Supreme Court Case Analysis: Ezokola v. Canada Summary

Case Summary and Analysis Ezokola c. Canada (Ministre de la Citoyenneté & de l'Immigration). LAWS2809 Professor Zeina Bou-Zeid Cause of Action This case summary and analysis will be examining the Supreme Court of Canada case,

1 Ezokola c. Canada (Ministre de la Citoyenneté & de l'Immigration ) 1 . The appellant is Rachidi Ekanza Ezokola and the respondent is the Minister of Citizenship and Immigration as respondent. The intervenors are namely United Nations High Commissioner for Refugees, Amnesty International, Canadian Centre for International Justice, International Human Rights Program at the University of Toronto Faculty of Law, Canadian Council for Refugees, Canadian Civil Liberties Association and Canadian Association of Refugee Lawyers. Nature of the Claim The appellant, Exolola is seeksing an appeal and redetermination for exclusion of refugees by operation of art. 1F(a) of the Refugee Convention. Procedural History This case is an appeal from the Federal Court of Appeal which has remitted the matter to a different panel of the Board to apply the personal and knowing participation test to determine whether the appellant was an accomplice in the crimes committed by the Dominican Republic of Congo and should be excluded as a refugee. 2 Decision Type Supreme Court of Canada had a unanimous decision. 3 1 Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40. 2 Ezokola v. Canada (Citizenship and Immigration) 2011 FCA 224. 3 Supra note 1 at para 103. 4 Ibid at para 14.

2 Facts Ezokola, a former member of the Dominican Republic of Congo’s Government started as attaché in 2001, then served as a financial adviser to the Ministry of Human Rights, the Ministry of Foreign Affairs and International Cooperation as well as he led the Permanent Mission of the DRC in New York and spoke before the Security Council regarding natural resources and conflicts in the DRC. During his post, he was aware of the clandestine humanitarian crimes done by the government of Congo through his senior position. Ezokola states he thought of his government as corrupt which led him to resign in 2008. and apply for refugee status on the basis that Ezokola was being harassed by DRC’s intelligence service as they suspected he had involvement with Jean-Pierre Bemba, President Kabila’s rival. Since his resignation, he thus fled with his wife and six children, knowing that he would be labeled as a traitor. Ezokola hence seeks refuge in Canada. 4 Legal Issues ● Can senior public officials who work for a country that commits international crimes be excluded from the classification of "refugee"? ● Article 1F(a) of the 1951 Convention to be applied in a manner consistent with international refugee law  When does mere association become culpable complicity under art.1F(a)?

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4 Applicable Governing Rules and Important Precedent Cases ● Article 1F(a) of the United Nations Convention Relating to the Status of Refugees (“Refugee Convention”). ● Crimes Against Humanity and War Crimes Acts 2000.c.24. ● Criminal Code , R.S.C. 1985, c. C - 46, s. 21(2). ● Immigration and Refugee Protection Act, , S.C. 2001, c. 27, ss. 98. ● Ramirez v. Canada (Minister of Employment and Immigration) , [1992] 2 F.C. 306 ● Moreno v. Canada (Minister of Employment and Immigration) , [1994] 1 F.C. 298. Decision The case at hand concluded that the appeal would be allowed and to repeal the matter to the Refugee Protection Division of the Immigration and Refugee Board for redetermination. 4 Ratio Decidendi The court ruled that a person can be excluded from refugee protection if there are compelling grounds to believe that the person contributed knowingly and significantly to the act or the criminal intent of the group that is accused of committing the crime. Guilt by mere association alone does not exclude one from being granted refugee status by drawing to the conclusion they are culpable. Judicial Reasoning Whether the Immigration Board must rely on International Law to interpret Article 1F(a) of the Refugee Convention? 4 para 103. Ibid at

5 International criminal law is used to govern whether an individual should be denied refugee protection for complicity in international crimes and to determine whether there are serious reasons to believe that the individual has committed a crime. 5 In a lot of the cases, crimes are frequently committed indirectly and at a distance, international the Immigration Board must rely on International Law to interpret Article 1F(a) of the Refugee Convention to look beyond the bounds of Canadian criminal law but also to avoid interpreting and applying international criminal law too closely to domestic criminal law. 6 When examining the Refugee Convention's purpose and Article 1F(a), it has been emphasized that Canada must abide by judgment that is both fair to refugees while also circumventing refugees from exploiting it 7 In this case, International Law has as common purpose liability under art. 25(3)(d) of the Rome Statute 8 and joint criminal enterprise advanced in the ad hoc jurisprudence, which are most relevant to the complicity analysis. 9 Joint criminal enterprise is used as a measure of principal liability which captures individuals who could easily be considered secondary actors complicit in the crimes of others which under principal liability in its broadest form, does not capture individuals merely based on rank or association within an organization or an institution: Cassese’s International Criminal Law , at p. 163. 1. 10 5 Ibid at para 42. 6 Ibid at para 46. 7 Ibid at paras 36-59. 8 Rome Statute of the International Criminal Court , U.N. Doc. A/CONF.183/9, July 17, 1998, arts. 25, 28, 30, 31(1) (d). 9 Supra note 1 at para 52. 10 para 62.

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6 According to article 25(3)(d), involvement in a group's crime or criminal goal rather than rank within the organization or association with it constitutes complicity. A contribution must be intentional, “made with the aim of furthering the criminal activity or purpose of the group” or “in the knowledge of the intention of the group to commit the crime”, in which individuals who posses the mens rae required by the crime may be complicit irrespectively of their actus rea. 11 Thus, complicity under art.25(3)(d) involves intentionally or knowingly contributing to a group’s crime or criminal purpose. 11 Ibidpara 59. at Ibid at

7 14 Ibid at para 65. 15 Ibid at para 65. 16 Ibid para 65. 17 para 68. Ibid at

8 The refined Test The Supreme Court, in its effort to evaluate whether the requisite level of involvement exists for charges of international crimes, has refined the Canadian Test for Complicity. Specifically, the court has adapted the test to assist in determining whether an individual has willingly and knowingly contributed significantly to a crime or criminal purpose. This adaptation takes into account the unique factors of each case, creating a comprehensive spectrum that can effectively assess similar complex cases, particularly those involving a substantial contribution. Delving into the specifics of voluntary, significant, and knowing contributions, the court has further nuanced these criteria to better contextualize the threshold. The refined determinants include considerations such as the size and nature of the organization, the specific part of the organization most directly relevant to the refugee claimant, the duties and activities undertaken by the claimant within the organization, the claimant's position or rank, the duration of the claimant's association with the organization (especially after acquiring knowledge of the group's activities), and the method of recruitment along with the claimant's opportunities to leave the organization. These factors serve as a guide for reaching a conclusive and equitable decision in determining Ezokolas' complicity. Noting-up the Case According to Westlaw, the Ezokola case has been judicially “considered” two times in Rv Kanagasingam. The decision from Ezokola appears to have been mentioned twenty-nine times in secondary sources.

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9 According to QuickLaw, Ezokola’s case decision has received seven negative treatments by other cases. Canadian Doctors for Refugee Care v. Canada (Attorney General) has given the Ezokola case a neutral treatment.

10 Locating other cases The appellants, the Nemeth couple, arrived in Canada in 2001, seeking refuge from Hungary, claiming persecution due to their Romani minority status. Both the appellants and their children were granted refugee status, subsequently becoming permanent residents. However, two years later, Hungary issued an arrest warrant accusing the couple of theft amounting to around C$3000. The Minister of Justice then ordered the appellants' extradition to Hungary. Decisions in the Nemeth case highlighted several key points. The court brought to attention that the Minister applied incorrect legal principles by permitting the surrender, considering Nemeth's claim of being a refugee and having a limited perspective on Canada's non-refoulement duties. Instead of prioritizing refugees under s. 44(1)(b) whose extradition must be considered in the broader context of refugee protection, the Minister overly emphasized clause 44(1)(a) of the EA. Despite a previous determination that the Nemeth’s were refugees, the Minister set an arbitrary threshold for assessing whether they would face persecution upon return and placed the burden of proof on Nemeth. Generally, art. 44(1)(b) shields a refugee from being returned if doing so may result in harm, irrespective of its direct connection to prosecution or punishment. The Minister approached s.44(1)(b) unreasonably, a section most relevant to their surrender.

11 In the final decision, the Nemeth case allowed the appeal and remitted the matter to the Minister for reconsideration. Opinion based analysis: When does mere association become culpable complicity? I believe, in reshaping the Canadian Test for Complicity, the Supreme Court seems to be making a crucial effort to gauge whether individuals accused of international crimes have truly reached the required level of participation. The court's adjustment specifically aims to help discern whether an individual, of their own accord, has knowingly and significantly contributed to a crime or criminal purpose. This modification takes into consideration the distinctive factors in each case, creating a comprehensive framework that appears well-suited to handle complex situations, especially those involving substantial contributions. Taking a closer look at the nuances of voluntary, significant, and knowing contributions, the court has further refined these criteria to add depth to the assessment. The elaborated determinants encompass various aspects, such as the organization's size and nature, the specific part of the organization most pertinent to the refugee claimant, the claimant's duties and activities within the organization, their position or rank, the duration of their association with the organization (particularly after gaining knowledge of the group's activities), and the method of recruitment, coupled with the claimant's opportunities to exit the organization.

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12 These nuanced factors not only provide a more detailed context but also serve as a guide for the court in making a definitive and fair decision regarding Ezokolas' complicity. It appears that the court is striving for a more subjective and well-rounded evaluation, considering the intricacies of each case rather than relying on a one-size-fits-all approach.

Laws 2908 assignment 1 case brief

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