The Court starts off by reminding that “it is not necessary to distinguish between principals, aiders and abettors, or other participants” for the purposes of exclusion from the definition of “refugee” under Article 1F(a) of the Refugee Convention. The Court then states the main question of the appeal: Can a senior public official be excluded from the definition of “refugee” by performing official duties for a government that commits international crimes? Noting the focus on the collective rather than individual actions in international law, the Court further states that the Federal Court of Appeal correctly concluded that senior officials may be held criminally responsible in international law, if they are aware of the crimes being committed by the government yet remain in their position without protest and continue to defend that government’s interests. The Court goes on to state that in this appeal the “significant contribution test” will replace the “personal and knowing participation test” established in Ramirez v Canada,  2 FC 306. The Court found that the latter has been overextended to capture individuals on the basis of association.
Mr. Ezokola worked for the government of the Democratic Republic of Congo (DRC) since 1999. In 2004, he was assigned to the Permanent Mission of the DRC to the UN. In 2008 he resigned and fled to Canada. He states that he resigned because he refused to serve the government of President Kabila, which he considered to be corrupt, antidemocratic and violent. He claimed that he fled because he was harassed and threatened by the DRC’s intelligence agency because of suspicions that he was linked to the president’s opponents.
The Board excluded the appellant from the definition of “refugee” under art. 1F(a). The Board held that the appellant had voluntarily joined the government, continued to act in his official capacity and had personal and knowing awareness of the crimes committed by the government. The Federal Court allowed the application for judicial review, holding that an individual cannot be excluded under art. 1(F)a merely because he or she is an employee of a state whose government commits international crimes. Complicity requires a nexus between the crimes committed and the claimant. The Federal Court of Appeal rejecting the Federal Court’s approach held 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 of crimes.
The Court begins the analysis by concluding:
An individual will be excluded form refugee protection under Article 1(F) 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 (para 29).
The Court then demonstrates how it arrived at this conclusion.
1. The Purpose of the Refugee Convention and Article 1F(a)
The Court states that while the Refugee Convention has overarching and clear human rights object and purpose, international criminals cannot claim refugee status. The Court notes that there is a need for a carefully crafted test for complicity – one that promotes the broad humanitarian goals of the Convention but which 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.
2. The Role of the Refugee Protection Division: Exclusion Determinations, not Findings of Guilt
The test for complicity must reflect the role of the Board and work within the practical realities of refugee proceedings. The Board has to deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit. The Board is not a criminal law tribunal and operates under the “serious reasons for considering” standard. As such, the Court emphasized that a single test has to apply to cases of general participation in a group’s criminal activity.
3. The Board Must Rely on International Law to Interpret Article 1F(a)
The Court states that Article 1F(a) instructs to look at the international law, which is relevant both for the elements of the offence and the potential modes of commission. Since in this case there is no dispute that the DRC government has carried out the elements of the crime, the Court is concerned with modes of commission.
International criminal law has adapted the concept of individual responsibility to collective and large-scale criminality, where crimes are often committed indirectly and at a distance. While the Court notes that it will consider the international criminal law in the Rome Statute first and foremost, it will also consider the jurisprudence of ad hoc tribunals.
The Court stated that the broadest modes of commission recognized under current international criminal law are most relevant to identifying threshold criteria of the exclusionary 1F(a) clause, namely common purpose liability under article 25(3)(d) of the Rome Statute and joint criminal enterprise developed in the ad hoc jurisprudence. These two related modes have adapted the concept of individual criminal responsibility to the collective aspects of international crime. The Court notes that even the broadest modes of commission require a link between the individual and the crime or criminal purpose of a group.
4. Common Purpose under Article 25(3)(d) of the Rome Statute
Article 25(3)(d) of the Rome Statute recognizes a broad residual mode of commission, by capturing conduct that “in 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;
For the actus reus, under the international interpretation of the law, not every contribution will be caught by art. 25(3)(d). The threshold is set at significant contribution. According to theeinternational jurisprudence, 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”
As for the mens rea, the international jurisprudence shows that under art. 25(3)(d) the subjective element can take form of intent or knowledge but recklessness is likely insufficient. It precludes the awareness of a mere risk of prohibited consequences. As such, complicity under art. 25(3)(d) is not based on rank within or association with a group, but on intentionally or knowingly contribution to a group’s crime or criminal purpose.
5. Joint Criminal Enterprise
Joint criminal Enterprise is contained in international ad hoc tribunals and captures “lesser” contributions to a crime than aiding and abetting. As such, it captures individuals who could easily be considered as secondary actors complicit in the crimes of others.
There are 3 forms of Joint Criminal Enterprise (JCE). While actus reus is a “significant” contribution to the criminal enterprise, the mens rea varies for each form. JCE1 requires shared intent to perpetrate a certain crime, JCE2 requires knowledge of a system of ill treatment and intent to further this system, JCE3 requires intention to participate in and further the criminal activity of purpose of the group, and intention to contribute to the joint criminal enterprise or the commission of a crime by the group and (i) that it was foreseeable that such a crime might be perpetrated and (ii) the accused willingly took that risk. JCE3 thus captures reckless contributors.
The Court notes that for the purposes of this case it is important to note that joint criminal enterprise does not capture individuals merely based on rank or association within an organization or an institution. In summary, 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.
6. Comparative Law and Decisions of Other National Courts
Other state parties to the Convention have approached art. 1F(a) in a manner that adheres to the minimum requirements for complicity set by the international principles discussed above. After examining UK and US jurisprudence, the Court goes on to conclude that approaches to complicity all require a nexus between the individual and the group’s crime or criminal purpose.
7. The Canadian Approach To Criminal Participation Has Been Overextended
The Court noted that the Federal Court decision in this case had restrained the test for complicity that the Canadian jurisprudence has inappropriately shifted towards criminal activities of the group and away from the individual’s contribution to that criminal activity.
It is well established that in international criminal law, criminal liability does not attach to omissions unless an individual is under a duty to act. Accordingly unless an individual has control or responsibility over the individuals committing international crimes, he or she cannot be complicit simply by remaining in his or her positions without protest. Guilt by association similarly violates the principles of individual responsibility. As such, there should be no room for rank-based complicity by association or passive acquiescence.
8. The Canadian Test for Complicity Refined
The Court reiterated the principle that in order to exclude the claimant from the definition of “refugee” by virtue of Article 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.
a. Voluntary Contribution to the Crime or Criminal Purpose
Contribution must be voluntary. To assess the voluntariness of a contribution, decision makers should consider the method of recruitment by the organization and any opportunity to leave the organization. Defence of duress applies.
b. Significant Contribution to the Group’s Crime or Criminal Purpose
Mere association becomes culpable complicity under art. 1F(a) when an individual makes a significant contribution to the crime or criminal purpose of a group. The contribution can be directed to wider concepts of common design, such as the accomplishment of an organization’s purpose by whatever means are necessary including the commission of war crimes, which attaches criminal liability based on assistance in carrying out a common unlawful purpose.
c. Knowing Contribution to the Crime or Criminal Purpose
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. The approach is consistent with the Rome Statute. Article 30(1) of the Rome Statute defines intent as when an individual “means to engage in the conduct”. Article 30(3) of the Rome Statute defines knowledge as “awareness that a circumstance exists or a consequence will occur in the ordinary cause if events”. With respect to consequences article 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”.
9. Applying the Test
The Court lays out a serious of factors that should serve as a guide in assessing whether an individual has voluntarily made a significant and knowing contribution to a crime or criminal purpose. The focus must always be on individual’s contribution to the crime or criminal purpose:
i. The size and nature of the organization:
A smaller organization could increase that likelihood that the claimant would have known of and participated in the crime or criminal purpose. The likelihood is greater where the organization had limited and brutal purpose. Membership in an organization with a limited and brutal purpose would depend on whether the contribution was voluntarily made and had a significant impact on the crime or criminal purpose of the group.
ii. The part of the organization with which the refugee claimant was most directly concerned:
This factor is relevant in cases when particular parts of the organization were known to be involved with the crime or criminal purpose. If the claimant was exclusively involved in a part of an organization that had nothing to do with criminal purpose or crime, he or she may be exonerated.
iii. 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 the claimant’s day-to-day participation in the activities of the organization.
iv. The refugee claimant’s position or rank in the organization
A high ranking official in an organization may be more likely to have knowledge of that organization’s crime or criminal purpose. Moreover, by virtue of their position or rank, individuals may have effective control over those directly responsible for criminal acts.
v. 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 if an individual has been involved with the organization for a longer period of time. Moreover, a lengthy period of involvement may also increase the significance of contribution.
vi. The method by which refugee claimant was recruited and the refugee claimant’s opportunity to leave the organization
This factor directly impacts the voluntariness requirement. This requirement may not be satisfied if an individual was coerced into joining, supporting or remaining in the organization.
A full contextual analysis would necessarily include any viable defences, including duress.
10. Evidentiary Standard: Serious Reasons for Considering
The Court reminds that the proposed contribution-based test for complicity is subject to the unique evidentiary standard of “serious reasons for considering”. For guidance on applying this evidentiary standard the Court quoted Lord Brown JSC’s reasons in J.S. In that case the Court noted that the standard of “serious reasons for considering” is low. That said, the Court went on that the standard is higher than mere suspecting.
Appeal allowed and the matter was remitted to the RPD for re determination in accordance with these reasons.