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. This is a significant shift from the previous test, which looked for “personal and knowing participation.” 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
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.” 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.” Its reasoning considers when mere association rises to culpable complicity.
In doing so, the SCC emphasized that “complicity arises by contribution.” 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.” 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.
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.
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.
 Ezokola v Canada (Minister of Citizenship and Immigration), 2013 SC 40 at para 92 [Ezokola].
 Ramirez v Canada (Minister of Employment and Immigration),  2 FC 306.
 Ezokola at para 11-14.
 Ibid at para 14
 Ibid at para 3.
 Ibid at para 7.
 Ibid at para 8.
 Supreme Court Advocacy Letter 44 (Ottawa: Supreme Court Advocacy LLP, July 19, 2013).