Law Times

Page 8 March 3, 2014 • Law TiMes www.lawtimesnews.com Focus on Immigration Law Ezokola v. Canada Decision leaves ineligibility provisions vulnerable to attack Supreme Court decision that makes it more difficult to ex- clude refugee claimants based on their association with organizations that commit international crimes could leave Canada's broad ineligibility provisions exposed to at- tack, according to a prominent Vancouver immigration lawyer. Ezokola v. Canada (Citizenship and Im- migration), released last summer, consid- ered Article 1F(a) of the United Nations 1951 Refugee Convention. e convention denies refugee status to those who commit or are complicit in "a crime against peace, a war crime, or a crime against humanity." In the decision, the nation's top court halted an emerging line of jurisprudence excluding refugee claimants based on "com- plicity by association" with groups that have committed such crimes. It found the exclu- sion can only apply where the claimant "vol- untarily made a significant and knowing contribution to the organization's crime or criminal purpose." But Peter Edelmann, who sits on the executive committee of the Canadian Bar Association's national immigration law sec- tion, says the victory could be a hollow one for many refugee claimants who could still fall afoul of the inadmissibility provisions of sections of the Immigration and Refu- gee Protection Act. People found inadmis- sible to Canada on the grounds of security, violating human or international rights or organized criminality are in turn ineligible for refugee status with membership in a terrorist organization or a senior position in a government that violates human rights enough to trigger inadmissibility. "It's unclear how the Supreme Court will deal with the scope of the ineligibility pro- visions given its approach to the exclusion provisions," says Edelmann. "ere is now a much starker disconnect between the broad scope of ineligibility versus the more narrow scope of the exclusion provisions. ere are going to be people who will be found ineligible to make a refugee claim even though they are not excluded under the convention. We'll have to see whether that disconnect creates problems for Can- ada's international obligations." Montreal-based Annick Legault, who represented the appellant in Ezokola, says the fact situation of her client's case rules out a finding of inadmissibility but notes the decision could prompt a change in tactics from Citizenship and Immigration Canada in other matters. "ere is a fear some have that if the min- ister started an intervention on exclusion, they might want to suspend the refugee hearing and go before the immigration di- vision to seek inadmissibility instead where the burden of proof is lower," she says. Rachidi Ekanza Ezokola began work- ing for the government of the Democratic Republic of Congo in 1999 as a financial attaché in the capital, Kinshasa. By 2007, he was heading the country's permanent mission at the United Nations in New York. A year later, he quit and fled to Cana- da, claiming he could no longer work for a regime he considered corrupt and violent. He sought refugee protection for himself and his family, saying his home country would view his defection as treason. But when his case came before the Immigration and Refugee Board, the adjudicator found Ezokola complicit in crimes against humanity committed by his country's government. A Federal Court judge then granted Ezokola's judicial review application. e Federal Court of Appeal later confirmed a senior official may, "by remaining in his or her position without protest and con- tinuing to defend the interests of his or her government while being aware of the crimes committed by this government, demonstrate 'personal and knowing par- ticipation' in these crimes." In its July 19 decision, the Supreme Court ruled decision-makers had in some cases "overextended" the "personal and knowing participation test" and inappropri- ately shied the "focus towards the criminal activities group and away from the individ- ual's contribution to that criminal activity." Writing for the unanimous nine-judge panel, justices Louis LeBel and Morris Fish ordered Ezokola's case back to the refu- gee protection division for reconsidera- tion under a new test for complicity: "We conclude that an individual will be ex- cluded from refugee protection under art. 1F(a) for complicity in international crimes if there are serious reasons for con- sidering that he or she voluntarily made a knowing and significant contribution to the crime or criminal purpose of the group alleged to have committed the crime. e evidentiary burden falls on the minister as the party seeking the applicant's exclusion." e judges also provided a non-exhaus- tive list of factors designed to guide adjudi- cators in assessing complicity: • e size and nature of the organization. • e part of the organization with which the refugee claimant was most directly concerned. • e refugee claimant's duties and activi- ties within the organization. • e refugee claimant's position or rank in the organization. • e length of time the refugee claimant was in the organization, particularly af- ter acquiring knowledge of the group's crime or criminal purpose. • e method by which the refugee claimant was recruited and the refu- gee claimant's opportunity to leave the organization. "Mr. Ezokola and his family were ex- tremely happy with the result," says Legault. Sukanya Pillay, executive director and general counsel of the Canadian Civil Liberties Association, says the new ap- proach brings Canada into line with in- ternational standards on exclusion. She notes the British Supreme Court had been critical of Canada's approach in its own decisions on Article 1F(a) exclusion. "Rather than treating a claimant as guilty by association, the court recognized that an individual assessment needs to be done," says Pillay, whose organization in- tervened in the case. "Obviously, we do not want Canada to be a haven for those guilty of heinous crimes, but at the same time, we don't want to make the mistake of excluding a bona fide refugee who is innocent. To erroneously disqualify a refugee claimant is just as devastating and unjust in this context as a wrongful convic- tion would be in a criminal context." LT 'To erroneously disqualify a refugee claimant is just as devastating and unjust in this context as a wrongful conviction would be in a criminal context,' says Sukanya Pillay. BY mIcHAel mcKIeRNAN For Law Times REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! AVAILABLE ONLINE AND IN PRINT With more than 264,000 page views and 60,000 unique visitors monthly canadianlawlist.com captures your market. FOR MORE INFORMATION CONTACT Colleen Austin T: 416.649.9327 | E: colleen.austin@thomsonreuters.com www.canadianlawlist.com Get noticed by the lawyers, judges, corporate counsel, finance professionals and other blue chip cilents and prospects who find the contacts they need for Canadian legal expertise at canadianlawlist.com with an annual Gold or Silver Enhanced listing package. ENCHANCE YOUR LISTING TODAY! Untitled-1 1 14-01-08 9:11 AM A

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