Supreme Court clarifies rules on refugees and war crimes

The Supreme Court of Canada issued a ruling Friday that will change how immigration officials consider refugee cases that involve allegations of complicity in war crimes.

Case of Congo man sent back to immigration board for new decision

The Supreme Court of Canada is issuing a decision Friday that could affect how immigration officials determine if someone was complicit in war crimes. (Sean Kilpatrick/Canadian Press)

The Supreme Court of Canada issued a ruling Friday that clarifies the test that immigration officials should use when deciding if a refugee applicant was complicit in war crimes.

The unanimous decision found that guilt by association is not reason enough to deny someone refugee protection. 

It said in order to be excluded from protection the refugee applicant must "voluntarily make a knowing and significant contribution to the crime or criminal purpose of the group alleged to have committed the crime." It added the evidentiary burden falls on the Minister of Citizenship and Immigration.

The ruling means the case of Rachidi Ekanza Ezokola will go back to the Immigration and Refugee Board, with new guidance from the court on how the rules should be interpreted.

"Decision makers should not overextend the concept of complicity to capture individuals based on mere association or passive acquiescence," the ruling said. The court said that the test immigration officials use has at times been overextended and that Canada needs to "rearticulate" its approach to refugee law.

The case stems from a decision by the federal government to deny refugee status to Ezokola. He worked for the government of the Democratic Republic of Congo (DRC) for eight years, four of them as a prominent diplomat at the United Nations. 

Ezokola moved to Montreal in 2008 with his wife and eight children, alleging he had received death threats from Congolese intelligence agents. Canada's Immigration and Refugee Board denied Ezokola refugee status after finding him complicit by association in war crimes and crimes against humanity. 

In the years Ezokola served the DRC government, it was responsible for a number of atrocities including the massacre of civilians and recruitment of child soldiers. 

Ezokola appealed the ruling and won at Federal Court but then lost at the Federal Court of Appeal. 

He had an emotional response to the ruling Friday, according to his lawyer Annick Legault.

"I could hear the tears, the laughs," she said. "The family is definitely relieved."

Legault said the ruling means "that the minister is going to have to work harder on trying to exclude people and actually meet a burden that I think Canadians will accept as a burden." 

Ezokola says he faced threats

"To be labeled complicit in crimes against humanity is a very big label," she added.

In its factum filed with the Supreme Court, counsel for the minister of citizenship and immigration argued, "For several years, the appellant willingly represented his government on the international scene while heinous crimes were being committed by his own government in his country." 

"It is common ground that he was not credible when he stated he did not know about the crimes committed by his own government and that he dissociated himself from his government only when he felt his personal safety was in jeopardy," the factum said.

But lawyers for Ezokola argued there is no direct or indirect link between their client and his work and the crimes committed by DRC security forces. They presented evidence that members of the DRC intelligence service started to threaten Ezokola when they learned he did not support President Joseph Kabila and raised concerns about what was happening in his home country. 

Direct connection

Lorne Waldman, president of the Canadian Association of Refugee Lawyers, said before the ruling that Canada is out of line with other countries in how it interprets the United Nations convention that allows nations to deny refugee status to people who've committed war crimes. 

Waldman said jurisprudence in Canada has given a very expansive definition of when a person is responsible for war crimes and crimes against humanity. "The person can be found to have committed a war crime or crime against humanity under the immigration laws in Canada even if there's no direct link between him or her and any actual crime." 

No one from the Department of Citizenship and Immigration would comment on the case ahead of the ruling.  

The department was asked for reaction to the decision and directed questions to the public safety department. A spokeswoman for the minister said the government is reviewing the decision.

"We are committed to ensuring that Canada does not become a haven for war criminals who attempt to abuse our generous refugee system," Julie Carmichael said in an email. 

The Canadian Council for Refugees was pleased with the decision and said it brings Canada in line with international standards on when someone can be excluded from refugee protection.

"It will mean that refugees will no longer be excluded from protection based on simple suspicion of crimes or based on the criminal acts of a group they belong to, without them personally being guilty of any crime," the group said in a news release.