Chapter 11 - Article 1F

11.1. Introduction
1. 11.1.1. Standard of proof - Serious reasons to consider
2. 11.1.2. Balancing and complicity generally
11.2. Article 1F(a): crimes against peace, war crimes and crimes against humanity
1. 11.2.1. Crimes against peace
2. 11.2.2. War crimes
3. 11.2.3. Crimes against humanity
4. 11.2.4. Defences
  1. 11.2.4.1. Duress
  2. 11.2.4.2. Superior orders
  3. 11.2.4.3. Military necessity
  4. 11.2.4.4. Remorse
5. 11.2.5. Complicity
  1. 11.2.5.1. The test for complicity
  2. 11.2.5.2. Applying the test
6. 11.2.6. Responsibility of superiors
11.3. Article 1 F(b): Serious non-political crimes
1. 11.3.1. Generally
2. 11.3.2. No requirement for “equivalency”
3. 11.3.3. Determination of whether a crime is serious
4. 11.3.4. Determination of whether a crime is political
5. 11.3.5. Prior to admission
6. 11.3.6. "Serious reasons for Considering"
11.4. Article 1F(c): Acts contrary to the purposes and principles of the United Nations
11.5. Burden of proof and notice
11.6. Consideration of inclusion where claimant is excluded

11. Article 1F

11.1. Introduction

Section 98 of IRPA provides that a person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.

Article 1F, set out in the schedule to IRPA, reads as follows:

F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
he has been guilty of acts contrary to the purposes and principles of the United Nations.

11.1.1. Standard of proof - Serious reasons to consider

As noted in Ezokola,^{Footnote 1} exclusion determinations are not determinations of guilt and therefore are not based on proof beyond a reasonable doubt nor on the general civil standard of the balance of probabilities. Instead, the Supreme Court of Canada agreed with the British Courts that “serious reasons for considering imports a higher test for exclusion than would, say, an expression like “reasonable grounds for suspecting”. “Considering” approximates rather to “believing” than to “suspecting.”…. [The phrase] sets a standard above mere suspicion.” The jurisprudence of the Court clearly establishes that there is little, if any, practical difference between “serious reasons for considering” and “reasonable grounds to believe.”^{Footnote 2}

The applicability of the exclusion clause does not depend on whether a claimant has been charged or convicted of the acts set out in the Convention.^{Footnote 3}

In addition, the RPD is not bound by a decision of the Immigration Division (ID) to find the claimant not inadmissible nor the Minister’s opinion that the claimant should not be excluded. In Candelario,^{Footnote 4} the ID had found there was insufficient evidence to conclude the claimant was inadmissible for serious criminality. Later, the RPD found him excluded under Article 1F(b) on essentially the same facts for having committed a serious non-political crime. The Court upheld the decision, noting that the Minister’s counsel had proceeded with a much more complete cross-examination before the RPD which exposed a number of contradictions not raised before the ID. Similarly, in Abbas,^{Footnote 5} the Court upheld an RPD decision to exclude the claimant under Article 1F(b) despite the fact that the submissionsMinister’s representative submitted before the RPD that their burden was not met and that the claimant should not be excluded.

11.1.2. Balancing and Complicity generally

There is not only no requirement to balance the nature of the Article 1F crime with the degree of persecution feared,^{Footnote 6} but the Board errs if it does.^{Footnote 7}

The principles of complicity set explained below in section 11.2.5. are applicable to Article 1 F(a) and, although there is no jurisprudence directly on point, may be applicable to Article 1 F(b) and (c) as well.

11.2. Article 1F(a): Crimes Against Peace, War Crimes and Crimes Against Humanity

In order to define Article 1F(a) crimes, reference must be had to the international instruments^{Footnote 8} that deal with these crimes. The international instrument most frequently used to define these crimes is the Charter of the International Military Tribunal.^{Footnote 9} Article 1F(a) must also be interpreted so as to include the international instruments concluded since its adoption. This would include the Statute of the International Tribunal for Rwanda^{Footnote 10} and the Statute of the International Tribunal for the Former Yugoslavia^{Footnote 11} as well as the Rome Statute of the International Criminal Court (Rome Statute).^{Footnote 12} The Supreme Court of Canada in Ezokola^{Footnote 13} indicated that reference should be had not only to the International Criminal Court (ICC) but also to the growing body of jurisprudence of international ad hoc tribunals and national courts.

11.2.1. Crimes Against Peace

Since a crime against peace historically may only be committed in the context of an international war, there have been no Federal Court or Board decisions involving this aspect of the exclusion clause.

11.2.2. War Crimes

Numerous international instruments may be referred to when defining these crimes, including, besides the ones listed above, the Charter of the International Military Tribunal, the Geneva Conventions and the Additional Protocol. Note that “war crimes” are defined in Canadian legislation, namely the Crimes Against Humanity and War Crimes Act,^{Footnote 14} an Act which is the implementation into domestic law of the Rome Statue.

The Supreme Court of Canada in Finta^{Footnote 15} set out the requisite mens rea (mental state) and actus reus (physical element) of a war crime or a crime against humanity under section 7(3.71) of the Canadian Criminal Code.1F(a). In the more recent decision of the Supreme Court of Canada in Mugesera,^{Footnote 16} the Court said that “insofar as Finta suggested that discriminatory intent was required for all crimes against humanity…it should no longer be followed on this point.^{Footnote 17} Discriminatory intent is only required for crimes against humanity that take the form of persecution.

It is not clear whether this ruling in Mugesera applies to war crimes. There is no Federal Court case saying that persecution can be the underlying offence for a war crime, but if it is, there is no reason why the ruling would not apply.

A case that may be of assistance in interpreting what a war crime is and what its elements are is Munyaneza,^{Footnote 18} a decision of the Quebec Court of Appeal considering an appeal from a conviction for war crimes committed in Rwanda. The Court explained:

[188] To prove^{Footnote 19} that a war crime has been committed, in addition to the material and mental elements of the underlying offence, the following contextual elements must be established:
an armed conflict, whether international or not;
offences committed against persons who did not take part or who had ceased to take part in the armed conflict, or in other words, protected persons;
a nexus between the offences committed and the armed conflict; and
the accused's knowledge of this nexus.

In Kamazi,^{Footnote 20} the Federal Court noted that the recruitment of child soldiers is a war crime and upheld the decision of the RPD to exclude the claimant who had acted as an intelligence agent for the AFDL in the Democratic Republic of Congo, at a time when the AFDL was recruiting child soldiers.

11.2.3. Crimes Against Humanity

Crimes against humanity may be committed during a war - civil or international - as well as in times of peace. Crimes against humanity are defined in the Rome Statute as:

Murder;
Extermination;
Enslavement;
Deportation or forcible transfer of population;
Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
Torture;
Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
Enforced disappearance of persons;
The crime of apartheid;
Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. ^{Footnote 21}

Additionally, the crime in question, in order to rise to the level of a crime against humanity, must be committed in a "widespread systematic fashion".^{Footnote 22}

When “barbarous cruelty” is an additional component of kidnapping, unlawful confinement, robbery and manslaughter, such offences can raise to the level of crimes against humanity.^{Footnote 23}

The Supreme Court of Canada, in Mugesera,^{Footnote 24} found that a criminal act rises to the level of a crime against humanity when the following four elements are made out:

An enumerated proscribed act was committed (this involves showing that the accused committed the criminal act and had the requisite guilty state of mind for the underlying act);
The act was committed as part of a widespread or systematic attack;
The attack was directed against any civilian population or any identifiable group of persons; and
The person committing the proscribed act knew of the attack and knew or took the risk that his or her act comprised a part of that attack.

The Supreme Court of Canada found that the criminal act of "persecution" could be one of the underlying acts, which, in appropriate circumstances, may constitute a crime against humanity. Persecution as a crime against humanity must constitute a gross or blatant denial on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law. As far as the requisite mental element for persecution, the Court determined that a person must have intended to commit the persecutory acts and must have committed them with discriminatory intent. The requirement for discriminatory intent applies only to the criminal act of persecution and is not a requirement with respect to other forms of crimes against humanity, like murder.^{Footnote 25}

A single act may constitute a crime against humanity as long as the attack it forms a part of is widespread or systematic and is directed against a civilian population. The Court noted at paragraph 164 that "the existence of a widespread or systematic attack helps to ensure that purely personal crimes do not fall within the scope of provisions regarding crimes against humanity."^{Footnote 26}

Also, the civilian population must be the primary object of the attack and not merely a collateral victim of it. The term population suggests that the attack is directed against a relatively large group of people who share distinctive features and therefore identifies them as targets of the attack.^{Footnote 27} As regards the requisite mental element of a crime against humanity, the Supreme Court of Canada found the following:

…the person committing the act need only be cognizant of the link between his or her act and the attack. The person need not intend that the act be directed against the targeted population, and motive is irrelevant once knowledge of the attack has been established together with knowledge that the act forms a part of the attack or with recklessness in this regard…Even if the person's motive is purely personal, the act may be a crime against humanity if the relevant knowledge is made out.^{Footnote 28}

The perpetrator of a crime against humanity may be an individual acting independently of a State, especially those involved in paramilitary or armed revolutionary movements, or a person acting in conjunction with the authorities of a State.^{Footnote 29}

It is crucial that the Board, in making a decision to exclude under Article 1F(a), provide findings of fact as to specific crimes against humanity which the claimant is alleged to have committed. The Board should make findings as to: acts committed by the immediate perpetrators; the claimant’s knowledge of the acts; his or her sharing in the purpose of the acts; and whether the acts constituted crimes against humanity.

The Federal Court has provided various examples of the kind of acts that may or may not constitute crimes against humanity:

In Cibaric,^{Footnote 30} the Court found that the claimant's participation in certain actions during the war in the former Yugoslavia were reasonably characterized by the Refugee Division as crimes against humanity and as actions which were a regular part of the army's operation.
In Sungu,^{Footnote 31} the Court affirmed that Mobutu's regime was engaged in torture and had committed international crimes, namely crimes against humanity.
In Yang,^{Footnote 32} the Court found that participation in the implementation of China's one-child policy which included forced sterilization and forced abortion constituted crimes against humanity.
In Tilus,^{Footnote 33} the Court found that although the RPD did not specify which part of section 1F was at issue, it was clear from the record that it was crimes against humanity that was considered. The Court held that international trafficking in drugs, although heinous, is not a crime against humanity.

The need to make finding of facts about what acts are being considered as possible crimes against humanity has been underscored in decisions of the Court that have set aside exclusion determination because the Board did not specify the crimes. For example:

In Baqri,^{Footnote 34} the Court set aside the exclusion decision of the CRDD because the panel had not stated what specific crimes the claimant was complicit in and had not questioned him about the specific crimes.
In Muto,^{Footnote 35} the Court held that a description of the acts committed by the organization is essential to determine the degree of participation or complicity of an individual in those acts.

11.2.4. Defences

There may be circumstances where a claimant will invoke successfully certain defences which absolve them from criminal responsibility and thus they will not be excluded from refugee status, despite the claimant's commission of a war crime or crime against humanity.

11.2.4.1. Duress^{Footnote 36}

The defence of duress may be used to justify participation in certain offences providing:^{Footnote 37}

the perpetrator was in danger of explicit or implicit imminent harm;^{Footnote 38}
the perpetrator reasonably believes that the threat will be carried out;
there is no safe avenue of escape;
there is a close temporal connection between the threat and the harm threatened, the evil threatened them was on balance, greater than or equal to the evil which they inflicted on the victim;^{Footnote 39}
the perpetrator is not a party to a conspiracy or association whereby they are subject to compulsion and actually knew that the threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association; and they were not responsible for their own predicament.^{Footnote 40}

The law, however, does not function at the level of heroism and does not require a person to desert or disobey an order at the risk of his life.^{Footnote 41}

In one case the Court held that if the Board had found the claimant credible, it should have considered the issue of duress before finding that the claimant was guilty of a crime against humanity. The claimant had alleged that he had become a prisoner of the Shining Path and had been forced to remain with them and participate in acts of kidnapping.^{Footnote 42} In another case the Federal Court found that the Board made no error when it determined, regarding the element of proportionality, that the harm inflicted on innocent Tamils identified by the claimant was in excess of that which would have been directed at the claimant.^{Footnote 43}

11.2.4.2. Superior Orders

A claimant may raise the defence that they were ordered to commit the offence by their military superior and that under military law, such orders must be obeyed. The Supreme Court of Canada in Finta, citing numerous international law decisions, held that this defence will not be successful if the military order was “manifestly unlawful” or “patently and obviously wrong”, in other words, if it “offends the conscience of every reasonable, right thinking person”.^{Footnote 44}

In Betoukoumesou,^{Footnote 45} the Court, relying on Finta, found that the officer did not err in concluding that the defence of superior orders was not available to the applicant. The defence is not available where the orders are manifestly unlawful and the person has a moral choice as to whether to follow the orders.

Section 14 of the Crimes Against Humanity and War Crimes Act excludes the defence of superior orders unless the accused was under a legal obligation to obey the orders, did not know that the order was unlawful and the order was not manifestly unlawful. Under section 14(2) orders to commit crimes against humanity are manifestly unlawful.

If this defence is raised in conjunction with the defence of duress, in that the claimant feared punishment if they disobeyed the order, then the principles relating to the defence of duress would apply.

11.2.4.3. Military Necessity

A claimant may raise the defence that the military action carried out was justified by the general circumstances of battle. However, if the deaths of innocent civilians are as a result of intentional, deliberate and unjustified acts of killing, such acts may constitute war crimes or crimes against humanity.^{Footnote 46}

11.2.4.4. Remorse

Remorse is immaterial in determining the culpability of a perpetrator of a war crime or a crime against humanity and is therefore not a defence to the commission of a crime.^{Footnote 47}

11.2.5. Complicity

Where a claimant has not in a "physical" sense committed a crime, but has aided, instigated or counselled a perpetrator in the commission of a war crime or crime against humanity, they may, as an accomplice, be held responsible for the crime and thus subject to being excluded from refugee protection. An accomplice is as culpable as the principal perpetrator.^{Footnote 48}

11.2.5.1. The test for complicity

The Supreme Court of Canada dealt extensively with the issue of complicity in the context of Article 1 F(a) in the Ezokola^{Footnote 49} case. The Court overturned the longstanding test of “personal and knowing participation” (sometimes overextended to exclude on the basis of complicity by association) set out in earlier jurisprudence and also discarded the presumption of culpability associated with membership in an organization with a limited and brutal purpose.^{Footnote 50} The Court explained that “individuals may be complicit in crimes without possessing the mens rea required by the crime itself.” The relevant factor is knowledge (of the group’s criminal purpose) rather than intent.

The Court ruled that the test expressed in the phrase “serious reasons for considering” does not justify a relaxed application of fundamental criminal law principles in order to make room for complicity by association.

The test for complicity was reformulated in Ezokolabased on the modes of commission recognized under current international law, namely “common purpose liability” (Article 25 of the Rome Statute) and “joint criminal enterprise” (ad hoc jurisprudence) to include three components of contribution. The Court adopts a “significant contribution test”:

To exclude a claimant from the definition of "refugee" by virtue of art. 1F(a), there must be serious reasons for considering that the claimant has voluntarily made a significant and knowing contribution to the organization's crime or criminal purpose. [emphasis added]

The first component is “voluntary contribution” and the factors to consider include:

whether the claimant had no realistic choice but to participate in the crime,
the method of recruitment and any opportunity to leave the organization,
whether a defence (e.g. duress) is applicable^{Footnote 51}

The second component is “significant contribution” and the factors to consider include:

the nature of the association, i.e., mere association or passive acquiescence will not suffice,
the nature of the activities in question, i.e., the contribution does not have to be directed to specific identifiable crimes but can be directed to wider concepts of common design, such as the accomplishment of an organization’s purpose,
the degree of contribution (i.e., it must be significant)^{Footnote 52}

The third component is “knowing contribution” (there must be link between the person’s conduct and the criminal conduct of the group). The elements to consider include:

The claimant’s awareness (intent, knowledge or recklessness^{Footnote 53}) of the group’s crime or criminal purpose,
The claimant’s awareness that his or her conduct will assist in the furtherance of the crime or criminal purpose.^{Footnote 54}

11.2.5.2. Applying the test

When determining whether a person’s conduct meets the actus reus and mens rea for complicity, the following list of non-exhaustive factors will serve as a guide in assessing whether the person has voluntarily made a significant and knowing contribution to a crime or criminal purpose:

the size and nature of the organization;
the part of the organization with which the refugee claimant was most directly concerned;
the refugee claimant's duties and activities within the organization;
the refugee claimant's position or rank in the organization;
the length of time the refugee claimant was in the organization, particularly after acquiring knowledge of the group's crime or criminal purpose; and
the method by which the refugee claimant was recruited and the refugee claimant's opportunity to leave the organization.^{Footnote 55}
any viable defences (for example, duress).

The Court emphasizes that the analysis of the factors is highly contextual and that the weighing of the factors has one key purpose in mind: to determine whether there was a voluntary, significant, and knowing contribution to a crime or criminal purpose.^{Footnote 56} The factors are intended for guidance and not all of them will be relevant in every case.^{Footnote 57}

A good illustration of the weighing of the factors is in Sarwary,^{Footnote 58} where the Court upheld a RAD decision in which the RAD had excluded the applicant for being complicit in crimes against humanity committed by the Afghan National Police Force (widespread torture in the prison system where the applicant worked). One of the arguments raised by the claimant was that the RAD put too much emphasis on the nature of the organisation rather than the claimant’s role in it, therefore making the error of finding the claimant complicit by association. The RAD had found that although the prison system had a legitimate purpose, criminal activity was prevalent, thereby increasing the likelihood that the claimant knew about the crimes and contributed to them. The Court found this analysis was in conformity with the principles set out in Ezokola. Although this factor alone does not provide reasonable grounds to believe the applicant was complicit in crimes against humanity, it contributes to the conclusion in combination with other factors, such as the length of time he remained in the organisation (24 years), his rank (promoted throughout career to a fairly high rank), as well as his duties and activities (responsible for processing paper work to ensure prisoners accounted for, questioned prisoners, trained new policemen, transferred prisoners, and lead three departments including a considerable staff).^{Footnote 59}

11.2.6. Responsibility of Superiors

In Sivakumar, the Court of Appeal held that "a commander may be responsible for international crimes committed by those under his command, but only if there is knowledge or reason to know about them."^{Footnote 60} In addition,

the closer one is to being a leader rather than an ordinary member, the more likely it is that an inference will be drawn that one knew of the crime and shared the organization's purpose in committing that crime.^{Footnote 61}

In Ezokola,^{Footnote 62} the Supreme Court of Canada re-affirmed the principle that individuals may have, by virtue of their position or rank, effective control over those directly responsible for criminal acts and may be criminally responsible for those crimes (as contemplated by Article 28 of the Rome Statute, which deals with the responsibility of commanders and other superiors).

In Mohammad,^{Footnote 63} the Court held that the claimant was complicit in Article 1F(a) crimes since, as prison director, he knew or should have known of the crimes committed against prisoners. However, in Gonzalez,^{Footnote 64} the Court did not agree that the claimant, who had worked for the Mexican army as an infiltrator, was complicit in crimes against humanity. The Court affirmed the principle in Sivakumar that the more important an individual's position in the organization, the more his or her complicity is likely. But in this case, although from his title it seemed that he held an important position (chief petty officer, naval infantry, special operations services), in fact, he did not occupy a decision-making management position. Simply belonging to an organization that is responsible for crimes against humanity is not sufficient, in and of itself, to constitute complicity.

11.3. Article 1 F(b): serious non-political crimes

11.3.1. Generally

Exclusion under Article 1F(b) is not restricted to fugitives of justice or punishment.^{Footnote 65} The laying of charges, the entering of a conviction, or an extradition request are not pre-requisites to the application of the exclusion clause.^{Footnote 66} As well, the completion of an imposed sentence, the current lack of dangerousness or post-crime expiation or rehabilitation are not bars to exclusion.^{Footnote 67} The fact that the Minister refused to give a danger opinion at the eligibility stage is immaterial at the exclusion stage.^{Footnote 68}

The RPD is entitled to go behind the record of conviction or a warrant, to consider whether there was evidence that the claimant had actually committed a serious, non-political crime, where there is evidence of a corrupt judiciary or lack of due process.^{Footnote 69}

11.3.2. No requirement for “equivalency”

In analyzing the question of exclusion under Article 1F(b), one should not look at equivalency, but rather the role of domestic law in determining what is “serious”.^{Footnote 70} The focus is on whether the acts could be considered crimes under Canadian law, i.e., the RPD must apply the facts in the crime to Canadian criminal law.^{Footnote 71}

The test for equivalency developed for the purposes of inadmissibility determinations under s. 36 of IRPA is not required for an exclusion determination under s. 98 if IRPA.^{Footnote 72} The RPD is not required to set out and determine all of the specifics or elements of the crime committed.^{Footnote 73} It is not necessary for the RPD to look for equivalent criminal provisions to those of the foreign offence and to ensure that every element of the alleged offence be identified and particularized.^{Footnote 74}

In Jayasekara,^{Footnote 75} the Federal Court of Appeal did not impose a requirement of double criminality (i.e., that the crime should be a crime both in Canada and where it was committed); rather the gravity of a crime must be judged against international standards. That approach appears to be consistent with the Supreme Court’s dictum in Febles that Article 1F(b) does not operate so as to exclude only fugitives from justice. For example, honour killing may not be punishable in some jurisdictions, but it would offend international standards and is considered a crime in most countries.^{Footnote 76}

11.3.3. Determination of whether a crime is serious

In Jayasekara,^{Footnote 77} the Federal Court of Appeal stated that when determining whether a crime committed is "serious" in the context of Article 1F(b), there must be an evaluation of the following factors: ^{Footnote 78}

elements of the crime,
the mode of prosecution,
the penalty prescribed,
the facts, and
the mitigating and aggravating circumstances underlying the conviction.

In Febles,^{Footnote 79} the SCC added “sentencing range” as an additional consideration when determining whether a crime committed is “serious”. This requires consideration of the Canadian sentencing range for the crime committed. In some cases where the person was not actually sentenced but where there is evidence on record establishing the sentence that would likely have been imposed in Canada, it is necessary to consider where this sentence may fall within the sentencing spectrum.

In Rojas Camacho,^{Footnote 80} the Court noted that the fifth factor in Jayasekara does not implicitly call for a balancing of the mitigating and aggravating circumstances since the conviction. It is not enough for an applicant to say he now regrets his behaviour and has turned his life around if his behaviour at the time the crime was committed constituted a serious non-political crime. With respect to other post-offence factors such as parole violations, there appears to be conflicting jurisprudence. In Valdespino,^{Footnote 81} the Court held that the RPD had improperly considered such conduct, but in Chernikov,^{Footnote 82} the Court held the opposite.

In Pullido Diaz,^{Footnote 83} the Court held that the RPD had erred with respect to its consideration of contextual matters. The Court noted that Jayasekara specifically rejected inclusion of personal circumstances in the serious crime analysis. Factors such as age, economic condition or tragedy may have been relevant to sentencing in the U.S. but they do not address the seriousness of the offence itself. In Narkaj,^{Footnote 84} the Court appears to have adopted a different approach as it faulted the RPD for not considering mitigating factors such as the claimant’s youth, his lack of criminal record, his limited involvement in the crimes, the absence of violence, the absence of any use of alcohol, drugs, or paraphernalia, and his guilty plea. In Hasani,^{Footnote 85} the Court finds that treating the absence of remorse and the failure to accept responsibility as aggravating factors (as opposed to the absence of mitigating factors) is a fundamental error in principle.

Psychological harm to victims can be relied on in assessing the essential elements of the crime.^{Footnote 86} The repeated nature of the offence can be reasonably considered an aggravating factor, especially when taken together with the prior conviction for the same crime.^{Footnote 87}

Jayasekara provided further guidance as to various mitigating and aggravating circumstances that may be considered when determining whether the crime was “serious.” The Court said that “a constraint short of the criminal law defence of duress^{Footnote 88} may be a relevant mitigating factor in assessing the seriousness of the crime committed. The harm caused to the victim or society, the use of a weapon, the fact that the crime is committed by an organized criminal group, etc. would also be relevant factors to be considered.”^{Footnote 89}

The Court also noted that “Canada, like Great Britain and the United States, has a fair number of hybrid offences, that is to say offences which, depending on the mitigating or aggravating circumstances surrounding their commission, can be prosecuted either summarily or more severely as an indictable offence. In countries where such a choice is possible, the choice of the mode of prosecution is relevant to the assessment of the seriousness of a crime if there is a substantial difference between the penalty prescribed for a summary conviction offence and that provided for an indictable offence.”^{Footnote 90}

As to whether the seriousness of the crime may be measured by reference to the nature of punishment prescribed in the Criminal Code of Canada, the Court said that “while regard should be had to international standards, the perspective of the receiving state or nation cannot be ignored in determining the seriousness of the crime.”^{Footnote 91} Thus the Court noted that there is a strong indication in IRPA that Canada, as a receiving state, considers crimes for which an offence may be punishable by a maximum term of at least 10 years to be a “serious” crime.^{Footnote 92} However, the Court did not state that only crimes for which a sentence of 10 years or more could have been imposed is a “serious” crime in the context of this exclusion clause and therefore regard should be had to the factors already identified when determining the “seriousness” of a particular crime committed. Also, the Court noted that “whatever presumption of seriousness may attach to a crime internationally or under the legislation of the receiving state, the presumption may be rebutted by reference to the above factors”.^{Footnote 93} The SCC in Febles agreed that the ten-year or more yardstick is a good indication of the seriousness of the crime and creates a rebuttable presumption. However, the Court went on to note that:

…the ten-year rule should not be applied in a mechanistic, decontextualized, or unjust manner.^{Footnote 94}

In Hersy,^{Footnote 95} in the context of an application to vacate based on Article 1F(b), the RPD put no weight on an expert opinion letter filed by the respondent (protected person) in which the expert stated that the crime the respondent allegedly committed in the United States would have likely attracted a sentence of between six months and two years if committed in Canada. The RPD found that the expert had not stated on what facts he based his opinion and the cases cited in the opinion letter were distinguishable. The Court quashed the decision, finding that the RPD placed itself in the position of an expert on criminal law who had found that the cases cited by the expert were distinguishable, without citing any evidence to the contrary. In addition, the Court also stated that the Board was wrong to reject the evidence that the United States had decided not to seek the respondent’s extradition. A country that observes the rule of law does not fail to prosecute serious crimes when it has the opportunity to do so and this evidence should have been weighed.

In Sanchez,^{Footnote 96} the Federal Court of Appeal ruled that if a change to the penalty for the Canadian equivalent offence has occurred, the assessment should be done at the time when the RPD is determining the issue of the Article 1F(b) exclusion, not the time when the offence was committed.

In the much earlier case of Brzezinski,^{Footnote 97} the Court considered what is meant by "serious crime" within the context of Article 1F(b). In this case the claimants acknowledged that they supported their family by stealing, namely shoplifting, both before and after coming to Canada. While the convictions in Canada are not relevant as they were not committed "outside the country of refuge", the Court, after a review of the travaux preparatoires, held that the intention of the Convention was not to exclude persons who committed minor crimes, even "an accumulation of petty crimes." Thus, while shoplifting was recognized by the Court as being a serious social problem, it was not a "serious" crime within the meaning of Article 1 F(b), despite evidence of the claimant's recidivism. The Court certified two questions involving the concept of habitual involvement in crimes but the appeal was not pursued.

In Xie,^{Footnote 98} the Federal Court of Appeal upheld the finding of the Federal Court, and concluded that a claimant can be excluded from refugee protection by the RPD for a purely economic offence.

International kidnapping of a child may constitute a serious non-political crime,^{Footnote 99} but the Board should assess whether the presumption of seriousness has been rebutted.^{Footnote 100}

A misdemeanor probably lacks the requisite seriousness to be considered under Article 1F(b).^{Footnote 101} However, in Radi, the Court upheld a finding of exclusion in a case where the claimant was convicted for the misdemeanor of being a disorderly person – equivalent to a summary conviction offence in Canada. Based on the police report, the Board was of the opinion that he could have been accused and possibility found guilty of assault causing bodily harm to his common-law partner in Canada. The Court found that the RPD reasonably turned its attention to the factors referred to in Jayasekara. In considering the police report and statement of the complainant, the Board examined the factual basis underlying the conviction.^{Footnote 102}

11.3.4. Determination of whether a crime is political

In Gil, the Court of Appeal held that in order for a crime to be characterized as political, and thus to fall outside the ambit of Article 1F(b), it must meet a two-pronged "incidence" test which requires first, the existence of a political disturbance related to a struggle to modify or abolish either a government or a government policy; and second, a rational nexus between the crime committed and the potential accomplishment of the political objective sought.^{Footnote 103}

The Court of Appeal considered and rejected the notion of balancing the seriousness of the persecution the claimant is likely to suffer against the gravity of the crime he committed.^{Footnote 104}

One final point. Another panel of this Court has already rejected the suggestion made by a number of authors that paragraph 1F(a) requires a kind of proportionality test which would weigh the persecution likely to be suffered by the refugee claimant against the gravity of this crime. Whether or not such a test may be appropriate for paragraph 1F(b) seems to me to be even more problematical. As I have already indicated, the claimant to whom the exclusion clause applies is ex hypothesi in danger of persecution; the crime which he has committed is by definition "serious" and will therefore carry with it a heavy penalty which at a minimum will entail a lengthy term of imprisonment and may well include death. This country is apparently prepared to extradite criminals to face the death penalty and, at least for a crime of the nature of that which the [claimant] has admitted committing, I can see no reason why we should take any different attitude to a refugee claimant. It is not in the public interest that this country should become a safe haven for mass bombers.^{Footnote 105} (footnotes omitted)

Instead, the Court noted that proportionality is a factor in the characterization of a crime. The gravity of the crime committed to effect change must be commensurate with the degree of repressiveness of the government in question for the crime to be considered a political one.

Where it is appropriate to use a proportionality test under Article 1F(b) is in the weighing of the gravity of the crime as part of the process of determining if we should brand it as "political". A very serious crime, such as murder, may be accepted as political if the regime against which it is committed is repressive and offers no scope for freedom of expression and the peaceful change of government or government policy. Under such a regime the claimant might be found to have had no other option to bring about political change. On the other hand, if the regime is a liberal democracy with constitutional guarantees of free speech and expression (assuming that such a regime could ever produce a genuine refugee) it is very difficult to think of any crime, let alone a serious one, which we would consider to be acceptable method of political action. To put the matter in concrete terms, the plotters against Hitler might have been able to claim refugee status; the assassin of John F. Kennedy could never do so.^{Footnote 106}

11.3.5. Prior to admission

The words prior to his "admission to that country as a refugee" in article 1F(b) refer to the admission into Canada of a person intending to claim recognition as a Convention refugee.^{Footnote 107}

11.3.6. "Serious Reasons for Considering"

The existence of a valid warrant issued by a foreign country,^{Footnote 108} in the absence of allegations that the charges are trumped up, may satisfy the standard of proof in Article 1F(b), namely “serious reasons for considering.”^{Note 109} In Hashi, the Court found that the RPD did not unreasonably rely on police and probation reports as establishing allegations of fact where they contradict the applicant’s implausible testimony.^{Note 110} Further, in Gurajena^{Footnote 111} the Court noted that while in some cases, proof of a valid warrant may constitute “serious reasons for considering” that the claimant committed a serious non-political crime, where evidence of a warrant is the sole evidence relied upon by the RPD, the panel must go further and determine whether the claimant is credible if the claimant alleges that the charges referred to in the warrant are fabricated. If a claimant alleges that the charges against him were fabricated, the RPD must first determine the credibility of the allegations before relying on the warrant as a basis for Article 1F(b).^{Footnote 112} In addition, if a claimant alleges a serious flaw in the judicial process in the country where he faced prosecution, the RPD must consider whether the lack of due process had an impact on the clai;mant’s convictions.^{Footnote 113}

In Arevalo,^{Footnote 114} the Court noted that in a country like the U.S., the dismissal of the charges would be prima facie evidence that those crimes had not been committed; the Minister could not simply rely on the laying of charges without credible and trustworthy evidence that showed that, in the particular circumstances, the dismissal should not be conclusive. In Abbas,^{Footnote 15} the Court clarified this by stating that if the charges had been dismissed after trial in the United States, such a dismissal would be prima facie evidence that the crimes had not been committed by the refugee claimant. However, in this case, that did not happen. Therefore, the RPD did not act unreasonably in relying on the withdrawn and dismissed charges in combination with detailed police reports and the claimant’s testimony, including that he did not know why the charges were withdrawn and dismissed, which was not credible.

A plea of guilty to a charge of possession for the purpose of trafficking and trafficking in cocaine constitutes a sound basis for having serious reasons for considering that a person has committed a serious non-political crime.^{Footnote 116}

11.4. Article 1F(c): acts contrary to the purposes and principles of the United Nations

The Supreme Court of Canada dealt with Article 1F(c) in Pushpanathan.^{Footnote 117} The issue in that case was whether drug trafficking could be the basis for exclusion under Article 1F(c). The Supreme Court of Canada found no indication in international law that drug trafficking on any scale is to be considered contrary to the purposes and principles of the United Nations^{Footnote 118} and thus is not subject to exclusion under Article 1F(c).

Mr. Justice Bastarache, writing on behalf of the majority, held that:

… the purpose of Article 1F(c) can be characterized in the following terms: to exclude those individuals responsible for serious, sustained or systemic violations of fundamental human rights which amount to persecution in a non-war setting.^{Footnote 119}

The Court noted that in dealing with Article 1F(c),

The guiding principle is that where there is consensus in international law that particular acts constitute sufficiently serious and sustained violations of fundamental human rights as to amount to persecution, or are explicitly recognized as contrary to the purposes and principles of the United Nations, then Article 1 F(c) will be applicable.^{Footnote 120}

The Court set out two categories of acts which fall within this exclusion clause. The first category is:

… where a widely accepted international agreement or United Nations resolution declares that the commission of certain acts is contrary to the purposes and principles of the United Nations.^{Footnote 121}

Enforced disappearances, torture and international terrorism were examples offered by the Court as falling in the first category as corresponding international instruments exist which specifically designate such acts as being contrary to the purposes and principles of the United Nations.^{Footnote 122} The Court noted that "other sources of international law may be relevant in a court's determination of whether an act falls within 1F(c)" and noted that "determinations by the International Court of Justice may be compelling."^{Footnote 123}

The second category of acts which fall within the scope of Article 1F(c) are:

those which a court is able, for itself, to characterize as serious, sustained and systemic violations of fundamental human rights constituting persecution.^{Footnote 124}

This second category was also described by the Court as including any act whereby an international instrument has indicated it is a violation of fundamental human rights.^{Footnote 125}

As a result, the Court determined that "conspiring to traffic in a narcotic is not a violation of Article 1F(c)."^{Footnote 126}

Even though international trafficking in drugs in an extremely serious problem that the United Nations has taken extraordinary measures to eradicate, in the absence of clear indications that the international community recognizes drug trafficking as a sufficiently serious and sustained violation of fundamental human rights so as to amount to persecution, either through a specific designation as an act contrary to the purposes and principles of the United Nations (the first category), or through international instruments which otherwise indicate that trafficking is a serious violation of fundamental human rights (the second category) individuals should not be deprived of the essential protections contained in the Convention for having committed those acts.^{Footnote 127}

The Court also noted that exclusion under Article 1F(c) is not limited to persons in positions of power and indicated that non-state actors may fall within the provision.^{Footnote 128}

11.5. Burden of proof and notice

The burden of establishing serious reasons for considering that international offences have been committed falls on the Government (Minister).

Aside from avoiding the proving of a negative by a claimant, this also squares with the onus under paragraph 19(1)(j) of the Immigration Act, according to which it is the Government that must establish that it has reasonable grounds for excluding claimants. For all these reasons, the Canadian approach requires that the burden of proof be on the Government, as well as being on a basis of less than the balance of probabilities.^{Footnote 129}

The Minister does not have to be present at the hearing in order for the Refugee Division to consider exclusion clauses.^{Footnote 130}

The claimant is to be given notice of the applicable exclusion ground, as the determination cannot be made on a ground not mentioned at the hearing.^{Footnote 131} In addition, failure to give the Minister notice of possible exclusion is a basis for judicial review brought by the Minister.^{Footnote 132}

11.6. Consideration of inclusion where claimant is excluded

As noted earlier, the Board cannot balance the risk of persecution or other harm against the exclusion. The question is whether it can consider both the inclusionary and exclusionary aspects of a claim (in the alternative). This approach has been rejected in most^{Footnote 133} of the jusrisprudence.

The Court in Xie^{Footnote 134} stated the following:

[38] This leads to the question as to whether the decision of the Supreme Court in Suresh requires a different reading of the statute. I might point out that the issue of Suresh only arises at this point because the Board, having found that the exclusion applied, went on to consider whether the applicant was at risk of torture upon her return to China. In my view, the Board exceeded its mandate when it decided to deal with the appellant's risk of torture upon return with the result that the Minister is not bound by that finding. Once the Board found that the exclusion applied, it had done everything that it was required to do, and there was nothing more it could do, for the appellant. The appellant was now excluded from refugee protection, a matter within the Board's competence, and was limited to applying for protection, a matter within the Minister's jurisdiction. The board's conclusions as to the appellant's risk of torture were gratuitous and were an infringement upon the Minister's responsibilities.

The Federal Court of Appeal distinguished Xie in the Lai^{Footnote 135} case as follows:

[70] Having determined that the Applications Judge did not err in finding that the Board's conclusions on the exclusionary question were reasonable, the adult appellants are excluded from the definition of Convention refugee. The recent decision of this Court in Xie has determined that once excluded under Article 1F(b), claimants are not entitled to have their inclusionary claims determined. However, the present facts are distinguishable from those in Xie because in this appeal the children's actions were not subject to Article 1F(b) and their derivative claims must be determined. Accordingly, it was proper for the Board to proceed to conduct an inclusionary analysis with respect to all five of the appellants in order to determine if the children's derivative claims could be successful.

Notes

Note 1

Ezokola v. Canada (Citizenship and Immigration), [2013] 2 S.C.R. 678. In fact, this standard has been the recognized standard in Canadian law since Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.). Note that the test for complicity in Ramirez was held to be wrong in Ezokola but the two cases agree on the meaning of “serious reasons to consider”.

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Note 2

Moreno v. Canada (Minster of Employment and Immigration), 1993 (FCA), [1994] 1 FC 298; Sivakumar v Canada (Minister of Employment and Immigration), 1993 (FCA), [1994] 1 FC 433, [1993] FCJ No 1145; Pourjamaliaghdam v. Canada (Citizenship and Immigration), 2011 FC 666, para 48; Kuruparan v. Canada (Citizenship and Immigration), 2012 FC 745, para 83; Khachatryan v. Canada (Citizenship and Immigration), 2020 FC 167, para 32.

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Note 3

Moreno v. Canada (Minster of Employment and Immigration), 1993 (FCA), [1994] 1 FC 298.

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Note 4

Candelario, Carlos Santiago Rodriguez v. M.C.I. (F.C. no. IMM-548-18), Annis, August 28, 2018; 2018 FC 864. Similarly, in Sarwary, Mohammad Omar v. M.C.I. (F.C. no. IMM-3911-17), Leblanc, April 24, 2018; 2018 FC 437 the Court held that the RAD did not err in giving no weight to the fact the Minister had ultimately chosen not to refer a section 44 report to an admissibility hearing before the ID.

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Note 5

Abbas, Arash Ghulam v. M.C.I. (F.C. no. IMM-2494-18), Brown, January 7, 2019; 2019 FC 12 at para 45.

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Note 6

Gonzalez v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 646 (C.A.), at 657; M.C.I. v. Malouf, François (F.C.A., no. A-19-95), Hugessen, Décary, Robertson, November 9, 1995; M.C.I. v. Cadovski, Ivan (F.C., no. IMM-1047-05), O’Reilly, March 21, 2006; 2006 FC 364; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1996] 2 F.C. 49 (C.A.). Note that this case was overturned by the SCC but not on this point. Also see Nwobi, Felix Eberechukwu v. M.C.I. (F.C. no. IMM-2577-17), LeBlanc, March 20, 2018; 2018 FC 317.

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Note 7

Xie, Rou Lan v. M.C.I. (F.C.A., no. A-422-03), Décary, Létourneau, Pelletier, June 30, 2004, para 38.

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Note 8

See Annex VI of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection(UNHCR Handbook), for a partial list of applicable international instruments.

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Note 9

82 U.N.T.S. 279, (http://www.ibiblio.org/pha/war.term/trib_02.html). See Annex V of the UNHCR Handbook.

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Note 10

Adopted by Security Council resolution 955 (1994) of 8 November 1994, as amended.

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Note 11

Adopted by Security Council resolution 827 (1993) of 25 May 1993, as amended.

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Note 12

Done at Rome on 17 July 1998, in force on 1 July 2002, United Nations, Treaty Series, vol. 2187, No. 38544, Depositary: Secretary-General of the United Nations, http://treaties.un.org.

Harb, Shahir v. M.C.I. (F.C.A., no. A-309-02), Décary, Noël, Pelletier, January 27, 2003; 2003 FCA 39. The Federal Court of Appeal stated that by not identifying the “international instruments”, the authors of the Convention ensured that the definitions of crimes, the sources of exclusion, would not be fixed at any point in time. In Ventocilla, Alex Yale v. M.C.I. (F.C., no. IMM-4222-06), Teitelbaum, May 31, 2007; 2007 FC 575, the Court held that the definitions in the Rome Statute cannot be applied retroactively and in this case could not be used to determine whether the acts in question constituted war crimes because they were committed before the Rome Statute was part of international law. This case appears to be at odds with not only the spirit of the decision of the Federal Court of Appeal in Harb, but may be at odds with the decision of the Federal Court in Bonilla, Mauricio Cervera v. M.C.I. (F.C., no. IMM-2795-08), O’Keefe, September 9, 2009; 2009 FC 881, where the Court found that the RPD did not err in law by applying retroactively definitions of crimes against humanity from the Rome Statute. However, note that in Betoukoumesou, Kalala Prince Debase v. M.C.I., (F.C. no., IMM-5820)-13), Mosley, June 20, 2014; 2014 FC 591, the Court noted that Ventocilladealt with the definition of war crimes and is not applicable to a case dealing with crimes against humanity. More recently in Elve v. Canada (Citizenship and Immigration), 2020 FC 454, the Court made a distinction between a retroactive application of the law and a retrospective application of the law, the latter being permissible.

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Note 13

Ezokola, supra, note 1

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Note 14

S.C. 2000, c.24, section 6(3).

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Note 15

R. v. Finta, [1994] 1 S.C.R. 701.

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Note 16

Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100; 2005 SCC 40.

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Note 17

See Mugesera, ibid., para 44.

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Note 18

Munyaneza v. R., [2014] Q.J. No. 3059.

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Note 19

In this case the Court was referring to the Crown and applying the standard “beyond a reasonable doubt”. Note that there is no reference in the case to Article 1F(a).

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Note 20

Kamazi, James Mobwano v. M.C.I. (F.C., no. IMM-11654-12), Annis, December 18, 2013; 2013 FC 1261. While the decision of the RPD pre-dated the decision of the Supreme Court of Canada in Ezokola and was based on the old test for complicity, the Court upheld the decision as the facts allowed for no other result.

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Note 21

Supra, note 12, Article 7. See also, Sivakumar, supra, note 2. The Court in Sumaida, Hussein Ali v. M.C.I. (F.C.T.D., no. A-94-92), Simpson, August 14, 1996. Reported: Sumaida v. Canada (Minister of Citizenship and Immigration) (1996), 35 Imm. L.R. (2d) 315 (F.C.T.D.), questioned whether members of a terrorist organization could be considered “civilians” in the context of a crime against humanity. This was not an issue in Rasuli, Nazir Ahmad v. M.C.I. (F.C.T.D., no. IMM-3119-95), Heald, October 25, 1996, where the Court upheld the exclusion of a claimant for being complicit in acts of torture directed against “dangerous persons”. See also Bamlaku, Mulualem v. M.C.I. (F.C.T.D., no. IMM-846-97), Gibson, January 16, 1998.

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Note 22

Sivakumar, supra, note 2, at 443. See also Suliman, Shakir Mohamed v. M.C.I. (F.C.T.D., no. IMM-2829-96), McGillis, June 13, 1997, which held that when determining whether certain activities of the police constitute crimes against humanity, the CRDD must consider whether the victims of police abuse were “... members of a group which has been targeted systematically and in a widespread manner.” In Blanco, Nelson Humberto Ruiz v. M.C.I. (F.C., no. IMM-4587-05), Layden-Stevenson, May 19, 2006; 2006 FC 623 the Court found that the evidence did not support the finding that the Colombian Navy committed international crimes in a widespread systematic fashion.

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Note 23

Finta, supra, note 15. In Wajid, Rham v. M.C.I. (F.C.T.D., no. IMM-1706-99), Pelletier, May 25, 2000 the Court held that “not every domestic crime and act of violence may be considered a crime against humanity.

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Note 24

Mugesera, supra, note 16.

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Note 25

Mugesera, supra, note 16.

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Note 26

Mugesera, supra, note 16.

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Note 27

Mugesera, supra, note 16, para 161.

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Note 28

Mugesera, supra, note 16, para 174.

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Note 29

Sivakumar, supra, note 2, at 444.

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Note 30

Cibaric, Ivan v. M.C.I. (F.C.T.D., no. IMM-1078-95), Noël, December 18, 1995.

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Note 31

Sungu v. Canada (Minister of Citizenship and Immigration) [2003] 3 F.C. 192 (T.D.); 2002 FCT 1207.

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Note 32

Yang, Jin Xiangv.M.C.I. (F.C.T.D., no. IMM-1372-98), Evans, February 9, 1999.

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Note 33

Tilus, Francky v. M.C.I. (F.C., no. IMM-3426-05), Harrington, December 23, 2005; 2005 FC 1738.

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Note 34

Baqri, Syed Safdar Ali v. M.C.I. (F.C.T.D., no. IMM-4211-00), Lutfy, October 9, 2001.

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Note 35

M.C.I. v. Muto, Antonio-Nesland (F.C.T.D., no. IMM-518-01), Tremblay-Lamer, March 6, 2002; 2002 FCT 256.

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Note 36

In Canadian criminal law, the leading case to assess the defence of duress is R. v. Ryan, 2013 SCC 3. In Al Khayyat, Qasim Mohammed v. M.C.I., (F.C., no. IMM-2992-16), Strickland, February 13, 2017; 2017 FC 175, the Court found that the ID had erred in considering only the test in Ryan rather than the test as set out in customary international law or the Rome Statue. The Court noted:

More significantly, in Ezokola the Supreme Court of Canada found that voluntariness "captures" the defence of duress, and further that a full contextual analysis would "necessarily include" any viable defences, including but not limited to, the defence of duress …, which suggests that the assessment of voluntariness that it identified was not limited to that defence. As well, to assess the voluntariness of a contribution, other considerations such as the method of recruitment by the organization and any opportunity to leave the organization, should be considered… More importantly, these considerations were cited by way of example and were not exhaustive. In my view, the ID was required to conduct a full contextual factual analysis in the context of the Applicant's circumstances and to assess voluntariness based on that analysis.

In Oberlander, Helmut v. A.G. Canada (F.C.A., no. A-51-15), Dawson, Near, Boivin, February 15, 2016; 2016 FCA 52, the Federal Court of Appeal, referring to Ryan and Ramirez, noted that the defence of duress requires proportionality between the harm threatened against the person concerned and the harm inflicted by that person – whether directly or through complicity. The Court further noted that before deciding on proportionality, there must be a finding about the extent of the contribution to the crime or criminal purpose. More recently, in Canada (Public Safety and Emergency Preparedness) v. Lopez Gaytan, 2019 FC 1152 the Court found that the defence of duress is applicable in inadmissibility hearings under paragraph 37(1)(a) of the IRPA. Thus, the Court appears to be endorsing the test of duress from Ryan in the IRB context. The Court also certified a question of general importance regarding the ID and IAD’s jurisdiction to consider duress (FCA filed: A-392-19).

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Note 37

These principles are also summarized in Ryan, ibid., para 55.

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Note 38

Ramirez, supra, note 1, at 327-328. In Bermudez, Ivan Antonio v. M.C.I. (F.C., no. IMM-233-04), Phelan, February 24, 2005; 2005 FC 286 the Court did not uphold the finding of exclusion as the panel failed to consider the defence of duress. The Court agreed with the exclusion of the claimant in Mutumba, Fahad Huthy v. M.C.I. (F.C., no. IMM-2668-08), Shore, January 7, 2009; 2009 FC 19 since as a member of the Internal Security Organization in Uganda, he could not invoke a defence of duress because his decision to remain in that organization was based on the fact that he did not have any other employment opportunity at the time. He was under no threat of imminent danger had he left the organization.

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Note 39

Ramirez, supra, note 1, at 328.

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Note 40

Ramirez, supra, footnote 1, at 327-328, referring to the treatment of duress in the draft Code Of Offences Against the Peace and Security of Mankind, in process by the International Law Commission since 1947. See also, The United Nations War Crimes Commission, Law Reports of Trials of War Criminals (London, H.M.S.O., 1949), Volume XV, at page 132.

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Note 41

Asghedom, Yoseph v. M.C.I. (F.C.T.D., no. IMM-5406-00), Blais, August 30, 2001.

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Note 42

Moreno Florian, Carlos Eduardo v. M.C.I. (F.C.T.D., no. IMM-2159-01), Tremblay-Lamer, March 1, 2002; 2002 FCT 231.

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Note 43

Kathiravel, Sutharsan v. M.C.I. (F.C.T.D., no. IMM-204-02), Lemieux, May 29, 2003; 2003 FCT 680.

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Note 44

Finta, supra, note 15, at 834. Since historically the superior orders defence has only served to mitigate punishment rather than absolve the perpetrator from responsibility, the usefulness of this defence in refugee law is questionable. However, the Court in Equizbal v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 514 (C.A.), at 524, referred to the principles relating to superior orders in Finta and found that “torturing “the truthout” of someone is manifestly unlawful, by any standard”.

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Note 45

Betoukoumesou, Kalala Prince Debase v. M.C.I. (F.C., no. IMM-5820-13), Mosley, June 20, 2014; 2014 FC 591. In this case, the events in question (the abduction of people and the killing of those who resisted) did not take place in the context of war. The applicant was not a member of a military or police organization subject to the regulations or discipline of that organization. He took the job of chauffer voluntarily and there was no air of compulsion to his employment.

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Note 46

Gonzalez, supra, note 6, (see concurring reasons of Mr. Justice Létourneau, at 661).

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Note 47

Ramirez, supra, note 1, at 328.

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Note 48

Moreno, supra, note 2; Penate v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 79 (T.D.), at 84.

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Note 49

Ezokola, supra, note 1.

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Note 50

In Concepcion, Orlando v. M.C.I. (F.C., no. IIMM-626-15), O’Reilly, May 16, 2016; 2016 FC 544, the Court overturned the decision of the Officer, who found the applicant inadmissible because he had committed crimes against humanity, on the basis that the decision was based on the old test of complicity by association. The Court noted that it is an error of law not to apply the correct principles of liability. In Suresh, Manickavasagam v. M.P.S.E.P. (F.C., no. IMM-4483-15), Mosley, January 10, 2017; 2017 FC 28, the Court upheld the decision and found that the Immigration Division had reasonably applied the Ezokolacomplicity test.

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Note 51

Note that coercion that does not rise to the level of duress may still negate voluntariness. See Ezokola, supra, note 1, and Al Khayyat, Qasim Mohammed v. M.C.I., supra, note 36.

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Note 52

In Moya Pacheco, Marino Manuel v. M.C.I. (F.C., no. IMM-603-14), Shore, October 20, 2014; 2014 FC 996,the Court agreed with the RPD that contributing two litres of acid destined to be used in the making of fatal bombs was a significant contribution to the crimes of the Shining Path in Peru. Being the person in charge of a computer network linking the office of the Chief of Defence Staff with other units in an army that committed atrocities, was also held to constitute a significant contribution (Mata Mazima v. Canada (Citizenship and Immigration), 2016 FC 531). However, in Canada (Citizenship and Immigration) v. Hammed, 2020 FC 130, the Court found that preparation of press releases based upon instructions received by superior officers was not a significant contribution to the Nigerian Army’s crimes.

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Note 53

In Hadhiri, Mohammed Habib v. M.C.I. (F.C., no. IMM-130-16), LeBlanc, November 18, 2016; 2016 FC 1284, the Court upheld the exclusion decision of the RAD finding that the Board had conducted a reasonable analysis of the case based on the Ezokola principles. The Court addressed the difference between the concepts of “willful blindness” and recklessness. In Massroua v. Canada (Citizenship and Immigration), 2019 FC 1542 the Court found that as a result of the claimant’s willful ignorance and greed in fixing vehicles for ISIS/Da’esh, the cruel objectives of ISIS/Da’esh were furthered and innocent lives were most likely lost.

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Note 54

In a case where the Federal Court was reviewing the H&C decision of an Immigration Officer, the Court commented that while the officer was bound by the finding of fact made by the RPD, which, in a decision pre-dating the SCC decision in Ezokola, had excluded the applicant under Article 1F(a), the officer was not bound by the RPD’s conclusion that the applicant was complicit in crimes against humanity. The Officer conducted his own complicity analysis but quoted and adopted the RPD finding that the applicant knew or ought to have known the goals of the AAF in Afghanistan. The Court found that the “knew or ought to have known” finding is very much like the sort of “guilt by association” finding that was rejected by Ezokola. See Aazamyar, Homayon v. M.C.I. (F.C., no. IMM-5514-13), Boswell, January 26, 2015; 2015 FC 99.

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Note 55

Ezokola indicates that the list is a combination of the factors identified by Canadian, U.K. and ICC jurisprudence (see para 91). The Court elaborates on the factors at paragraphs 94-99. In Ndikumassabo, Edouard v. M.C.I (F.C., no. IMM-728-14), Shore, October 8, 2014; 2014 FC 955, the Court upheld the exclusion determination of the RPD and noted that the Board had performed a methodical contribution-based analysis of complicity based on the factors set out in Ezokola.

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Note 56

In Khudeish v. Canada (Citizenship and Immigration), 2020 FC 1124 the Court found that based on the claimant’s 22 years of service in the Palestine Martyrs’ Families Foundation, which paid money to family members who committed terrorist acts, it was reasonable to find that the claimant had made a voluntary, knowing and significant contribution to the criminal purpose of that organization.

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Note 57

Al Khayyat, supra, note 35, referring to Moya Pacheco, supra, note 51, M.C.I. v. Badriyah, Riyadh Basheer (F.C., no. IMM-3172-15), Roussel, September 2, 2016; 2016 FC 1002; and Talpur, Hina v. M.C.I. (F.C., no. IMM-5782-15), Manson, July 19, 2016; 2016 FC 822.

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Note 58

Sarwary, supra note 3.

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Note 59

In Elve c. Canada (Citoyenneté et Immigration), 2020 CF 454, the claimant joined the Haitian army voluntarily and served for 10 years. During five of those years, he served as a guard at the notorious Casernes Dessalines prison, connected to the presidential palace where widespread torture was carried out at the prison. The Court found that it was reasonable for the RPD to conclude that the claimant had knowledge of the torture carried out at the prison given that the prison was small, he lived on the premises, and provided services to the prison over five years. Further, while he did not hold a high rank, he was promoted while serving as a guard at the prison. It was also reasonable to find that the claimant made a significant contribution. His job was to guard the perimeter of the prison. The claimant’s post enabled him, directly and on the premises, to encourage and conceal the crimes in question. Through his behavior, the claimant facilitated the commission of the crime.

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Note 60

Sivakumar, supra, note 2, at 439.

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Note 61

Sivakumar, supra, note 2, at 440.

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Note 62

Ezokola, supra, note 1. The Court also refers to the principle in international law that criminal liability does not attach to omissions unless an individual is under a duty to act and that accordingly, “unless an individual has control or responsibility over the individuals committing international crimes, he or she cannot be complicit by simply remaining in his or her position without protest.”

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Note 63

Mohammad, Zahir v. M.C.I. (F.C.T.D., no. IMM-4227-94), Nadon, October 25, 1995. See also Khachatryan v. Canada (Citizenship and Immigration), 2020 FC 167, where the Court found that the RPD reasonably concluded that the claimant was complicit in crimes against humanity committed by the Armenian police force. The police force was guilty of carrying out torture, which constituted a crime against humanity, as it was conducted within a widespread and systematic attack against civilians. The claimant was complicit considering his long career in a special elite forces unit, his rapid ascent and leadership roles, the public awareness of police brutality, and the fact he stayed voluntarily.

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Note 64

Gonzalez, Jose Carlos Hermida v. M.C.I. (F.C., no. IMM-1299-08), Beaudry, November 18, 2008; 2008 FC 1286.

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Note 65

Febles v. Canada (Minister of Citizenship and Immigration), [2014] 3 SCR 431; 2014 SCC 68.

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Note 66

Zrig v. Canada (Minister of Citizenship and Immigration), [2003] 3 FC 761; 2003 FCA 178.

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Note 67

Febles, supra, note 65. See also Jayasekara v. Canada (Minister of Citizenship and Immigration), [2009] 4 F.C.R. 164 (F.C.A.); 2008 FCA 404.

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Note 68

Feimi, Erik v. M.C.I. (F.C.A., no. A-90-12), Evans, Sharlow, Stratas, December 7, 2012; 2012 FCA 325.

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Note 69

M.C.I. v. Toktok, Emre (F.C., no. IMM-11305-12), O’Reilly, November 13, 2013; 2013 FC 1150. In this case it was proper to consider if the conviction was genuine given that there was evidence that the Turkish court system was corrupt, the proceedings had taken place in absentia, and the claimant had had no opportunity to defend himself. In Ching, Mo Yeung v. M.C.I. (F.C., no. IMM-7849-14), Roy, July 15, 2015; 2015 FC 860, the Court cautioned against relying on the findings of foreign courts where the evidence shows a paucity of information to determine the justification, transparency and intelligibility of the foreign decision making process. In Marita v. Canada (Citizenship and Immigration), 2020 FC 528 the Court found that the RPD erred by assuming the accuracy of the warrant without providing any analysis which demonstrated why it believed the allegations in the warrant.

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Note 70

Victor, Odney Richmond v. M.C.I. and M.P.S.E.P. (F.C., no. IMM‑252‑13 and No. IMM‑546‑13) Roy, September 25, 2013; 2013 FC 979.

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Note 71

Vlad, Anghel v. M.C.I. (F.C., no. IMM-1800-06), Snider, February 1, 2007; 2007 FC 172; M.C.I. v. Pulido Diaz, Paola Andrea (F.C., no. IMM-4878-10), Phelan, June 21, 2011; 2011 FC 738; and Radi, Spartak v. M.C.I. (F.C., no. IMM-2928-11), Near, January 5, 2012; 2012 FC 16. In obiter comments in Mustafa, Golam v. M.C.I. (F.C., No. IMM-362-15), Phelan, February 2, 2016; 2016 FC 116, the Court observed that the RPD had based its analysis of exclusion on the incorrect offence. While the Canadian offence of using a forged passport (s 57(1)(b) of the Criminal Code) is subject to a maximum sentence of 14 years imprisonment, making a false statement to procure a passport (s 57(2) of the Criminal Code) is subject to a maximum sentence of only two years. Thus, the distinction is important.

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Note 72

M.C.I. v. Raina, Vinod Kumar (F.C., no. IMM-7164-11), Shore, May 23, 2012; 2012 FC 618; Cabreja Sanchez, Domingo Antonio v. M.C.I. (F.C., no. IMM-7113-11), O’Keefe, September 26, 2012, 2012 FC 1130; and Ma, Like v. M.C.I. (F. C. no. IMM-3482-17); Favel, March 6, 2018; 2018 FC 252.

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Note 73

Lai, Cheong Sing v. M.C.I. (F.C.A., A-191-04), Malone, Richard, Sharlow, April 11, 2005; 2005 FCA 125.

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Note 74

Vlad, supra, note 71 and Zeng, Hany v. M.C.I. (F.C., no. IMM-2319-07), O’Keefe, August 19, 2008; 2008 FC 956.

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Note 75

Jayasekara, supra, note 67.

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Note 76

Note that in Reyes Rivas, Carlos Arnoldo v. M.C.I., (F.C., no. IMM-3255-06), Tremblay-Lamer, March 13, 2007; 2007 FC 317, the Court held that a crime must be justiciable in the country where it was committed for Article 1F(b) to apply; and in Notario, Sebastian Maghanoy v. M.C.I. (F.C., no. IMM-2229-13), O’Keefe, December 2, 2014; 2014 FC 1159, the Court stated, in obiter, that there is no hard and fast rule that the conduct must be criminal in the potential country of refuge.

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Note 77

Jayasekara, supra note 67. In this case the Court noted that the claimant’s conviction in the U.S. for trafficking in opium (a first offence) gave it serious reasons to believe that the claimant had committed a serious non-political crime. The analytical framework to assess seriousness set out in Jayasekara was not questioned by the SCC in Febles.

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Note 78

Since Article 1F(b) does not require a conviction, the factors set out in Jayasekara (approved in Febles) to assess the seriousness of a crime will apply, with necessary modifications, to the assessment of the seriousness of a committed crime. In Tabagua, Rusudan v. M.C.I. (F.C., no. IMM-2549-14), Gleason, June 4, 2015; 2015 FC 709, the Court noted that the need for the type of analysis mandated by Febles is not lessened by the fact that the claimant was not charged and therefore not sentenced.

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Note 79

Febles, supra note 65, para 62. In Canada (Citizenship and Immigration) v. Clerjeau, 2020 FC 1120 the Court held that there was no evidence as to the sentencing range in Canada before the RAD and it is not common knowledge such that the RAD could take judicial notice. If it were part of the member’s specialized knowledge, notice should have been given before relying upon it. Therefore, the RAD breached procedural fairness.

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Note 80

Rojas Camacho, Marcia Ines v. M.C.I. (F.C., no. IMM-6140-10), Mosley, June 28, 2011; 2011 FC 789.

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Note 81

Valdespino Partida, Aurelio v. M.C.I. (F.C., no. IMM-8616-11), Campbell, April 9, 2013; 2013 FC 359.

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Note 82

Chernikov, Roman Alexander v. M.C.I. (F.C., no. IMM-9989-12), Phelan, June 13, 2013; 2013 FC 649.

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Note 83

M.C.I. v. Pulido Diaz, Paola Andrea (F.C., no. IMM-4878-10), Phelan, June 21, 2011; 2011 FC 738. In M.C.I v. Nwobi, Felix Eberechuk (F.C. no. IMM-5683-13), Martineau, May 30, 2014; 2014 FC 520 the Court stated that the fact another person who was involved in the same crime received a more severe sentence than the claimant was extraneous to the facts and circumstances underlying the claimant’s crime. Similarly, in Nwobi (2018), supra, note 6 the Court held that the RPD correctly disregarded extraneous factors such as the lack of previous convictions, the fact the claimant had not reoffended, and the danger he represented to society.

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Note 84

Narkaj, Arlind v. M.C.I. (F.C., no. IMM-1469-13), O’Reilly, January 8, 2015; 2015 FC 26.

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Note 85

Hasani v. Canada (Citizenship and Immigration), 2020 FC 125.

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Note 86

Gamboa Micolta, Dawy’s Raul v. M.C.I. (F.C., no. IMM-8558-12), Shore, April 11, 2013; 2013 FC 367.

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Note 87

Poggio Guerrero, Gustavo Adolfo v. M.C.I. (F.C., no. IMM-8733-11), Near, July 30, 2012; 2012 FC 937; Gudima, Audrey v. M.C.I. (F.C., no. IMM-9996-12), Phelan, April 16, 2013; 2013 FC 382.

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Note 88

A more recent case that accepted the Ryan test for duress was Canada (Public Safety and Emergency Preparedness) v. Lopez Gaytan, 2019 FC 1152. Although the decision is in the context of inadmissibility, the Court noted that the Supreme Court of Canada in Ezokola had endorsed the consideration of any viable defences by the RPD, including duress.

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Note 89

Jayasekara, supra, note 67, para 45.

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Note 90

Jayasekara, supra, note 67, para 46. In Lopez Velasco, Jose Vicelio v. M.C.I., (F.C., no. IMM-3423-10), Mandamin, May 30, 2011; 2011 FC 267, the Court discussed this issue at length and concluded that the RPD had reasonably concluded that the presumption of seriousness had been rebutted. See also A.B. and E.F. v. M.C.I. (F.C., no. IMM-919-15), Strickland, December 16, 2016; 2016 FC 1385, where the crime in question was child abduction.

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Note 91

Jayasekara, supra, note 67, para 43.

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Note 92

Jayasekara, supra, note 67, para 40. See also Chan v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 390 (FCA). Note that the holding in Chan that Article 1 F(b) only applies to fugitives is no longer good law as per Febles but the comments about the ten-year rule were referred to in Febles with approval.

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Note 93

Jayasekara, supra, note 67, para 44.

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Note 94

In Mohamed, Roshan Akthar Jibreel v. M.C.I. (F.C., no. IMM-5379-14), Annis, July 28, 2015; 2015 FC 1006, the Court interpreted Febles as instructing that when the sentence falls towards the low end of a broad sentencing range, the individual should not be presumptively excluded, thereby leaving the onus with the Minister to persuade the RPD that the crime was serious.

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Note 95

Hersy, Abdi Elmy v. M.C.I. (F.C. no. IMM-3085-15), Russell, February 12, 2016; 2016 FC 190 paras 67-69.

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Note 96

Sanchez, Noe Gama v. M.C.I. (F.C.A, no. A-315-13), Nadon, Stratas, Scott, June 10, 2014; 2014 FCA 157.

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Note 97

Brzezinski, Janv.M.C.I. (F.C.T.D., no. IMM-1333-97), Lutfy, July 9, 1998. In Taleb, Ali et al.v.M.C.I. (F.C.T.D., no. 1449-98), Tremblay-Lamer, May 18, 1999 the Court found that the offence of attempted kidnapping is punishable by a maximum of 14 years imprisonment and therefore is a “serious” offence within the meaning of Article 1F(b). In Chan, San Tongv.M.C.I. (F.C.T.D., no. IMM-2154-98), MacKay, April 23, 1999 the Court found that a conviction in the United States for using a communication facility to facilitate trafficking in a substantial volume of narcotics was a “serious” offence (note that this case was overturned on other grounds). In Nyari, Istvan v. M.C.I. (F.C.T.D., no. IMM-6551-00), Kelen, September 18, 2002; 2002 FCT 979, the Court found that the CRDD was entitled to find that the claimant’s escape from prison while he was serving a twenty-month sentence for causing bodily harm was not a “serious crime” in the context of 1F(b). In Sharma, Gunanidhi v. M.C.I. (F.C.T.D., no. IMM-1668-02), Noël, March 10, 2003; 2003 FCT 289 the Court upheld the finding of the Refugee Division that armed robbery was a “serious” non-political crime. In Xie, Rou Lan v. M.C.I. (F.C., no. IMM-923-03), Kelen, September 4, 2003; 2003 FCT 1023 the Court held that an economic crime not involving any violence can be a 1F(b) crime. In this case the claimant had been charged with embezzling the equivalent of 1.4 million Canadian dollars. In Liang, Xiao Dong v. M.C.I. (F.C., no. IMM–1286-03), Layden-Stevenson, December 19, 2003; 2003 FC 1501 the exclusion under 1F(b) of the claimant was upheld. He had been arrested in Canada on an Interpol warrant for conspiracy to commit murder, leading a criminal organization and being involved in a corruption scandal. In Benitez Hidrovo, Jose Ramon v. M.C.I. (F.C., no. IMM-3247-09), Lutfy, February 2, 2010; 2010 FC 111 the Court upheld the exclusion of the claimant as having committed a serious crime based on his conviction for possession of more than 200 grams of cocaine. Also see Nwobi, supra note 6.

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Note 98

Xie, supra, note 7. In Lai, Cheong Sing v. M.C.I. (F.C., no. IMM-3194-02), MacKay, February 3, 2004; 2004 FC 179, the Court found that the smuggling of billions of dollars worth of goods were “serious crimes” within the Article 1F(b) exclusion clause. The Court in Lai certified a number of questions: Lai, Cheong Sing v. M.C.I. (F.C., no. IMM-3194-02), MacKay, March 19, 2004. The Federal Court of Appeal dealt with the certified questions in Lai, Cheong Sing v. M.C.I. (F.C.A., no. A-191-04), Richard, Sharlow, Malone, April 11, 2005; 2005 FCA 125 and upheld the finding that Article 1F(b) could apply to the crimes of bribery, smuggling, fraud and tax evasion. In Xu, Hui Ping v. M.C.I. (F.C., no. IMM-9503-04), Noël, July 11, 2005; 2005 FC 970 the Court upheld the exclusion of the claimant who was involved in defrauding the company for which he worked of over $1 million. In Noha, Augustus Charles v. M.C.I. (F.C., no. IMM-4927-08), Shore, June 30, 2009; 2009 FC 683 the Court upheld the exclusion finding and agreed that credit card fraud totalling $41,088 was a “serious” crime. Similarly, in Rudyak, Korniy v. M.C.I. (F.C., no. IMM-6743-05), Pinard, September 29, 2006; 2006 FC 1141 the Court upheld the exclusion finding based on the crime of financial fraud.

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Note 99

Kovacs, Miklosne v. M.C.I. (F.C., no. IMM-8183-04), Snider, October 31, 2005; 2005 FC 1473. See also Montoya, Jackeline Mari Parisv.M.C.I. (F.C., no. IMM-2107-05), Rouleau, December 9, 2005; 2005 FC 1674.

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Note 100

A.B. and E.F, supra, note 90.

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Note 101

Osman, Abdirizak Said v. M.E.I. (F.C.T.D., no. IMM-261-93), Nadon, December 22, 1993, at 4.

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Note 102

Radi v. Canada (Citizenship and Immigration), 2012 FC 16.

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Note 103

Gil v. Canada (Minister of Employment and Immigration), [1995] 1 F.C. 508 (C.A.) at 528-529 and 533. Mr. Justice Hugessen followed the evolution of the incidence test in British extradition case law, added some elements of American and other foreign jurisprudence, to form a composite test (the “incidence” test) which he applied to the case before the Courts. It is by looking at the elements of the decisions which he underlined for emphasis and the terms of his final analysis at 532 that one can deduce the formulation of the test. In Zrig, Mohamed v. M.C.I. (F.C.T.D., no. IMM-601-00), Tremblay-Lamer, September 24, 2001, the Court found that the act in question was so barbaric and atrocious it was difficult to describe it as a political crime. Applying the “incidence test”, the Court concluded that despite the repressive nature of the government in place, the act of violence was totally out of proportion to any legitimate political objective. Similarly in Vergara, Marco Vinicio Marchant v. M.C.I. (F.C.T.D., no. IMM-1818-00), Pinard, May 15, 2001, the Court upheld the finding of the CRDD that the crimes in question were “non-political crimes” as there was no relationship between the sabotage and armed robbery directed at civilians with risk of death, and the political objective. In A.C. v. M.C.I. (F.C., IMM-4678-02), Russell, December 19, 2003; 2003 FC 1500 the Court held that the brutal and systematic killing of the President’s family cannot be considered proportional to the objective of removing a hated political figure. See also the Court of Appeal decision in Lai, supra, note 73, paras 62-64.

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Note 104

See also the Federal Court of Appeal decision in Malouf, supra, footnote 5, where the Court noted:

…Paragraph (b) of Article 1F of the Convention should receive no different treatment then paragraphs (a) and (c) thereof: none of them requires the Board to balance the seriousness of the Applicant’s conduct against the alleged fear of persecution.

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Note 105

Gil, supra, note 103,., at 534-5. A subsequent decision of the Trial Division took the opposite view, without referring to this precedent; see Malouf v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 537 (T.D.), at 556-557, but note that the Federal Court of Appeal stated in Malouf, supra, note 6, that paragraph (b) of Article 1F should receive no different treatment than paragraphs (a) and (c). None of them requires the Refugee Division to balance the seriousness of the claimant’s conduct against the alleged fear of persecution.

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Note 106

Gil, supra, note 103, at 535.

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Note 107

Malouf, supra, note 6, at 553.

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Note 108

In Gamboa, supra, note 86, the Court held that RPD could reasonably rely on the warrant for arrest and indictment of the applicant issued in the US, which has a properly functioning judicial system.

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Note 109

Qazi, Musawar Hussain v. M.C.I. (F.C., no. IMM-9182-04), von Finckenstein, September 2, 2005; 2005 FC 1204. The Court noted as follows:

[19] When, however … the Applicant alleges that the charges are fabricated, the Board has to go further. It has to establish whether to accept the allegations or not i.e., whether the Applicant is credible. If he is found to be credible, then the mere existence of a warrant may not be enough.

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Note 110

Hashi v. Canada (Citizenship and Immigration), 2020 FC 309.

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Note 111

Gurajena, George v. M.C.I. (F.C., no. IMM-4257-07), Lutfy, June 9, 2008; 2008 FC 724.

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Note 112

In Rihan, Ahmed Abdel Hafiz Ahmed v. M.C.I. (F.C., no. IMM-4743-08), Mandamin, February 5, 2010; 2010 FC 123, the Court held that the RPD erred in finding that the Interpol Red Notice alone sufficed as a “serious reason for considering” a serious crime was committed. It ignored testimony from the applicant’s wife and his Egyptian lawyer about the falsification of the charges against the applicant, as part of the Muslim Brotherhood’s persecution of the applicant.

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Note 113

Biro, Bela Attila v. M.C.I. (F.C., no. IMM-590-05), Tremblay-Lamer, October 20, 2005; 2005 FC 1428.

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Note 114

Arevalo Pineda, JoseIsaias v.M.C.I. (F.C., no. IMM-5000-09), Gauthier, April 26, 2010; 2010 FC 454. In Betancour, Favio Solis v. M.C.I. (F.C., no. IMM-4901-08), Russell, July 27, 2009; 2009 FC 767 the Court upheld the exclusion finding because even though there were some doubts about the warrant, the doubts were fully explored by the Member and she felt that the existence of the warrant taken together with the claimant’s admission that he had been involved with cocaine, was sufficient to meet the evidentiary burden.

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Note 115

Abbas, supra, note 5 at paras 34-35.

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Note 116

Malouf, supra, note 6.

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Note 117

Pushpanathanv. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982.

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Note 118

Pushpanathan, ibid., at 1032.

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Note 119

Pushpanathan, supra, note 117, at 1029.

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Note 120

Pushpanathan, supra, note 117, at 1030. In Szekely, Attila v. M.C.I. (F.C.T.D., no. IMM-6032-98), Teitelbaum, December 15, 1999, the Court upheld the exclusion of a claimant under Article 1F(c) who, while acting as an informer for the Romanian secret police (la Securitate), had been part of an organization that committed serious, sustained and systematic violations of fundamental human rights constituting persecution. In Chowdhury, Amit v. M.C.I. (F.C., no. IMM-4920-05), Noël, February 7, 2006; 2006 FC 139, the Court upheld the exclusion of the claimant due to his participation in the Awami League in Bangladesh. In interpreting the scope of Article 1F(c), the Court noted its preference for the jurisprudence of the Federal Court of Appeal, rather than the UNHCR Handbook and other non-binding UN documents.

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Note 121

Pushpanathan, supra, note 117, at 1030. In Bitaraf, Babak v. M.C.I. (F.C., no. IMM-1609-03), Phelan, June 23, 2004; 2004 FC 898, the Court found that the RPD erred when it followed the approach used for Article 1F(a) rather than for Article 1F(c) and failed to identify which purposes and principles of the United Nations were at issue. The focus of Article 1F(c) is the commission of acts whereas Articles 1F(a) and (b) focus on the commission of crimes.

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Note 122

Pushpanathan, supra, note 117, at 1030.

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Note 123

Pushpanathan, supra, note 117, at 1032.

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Note 124

Pushpanathan, supra, note 117, at 1032. In El Hayek, Youssef Ayoub v. M.C.I. and Boulos, Laurett v. M.C.I. (F.C., no. IMM-9356-04), Pinard, June 17, 2005; 2005 FC 835, the Court upheld the finding of the RPD that the claimant was a part of the Kataebs and the Lebanese Forces and as a result of his knowledge of the crimes committed, he was complicit in crimes against humanity and acts contrary to the purposes and principles of the United Nations. The Court upheld the exclusion of the claimant under Article 1F(a) and (c) given his membership and activities in the youth section of the Cameroon People’s Democratic Movement.

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Note 125

Pushpanathan, supra, note 117, at 1035.

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Note 126

Pushpanathan, supra, note 117, at 1035.

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Note 127

Pushpanathan, supra, note 117, at 1035.

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Note 128

Pushpanathan, supra, note 117, at 1031.

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Note 129

Ramirez, supra, note 1, at 314. M.C.I. v. Bazargan, Mohammad Hassan (F.C.A., no. A-400-95), Marceau, Décary, Chevalier, September 18, 1996, at 4. “The Minister does not have to prove the respondent’s guilt. He merely has to show - and the burden of proof resting on him is less than the balance of probabilities - that there are serious reasons for considering that the respondent is guilty.”

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Note 130

Although this principle was clear from the case law even before the decision in Arica, Jose Domingo Malaga v. M.E.I. (F.C.A., no. A-153-92), Stone, Robertson, McDonald, May 3, 1995. Reported: Arica v. Canada (Minister of Employment and Immigration) (1995), 182 N.R. 34 (F.C.A.), leave to appeal to S.C.C. refused: (1995), 198 N.R. 239 (S.C.C.), the Court of Appeal therein unequivocally stated: “The fact that the Minister does not participate in the hearing, either because he does not wish to do so or because he is not entitled to notice under Rule 9(3), does not alter the right of the Board to render a decision on the issue of exclusion.” (At 6, unreported). See also Ashari, Morteza Asnav.M.C.I. (F.C.T.D., no. IMM-5205-97), Reed, August 21, 1998. The Federal Court of Appeal in Ashari, Morteza Asna v. M.C.I. (F.C.A., no. A-525-98), Decary, Robertson, Noël, October 26, 1999, confirmed the decision of the Trial Division. In Alwan, Riad Mushen Abou v. M.C.I. (F.C., no. IMM-8204-03), Layden-Stevenson, June 2, 2004; 2004 FC 807, the Court concluded that since the RPD has sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction, non-participation of the Minister does not preclude an exclusion finding. However, in Kanya, Kennedy Lofty v. M.C.I. (F.C., no. IMM-2778-05), Rouleau, December 9, 2005; 2005 FC 1677 in the unusual circumstances of the case, the Court found that the RPD breached procedural fairness by not notifying the Minister in a timely fashion that there was a possibility that Article 1F(b) would apply. In M.C.I. v. Atabaki, Roozbeh Kianpour (F.C., no. IMM-1669-07), Lemieux, November 13, 2007; 2007 FC 1170, the Court said it was an error for the RPD to restrict the Minister to question the claimant on matters dealing only with exclusion since section 170(e) of IRPA states that the Minister, as well as the claimant, must be given a reasonable opportunity to present evidence and question witnesses. In M.C.I. v. Cadovski, Ivan (F.C., no. IMM-1047-05), O’Reilly, March 21, 2006; 2006 FC 364, the claimant alleged a fear of persecution in two countries in which he held citizenship, namely Macedonia and Croatia. The RPD found that the claimant did not have a well-founded fear of persecution in Macedonia, and therefore rejected the claim without determining the issue of exclusion regarding his actions in Croatia. The Court found that the RPD erred when it rejected the claim, without determining the exclusion issue, since the Federal Court of Appeal in Xie has already determined that once the RPD finds that a claimant is excluded from refugee protection, there is nothing more it can do. The Court said that if the RPD finds that a claimant is excluded, it need not decide any other issues.

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Note 131

Aguilar, Nelson Antonio Linares v. M.C.I. (F.C.T.D., no. IMM-3118-99), Denault, June 8, 2000.

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Note 132

M.C.I. v. Louis, Mac Edhu (F.C., no. IMM-4936-08), Teitelbaum, June 29, 2009; 2009 FC 674. For further particulars regarding the requirement to give notice, see the RPD Rules (Rule 26). Also see M.C.I. v. Ahmed, Maqbool (F.C. no. IMM-1426-15), Mactavish, November 18, 2015; 2015 FC 1288 where the Court held that given that the information before the RPD was sufficient to trigger the RPD’s obligation to notify the Minister of potential exclusion, it was unfair for the Board to proceed to a hearing into the merits of the applicant’s claim without having first provided the Minister with the requisite notice.

Return to note 132 referrer

Note 133

A case that put this interpretation of Xie into question was Gurajena, supra, note 109, where the Court said: “I do not read Xie as meaning that the R.P.D. should not proceed to an inclusion analysis under section 96 and 97 of the Immigration and Refugee Protection Act as an alternative finding in the event that its exclusion determination under section 98 is found to be in error on judicial review.” However, this approach is not supported in later jurisprudence. For example, in M.C.I. v. Singh, Binder (F.C.A., no. A-35-16), Stratas, Webb, Woods, November 24, 2016; 2016 FCA 300, the FCA, relying on Xie, rejected the Minister’s argument that it would advance simplicity and conservation of resources if a “no credible basis” finding could also be made where the person is excluded. Most recently, in A.B., supra, note 90, the RPD had excluded one of the applicants but had also found her not to be a Convention refugee. Without commenting on the issue of the member’s jurisdiction to consider the merits of the claim (the Minister made no submission on the point), the Court held that the exclusion decision was unreasonable but the refugee determination was not. Accordingly the Court dismissed the judicial review application.

Return to note 133 referrer

Note 134

Xie, supra, note 7.

Return to note 134 referrer

Note 135

Lai, supra, note 73. In Serrano Lemus, Jose Maria v. M.C.I. (F.C., no. IMM-6954-10), Hughes, June 15, 2011; 2011 FC 702, the Court held that this ruling in Lai only applies in cases where there are derivative claims.

Return to note 135 referrer

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Chapter 11 - Article 1F

On this page

11. Article 1F

11.1. Introduction

11.1.1. Standard of proof - Serious reasons to consider

11.1.2. Balancing and Complicity generally

11.2. Article 1F(a): Crimes Against Peace, War Crimes and Crimes Against Humanity

11.2.1. Crimes Against Peace

11.2.2. War Crimes

11.2.3. Crimes Against Humanity

11.2.4. Defences

11.2.4.1. Duress^{Footnote 36}

11.2.4.2. Superior Orders

11.2.4.3. Military Necessity

11.2.4.4. Remorse

11.2.5. Complicity

11.2.5.1. The test for complicity

11.2.5.2. Applying the test

11.2.6. Responsibility of Superiors

11.3. Article 1 F(b): serious non-political crimes

11.3.1. Generally

11.3.2. No requirement for “equivalency”

11.3.3. Determination of whether a crime is serious

11.3.4. Determination of whether a crime is political

11.3.5. Prior to admission

11.3.6. "Serious Reasons for Considering"

11.4. Article 1F(c): acts contrary to the purposes and principles of the United Nations

11.5. Burden of proof and notice

11.6. Consideration of inclusion where claimant is excluded

Notes

Thank you for your help!

Chapter 11 - Article 1F

On this page

11. Article 1F

11.1. Introduction

11.1.1. Standard of proof - Serious reasons to consider

11.1.2. Balancing and Complicity generally

11.2. Article 1F(a): Crimes Against Peace, War Crimes and Crimes Against Humanity

11.2.1. Crimes Against Peace

11.2.2. War Crimes

11.2.3. Crimes Against Humanity

11.2.4. Defences

11.2.4.1. DuressFootnote 36

11.2.4.2. Superior Orders

11.2.4.3. Military Necessity

11.2.4.4. Remorse

11.2.5. Complicity

11.2.5.1. The test for complicity

11.2.5.2. Applying the test

11.2.6. Responsibility of Superiors

11.3. Article 1 F(b): serious non-political crimes

11.3.1. Generally

11.3.2. No requirement for “equivalency”

11.3.3. Determination of whether a crime is serious

11.3.4. Determination of whether a crime is political

11.3.5. Prior to admission

11.3.6. "Serious Reasons for Considering"

11.4. Article 1F(c): acts contrary to the purposes and principles of the United Nations

11.5. Burden of proof and notice

11.6. Consideration of inclusion where claimant is excluded

Notes

Thank you for your help!

11.2.4.1. Duress^{Footnote 36}