Ezokola v Canada: SCC reins in the use of exclusion provisions in refugee cases
On June 19, 2013, the Supreme Court of Canada (SCC) created a new test to determine whether a refugee claimant should be denied refugee status because of involvement in war crimes: it requires claimants to make a “voluntary, significant, and knowing contribution” to an international crime.[1] This is a significant shift from the previous test, which looked for “personal and knowing participation.”[2] Refugee advocates critiqued the old test because it was often employed too broadly and could catch individuals who only had a tangential association with an international organization that had committed crimes.
a) Ezokola v Canada (MCI), 2013 SCC 40: The Facts[3]
Rachidi Ekanza Ezokola began his career as a financial advisor with the government of the Democratic Republic of the Congo (DRC) in January 1999. By 2007, he represented the DRC at the Permanent Mission of the United Nations (UN), including being present at international meetings and acting as a liaison with UN development agencies. Ezokola worked at the Permanent Mission until January 2008, when he resigned and fled to Canada. He says he resigned because he refused to serve a government that he considered to be “corrupt, anti-democratic and violent.”[4] He claims he has been harassed, intimidated, and threatened because of suspected links to the opposition. He therefore claimed refugee protection for himself and his family.
b) Exclusion and War Crimes: Relevant Law
Ezokola asked the Court to reassess how it looked at the line between association and complicity. The relevant law is Article 1F (a) of the 1951 Refugee Convention. Under Article 1F (a) claimants are denied refugee status if they are determined to have committed a crime against peace, a war crime or a crime against humanity. Applying Article 1F (a) requires interpreting principles of international criminal law, domestic criminal law, and the humanitarian purpose of the Refugee Convention. The SCC’s recent decision brings Canada more in line with international jurisprudence in this area.
c) Interpreting Article 1F (a)
When it determined Ezokola, the Federal Court of Appeal held that a senior official in a government could be found complicit in an international crime by remaining in his/her position without protest and defending the interests of the government while being aware of the government’s crimes. This line of reasoning allowed for guilt by association and passive acquiescence. The SCC has now firmly held that “guilt by association is not a means to exclude.”[5] Its reasoning considers when mere association rises to culpable complicity.
In doing so, the SCC emphasized that “complicity arises by contribution.”[6] It further stated that while “individuals can be complicit in international crimes without a link to a particular crime…there must be a link between the individuals and the criminal purpose of the group.”[7] The Supreme Court’s new “significant contribution” test refines how to understand if this link exists.
d) “Voluntary, Significant, and Knowing Contribution”
The new contribution test ensures that decision makers cannot overextend the concept of complicity. There are three elements to the test:
Voluntary: Although voluntariness was not at issue in Ezokola, the SCC addressed this issue for future cases. In determining whether contribution is voluntary the court will consider the method of recruitment to an organization and whether the individual acted on any opportunity to leave the organization.
Significant: Mere association can become culpable complicity when an individual makes a significant contribution to a crime or criminal purpose. The individual’s contribution does not need to be to specific acts, and can include contributing to the organization’s wider purpose. This aspect of the test is critical to limiting the application of Article 1F (a).
Knowing: The official must be aware of both the crime and that his/her conduct will assist in the furtherance of the crime. This approach is consistent with the mens rea requirement under Article 30 of the Rome Statue. Article 30(3) defines knowledge as “awareness that a circumstance exists or a consequence will occur in the ordinary course of events.”
Applying the new test is fact dependent. The following factors can be considered:
- The size and nature of the organization;
- The part of the organization in which the claimant was most directly involved;
- The claimant’s duties and activities within the organization;
- The claimant’s position and rank in the organization;
- The length of time the claimant was in the organization; and
- How the claimant was recruited to the organization.[8]
The SCC has returned Ezokola to the Immigration and Refugee Board (IRB), where a new hearing will use these factors to determine his admissibility to Canada.
e) Conclusion
The Supreme Court’s decision in Ezokola is a landmark decision in Canadian refugee law. It brings the jurisprudence more in line with international law and curtails overextended use of Article 1F (a). The new test will continue to deny refugee status to people who have been involved in serious international crimes, but it will lessen the chance of someone who is not a war criminal of being denied protection unjustly.
[1] Ezokola v Canada (Minister of Citizenship and Immigration), 2013 SC 40 at para 92 [Ezokola].
[2] Ramirez v Canada (Minister of Employment and Immigration), [1992] 2 FC 306.
[3] Ezokola at para 11-14.
[4] Ibid at para 14
[5] Ibid at para 3.
[6] Ibid at para 7.
[7] Ibid at para 8.
[8] Supreme Court Advocacy Letter 44 (Ottawa: Supreme Court Advocacy LLP, July 19, 2013).
Refugee Claimants, Inadmissibility, and Criminality: What Does “Serious” Mean?
The Supreme Court of Canada (SCC) recently granted leave to appeal in Febles v Canada (Minister of Citizenship and Immigration), 2012 FCA 324, a case involving a refugee claimant from Cuba. The SCC rarely grants leave in refugee cases.Febles examines inadmissibility and criminality. The certified question answered at the Federal Court of Appeal was:
When applying Article 1F(b) of the United Nations Convention relating to the Status of Refugees, is it relevant for the Refugee Protection Division of the Immigration and Refugee Board to consider the fact that the refugee claimant has been rehabilitated since the commission of the crime at issue?
The Federal Court of Appeal answered “No”. [1]
a) Febles v Canada (MCI): The Facts
Luis Alberto Hernandez Febles left Cuba in 1980 and was accepted by the United States (US) as a refugee because of his fear of persecution as a political dissent. In the US, Mr. Febles was twice convicted of assault with a deadly weapon. As a result of these convictions, he was subject to removal from the US after serving his sentences. Consequently, Mr. Febles entered Canada in October 2008 and claimed refugee status. During an interview with Canada Border Services Agency, he revealed his past criminal convictions. He was therefore referred to the Immigration and Refugee Board (IRB) for an inadmissibility hearing. He was found inadmissible because he had been convicted of an offense outside of Canada for which he could have been sentenced to a maximum of at least 10 years imprisonment if it had been committed in Canada.[2]
b) Febles v Canada (MCI): Relevant Law
Section 36(1) (b) of the Immigration and Refugee Protection Act (IRPA) applies to non-nationals and describes the circumstances in which they are inadmissible to Canada because of criminal convictions.[3] However, s. 36(3) (c) provides that persons to whom s. 36(1) (b) applies are not inadmissible if, after the prescribed period (5 years), they satisfy the Minister of Citizenship and Immigration that they have been rehabilitated.[4] Additionally, s. 98 of IRPA incorporates Article 1F (b) of the United Nations Convention relating to the Status of Refugees into Canadian legislation. Article 1F (b) provides that the Refugee Convention shall not apply to any person who has committed “a serious non-political crime outside of the country of refugee prior to his admission to that country as a refugee.”[5]
c) Interpreting Article 1F (b)
Febles argues that the purposes of Article 1F (b) are to prevent ordinary criminals from escaping local criminal justice by acquiring refugee status and to protect the public from dangerous convicted criminals. He claims that because he has served his sentences his is rehabilitated and that he does not pose a danger to Canadian society.[6] Alternatively, the Federal Court of Appeal held that “the seriousness of a crime is to be assessed as of the time of its commission; its seriousness does not change over time, depending on whether the claimant is subsequently rehabilitated and ceases to pose a danger to the public.”[7]
Febles also disagrees with the Court’s interpretation of how to apply Article 1F (b). While Febles argues that Article 1F (b) should primarily apply to refugee claims by fugitives from justice in another country, the Federal Court of Appeal points to the broad language of Article 1F (b) and states that when “Parliament has not expressly limited the application of the Article…Courts should normally avoid an interpretation of legislation that requires words to be read into it.”
The Court further pointed to recent case law from the European Court of Justice, which held that Article 1F (b) “does not require that a refugee claimant with a serious criminal conviction must also pose a present danger to the receiving state.”[8] It said that international law should be interpreted as uniformly as possible.
Finally, the Court found that there is “no inconsistency between a broad interpretation of Article 1F (b) and other provisions in IRPA dealing with criminality.”[9] It concluded that if Parliament intended to make rehabilitation relevant it would have done so.
d) Does Rehabilitation Influence the Meaning of ‘Serious’?
This case further hinges on two different interpretations of Jayasekara v Canada (Minister of Citizenship and Immigration), 2008 FCA 404, which is currently the leading case law in this area. In Jayasekara, Létourneau JA held that:
the seriousness of a crime, requires an evaluation of the elements of the crime, the mode of prosecution, the penalty prescribed, the facts and the mitigating and aggravating circumstances underlying the conviction…the presumption [of seriousness] may be rebutted by reference to the above factors. There is no balancing, however, with factors extraneous to the facts and circumstances underlying the conviction.[10]
In Febles, the Federal Court of Appeal upheld Jayasekara and emphasized that “an argument that a crime may be regarded as less serious years after its commission because the claimant is rehabilitated…would seem inconsistent with [Jayasekara]. Rehabilitation is indisputably a factor ‘extraneous to the facts and circumstances underlying the conviction’.”[11] Alternatively, Febles argued that Jayasekara allows for the length or completion of a sentence to be considered under Article 1F (b), and, therefore, rehabilitation is a relevant factor.[12]
e) Conclusion
Granting leave to Febles provides the SCC with an opportunity to revisit the nexus between inadmissibility and criminality in IRPA. It also provides the SCC with an opportunity to comment on international law in this area. While the Federal Court of Appeal has commented on this area in Jayasekara as well as in previous cases, this is the first time that the SCC has directly addressed the issue of rehabilitation and serious criminality.
[1] Febles v Canada (Minister of Citizenship and Immigration), 2012 FCA 324, at para 74, [Febles].
[2] Ibid at para 8.
[3] Immigration and Refugee Protection Act, SC 2001, c27.
[4] Ibid.
[5] United Nations Convention relating to the Status of Refugees, 28 July 1951, UNTS vol 189 (entered into force 22 April 1954).
[6] Supra note 1 at para 3.
[7] Ibid at para 52.
[8] Ibid at para 58.
[9] Ibid at para 73.
[10] Jayasekara v Canada (Minster of Citizenship and Immigration), 2008 FCA 404, at para 44.
[11] Supra note 1 at para 31.
[12] Supra note 1 at para 32-33.
Refugee Appeal Division: Background and Standard of Review
The Refugee Appeal Division (RAD) came into force on December 15, 2012. The level of deference owed by the RAD to decisions from the Refugee Protection Division (RPD) is not yet clear. However, legislation and legal commentary tend to show that “while not a hearing de novo, the RAD would clearly not be expected to show the same level of deference mandated upon judicial review.”[1]
The RAD provides a new right of appeal for claims heard at the Refugee Protection Division (RPD). Under s. 110(1) “a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact, or of mixed law and fact, to the RAD against a decision of the RPD to allow or reject the person’s claim for refugee protection.”
i - Differences between the RAD and Judicial Review
The key differences between the RAD and the judicial review at the Federal Court are:
- Decisions can be appealed as a right; there is no requirement to obtain leave;
- Appeals to the RAD can be based on a question of fact or mixed fact and law, whereas judicial review is limited to errors of law;
- The RAD can substitute its own decision for a decision made by the RPD; whereas the Federal Court can only remit a case to be re-heard by the RPD; and
- Decisions of the RAD can be reviewed by the Federal Court, whereas there is no review of a decision from the Federal Court unless the judge certifies that the case raises a question of general importance.[2]
ii - Procedure of an Appeal at the RAD
Appeals to the RAD will be primarily paper-based, with oral hearings being the exception (s. 110(3)). Oral hearings will be held if there is documentary evidence that
a) raises a serious issue with respect to the credibility;
b) is central to the decision with respect to the refugee protection claim; and
c) if accepted, would justify allowing or rejecting the refugee protection claim.
The Minister is not subject to these restrictions. However, if the Minister files new evidence the subject of the appeal may respond.[3] The language regarding oral hearings at the RAD is permissive. There is no obligation for the RAD to hold an oral hearing (s. 110(6)).
An appellant has 15 days to file the notice of appeal from the date of the written decision. The perfected appeal must be submitted within 30 days (s. 159.91(1) and (2)). These timelines will likely limit what new evidence can be accepted.[4]
The information required for an appeal is similar to the information required for a judicial review leave application. Therefore, if the appellant’s written submissions do not contain an arguable case, the RAD will likely dismiss it (Bains v Canada (Minister of Employment and Immigration), [1993] 20 Imm LR (2d) 296, 63 FTR 312, 40 ACWS (3d) 657 (FC)).
Most decisions will be made by a single member, unless the Chairperson of the Immigration and Refugee Board (IRB) thinks that a 3 member panel is necessary (s.163).
iii - Powers of the RAD
After considering an appeal, the RAD may make one of 3 decisions (s. 111(1). It can:
a) confirm the determination of the RPD;
b) set aside the determination and substitute a determination that, in its opinion, should have been made; or
c) refer the matter to the RPD for re-determination, giving the directions to the RPD that it considers appropriate.
S. 111(2) discourages referrals back to the RPD.
iv - Deference of RAD to RPD Decisions
There is debate about the level of deference owed by the RAD to RPD decision-makers.
The RAD has a broad power. It can substitute its own findings for those of the RPD and consider appeals on questions of fact, law, and mixed fact and law. However, legislation has also constrained a RAD member’s ability to admit new evidence or to hold oral hearings.
The Immigration Appeal Division (IAD) has de novo jurisdiction in reviewing decisions. There are key differences between the IAD and the RAD. At the IAD, there are no restrictions on new evidence and oral hearings. The admissibility of new evidence may provide the line in determining how much deference is owed to RPD decisions. If no new evidence is brought at the RAD, the credibility findings of the RPD are likely to be shown deference, because the RPD decision-maker saw the claimant first-hand. However, because oral hearings at the RAD will likely deal with issues of credibility, it is arguable that no deference should be given to the findings of the first decision-maker as the RAD member can see the claimant first-hand.
Three other factors suggest that less deference should be owed to the RPD. These are:
- In relation to the RAD the RPD is not a specialized tribunal;
- The appeal to the RAD is a full appeal; it is not limited to only issues of law; and
- RAD has the broad power of being able to substitute its own findings for that of the RPD, suggesting that it has the ability and expertise to determine the same questions that are before the RPD.[5]
The standard of review at the RAD therefore appears to sometimes lean towards a standard of correctness, where the court can substitute its own view.
v - Deference of Federal Court to RAD Decisions
Assuming that the RAD is staffed by highly qualified decision-makers, it is likely that Federal Court judges will accord greater deference to RAD decisions than it would give to past IRB decisions.
[1] Peter Edelmann, “Refugee Appeal Division” paper presented at: at the Continuing Legal Education Conference (Refugee Lawyers Groups: Vancouver, March 3, 2012) 10.
[2] “Impact of Legislative and Jurisprudential Developments: Appeal to New Refugee Appeal Division as a Right” Immigration and Refugee Legal Aid Cost Drivers (Department of Justice: Ottawa, April 30, 2013).
[3] Lobat Sadrehashemi and Jennifer Goodwin-Ellis, “The Refugee Appeal Division: An Unappealing Process” paper presented at the Continuing Legal Education Conference (Refugee Lawyers Groups: Vancouver, March 3, 2012) 12 [Sadrehashemi].
[4] Ibid.
[5] Ibid, 14.
Applying for Leave to Appeal (Timelines and Extensions)
Seeking leave to appeal asks the court permission to appeal. When appealing any matter to the Supreme Court of Canada (SCC) and when appealing most matters to a provincial court of appeal, the applicant must first seek leave. Because of the overwhelming number of leave applications, the courts can only hear a small number of cases that apply. At the SCC, only 10-20 percent of cases that apply for leave are heard.
It is important to consider timelines when seeking leave to appeal. At provincial courts of appeal, applicants must submit their application within 30 days of a decision being released at a lower court. For applications to the SCC, there is a 60 day requirement.[1]
If you apply for leave outside of these timelines, you must also apply for an extension of time. A reviewing panel of judges may grant an extension; however, there are several factors that it will first consider. These include:
- Whether the applicant formed a bona fide intention to seek leave to appeal and communicated that intention to the opposing party within the prescribed time;
- Whether counsel moved diligently;
- Whether a proper explanation for the delay has been offered;
- The extent of the delay;
- Whether granting or denying the extension of time will unduly prejudice one or the other of the parties; and
- The merits of the application for leave to appeal.[2]
Courts have traditionally adopted a generous approach towards granting extensions of time. However, “the ultimate question is always whether, in all the circumstances and considering the factors… the justice of the case requires that an extension of time be granted.”[3] The judge must consider balancing any potential prejudice that would result from a decision to grant or refuse the extension of time. He or she must also consider whether there is a serious issue to be appealed. The case must be arguable before the court.
Many court decisions have the potential to be successfully appealed and, in the ideal situation, all applications for leave would be submitted on time. The courts, however, recognize that some delays are warranted. That said, success when applying for leave to appeal will, arguably, be more difficult when the application is accompanied with an extension for time.
[1] Section 58(1)(a), Supreme Court Act, RSC, 1985, c S-26.
[2] R v Roberge, 2005 SCC 48, [2005] 2 SCR 469, para 6.
[3] Ibid.