File No IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE FEDERAL COURT OF APPEAL) - and - THE MINISTER OF CITIZENSHIP AND IMMIGRATION.

Transcription

1 File No IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE FEDERAL COURT OF APPEAL) B E T W E E N: Rachidi EKANZA EZOKOLA - and - THE MINISTER OF CITIZENSHIP AND IMMIGRATION -and- APPELLANT (Respondent) RESPONDENT (Appellant) UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, AMNESTY INTERNAITONAL, CANADIAN CENTRE FOR INTERNATIONAL JUSTICE AND INTERNATIONAL HUMAN RIGHTS PROGRAM AT UNIVERSITY OF TORONTO FACULTY OF LAW, CANADIAN COUNCIL FOR REFUGEES, CANADIAN CIVIL LIBERTIES ASSOCIATION, CANADIAN ASSOCIATION OF REFUGEE LAWYERS INTERVENERS FACTUM OF THE INTERVENER CANADIAN CIVIL LIBERTIES ASSOCIATION (Persuant to Rule 37 of the Rules of Supreme Court of Canada)

2 Counsel for the Intervener Canadian Civil Liberties Association Sukanya Pillay Canadian Civil Liberties Association Bloor Street West Toronto, ON M5S 1X1 Phone: Fax: Counsel for the Proposed Intervener, Canadian Civil Liberties Association Agent for the Intervener Canadian Civil Liberties Association Lawrence Greenspon Greenspon, Brown & Associates 331 Somerset Street West, Ottawa, ON, K2P 0J8 Telephone: Fax: Agent for the Proposed Intervener, Canadian Civil Liberties Association Original to Registrar COPIES TO: Annick Legault BOISCLAIR & LEGAULT 400 Rue McGill, 2 nd floor Montreal, Quebec H2Y 2G1 Telephone : (514) Fax : (514) alegault77@hotmail.com Jared Will 305 rue Bellechasse, Suite 400A Montreal, Quebec H2S 1W9 Telephone : (514) Fax : (514) jared@jwavocat.ca Yavar Hameed HAMEED FARROKHZAD 43 Florence Street Ottawa, Ontario K2P 0W6 Telephone: (613) ext. 228 Fax: (613) Agent for Appellant -and- Peter Shams 305 rue Bellechasse, Suite 400A Montreal, Quebec H2S 1W9 Telephone : (514) Fax : (514) ps@shamslaw.ca

3 Counsel for the Appellant Maîtres Francois Joyal and Ginnette Gobeil Côté, Marcoux & Joyal Complexe Guy-Favreau 200, boul. René-Lévesque O. Tour Est, 9e étage Montréal, Quebec H2Z 1X4 Telephone: (514) Fax: (514) Counsel for Respondent Lorne Waldman Waldman & Associates 281 Eglinton Avenue East Toronto, Ontario M4P 1L3 Telephone: (416) FAX: (416) Counsel to Intervener, United Nations High Commissioner for Refugees Christopher M. Rupar Attorney General of Canada Bank of Canada Building East Tower 234 Wellington Street, Room 1212 Ottawa, Ontario K1A 0H8 Telephone: (613) Fax: (613) Agent for Respondent Brian A. Crane, Q.C. Gowling Lafleur Henderson LLP Elgin St Box 466 Station D Ottawa, Ontario K1P 1C3 Telephone: (613) FAX: (613) brian.crane@gowlings.com Agent to Intervener, United Nations High Commissioner for Human Rights Michael Bossin Laïla Demidache Chantal Tie Community Legal Services-Ottawa Carleton 1 Nicholas Street, Suite 422 Ottawa, Ontario K1N 7B7 Telephone : (613) Ext: 224 FAX: (613) bossinm@lao.on.ca Counsel to Intervener, Amnesty International

4 John Terry Sarah R. Shody Torys LLP Suite 3000, Maritime Life Tower P. O. Box 270, Toronto-Dominion Centre Toronto, Ontario M5K 1N2 Telephone: (416) FAX: (416) Jeffrey W. Beedell McMillan LLP 50 O'Connor Street Suite 300 Ottawa, Ontario K1P 6L2 Telephone: (613) Ext: 122 FAX: (613) Counsel to Intervener, Canadian Centre for International Justice and International Human Rights Program at the University of Toronto Faculty of Law Catherine Dauvergne Annick Legault University of British Columbia Faculty of Law 1822 East Mall Vancouver, British Columbia V6T 1Z1 Telephone: (604) FAX: (604) Counsel to Intervener, Canadian Council for Refugees Jennifer Bond Carole Simone Dahan Andrew Brouwer Aviva Basman University of Ottawa 57 Louis Pasteur St., room 353 Faculty of Law Ottawa, Ontario K1N 6N5 Telephone: (613) Ext: 3314 FAX: (613) Agent to Intervener, Canadian Centre for International Justice and International Human Rights Program at the University of Toronto Faculty of Law Michael Bossin Community Legal Services-Ottawa Carleton 1 Nicholas Street, Suite 422 Ottawa, Ontario K1N 7B7 Telephone: (613) Ext: 224 FAX: (613) bossinm@lao.on.ca Agent to Intervener, Canadian Council for Refugees Jean Lash South Ottawa Community Legal Services Bank Street Ottawa, Ontario K1S 0X2 Telephone: (613) FAX: (613) lashj@lao.on.ca Agent to Intervener, Canadian Association of Refugee Lawyers Counsel for Intervener, Canadian Association of Refugee Lawyers

5 -i- TABLE OF CONTENTS I. OVERVIEW. 1 II. FACTS. 2 III. ARGUMENT Proper Application of Article 1F(a).. 2 a. Article 1F(a) must be applied restrictively, with great caution, and only after an individual assessment of the individual circumstances of the case 2 b. This Honourable Court should adopt the approach of international criminal law which bases individual criminal responsibility upon satisfaction of all elements including mens rea, and considering all defences.. 3 c. Individual responsibility for Article 1F(a) crimes must be established, in order for exclusion to be justified. 4 d. An individualized assessment is required.. 6 e. The Standard of Proof should be sufficiently high 7 2. Section 7 of the Charter is Engaged. 8 a. Section 7 demands procedural fairness in decision-making which impacts a persons rights to life, liberty and security of the person 9 b. The above-noted failure to provide the procedural safeguards noted above would breaches of section 7 in a manner are not saved by section 1 10 IV. SUBMISSIONS ON COSTS. 10 V. ORDER SOUGHT.. 10 VI. TABLE OF AUTHORITIES 11 VII. LEGISLATION.. 12

6 I. OVERVIEW 1. Throughout the world, global conflicts produce both perpetrators and victims of international crimes. 2. It is crucial that those who bear responsibility for heinous acts such as war crimes and crimes against humanity, do not enjoy protection or evade accountability behind a cloak of refugee status. 3. It is equally crucial that those who are not responsible for such crimes and are otherwise bona fide refugees fleeing persecution, are granted asylum and the other protections of refugee status conferred by the 1951 Refugee Convention Protecting bona fide refugees, and disqualifying undeserving perpetrators, hinges upon the proper application of the Article 1F exclusion clauses, mandated by the legal and humanitarian commitments of the 1951 Refugee Convention, and incorporated into Canadian domestic law in the Immigration and Refugee Protection Act This appeal concerns the proper application of the Article 1F(a) exclusion clause, in the context of a refugee claimant who did not directly commit Article 1F(a) crimes, but is alleged to be complicit in war crimes or crimes against humanity allegedly committed by the repressive government which employed him. 6. An overbroad application of Article 1F(a) which does not conduct an individualized assessment considering the individual s role in the circumstances, does not consider whether there has been satisfaction of the mental and other elements of crimes, or which makes unfounded presumptions of guilt, can result in the erroneous disqualification of a bona fide 1 United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No 6 [1951 Refugee Convention]. 2 Ibid, at article 1F of the 1951 Refugee Convention, as incorporated in Canadian law at s. 98 and the Schedule of the Immigration and Refugee Protection Act (S.C. 2001, c. 27).

7 -2- refugee. To deny protection to a bona fide refugee is as devastating and unjust in the refugee context as is wrongful conviction in the criminal context. 7. CCLA will argue that an application of Article 1F(a) that is restrictive and reflective of current international criminal law principles of individual responsibility should be adopted by this Court, that such an approach complies with section 7 of the Charter, and will strengthen efforts to ensure that guilty individuals are excluded while bona fide refugees are protected. II. FACTS 8. CCLA accepts that this case concerns an individual who has claimed refugee status in Canada, and who previously worked for the Government of the Democratic Republic of the Congo during time periods where that Government is alleged to have committed crimes against humanity. At issue is whether the official should be excluded from Canada for having committed the Article 1F(a) crimes of war crimes or crimes against humanity. CCLA takes no other position on the facts. III. ARGUMENT 1. PROPER APPLICATION OF ARTICLE 1F(a) Article 1F of the 1951 Refugee Convention provides: F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) 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; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations. a. Article 1F(a) must be applied restrictively, scrupulously, and with great caution and only after a full assessment of the individual circumstances of the case.

8 -3-9. Article 1F(a) seeks to exclude an otherwise deserving person, from the protections of refugee status, because of the heinous acts or serious crimes committed by that person. 10. The purpose of Article 1F(a) is to preserve the integrity of asylum, and prevent impunity, by disqualifying those considered undeserving of refugee protection for committing the crimes against peace, war crimes, or crimes against humanity. 11. However, the extremely serious and deleterious consequences of exclusion to a person fleeing persecution, demand that Article 1F(a) is applied restrictively, with great caution, and only after a full assessment of the individual circumstances of the case. This position has been reiterated by the UNHCR and the UNHCR Executive Committee 3, and is supported by CCLA. b. This Honourable Court should adopt the approach of international criminal law which considers whether all the elements of a crime exist including the mental element to establish individual criminal responsibility, and whether any defences exist that would exclude individual responsibility 12. Article 1F(a) references the international instruments drawn up to make provision for such crimes. This clause is widely interpreted by UNHCR and others to require an evolutionary approach 4 that draws from advances in international criminal law and international humanitarian law. 5 3 U.N. High Commissioner for Refugees, Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention Relating to the Status of Refugees, 4 September 2003, available at as incorporated in Canadian law at s. 98 and the Schedule of the Immigration and Refugee Protection Act (S.C. 2001, c. 27) at para.4, [ UNHCR Background Note ]; and see U.N. High Commissioner for Refugees, Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees 4 September 2003, HCR/GIP/03/05, at para. 2, [ UNHCR Guidelines ]. 4 Infra, Lisbon Summary Conclusions, para UNHCR Background Note, supra at para. 25; UNHCR and Carnegie Endowment for International Peace, Lisbon Expert Roundtable Global Consultations on International Protection, 3-4 May 2001, Summary Conclusions Exclusion from Refugee Status, EC/GC/01/2 Track/1 at, para 6, EC/GC/01/2 Track/1, (Lisbon Summary Conclusions);and JS (Sri Lanka) v. Secretary of State for the Home Department, [2010] UKSC 15, at paras. 8-9.

9 The Rome Statute of the International Criminal Court 6 is considered the starting point for application of Article 1F(a). The Rome Statute, together with the statutes of the ICTY and ICTR and their jurisprudence, and developments in international humanitarian law are also highly relevant and are the latest comprehensive instruments informing the interpretation of Article 1F(a) crimes The Rome Statute does not provide for a crime of complicity. Rather, the Rome Statute seeks to determine whether there is individual responsibility for crimes within the Statute, based upon modes of liability which include aiding and abetting ; instigating ; ordering ; or in any other way commits to the commission or attempted commission of a crime by a group of persons acting with a common purpose, where (s)uch contribution shall be intentional. 8 (a) The Rome Statute also requires that the mental element of the crime be satisfied or there is no individual criminal responsibility. 9 (b) The Rome Statute also requires consideration of defences, or grounds for excluding criminal responsibility. 10 c. Individual Responsibility for Article 1F(a) crimes must be established, in order for exclusion to be justified 15. Where, as in the case at bar, there is a question of whether liability can extend to an individual who did not perpetrate the crimes, but was a member of a repressive regime that did perpetrate the crimes, the issue is (what) more than mere membership of an organization is required to bring an individual within the article s disqualifying provisions? The CCLA respectfully submits that the international criminal law approach to finding individual responsibility should be adopted by this Court including satisfaction of mens rea, 6 Rome Statute of the International Criminal Court, adopted in June 1998, and in force since 1 July JS, supra. Para 8; and Lisbon Summary Conclusions at para Rome Statute, Article Ibid, Article Id., Article JS, supra at para. 2, see also para. 1.

10 -5- and the consideration of defences -- rather than the line of Canadian decisions which put emphasis on the activities of the group and presumptions which rise from groups operating with a limited, brutal purpose. CCLA respectfully submits that the lower Courts and the respondents have mischaracterized the decision of the UK Supreme Court in JS, which decision clearly is critical of the Canadian approach that allows presumptions of complicity based upon membership in repressive groups: The JS decision found that emphasis upon the activities of the group/organization: is a dangerous doctrine. It leads people to think, as the Secretary of State did in this case, that voluntary membership of such a group gives rise to a presumption of personal and knowing participation, or at least acquiescence, amounting to complicity; para 34. It diverts attention from a close examination of the facts and the need for a carefully reasoned decision as to precisely why the person concerned is excluded from protection under the Convention. 12 (emphasis added) Lord Brown discredited the line of Canadian cases which considered presumptions of complicity arising from membership in groups of a limited, brutal purpose as noted by MacGuigan JA in Ramirez v Canada (Minister of Employment and Immigration) (1992) 89 DLR (4 th ) 173, 180, stating: I repeat, however the nature of the organization itself is only one of the relevant factors in play and it is best to avoid looking for a presumption of individual liability, rebuttable or not. As the present case amply demonstrates, such an approach is all too liable to lead the decision-maker into error In agreeing with his colleague, Lord Kerr stated: The Canadian cases to which Lord Brown has referred seem for the most part to at least imply that the participative element involves either a capacity to control or at least to influence events. They appear to contemplate a minimum requirement that the mind of the individual be given to the enterprise so that some element of personal culpability is involved. A notable exception to this theme is to be found in the obiter statements in paragraph 16 of judgment in Ramirez v Canada (Minister of Employment and Immigration) 91992) 89 DLR (4 th ) 173 where it is suggested that voluntary knowing participation can be 12 Ibid, please see judgment of Lord Hope at paras 43 and 44, and see also judgment of Lord Brown at paras id. Judgment of Lord Brown at para. 31.

11 -6- assumed from membership of a brutal organization. These statements have not been relied on by the Secretary of State in this case and, in my judgment, wisely so. The broad thrust of authority in this area is to contrary effect A focus on the actual participation of the individual, as opposed to an assumption as to its significance from mere membership appears to me to accord more closely with that general trend and with the spirit of articles 25 and 30 of the ICC Rome Statute 14 There should be a participation that went beyond mere passivity or continued involvement in the organization after acquiring knowledge of the war crimes or crimes against humanity 15 (emphasis added) d. Individualized Assessment is Required 18. CCLA agrees with UNHCR that an individualized assessment is required when applying Article 1F(a), and we believe this approach would be in accordance with international criminal considerations regarding the existence of material elements of the crime(s) including mens rea, and any defences which would exclude criminal responsibility. CCLA argues that while no list can be exhaustive, the decision-maker must focus on the individual circumstances and consider at least the following factors: (i) the position of the individual in the group (ii) voluntariness of the individual s membership in the group (iii) individual s ability to influence the group (iv) whether or not the individual s act or omission made a substantial contribution to the crime(s)in question; (v) the individual s rank and/or command responsibility; (vi) the individual s opportunity if any to leave the organization; (vii) whether the individual at any point had a true moral choice; and (viii) whether or not the individual possessed the requisite mental intention or mens rea sufficient upon which to find individual responsibility JS, supra decision of Lord Kerr at para Ibid at para UNHCR Background Note, supra at paras. 50, 51, 53, 54, 55, 57

12 -7- e. Standard of Proof Must be Sufficiently High 19. Article 1F(a) requires serious reasons for considering the applicant has committed the stated crimes. However the meaning of this phrase has not always been clear to decisionmakers. 20. UNHCR in its Background Note states that the civil standard of balance of probabilities is too low, 17 and a paper commissioned by UNHCR finds that there needs to be high proof of criminal responsibility CCLA agrees with UNHCR that serious reasons for considering should mean evidence that would satisfy indictment before international criminal tribunals; UNHCR has reasoned that such a standard would satisfy the threshold required for Article 1F(a), given the rigorous manner in which indictments are put together by international criminal tribunals Attempts to fit Article 1F(a) considerations into domestic civil or criminal standards or proof can lead to confusion. The UK Supreme Court in Al-Sirri noted that The New Zealand Courts have followed the court of Appeal in Al-Sirri in taking the view that the Refugee Convention simply means what it says and that adding glosses by analogy with civil litigation or criminal prosecution simply confuses matters The UK Supreme Court also pointed out the discrepancies in Canadian judgments: In Canada, the courts have adopted a lower standard of proof than the balance of probabilities : see Ramirez v Minister of Employment and Immigration (1992) 89 DLR (4 th ) 173, para 5. But in Cardenas v Canada (Minister of Employment and Immigration) [1994] FCJ No 139, it was said that the Board must base its decision to exclude only on clear and convincing evidence, not simply on suspicion and speculation Infra note Gilbert, Geoff, Current Issues in the Application of the Exclusion Clauses in Erika Feller, Volker Türk and Frances Nicholson, Refugee Protection in International Law: UNHCR s Global Consultations on International Protection, Cambridge: Cambridge University Press, 2003, p. 425 at p UNHCR Background Note, supra, at para See also paras for further clarifications. 20 Ibid at para Ibid.

13 The UK Supreme Court has found instead, it is preferable to attempt to: discern the autonomous meaning of the words serious reasons for considering.in light of the UNHCR view with which we agree, that the exclusion clauses in the Refugee Convention must be restrictively interpreted and cautiously applied. 22 The Court found that with respect to the wording of Article 1F, serious reasons are stronger than reasonable grounds ; that evidence must be clear and credible or strong, and that considering is stronger than suspecting. 23 The UK Supreme Court also found that the criminal beyond a reasonable doubt standard did not need to be satisfied, but that it is unnecessary to import our domestic standards of proof into the question. 24 (emphasis added) 25. CCLA respectfully repeats its submission that this Honourable Court recognize that the evidentiary threshold that would satisfy an indictment before an international criminal tribunal is the appropriate standard of proof. It is not the same standard as a criminal conviction of guilt, but it is a standard which is high enough to satisfy the language of Article 1F(a), given the serious consequences of exclusion. 2. SECTION 7 CHARTER IS ENGAGED 26. This Honourable Court has previously recognized that section 7 of the Charter is engaged by refugee proceedings, and elements of deportation proceedings of non-citizens. 27. In Article 1F(a) cases, the potential exclusion from the legal protections of refugee status conferred by the 1951 Convention and IRPA, and the potential removal to one s country of origin where an individual fled persecution, or to a third country while branded a war criminal, implicate an individual s rights to life, liberty and security of the person. 22 id. at para id. 24 id.

14 -9- a. Section 7 demands procedural fairness in decision-making which impacts a persons rights to life, liberty and security of the person. 28. Section 7 mandates that any process which impacts upon the right to life, liberty and security of the person, is carried out in a manner that is fair, and in accordance with the principles of fundamental justice. This Honourable Court has stated that: (t)he question at the s. 7 stage is whether the principles of fundamental justice relevant to the case have been observed in substance, having regard to the context and the seriousness of the violation. The issue is whether the process is fundamentally unfair to the affected person The requirement of an individualized assessment for Article 1F(a) which includes assessment of an individual s satisfaction of all elements of the crime including the mental intent to make a substantial contribution to commission of the crime is in compliance with the requirements of section CCLA submits that Section 7 would also require a proper legal analysis in cases of complicity as to whether an individual has been found to have aided and abetted, instigated, or committed or made a substantial contribution to the commission of a crime and satisfaction of all elements of those crimes including mental element should be provided to the applicant. Further, the applicant should have the right to respond to the evidence against him or her prior to any decision taking place, and should enjoy the benefit of the doubt CCLA submits that Section 7 would not permit an Article 1F(a) exclusion on the basis of inferences or presumptions, given that such an exclusion is likely to result in serious impairment of an individual s rights to life, liberty or security of the person. 32. Section 7 also mandates a standard of proof that includes credible and reliable evidence upon which to impute individual responsibility for an Article 1F(a) crime, given the serious 25 Charkaoui v. Canada, [2007] 1 SCR 350, at para UNHCR and Carnegie Endowment for International Peace, Lisbon Expert Roundtable Global Consultations on International Protection, 3-4 May 2001, Summary Conclusions Exclusion from Refugee Status, EC/GC/01/2 Track/1 at para. 17. See also UNHCR Background Note, supra at para. 98.

15 -10- nature of the crime and the serious consequences of both exclusion and being branded a war criminal. b. Failure to provide the procedural safeguards noted above would breach Section 7 in a manner that would not be saved by Section The infringement of section 7 is not saved by section 1 of the Charter. While the need to exclude serious international criminals from refugee protection in Canada is a pressing and substantial objective, exclusion that does not employ an individualized assessment, procedural safeguards, or relies upon a low standard of proof, is not rationally connected to this objective nor is it of minimal impairment given the serious consequences of an erroneous exclusion to the bona fide refugee claimant. IV. SUBMISSIONS ON COSTS 34. The CCLA undertakes not to seek any costs and asks that no costs be awarded against it. V. ORDER SOUGHT 35. The CCLA requests the opportunity to make 10 minutes of oral submission to the Court at the hearing of the appeal. ALL OF WHICH IS RESPECTFULLY SUBMITTED this 17 th day of December, Sukanya Pillay Counsel for the Intervener Canadian Civil Liberties Association

16 -11- VI. TABLE OF AUTHORITIES Treaties and Other International Instruments No. Authority Articles 1. United Nations Convention Relating to the Status of Refugees, 28 July 1951, U.N.T.S. 189, Can. T.S. 1969, No. 6 [1951 Refugee 1F (a), (b), (c) Convention] 2. Rome Statute of the International Criminal Court, A/CONF. 183/9, 17 July1998 (as amended) [Rome Statute] 25, 30, 31 Supreme Court No. Authority Paragraph 3. Charkaoui v. Canada, [2007] 1 SCR , 22 Foreign Judgments No. Authority Paragraph 4. Al-Sirri (FC) v. Secretary of State for the Home Department, [2012] 74, 75 UKSC JS (Sri Lanka), R (on the application of) v. Secretary of State for the Home Department (Rev 1), [2010] UKSC 15 (17 March 2010) 1, 2, 29, 30, 31, 43, 44, 57 Doctrine No. Authority Paragraph 6. Gilbert, Geoff, Current Issues in the Application of the Exclusion Page 471 Clauses in Erika Feller, Volker Türk and Frances Nicholson, Refugee Protection in International Law: UNHCR s Global Consultations on International Protection, Cambridge: Cambridge University Press, 2003, p United Nations High Commissioner for Refugees, Background Note on the Application of the Exclusion Clauses: Article 1F of the , 51, 53, 54, 55, 57 Convention Relating to the Status of Refugee, 4 September United Nations High Commissioner for Refugees, Guidelines on 2 International Protection No. 5: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, 4 September UNHCR and Carnegie Endowment for International Peace, Lisbon Expert Roundtable Global Consultations on International Protection, 3-4 May 2001, Summary Conclusions Exclusion from Refugee Status, EC/GC/01/2 Track/1 6, 17

17 -12- VII. LEGISLATION 1. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.) 1982, c Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 2. Immigration and Refugee Protection Act, S.C. 2001, c 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.