Supreme Court


Criminal responsibility does not capture complicity by mere association

Applicant, financial attache with government of Democratic Republic of Congo (“DRC”), became leading Permanent Mission of DRC at United Nations, but resigned and fled to Canada, claiming DRC government corrupt and violent. Refugee Protection Division found applicant excluded from definition of “refugee” under art. 1F(a) of Refugee Convention on basis he was complicit in crimes against humanity committed by DRC government. Federal Court allowed application for judicial review, but certified question whether there is complicity by association in crimes against humanity. Federal Court of Appeal held that by remaining in position without protest and continuing to defend interests of government, despite being aware of crimes committed by government, senior official demonstrates personal and knowing participation and is complicit. Applicant’s appeal allowed and matter remitted to Immigration and Refugee Board for redetermination. Approach to art. 1F(a) of Refugee Convention must reflect overarching and clear human rights object and purpose, but Immigration and Refugee Protection Act (Can.), guards against abuses by denying refugee protection to international criminals. Two aims properly balanced by contribution-based test for complicity which requires voluntary, knowing and significant contribution to crime or criminal purpose of group. Applying international law, relevant both for elements of offences and potential modes of commission, individual criminal responsibility does not capture complicity by mere association or passive acquiescence, rather, link between individual and crime or criminal purpose required. Complicity based on intentionally or knowingly contributing to group’s crime or criminal purpose. With respect to joint criminal enterprise, significant contribution to group’s crime or criminal purpose, made with some subjective awareness, is required. Federal Court of Appeal endorsed overextended approach to complicity, one that captured complicity by association or passive acquiescence. To exclude claimant from “refugee”, there must be serious reasons for considering claimant voluntarily made significant and knowing contribution to organization’s crime or criminal purpose. Board will determine significant factors based on application, subject to unique evidentiary standard contained in art. 1F(a).

Ezokola c. Canada (Ministre de la Citoyenneté & de l›Immigration) (Jul. 19, 2013, S.C.C., McLachlin C.J.C., LeBel J., Fish J., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., and Wagner J., File No. 34470) Decision at 204 A.C.W.S. (3d) 143 was reversed.  229 A.C.W.S. (3d) 836.

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