5 J.I.C.J. 109.
Cassese’s International Criminal Law,
3rd ed., revised by Antonio Cassese, et al. Oxford: Oxford University
Press, 2013.
Cryer, Robert, et al. An Introduction to International
Criminal Law and Procedure, 2nd ed. Cambridge: Cambridge University
Press, 2010.
Goy, Barbara. “Individual Criminal Responsibility before the
International Criminal Court: A Comparison with the Ad Hoc Tribunals”
(2012), 12 Int’l. Crim. L. Rev. 1.
Human Rights Watch. World Report 2006: Events of 2005.
New York: Human Rights Watch, 2006.
Kaushal, Asha, and Catherine Dauvergne. “The Growing Culture of
Exclusion: Trends in Canadian Refugee Exclusions” (2011), 23 Int’l. J.
Refugee L. 54.
Lafontaine, Fannie. Prosecuting Genocide, Crimes Against
Humanity and War Crimes in Canadian Courts. Toronto: Carswell, 2012.
Manacorda, Stefano, and Chantal Meloni. “Indirect Perpetration versus
Joint Criminal Enterprise: Concurring Approaches in the Practice of
International Criminal Law?” (2011), 9 J.I.C.J. 159.
United Nations High Commissioner for Refugees. “Guidelines on
International Protection: Application of the Exclusion Clauses: Article 1F of
the 1951 Convention relating to the Status of Refugees”, HCR/GIP/03/05,
September 4, 2003 (online: www.unhcr.org).
van Sliedregt, Elies. Individual Criminal Responsibility in
International Law. Oxford: Oxford University Press, 2012.
Werle, Gerhard. “Individual Criminal Responsibility in
Article 25 ICC Statute” (2007), 5 J.I.C.J. 953.
Zambelli, Pia. “Problematic Trends in the Analysis of State
Protection and Article 1F(a) Exclusion in Canadian Refugee Law” (2011), 23 Int’l.
J. Refugee L. 252.
APPEAL
from a judgment of the Federal Court of Appeal (Noël, Nadon and Pelletier JJ.A.),
2011 FCA 224, [2011] 3 F.C.R. 417, 420 N.R. 279, 335 D.L.R. (4th) 164, 1 Imm. L.R.
(4th) 181, [2011] F.C.J. No. 1052 (QL), 2011 CarswellNat 2546, setting
aside in part a decision of Mainville J., 2010 FC 662, [2011] 3 F.C.R.
377, 373 F.T.R. 97, [2010] F.C.J. No. 766 (QL), 2010 CarswellNat 6199,
setting aside a decision of the Immigration and Refugee Board (Refugee
Protection Division), 2009 CanLII 89027. Appeal allowed.
Jared Will, Annick
Legault and Peter Shams, for the appellant.
François Joyal and Ginette
Gobeil, for the respondent.
Lorne Waldman, Jacqueline
Swaisland, Kylie Buday and Rana Khan, for the intervener the United
Nations High Commissioner for Refugees.
Michael Bossin, Chantal
Tie and Laïla Demirdache, for the intervener Amnesty International.
John Terry, Sarah R.
Shody and Renu Mandhane, for the interveners the Canadian Centre for
International Justice and the International Human Rights Program at the
University of Toronto Faculty of Law.
Catherine Dauvergne,
Angus Grant and Pia Zambelli, for the intervener the Canadian
Council for Refugees.
Sukanya Pillay, for
the intervener the Canadian Civil Liberties Association.
Jennifer Bond, Carole
Simone Dahan, Aviva Basman and Andrew Brouwer, for the
intervener the Canadian Association of Refugee Lawyers.
The judgment of the Court was
delivered by
LeBel and Fish JJ. —
I. Introduction
[1]
Criminal responsibility does not fall solely
upon direct perpetrators of crime. A murder conviction, for example, can
attach equally to one who pulls the trigger and one who provides the gun. Complicity
is a defining characteristic of crimes in the international context, where some
of the world’s worst crimes are committed often at a distance, by a multitude
of actors.
[2]
While principal perpetrators may be
distinguished from secondary actors for sentencing, the distinction is
irrelevant for the purposes of art. 1F(a) of the United Nations Convention
Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (“Refugee
Convention”). Article 1F(a) excludes individuals from the definition of “refugee”
if there are “serious reasons for considering that [they have] committed a
crime against peace, a war crime, or a crime against humanity”. Those who
commit these offences are not entitled to the humanitarian protection provided
by the Refugee Convention. Where exclusion from refugee status is the
only “sanction”, it is not necessary to distinguish between principals, aiders
and abettors, or other criminal participants. Individuals may be excluded from
refugee protection for international crimes through a variety of modes of
commission.
[3]
Guilt by association, however, is not one of
them.
[4]
This appeal homes in on the line between
association and complicity. It asks whether senior public officials can be
excluded from the definition of “refugee” by performing official duties for a
government that commits international crimes. It is the task of this Court to
determine what degree of knowledge and participation in a criminal activity
justifies excluding secondary actors from refugee protection. In other words,
for the purposes of art. 1F(a), when does mere association become culpable
complicity?
[5]
In contrast to international crime, determining
responsibility for domestic crime is often direct. While party liability plays
a role, domestic criminal law, in its simplest form, asks whether one individual
has committed one crime against one victim. In international criminal law, the
focus often switches to the collective and to the links between individuals and
collective action. International criminal law typically asks whether a group
of individuals, an organization or a state has committed a series of crimes
against a group of victims. In other words, party liability plays a much
greater role in the commission of those crimes recognized as some of the most
serious in the international legal order: R. Cryer et al., An
Introduction to International Criminal Law and Procedure (2nd ed. 2010), at
p. 361.
[6]
Aware of the collective aspects of international
crime, the Federal Court of Appeal correctly concluded that senior officials may
be held criminally responsible for crimes committed by their government if they
are aware of the crimes being committed yet remain in their position without
protest and continue to defend the interests of the government.
[7]
However, this does not mean that high-ranking
government officials are exposed to a form of complicity by association.
Complicity arises by contribution. The collective nature of many international
crimes does not erase the importance of holding an individual responsible only
for his or her own culpable acts: G. Werle, “Individual Criminal
Responsibility in Article 25 ICC Statute” (2007), 5 J.I.C.J. 953, at p.
953.
[8]
While individuals may be complicit in
international crimes without a link to a particular crime, there must be
a link between the individuals and the criminal purpose of the group — a
matter to which we will later return. In the application of art. 1F(a), this
link is established where there are serious reasons for considering that an
individual has voluntarily made a significant and knowing contribution to a
group’s crime or criminal purpose. As we shall see, a broad range of
international authorities converge towards the adoption of a “significant
contribution test”.
[9]
This contribution-based approach to complicity
replaces the personal and knowing participation test developed by the Federal
Court of Appeal in Ramirez v. Canada (Minister of Employment and Immigration),
[1992] 2 F.C. 306. In our view, the personal and knowing participation test
has, in some cases, been overextended to capture individuals on the basis of
complicity by association. A change to the test is therefore necessary to
bring Canadian law in line with international criminal law, the humanitarian
purposes of the Refugee Convention, and fundamental criminal law
principles.
[10]
We would therefore
allow the appeal and send the matter back to a different panel of the Refugee
Protection Division of the Immigration and Refugee Board (the “Board”) for
redetermination in accordance with these reasons. The panel will decide
whether there are serious reasons for considering that the appellant’s
knowledge of, and participation in, the crimes or criminal purposes of his
government meet the complicity by contribution test. As always, whether art. 1F(a)
operates to exclude an individual from refugee protection will depend on the
particular facts of the case.
A. Background Facts
[11]
The appellant, Rachidi Ekanza Ezokola, began his
career with the government of the Democratic Republic of Congo (“DRC”) in January
1999. He was hired as a financial attaché at the Ministry of Finance and was
assigned to the Ministry of Labour, Employment and Social Welfare in Kinshasa.
He later worked as a financial adviser to the Ministry of Human Rights and the
Ministry of Foreign Affairs and International Cooperation.
[12]
In 2004, the appellant was assigned to the
Permanent Mission of the DRC to the United Nations (“UN”) in New York. In his
role as second counsellor of embassy, the appellant represented the DRC at
international meetings and UN entities including the UN Economic and Social
Council. He also acted as a liaison between the Permanent Mission of the DRC
and UN development agencies. In 2007, the appellant served as acting chargé
d’affaires. In this capacity, he led the Permanent Mission of the DRC and
spoke before the Security Council regarding natural resources and conflicts in
the DRC.
[13]
The appellant worked at the Permanent Mission
until January 2008 when he resigned and fled to Canada.
[14]
The appellant says he ultimately resigned
because he refused to serve the government of President Kabila which he
considered to be corrupt, antidemocratic and violent. He claims his
resignation would be viewed as an act of treason by the DRC government. He
claims that the DRC’s intelligence service harassed, intimidated, and
threatened him because it suspected he had links to Jean-Pierre Bemba,
President Kabila’s opponent. It was on this basis that he sought refugee
protection for himself, his wife, and their eight children in Canada.
B. Judicial History
(1) Immigration
and Refugee Board — Refugee Protection Division, 2009 CanLII 89027
[15]
The issue for the Board in determining the
appellant’s application for refugee protection was whether the appellant should
be excluded from Canada on the basis of s. 98 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (“IRPA ”). This provision directly
incorporates art. 1F(a) of the Refugee Convention into Canadian law.
The Board excluded the appellant from the definition of “refugee” under art.
1F (a). It held that, although the government of the DRC was not an
organization with a limited and brutal purpose, it had committed crimes against
humanity as defined by the Rome Statute of the International Criminal Court,
U.N. Doc. A/CONF.183/9, July 17, 1998 (“Rome Statute”), and Canadian
jurisprudence: paras. 31 and 43. The Board concluded that the government’s
crimes continued even as the government itself changed: para. 33.
[16]
The Board relied on various reports — including
media, governmental, and non-governmental — to find international crimes were
committed on both sides of conflicts spanning several years. For instance, at
para. 39, it cited a report by Human Rights Watch, dated January 18, 2006,
which condemned the conduct of the DRC government (and others):
In 2005, combatants from armed
groups as well as government soldiers deliberately killed, raped, and abducted
civilians and destroyed or looted their property in repeated attacks,
particularly in eastern Congo. A feeble justice system failed to prosecute
these recent crimes and did nothing to end impunity for war crimes and crimes
against humanity committed during the previous two wars. The September 2005
discovery of mass graves from 1996 in the eastern region of Rutshuru served as
a reminder of the unpunished mass slaughter of civilians in Congo in the last
decade.
. . .
The government failure to
integrate troops of former belligerent groups into the national army and to properly
train and pay its soldiers underlay some military abuses. Military abuses such
as those that occurred in December 2004 in North Kivu where government soldiers
and combatants refusing integration fought and killed at least one hundred
civilians, many of them targeted on an ethnic basis, were repeated elsewhere in
2005. In Walungu, South Kivu, government soldiers raped civilians and looted
property during operations against the FDLR in late 2004 and early 2005. In
Equateur, poorly paid and undisciplined troops went on a rampage in July 2005,
killing, raping, and stealing from civilians.
As government soldiers tried
to take control of Ituri and parts of North and South Kivu, Maniema and Katanga
in late 2004 and 2005, both they and the combatants fighting them committed
grave violations of international humanitarian and human rights law.
(World
Report 2006: Events of 2005 (2006), at pp. 90-92)
[17]
The Board also cited reports condemning the DRC
authorities’ practice of recruiting child soldiers: paras. 36 and 40.
[18]
The Board concluded that “[t]he evidence clearly shows that the
Congolese government represses human rights, carries out civilian massacres and
engages in governmental corruption”: para. 43.
[19]
In the Board’s view, the appellant was complicit
in these crimes. Based on the appellant’s official rank, he had “personal and
knowing awareness” of the crimes committed by his government: para. 71. The Board
pointed out that the appellant had joined the government voluntarily and
continued to act in his official capacity until he feared for his own safety.
In the Board’s view, the appellant’s functions and responsibilities helped to
sustain the government of the DRC. The Board therefore had serious reasons for
considering that the appellant was complicit in the crimes committed by the
government.
(2) Federal Court — Mainville J., 2010 FC
662, [2011] 3 F.C.R. 377
[20]
The Federal Court allowed the appellant’s
application for judicial review. The court determined that an individual
cannot be excluded under art. 1F(a) merely because he had been an employee of a
state whose government commits international crimes. Complicity requires a
nexus between the claimant and the crimes committed by the government.
[21]
In order to determine whether this link existed,
the court considered the modes of commission provided for in the Rome
Statute and concluded 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”: para. 86.
[22]
In the court’s view, the required nexus between
the claimant and the crimes “may be established by presumption if the claimant
held a senior position in the public service, where there are serious reasons
for considering that the position in question made it possible for the refugee
claimant to commit, incite or conceal the crimes, or to participate or
collaborate in the crimes”: para. 4. However, in this case there was “no
evidence that tend[ed] to show direct or indirect personal participation by the
applicant in the crimes alleged, and there [was] no evidence of incitement or
active support by the applicant for those crimes”: para. 104. It was an error
to assign responsibility to the appellant solely on the basis of his position
within the government, absent a personal nexus between his role and the army or
police of the DRC.
[23]
The court certified the following question:
For the purposes of exclusion
pursuant to paragraph 1F(a) 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?
(2011
FCA 224, [2011] 3 F.C.R. 417, at para. 28)
(3) Federal
Court of Appeal — Noël J.A. (Nadon and Pelletier JJ.A.)
[24]
The Federal Court of Appeal answered the
certified question in the affirmative, but not before reformulating it as
follows:
For the purposes of exclusion pursuant
to paragraph 1F(a) 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? [para. 44]
[25]
The Federal Court of Appeal rejected the Federal
Court’s approach to complicity, describing it as inconsistent with Canadian
jurisprudence and too narrow: paras. 46 and 57. The Federal Court of Appeal
concluded that
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. [para. 72]
[26]
The court added that “the final outcome will
always depend on the facts particular to each case”: para. 72.
[27]
The Federal Court of Appeal decided it was
unnecessary to determine whether the conclusion of the Board was reasonable
because it had applied the wrong test for complicity. Instead of applying the
“personal and knowing participation” test, the Board considered the appellant’s
“personal and knowing awareness”: para. 75. The Federal Court of Appeal
therefore remitted the matter to a different panel of the Board to apply the
personal and knowing participation test to determine whether the appellant was
an accomplice in the crimes committed by the DRC.
II. Analysis
A. Issues
[28]
Whether or not the appellant should ultimately
be excluded from refugee protection for having committed international crimes
will be determined by the Board at a de novo hearing. The task for this
Court is to determine what test for complicity will be applied by the art.
1F(a) decision maker. To answer this question, the Court must also address the
evidentiary standard applicable to art. 1F(a) determinations.
[29]
For the reasons that follow, we conclude that an
individual will be excluded from refugee protection under art. 1F(a) for
complicity in international crimes if there are serious reasons for considering
that he or she voluntarily made a knowing and significant contribution to the
crime or criminal purpose of the group alleged to have committed the crime.
The evidentiary burden falls on the Minister as the party seeking the
applicant’s exclusion: Ramirez, at p. 314.
[30]
In rejecting a guilt-by-association approach to
complicity, we have considered (i) the purpose of the Refugee Convention
and art. 1F(a); (ii) the role of the Board; (iii) the international law to
which art. 1F(a) expressly refers; and (iv) the approach to complicity under
art. 1F(a) taken by other state parties to the Refugee Convention. Each
of these demonstrates the need to rein in the Canadian approach to complicity
under art. 1F(a) to ensure that individuals are not excluded from refugee
protection for merely being associated with others who have perpetrated
international crimes.
B. The Purpose of the
Refugee Convention and Article 1F(a)
[31]
In our view, the purpose of the Refugee
Convention, together with the purpose of art. 1F(a), sheds light on the
proper approach for determining exclusions from refugee protection based on
complicity in international crimes: Vienna Convention on the Law of
Treaties, Can. T.S. 1980 No. 37, art. 31.
[32]
The preamble to the Refugee Convention
highlights the international community’s “profound concern for refugees” and its
commitment “to assure refugees the widest possible exercise of . . . fundamental
rights and freedoms”. Our approach to art. 1F(a) must reflect this
“overarching and clear human rights object and purpose”: Pushpanathan v.
Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at
para. 57.
[33]
That said, the Refugee Convention’s
commitment to refugee protection is broad, but not unbounded. It does not
protect international criminals. Incorporated directly into Canadian law by s.
98 of the IRPA, art. 1F (a) guards against abuses of the Refugee Convention
by denying 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;
[34]
As the Federal Court of Appeal recognized in Sivakumar
v. Canada (Minister of Employment and Immigration), [1994] 1 F.C.
433, at p. 445: “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.” In other words, those who create refugees are not refugees
themselves: Pushpanathan, at para. 63; Zrig v. Canada (Minister
of Citizenship and Immigration), 2003 FCA 178, [2003] 3 F.C. 761, at para.
118.
[35]
On the one hand then, if we approach art. 1F(a)
too narrowly, we risk creating safe havens for perpetrators of international
crimes — the very scenario the exclusion clause was designed to prevent. On
the other hand, a strict reading of art. 1F(a) arguably best promotes the
humanitarian aim of the Refugee Convention: United Nations High
Commissioner for Refugees (“UNHCR”), “Guidelines on International Protection:
Application of the Exclusion Clauses: Article 1F of the 1951 Convention
relating to the Status of Refugees”, HCR/GIP/03/05, September 4, 2003
(online), at para. 2.
[36]
The foregoing demonstrates the need for a
carefully crafted test for complicity — one that promotes the broad
humanitarian goals of the Refugee Convention but 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. As we will explain, these two aims are
properly balanced by a contribution-based test for complicity — one that
requires a voluntary, knowing, and significant contribution to the crime or
criminal purpose of a group.
C. The Role of the Refugee
Protection Division: Exclusion Determinations, Not Findings of Guilt
[37]
In addition to the purposes of the Refugee
Convention and art. 1F(a), the test for complicity must reflect the role
of the Board and must work within the practical realities of refugee
proceedings.
[38]
A refugee hearing is not a criminal trial before
an international tribunal. International criminal tribunals render verdicts
for some of the most serious crimes in the international legal order. In
contrast, the Board makes exclusion determinations; it does not determine guilt
or innocence. The purpose of art. 1F(a) “is to exclude ab initio those
who are not bona fide refugees at the time of their claim for refugee
status”: Pushpanathan, at para. 58.
[39]
To achieve this purpose, Board hearings tend to
be less formal than criminal trials. The Board is not bound by traditional
rules of evidence: IRPA , at s. 170 (g) and (h);
Thamotharem v. Canada (Minister of Citizenship and Immigration),
2007 FCA 198, [2008] 1 F.C.R. 385, at para. 41; Kumar v. Canada (Citizenship
and Immigration), 2009 FC 643 (CanLII), at paras. 28-29. Section 162(2) of
the IRPA instructs each division of the Board to “deal with all
proceedings before it as informally and quickly as the circumstances and the
considerations of fairness and natural justice permit”.
[40]
As we will discuss in more detail below, the
differences between a criminal trial and a Board hearing are further reflected
in — and accommodated by — the unique evidentiary burden applicable to art.
1F(a) determinations: a person is excluded from the definition of “refugee” on
the basis of the “serious reasons for considering” standard.
[41]
In light of these features of refugee
proceedings, it is unnecessary to craft a multitude of tests for each mode of
commission through which a government official may be held complicit in the
crimes committed by his or her government. Unique considerations may arise in
cases where the individual is said to have control or responsibility over the alleged
perpetrators, or where the individual allegedly made specific contributions to
a specific crime (in the form of instigating, ordering, or inciting, for
example). However, here we are concerned with general participation in a
group’s criminal activity. We must determine when that participation becomes a
culpable contribution.
D. The Board Must Rely on
International Law to Interpret Article 1F(a)
[42]
Following the express
direction in the text of art. 1F(a), we now turn to international law for
guidance. As mentioned, art. 1F(a) excludes individuals when “there are
serious reasons for considering that” they have “committed a crime
against peace, a war crime, or a crime against humanity, as defined in the international instruments”. We must therefore consider international criminal law to
determine whether an individual should be excluded from refugee protection for
complicity in international crimes: Harb v. Canada (Minister of Citizenship
and Immigration), 2003 FCA 39, 302 N.R. 178, at para. 8. We will also look
to international jurisprudence for guidance: Mugesera v. Canada (Minister
of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at
paras. 82 and 126.
[43]
In our view, international law is relevant both
for the elements of the offences and their potential modes of commission. As
the appellant stated, art. 1F(a) is not concerned with simply identifying the
substantive elements of the offence, but with whether there are serious reasons
for considering that the individual has committed a crime as defined in
international law. Since there is no dispute in this appeal that the elements
of the crimes have been carried out by the government of the DRC, we are
concerned here with modes of commission.
[44]
Whether an individual is complicit in an
international crime cannot be considered in light of only one of the world’s
legal systems: Ramirez, at p. 315; Moreno v.
Canada (Minister of Employment and Immigration),
[1994] 1 F.C. 298 (C.A.), at p. 323. This flows not
only from the explicit instruction in art. 1F(a) to apply international law,
but also from the extraordinary nature of international crimes. They simply
transcend domestic norms. As Fannie Lafontaine explains in Prosecuting
Genocide, Crimes Against Humanity and War Crimes in Canadian Courts (2012),
at p. 95:
Genocide, crimes against humanity and
war crimes, because of their very raison d’être, their particular
magnitude and the context of their commission, cannot be assimilated to
ordinary crimes, regardless of the latter crimes’ intrinsic gravity.
[45]
International criminal law, while built upon
domestic principles, has adapted the concept of individual responsibility to
this setting of collective and large-scale criminality, where crimes are often
committed indirectly and at a distance. As Gerhard Werle puts it, at p. 954:
When allocating individual
responsibility within networks of collective action, it must be kept in mind
that the degree of criminal responsibility does not diminish as distance from
the actual act increases; in fact, it often grows. Adolf Hitler, for example,
sent millions of people to their deaths without ever laying a hand on a victim
himself. And mass killer Adolf Eichmann organized the extermination of
European Jews from his office in the Berlin headquarters of the “Reichssicherheitshauptamt”
of the SS.
[46]
We are therefore required by both the text of
art. 1F(a) and the realities of international crime to look beyond the bounds
of Canadian criminal law. We must refrain from interpreting and applying international
criminal law as if it were simply the mirror of our domestic criminal law: Cassese’s
International Criminal Law (3rd ed. 2013), revised by A. Cassese et al., at
pp. 6-7.
[47]
The question is — what are the relevant sources
of international criminal law?
[48]
In our view, the best place to start is the Rome
Statute. As Lord Brown of Eaton-under-Heywood J.S.C. recognized in R. (J.S.
(Sri Lanka)) v. Secretary of State for the Home Department, [2010]
UKSC 15, [2011] 1 A.C. 184 (“J.S.”), at para. 9:
It is
convenient to go at once to the [Rome] Statute, ratified as it now is by more
than 100 states and standing as now surely it does as the most comprehensive
and authoritative statement of international thinking on the principles that
govern liability for the most serious international crimes (which alone could
justify the denial of asylum to those otherwise in need of it).
[49]
Canada’s acceptance of the Rome Statute as
authority on international criminal principles is beyond dispute. Canada is
not only party to the Rome Statute, Parliament has implemented the
treaty into domestic law through the Crimes Against Humanity and War Crimes
Act, S.C. 2000, c. 24 .
[50]
Article 25 of the Rome Statute provides
extensive descriptions of modes of commission. These enumerated modes of
liability have been described as the culmination of the international
community’s efforts to codify individual criminal responsibility under
international law: A. Cassese, “From Nuremberg to Rome: International
Military Tribunals to the International Criminal Court”, in A. Cassese, P.
Gaeta and J. R. W. D. Jones, eds., The Rome Statute of the International
Criminal Court: A Commentary, vol. I (2002), 3, at pp. 3-4; and E.
van Sliedregt, Individual Criminal Responsibility in International Law
(2012), at pp. 74-75.
[51]
That said, we may not rely exclusively on the
approach of the International Criminal Court (“ICC”) to complicity. Despite
its importance, the Rome Statute cannot be considered as a complete
codification of international criminal law. International criminal law derives
from a diversity of sources which include the growing body of jurisprudence of
international criminal courts: Cassese’s International Criminal Law, at
pp. 9-21. Article 1F(a) of the Refugee Convention refers
generally to international instruments and the ICC itself has relied on the
jurisprudence of ad hoc tribunals to interpret its own statute: Prosecutor
v. Callixte Mbarushimana, ICC-01/04-01/10-465-Red, Decision on the
Confirmation of Charges, 16 December 2011 (ICC, Pre-Trial Chamber I), at para.
280. See also B. Goy, “Individual Criminal Responsibility before the
International Criminal Court: A Comparison with the Ad Hoc Tribunals”
(2012), 12 Int’l. Crim. L. Rev. 1, at p. 4. In Mugesera, at
paras. 82 and 126, this Court highlighted the international law expertise of
the ad hoc tribunals and explained that the decisions of the
International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and the
International Criminal Tribunal for Rwanda “should not be disregarded lightly
by Canadian courts applying domestic legislative provisions . . . which
expressly incorporate customary international law”: para. 126. Accordingly,
while our focus will remain on the most recent codification of international
criminal law in the Rome Statute, we will also consider other
sources, more particularly the jurisprudence of the ad hoc tribunals.
[52]
As explained above, we are concerned here with
the dividing line between mere association and culpable complicity. While
further distinctions between modes of commission may be important for
sentencing purposes, exclusion from refugee protection applies when there are
serious reasons for considering that an individual has committed an
international crime, whatever the mode of commission happens to be. Our task
then is to identify threshold criteria for the application of the exclusionary
clause, art. 1F(a) of the Refugee Convention. Accordingly, the broadest
modes of commission recognized under current international criminal law are
most relevant to our complicity analysis, namely, common purpose liability
under art. 25(3)(d) of the Rome Statute and joint criminal
enterprise developed in the ad hoc jurisprudence.
[53]
These two related modes have adapted the concept
of individual criminal responsibility to the collective aspects of
international crime. However, as the following analysis will show, individual
criminal responsibility has not been stretched so far as to capture complicity
by mere association or passive acquiescence. In other words, when we look to
international criminal law for guidance, even the broadest modes of commission
require a link between the individual and the crime or criminal purpose of a
group. Therefore, to the extent that the Federal Court of Appeal’s reasons
expand complicity under art. 1F(a) in such a way that it includes mere
complicity by association or passive acquiescence, they should not be followed.
We shall return below, in greater detail, to this issue.
E. Common Purpose Under
Article 25(3)(d) of the Rome Statute
[54]
Article 25(3)(d) of the Rome Statute recognizes
a broad residual mode of commission by capturing conduct that “[i]n any other
way contributes” to a crime committed or attempted by a group acting with a
common purpose:
3. .
. . a person shall be criminally responsible and liable for punishment for a
crime within the jurisdiction of the Court if that person:
. . .
(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;
See
Cassese’s International Criminal Law, at pp. 175-76.
[55]
In other words, art. 25(3)(d) captures
contributions to a crime where an individual did not have control over the
crime and did not make an essential contribution as required for
co-perpetration under art. 25(3)(a), did not incite, solicit or induce the
crime under art. 25(3)(b), or did not intend to aid or abet a certain specific
crime under art. 25(3)(c): Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-2842,
Judgment Pursuant to Article 74 of the Statute, 14 March 2012 (ICC, Trial
Chamber I), at para. 999; Prosecutor v. William Samoei Ruto, ICC-01/09-01/11-373,
Decision on the Confirmation of Charges, 23 January 2012 (ICC, Pre-Trial
Chamber II), at para. 354; Prosecutor v. Callixte Mbarushimana, ICC-01/04-01/10-514,
Judgment on the Prosecutor’s Appeal against the Decision on the Confirmation of
Charges, 30 May 2012 (ICC, Appeals Chamber), at para. 8, per Judge
Fernández de Gurmendi, concurring; Prosecutor v. Thomas Lubanga Dyilo,
ICC-01/04-01/06-803-tEN, Decision on the Confirmation of Charges, 29
January 2007 (ICC, Pre-Trial Chamber I), at para. 337; and Lafontaine, at pp.
237-38.
[56]
The actus reus under para. (d) is
distinguishable from the preceding paragraphs under art. 25(3) primarily by the
magnitude of contribution required. While the jurisprudence is not completely
settled, a pre-trial chamber of the ICC has said that the level of contribution
required by art. 25(3)(d) is lower than the forms of commission under paras.
(a) to (c). Where commission under para. (a) requires an essential
contribution, and para. (c) a substantial one, Pre-Trial Chamber I has
concluded that art. 25(3)(d) requires only a significant contribution: Mbarushimana,
at paras. 279-85.
[57]
While the phrase “any other way” captures every
imaginable contribution in a qualitative sense, it does not necessarily apply
as broadly in a quantitative sense. Not every contribution, no matter how
minor, will be caught by art. 25(3)(d). Setting the threshold at significant
contribution is critical. As Pre-Trial Chamber I of the ICC said in Mbarushimana,
at para. 277:
. . . such a
threshold is necessary to exclude contributions which, because of their level
or nature, were clearly not intended by the drafters of the Statute to give
rise to individual criminal responsibility. For instance, many members of a
community may provide contributions to a criminal organisation in the knowledge
of the group’s criminality, especially where such criminality is public
knowledge. Without some threshold level of assistance, every landlord, every
grocer, every utility provider, every secretary, every janitor or even every
taxpayer who does anything which contributes to a group committing
international crimes could satisfy the elements of 25(3)(d) liability for their
infinitesimal contribution to the crimes committed.
[58]
The pre-trial chamber went on to explain that
the significance of a contribution will depend on the facts of each case, “as
it is only by examining a person’s conduct in proper context that a
determination can be made as to whether a given contribution has a larger or
smaller effect on the crimes committed”: Mbarushimana, at para. 284.
On an appeal by the Prosecutor, the majority of the Appeals Chamber declined to
determine the degree of contribution required under art. 25(3)(d): paras.
65-69.
[59]
As for the mens rea requirement, the text
of art. 25(3)(d) states that a contribution must be intentional, “made with the
aim of furthering the criminal activity or purpose of the group” or “in the
knowledge of the intention of the group to commit the crime”. The Pre-Trial
Chamber I explained in Mbarushimana, at para. 289, that individuals
may be complicit in crimes without possessing the mens rea required by
the crime itself:
Differently from aiding and abetting
under article 25(3)(c) of the Statute, for which intent is always required,
knowledge is sufficient to incur liability for contributing to a group of
persons acting with a common purpose, under article 25(3)(d) of the Statute.
Since knowledge of the group’s criminal intentions is sufficient for criminal
responsibility, it is therefore not required for the contributor to have the
intent to commit any specific crime and not necessary for him or her to satisfy
the mental element of the crimes charged.
[60]
While the subjective element under art. 25(3)(d)
can take the form of intent (accused intends to contribute to a group’s
criminal purpose) or knowledge (accused is aware of the group’s intention to
commit crimes), recklessness is likely insufficient. The text of art. 25(3)(d)
itself does not refer to conduct that might contribute to a crime or
criminal purpose, and the mental element codified by art. 30 has been held to
exclude dolus eventualis, that is, the awareness of a mere risk of
prohibited consequences: Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424,
Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute, 15
June 2009 (ICC, Pre-Trial Chamber II), at para. 360. We note that Pre-Trial
Chamber I took a different view of art. 30 in Lubanga, at paras. 351-55.
[61]
As the foregoing demonstrates, complicity under
art. 25(3)(d) is not based on rank within or association with a group, but on
intentionally or knowingly contributing to a group’s crime or criminal
purpose.
F. Joint Criminal
Enterprise
[62]
Having considered the broadest form of accessory
liability under the Rome Statute, we now turn to what is perhaps the
broadest and most controversial mode of liability recognized by the ad hoc
tribunals: joint criminal enterprise. See Cassese’s International
Criminal Law, at pp. 163-75; Cryer, at p. 372.
[63]
Even though joint criminal enterprise is
considered to be a form of principal liability, it is relevant to our task of
setting threshold criteria for art. 1F(a) of the Refugee Convention.
The line between principal and accessory is not necessarily drawn consistently
across international and domestic criminal law. Joint criminal enterprise,
like common purpose liability under art. 25(3)(d), captures “lesser”
contributions to a crime than aiding and abetting. While aiding and abetting
likely requires a substantial contribution to a certain specific crime, joint
criminal enterprise and common purpose liability can arise from a significant
contribution to a criminal purpose. To the extent that the ICTY Trial Chamber
may be seen to have applied a more exacting standard in Prosecutor v. Jovica
Stanišić, IT-03-69-T, Judgment, 30 May 2013 (ICTY, Trial
Chamber I), it is not in accordance with prevailing appellate authority: Prosecutor
v. Duško Tadić, IT-94-1-A, Judgment, 15 July 1999 (ICTY, Appeals
Chamber), at para. 229, cited in Lafontaine, at p. 237; Prosecutor v.
Radoslav Brđanin, IT-99-36-A, Judgment, 3 April 2007 (ICTY, Appeals
Chamber), at paras. 427-28 and 430. Joint criminal enterprise therefore
captures individuals who could easily be considered as secondary actors complicit
in the crimes of others: Cryer, at p. 372; S. Manacorda and C. Meloni,
“Indirect Perpetration versus Joint Criminal Enterprise: Concurring
Approaches in the Practice of International Criminal Law?” (2011), 9 J.I.C.J.
159, at pp. 166-67.
[64]
In Tadić, the ICTY articulated three
forms of joint criminal enterprise: paras. 196-206. For all three, the actus
reus is a “significant” contribution to the criminal enterprise: Brđanin,
at para. 430.
[65]
However, the mens rea varies for each
form. The first form, JCE I, requires shared intent to perpetrate a certain
crime. The second, JCE II, requires knowledge of a system of ill treatment and
intent to further this system. The third, JCE III, requires intention to
participate in and further the criminal activity or purpose of the group, and
intent to contribute to the joint criminal enterprise or the commission of a
crime by the group. Under JCE III, liability can extend to a crime other than
one agreed to in the common plan if the accused intended to participate in and
further the criminal activity of the group and (i) it was foreseeable that such
a crime might be perpetrated by members of the group and (ii) the accused
willingly took that risk. In other words, where an accused intends to contribute
to the common purpose, JCE III captures not only knowing contributions but
reckless contributions: see Tadić, at para. 228.
[66]
Despite the overlap between joint criminal
enterprise and art. 25(3)(d), ICC jurisprudence has kept the two modes
distinct. Commentators suggest that JCE III will not play a role at the ICC,
largely because of the recklessness component: van Sliedregt, at p. 101;
Lafontaine, at p. 238; A. Cassese, “The Proper Limits of Individual
Responsibility under the Doctrine of Joint Criminal Enterprise” (2007), 5 J.I.C.J.
109, at p. 132; Manacorda and Meloni, at p. 176.
[67]
For our purposes, we simply note that joint
criminal enterprise, even in its broadest form, does not capture individuals
merely based on rank or association within an organization or an institution: Cassese’s
International Criminal Law, at p. 163. It requires that the accused
have made, at a minimum, a significant contribution to the group’s crime or
criminal purpose, made with some form of subjective awareness (whether it be
intent, knowledge, or recklessness) of the crime or criminal purpose. In other
words, this form of liability, while broad, requires more than a nexus between
the accused and the group that committed the crimes. There must be a link
between the accused’s conduct and the criminal conduct of the group: Brđanin,
at paras. 427-28; Lafontaine, at p. 234; Cryer, at p. 369.
G. Summary of Complicity Under International Law
[68]
In sum, while the various modes of commission recognized
in international criminal law articulate a broad concept of complicity,
individuals will not be held liable for crimes committed by a group simply because
they are associated with that group, or because they passively acquiesced to
the group’s criminal purpose. At a minimum, complicity under international
criminal law requires an individual to knowingly (or, at the very least,
recklessly) contribute in a significant way to the crime or criminal purpose of
a group.
H. Comparative Law and
Decisions of Other National Courts
[69]
Other state parties to the Refugee Convention
have approached art. 1F(a) in a manner that adheres to the minimum requirements
for complicity set by the international law principles discussed above.
[70]
In J.S., the U.K. Supreme Court rejected
the presumption that an individual is complicit in war crimes if he joins an
organization, even where that organization has a limited and brutal purpose. Lord
Hope of Craighead D.P.S.C., concurring, stated that “mere membership of an
organisation that is committed to the use of violence for political ends is not
enough to bring an appellant within the exclusion clauses”: para. 43; see also
paras. 31 and 44. Rather, as Lord Kerr of Tonaghmore J.S.C., also concurring,
wrote, decision makers must “concentrate on the actual role played by the
particular person, taking all material aspects of that role into account so as
to decide whether the required degree of participation is established”: para.
55. In his view, this approach “accord[s] more closely . . . with the spirit
of articles 25 and 30 of the ICC Rome Statute”: para. 57.
[71]
According to J.S., an individual would
only be excluded under art. 1F(a) “if there are serious reasons for considering
him voluntarily to have contributed in a significant way to the organisation’s
ability to pursue its purpose of committing war crimes, aware that his
assistance will in fact further that purpose”: para. 38.
[72]
To assess the accused’s mental state and degree
of participation, J.S. provides factors that are remarkably similar to
those used by Canadian courts in art. 1F(a) cases:
. . . (i)
the nature and (potentially of some importance) the size of the organisation
and particularly that part of it with which the asylum seeker was himself most
directly concerned, (ii) whether and, if so, by whom the organisation was
proscribed, (iii) how the asylum seeker came to be recruited, (iv) the length
of time he remained in the organisation and what, if any, opportunities he had
to leave it, (v) his position, rank, standing and influence in the
organisation, (vi) his knowledge of the organisation’s war crimes activities,
and (vii) his own personal involvement and role in the organisation including
particularly whatever contribution he made towards the commission of war crimes.
[para. 30]
[73]
These factors are largely subsumed by the six
“non-exhaustive” factors set out in Ryivuze v. Canada (Minister of
Citizenship and Immigration), 2007 FC 134, 325 F.T.R. 30, at
para. 38:
(1) the
nature of the organization;
(2) the
method of recruitment;
(3)
position/rank in the organization;
(4)
knowledge of the organization’s atrocities;
(5) the
length of time in the organization; and
(6) the
opportunity to leave the organization.
[74]
The factors recognized in U.K. and Canadian
jurisprudence help guard against a complicity analysis that would exclude
individuals from refugee protection on the basis of mere membership or failure
to dissociate from a multifaceted organization which is committing war crimes.
[75]
Similarly, United States appellate jurisprudence
on refugee exclusions does not recognize complicity based on passive
acquiescence or “tangential” contributions. While the U.S. “persecutor bar”
does not directly incorporate art. 1F(a), it nevertheless represents an
approach to exclusion that would only capture those who have committed
international crimes as recognized by international criminal law: A.F., at
para. 167. A recent decision by the Second Circuit Court of Appeals said:
.
. . the mere fact that [a person] may be associated with an enterprise that
engages in persecution is insufficient by itself to trigger the effects of the
persecutor bar. As the Supreme Court’s oft-quoted dicta in Fedorenko v.
United States, 449 U.S. 490, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981),
illustrates, a “guilt by association” approach to the persecutor bar is
improper. . . .
. . . Before
[a claimant] may be held personally accountable for assisting in acts of
persecution, there must be some evidence that he himself engaged in conduct
that assisted in the persecution of another.
(Xu Sheng Gao v. United States Attorney General, 500 F.3d 93
(2007), at paras. 5-6, cited in P. Zambelli, “Problematic Trends in the
Analysis of State Protection and Article 1F(a) Exclusion in Canadian Refugee
Law” (2011), 23 Int’l. J. Refugee L. 252, at pp. 284-85.)
[76]
In our view, the approach to complicity adopted
by these state parties adheres to the UNHCR’s recommendation in its Guidelines,
at para. 18, although it would ask for a “substantial” contribution:
For
exclusion to be justified, individual responsibility must be established in
relation to a crime covered by Article 1F. . . . In general, individual
responsibility flows from the person having committed, or made a substantial
contribution to the commission of the criminal act, in the knowledge that his
or her act or omission would facilitate the criminal conduct. The individual
need not physically have committed the criminal act in question. Instigating,
aiding and abetting and participating in a joint criminal enterprise can
suffice.
[77]
In sum, the foregoing approaches to complicity
all require a nexus between the individual and the group’s crime or criminal
purpose. An individual can be complicit without being present at the crime and
without physically contributing to the crime. However, the UNHCR has
explained, and other state parties have recognized, that to be excluded from
the definition of refugee protection, there must be evidence that the
individual knowingly made at least a significant contribution to the group’s
crime or criminal purpose. Passive membership would not be enough, as indicated
above in paras. 70-76.
I. The Canadian Approach
to Criminal Participation Has Been Overextended
[78]
Before being overturned by the Federal Court of
Appeal, the Federal Court’s decision in this case was viewed as a potential
signal of “a clearer jurisprudence, more closely tied to international
standards and to the original wording of the Convention”: A. Kaushal and C.
Dauvergne, “The Growing Culture of Exclusion: Trends in Canadian Refugee
Exclusions” (2011), 23 Int’l. J. Refugee L. 54, at p. 85. The Federal
Court rightly concluded that neither mere membership in a government that had
committed international crimes nor knowledge of those crimes is enough to
establish complicity: para. 4.
[79]
In our view, the Federal Court’s approach in
this case brings appropriate restraint to the test for complicity that had, in
some cases, inappropriately shifted its focus towards the criminal activities
of the group and away from the individual’s contribution to that criminal
activity: see, for example, Osagie v. Canada (Minister of Citizenship and
Immigration) (2000), 186 F.T.R. 143; Mpia-Mena-Zambili v. Canada (Minister
of Citizenship and Immigration), 2005 FC 1349, 281 F.T.R. 54, at paras.
45-47; Fabela v. Canada (Minister of Citizenship and Immigration), 2005
FC 1028, 277 F.T.R. 20, at paras. 14-19. By answering “yes” to the certified
question, the Federal Court of Appeal’s reasons could be seen as having
endorsed an overextended approach to complicity, one that captures complicity
by association or passive acquiescence.
[80]
As Noël J.A. noted in this case, a senior
official may be complicit in the government’s crimes “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”. Nonetheless, the
Federal Court of Appeal reasons should not be improperly relied on to find
complicity even where the individual has committed no guilty act and has no
criminal knowledge or intent, beyond a mere awareness that other members of the
government have committed illegal acts.
[81]
In our view, it is necessary to rearticulate the
Canadian approach to art. 1F(a) to firmly foreclose exclusions based on
such broad forms of complicity. Otherwise, high-ranking officials might be
forced to abandon their legitimate duties during times of conflict and national
instability in order to maintain their ability to claim asylum. Furthermore, a
concept of complicity that leaves any room for guilt by association or passive
acquiescence violates two fundamental criminal law principles.
[82]
It is well established in international criminal
law that criminal liability does not attach to omissions unless an individual
is under a duty to act: Cassese’s International Criminal Law, at pp. 180-82.
Accordingly, unless an individual has control or responsibility over the
individuals committing international crimes, he or she cannot be complicit by
simply remaining in his or her position without protest: Ramirez, at pp.
319-20. Likewise, guilt by association violates the principle of individual
criminal responsibility. Individuals can only be liable for their own culpable
conduct: van Sliedregt, at p. 17.
[83]
Accordingly, the decision of the Federal Court
of Appeal should not be taken to leave room for rank-based complicity by
association or passive acquiescence. Such a reading would perpetuate a
departure from international criminal law and fundamental criminal law
principles.
J. The Canadian Test for
Complicity Refined
[84]
In light of the foregoing reasons, it has become
necessary to clarify the test for complicity under art. 1F(a). To exclude a
claimant from the definition of “refugee” by virtue of art. 1F(a), 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.
[85]
We will address these key components of the
contribution-based test for complicity in turn. In our view, they ensure that
decision makers do not overextend the concept of complicity to capture
individuals based on mere association or passive acquiescence.
(1) Voluntary Contribution to the Crime
or Criminal Purpose
[86]
It goes without saying that the contribution to
the crime or criminal purpose must be voluntarily made. While this element is
not in issue in this case, it is easy to foresee cases where an individual
would otherwise be complicit in war crimes but had no realistic choice but to
participate in the crime. To assess the voluntariness of a contribution,
decision makers should, for example, consider the method of recruitment by the
organization and any opportunity to leave the organization. The voluntariness
requirement captures the defence of duress which is well recognized in
customary international criminal law, as well as in art. 31(1)(d) of the Rome
Statute: Cassese’s International Criminal Law, at pp. 215-16.
(2) Significant Contribution to the
Group’s Crime or Criminal Purpose
[87]
In our view, mere association becomes culpable
complicity for the purposes of art. 1F(a) when an individual makes a significant
contribution to the crime or criminal purpose of a group. As Lord Brown J.S.C.
said in J.S., to establish the requisite link between the individual and
the group’s criminal conduct, the accused’s contribution does not have to be
“directed to specific identifiable crimes” but can be directed to “wider
concepts of common design, such as the accomplishment of an organisation’s
purpose by whatever means are necessary including the commission of war crimes”:
para. 38. This approach to art. 1F(a) is consistent with international
criminal law’s recognition of collective and indirect participation in crimes
discussed above, as well as s. 21(2) of the Canadian Criminal Code,
R.S.C. 1985, c. C-46, which attaches criminal liability based on assistance in
carrying out a common unlawful purpose.
[88]
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.
(3) Knowing Contribution to the Crime or
Criminal Purpose
[89]
To be complicit in crimes committed by the
government, the official must be aware of the government’s crime or criminal
purpose and aware that his or her conduct will assist in the furtherance
of the crime or criminal purpose.
[90]
In our view, this approach is consistent with
the mens rea requirement under art. 30 of the Rome Statute. Article
30(1) explains that “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”.
Article 30(2)(a) explains that a person has intent where he “means to engage in
the conduct”. With respect to consequences, art. 30(2)(b) requires that the
individual “means to cause that consequence or is aware that it will occur in
the ordinary course of events”. Knowledge is defined in art. 30(3) as
“awareness that a circumstance exists or a consequence will occur in the
ordinary course of events”.
(4) Applying
the Test
[91]
Whether there are serious reasons for considering
that an individual has committed international crimes will depend on the facts
of each case. Accordingly, to determine whether an individual’s conduct meets
the actus reus and mens rea for complicity, several factors may
be of assistance. The following list combines the factors considered by courts
in Canada and the U.K., as well as by the ICC. It should serve as a guide in
assessing whether an individual has voluntarily made a significant and knowing
contribution to a crime or criminal purpose:
(i) the size and nature of the
organization;
(ii) the part of the organization
with which the refugee claimant was most directly concerned;
(iii) the refugee claimant’s duties
and activities within the organization;
(iv) the refugee claimant’s position
or rank in the organization;
(v) the length of time the refugee
claimant was in the organization, particularly after acquiring knowledge of the
group’s crime or criminal purpose; and
(vi) the method by which the refugee
claimant was recruited and the refugee claimant’s opportunity to leave the
organization.
See Ryivuze, at para. 38; J.S., at para. 30; and Mbarushimana,
Decision on the Confirmation of Charges, at para. 284.
[92]
When relying on these factors for guidance, the
focus must always remain on the individual’s contribution to the crime or
criminal purpose. Not only are the factors listed above diverse, they will
also have to be applied to diverse circumstances encompassing different social
and historical contexts. Refugee claimants come from many countries and appear
before the Board with their own life experiences and backgrounds in their
respective countries of origin. Thus, the assessment of the factors developed in
our jurisprudence, the decisions of the courts of other countries, and the
international community will necessarily be highly contextual. Depending on
the facts of a particular case, certain factors will go “a long way” in
establishing the requisite elements of complicity. Ultimately, however, the
factors will be weighed with one key purpose in mind: to determine whether
there was a voluntary, significant, and knowing contribution to a crime or
criminal purpose.
[93]
In the present case, it will be for the Board to
determine which factors are significant, based on the application before it.
To provide guidance to the Board in making this determination, it may be of
assistance to briefly elaborate on each of the factors listed above.
[94]
The size and nature of the organization. The size of an organization could help determine the likelihood
that the claimant would have known of and participated in the crime or criminal
purpose. A smaller organization could increase that likelihood. That
likelihood could also be impacted by the nature of the organization. If the
organization is multifaceted or heterogeneous, i.e. one that performs both
legitimate and criminal acts, the link between the contribution and the
criminal purpose will be more tenuous. In contrast, where the group is
identified as one with a limited and brutal purpose, the link between the
contribution and the criminal purpose will be easier to establish. In such
circumstances, a decision maker may more readily infer that the accused had
knowledge of the group’s criminal purpose and that his conduct contributed to
that purpose. That said, even for groups with a limited and brutal purpose,
the individual’s conduct and role within the organization must still be
carefully assessed, on an individualized basis, to determine whether the
contribution was voluntarily made and had a significant impact on the crime or
criminal purpose of the group.
[95]
The part of the organization with which the refugee
claimant was most directly concerned. This factor
may be relevant if particular parts of the organization were known to be
involved with the crime or criminal purpose. For example, where only one part
of the organization in question was involved in the crime or criminal purpose,
a claimant’s exclusive affiliation with another part(s) of the organization may
serve to exonerate him or her for the purpose of art. 1F(a).
[96]
The refugee claimant’s duties and activities
within the organization. This factor is likely to
be significant in any analysis of complicity, because it goes to the heart of a
claimant’s day-to-day participation in the activities of the organization. The
Board should consider the link between the duties and activities of a claimant,
and the crimes and criminal purposes of the organization.
[97]
The refugee claimant’s position or rank in
the organization. A high ranking individual in an
organization may be more likely to have knowledge of that organization’s crime
or criminal purpose. In some cases, a high rank or rapid ascent through the
ranks of an organization could evidence strong support of the organization’s
criminal purpose. Moreover, by virtue of their position or rank, individuals
may have effective control over those directly responsible for criminal acts,
possibly engaging art. 28 of the Rome Statute.
[98]
The length of time the refugee claimant was in
the organization, particularly after acquiring knowledge of the group’s crime
or criminal purpose. It may be easier to establish
complicity where an individual has been involved with the organization for a longer
period of time. This would increase the chance that the individual had
knowledge of the organization’s crime or criminal purpose. A lengthy period of
involvement may also increase the significance of an individual’s contribution
to the organization’s crime or criminal purpose.
[99]
The method by which the refugee claimant was
recruited and the refugee claimant’s opportunity to leave the organization. As mentioned, these two factors directly impact the voluntariness
requirement. This requirement may not be satisfied if an individual was
coerced into joining, supporting, or remaining in the organization. Similarly,
an individual’s involvement with an organization may not be voluntary if he or
she did not have the opportunity to leave, especially after acquiring knowledge
of its crime or criminal purpose. The Board may wish to consider whether the
individual’s specific circumstances (i.e. location, financial resources, and
social networks) would have eased or impeded exit.
[100]
We reiterate that the factors discussed above
should be relied on only for guidance. We agree with Lord Kerr J.S.C.’s
statement in J.S., at para. 55:
. . . they are not necessarily
exhaustive of the matters to be taken into account, nor will each of the
factors be inevitably significant in every case. One needs, I believe, to
concentrate on the actual role played by the particular person, taking all
material aspects of that role into account so as to decide whether the required
degree of participation is established.
A full contextual
analysis would necessarily include any viable defences, including, but
certainly not limited to, the defence of duress, discussed above.
K. Evidentiary Standard: Serious Reasons for Considering
[101]
Ultimately, the above contribution-based test
for complicity is subject to the unique evidentiary standard contained in art.
1F(a) of the Refugee Convention. To recall, the Board does not make
determinations of guilt. Its exclusion decisions are therefore not based on
proof beyond a reasonable doubt nor on the general civil standard of the
balance of probabilities. Rather, art. 1F(a) directs it to decide whether
there are “serious reasons for considering” that an individual has committed
war crimes, crimes against humanity or crimes against peace. For guidance on
applying the evidentiary standard, we agree with Lord Brown J.S.C.’s reasons in
J.S., at para. 39:
It
would not, I think, be helpful to expatiate upon article 1F’s reference to
there being “serious reasons for considering” the asylum seeker to have
committed a war crime. Clearly the tribunal in Gurung’s case [2003] Imm
AR 115 (at the end of para 109) was right to highlight “the lower
standard of proof applicable in exclusion clause cases” — lower than that
applicable in actual war crimes trials. That said, “serious reasons for
considering” obviously imports a higher test for exclusion than would, say, an
expression like “reasonable grounds for suspecting”. “Considering” approximates
rather to “believing” than to “suspecting”. I am inclined to agree with what
Sedley LJ said in Al-Sirri v Secretary of State for the Home Department
[2009] Imm AR 624, para 33:
“[The phrase used] sets a standard above mere suspicion. Beyond
this, it is a mistake to try to paraphrase the straightforward language of the
Convention: it has to be treated as meaning what it says.”
[102]
In our view, this unique evidentiary standard is
appropriate to the role of the Board and the realities of an exclusion decision
addressed above. The unique evidentiary standard does not, however, justify a
relaxed application of fundamental criminal law principles in order to make
room for complicity by association.
III. Conclusion
[103]
For the foregoing reasons, we would allow the
appeal, with costs throughout, and remit the matter to the Refugee Protection
Division of the Immigration and Refugee Board for redetermination in accordance
with these reasons. A new panel shall apply the contribution-based test for
complicity outlined above. A detailed assessment is required to determine
whether the particular facts of this case establish serious reasons for
considering that the actus reus and mens rea for complicity are
present and therefore justify excluding the appellant from the definition of
refugee by operation of art. 1F(a) of the Refugee Convention.
Appeal
allowed with costs throughout.
Solicitors
for the appellant: Jared Will, Montréal; Boisclair & Legault,
Montréal; Peter Shams, Montréal.
Solicitor
for the respondent: Attorney General of Canada, Montréal.
Solicitors
for the intervener the United Nations High Commissioner for
Refugees: Waldman & Associates, Toronto; United Nations High
Commissioner for Refugees, Toronto.
Solicitors
for the intervener Amnesty International: Community Legal Services
Ottawa Centre, Ottawa; South Ottawa Community Legal Services, Ottawa.
Solicitors
for the interveners the Canadian Centre for International Justice and the
International Human Rights Program at the University of Toronto Faculty of
Law: Torys, Toronto; University of Toronto, Toronto.
Solicitor
for the intervener the Canadian Council for Refugees: University of
British Columbia, Vancouver.
Solicitor
for the intervener the Canadian Civil Liberties Association: Canadian
Civil Liberties Association, Toronto.
Solicitors for the
intervener the Canadian Association of Refugee Lawyers: University
of Ottawa, Ottawa; Refugee Law Office, Toronto.