A New Test for Complicity: Ezokola v Canada

This summer the Supreme Court of Canada handed down a landmark decision in Ezokola v Canada (Minister of Citizenship and Immigration) which altered the landscape of refugee exclusions in Canada. The Supreme Court unanimously rejected a “guilt-by- association” approach to determining complicity in international crimes for the purposes of excluding refugees from protection.

This article, which draws from our internship at the Crimes Against Humanity and War Crimes Section (War Crimes Section) of the Department of Justice in Ottawa, will briefly touch on the nature of the change in law yielded by Ezokola, and some of its implications.

The appellant in this case, Rachidi Ezokola, began his career as an employee of the Government of the Democratic Republic of Congo (DRC) in 1999. In 2007, he was designated as the Head of the Permanent Mission of the DRC to the United Nations in New York, and spoke before the Security Council regarding natural resources and conflicts in the DRC. While Mr. Ezokola was serving in this capacity, the government of the DRC committed crimes against humanity. In January 2008, Mr. Ezokola refused to continue to serve the government of President Kabila, which he consid- ered to be “corrupt, antidemocratic and violent”. He resigned from his post and fled to Canada, where he sought refugee protection for himself and his family under article 1F(a) of the 1951 Convention Relating to the Status of Refugees (Refugee Convention). Article 1F(a) of the Refugee Convention is incorporated into Section 98 of Canada’s Immigration and Refugee Protection Act (IRPA). It 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, as defined in international instruments drawn up to make provision in respect of such crimes.”

The issue of whether refugee protection should be granted to Mr. Ezokola and his family was first presented before the Immigration and Refugee Board in 2009, which excluded him from the definition of “refugee” under article 1F(a). The matter was then brought before the Federal Court, the Federal Court of Appeal, and eventually, the Supreme Court of Canada. The chief issue before the Supreme Court was to determine what test for complicity decision makers should employ in the context of article 1F(a) of the Refugee Convention. The task is summed up by the Court as follows: to determine “what degree of knowledge and participation in a criminal activity justifies excluding secondary actors [i.e., not direct perpetrators] from refugee protection.”

In the decision, the Supreme Court rejected the previous test for complicity, which required “personal and knowing participation” by the refugee applicant. The Court found that in some cases, the old test had been “overextended to capture individuals on the basis of complicity by association.” The Court identified that international law, and the approach taken by other state parties to the Refugee Convention, made it clear that Canada needed to “rein in” its practice of excluding persecuted persons for merely being as- sociated with others who have perpetrated international crimes.” Consequently, the Supreme Court crafted a new test for complicity to align the Canadian application of article 1F(a) for exclusions with international jurisprudence. In order to be found complicit, the Court held that there must be “serious reasons for considering” that the individual has “voluntarily made a significant and knowing contribution to the organization’s crime or criminal purpose.” The Court also identified a list of six factors that must be considered when determining whether a refugee applicant made a voluntary, knowing and significant contribution.

However, despite providing this non-exhaustive list of factors, the Supreme Court failed to offer practical guidance on what type and degree of involvement is in fact necessary to satisfy the new test for complicity. More specifically, the Court offered very little clarity regarding the requirement of “significant contribution,” despite this novel (at least as Canadian jurisprudence is concerned) prerequisite being stressed repeatedly throughout the judgment. Concerning this requirement, the Court simply pronounced that it can be demonstrated only when a “requisite link” exists between the individual’s conduct and the concerned group’s crime or crimi- nal purpose. Consequently, one is left wondering: what type of involvement would rise to the level of contribution? Moreover, under what circumstances would this contribution be considered significant enough to attract criminal liability?

From an academic standpoint, some may find the open-endedness of this new test intellectually stimulating. However, from the viewpoint of government agencies, which are henceforth required to embrace and satisfy this new complicity equation when evaluating refugee applications (i.e. the Canadian Border Services Agency), the ambiguity of the new test presents many challenges. In fact, without providing adequate parameters, the Supreme Court effectively conferred upon such agencies the monumental task of sifting through the jurisprudence of other legal systems for guidance – namely, the International Criminal Court (ICC), International Criminal Tribunal for the Former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), as well as the United States and United Kingdom. This is because the Supreme Court relied heavily on these legal systems to formulate the new complicity test for Canada.

As interns in the War Crimes Section – which, among other duties, offers practical advice to Canadian Border Services Agency Officials in relation to refugee exclusion matters – we were given a shot at this challenging task.

As was to be expected, we encountered a number of hurdles in the course of our research. One such hurdle was the unfortunate fact that, although the Supreme Court extracted the threshold of “significant contribution” from the ICC, ICTY, and ICTR, an  evaluation of the jurisprudence of these institutions did not allow us to sketch out the parameters of “significant contribution” as we had hoped. This was specifically because what amounts to “significant” in the context of international criminal law—where high-ranking officials are often being tried for allegedly orchestrating and/or perpetrating large-scale crimes—undoubtedly differs from the refugee exclusion context, which often involves individuals that played relatively minor roles in the concerned criminal activity. Despite at times feeling that we lacked a sense of direction, we managed to present to the War Crimes Section some practical findings, the contents of which are too lengthy for this article.