- Note 1
Ezokola v. Canada (Citizenship and Immigration),  2 S.C.R. 678. In fact, this standard has been the recognized standard in Canadian law for a long time, see for example
Ramirez v. Canada (Minister of Employment and Immigration),  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”.
Return to note 1 referrer
- Note 2
Moreno v. Canada (Minister of Employment and Immigration),  1 F.C. 298 (C.A.).
Return to note 2 referrer
- Note 3
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.
Return to note 3 referrer
- Note 4
Abbas, Arash Ghulam v. M.C.I. (F.C. no. IMM-2494-18), Brown, January 7, 2019; 2019 FC 12 at paragraph 45.
Return to note 4 referrer
- Note 5
Gonzalez v. Canada (Minister of Employment and Immigration),  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),  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.
Return to note 5 referrer
- Note 6
Xie, Rou Lan v. M.C.I. (F.C.A., no. A-422-03), Décary, Létourneau, Pelletier, June 30, 2004.
Return to note 6 referrer
- Note 7
See Annex VI of the UNHCR
Handbook for a partial list of applicable international instruments.
Return to note 7 referrer
- Note 8
82 U.N.T.S. 279. (http://www.ibiblio.org/pha/war.term/trib_02.html). See Annex V of the UNHCR
Return to note 8 referrer
- Note 9
Adopted by Security Council resolution 955 (1994) of 8 November 1994, as amended. (http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/955(1994))
Return to note 9 referrer
- Note 10
Adopted by Security Council resolution 827 (1993) of 25 May 1993, as amended. (http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/827(1993))
Return to note 10 referrer
- Note 11
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.
Return to note 11 referrer
- Note 12
Ezokola, supra, footnote 1
Return to note 12 referrer
- Note 13
S.C. 2000, c.24, section 6(3).
Return to note 13 referrer
- Note 14
R. v. Finta,  1 S.C.R. 701.
Return to note 14 referrer
- Note 15
Mugesera v. Canada (Minister of Citizenship and Immigration),  2 S.C.R. 100; 2005 SCC 40.
Return to note 15 referrer
- Note 16
supra, footnote 13, at paragraph 44.
Return to note 16 referrer
- Note 17
Munyaneza v. R.,  Q.J. No. 3059.
Return to note 17 referrer
- Note 18
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).
Return to note 18 referrer
- Note 19
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.
Return to note 19 referrer
- Note 20
Sivakumar v. Canada (Minister of Employment and Immigration),  1 F.C. 433 (C.A.). 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.
Return to note 20 referrer
- Note 21
Sivakumar, supra, footnote 20, 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.
Return to note 21 referrer
- Note 22
Finta, supra, footnote 14. 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.
Return to note 22 referrer
- Note 23
Mugesera, supra, footnote 15 .
Return to note 23 referrer
- Note 24
Mugesera, supra, footnote 15 .
Return to note 24 referrer
- Note 25
Mugesera, supra, footnote 15 .
Return to note 25 referrer
- Note 26
Mugesera, supra, footnote 15 , at paragraph 161.
Return to note 26 referrer
- Note 27
Mugesera, supra, footnote 15 , at paragraph 174.
Return to note 27 referrer
- Note 28
Sivakumar, supra, footnote 20 , at 444.
Return to note 28 referrer
- Note 29
Cibaric, Ivan v. M.C.I. (F.C.T.D., no. IMM-1078-95), Noël, December 18, 1995.
Return to note 29 referrer
- Note 30
Sungu v. Canada (Minister of Citizenship and Immigration)  3 F.C. 192 (T.D.); 2002 FCT 1207.
Return to note 30 referrer
- Note 31
Yang, Jin Xiangv.M.C.I. (F.C.T.D., no. IMM-1372-98), Evans, February 9, 1999.
Return to note 31 referrer
- Note 32
Tilus, Francky v. M.C.I. (F.C., no. IMM-3426-05), Harrington, December 23, 2005; 2005 FC 1738.
Return to note 32 referrer
- Note 33
Baqri, Syed Safdar Ali v. M.C.I. (F.C.T.D., no. IMM-4211-00), Lutfy, October 9, 2001.
Return to note 33 referrer
- Note 34
M.C.I. v. Muto, Antonio-Nesland (F.C.T.D., no. IMM-518-01), Tremblay-Lamer, March 6, 2002; 2002 FCT 256.
Return to note 34 referrer
- Note 35
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.
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 making a determination on proportionality, there must be a finding about the extent of the contribution to the crime or criminal purpose.
Return to note 35 referrer
- Note 36
supra, footnote 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.
Return to note 36 referrer
- Note 37
supra, footnote 1, at 328.
Return to note 37 referrer
- Note 38
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.
Return to note 38 referrer
- Note 39
Asghedom, Yoseph v. M.C.I. (F.C.T.D., no. IMM-5406-00), Blais, August 30, 2001.
Return to note 39 referrer
- Note 40
Moreno Florian, Carlos Eduardo v. M.C.I. (F.C.T.D., no. IMM-2159-01), Tremblay-Lamer, March 1, 2002; 2002 FCT 231.
Return to note 40 referrer
- Note 41
Kathiravel, Sutharsan v. M.C.I. (F.C.T.D., no. IMM-204-02), Lemieux, May 29, 2003; 2003 FCT 680.
Return to note 41 referrer
- Note 42
Finta, supra, footnote 14, 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),  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”.
Return to note 42 referrer
- Note 43
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.
Return to note 43 referrer
- Note 44
Gonzalez, supra, footnote 5, (see concurring reasons of Mr. Justice Létourneau, at 661).
Return to note 44 referrer
- Note 45
supra, footnote 1, at 328.
Return to note 45 referrer
- Note 46
Moreno, supra, footnote2;
Penate v. Canada (Minister of Employment and Immigration),  2 F.C. 79 (T.D.), at 84.
Return to note 46 referrer
- Note 47
supra, footnote 1.
Return to note 47 referrer
- Note 48
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
Return to note 48 referrer
- Note 49
Note that coercion that does not rise to the level of duress may still negate voluntariness. See Ezokola,
supra, footnote 1, and
Al Khayyat, Qasim Mohammed v. M.C.I., (F.C., no. IMM-2992-16), Strickland, February 13, 2017; 2017 FC 175.
Return to note 49 referrer
- Note 50
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.
Return to note 50 referrer
- Note 51
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 he 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.
Return to note 51 referrer
- Note 52
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 1 F(a), the officer was not bound by the RPD’s conclusion that the applicant was complicity 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
Aazamyar, Homayon v. M.C.I. (F.C., no. IMM-5514-13), Boswell, January 26, 2015; 2015 FC 99.
Return to note 52 referrer
- Note 53
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
Return to note 53 referrer
- Note 54
Al Khayyat, supra, footnote 35, referring to
supra, footnote 48,
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.
Return to note 54 referrer
- Note 55
supra footnote 3.
Return to note 55 referrer
- Note 56
Sivakumar, supra, footnote 20, at 439.
Return to note 56 referrer
- Note 57
Sivakumar, supra, footnote 20, at 440.
Return to note 57 referrer
- Note 58
Ezokola, supra, footnote 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.”
Return to note 58 referrer
- Note 59
Mohammad, Zahir v. M.C.I. (F.C.T.D., no. IMM-4227-94), Nadon, October 25, 1995.
Return to note 59 referrer
- Note 60
Gonzalez, Jose Carlos Hermida v. M.C.I. (F.C., no. IMM-1299-08), Beaudry, November 18, 2008; 2008 FC 1286.
Return to note referrer
- Note 61
Febles v. Canada (Minister of Citizenship and Immigration),  3 SCR 431; 2014 SCC 68.
Return to note 61 referrer
- Note 62
Zrig v. Canada (Minister of Citizenship and Immigration),  3 FC 761; 2003 FCA 178.
Return to note 62 referrer
- Note 63
Febles, supra, footnote 61. See also
Jayasekara v. Canada (Minister of Citizenship and Immigration),  4 F.C.R. 164 (F.C.A.); 2008 FCA 404.
Return to note 63 referrer
- Note 64
Feimi, Erik v. M.C.I. (F.C.A., no. A-90-12), Evans, Sharlow, Stratas, December 7, 2012; 2012 FCA 325.
Return to note 64 referrer
- Note 65
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.
Return to note 65 referrer
- Note 66
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.
Return to note 66 referrer
- Note 67
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.
Return to note 67 referrer
- Note 68
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.
Return to note 68 referrer
- Note 69
Lai, Cheong Sing v. M.C.I. (F.C.A., A-191-04), Malone, Richard, Sharlow, April 11, 2005; 2005 FCA 125.
Return to note 69 referrer
- Note 70
Vlad, supra, footnote 67 and
Zeng, Hany v. M.C.I. (F.C., no. IMM-2319-07), O’Keefe, August 19, 2008; 2008 FC 956.
Return to note 70 referrer
- Note 71
supra, footnote 63.
Return to note 71 referrer
- Note 72
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.
Return to note 72 referrer
- Note 73
Jayasekara, supra footnote 63. 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
Return to note 73 referrer
- Note 74
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.
Return to note 74 referrer
- Note 75
Rojas Camacho, Marcia Ines v. M.C.I. (F.C., no. IMM-6140-10), Mosley, June 28, 2011; 2011 FC 789.
Return to note 75 referrer
- Note 76
Valdespino Partida, Aurelio v. M.C.I. (F.C., no. IMM-8616-11), Campbell, April 9, 2013; 2013 FC 359.
Return to note 76 referrer
- Note 77
Chernikov, Roman Alexander v. M.C.I. (F.C., no. IMM-9989-12), Phelan, June 13, 2013; 2013 FC 649.
Return to note 77 referrer
- Note 78
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 3 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.
Return to note 78 referrer
- Note 79
Narkaj, Arlind v. M.C.I. (F.C., no. IMM-1469-13), O’Reilly, January 8, 2015; 2015 FC 26.
Return to note 79 referrer
- Note 80
Gamboa Micolta, Dawy’s Raul v. M.C.I. (F.C., no. IMM-8558-12), Shore, April 11, 2013; 2013 FC 367.
Return to note 80 referrer
- Note 81
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.
Return to note 81 referrer
- Note 82
For a case where duress was a factor, see
Diaz, Jose Arturo Guerra v. M.C.I. (F.C., no. IMM-3223-12), Manson, January 29, 2013; 2013 FC 88. The Court noted that the test for duress requires (a) an urgent situation of clear and imminent danger; (b) no reasonable legal alternative to breaking the law; and (c) proportionality between the harm inflicted and the harm avoided. The test for the defence of duress in criminal cases is set out in the SCC decision of
R. v. Ryan,
supra, footnote 35.
Return to note 82 referrer
- Note 83
Jayasekara, supra, footnote 63, at par. 45.
Return to note 83 referrer
- Note 84
Jayasekara, supra, footnote 63 at par. 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.
Return to note 84 referrer
- Note 85
Jayasekara, supra, footnote 63 at par. 43.
Return to note 85 referrer
- Note 86
supra, footnote 63 at par. 40. See also
Chan v. Canada (Minister of Citizenship and Immigration),  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.
Return to note 86 referrer
- Note 87
Jayasekara, supra, footnote 63 at par. 44.
Return to note 87 referrer
- Note 88
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.
Return to note 88 referrer
- Note 89
Hersy, Abdi Elmy v. M.C.I. (F.C. no. IMM-3085-15), Russell, February 12, 2016; 2016 FC 190 at paragraphs 67-69.
Return to note 89 referrer
- Note 90
Sanchez, Noe Gama v. M.C.I. (F.C.A, no. A-315-13), Nadon, Stratas, Scott, June 10, 2014; 2014 FCA 157.
Return to note 90 referrer
- Note 91
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 footnote 5.
Return to note 91 referrer
- Note 92
Xie, supra, footnote 6. 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.
Return to note 92 referrer
- Note 93
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.
Return to note 93 referrer
- Note 94
A.B. and E.F, supra, footnote 84.
Return to note 94 referrer
- Note 95
Osman, Abdirizak Said v. M.E.I. (F.C.T.D., no. IMM-261-93), Nadon, December 22, 1993, at 4.
Return to note 95 referrer
- Note 96
Gil v. Canada (Minister of Employment and Immigration),  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
supra, footnote 69, paragraphs 62-64.
Return to note 96 referrer
- Note 97
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.
Return to note 97 referrer
- Note 98
ibid., 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),  1 F.C. 537 (T.D.), at 556-557, but note that the Federal Court of Appeal stated in
Malouf, supra, footnote 3, 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.
Return to note 98 referrer
- Note 99
supra, footnote 96, at 535.
Return to note 99 referrer
- Note 100
Malouf, supra, footnote 98, at 553.
Return to note 100 referrer
- Note 101
Gamboa, supra, footnote 80, 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.
Return to note 101 referrer
- Note 102
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:
 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.
Return to note 102 referrer
- Note 103
Gurajena, George v. M.C.I. (F.C., no. IMM-4257-07), Lutfy, June 9, 2008; 2008 FC 724.
Return to note 103 referrer
- Note 104
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.
Return to note 104 referrer
- Note 105
Biro, Bela Attila v. M.C.I. (F.C., no. IMM-590-05), Tremblay-Lamer, October 20, 2005; 2005 FC 1428.
Return to note 105 referrer
- Note 106
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.
Return to note 106 referrer
- Note 107
supra, footnote 4 at paragraphs 34-35.
Return to note 107 referrer
- Note 108
Malouf, supra, footnote 98 .
Return to note 108 referrer
- Note 109
Pushpanathanv. Canada (Minister of Citizenship and Immigration),  1 S.C.R. 982.
Return to note 109 referrer
- Note 110
Ibid, at 1032.
Return to note 110 referrer
- Note 111
Ibid, at 1029.
Return to note 111 referrer
- Note 112
Pushpanathan, supra, footnote 109, 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.
Return to note 112 referrer
- Note 113
Pushpanathan, supra, footnote 109, 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.
Return to note 113 referrer
- Note 114
Pushpanathan, supra, footnote 109, at 1030.
Return to note 114 referrer
- Note 115
Pushpanathan, supra, footnote 109, at 1032.
Return to note 115 referrer
- Note 116
Ibid, 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.
Return to note 116 referrer
- Note 117
Ibid, at 1035.
Return to note 117 referrer
- Note 118
Ibid, at 1035.
Return to note 118 referrer
- Note 119
Ibid, at 1035.
Return to note 119 referrer
- Note 120
Ibid, at 1031.
Return to note 120 referrer
- Note 121
supra, footnote 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.”
Return to note 121 referrer
- Note 122
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.
Return to note 122 referrer
- Note 123
Aguilar, Nelson Antonio Linares v. M.C.I. (F.C.T.D., no. IMM-3118-99), Denault, June 8, 2000.
Return to note 123 referrer
- Note 124
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 124 referrer
- Note 125
A case that put this interpretation of Xie into question was
Gurajena, supra, footnote 103, 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, footnote 84, 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 125 referrer
- Note 126
Xie, supra, footnote 6.
Return to note 126 referrer
- Note 127
Lai, supra, footnote 92. 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 127 referrer