In The Minister of Citizenship and Immigration v. Rachidi Ekanza Ezokola, the Federal Court of Appeal considered whether a senior official with a foreign government, who remains in his or her position without protest and continues to defend the interests of his or her government while being aware of the crimes committed by this government, can nonetheless be considered a refugee under s. (1)(F) of the United Nations Convention relating to the Status of Refugees. The court held that such a conclusion is possible, and clarified the legal test on whether such an individual has been complicit in the crimes committed by his or her government.
In the Court’s view, a senior official may, by remaining in his or her position without protest and continuing to defend the interests of his or her government while being aware of the crimes committed by this government, demonstrate “personal and knowing participation” in these crimes and, thus, be complicit with the government in their commission. However, the final outcome will always depend on the facts particular to each case.
The Court noted that the test to determine complicity does not necessarily require personal participation by the individual in the crimes alleged, whether by carrying them out personally or facilitating their commission in the manner described; such a rendering of the “personal and knowing participation” test is too narrow. The Court also distinguished between the “personal and knowing participation” test and a “personal and knowing awareness” test, noting that the latter is too broad and, thus, an error of law.
In obiter, the Court called for an end to using the term “complicity by association,” arguing that it is misleading since it is contribution to the commission of a crime (i.e. personal and knowing participation) rather than simply association that leads to liability. Instead, it argued, “complicity” alone should be referred to.
July 15, 2011
Link to Decision
Mark Carter & Dominik Swierad
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