Posted by Zohra Safi:
For many years now, Canada has been implementing a “no safe haven” policy against individuals suspected of participating in serious international crimes. This policy is enforced through an interdepartmental initiative of the Canadian government called the Crimes against Humanity and War Crimes Program which prevents individuals suspected of international crimes from entering Canada or immediately removing them if they have already made their way inside the country.
Paragraph 35(1)(a) of Immigration and Refugee Protection Act (IRPA) provides that a person can be inadmissible for violating human or international rights if he or she has committed an act outside Canada that would constitute an offense under sections 4 to 7 of the Crimes Against Humanity and War Crimes Act. In 2013, the Supreme Court of Canada in Ezokola (Ezokola v. Canada (M.C.I.), 2013 SCC 40) clarified the applicable complicity test for purposes of inadmissibility for war crimes and crimes against humanity and stated: to warrant inadmissibility for international crimes there must be “voluntary, knowing and significant contribution” to the crime or criminal purpose of a group. It is important to note that applicability of paragraph 35(1)(a) of the IRPA does not depend on non-involvement of an individual in the alleged crimes. Complicity is made out if there is evidence establishing that an individual voluntarily made “knowing and significant contribution” to the crimes alleged. The standard of proof required is “reasonable grounds to believe,” which is different from the criminal standard of proof for a finding of guilt known as “beyond a reasonable doubt.”
In Ezokola, the Supreme Court further provided a list of factors to be used as a guide in the application of the complicity test. These are: (1) the size and nature of the organization; (2) the part of the organization with which the applicant was most directly concerned; (3) the applicant’s duties and activities within the organization; (4) the applicant’s position or rank in the organization; (5) the length of time the applicant was in the organization, particularly after acquiring knowledge of the group’s crime or criminal purpose; and (6) the method by which the applicant was recruited and the applicant’s opportunity to leave the organization [emphasis added].
Recently, the Federal Court in Ghirme (Ghirme v. Canada (P.S.E.P.), 2019 FC 805) set aside the decision of a Minister’s Delegate for referring the applicant, an Eritrean national, to an admissibility hearing without considering all of the above six factors in determining whether the applicant may be inadmissible under paragraph 35(1)(a) of the IRPA. The applicant was conscripted in Eritrean military when he had turned 18 and served there in various roles including as a radio operator and solider from 2002 until he fled in 2015. The applicant made a claim for refugee protection in the U.S. The claim was denied but he was granted a “withholding of removal” permit, which did not entitle him to a convention refugee status. Fearing he might be deported back to Eritrea, he then sought Canada’s protection at the border.
Following an interview with the applicant, an Enforcement Officer with the Canada Border Services Agency prepared an A44 report finding the applicant was inadmissible to Canada on grounds of having violated human or international rights stemming from his participation in the Eritrean military. Despite open source documents regarding forced conscription of Eritrean men, and without addressing the involuntary nature of the applicant’s military service, the Minister’s Delegate determined the report to be well-founded and referred the matter to an admissibility hearing.
In allowing the application for judicial review, the Court held that a Minister’s Delegate must address all of the six enumerated factors in Ezokola to determine if discretion should be exercised before a matter is referred to an admissibility hearing. The Court’s decision was aligned with the Ezokola principles that although Canada has an obligation to deny safe havens to those believed to have participated in international crimes, a higher threshold applies to exclude individuals for complicity in war crimes and crimes against humanity. Now, pursuant to Ghirme, a complete assessment is even warranted at the A44 stage.