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Ezokola v Canada (Citizenship and Immigration), 2011 FCA 224 (Link)

Facts:

** E was appointed by MDC foreign Minister to UN position in the transitional gov't in 2004, until 2008
*** Was responsible for representing DRC at economic/financial and administrative/budgetary committees; at ECOSOC (where he attended conferences)
*** Was acting charge d’affaires at 2 points in 2007, and spoke before the UNSC in this capacity regarding natural resources and conflict in the DRC
** Claimed that in Kabila/Bemba election he was harassed and threatened because of his ethnicity and support of Bemba--- was visited by intelligence agents
*** Said his resignation letter would be treated as treason
** Fled to Canada in 2008 and claimed refugee status for him, wife and 8 kids
** Panel found him excluded by under s. 98 IRPA, which says not a refugee/protected person if are a person in art 4 E or F of Refugee Convention
*** Found that DRC gov't had committed crimes against humanity
*** Found E complicit in those crimes
** FC judicial review found that his association was not close enough and determined that just by virtue of being a civil servant in a gov't that commits crimes against humanity does not necessarily implicate the claimant

Issue(s):

1. For the purposes of exclusion pursuant to para 1Fa) of the Convention, can complicity by association in crimes against humanity be established by the fact that the refugee claimant was a senior public servant in a gov't that committed such crimes, along with the fact that the refugee claimant was aware of these crimes and remained in his position without denouncing them?

2. Is ‘personal knowledge and awareness’ or ‘personal knowledge and participation’ the correct test?

Ratio:

A senior official who remains in his/her position without protest and continuing to defend the interests of their gov't while being aware of the crimes committed by this gov't may demonstrate ‘personal knowledge and participation’ in these crimes and be complicit with the gov't in their commission.

Analysis:

FC judge was too narrow in applying the test of personal participation [para 57]
** not required to carry the crimes out personally, or facilitate them

According to FC jurisprudence remaining in one’s position while being fully cognizant of the crimes being committed by the gov't has not been ruled out as a sufficient basis for exclusion

The ‘personal participation’ required depends on the existence of a shared common purpose with the gov't --- *did not expand on what this means, probably because the concept is from criminal law: would you apply s.21(2) to determining common intent?*
** “In Sivakumar I, Linden J.A. not only reiterates the "personal and knowing participation" test established in Ramirez, but adds the following with respect to complicity by association (p. 442): ... association with a person or organization responsible for international crimes may constitute complicity if there is personal and knowing participation or toleration of the crimes... .”
** recognizes that complicity for the purposes of Article 1F(a) of the Convention is a broad concept that is not limited to physical participation in crimes or the exercise of effective control over their commission. [para 54]

Minister has onus to establish, on a standard of “serious reasons for considering” (i.e. less than balance of probabilities: Ramirez and Sivakumar 1), the participation of the claimant in the gov't’s crimes [para 71]

Holding:

Appeal by Minister allowed, decision sent back to Panel to determine if E was complicit in the crimes, using the ‘participation’ test


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