Zrig v Canada,
| Court | Court of Appeal (Canada) |
| Date | 07 April 2003 |
(Dcary, Ltourneau and Nadon JJA)
Aliens Entry Asylum Refugees Geneva Convention Relating to the Status of Refugees, 1951 Exception for crimes under Article 1F(a)-(c) Serious non-political crime Well-founded fear of persecution Application of concept of complicity by association under Article 1F(a)-(b)
International criminal law Forms of criminal responsibility Complicity Crimes against the principles and purposes of the United Nations
Treaties Interpretation of Article 1F(b) of the Geneva Convention Relating to the Status of Refugees, 1951 Travaux prparatoires Whether preferable for courts of parties to international convention to adopt same interpretation of provisions of convention Interpretation of Article 1(F) (b) by British, Australian and French courts The law of Canada
Summary:The facts: In 1980, the appellant, a citizen of Tunisia, became a sympathiser of the Mouvement de la tendance islamique (the MTI), later known as Ennahda. In 1990, the appellant took over responsibility for the political bureau of Ennahda in Gabs, subsequently becoming responsible for its executive committee until late 1991. The appellant went into hiding following a search of his residence by the police in 1991. In 1992, the appellant was sentenced in absentia to a lengthy prison term by the Gabs Appeal Court for various crimes, including criminal association, manufacturing explosives and the illegal possession of weapons. Having left Tunisia in March 1992, the appellant passed through a number of countries before eventually arriving on 2 October 1992 in Canada, where he claimed refugee status under the Geneva Convention Relating to the Status of Refugees, 1951 (the Refugee Convention) and the Canadian implementing legislation.
On 30 June 1994, the Refugee Division dismissed the appellant's refugee application on the ground that there was no basis for his fear of persecution if he returned to Tunisia. The appellant filed an application for judicial review in the Trial Division, which allowed the application on the ground that the
Refugee Division had ignored a large part of the evidence regarding the general human rights situation in Tunisia. Upon rehearing, the Refugee Division concluded that the appellant's fear of being persecuted for his political opinions was valid, since if he was returned to Tunisia he would be imprisoned, tortured or killed, but that the appellant was excluded from the protection of the Refugee Convention under Article 1F(b) and (c). The Refugee Division found that MTI/Ennahda was a political movement, with the aim of creating an Islamic state in Tunisia, that supported the use of violence and consisted of an armed branch which used terrorist methods, was involved in assassinations and bombings, existed in over seventy countries, was involved in weapons trafficking and the financing of Algerian fundamentalists and committed at least twelve serious non-political crimes between 1986 and 1992The Refugee Division rejected the appellant's claim that he had no knowledge of the serious non-political crimes committed by MTI/Ennahda and, in view of the appellant's important position in the organization, held that he was complicit in its serious non-political crimes. The appellant's application for judicial review was dismissed by the Federal Court Trial Division. The Trial Judge certified five questions, the principal two of which were:
(1) Were the rules laid down by the Federal Court of Canada in Sivakumar v. Canada (Minister of Employment and Immigration)2 on complicity by association for purposes of implementing Article 1F (a) of the Convention, applicable for purposes of an exclusion under Article 1F(b)?
(2) If so, could the claimant's association with an organization responsible for perpetrating serious non-political crimes within the meaning of Article 1F(b) entail the complicity of the claimant simply because he knowingly tolerated such crimes, whether committed during or before his association with the organization in question?
Held (unanimously): The appeal was dismissed.
Per Nadon and Ltourneau JJA: (1) The Refugee Division had not relied on erroneous findings of fact made in a perverse or capricious manner, or without regard to the evidence (paras. 407).
(2) In Sivakumar the Court had concluded, in respect of Article 1F (a), that an individual could be held responsible for acts committed by others on account of their close association with those others.3 Association with a person or organization responsible for international crimes might constitute complicity if there was personal and knowing participation or toleration of the crimes. There was no basis for making any distinction between Article 1F (a) and (b), so far as the rules specified in Sivakumar were concerned. The two paragraphs dealt with the commission of serious crimes. Both paragraphs described the nature of the crimes that resulted in the exclusion of someone who
had committed them. In order to exclude persons covered by Article 1F(a) and (b), it was necessary to show that there were serious reasons for considering that the serious crimes identified were committed, but it was not necessary to attribute any one crime specifically to the appellant. This test applied to both Article 1F (a) and (b) (paras. 669, 926 and 98)(a) The travatux prparatoires gave no clear answer on the scope of Article 1F(b) and did not support the view that Article 1F(b) should be construed so that it was confined to persons who had committed crimes of an extraditable character. The exclusion under Article 1F(b) was not limited to persons charged with serious non-political crimes who had sought to evade prosecution (paras. 65, 70, 71, 83 and 84).
(b) It was appropriate to have regard to decisions on the interpretation of Article 1F(b) in the courts of other parties to the Refugee Convention. It was highly desirable that parties to an international convention adopted the same interpretation of the provisions of that convention (paras. 7283, 859 and 97).
(3) The crimes attributed to MTI/Ennahda might be ascribed to the appellant as an accomplice by association in accordance with the rules in Sivakumar. In view of the appellant's function in the movement, the fact that he never left the movement, although he was able to do so, and the fact that at the time of the hearing before the Refugee Division he was still a member of the movement, the Refugee Division concluded that he should be held responsible by association for the crimes attributed to MTI/Ennahda (paras. 99102).
Per Dcary JA: (1) The rules on complicity by association developed with respect to Article 1F (a) of the Convention did not apply to Article 1F(b) (para. 181).
(a) The crimes and acts to which Article 1F (a) and (c) of the Convention applied were extraordinary actions that shook international conscience. The crimes to which Article 1F (b) applied were ordinary crimes that were recognized by domestic criminal law and consequently the meaning of the word crime varied with the State. For there to be a serious non-political crime within the meaning of Article 1F(b), there had to be a crime within the meaning of traditional criminal law that crime must not have been political and had to be serious (paras. 108 and 11129).
(b) Complicity was one method of committing a crime: the concept of complicity by association had been developed in international criminal law in connection with international crimes or acts of the type covered in Article 1F(a) and (c). The concept of a party to an offence had been developed in traditional Anglo-Saxon criminal law in connection with the non-political crimes covered by Article 1F(b) of the Convention. It was not advisable to import into the definition of a non-political crime in Article 1F(b) the concept of complicity by association developed in international criminal law in the context of international crimes which had no real comparison with non-political crimes and which were governed by rules unknown to traditional criminal law. International criminal law had developed in a particular, initially military, context, which had nothing to do with the context in which domestic law developed (paras. 13053).
(c) As the Minister had not sought to show that there were serious reasons for considering that under the rules of Canadian criminal law the appellant had been a party to the crimes committed by the Ennahda movement, the application of Article 1F(b) was not ruled on (paras. 16472).
(2) The Minister had established, on the basis of complicity by association within the meaning of international criminal law, that there were serious reasons for considering that the appellant had been guilty of acts contrary to the purposes and principles of the United Nations, namely the acts of terrorism committed by the Ennahda movement. The Ennahda movement was at that time a terrorist group within the meaning of the resolution adopted by the General Assembly of the United Nations on Measures to Eliminate International Terrorism. Accordingly the Article 1F(c) exclusion applied (paras. 17380).
The following is the text of the judgments delivered in the Court of Appeal:
1. Nadon JA (Ltourneau JA concurring): This is an appeal pursuant to s. 83(1) of the Immigration Act, RSC 1985, c. I-2 (the Act), from a judgment of Tremblay-Lamer J, [2002] 1 FC 559, which dismissed the appellant's application for judicial review of a decision by the Immigration and Refugee Board (the Refugee Division) on January 27, 2000.
2. The Refugee Division concluded that the appellant was not a refugee within the meaning of the United Nations Convention Relating to the Status of Refugees, Can. TS 1969 No 6 (the Convention), on the ground that he should be excluded because of the provisions of art. 1F(b) and (c), which states the following:
3. The main issue raised by the appeal at bar is as to the interpretation of...
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