Supreme Court sets test for war crimes complicity
Rejects guilt-by-association approach in determining claims for refugee status
OTTAWA — Mere association with a government that commits war crimes doesn’t make a person complicit with such crimes and shouldn’t exclude them from refugee status in Canada, the country’s top court ruled on Friday.
In a 9-0 decision, the Supreme Court of Canada said a person must have “voluntarily made a significant and knowing contribution” to an organization’s criminal purpose to be denied refugee status in Canada.
The ruling in the case of former Congolese diplomat Rachidi Ekanza Ezokola is a victory for refugee lawyers and advocates who have long contended that Canada’s definition of complicity with war crimes is overly broad, out of sync with international law and denies refugee status to people with no involvement i n committing crimes against humanity.
“It’s an extremely important decision, and it brings Canada in line with other jurisdictions,” said immigration lawyer Lorne Waldman, president of the Canadian Association of Refugee Lawyers. The Supreme Court “rejected the idea that someone could have individual responsibility just based on their association in an organization, without any evidence of a significant contribution.”
Friday’s ruling sets a new test for the degree of participation in alleged war crimes that justifies denying refugee protection. The court rejected a “guilt-by-association” approach to determining complicity with such crimes, say- ing a “contribution-based” test should be applied.
At issue was how Canada interprets a particular article of the United Nations Refugee Convention, which excludes people from refugee protection if they have “committed a crime against peace, a war crime, or a crime against humanity.”
Justices Louis LeBel and Morris Fish wrote in the decision that to exclude a claimant on the basis of that article, “there must be serious reasons for considering that the claimant has voluntarily made a significant and knowing contribution to the organization’s crime or criminal purpose.”
The ruling means someone can’t be denied refugee status merely because they were an employee of a state whose government commits war crimes.
“This is a really important decision for people coming to Canada needing protection,” said University of British Columbia law professor Catherine Dauvergne, who represented the Canadian Council for Refugees in the case. She called the case an “overdue and much-needed reset” of the way Canada regards the intersection between refugee law and criminal law.
“The court’s very clear about drawing a line between who’s doing actual criminal activity and who’s getting unnecessarily and unfairly caught in that net,” she said.
Ezokola resigned his job as the Democratic Republic of Congo’s No. 2 man at the United Nations in New York in 2008 after a disagreement with the ambassador, and fled to Montreal with his wife and eight children, fearing for his safety. He was initially denied refugee status in Canada when the Immigration and Refugee Board ruled he had “personal and knowing awareness” of the crimes committed by his government and was thus complicit.
Refugee lawyers said that criteria is too broad, and that dozens of people have been unfairly turned away. Friday’s ruling bolstered that view, clearly rejecting a guilt-by-association approach.
“In Canada, the personal and knowing participation test has, in some cases, been overextended to capture in- dividuals on the basis of complicity by association,” the ruling said. “It is therefore necessary to rearticulate the Canadian approach.”
Ezokola’s Montreal lawyer, Annick Legault, said her client and his family are “very relieved and extremely happy” about the ruling, and “the family was singing and yelling with happiness” upon hearing the news.
Ezokola, who remains in Canada with his family, will receive a new hearing at the Immigration and Refugee Board under the new guidelines set by the Supreme Court, though likely not for a few months.
“We’re optimistic,” Legault said. “We believe that with the evidence as it is, there’s nothing to exclude our client.”
A spokeswoman for Public Safety Minister Steven Blaney said the government is reviewing the Supreme Court’s decision.
“We are committed to ensuring that Canada does not become a haven for war criminals who attempt to abuse our generous refugee system,” Julie Carmichael said.
Jennifer Bond, a University of Ottawa law professor who represented the Canadian Association of Refugee Lawyers in the case, said the Supreme Court recognized that people deserving of refugee protection, and who aren’t war criminals, were being unjustly turned away under the current approach.
“This decision is not about giving a break to war criminals, and it will have no impact on Canada’s ability to deny refugee status to those who have actually been involved in serious inter national crimes,” Bond said.
Canada rejected 236 refugee applicants on the basis of Article 1F (a) of the Refugee Convention — the provision at stake in this case — between 2003 and 2012, according to statistics from the Immigration and Refugee Board.