Ezokola v. Canada (Minister of Citizenship and Immigration), (2011) 420 N.R. 279 (FCA)

JudgeNoël, Nadon and Pelletier, JJ.A.
CourtFederal Court of Appeal (Canada)
Case DateJune 09, 2011
JurisdictionCanada (Federal)
Citations(2011), 420 N.R. 279 (FCA);2011 FCA 224

Ezokola v. Can. (M.C.I.) (2011), 420 N.R. 279 (FCA)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2011] N.R. TBEd. SE.017

Le ministre de la Citoyenneté et de l'Immigration (appelant) v. Rachidi Ekanza Ezokola (intimé)

(A-281-10; 2011 FCA 224; 2011 CAF 224)

Indexed As: Ezokola v. Canada (Minister of Citizenship and Immigration)

Federal Court of Appeal

Noël, Nadon and Pelletier, JJ.A.

July 15, 2011.

Summary:

Ezokola, an economic advisor and a former diplomat for the Democratic Republic of the Congo (DRC) at the United Nations, claimed refugee protection with his wife and eight children. The Refugee Protection Division of the Immigration and Refugee Board refused the claim on the basis that Ezokola, by reason of his public service, was complicit by association in the crimes committed by the security forces of various DRC governments (United Nations Convention Relating to the Status of Refugees, article 1F(a)). Ezokola applied for judicial review.

The Federal Court, in a decision reported at 373 F.T.R. 97, allowed the application and set aside the decision as it related to the conclusion that Ezokola was excluded by operation of article 1F(a). The court certified the following question: "For the purposes of exclusion pursuant to paragraph 1F(a) of the United Nations Refugee Convention, is there complicity by association in crimes against humanity from the fact that the refugee claimant was a public servant in a government that committed such crimes, along with the fact that the refugee claimant was aware of these crimes and did not denounce them, when there is no proof of personal participation, whether direct or indirect, of the refugee claimant in these crimes?"

The Federal Court of Appeal reformulated the certified question as follows: "For the purposes of exclusion pursuant to paragraph 1F(a) of the United Nations Refugee Convention, can complicity by association in crimes against humanity be established by the fact that the refugee claimant was a senior public servant in a government that committed such crimes, along with the fact that the refugee claimant was aware of these crimes and remained in his position without denouncing them?". The court answered in the affirmative and remitted the matter to a different panel of the Board to make a de novo determination of whether Ezokola was an accomplice to the crimes committed by the DRC in accordance with the personal and knowing participation test.

Aliens - Topic 1330.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Disqualifications - War crimes or crimes against humanity - An applications judge stated that "... the concepts of individual criminal responsibility and effective control over other persons and the mental element described in the Rome Statute [which established the International Criminal Court] may and must be used to elucidate what the Canadian case law refers to as complicity by association for the purposes of Article 1F(a) [of the United Nations Convention Relating to the Status of Refugees]. This is required both by Article 1F(a), which expressly refers to 'international instruments drawn up to make provision in respect of such crimes', and by the principles advanced by the Supreme Court of Canada in similar cases ... " - The Federal Court of Appeal agreed that Article 1F(a) had to be interpreted in light of international instruments such as the Rome Statute - However, the court rejected the judge's conclusion that the criminal responsibility described in the Rome Statute was ascribed only in the case of "personal participation in the crime alleged or personal control over the events leading to the crime alleged" - The personal and knowing participation test was in harmony with the Rome Statute - See paragraphs 61 to 68.

Aliens - Topic 1330.2

Admission - Refugee protection, Convention refugees and persons in need of protection - Disqualifications - War crimes or crimes against humanity - Ezokola, an economic advisor and a former diplomat for the Democratic Republic of the Congo (DRC) at the United Nations, claimed refugee protection with his wife and eight children - An Immigration and Refugee board refused the claim on the basis that Ezokola, by reason of his public service, was complicit by association in the crimes committed by the security forces of various DRC governments (United Nations Convention Relating to the Status of Refugees, article 1F(a)) - The applications judge set aside the decision where there was no evidence that Ezokola personally participated in the alleged crimes, personally conspired to commit them or personally facilitated their commission - It was unreasonable to apply a presumption of complicity by association absent evidence that Ezokola exercised some kind of control over the DRC's security forces or over any component of those forces or over any of their members - The Federal Court of Appeal held that the judge applied too narrow a test in requiring a personal participation by the individual - The "personal and knowing participation" test was broader than that - The expression "complicity by association" was fundamentally misleading and should be dropped henceforth to refer to "complicity" - Liability was generated, not by the association, but rather by personal and knowing participation in the crimes - It was not open to the judge to find that complicity by association had to be understood as being a presumption and that it was unreasonable to apply that presumption on the basis of Ezokola's membership in the DRC government - No presumption arose from the membership - The Minister had to establish Ezokola's participation in the government's crime - A senior official could, by remaining in his or her position without protest and continuing to defend his government's interests while being aware of the crimes committed by that government demonstrate "personal and knowing participation" in those crimes and be complicit with the government in their commission - The final outcome depended on the facts particular to each case - However, the court was concerned that the Board erred by applying a "personal and knowing awareness" test - Only Ezokola's personal and knowing participation in the crimes could support a finding of complicity for the purposes of article 1F(a) - The court remitted the matter to a different panel of the Board for a de novo determination.

Cases Noticed:

Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2004] 1 F.C.R. 3; 309 N.R. 14; 2003 FCA 325, refd to. [para. 14].

Sivakumar v. Canada (Minister of Citizenship and Immigration), [1996] 2 F.C. 872; 198 N.R. 219 (F.C.A.), refd to. [para. 14].

Gonzalez v. Minister of Employment and Immigration, [1994] 3 F.C. 646; 170 N.R. 302 (F.C.A.), refd to. [para. 14].

Sumaida v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 66; 252 N.R. 380 (F.C.A.), refd to. [para. 14].

Ramirez v. Minister of Employment and Immigration, [1992] 2 F.C. 306; 135 N.R. 390 (F.C.A.), consd. [para. 15].

Moreno and Sanchez v. Minister of Employment and Immigration, [1994] 1 F.C. 298; 159 N.R. 210 (F.C.A.), refd to. [para. 15].

Bazargan v. Ministre de l'Emploi et de l'Immigration (1996), 205 N.R. 282 (F.C.A.), refd to. [para. 22].

Aden v. Minister of Employment and Immigration, [1994] 1 F.C. 625 (T.D.), refd to. [para. 22].

Sungu et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2003] 3 F.C. 192; 230 F.T.R. 67; 2002 FCT 1207, refd to. [para. 22].

Bouasla v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. A52; 2008 FC 930, refd to. [para. 22].

R. (ex rel. JS) (Sri Lanka) v. United Kingdom (Secretary of State for the Home Department), [2010] UKSC 15; 402 N.R. 163, refd to. [para. 22].

Attorney General (Minister of Immigration) v. Tamil X and Anor SC, [2010] NZSC 107, refd to. [para. 32].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 38].

Canada (Attorney General) v. Davis (2010), 403 N.R. 355; 2010 FCA 134, refd to. [para. 38].

Telfer v. Canada Revenue Agency (2009), 386 N.R. 212; 2009 FCA 23, refd to. [para. 38].

Zeng et al. v. Canada (Minister of Citizenship and Immigration) (2010), 402 N.R. 154; 2010 FCA 118, refd to. [para. 39].

Sivakumar v. Minister of Employment and Immigration,  [1994] 1 F.C. 433; 163 N.R. 197

(F.C.A.), refd to. [para. 43].

Zazai v. Canada (Minister of Citizenship and Immigration) (2005), 339 N.R. 201; 259 D.L.R.(4th) 281; 2005 FCA 303, refd to. [para. 50].

Zrig v. Canada (Ministre de la Citoyenneté et de l'Immigration) (2003), 307 N.R. 201; 2003 FCA 178, refd to. [para. 63].

Statutes Noticed:

United Nations Convention Relating to the Status of Refugees, art. 1F(a) [para. 12].

Authors and Works Noticed:

United Nations High Commissioner for Refugees, Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention Relating to the Statutes of Refugees 4, generally [para. 22].

Counsel:

Daniel Latulippe, for the appellant;

Jared Will and Annick Legault, for the respondent.

Solicitors of Record:

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the appellant;

Jared Will and Annick Legault, Montreal, Quebec, for the respondent.

This appeal was heard at Montreal, Quebec, on June 9, 2011, by Noël, Nadon and Pelletier, JJ.A., of the Federal Court of Appeal. Noël, J.A., delivered the following reasons for judgment for the court, at Ottawa, Ontario, on July 15, 2011.

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2 books & journal articles
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    ...Act (77) The Minister of Citizenship and Explained standard for Immigration v Rachidi Ekanza Ezokola, "complicity" under s 98 of 2011 FCA 224, 420 NR 279. Immigration and Refugee Protection Act (78) Canada (Public Safety and Emergency Considered proper forum for Preparedness) v Shpati, 2011......
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    ...of Immigration, Oxford University Press [forthcoming in 2013]. (217) Justice Cromwell wrote the reasons for the unanimous Court. (218) 2011 FCA 224, leave to appeal to SCC granted, [2012] I SCR viii (available on (219) Canadian Council of Churches v Canada (Minister of Employment and Immigr......

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