Chapter 11 - Article 1F

Previous | Table of Contents | Next

Table of Contents

  1. 11.1. Introduction
    1. 11.1.1. Standard of Proof - Serious Reasons to Consider
    2. 11.1.2. Balancing and Complicity generally
  2. 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
  3. 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"
  4. 11.4. Article 1F(c): acts contrary to the purposes and principles of the United Nations
  5. 11.5. Burden of proof and notice
  6. 11.6. Consideration of inclusion where claimant is excluded
  7. Table of cases

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:
  1. 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;
  2. he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
  3. 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,Note 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 outcome of any one particular case will depend on the facts of the case.

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.Note 2

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,Note 3 but the Board errs if it does.Note 4

The principles of complicity explained below in section 11.2.5. apply to all exclusion crimes.

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 instrumentsNote 5 that deal with these crimes.  The international instrument most frequently used to define these crimes is the Charter of the International Military Tribunal.Note 6 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 RwandaNote 7 and the Statute of the International Tribunal for the Former YugoslaviaNote 8 as well as the Rome Statute of the International Criminal Court.Note 9 The Supreme Court of Canada in EzokolaNote 10 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

As noted above, 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,Note 11 an Act which is the implementation into domestic law of the Rome Statue.

The Supreme Court of Canada in FintaNote 12 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,Note 13 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.Note 14 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,Note 15 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 proveNote 16 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,Note 17 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. The Federal Court has often noted that crimes against humanity are defined in the Charter of the International Military Tribunal as "…murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population...”Note 18 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".Note 19

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.Note 20

The Supreme Court of Canada, in Mugesera,Note 21 found that a criminal act rises to the level of a crime against humanity when the following four elements are made out:

  1. 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);
  2. The act was committed as part of a widespread or systematic attack;
  3. The attack was directed against any civilian population or any identifiable group of persons; and
  4. 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.Note 22

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."Note 23

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.Note 24 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.Note 25

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.Note 26

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,Note 27 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,Note 28 the Court affirmed that Mobutu's regime was engaged in torture and had committed international crimes, namely crimes against humanity.
  • In Yang,Note 29 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,Note 30 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,Note 31 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,Note 32 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 him or her from criminal responsibility and thus he or she will not be excluded from refugee status, despite the claimant's commission of a war crime or crime against humanity.

11.2.4.1. DuressNote 33

The defence of duress may be used to justify participation in certain offences providing the perpetrator was in danger of imminent harm,Note 34 the evil threatened him or her was on balance greater than or equal to the evil which he or she inflicted on the victimNote 35 and he or she was not responsible for his own predicament.Note 36

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.Note 37

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.Note 38 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.Note 39

11.2.4.2. Superior Orders

A claimant may raise the defence that he or she was ordered to commit the offence by his 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”.Note 40

In Betoukoumesou,Note 41 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 he or she 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.Note 42

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.Note 43

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, he or she 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.Note 44

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 EzokolaNote 45 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.Note 46 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 applicableNote 47

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)Note 48

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 recklessnessNote 49) 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.Note 50
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.Note 51
  • 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. The factors are intended for guidance and not all of them will be relevant in every case.Note 52

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."Note 53 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.Note 54

In Ezokola,Note 55 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,Note 56 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,Note 57 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.Note 58 The laying of charges, the entering of a conviction, or an extradition request are not pre-requisites to the application of the exclusion clause.Note 59 As well, the completion of an imposed sentence, the current lack of dangerousness or post-crime expiation or rehabilitation are not bars to exclusion.Note 60 The fact that the Minister refused to give a danger opinion at the eligibility stage is immaterial at the exclusion stage.Note 61

The RPD is entitled to go behind the record of conviction to consider whether there was evidence that the claimant had actually committed a serious, non-political crime.Note 62

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”.Note 63 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.Note 64

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.Note 65 The RPD is not required to set out and determine all of the specifics or elements of the crime committed.Note 66 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.Note 67

In Jayasekara,Note 68 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.Note 69

11.3.3. Determination of whether a crime is serious

In Jayasekara,Note 70 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: Note 71

  1. elements of the crime,
  2. the mode of prosecution,
  3. the penalty prescribed,
  4. the facts, and
  5. the mitigating and aggravating circumstances underlying the conviction.

In Rojas Camacho,Note 72 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,Note 73 the Court held that the RPD had improperly considered such conduct, but in Chernikov,Note 74 the Court held the opposite.

In Pullido Diaz,Note 75 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,Note 76 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.

Psychological harm to victims can be relied on in assessing the essential elements of the crime.Note 77 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.Note 78

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 duressNote 79 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.”Note 80

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.”Note 81

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.”Note 82 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.Note 83 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”.Note 84 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.Note 85

In Sanchez,Note 86 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 section 1F(b) exclusion, not the time when the offence was committed.

In the much earlier case of Brzezinski,Note 87 the Court considered what is meant by "serious crime" within the context of Article 1 F(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,Note 88 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,Note 89 but the Board should assess whether the presumption of seriousness has been rebutted.Note 90

A misdemeanour probably lacks the requisite seriousness to be considered under Article 1F(b).Note 91

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.Note 92

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.Note 93

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.Note 94 (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.Note 95

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.Note 96

11.3.6. "Serious Reasons for Considering"

The existence of a valid warrant issued by a foreign country,Note 97 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 98 Further, in GurajenaNote 99 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).Note 100 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 claimant’s convictions.Note 101

In Arevalo,Note 102 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.

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.Note 103

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

The Supreme Court of Canada dealt with Article 1 F(c) in Pushpanathan.Note 104 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 NationsNote 105 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.Note 106

The Court noted that in dealing with Article 1 F(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.Note 107

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.Note 108

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.Note 109 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."Note 110

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.Note 111

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.Note 112

As a result, the Court determined that "conspiring to traffic in a narcotic is not a violation of Article 1F(c)."Note 113

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.Note 114

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.Note 115

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.

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.Note 116

The Minister does not have to be present at the hearing in order for the Refugee Division to consider exclusion clauses.Note 117

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.Note 118 In addition, failure to give the Minister notice of possible exclusion is a basis for judicial review brought by the Minister.Note 119

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 mostNote 120 of the jusrisprudence.

The Court in XieNote 121 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 LaiNote 122 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.

Table of cases

  1. A.B.C.D. and E.F. v. M.C.I. (F.C., no. IMM-919-15), Strickland, December 16, 2016; 2016 FC 1385
  2. A.C. v. M.C.I. (F.C., IMM-4678-02), Russell, December 19, 2003; 2003 FC 1500
  3. Aazamyar, Homayon v. M.C.I. (F.C., no. IMM-5514-13), Boswell, January 26, 2015; 2015 FC 99
  4. Aguilar, Nelson Antonio Linares v. M.C.I. (F.C.T.D., no. IMM-3118-99), Denault, June 8, 2000
  5. Al Khayyat, Qasim Mohammed v. M.C.I., (F.C., no. IMM-2992-16), Strickland, February 13, 2017; 2017 FC 175
  6. Alwan, Riad Mushen Abou v. M.C.I. (F.C., no. IMM-8204-03), Layden-Stevenson, June 2, 2004; 2004 FC 807
  7. Arevalo Pineda, JoseIsaias v.M.C.I. (F.C., no. IMM-5000-09), Gauthier, April 26, 2010; 2010 FC 454
  8. 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.)
  9. Asghedom, Yoseph v. M.C.I. (F.C.T.D., no. IMM-5406-00), Blais, August 30, 2001
  10. Ashari, Morteza Asna v. M.C.I. (F.C.A., no. A-525-98), Decary, Robertson, Noël, October 26, 1999
  11. Ashari, Morteza Asna v. M.C.I. (F.C.T.D., no. IMM-5205-97), Reed, August 21, 1998
  12. Atabaki:  M.C.I. v. Atabaki, Roozbeh Kianpour (F.C., no. IMM-1669-07), Lemieux, November 13, 2007; 2007 FC 1170
  13. Bamlaku, Mulualem v. M.C.I. (F.C.T.D., no. IMM-846-97), Gibson, January 16, 1998
  14. Baqri, Syed Safdar Ali v. M.C.I. (F.C.T.D., no. IMM-4211-00), Lutfy, October 9, 2001
  15. Bazargan : M.C.I. v. Bazargan, Mohammad Hassan (F.C.A., no. A-400-95), Marceau, Décary, Chevalier, September 18, 1996
  16. Benitez Hidrovo, Jose Ramon v. M.C.I. (F.C., no. IMM-3247-09), Lutfy, February 2, 2010; 2010 FC 111
  17. Bermudez, Ivan Antonio v. M.C.I. (F.C., no. IMM-233-04), Phelan, February 24, 2005; 2005 FC 286
  18. Betancour, Favio Solis v. M.C.I. (F.C., no. IMM-4901-08), Russell, July 27, 2009; 2009 FC 767
  19. Betoukoumesou, Kalala Prince Debase v. M.C.I., (F.C. no., IMM-5820)-13), Mosley, June 20, 2014; 2014 FC 591
  20. Biro, Bela Attila v. M.C.I. (F.C., no. IMM-590-05), Tremblay-Lamer, October 20, 2005; 2005 FC 1428
  21. Bitaraf, Babak v. M.C.I. (F.C., no. IMM-1609-03), Phelan, June 23, 2004; 2004 FC 898
  22. Blanco, Nelson Humberto Ruiz v. M.C.I. (F.C., no. IMM-4587-05), Layden-Stevenson, May 19, 2006; 2006 FC 623
  23. Bonilla, Mauricio Cervera v. M.C.I. (F.C., no. IMM-2795-08), O’Keefe, September 9, 2009; 2009 FC 881
  24. Brzezinski, Jan v. M.C.I. (F.C.T.D., no. IMM-1333-97), Lutfy, July 9, 1998
  25. Cabreja Sanchez, Domingo Antonio v. M.C.I. (F.C., no. IMM-7113-11), O’Keefe, September 26, 2012, 2012 FC 1130
  26. Cadovski: M.C.I. v. Cadovski, Ivan (F.C., no. IMM-1047-05), O’Reilly, March 21, 2006; 2006 FC 364
  27. Chan v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 390 (FCA)
  28. Chan, San Tong v. M.C.I. (F.C.T.D., no. IMM-2154-98), MacKay, April 23, 1999
  29. Chernikov, Roman Alexander v. M.C.I. (F.C., no. IMM-9989-12), Phelan, June 13, 2013; 2013 FC 649
  30. Ching, Mo Yeung v. M.C.I. (F.C., no. IMM-7849-14), Roy, July 15, 2015; 2015 FC 860
  31. Chowdhury, Amit v. M.C.I. (F.C., no. IMM-4920-05), Noël, February 7, 2006; 2006 FC 139
  32. Cibaric, Ivan v. M.C.I. (F.C.T.D., no. IMM-1078-95), Noël, December 18, 1995
  33. Concepcion, Orlando v. M.C.I. (F.C., no. IIMM-626-15), O’Reilly, May 16, 2016; 2016 FC 544
  34. Diaz, Jose Arturo Guerra v. M.C.I. (F.C., no. IMM-3223-12), Manson, January 29, 2013; 2013 FC 88
  35. 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
  36. Equizbal v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 514 (C.A.)
  37. Ezokola v. Canada (Citizenship and Immigration), [2013] 2 S.C.R. 678
  38. Febles v. Canada (Minister of Citizenship and Immigration), [2014] 3 SCR 431; 2014 SCC 68.
  39. Feimi, Erik v. M.C.I. (F.C.A., no. A-90-12), Evans, Sharlow, Stratas, December 7, 2012; 2012 FCA 325
  40. Finta:  R. v. Finta, [1994] 1 S.C.R. 701
  41. Gamboa Micolta, Dawy’s Raul v. M.C.I. (F.C., no. IMM-8558-12), Shore, April 11, 2013; 2013 FC 367.
  42. Gil v. Canada (Minister of Employment and Immigration), [1995] 1 F.C. 508 (C.A.)
  43. Gonzalez v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 646 (C.A.)
  44. Gonzalez, Jose Carlos Hermida v. M.C.I. (F.C., no. IMM-1299-08), Beaudry, November 18, 2008; 2008 FC 1286
  45. Gudima, Audrey v. M.C.I.(F.C., no. IMM-9996-12), Phelan, April 16, 2013; 2013 FC 382
  46. Gurajena, George v. M.C.I. (F.C., no. IMM-4257-07), Lutfy, June 9, 2008; 2008 FC 724
  47. Hadhiri, Mohammed Habib v. M.C.I. (F.C., no. IMM-130-16), LeBlanc, November 18, 2016; 2016 FC 1284
  48. Harb, Shahir v. M.C.I. (F.C.A., no. A-309-02), Décary, Noël, Pelletier, January 27, 2003; 2003 FCA 39
  49. Kamazi, James Mobwano v. M.C.I. (F.C., no. IMM-11654-12), Annis, December 18, 2013; 2013 FC 1261
  50. Kanya, Kennedy Lofty v. M.C.I. (F.C., no. IMM-2778-05), Rouleau, December 9, 2005; 2005 FC 1677
  51. Kathiravel, Sutharsan v. M.C.I. (F.C.T.D., no. IMM-204-02), Lemieux, May 29, 2003; 2003 FCT 680
  52. Kovacs, Miklosne v. M.C.I. (F.C., no. IMM-8183-04), Snider, October 31, 2005; 2005 FC 1473
  53. Lai, Cheong Sing v. M.C.I. (F.C., no. IMM-3194-02), MacKay, February 3, 2004; 2004 FC 179
  54. Lai, Cheong Sing v. M.C.I. (F.C., no. IMM-3194-02), MacKay, March 19, 2004
  55. Lai, Cheong Sing v. M.C.I. (F.C.A., no. A-191-04), Malone, Richard, Sharlow, April 11, 2005; 2005 FCA 125
  56. Liang, Xiao Dong v. M.C.I. (F.C., no. IMM–1286-03), Layden-Stevenson, December 19, 2003; 2003 FC 1501
  57. Lopez Velasco, Jose Vicelio v. M.C.I., (F.C., no. IMM-3423-10), Mandamin, May 30, 2011; 2011 FC 267
  58. Louis: M.C.I. v. Louis, Mac Edhu (F.C., no. IMM-4936-08), Teitelbaum, June 29, 2009; 2009 FC 674
  59. M.C.I. v. Badriyah, Riyadh Basheer (F.C., no. IMM-3172-15), Roussel, September 2, 2016; 2016 FC 1002
  60. M.C.I v. Nwobi, Felix Eberechuk (F.C. no. IMM-5683-13), Martineau, May 30, 2014; 2014 FC 520
  61. M.C.I. v. Toktok, Emre (F.C., no. IMM-11305-12), O’Reilly, November 13, 2013; 2013 FC 1150
  62. Ma, Like v. M.C.I. (F. C. no. IMM-3482-17); Favel, March 6, 2018; 2018 FC 252
  63. Malouf v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 537 (T.D.)
  64. Malouf:  M.C.I. v. Malouf, François (F.C.A., no. A-19-95), Hugessen, Décary, Robertson, November 9, 1995. Reported:  Canada (Minister of Citizenship and Immigration) v. Malouf (1995), 190 N.R. 230 (F.C.A.)
  65. Manickavasagam v. M.P.S.E.P. (F.C., no. IMM-4483-15), Mosley, January 10, 2017; 2017 FC 28
  66. Mohamed, Roshan Akthar Jibreel v. M.C.I.(F.C., no. IMM-5379-14), Annis, July 28, 2015; 2015 FC 1006
  67. Mohammad, Zahir v. M.C.I. (F.C.T.D., no. IMM-4227-94), Nadon, October 25, 1995
  68. Montoya, Jackeline Mari Parisv. M.C.I. (F.C., no. IMM-2107-05), Rouleau, December 9, 2005; 2005 FC 1674
  69. Moreno Florian, Carlos Eduardo Moreno v. M.C.I. (F.C.T.D., no. IMM-2159-01), Tremblay-Lamer, March 1, 2002; 2002 FCT 231
  70. Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.)
  71. Moya Pacheco, Marino Manuel v. M.C.I. (F.C., no. IMM-603-14), Shore, October 20, 2014; 2014 FC 996
  72. Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100; 2005 SCC 40
  73. Munyaneza v. R., [2014] Q.J. No. 3059
  74. Mustafa, Golam v. M.C.I. (F.C., No. IMM-362-15), Phelan, February 2, 2016; 2016 FC 116
  75. Muto: M.C.I. v. Muto, Antonio-Nesland (F.C.T.D., no. IMM-518-01), Tremblay-Lamer, March 6, 2002; 2002 FCT 256
  76. Mutumba, Fahad Huthy v. M.C.I. (F.C., no. IMM-2668-08), Shore, January 7, 2009; 2009 FC 19
  77. Narkaj, Arlind v. M.C.I.(F.C., no. IMM-1469-13), O’Reilly, January 8, 2015; 2015 FC 26
  78. Ndikumassabo, Edouard v. M.C.I (F.C., no. IMM-728-14), Shore, October 8, 2014; 2014 FC 955
  79. Noha, Augustus Charles v. M.C.I. (F.C., no. IMM-4927-08), Shore, June 30, 2009; 2009 FC 683
  80. Notario, Sebastian Maghanoy v. M.C.I. (F.C., no. IMM-2229-13), O’Keefe, December 2, 2014; 2014 FC 1159
  81. Nwobi, Felix Eberechukwu v. M.C.I. (F.C. no. IMM-2577-17), LeBlanc, March 20, 2018; 2018 FC 317
  82. Nyari, Istvan v. M.C.I. (F.C.T.D., no. IMM-6551-00), Kelen, September 18, 2002; 2002 FCT 979
  83. Oberlander, Helmut v. A.G. Canada (F.C.A., no. A-51-15), Dawson, Near, Boivin, February 15, 2016; 2016 FCA 52
  84. Osman, Abdirizak Said v. M.E.I. (F.C.T.D., no. IMM-261-93), Nadon, December 22, 1993
  85. Penate v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 79 (T.D.)
  86. Poggio Guerrero, Gustavo Adolfo v. M.C.I. (F.C., no. IMM-8733-11), Near, July 30, 2012; 2012 FC 937
  87. Pulido Diaz:M.C.I. v. Pulido Diaz, Paola Andrea (F.C., no. IMM-4878-10), Phelan, June 21, 2011; 2011 FC 738
  88. Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1996] 2 F.C. 49 (C.A.)
  89. Pushpanathanv. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982
  90. Qazi, Musawar Hussain v. M.C.I. (F.C., no. IMM-9182-04), von Finckenstein, September 2, 2005; 2005 FC 1204
  91. R. v. Ryan, 2013 SCC 3
  92. Radi, Spartak v. M.C.I. (F.C., no. IMM-2928-11), Near, January 5, 2012; 2012 FC 16
  93. Raina: M.C.I. v. Raina, Vinod Kumar (F.C., no. IMM-7164-11), Shore, May 23, 2012; 2012 FC 618
  94. Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.)
  95. Rasuli, Nazir Ahmad v. M.C.I. (F.C.T.D., no. IMM-3119-95), Heald, October 25, 1996
  96. Reyes Rivas, Carlos Arnoldo v. M.C.I., (F.C., no. IMM-3255-06), Tremblay-Lamer, March 13, 2007; 2007 FC 317
  97. Rihan, Ahmed Abdel Hafiz Ahmed v. M.C.I. (F.C., no. IMM-4743-08), Mandamin, February 5, 2010; 2010 FC 123
  98. Rojas Camacho, Marcia Ines v. M.C.I. (F.C., no. IMM-6140-10), Mosley, June 28, 2011; 2011 FC 789
  99. Rudyak, Korniy v. M.C.I. (F.C., no. IMM-6743-05), Pinard, September 29, 2006; 2006 FC
  100. Sanchez, Noe Gama v. M.C.I. (F.C.A, no. A-315-13), Nadon, Stratas, Scott, June 10, 2014; 2014 FCA 157
  101. Serrano Lemus, Jose Maria v. M.C.I. (F.C., no. IMM-6954-10), Hughes, June 15, 2011; 2011 FC 702
  102. Sharma, Gunanidhi v. M.C.I. (F.C.T.D., no. IMM-1668-02), Noël, March 10, 2003; 2003 FCT 289
  103. Singh: M.C.I. v. Singh, Binder (F.C.A., no. A-35-16), Stratas, Webb, Woods, November 24, 2016; 2016 FCA 300
  104. Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.).
  105. Suliman, Shakir Mohamed v. M.C.I. (F.C.T.D., no. IMM-2829-96), McGillis, June 13, 1997
  106. 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.)
  107. Sungu v. Canada (Minister of Citizenship and Immigration) [2003] 3 F.C. 192 (T.D.); 2002 FCT 1207
  108. Szekely, Attila v. M.C.I. (F.C.T.D., no. IMM-6032-98), Teitelbaum, December 15, 1999
  109. Tabagua, Rusudan v. M.C.I. (F.C., no. IMM-2549-14), Gleason, June 4, 2015; 2015 FC 709
  110. Taleb, Ali et al. v. M.C.I. (F.C.T.D., no. 1449-98), Tremblay-Lamer, May 18, 1999
  111. Talpur, Hina v. M.C.I. (F.C., no. IMM-5782-15), Manson, July 19, 2016; 2016 FC 822
  112. Tilus, Francky v. M.C.I. (F.C., no. IMM-3426-05), Harrington, December 23, 2005; 2005 FC 1738
  113. Valdespino Partida, Aurelio v. M.C.I. (F.C., no. IMM-8616-11), Campbell, April 9, 2013; 2013 FC 359
  114. Ventocilla, Alex Yale v. M.C.I. (F.C., no. IMM-4222-06), Teitelbaum, May 31, 2007; 2007 FC 575
  115. Vergara, Marco Vinicio Marchant v. M.C.I. (F.C.T.D., no. IMM-1818-00), Pinard, May 15, 2001
  116. 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
  117. Vlad, Anghel v. M.C.I. (F.C., no. IMM-1800-06), Snider, February 1, 2007; 2007 FC 172
  118. Wajid, Rham v. M.C.I. (F.C.T.D., no. IMM-1706-99), Pelletier, May 25, 2000
  119. Xie, Rou Lan v. M.C.I. (F.C., no. IMM-923-03), Kelen, September 4, 2003; 2003 FCT 1023
  120. Xie, Rou Lan v. M.C.I. (F.C.A., no. A-422-03), Décary, Létourneau, Pelletier, June 30, 2004, 2004 FCA 250
  121. Xu, Hui Ping v. M.C.I. (F.C., no. IMM-9503-04), Noël, July 11, 2005; 2005 FC 970
  122. Yang, Jin Xiangv.M.C.I. (F.C.T.D., no. IMM-1372-98), Evans, February 9, 1999
  123. Zeng, Hany v. M.C.I. (F.C., no. IMM-2319-07), O’Keefe, August 19, 2008; 2008 FC 956
  124. Zrig v. Canada (Minister of Citizenship and Immigration), [2003] 3. F.C. 761; 2003 FCA 178
  125. Zrig, Mohamed v. M.C.I. (F.C.T.D., no. IMM-601-00), Tremblay-Lamer, September 24, 2001

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 for a long time, see for example 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”.

Return to note 1 referrer

Note 2

Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.).

Return to note 2 referrer

Note 3

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.

Return to note 3 referrer

Note 4

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

Return to note 4 referrer

Note 5

See Annex VI of the UNHCR Handbook for a partial list of applicable international instruments.

Return to note 5 referrer

Note 6

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

Return to note 6 referrer

Note 7

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 7 referrer

Note 8

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 8 referrer

Note 9

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 9 referrer

Note 10

Ezokola, supra, footnote 1

Return to note 10 referrer

Note 11

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

Return to note 11 referrer

Note 12

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

Return to note 12 referrer

Note 13

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

Return to note 13 referrer

Note 14

See Mugesera, supra, footnote 13, at paragraph 44.

Return to note 14 referrer

Note 15

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

Return to note 15 referrer

Note 16

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 16 referrer

Note 17

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 17 referrer

Note 18

Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 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 18 referrer

Note 19

Sivakumar, supra, footnote 18, 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 19 referrer

Note 20

Finta, supra, footnote 12. 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 20 referrer

Note 21

Mugesera, supra, footnote 13 .

Return to note 21 referrer

Note 22

Mugesera, supra, footnote 13 .

Return to note 22 referrer

Note 23

Mugesera, supra, footnote 13 .

Return to note 23 referrer

Note 24

Mugesera, supra, footnote 13 , at paragraph 161.

Return to note 24 referrer

Note 25

Mugesera, supra, footnote 13 , at paragraph 174.

Return to note 25 referrer

Note 26

Sivakumar, supra, footnote 18 , at 444.

Return to note 26 referrer

Note 27

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

Return to note 27 referrer

Note 28

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

Return to note 28 referrer

Note 29

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

Return to note 29 referrer

Note 30

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

Return to note 30 referrer

Note 31

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

Return to note 31 referrer

Note 32

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 32 referrer

Note 33

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 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 33 referrer

Note 34

Ramirez, 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 34 referrer

Note 35

Ramirez, supra, footnote 1, at 328.

Return to note 35 referrer

Note 36

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.

Return to note 36 referrer

Note 37

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

Return to note 37 referrer

Note 38

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 38 referrer

Note 39

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

Return to note 39 referrer

Note 40

Finta, supra, footnote 12, 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”.

Return to note 40 referrer

Note 41

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 41 referrer

Note 42

Gonzalez, supra, footnote 3, (see concurring reasons of Mr. Justice Létourneau, at 661).

Return to note 42 referrer

Note 43

Ramirez, supra, footnote 1, at 328.

Return to note 43 referrer

Note 44

Moreno, supra, footnote2; Penate v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 79 (T.D.), at 84.

Return to note 44 referrer

Note 45

Ezokola, supra, footnote 1.

Return to note 45 referrer

Note 46

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.

Return to note 46 referrer

Note 47

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 47 referrer

Note 48

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.

Return to note 48 referrer

Note 49

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 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 49 referrer

Note 50

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 Ezokola. See Aazamyar, Homayon v. M.C.I. (F.C., no. IMM-5514-13), Boswell, January 26, 2015; 2015 FC 99.

Return to note 50 referrer

Note 51

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.

Return to note 51 referrer

Note 52

Al Khayyat, supra, footnote 33, referring to Moya Pacheco, 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 52 referrer

Note 53

Sivakumar, supra, footnote 18, at 439.

Return to note 53 referrer

Note 54

Sivakumar, supra, footnote 18, at 440.

Return to note 54 referrer

Note 55

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 55 referrer

Note 56

Mohammad, Zahir v. M.C.I. (F.C.T.D., no. IMM-4227-94), Nadon, October 25, 1995.

Return to note 56 referrer

Note 57

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

Return to note 57 referrer

Note 58

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

Return to note 58 referrer

Note 59

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

Return to note 59 referrer

Note 60

Febles, supra, footnote 58. See also Jayasekara v. Canada (Minister of Citizenship and Immigration), [2009] 4 F.C.R. 164 (F.C.A.); 2008 FCA 404.

Return to note 60 referrer

Note 61

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 61 referrer

Note 62

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 62 referrer

Note 63

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 63 referrer

Note 64

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 64 referrer

Note 65

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 65 referrer

Note 66

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 66 referrer

Note 67

Vlad, supra, footnote 64 and Zeng, Hany v. M.C.I. (F.C., no. IMM-2319-07), O’Keefe, August 19, 2008; 2008 FC 956.

Return to note 67 referrer

Note 68

Jayasekara, supra, footnote 60.

Return to note 68 referrer

Note 69

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 69 referrer

Note 70

Jayasekara, supra footnote 60. 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.

Return to note 70 referrer

Note 71

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 71 referrer

Note 72

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

Return to note 72 referrer

Note 73

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

Return to note 73 referrer

Note 74

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

Return to note 74 referrer

Note 75

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 75 referrer

Note 76

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

Return to note 76 referrer

Note 77

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 77 referrer

Note 78

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 78 referrer

Note 79

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 33.

Return to note 79 referrer

Note 80

Jayasekara, supra, footnote 60, at par. 45.

Return to note 80 referrer

Note 81

Jayasekara, supra, footnote 60 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.C.D. 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 81 referrer

Note 82

Jayasekara, supra, footnote 60 at par. 43.

Return to note 82 referrer

Note 83

Jayasekara, supra, footnote 60 at par. 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.

Return to note 83 referrer

Note 84

Jayasekara, supra, footnote 60 at par. 44.

Return to note 84 referrer

Note 85

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.

Return to note 85 referrer

Note 86

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 86 referrer

Note 87

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 3.

Return to note 87 referrer

Note 88

Xie, supra, footnote 4. 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 88 referrer

Note 89

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 89 referrer

Note 90

A.B.C.D. and E.F, supra, footnote 81.

Return to note 90 referrer

Note 91

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

Return to note 91 referrer

Note 92

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, footnote 66, paragraphs 62-64.

Return to note 92 referrer

Note 93

See also the Federal Court of Appeal decision in Malouf, supra, footnote 3, 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 93 referrer

Note 94

Gil, 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), [1995] 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 94 referrer

Note 95

Gil, supra, footnote 92, at 535.

Return to note 95 referrer

Note 96

Malouf, supra, footnote 94, at 553.

Return to note 96 referrer

Note 97

In Gamboa, supra, footnote 77, 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 97 referrer

Note 98

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.

Return to note 98 referrer

Note 99

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

Return to note 99 referrer

Note 100

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.

Return to note 100 referrer

Note 101

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

Return to note 101 referrer

Note 102

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 102 referrer

Note 103

Malouf, supra, footnote 94 .

Return to note 103 referrer

Note 104

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

Return to note 104 referrer

Note 105

Ibid, at 1032.

Return to note 105 referrer

Note 106

Ibid, at 1029.

Return to note 106 referrer

Note 107

Pushpanathan, supra, footnote 104, 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 107 referrer

Note 108

Pushpanathan, supra, footnote 104, 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 108 referrer

Note 109

Pushpanathan, supra, footnote 104, at 1030.

Return to note 109 referrer

Note 110

Pushpanathan, supra, footnote 104, at 1032.

Return to note 110 referrer

Note 111

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 111 referrer

Note 112

Ibid, at 1035.

Return to note 112 referrer

Note 113

Ibid, at 1035.

Return to note 113 referrer

Note 114

Ibid, at 1035.

Return to note 114 referrer

Note 115

Ibid, at 1031.

Return to note 115 referrer

Note 116

Ramirez, 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 116 referrer

Note 117

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 117 referrer

Note 118

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

Return to note 118 referrer

Note 119

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).

Return to note 119 referrer

Note 120

A case that put this interpretation of Xie into question was Gurajena, supra, footnote 99, 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.C.D., supra, footnote 81, 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 120 referrer

Note 121

Xie, supra, footnote 4.

Return to note 121 referrer

Note 122

Lai, supra, footnote 88. 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 122 referrer

Previous | Table of Contents | Next