Date: 20250311

Docket: IMM-714-24

Citation: 2025 FC 446

Ottawa, Ontario, March 11, 2025

PRESENT: The Honourable Mr. Justice Roy

BETWEEN:

THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS

Applicant

and

MONDAY IYANGBE ERIATOR

Respondent

JUDGMENT AND REASONS

[1] In this judicial review application, it is the Minister of Public Safety and Emergency Preparedness who takes before the Court the inadmissibility issue which came before the Court before. The judicial review application is made pursuant to s 72 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].

I. The history of this case

[2] Originally, following a s 44(1) of IRPA report, referred by the Minister’s delegate according to s 44(2) to the Immigration Division [ID] for an admissibility hearing, the ID concluded that the evidence did not establish that Mr. Eriator, a lower rank policeman with the Nigeria Police Force [NPF], was inadmissible in Canada for human or international rights violations in Nigeria. It is paragraph 35(1)(a) of IRPA which was alleged to be applicable.

The ID decision came on November 26, 2019.

[3] Given the refusal to find inadmissibility, the Minister chose to appeal the decision to the Immigration Appeal Division [IAD]. In a decision dated January 19, 2021, the IAD found against Mr. Eriator. It determined that the Minister had established that Mr. Eriator was complicit in crimes against humanity committed by the NPF. As such, he is inadmissible.

[4] However, Mr. Eriator sought the judicial review of that decision and the Court (Eriator v Canada (Citizenship and Immigration), (2022 FC 1154) [Eriator 1]) came to the conclusion that the IAD’s decision was not reasonable, as it lacked intelligibility. The seminal case of Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 563 [Vavilov], stands for, among many things, the establishment of a culture of justification for administrative decision makers. The Eriator I decision found that the IAD did not justify appropriately its conclusion. Contrary to what was asserted before this Court, the 2022 Judgment did not opine on the merits of the IAD decision, but it found that the justification for it was lacking. The decision suffered from a lack of internal rationality. As a result, the matter was returned to a differently constituted panel of the IAD for redetermination.

[5] The new determination came on December 1, 2023. This time, the Minister’s appeal was dismissed by the IAD. In effect, the IAD agreed with the ID in what is a de novo appeal. It found that it was not established that there are reasonable grounds to believe facts gave rise to inadmissibility for violating paragraph 35(1)(a) of IRPA. The IAD was not satisfied that “the prohibited acts committed by the NPF and/or SARS (Special Anti-Robbery Squad) were part of a widespread or systematic attack that was also pursuant to state policy” (IAD decision, para 59). It is that decision which the Minister wants judicially reviewed.

[6] I will review summarily the facts. Then, the decision under review will be examined before the arguments of the parties are considered. That will lead to the Court’s analysis.

II. Facts

[7] The facts are as found by this Court in Eriator I. They boil down to something rather simple which is not in dispute. For our purposes, they can be summarized as follows:

• Mr. Eriator was a policeman with the NPF from June 2009 to December 2016. He rose to the rank of corporal. That is the first rank after that of plain constable. He joined the NPF voluntarily;

• The Respondent’s career appears to have been largely uneventful:

• clerical officer at the Headquarter Annex from February 2010 to April 2015, and June 2015 to December 2015. From April 2015 to June 2015, the Respondent was a security guard for a high ranking officer in Port Harcourt.

• the Respondent was also assigned manning checkpoints during two election periods, including the presidential election of 2015;

• the more contentious assignment was to the Special Anti-Robbery Squad [SARS] in Ikeja for a period of time in December 2016.

[8] The SARS has a checkered history as an outfit that used excessive force, violence, mistreatment including torture against suspects and detainees. The NPF is also alleged to have used violence against citizens and for policemen to be corrupt. In 2009, there were 377,000 members of the NPF in a country, Nigeria, with a population of well over 200 million by the end of the decade.

[9] Very little is known about the circumstances surrounding Mr. Eriator’s departure from Nigeria, following his stint with SARS in December 2016. What is known is that he crossed the Canadian border with the United States in October 2017, avoiding a point of entry. He applied for refugee status and his case has been in abeyance pending a decision on inadmissibility.

[10] The allegation is that, because of his employment with the NPF (and the SARS), he is complicit in crimes against humanity [CAH] perpetrated by the NPF and SARS in contravention with s 6 of the Crimes Against Humanity and War Crimes Act, SC 2000, c 24 [CAHWCA].

III. Decision under review

[11] The IAD came to a different conclusion on redetermination than the previous panel. For starters, the issue of what constitutes a crime against humanity came to the fore. That is because, in 2021, our Court interpreted the definition of the offence of CAH as requiring that it be committed pursuant to or in furtherance of the State or an organizational policy, what has been termed the “policy requirement” (Canada (Public Safety and Emergency Preparedness) v Verbanov, 2021 FC 507, [2021] 3 FCR 437 [Verbanov]).

[12] The second issue to be resolved by the IAD was whether the NPF and the SARS had committed a CAH.

[13] Finally, it would have been necessary for Mr. Eriator to be complicit in the commission of a CAH. For that to be possible, it would be required that he voluntarily made a significant and knowing contribution to the crime or the criminal purpose of the NPF or the SARS. That is in application of the well-known case of Ezokola v Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678; the Court made a specific finding that guilt by association is not one of the modes of commission of an international crime which excludes someone from refugee protection (para 3). To be complicit is not to be guilty by association (see para 81-82). Given the conclusion reached by the IAD on the two issues, it did not reach the question of whether or not Mr. Eriator could have been complicit.

A. The policy requirement

[14] The IAD concluded that Mr. Eriator was not inadmissible for violating s 35(1)(a) of the IRPA as neither the NPF nor SARS can be said to have committed crimes which qualify under the definition of CAH as determined by our Court in Verbanov. The “policy requirement” element has not been established. There is therefore no need to consider further if it can be said that Mr. Eriator was complicit by making a significant and knowing contribution to the crime or the purpose of the organization.

[15] In the case of Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100 [Mugesera], the Supreme Court had to determine what were the constitutive elements of the offence of crime against humanity. The offence was part of the Criminal Code (s 7(3.76)) at the time. It required that the prohibited acts constitute “a contravention of customary international law or conventional international law …”. That was a case concerned with the inadmissibility of Léon Mugesera in view of a speech he had delivered in Rwanda on November 22, 1992. The issue was whether the speech constituted an incitement to commit murder, an incitement to genocide and hatred and a crime against humanity by an ethnic group, the Hutu, against another ethnic group in Rwanda, the Tutsi.

[16] After an extensive review of the law, including of course international law, the Court concluded that four elements from customary international law must be made out for the offence to be established:

119 As we shall see, based on the provisions of the Criminal Code and the principles of international law, a criminal act rises to the level of a crime against humanity when four elements are made out:

1. An enumerated proscribed act was committed (this involves showing that the accused committed the criminal act and had the requisite guilty state of mind for the underlying act);

2. The act was committed as part of a widespread or systematic attack;

3. The attack was directed against any civilian population or any identifiable group of persons; and

4. The person committing the proscribed act knew of the attack and knew or took the risk that his or her act comprised a part of that attack.

[17] Two comments may be apposite. First, it is not accurate to state that the offence can be established based on the standard of “reasonable grounds to believe”. That standard, which stems from s 33 of the IRPA, applies only to the proof of questions of fact. As for whether these facts proven on the reasonable grounds to believe standard constitute a crime against humanity, that determination is not subject to that standard. Those facts “must show that the speech [in the Mugesera case] did constitute a crime against humanity” (Mugesera, para 116).

[18] Second, the Court, in determining whether the act committed was part of a widespread and systematic attack, found that despite the debate between scholars, customary international law did not require that the attack must be carried out pursuant to a government policy or plan (Mugesera, para 157-158).

[19] That very issue is at the heart of this case. The IAD considered this Court’s decision in Verbanov, which found that there is now a “policy requirement” needed to establish the CAH in view of developments in the law since Mugesera.

[20] Before the IAD, the Minister argued that since the NPF and SARS committed crimes against humanity, Mr. Eriator, as a member of the police force, was complicit in those crimes because he could not have been unaware of the repeated and systematic acts of violence and torture. The fact that he remained within the Force, and because of his position, he was said by the Minister as having made a significant contribution to the crimes.

[21] The Respondent, Mr. Eriator, not only argues that the CAH has not been made out, but there is no evidence of any significant contribution.

[22] The IAD saw the decision in Verbanov as a legal constraint such that it constitutes a controlling authority. The IAD concluded that in order to have a widespread and systematic attack, there was now the need for a government policy or plan, proof that was clearly missing on their record. Although Mugesera did not require such element, that was displaced by the CAHWCA. With the CAHWCA, Parliament changed the essential elements of the offence as found in Mugesera. The Minister would want for the IAD to depart from the statute essentially in order to avoid the consequences of the new legislation. The IAD sided with our Court’s decision in Verbanov.

[23] Moreover, a further rationale is the requirement for Canada to abide by its international obligations. As stated in Vavilov, “domestic legislation is presumed to comply with Canada’s international obligations, and that it must be interpreted in a manner that reflects the principles of customary and conventional international law” (para 182). In the case at hand, it is the Rome Statute of the International Criminal Court of Justice [Rome Statute] which finds application. The Rome Statute is defined as follows in s 2 of the CAHWCA:

As we shall see, the relevant provisions are incorporated in the CAHWCA as a schedule.

[24] The CAHWCA incorporates Canada’s commitment as a signatory to the Rome Statute. Thus the state policy is now a required element in establishing the widespread and systematic attack of the Mugesera framework. Although it had been established that prohibited (torture) acts had been committed by the NPF over a long period of time, including while the Respondent was on the force, these were not committed pursuant to a State or organizational policy.

B. Have the NPF and the SARS committed CAH?

[25] A close examination of the IAD decision shows that it reached the conclusion that the commission of crimes against humanity had not been made out, neither on the basis of Mugesera simpliciter nor on the basis of the added element of the presence of the policy requirement. Even if it could be argued that other three elements were proven to the satisfaction of the IAD, the widespread or systematic attack was not proven on this record either under the CAHWCA or the decision in Mugesera.

[26] The abuse and violent behaviour toward detainees has been proven. What is said to be missing is the context in which the violence occurred. This lack of evidence results in the impossibility to conclude to the widespread or systematic nature of the attacks: at its highest, the IAD concludes that it was not shown how disparate acts of violence relate to each other. It does not suffice that they are committed by people having more or less the same job:

[44] It is not the accumulation of individual actions of the same nature that gives rise, in retrospect, to the presence of a widespread or systematic attack; it is the opposite. It is the overall context that gives rise to the commission of repeated acts by individuals motivated by a common and collective intention greater than that of the individual.

[45] In Mugesera, the Supreme Court defines a widespread or systematic attack by referring to a “massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims.” In Mugesera, these elements are clear: The size and ethnicity of the target group are known, and the temporal element and social and political context are clear: It can also be seen that the Rwandan government was behind the attack and encouraged the use of violence, which also represents the systematic aspect of the attack. These elements are not established by the Minister’s evidence.

(footnotes omitted)

There is a need for more than acts of torture to become an attack within the meaning of the Mugesera decision. The evidence of the presence of elements of massiveness, frequency, organization and collectiveness are absent.

[27] The issue is not whether these acts violate the right to their integrity of these persons. Of course they do. The victims’ human dignity is gravely affected. But a CAH requires more. A CAH cannot be left to acts that are not proven as being somewhat connected. The IAD writes that “Without compelling evidence of these aspects, the panel cannot assess the massiveness, frequency, organization and collectiveness required to conclude that there was a widespread or systematic attack” (para 46).

[28] At any rate, the need that the actions are made pursuant to a State or organizational policy pursuant to the CAHWCA was not fulfilled on this record.

[29] Police abuse occurs for various reasons, without being for the pursuit of a common goal or as a result of orders or, for that matter, as a result of an official or even informal policy put in place by an authority. The issue is not, once again, to seek to justify violence. It is rather to ascertain if all the elements of a CAH are present.

[30] Here, the evidence is said to indicate the shortcomings of the system which, in turn, create an environment conducive to police brutality. That is not sufficient to establish a CAH. The evidence is to the effect that the situation is as a result of a combination of a culture of corruption together with impunity, which enables the use of excessive force. The IAD was evidently not willing to draw an inference of a common objective or an internal policy. It says:

[53] The evidence does not demonstrate that torture and all other forms of abuse are aimed at achieving a common objective, modus operandi, plan, project, strategy or ideology shared by a group of police officers or all NPF or even SARS police officers.

The IAD found specifically that a policy cannot be inferred here on the basis of the evidence that was submitted:

[55] The panel recognizes that the Nigerian justice system fails to prevent such abuses or bring perpetrators of such atrocities to justice and punish them. However, such impunity is not the equivalent of a policy that promotes the use of violence and torture for governmental or state purposes. The absence of real consequences for perpetrators of such acts in Nigeria is not enough to make the abuse and non-political crimes committed by NPF and SARS members crimes against humanity.

Put simply, it is a lack of evidence of a policy according to which the police would be acting “in the name of a State or organizational principle” that constitutes the second reason why the evidence is lacking that a CAH has not been established. Corruption, even on a grand scale, is not enough to justify that the crime has become a CAH.

[31] In effect, the IAD is not satisfied that a crime against humanity has been established because the “attacks” have not been shown to be widespread or systematic within the meaning of Mugesera, and they do not have the presence of a “policy requirement” within the meaning of the CAHWCA. In the end, the facts in Verbanov are seen as being similar to the case at bar. In both cases the context of impunity and corruption, translating into a strong appeal of personal gain, are the motivation for the abuse of authority. These actions do not fall in the category of CAH.

IV. Arguments and analysis

[32] The decision of this Court in Verbanov constitutes a formidable obstacle for the Applicant. It is so because Parliament has spoken in adopting the CAHWCA. Unless it is argued that the provisions are unconstitutional, it is neither for the administrative decision maker nor for a reviewing court to disagree with policy choices made by those tasked with making those decisions, the elected members sitting in Parliament.

A. What is a CAH according to the CAHWCA?

[33] Very recently, in Quebec (Commission des droits de la personne et des droits de la jeunesse) v Directrice de la protection de la jeunesse du CISSS A, 2024 SCC 43, a unanimous Supreme Court reiterated that the text of a provision “remains the anchor of the interpretative exercise.” It is the focus of interpretation. Quoting from an article by Mark Mancini (The Purpose Error in the Modern Approach to Statutory Interpretation, 2022, 59 Alta L Rev 919), the Court states that the words may “tell an interpreter just how far a legislature wanted to go in achieving some more abstract goal” (p 927). The Court refers to its own recent precedents in stating that an interpreter must “interpret the “text through which the legislature seeks to achieve [its] objective”, because “the goal of the interpretative exercise is to find harmony between the words of the statute and the intended objective …” (R v Breault, 2023 SCC 9, at para 26, quoting MediaQMI inc v Kamel, 2021 SCC 23, [2021] 1 S.C.R. 899, at para 39; see also Quebec (Attorney General) v 9147-0732 Québec inc, 2020 SCC 32, [2020] 3 S.C.R. 426, at para 10).

[34] Stratas JA articulated the same proposition in Canada v DAC Investment Holdings Inc, 2025 FCA 37 at paragraph 17:

[17] Statutory interpretation issues frequently arise in this Court and sometimes interveners can be helpful. On these issues, the Court will sometimes examine the likely effects of rival interpretations to see which interpretation best accords with the statutory purpose: Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252, [2018] 4 F.C.R. 174, at para. 52. But there are limits to that. Unelected judges do not try to make statutory provisions accord with their own preferences and policies, nor do they amend statutory provisions passed by our elected representatives: Williams at para. 52; Canada v. Cheema, 2018 FCA 45, [2018] 4 F.C.R. 328 at para. 74; Hillier v. Canada (Attorney General), 2019 FCA 44 at para. 25. The purpose behind a statutory provision is tied down to the terms of the statute and is not just any old purpose that an intervener would like to further: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Directrice de la protection de la jeunesse du CISSS A, 2024 SCC 43 at para. 24; M. Mancini, “The Purpose Error in the Modern Approach to Statutory Interpretation” (2022), 59 Alta. L. Rev. 919.

(my emphasis)

[35] The Attorney General invites the Court to allow for the Mugesera understanding of the law to continue to be available. He takes the position that in spite of the CAHWCA, the old interpretation of what constitutes a crime against humanity endures. Given the added limitation to the widespread or systematic attack such that the prohibited acts must be pursuant to or in furtherance of a State or organizational policy to commit such attack, the Attorney General argues that it would still be possible to resort back to the four elements found to be necessary in Mugesera without the need for that policy requirement. That invitation must be resisted.

[36] The starting point must be the text of the CAHWCA. What does it say precisely? This is an Act that chose to define what it considers to be a crime against humanity. It follows a process that may be somewhat tortuous. But that process is clear and unambiguous when it is carefully considered. The idea is not to go back to textualism, but rather to consider first the text to see as precisely as possible what was said. The purposive approach to the interpretation of statutes surely continues to govern. Fifty years ago, Elmer Driedger articulated the modern principle:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

(The Construction of Statutes

(Toronto Butterworths, 1974), p 67)

The more holistic approach has been the one chosen in Canada. The modern principle has been adopted in Rizzo E Rizzo Shoes Ltd (Re), [1988] 1 S.C.R. 27, at para 41, and followed ever since.

[37] However, the modern principle does not ignore pragmatism or the text of the legislation. Quite the opposite. As Stephen Breyer wrote in a recent commentary (Pragmatism or Textualism, by Stephen Breyer (former Justice of the USSC), 138 Harv L Rev 717 (2025)), a court is asking, What purpose do the authors of the legislation seek to achieve? What is the mischief to be avoided? Mr. Breyer, an eminent proponent of the purposive approach to the interpretation of statutes, goes on to state:

Is there, then, a limiting principle in the traditional approach? I would not go as far as Professor Max Radin, who argued that even clear statutory commands must yield to purpose, or Justice William Brennan, who believed that where “the literal reading of a statutory term” would compel a result that was merely “odd,” the Court was obligated to “search for other evidence of congressional intent to lend the term its proper scope.” Rather, I believe that purposes should play a role – along with semantic meaning, context, and other considerations – in determining whether statutory language is clear or ambiguous. If these considerations point to the conclusion that the statute is clear, the judge’s work is done. But if the text is ambiguous, a deeper examination of purposes, as well as context, history, consequences, and the like, can help a court come to a reasoned conclusion about the best meaning of the statute.

(p 733)

That would appear to be in line with the requirement that the text be the anchor of the interpretation exercise. It is not to be ignored.

[38] Accordingly, we must begin with the developments in the law since Mugesera. The idea is not to determine what is the correct interpretation of the CAHWCA. It is rather to look at the text and ascertain the connections between various provisions. It is meant as a mechanical exercise. A most prominent development in our law must be new legislation. As the Supreme Court foresaw in Mugesera, “(i)t seems that there is currently no requirement in customary international law that a policy underlie the attack, though we do not discount the possibility that customary international law may evolve over time so as to incorporate a policy requirement (see, e.g., art. 7(2)(a) of the Rome Statute of the International Criminal Court, A/CONF 1983/9, 17 July 1998)” (para 158).

[39] At the time the Mugesera case was decided, sections 7(3.76) and 7(3.77) of the Criminal Code were to be interpreted according to international law and in view of the fact that the speech which was at the heart of the alleged inadmissibility of Mr. Mugesera was delivered in 1992. Since then, Canada has been prominently involved in the creation of the International Criminal Court and Canadian legislation was passed by Parliament, the Crimes Against Humanity and War Crimes Act. The Court’s focus must therefore be on what Parliament chose to adopt as the new framework.

[40] That requires an examination of the scheme of the CAHWCA. First, we begin with s 6 which creates the offences that, even if committed outside Canada (the territoriality principle), are punishable in Canada:

Of course, the creation of an offence is one thing; defining its constituent elements is another. Parliament defined in ss 6(3) the three offences: genocide, crime against humanity and war crime. It is the CAH definition that is of particular interest in the case at hand:

(my emphasis)

[41] While s 7(3.76) of the Criminal Code did not give any indication about the content of “customary international law”, what is to be understood by “customary international law” for domestic purposes is specified by Parliament at ss 6(4):

Ss 6(3) makes a crime against humanity that which is a CAH according to customary international law. Ss 6(4) says, for greater certainty, that the crime described at s 7 of the Rome Statute is a crime according to customary international law.

[42] Subsection 6(4) evidently takes the Court to s 7 of the Rome Statute to find what are the elements of the CAH according to the Rome Statute. Indeed, Parliament incorporated in Canadian law s 7 of the Rome Statute through an annex to the CAHWCA. Section 7, in the passages relevant to this case, reads:

(my emphasis)

That of course leaves open the possibility of further refinements as to what constitutes the widespread or systematic attack which is directed against a civilian population. The Rome Statute, and therefore the CAHWCA, addresses the issue squarely in ss 7(2).

(my emphasis)

Thus, the Rome Statute requires that the prohibited act be part of a widespread or systematic attack which is directed against a civilian population. But the Statute does not stop there. The type of widespread or systematic attack is itself further limited by the requirement that it be “pursuant to or in the furtherance of a State or organizational policy”: the “policy requirement”.

[43] There is no need to seek to construct what Parliament intended to the extent that we are merely invited to follow the various links that define in the end what Canada has chosen to consider in domestic law as being a crime against humanity. This is purely mechanical. The aim is simply to follow what is said in ss 6(1), 6(3) and 6(4) of the CAHWCA, taking us to ss 7(1) and 7(2) of the Rome Statute, which are incorporated in an annex to the CAHWCA.

[44] Two observations may be made at this stage. Subsection 6(4) of the CAHWCA in its second sentence refers to “developing rules of international law”. That appears to be in order to leave open the possibility that other acts may in the future become crimes against humanity. Come to mind the use of chemical weapons and land mines. More importantly for our purposes is the text of ss 7(2) of the Rome Statute as incorporated in the CAHWCA. It will be recalled that paragraph 158 of Mugesera specifically referred to paragraphs 7(2)(a) of the Rome Statute as an example of customary international law evolving over time to incorporate a policy requirement as part of the CAH. That appears to be precisely what paragraph 7(2)(a) does. And it is now connected to the definition of CAH in Canada.

[45] The Rome Statute does not define further what are a “widespread or systematic” attack. As we shall see, the Mugesera Court provides guidance as to what that means. But the Rome Statute certainly defines (the use of the word “means”) what kind of attack must be to qualify as being “directed (in French, “lancée contre”) against any civilian population”. It requires that the multiple commission of acts be “pursuant to or in furtherance of a State or organizational policy to commit such attack” (in French “en application ou dans la poursuite de la politique d’un État ou d’une organisation ayant pour but une telle attaque”). The “policy requirement” is found at the end of a chain of provisions inextricably linked: ss 6(1), 6(3) and 6(4) of the CAHWCA, together with ss 7(1) and 7(2) of the Rome Statute. It is enunciated by Parliament by incorporating in its legislation the need for the widespread or systematic attack to be in furtherance of State or organizational policy. The crime described in s 7 of the Rome Statute is a crime according to customary law as of July 17, 1998. For Canadian purposes, that is how Parliament has chosen to define CAH. That constitutes a policy choice to which administrative decision makers must obey. Only if that were unconstitutional can they depart from how Parliament chose to define the notion.

[46] That feature of the CAHWCA is a further limitation to what constitutes a crime against humanity for our domestic purpose, in that it adds to the burden of someone who seeks to use the notion, be that in criminal prosecutions or in immigration matters. Indeed, the Applicant was transparent in its attempt to be able to resort to the Mugesera four elements without the policy requirement. That makes the prosecution of these cases in the immigration context more complicated.

[47] Although not strictly needed to dispose of the matter before the Court, it may be observed that paragraph 7(2)(a) of the Rome Statute, incorporated in our domestic law, also broadens the scope captured by the definition of CAH by going beyond State policy, to include prohibited acts committed pursuant to or in furtherance of an organizational policy to commit such act (in French, “une organisation ayant pour but une telle attaque”). It is not only State policy that is required for a CAH to take place. An organizational policy will do. How broad that scope will be remains to be seen.

[48] In sum, all that is needed is to follow the various provisions that specifically define what constitutes the CAH in our domestic law. The CAHWCA defines the CAH in accordance with customary international law (ss 6(3); it then specifies (ss 6(4)) that crimes described in s 7 of the Rome Statute are crimes according to customary international law (as of July 17, 1998)). S 7 of the Rome Statute, incorporated in domestic legislation and found in a schedule to the CAHWCA, defines the crime against humanity as requiring that the commission of acts listed in ss 7(1) be pursuant to or in furtherance of a State or organizational policy. If there is another way of understanding the series of provisions which appear to be inexorably linked together, that construction has not been offered. In fact, the connection of these various provisions appears to be inescapable.

B. Canada (Public Safety and Emergency Preparedness) v Verbanov

[49] In fact, our Court has already reached the conclusion that there is now a need for a “policy requirement” over and above the four elements for having a CAH as found by the Supreme Court of Canada in Mugesera. To put it more accurately, the element of widespread or systematic attack is now amplified in that the said attack must be “pursuant to or in furtherance of a State or organizational policy to commit such attack”. The IAD followed what had already been decided by our Court.

[50] In Verbanov, Mr. Justice Sebastien Grammond conducted a careful examination of the law after the Mugesera decision. The starting point is of course that the facts in Mugesera took place well before the coming into force of the Rome Statute (17 July 1998). Does the Rome Statute make a difference for acts having taken place after that date? Our Court answered with a resounding “yes”. In so doing, the Court reviewed carefully the developments at international law, particularly by the various tribunals set up to address atrocities committed in former Yugoslavia, Rwanda, Kenya and Sierra Leone.

[51] Our Court notes that the International Criminal Court found in Situation in the Republic of Kenya, ICC-01/09, March 11, 2010) that the “policy requirement” is to be applied.

[52] The CAHWCA has incorporated that requirement in our law. That includes s 35 of the IRPA which refers specifically to the offences of the CAHWCA. The CAHWCA did not invalidate the four elements set out in Mugesera. But, “with respect to conduct taking place after 1998, any discrepancies between prior customary law and the Rome Statute must be resolved in favour of the latter” (Verbanov, para 26). That of course refers to the policy requirement.

[53] Considering the evolution in the law with the CAHWCA, the precedential value of Mugesera changes. The hierarchy of sources of law renders legislation paramount. The Attorney General in Verbanov argued that the definition of CAH did not contain the policy requirement. On the contrary, our Court concludes that the IAD’s decision was consistent with the framework emerging from the CAHWCA.

[54] In effect, neither the IAD nor our Court agreed with the proposition advanced by the Attorney General that Mugesera continues to be the controlling authority: “Legislation is paramount over law emanating from judicial decisions” (Verbanov, para 54).

[55] Finally, it appears that the Attorney General was arguing in Verbanov that the ICC case law concerning the policy requirement was misread. Some passages would have been to the effect that a CAH could be committed by non-State organizations. Whether or not a non-State organization could be committing a CAH was beside the point in that case, as it is in this case. The better question might be what is the scope of the phrase “organizational policy to commit such attack” in paragraphs 7(2)(a) of the Rome Statute. However, as in Verbanov, this is not in issue in this case. As a matter of fact, the Applicant in our case did not raise that issue, rightly in my estimation.

C. Other case law

[56] In Akinpelu v Canada (Public Safety and Emergency Preparedness), 2024 FC 400 [Akinpelu], Mr. Justice Gascon did not disagree with the framework developed in Verbanov. Rather, he found that the Immigration Division was not unreasonable in concluding that the evidence established an unwritten policy sufficient to satisfy the requirement of s 7 of the Rome Statute. The ID was satisfied on the basis of the record before it that a lack of action or even omissions by the Nigerian authorities amounted to state policy. In other words, the “policy requirement” was satisfied in that case according to the evidence submitted. Our Court did not see fit to intervene in that case.

[57] In Wardak v Canada (Citizenship and Immigration), 2023 FC 422, Mr. Justice Brown declined to find a “policy requirement” as the acts giving rise to the allegation of CAH took place before 1998. There was no hint that there was disagreement with the Verbanov decision. It was rather the Mugesera factors which controlled the outcome of the case. In Gupa v Canada (Citizenship and Immigration), 2023 FC 157 [Gupa], Mr. Justice Régimbald did not disagree with the Verbanov case. The Gupa court did not consider the application of the Rome Statute as being retroactive or retrospective. Given that the Applicant in that case had been part of a governmental organization “notorious” for brutality well before July 1998, it is the Mugesera framework which found application. Despite the fact that Mr. Gupa continued with that organization after the coming into force of the Rome Statute, what had taken place before was deemed sufficient to engage the Mugesera framework. Nevertheless, the Gupa court does not dispute that the CAHWCA now requires that there is a “policy requirement” for acts committed after the coming into force of the Act.

D. The Applicant

[58] Faced with Verbanov and other cases which follow suit, what is the Attorney General’s argument? The application for leave was generic to the point of not enunciating intelligible grounds. One thing that he did not seek to do is even suggest that the various provisions in the CAHWCA are not connected together. In his memorandum of fact and law, the Attorney General argues that the crime against humanity is not to be defined exclusively by reference to the Rome Statute, but rather by reference to customary international law which does not require proof that the attack was in furtherance of a State or organizational policy. At any rate, says the Attorney General, it was not reasonable for the IAD to fundamentally misapprehend the evidence by concluding that the NPF and SARS were not involved in crimes against humanity under the Mugesera framework or committed in furtherance of the State or organizational policy.

[59] The Attorney General seeks to resist the chain of provisions in the CAHWCA through what I would refer to, with regards, peripheral arguments instead of targeting what is actually said in the CAHWCA.

[60] The argument is that the Rome Statute is in the nature of a treaty: it is not an instrument establishing customary international law or comprehensively codifying it. The difficulty is that Parliament has chosen to define “crimes against humanity” by referring explicitly to the definition found in the Rome Statute. Canada has chosen for those defined in the Rome Statute to be recognized for our domestic purposes. And in order to qualify, these crimes explicitly must be committed pursuant to or in furtherance of a State or organizational policy.

[61] The Attorney General submits that scholars debate whether a CAH requires proof of policy. With all due respect, that is irrelevant to the extent that Parliament has determined that the “policy requirement” is part of the definition as legislated in the Rome Statute, which is brought into the CAHWCA.

[62] Similarly, the Applicant argues that the inclusion of the policy requirement in the Rome Statute was for the purpose of maximizing the number of member states who would adhere to the Statute and would accept to be bound by it. But how does that alter what Parliament decided would be the definition of the CAH in domestic legislation? He suggests that the definition in the Rome Statute is for the purpose of prosecutions before the International Criminal Court. How does that alter the choice made by Parliament? The same can be said of the argument that the Rome Statute does not always reflect customary international law. In the end, that does not matter if it is clear that Parliament has chosen to include the “policy requirement”.

[63] The Attorney General goes on to submit that the addition of the “policy requirement” makes it more onerous to investigate and prosecute cases of CAH in Canada. As indicated before, no doubt that the added requirement makes cases more complex: that actually stands to reason. It is, to say the least, obvious. Nevertheless the Applicant does not argue that Parliament acted per incuriam in adopting the schedule of the CAHWCA. I fail to see how it could be missed that the widespread or systematic attack must be pursuant to or in furtherance of a State or organizational policy. Indeed it was well known that this added feature was for the express purpose of maximizing adherence to the Rome Statute. It was not hidden.

[64] Parliament would have had to be specific in order to avoid paragraph 7(2)(a) of the Rome Statute. It could have, but it did not.

[65] Finally, the Attorney General objects to the fact that a broader definition of the CAH (without the “policy requirement”) would apply to crimes prior to 1998, while those after 1998 would have to include the “policy requirement”. Actually, not only is this not unique, but it would be much more objectionable to have two definitions of the same crime at the same time. That is what would be the effect of having the definition of CAH in the CAHWCA at the same time there would be a broader one. In fact, it is difficult to fathom how that could be.

[66] The argument cannot prevail because it leads to an absurdity. It does not account for the fact that Parliament has spoken and the sequence of provisions leads inexorably to the connection of crime against humanity and the need for a policy requirement. To put it more bluntly, the Attorney General in effect argues that Parliament spoke in vain because there is another definition of CAH.

[67] There would be two definitions of “crime against humanity” according to the argument. In Mugesera, four elements are required, without the need for the “policy requirement”. Without a doubt, the “policy requirement” constricts the scope of the offence; it limits its ambit. But, says the Attorney General, the government can still rely on Mugesera because that would reflect the state of customary international law. Thus, it would continue to be possible for the government to rely on the less restrictive description of the offence in spite of Parliament having decided that a CAH in domestic law is that as described in the Rome Statute.

[68] As seen earlier, Parliament spoke to determine that the attack directed against any civilian population must be “pursuant to or in furtherance of a State or organizational policy to commit such attack”. For Canadian domestic law purposes, Parliament stated what constitutes a crime against humanity. In the context of immigration law, s 35 of the IRPA can hardly be more explicit. The inadmissibility is for the commission of a crime against humanity under the CAHWCA. There is no reference to a crime against humanity that may (or may not) continue to exist under customary international law. The crime against humanity for the purpose of declaring someone to be inadmissible to Canada is that which is defined in the CAHWCA. If the government can rely simply on the four elements of Mugesera in the context of domestic law cases, without the “policy requirement” as a further limiting factor, what was the purpose of the CAHWCA? As was said by CJ Lamer in R v Proulx, [2000] 1 S.C.R. 61, at para 28: “it is a well accepted principle of statutory interpretation that no legislative provision should be interpreted so as to render it mere surplusage”. In the result, the argument is that the government can rely on a broader definition of CAH in spite of legislation passed by Parliament. The words in the CAHWCA are surplusage. Professor Ruth Sullivan in her Construction of Statutes (LexisNexis, 6^th edition) wrote at § 823:

As these passages indicate, every word and provision found in a statute is supposed to have a meaning and a function. For this reason courts should avoid, as much as possible, adopting interpretations that would render any portion of a statute meaningless or pointless or redundant.

(footnote omitted)

That is the effect of the argument presented by the Applicant: the statute has been made meaningless or pointless. The same offence would have, according to the Attorney General’s argument, two definitions, one broader than the other for facts happening after July 17, 1998. And of course the Attorney General would seek to rely on the broader one despite Parliament having spoken because that would be easier to use.

[69] The IAD was perfectly entitled to rely on Verbanov to decide what are the elements of “crime against humanity” in Canada after 1998. That was reasonable. Indeed, had it chosen not to follow Verbanov, it could have been found not to abide by the legal constraint, which could make the decision unreasonable (Vavilov, para 99-101).

E. Widespread or systematic attack

[70] Another issue that found its way before the IAD on redetermination was whether the evidence before it established the commission of a widespread or systematic attack as per Mugesera simpliciter. It bears repeating that the Mugesera framework includes the four elements without the “policy requirement”:

1. an enumerated proscribed act was committed by the person accused and the person had the required guilty mind.

2. the act was committed as part of a widespread or systematic attack;

3. the attack is directed against any civilian population or any identifiable group;

4. the person knew of the attack and knew or took the risk that the act comprised a part of the attack.

(Mugesera, para 119)

[71] The IAD was not satisfied that the Mugesera element #2 was met on the record before it, let alone that the acts met the “policy requirement” of the CAHWCA. It wrote:

[42] The panel does not consider that the events described by the Minister in the evidence he cites are events that can be called a widespread or systematic attack within the meaning of international law or as described by the Supreme Court in Mugesera. The Minister must demonstrate that the attack is either widespread or systematic. The Minister does not provide any specific context to describe the suggested attack, although he is required to do so. Rather, he makes a mathematical shortcut: Since the NPF has been committing torture, abuse and mistreatment frequently for several years against everyone in the country and especially against the people they arrest and detain, arbitrarily or not, across the country, these acts amount to, in the Minister’s view, an attack that is both widespread and systematic.

…

[44] It is not the accumulation of individual actions of the same nature that gives rise, in retrospect, to the presence of a widespread or systematic attack; it is the opposite. It is the overall context that gives rise to the commission of repeated acts by individuals motivated by a common and collective intention greater than that of the individual.

(footnotes omitted)

[72] Undoubtedly, the IAD is referring to paragraphs 154 and 155 of Mugesera which provide what constitute a “widespread attack” and a “systematic attack”:

154 A widespread attack “may be defined as massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims” — it need not be carried out pursuant to a specific strategy, policy or plan: Akayesu, Trial Chamber, at para. 580; and Prosecutor v. Kayishema, Case No. ICTR‑95‑1-T (Trial Chamber II), 21 May 1999, at para. 123. It may consist of a number of acts or of one act of great magnitude: Mettraux, at p. 260.

155 A systematic attack is one that is “thoroughly organised and follow[s] a regular pattern on the basis of a common policy involving substantial public or private resources” and is “carried out pursuant to a . . . policy or plan”, although the policy need not be an official state policy and the number of victims affected is not determinative: Akayesu, Trial Chamber, at para. 580; and Kayishema, at para. 123. As noted by the ICTY’s Trial Chamber in Kunarac, at para. 429: “The adjective ‘systematic’ signifies the organised nature of the acts of violence and the improbability of their random occurrence. Patterns of crimes — that is the non‑accidental repetition of similar criminal conduct on a regular basis — are a common expression of such systematic occurrence.”

(my emphasis)

The IAD considers that the evidence in this case does not meet the requirement of either a widespread attack or a systematic attack. Therefore, even on a broader definition of CAH, the Minister misses the mark.

[73] The Applicant had to demonstrate that the conclusion reached by the IAD was unreasonable, that is that it was not justified, transparent, intelligible, and that it was not justified in relation to the relevant factual and legal constraints (Vavilov, para 99). It does not suffice that a party disagrees with the conclusion reached. That happens in just about any case being litigated. The burden is more rigorous.

[74] With respect, that burden has not been discharged. When read as a whole, the reasons given by the IAD focus on two issues. The Mugesera elements include not only that enumerated proscribed acts (e.g. torture) were committed, but also that the person participated in some fashion in the commission. Then the act must be part of a widespread or systematic attack. The IAD was not satisfied that the events constituted a widespread attack or systematic attack within the meaning given to these terms in Mugesera. The IAD explains that the Minister “does not describe it [the context] or explain how or why all these acts are related to each other, apart from the fact that they were committed often, by people who have more or less the same job” (para 43).

[75] The dominant characteristic of the widespread attack is its scale, massiveness, being carried out collectively with considerable seriousness and directed against a multiplicity of victims (without being pursuant to a specific strategy or policy). On the other hand, the systematic attack does not have that element of massiveness, which is replaced with an attack thoroughly organized and follows a regular pattern on the basis of a common policy [the policy does not need to be an official state policy]. The IAD did not find those elements in the record before it. How the abuses relate to each other to form the “attack” was missing in the view of the IAD. More precise information was needed. Without it, it was not possible to assess the massiveness, frequency, scale and collectiveness, or organization and regular pattern needed depending on whether what is invoked is the widespread or systematic attack. One may disagree with that conclusion. But more is needed than disagreement to convince that the decision was unreasonable, thus requiring the reviewing court to intervene. In spite of the valiant effort by counsel for the Applicant, the Court cannot conclude that the decision lacked reasonableness.

[76] As indicated earlier, it is a common mistake to believe that the CAH is established on the basis of the “reasonable grounds to believe” standard. Rather, that standard applies only to the proof of questions of fact. Hence the IAD did not discount that torture, with its brutality, happens frequently. But the analysis does not end there. As for whether or not facts give rise to a crime against humanity is a question of law. The facts as found on reasonable grounds to believe must show that the act constitutes a crime against humanity (Mugesera, para 116). But what was missing in the view of the panel was how the frequent torture becomes a widespread or systematic attack directed against a civilian population.

[77] The IAD noted how serious the CAH is and why not all crimes listed in the definition of CAH, which are all among the most serious in our domestic law, require more to qualify as a CAH. Hence, it must be that the test for a widespread or systematic attack be met. In view of the opprobrium of the international sanction that accompanies a CAH (Mugesera, para 141), the crime of torture, which is extremely grave in and of itself, does not rise to the appropriate level unless it is in a particular case shown to be part of a widespread or systematic attack as those terms are defined in Mugesera. The link between torture and an “attack” was not established according to the IAD because it was not shown how these abuses relate to each other to form the collective element of an attack. The “accumulation of individual actions of the same nature” (IAD decision, at para 44) does not “give rise … to the presence of a widespread or systematic attack”. One may disagree with that conclusion. But it cannot be said that it lacks reasonableness. The decision is justified, transparent and intelligible, and it is justified in regard of the factual and legal constraints. The reviewing court takes a posture of respect and follows the principle of restraint. If no sufficiently serious shortcomings have not been demonstrated, the reviewing court will not lose confidence in the outcome reached. A reviewing court does not conduct an assessment of the merits to determine reasonableness. If the reasoning adds up, that will suffice.

[78] The IAD considered the evidence and found that the requirement that there be a widespread or systematic attack was not established. The Court is not convinced that the IAD’s decision was unreasonable.

V. Conclusion

[79] It follows that the judicial review application must be dismissed. It has not been demonstrated that the IAD was unreasonable in following the decision of this Court in Verbanov according to which the CAHWCA has defined the crime against humanity as requiring that the commission of the acts be part of a widespread or systematic attack which must be pursuant to or in furtherance of a State or organizational policy to commit such act.

[80] Secondly, the IAD was not unreasonable either in finding that, irrespective of the “policy requirement”, the Minister had not established that the acts did constitute the widespread or systematic attack, as the notions are defined in the case of Mugesera.

VI. Certified question

[81] The Applicant submitted a question to be certified pursuant to s 74 of the IRPA. It reads as follows:

For a person to be found inadmissible on grounds of violating human or international rights pursuant to s. 35(1)(a) of the Immigration and Refugee Protection Act, does a widespread or systematic attack directed against any civilian population or any identifiable group committed after July 17, 1998, need to be committed pursuant to or in furtherance of a State or organizational policy in order to satisfy the elements of the offence of crimes against humanity under subsection 6(3) of the Crimes Against Humanity and War Crimes Act?

The Court confirmed with counsel for the Applicant that the question submitted is essentially the same question submitted and denied in Verbanov. The same question was also denied for certification in Akinpelu (supra). The Respondent objected to the certification, arguing that it does not meet the strict requirements for certification. I agree.

[82] In the latter case, Mr. Justice Gascon summarized usefully and succinctly the requirements for certification at paragraph 61:

[61] According to paragraph 74(d) of the IRPA, a question can be certified by the Court if “a serious question of general importance is involved.” To be certified, a question must be a serious one that: (i) is dispositive of the appeal; (ii) transcends the interests of the immediate parties to the litigation; and (iii) contemplates issues of broad significance or general importance (Lunyamila v Canada (Public Safety and Emergency Preparedness), 2018 FCA 22 at para 46; Lewis v Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 at para 36; Mudrak v Canada (Citizenship and Immigration), 2016 FCA 178 at paras 15–16 [Mudrak]; Zhang v Canada (Citizenship and Immigration), 2013 FCA 168 at para 9 [Zhang). Furthermore, the question must not have already been determined and settled in another appeal (Rrotaj v Canada (Citizenship and Immigration), 2016 FCA 292 at para 6; Mudrak at para 36; Krishan v Canada (Citizenship and Immigration), 2018 FC 1203 at para 98; Halilaj v Canada (Public Safety and Emergency Preparedness), 2017 FC 1062 at para 37). As a corollary, the question must have been dealt with by the Court and it must arise from the case (Mudrak at para 16; Zhang at para 9; Varela v Canada (Citizenship and Immigration), 2009 FCA 145 at para 29).

[83] The proposed question deals exclusively with the “policy requirement” which was passed by Parliament as part of the CAHWCA. For a question to be certified, it must be dispositive of the appeal: this question is not. Even if the Court had found that the “policy requirement” was not necessary, it remained that the IAD decision, according to which the Applicant had not been successful in establishing that the alleged acts constituted widespread or systematic attack, as defined by the Supreme Court of Canada in Mugesera, is reasonable. The question is not dispositive of the appeal. It follows that the proposed question cannot be certified pursuant to s 74 of the IRPA.

 

JUDGMENT in IMM-714-24

THIS COURT’S JUDGMENT is:

1. The judicial review application is dismissed.

2. There is no question for certification.

"Yvan Roy"

 

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	IMM-714-24
STYLE OF CAUSE:	THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS v MONDAY IYANGBE ERIATOR
PLACE OF HEARING:	HELD BY VIDEOCONFERENCE
DATE OF HEARING:	February 18, 2025
JUDGMENT AND REASONS:	ROY J.
DATED:	MARCH 11, 2025

APPEARANCES:

Patricia Nobl	For The Applicant
Alima Racine	For The Respondent

SOLICITORS OF RECORD:

Attorney General of Canada Montréal, Quebec	For The Applicant
Racine Rubio Nominal Partnership Barristers and Solicitors Montréal, Quebec	For The Respondent