CHAPTER 11 - ARTICLE 1F

Previous | Table of Contents | Next

TABLE OF CONTENTS

  1. 11.1. INTRODUCTION
  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. Balancing
    5. 11.2.5. Defences
      1. 11.2.5.1. Duress
      2. 11.2.5.2. Superior Orders
      3. 11.2.5.3. Military Necessity
      4. 11.2.5.4. Remorse
    6. 11.2.6. Complicity
      1. 11.2.6.1. Specific examples
    7. 11.2.7. Responsibility of Superiors
  3. 11.3. ARTICLE 1 F(b): SERIOUS NON-POLITICAL CRIMES
    1. 11.3.1. Determination of whether a crime is serious
    2. 11.3.2. Determination of whether a crime is political
    3. 11.3.3. Prior to admission
    4. 11.3.4. Complicity
    5. 11.3.5. Balancing
    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
    1. 11.4.1. Balancing
    2. 11.4.2. Complicity
  5. 11.5. BURDEN AND STANDARD 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.

11.2. ARTICLE 1F(a): CRIMES AGAINST PEACE, WAR CRIMES AND CRIMES AGAINST HUMANITYNote 1

In order to5 define Article 1F(a) crimes, reference must be had to the international instrumentsNote 2 that deal with these crimes. The international instrument most frequently used to define these crimes is the Charter of the International Military Tribunal.Note 3 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 4 and the Statute of the International Tribunal for the Former YugoslaviaNote 5 as well as the Rome Statute of the International Criminal Court.Note 6

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

Numerous international instruments may be referred to when defining these crimes, including the Charter of the International Military Tribunal, the Geneva Conventions and the Additional Protocol.

In Ramirez,Note 7 the Court of Appeal noted that crimes committed during the civil war in El Salvador were either war crimes or crimes against humanity.

The Supreme Court of Canada in FintaNote 8 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. The Court did not consider Article 1F(a). In the recent decision of the Supreme Court of Canada in Mugesera,Note 9 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 10

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 11 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 12

When "barbarous cruelty" is an additional component of kidnapping, unlawful confinement, robbery and manslaughter, such offences can achieve the level of crimes against humanity.Note 13

The Supreme Court of Canada, in Mugesera,Note 14 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 15

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 16

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 17As 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 18

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 19

It is crucial that the Refugee Protection Division (RPD), 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 RPD (formerly the CRDD) 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 constitute crimes against humanity and provided the following guidance:

  • In Cibaric,Note 20 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 Baqri,Note 21 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 22 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.
  • In Sungu,Note 23 the Court affirmed that Mobutu's regime was engaged in torture and had committed international crimes, namely crimes against humanity.
  • In Yang,Note 24 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 25 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.

11.2.4. Balancing

There is no requirement to balance the nature of the Article 1F(a) crime with the degree of persecution feared.Note 26

11.2.5. 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.

11.2.5.1. Duress

The defence of duress may be used to justify participation in certain offences providing the perpetrator was in danger of imminent harm,Note 27 the evil threatened him or her was on balance greater than or equal to the evil which he or she inflicted on the victimNote 28 and he or she was not responsible for his own predicament.Note 29

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 30

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 31 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 32

11.2.5.2. 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 33

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.

11.2.5.3. 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 34

11.2.5.4. 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 35

11.2.6. 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 36 When determining the culpability of a claimant who has had a prior association with a group responsible for excludable crimes, regard should be had to the following factors:

  • method of recruitment,
  • nature of the organization,
  • the claimant's rank,
  • knowledge of atrocities,
  • opportunity to leave the organization, and
  • period of time spent in the organization.Note 37

The Court of Appeal held in Ramirez that "no one can commit international offences without personal and knowing participation".Note 38 Some cases have commented on this requirement as it pertains to claimants who were minors at the time.Note 39

In Solomon,Note 40 the Court referred the case back for rehearing as the claimant had been a member of an organization whose actions may have ultimately resulted in the mistreatment of others; although the claimant was found not to have engaged in acts of violence, he might have been excluded through association. In contrast, in LedezmaNote 41 the Court found that the CRDD erred in its conclusion that the claimant, a member of the military, was an accomplice to crimes against humanity as the evidence revealed it was the police, not the military who was responsible for the abuses.

Further in Ramirez, concerning the nature of the organization in which the claimant was associated, the Federal Court of Appeal stated:

… mere membership in an organization which from time to time commits international offences in not normally sufficient for exclusion from refugee status.Note 42 (emphasis added)

In contrast the Court held that:

… where an organization is principally directed to a limited, brutal purpose, such as a secret police activity, mere membership may by necessity involve personal and knowing participation in persecutorial acts.Note 43 (emphasis added)

In determining whether an organization is "principally directed to a limited, brutal purpose," the Federal Court in Pushpanathan did not agree that the organization must be one that engages solely and exclusively in acts of terrorism.Note 44 The Court held that:

… where there is no evidence that political objectives can be separated from militaristic activities, an organization could still be found to have a limited, brutal purpose. There is no evidence to suggest that the LTTE's terrorist activities can be separated from other objectives it may have. The LTTE resorts to terrorist methods to reach their objectives and this suggests that the LTTE is an organization with a brutal and limited purpose.Note 45

Membership in these organizations, does not automatically result in exclusion; the CRDD must determine whether the claimant had knowledge of the crimes being committed by the members of the organization.Note 46 There is a "presumption of complicity" when the claimant was a member of such a group whereby

… it can generally be assumed that its members intentionally and voluntarily joined and remained in the group for the common purpose of actively adding their personal efforts to the group's cause.Note 47

This presumption is clearly rebuttable.Note 48

The Court of Appeal has held that "mere presence at the scene of an offence is not enough to qualify as personal and knowing participation",Note 49 unless the onlooker has an intrinsic connection with the persecuting group.Note 50 The Court concluded that

… complicity rests in such cases … on the existence of a shared common purpose and the knowledge that all of the parties in question may have of it.Note 51 (emphasis added)

The culpability of a claimant was rejected where the claimant, shortly after being forcibly recruited, had witnessed on only one occasion, the torture of a prisoner.Note 52 In that case, however, the claimant had had no prior knowledge of the acts to be perpetrated. In any event, the Court said that a claimant is under no obligation to prevent acts of torture being perpetrated by others.

A claimant's activities in rounding up suspects may constitute personal involvement in the commission of any offences that follow providing the claimant had knowledge that such atrocities were being committed.Note 53

11.2.6.1. Specific examples

There have been numerous decisions of the Federal Court that have considered the complicity of the claimant in war crimes and crimes against humanity, based on the particular circumstances of the claimant and various factors, including the nature of the organization in question in which the claimant either belonged or had an association. A number of these cases may be summarized as follows.

In Pushpanathan,Note 54 the Court upheld the findings of the CRDD to exclude the claimant under Articles 1F(a) and (c) for crimes against humanity and complicity in terrorist activities associated with the LTTE. The Court found that the CRDD did not err in concluding that the LTTE was a terrorist organization with a limited and brutal purpose and, although there was a lack of evidence of specific harm that came about due to the claimant's involvement with the LTTE, the claimant financed the LTTE through drug trafficking in Canada and therefore was complicit in the crimes against humanity committed by the LTTE.

In Lai,Note 55 the Court upheld the exclusion of the claimant who, as an office manager of Family Planning in China, had forced a seven-month pregnant women to have an abortion pursuant to a state policy of forcible abortion, which is a crime against humanity.

In Alwan,Note 56 the exclusion of the claimant, a former member of the South Lebanese Army (the SLA), was overturned because the CRDD failed to consider the issue of "common purpose".

In Abbas,Note 57 the Court upheld the findings of the RPD that the claimant was complicit in the crimes against humanity committed by the regime in Iraq because for 22 years the claimant held positions of trust within the Iraqi government. He had knowledge of certain ongoing and regular acts constituting crimes against humanity and never took any measures to prevent these acts or to dissociate himself from these activities.

Similarly, in Omar,Note 58 the RPD's decision to exclude was upheld as the claimant had been an ambassador abroad for the regime in Djibouti during a period of repression and persecution of the civilian population. The claimant had occupied the highest position in the most important mission abroad, had knowledge of the crimes committed by his government and had never tried to dissociate himself from these crimes.

However, the decision to exclude was not upheld in Saftarov,Note 59 as there was no evidence of knowing participation in serious crimes. The Court found that the RPD could not assume, based solely on the claimant's long-time, low-ranking membership in the police, that he was a party to crimes against humanity.

In Fabela,Note 60 the Court upheld the exclusion of a former police officer from Mexico and found that an organization does not need to have an official plan or policy for a finding of crimes against humanity. As long as the perpetration of crimes are committed in a widespread and systematic fashion by a specific group, then the requirements have been met. The Court also noted the six important factors in determining exclusion (the method of recruitment, the claimant's position and rank in the organization, the nature of the organization, the knowledge of atrocities, the length of time in the organization and the opportunity to leave the organization).

In Balta,Note 61 the Court disagreed with the conclusion of the CRDD that the national army of Yugoslavia was a "terrorist organization" and therefore principally directed to a limited, brutal purpose.

In Shakarabi,Note 62 the Court concluded that the Shah's secret police, the Savak, was an organization principally directed to a limited brutal purpose even though it was also involved in domestic and foreign security. As an informant for this organization the claimant was found to be complicit in the abuses.

In Imama,Note 63 the Court agreed that the evidence left no doubt that the many violent acts committed by the Mobutu regime met the definition of crimes against humanity and the claimant was complicit through association. However, in Yogo,Note 64 the finding of exclusion was not upheld because the panel failed to highlight the evidence on which it based its characterization of the organization as one principally directed to a limited, brutal purpose, even though the claimant had been in the service of the Mobutu regime.

In upholding the CRDD decision in Hovaiz,Note 65 the Court held the fact that the claimant asserted before the CRDD that he had altered his participation in the Patriotic Union Kurdistan (PUK) after learning of an attempted assassination by that group did not remedy his continued participation in the organization.

In Harb,Note 66 the CRDD did not err in concluding that the South Lebanese Army (SLA) is an organization with a limited, brutal purpose. However, in El-Hasbani,Note 67 the exclusion of the claimant for his past employment with the South Lebanon Army was not upheld as the claimant, rather than being complicit in crimes against humanity, had actually risked his own life and safety to make the territory safe for civilians.

In Chowdhury,Note 68 the Court found that the Awami League (AL) is not an organization that is principally directed to a limited brutal purpose. Therefore, the claimant's membership in the AL did not necessarily make him a knowing participant in persecutorial acts.

In Ruiz,Note 69 the Court found that the panel did not have enough evidence to determine that the Peruvian Navy was an organization directed to a limited, brutal purpose. Similarly, in Marinas Rueda,Note 70 the Court did not uphold the exclusion of the claimant and found that the RPD was wrong to identify the Peruvian Navy as an entity to have purposely committed crimes against humanity. The Court said that the relevant organization of reference in this case was the applicant's unit, not the entire Peruvian Navy. The Federal Court in Cortez Muro,Note 71 upheld the finding of the RPD that the claimant should not be excluded based on his participation as a Peruvian navel cadet since the whole of the Peruvian navy was not found to have a limited and brutal purpose and there was no direct evidence linking the activities of the naval units to crimes against humanity. However, in Rocha,Note 72 the Court upheld the exclusion of the claimant who as a captain in the Peruvian army was complicit in the crimes against humanity committed as a continuous and regular part of its operation. In Zoeger La Hoz,Note 73 the Court found that it was an error to exclude the claimant solely for his membership in the Peruvian army, as he testified that he had no knowledge of a number of crimes committed by the army. The Court stated that mere membership in an organization that is a legitimate institution, is responsible for defending the country of Peru, and is recognized by that country's Constitution does not suffice to establish that a person is an accomplice or an accomplice by association, unless the organization has a limited, brutal purpose.

In Bukumba,Note 74 the Court upheld the exclusion of the claimant because as an employee of the CSE in the Democratic Republic of Congo she had not been merely a member of an organization which from time to time committed international offences. Rather, she had been a long-time employee who had agreed voluntarily to collect information on people and reported directly to the head of the CSE.

The Court did not uphold the decision in Farah,Note 75 even though the claimant had held the rank of major, since the RPD did not address the issue of the Somali Army from 1974 to 1989 as an organization dedicated to a limited brutal purpose.

In Sadakah,Note 76 the RPD incorrectly concluded that the Lebanese Forces was an organization with a limited and brutal purpose. Therefore the findings on exclusion were not upheld.

The Court made the same finding in Catal,Note 77 and held that the RPD erred in finding that the Turkish Gendarme was an organization with a limited brutal purpose and therefore did not uphold the exclusion of the claimant.

In Kahn,Note 78 the Court upheld the RPD's decision not to exclude the claimant, a former military officer in the Sachal Rangers in the Pakistani army. The Court emphasized that it is not the law that anyone who is more than a mere onlooker therefore has knowledge of crimes against humanity and will be considered an accomplice, only that depending on the circumstances, one could be an accomplice.

In Herrera,Note 79 the Court did not uphold the exclusion of the claimant, a part-time reservist and recruitment officer with the Colombian army. While the Court acknowledged the crimes against humanity committed by the Colombian army during the time the claimant was in the army, it was an error to characterize that army as an "organization that is principally directed to a limited, brutal purpose."

In contrast, in Diasonama,Note 80 the Court agreed that the ANR, as a matter of policy of the Kabila's regime, was an organization with a limited and brutal purpose and therefore the exclusion of the claimant was upheld as an accomplice in the crimes.

In Collins,Note 81 the Court did not uphold the exclusion of a claimant who had reached the rank of second sergeant in the Mexican army.

In Valere,Note 82 the Court did not uphold the exclusion of the claimant, a junior ranked officer in the Haitian National Police (HNP), because although human rights violations by members of the HNP had been continuous and regular, the RPD had not found the HNP was an organization with a limited brutal purpose.

In Bedoya,Note 83 the Court did not uphold the exclusion of the claimant, a former member of the Special Forces #1 unit and of the Palace Brigade of the Colombian army. The army as a whole was not found by the RPD to have a limited, brutal purpose and therefore the RPD was incorrect in stating that activity of the army in general could be attributed to the claimant.

Similarly, in Perez de Leon,Note 84 the Court did not uphold the exclusion of a former member of the presidential guard in the Guatemalan army because the RPD failed to decide the issue of whether the Guatemalan army was an organization with a limited, brutal purpose. The Court noted that this explicit qualification is essential to assessing the claimant's participation in and knowledge of the organization's activities.

In Antonio,Note 85 the Court upheld the finding of the RPD that the Angolan army was an organization with a limited, brutal purpose during the period of civil war in which the claimant served in the army. While the claimant suggested that the legitimate purpose of the army was that of national defence, the RPD correctly determined that during that time period the army's activities were directed at defeating UNITA and terrorizing the citizens of Angola.

In Ariri,Note 86 the Court upheld the exclusion of the claimant and found that the CRDD had evidence to conclude that the claimant, as a member of the Nigerian Army for a number of years, was complicit in the international offences committed by the military.

In Atabaki,Note 87 the Court found that the claimant should not have been excluded as there had been very little exploration of the claimant's activities in the Mujahedeen-e-Khaiz (MKO) and therefore it was unreasonable of the RPD to determine that the claimant was complicit in the MKO's activities.

The exclusion of the claimant was upheld in AliNote 88 since as a member of the MQM in Pakistan, the claimant was complicit in the widespread and systematic crimes against humanity committed by that organization. Even if the claimant never inflicted pain or pulled the trigger, he was part of the MQM's operations and must have been aware of its atrocities.

In Chougui,Note 89 the Court upheld the exclusion of the claimant who, as a member of FIS (Front islamique du salut) was aware that crimes against humanity had been committed by the organization and was therefore complicit by reason of a shared common purpose.

In Ryivuze,Note 90 the Court upheld the exclusion of the claimant who was a director in the civil service of Burundi and was therefore complicit in the crimes against humanity committed by the government of Burundi during that time period. The Court found that membership in an organization dedicated to a limited and brutal purpose does not have to be established in order to find complicity through association. It is sufficient to establish that the commission of international offences is a regular part of the operations of the organization with which the individual is associated.

In Rivera Pena,Note 91 the Court's exclusion of the claimant was upheld because as an officer in the Colombian National Police (CNP) he was complicit in the crimes against humanity committed by members of the CNP.

In Tchoumbou,Note 92 the Court upheld the exclusion of the claimant who was a member of the militia of the youth section of the Cameroon People's Democratic Movement political party and complicit in crimes against humanity.

The Court did not uphold the exclusion of the claimant in MurugamoorthyNote 93 because as a part-time worker for a newspaper in Sri Lanka that published press releases describing the LTTE's activities in a favourable light, there was no evidence that the press releases he relayed from the LTTE to the newspaper counseled or incited anyone to do anything. He did not have "knowing and personal participation" in actual crimes.

In Liqokeli,Note 94 the Court upheld the exclusion of the claimant, a citizen of Georgia, who was a former police officer who worked as a special guard in a prison. There was documentary evidence that Georgian prison guards had been involved in the abuse and torture of prisoners and therefore he was complicit in those crimes.

In Ndabambarire,Note 95 the Court upheld the RPD finding of complicity of a claimant whose role was to report on the security situation in his area to the Burundian armed forces. He had a close association with persons who had committed crimes against humanity. In Mukasi,Note 96 the exclusion of the claimant was upheld since he had led a hard-line faction of a political party in Burundi, the ruling party until 1993. The claimant was complicit in the war crimes committed by the Burundian armed forces as he was aware of his party's support for violence.

11.2.7. 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 97 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 98

In Mohammad,Note 99 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 100 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. Determination of whether a crime is serious

In Jayasekara,Note 101 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:

  • elements of the crime,
  • the mode of prosecution,
  • the penalty prescribed,
  • the facts, and
  • the mitigating and aggravating circumstances underlying the conviction.

The Court 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 duress 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 102

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 103

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 104 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 105 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 106

In the much earlier case of Brzezinski,Note 107 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 XieNote 108 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 constitutes a serious non-political crime.Note 109

A misdemeanour probably lacks the requisite seriousness to be considered under Article 1F(b).Note 110

While the RPD has a duty to identify the offences that form the basis for the exclusion, it does not have to explicitly list the offences in its decision. There is no requirement on the RPD to ensure that every element of the alleged offence be identified and particularized.Note 111

The Federal Court of Appeal in JayasekaraNote 112 determined that Article 1F(b) can apply to refugee claimants who have been convicted of a crime committed outside Canada and who have served their sentence prior to coming to Canada.Note 113 The Court referred to its own decision in ZrigNote 114 where it had refused to limit the application of Article 1F(b) to fugitives. In finding that Article 1F(b) was not limited only to fugitives from justice, the Court said:

Such a limitation would be surprising to say the least, since first it is in no way contained in the wording of Article 1F(b), and second, the limitation would lead to an absurd situation in which extraditable criminals would be excluded from refugee protection whereas offenders whose crimes were not extraditable crimes would not be excluded because Canada had not concluded an extradition treaty with the country in which the serious non-political crimes were committed.Note 115

The Court also cited with approval foreign judgments that determined that Article 1F(b) was not limited to fugitives from justice.

Justice Décary wrote a concurring decision in Zrig, and in coming to the conclusion that the Court in Chan did not intend to limit the application of 1F(b) only to fugitives from justice, stated:

…I do not think the Court decided that the country of refuge could not decide to exclude the perpetrator of a serious non-political crime, whatever the circumstances, provided he has been convicted and has served his sentence.Note 116

Justice Décary found that fugitives from justice as well as those who had been convicted of a serious crime and served their sentence be subject to exclusion under Article 1F(b):

It follows that under Article 1F(b) it is possible to exclude both the perpetrators of serious non-political crimes seeking to use the Convention to elude local justice and the perpetrators of serious non-political crimes that a State feels should not be allowed to enter its territory, whether or not they are fleeing local justice, whether or not they have been prosecuted for their crimes, whether or not they have been convicted of those crimes and whether or not they have served the sentences imposed on them in respect of those crimes.Note 117(emphasis added)

11.3.2. Determination of whether a crime is political

In Gill, 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 118

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 119

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 120 (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 121

11.3.3. 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 122

11.3.4. Complicity

In Zrig,Note 123 the Trial Division agreed with the CRDD that the claimant, because of his important involvement in the movement, could not have been unaware that acts of violence were taking place and that he was complicit in serious non-political crimes. The Court certified the following question:

Are the rules laid down by the Federal Court of Appeal in Sivakumar … on complicity by association for purposes of implementing art. 1F(a) of the United Nations Convention Relating to the Status of Refugees, applicable for purposes of an exclusion under 1F(b) of the said Convention?

The Federal Court of Appeal in Zrig answered the certified question in the affirmative and held that neither Ward nor Pushpanathan precluded the application to Article 1F(b) of the principles of complicity by association laid down in SivakumarNote 124 and BazarganNote 125 to Article 1F(b).

11.3.5. Balancing

In Xie,Note 126 the Federal Court of Appeal held that the RPD is neither required nor allowed to balance the claimant's crimes against the risk of torture. In fact the Court held that having found first that the claimant fell within the exclusion clauses, specifically Article 1F(b), the RPD exceeded its mandate when it went on to consider whether the claimant was at risk of torture.Note 127 It should be noted that where there are non-excluded associated claimants, their claims to refugee protection, even if derivative of the excluded claimant, must be considered.Note 128

11.3.6. "Serious Reasons for Considering"

The existence of a valid warrant issued by a foreign country, 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 129 Further, in GurajenaNote 130 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). 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 131

In Arevalo,Note 132 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 133

11.4. ARTICLE 1F(c): ACTS CONTRARY TO THE PURPOSES AND PRINCIPLES OF THE UNITED NATIONS

On June 4, 1998 the Supreme Court of Canada released the decision in PushpanathanNote 134 overturning the decision by the Federal Court of Appeal. 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 135 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 136

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 137

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 138

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 139 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 140

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 141

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 142

As a result, the Court determined that "conspiring to traffic in a narcotic is not a violation of Article 1F(c)."Note 143

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 144

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 145

11.4.1. Balancing

The Federal Court of Appeal had ruled in PushpanathanNote 146 and in MaloufNote 147 that the CRDD is not required to balance the seriousness of the claimant's conduct against the alleged fear of persecution when considering any of the paragraphs of Article 1F. Since the Supreme Court of Canada did not comment on this aspect of the exclusion clauses, the dicta as regards the balancing can still be considered as good law. Nothing in the decision of the Supreme Court in Pushpanathan suggests that the Court intended to overrule or modify this point of law.

11.4.2. Complicity

In Bazargan,Note 148 the Court of Appeal, citing MacGuigan J.A. in Ramirez,Note 149 adopted the position that personal and knowing participation in persecutorial acts is the only criterion to be applied in order to determine if a claimant is guilty of acts contrary to the purposes and principles of the United Nations. Formal membership in an organization whose members are guilty of such acts is not a prerequisite to the application of Article 1F(c).

It is not working within an organization that makes someone an accomplice to the organization's activities, but knowingly contributing to those activities in anyway or making them possible whe ther from within or from outside the organization.Note 150

Whether Article 1F(a), 1F(b) or 1F(c) is involved, the same principles regarding complicity apply (see Chapter 11, sections 11.2.6 and 11.3.4.)Note 151

In Islam,Note 152 the Court reiterated that a person who knowingly and willingly associates with an organization guilty of acts contrary to the purposes and principles of the United Nations becomes an accomplice and shares the responsibility. Personal involvement in specific infringements of human rights is not necessary.

11.5. BURDEN AND STANDARD 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 153

The Minister does not have to be present at the hearing in order for the Refugee Division to consider exclusion clauses.Note 154

The interpretation of "serious reasons for considering" has established the standard of proofNote 155 at less than the balance of probabilities.Note 156 The Federal Court of Appeal in Moreno and Sivakumar elaborated on the standard it had earlier enunciated:

In Ramirez, … this Court canvassed this aspect of refugee law and concluded that the standard was one well below that required under either the criminal law ("beyond a reasonable doubt") or the civil law ("on a balance of probabilities" or "preponderance of evidence").Note 157

In Ramirez … MacGuigan J.A. stated that serious reasons for considering constitutes an intelligible standard on its own which need not be assimilated to the reasonable standard in section 19 of the Immigration Act. This conclusion was echoed by Mr. Justice Robertson in Moreno, … although Robertson, J.A. indicated, that for practical purposes, there was no difference between the standards. I agree that there is little, if any difference of meaning between the two formulations of the standard. Both of these standards require something more than suspicion or conjecture, but something less than the balance of probabilities.Note 158

The Court also added that it "is universally accepted that 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 159

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 160 In addition, failure to give the Minister notice of possible exclusion is a basis for judicial review brought by the Minister.Note 161

11.6. CONSIDERATION OF INCLUSION WHERE CLAIMANT IS EXCLUDED

While it is clear that the Board cannot balance the risk of persecution or other harm against the exclusion, the question of whether the Board can consider both the inclusionary and exclusionary aspects of a claim is less clear.

The Court in XieNote 162 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.

This statement has been interpreted as prohibiting the Board from considering inclusion where a claimant is excluded,Note 163 however, as noted by Chief Justice Lutfy in GurajenaNote 164:

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.

Thus it appears that where appropriate, it is permissible for the Board to make an alternative finding on the inclusionary aspects of the claim.Note 165

TABLE OF CASES

  1. A.C. v. M.C.I. (F.C., IMM-4678-02), Russell, December 19, 2003; 2003 FC 1500
  2. Abbas, Redha Abdul Amir v. M.C.I. (F.C., no. IMM-6488-02), Pinard, January 9, 2004; 2004 FC 17
  3. Aden, Ahmed Abdulkadir v. M.C.I. (F.C.T.D., no. IMM-2912-95), MacKay, August 14, 1996. Reported: Aden v. Canada (Minister of Citizenship and Immigration) (1996), 35 Imm. L.R. (2d) 40 (F.C.T.D.)
  4. Aguilar, Nelson Antonio Linares v. M.C.I. (F.C.T.D., no. IMM-3118-99), Denault, June 8, 2000
  5. Akanni, Olusegun (Segun) Adetokumbo (Adejokumb) Kabir v. M.C.I. (F.C.T.D., no. IMM-5405-02), Gauthier, May 27, 2003; 2003 FCT 657
  6. Al Husin, Ibrahim Mohammad v. M.C.I. (F.C., no. IMM-2814-06), Phelan, November 30, 2006; 2006 FC 1451
  7. Albuja, Jorge Ernesto Echeverria v. M.C.I. (F.C.T.D., no. IMM-3562-99), Pinard, October 23, 2000
  8. Ali, Nadeem Akhter v. M.C.I. (F.C., no. IMM-8686-04, Shore, September 23, 2005; 2005 FC 1306
  9. Allel, Houcine v. M.C.I. (F.C.T.D., no. IMM-6593-00), Nadon, April 3, 2002; 2002 FCT 370
  10. Alwan, Riad Mushen Abou v. M.C.I. (F.C., no. IMM-1582-02), O'Keefe, January 31, 2003; 2003 FCT 109
  11. Alwan, Riad Mushen Abou v. M.C.I. (F.C., no. IMM-8204-03), Layden-Stevenson, June 2, 2004; 2004 FC 807
  12. Alza, Julian Ulises v. M.C.I. (F.C.T.D., no. IMM-3657-94), MacKay, March 26, 1996
  13. Antonio, Manuel Joao v. Sol. Gen. (F.C., no. IMM-6490-04), Snider, December 16, 2005; 2005 FC 1700
  14. Arevalo Pineda, Jose Isaias v. M.C.I. (F.C., no. IMM-5000-09), Gauthier, April 26, 2010; 2010 FC 454
  15. 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.)
  16. Ariri, Ojere Osakpamwan v. M.C.I. (F.C.T.D., no. IMM-2111-01), Dawson, March 6, 2002; 2002 FCT 251
  17. Asghedom, Yoseph v. M.C.I. (F.C.T.D., no. IMM-5406-00), Blais, August 30, 2001
  18. Ashari, Morteza Asna v. M.C.I. (F.C.A., no. A-525-98), Decary, Robertson, Noël, October 26, 1999
  19. Ashari, Morteza Asna v. M.C.I. (F.C.T.D., no. IMM-5205-97), Reed, August 21, 1998
  20. Atabaki, Roozbeh Kianpour v. M.C.I. (F.C., no. IMM-8000-04), Noël, July 11, 2005; 2005 FC 969
  21. Atabaki: M.C.I. v. Atabaki, Roozbeh Kianpour (F.C., no. IMM-1669-07), Lemieux, November 13, 2007; 2007 FC 1170
  22. Balta, Dragomir v. M.C.I. (F.C.T.D., no. IMM-2459-94), Wetston, January 27, 1995, at 5. Reported: Balta v. Canada (Minister of Citizenship and Immigration)(1995), 27 Imm. L.R. (2d) 226 (F.C.T.D.)
  23. Bamlaku, Mulualem v. M.C.I. (F.C.T.D., no. IMM-846-97), Gibson, January 16, 1998
  24. Baqri, Syed Safdar Ali v. M.C.I. (F.C.T.D., no. IMM-4211-00), Lutfy, October 9, 2001
  25. Bazargan: M.C.I. v. Bazargan, Mohammad Hassan (F.C.A., no. A-400-95), Marceau, Décary, Chevalier, September 18, 1996
  26. Bedoya, Juan Carlos Sanchez v. M.C.I. (F.C., no. IMM-592-05), Hughes, August 10, 2005; 2005 FC 1092
  27. Benitez Hidrovo, Jose Ramon v. M.C.I. (F.C., no. IMM-3247-09), Lutfy, February 2, 2010; 2010 FC 111
  28. Bermudez, Ivan Antonio v. M.C.I. (F.C., no. IMM-233-04), Phelan, February 24, 2005; 2005 FC 286
  29. Bermudez, Ivan Antonio v. M.C.I. (F.C.T.D., no. IMM-1139-99), MacKay, June 13, 2000
  30. Betancour, Favio Solis v. M.C.I. (F.C., no. IMM-4901-08), Russell, July 27, 2009; 2009 FC 767
  31. Biro, Bela Attila v. M.C.I. (F.C., no. IMM-590-05), Tremblay-Lamer, October 20, 2005; 2005 FC 1428
  32. Blanco, Nelson Humberto Ruiz v. M.C.I. (F.C., no. IMM-4587-05), Layden-Stevenson, May 19, 2006; 2006 FC 623
  33. Bonilla, Mauricio Cervera v. M.C.I. (F.C., no. IMM-2795-08), O'Keefe, September 9, 2009; 2009 FC 881
  34. Bouasla, Ali v. M.C.I. (F.C., no. IMM-2646-07), Lemieux, July 31, 2008;2008 FC 930
  35. Brzezinski, Jan v. M.C.I. (F.C.T.D., no. IMM-1333-97), Lutfy, July 9, 1998
  36. Bukumba, Madeleine Mangadu v. M.C.I. (F.C., no. IMM-3088-03), von Finckenstein, January 22, 2004; 2004 FC 93
  37. Cadovski: M.C.I. v. Cadovski, Ivan (F.C., no. IMM-1047-05), O'Reilly, March 21, 2006; 2006 FC 364
  38. Cardenas, Roberto Andres Poblete v. M.E.I. (F.C.T.D., no. 93-A-171), Jerome, February 4, 1994. Reported: Cardenas v. Canada (Minister of Employment and Immigration) (1994), 23 Imm. L.R. (2d) 244 (F.C.T.D.)
  39. Catal, Ibadullah v. M.C.I. (F.C., no. IMM-102-05), Kelen, November 9, 2005; 2005 FC 1517
  40. Chan v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C.390 (C.A.)
  41. Chan, San Tong v. M.C.I. (F.C.T.D., no. IMM-2154-98), MacKay, April 23, 1999
  42. Chitrakar, Narayan Lal v. M.C.I. (F.C.T.D., no. IMM-2769-01), Lemieux, August 19, 2002; 2002 FCT 888
  43. Chougui, Ahcene v. M.C.I. (F.C., no. IMM-7339-05), Blais, August 17, 2006; 2006 FC 992
  44. Chowdhury, Amit v. M.C.I. (F.C., no. IMM-4920-05), Noël, February 7, 2006; 2006 FC 139
  45. Chowdhury, Mohammad Salah v. M.C.I. (F.C., no. IMM-5041-02), Blanchard, June 13, 2003; 2003 FCT 744
  46. Cibaric, Ivan v. M.C.I. (F.C.T.D., no. IMM-1078-95), Noël, December 18, 1995
  47. Collins, Nelson Pineda v. M.C.I. (F.C., no. IMM-10257-03, de Montigny, May 24, 2005; 2005 FC 732
  48. Cortez: M.P.S.E.P. v. Cortez Muro, Hector Martin (F.C., no. IMM-1922-07), Phelan, May 1, 2008; 2008 FC 566
  49. De Quijano, Ana Yolanda Martinez (F.C., no. IMM-527-07), Beaudry, September 24, 2007; 2007 FC 910
  50. Diasonama, Lino v. M.C.I. (F.C., no. IMM-5754-04), Noël, June 27, 2005; 2005 FC 888
  51. 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
  52. El-Hasbani, Georges Youssef v. M.C.I. (F.C.T.D., no. IMM-3891-00), Muldoon, August 17, 2001
  53. Equizbal v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 514 (C.A.)
  54. Ezokola, Rachidu Ekanza v. M.C.I. (F.C., no. IMM-5174-09), Mainville, June 17, 2010; 2010 FC 662
  55. Fabela, Veronica Maria v. M.C.I. (F.C., no. IMM-7282-04), Beaudry, July 25, 2005; 2005 FC 1026
  56. Farah: M.C.I. and Sol. Gen. v. Farah, Abdulcadir Abdu (F.C., no. IMM-1187-05), Campbell, September 22, 2005; 2005 FC 1300
  57. Finta: R. v. Finta, [1994] 1 S.C.R. 701
  58. Gil v. Canada (Minister of Employment and Immigration), [1995] 1 F.C. 508 (C.A.)
  59. Goncalves, Lenvo Miguel v. M.C.I. (F.C.T.D., no. IMM-3144-00), Lemieux, July 19, 2001
  60. Gonzalez v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 646 (C.A.)
  61. Gonzalez, Jose Carlos Hermida v. M.C.I. (F.C., no. IMM-1299-08), Beaudry, November 18, 2008; 2008 FC 1286
  62. Grewal, Harjit Singh v. M.C.I. (F.C.T.D., no. IMM-4674-98), Reed, July 23, 1999
  63. Guardano, Roberto v. M.C.I. (F.C.T.D., no. IMM-2344-97), Heald, June 2, 1998
  64. Gurajena, George v. M.C.I. (F.C., no. IMM-4257-07), Lutfy, June 9, 2008; 2008 FC 724
  65. Gutierrez, Luis Eduardo v. M.E.I. (F.C.T.D., no. IMM-2170-93), MacKay, October 11, 1994. Reported: Gutierrez v. Canada (Minister of Employment and Immigration) (1994), 30 Imm. L.R. (2d) 106 (F.C.T.D.)
  66. Hajialikhani: Canada (Minister of Citizenship and Immigration) v. Hajialikhani, [1999] 1 F.C. 181 (T.D)
  67. Harb, Shahir v. M.C.I. (F.C.A., no. A-309-02), Décary, Noël, Pelletier, January 27, 2003; 2003 FCA 39
  68. Herrera, Rasmussen Torres v. M.C.I. (F.C., no. IMM-3749-04), Campbell, April 7, 2005; 2005 FC 464
  69. Hovaiz, Hoshyar v. M.C.I. (F.C.T.D., no. IMM-2012-01), Pinard, August 29, 2002; 2002 FCT 908
  70. Hussain: M.C.I. v. Hussain, Jassem Abdel (F.C.T.D., no. IMM-906-01), Pinard, March 1, 2002; 2002 FCT 209
  71. Ileiv, Dimitar Niklov v. M.C.I. (F.C., no. IMM-2162-04), Heneghan, March 21, 2005; 2005 FC 395
  72. Imama, Lofulo Bofaya v. M.C.I. (F.C.T.D., no. IMM-118-01), Tremblay-Lamer, November 6, 2001
  73. Islam, Khokon v. M.C.I. (F.C., no. IMM-2777-09), Pinard, January 22, 3010; 2010 FC 71
  74. Ivanov, Nikola Vladov v. M.C.I. (F.C., no. IMM-2942-04), Snider, September 2, 2004; 2004 FC 1210
  75. Jafri, Syed Musrafa Abbas v. M.C.I. (F.C., no. IMM-6276-02), Kelen, August 18, 2003; 2003 FC 984
  76. Jayasekara v. Canada (Minister of Citizenship and Immigration), [2009] 4 F.C.R. 164 (F.C.A.); 2008 FCA 404
  77. Justino, Jose Pedro v. M.C.I. (F.C., no. IMM-7347-05), Pinard, September 29, 2006; 2006 FC 1138
  78. Kahn: M.C.I. v. Kahn, Masud Akhtar (F.C., no. IMM-4350-04), Gauthier, June 23, 2005
  79. Kanya, Kennedy Lofty v. M.C.I. (F.C., no. IMM-2778-05), Rouleau, December 9, 2005; 2005 FC 1677
  80. Kathiravel, Sutharsan v. M.C.I. (F.C.T.D., no. IMM-204-02), Lemieux, May 29, 2003; 2003 FCT 680
  81. Khan, Aseel v. M.C.I. (F.C.T.D., no. IMM-422-02), Kelen, March 14, 2003; 2003 FCT 309
  82. Khera, Daljinder v. M.C.I. (F.C.T.D., no. IMM-4009-97), Pinard, July 8, 1999
  83. Kovacs, Miklosne v. M.C.I. (F.C., no. IMM-8183-04), Snider, October 31, 2005; 2005 FC 1473
  84. Kudjoe, Rommel v. M.C.I. (F.C.T.D., no. IMM-5129-97), Pinard, December 4, 1998
  85. Lai, Cheong Sing v. M.C.I. (F.C., no. IMM-3194-02), MacKay, February 3, 2004; 2004 FC 179
  86. Lai, Cheong Sing v. M.C.I. (F.C., no. IMM-3194-02), MacKay, March 19, 2004
  87. Lai, Cheong Sing v. M.C.I. (F.C.A., no. 191-04), Richard, Sharlow, Malone, April 11, 2005; 2005 FCA 125
  88. Lai, Cheong Sing v. M.C.I. (F.C.A., no. A-191-04), Malone, Richard, Sharlow, April 11, 2005; 2005 FCA 125
  89. Lai, Li Min v. M.C.I. (F.C., no. IMM-1849-04), Simpson, February 8, 2005; 2005 FC 179
  90. Lalaj, Genci v. M.C.I. (F.C.T.D., no. IMM-4779-99), Simpson, December 19, 2000
  91. Ledezma, Jorge Ernesto Paniagua v. M.C.I. (F.C.T.D., no. IMM-3785-96), Simpson, December 1, 1997
  92. Liang, Xiao Dong v. M.C.I. (F.C., no. IMM-1286-03), Layden-Stevenson, December 19, 2003; 2003 FC 1501
  93. Liqokeli, Imeda v. M.C.I. (F.C., no. IMM-5170-08), Beaudry, May 22, 2009; 2009 FC 530
  94. Loordu, Joseph Kennedy v. M.C.I. (F.C.T.D., no. IMM-1258-00), Campbell, January 25, 2001
  95. Lopez Velasco, Jose Vicelio v. M.C.I., (F.C., no. IMM-3423-10), Mandamin, May 30, 2011; 2011 FC 267
  96. Louis: M.C.I. v. Louis, Mac Edhu (F.C., no. IMM-4936-08), Teitelbaum, June 29, 2009; 2009 FC 674
  97. M. v. M.C.I. (F.C.T.D., no. IMM-1689-01), Dawson, July 31, 2002; 2002 FCT 833
  98. Maan: M.C.I. v. Maan, Akash Deep Singh (F.C., no. IMM-2003-05), Martineau, December 9, 2005; 2005 FC 1682
  99. Malouf v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 537 (T.D.)
  100. 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.)
  101. Mankoto, Vicky Keboulu v. M.C.I. (F.C., no. IMM-4455-04, Tremblay-Lamer, February 25, 2005; 2005 FC 294
  102. Marinas Rueda, Puglio Rodolfo v. M.C.I. (F.C., no. IMM-4775-08), Mandamin, September 30, 2009; 2009 FC 984
  103. Médina, Ysidro Garcia v. M.C.I. (F.C., no. IMM-4742-05), Noël, January 23, 2006; 2006 FC 62
  104. Mehmoud, Sultan v. M.C.I. (F.C.T.D., no. IMM-1734-97), Muldoon, July 7, 1998
  105. Mohammad, Zahir v. M.C.I. (F.C.T.D., no. IMM-4227-94), Nadon, October 25, 1995
  106. Montoya, Jackeline Mari Paris v. M.C.I. (F.C., no. IMM-2107-05), Rouleau, December 9, 2005; 2005 FC 1674
  107. 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
  108. Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.)
  109. Mpia-Mena-Zambili, Claude v. M.C.I. (F.C., no. IMM-1740-05), Shore, October 3, 2005; 2005 FC 1349
  110. Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100; 2005 SCC 40
  111. Mukasi, Charles v. M.C.I. (F.C., no. IMM-5080-09), Barnes, April 28, 2010; 2010 FC 463
  112. Murugamoorthy, Kanapathy v. M.C.I. (F.C., no. IMM-3299-07), O'Reilly, September 4, 2008; 2008 FC 985
  113. Muto: M.C.I. v. Muto, Antonio-Nesland (F.C.T.D., no. IMM-518-01), Tremblay-Lamer, March 6, 2002; 2002 FCT 256
  114. Mutumba, Fahad Huthy v. M.C.I. (F.C., no. IMM-2668-08), Shore, January 7, 2009; 2009 FC 19
  115. Nagamany, Sivanesan v. M.C.I. (F.C., no. IMM-22-05), Gauthier, November 17, 2005; 2005 FC 1554
  116. Ndabambarire, Alain v. M.C.I. (F.C., no. IMM-3273-09), Boivin, January 18, 2010; 2010 FC 1
  117. Noha, Augustus Charles v. M.C.I. (F.C., no. IMM-4927-08), Shore, June 30, 2009; 2009 FC 683
  118. Nyari, Istvan v. M.C.I. (F.C.T.D., no. IMM-6551-00), Kelen, September 18, 2002; 2002 FCT 979
  119. Omar, Idleh Djama v. M.C.I. (F.C., no. IMM-2452-03), Pinard, June 17, 2004; 2004 FC 861
  120. Ordonez, Luis Miguel Castaneda v. M.C.I. (F.C.T.D., no. IMM-2821-99), McKeown, August 30, 2000
  121. Osman, Abdirizak Said v. M.E.I. (F.C.T.D., no. IMM-261-93), Nadon, December 22, 1993
  122. Paz, Lazaro Cartagena v. M.C.I. (F.C.T.D., no. IMM-226-98), Pinard, January 6, 1999
  123. Penate v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 79 (T.D.)
  124. Perez de Leon : M.C.I. v. Perez de Leon, Neptali Elin (F.C., no. IMM-887-05), Noël, September 6, 2005; 2005 FC 1208
  125. Plaisir, Bety v. M.C.I. (F.C., no. IMM-4248-06), Tremblay-Lamer, March 8, 2007; 2007 FC 264
  126. Poggio Guerrero, Gustavo Adolfo v. M.C.I. (F.C., no. IMM-2723-09), Russell, April 12, 2010; 2010 FC 384
  127. Poshteh, Piran Ahmadi v. M.C.I. (F.C.A., no., A-207-04), Rothstein, Noël, Malone, March 4, 2005; 2005 FCA 85
  128. Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1996] 2 F.C. 49 (C.A.)
  129. Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982
  130. Pushpanathan, Veluppillai v. M.C.I. (F.C., no. IMM-4427-01), Blais, September 3, 2002; 2002 FCT 867
  131. Qazi, Musawar Hussain v. M.C.I. (F.C., no. IMM-9182-04), von Finckenstein, September 2, 2005; 2005 FC 1204
  132. Quinonez, Hugo Arnoldo Trejo v. M.C.I. (F.C.T.D., no. IMM-2590-97), Nadon, January 12, 1999
  133. Quitana Murillo, Leopoldo v. M.C.I. (F.C., no. IMM-930-08), Shore, August 26, 2008; 2008 FC 966
  134. Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.)
  135. Rasuli, Nazir Ahmad v. M.C.I. (F.C.T.D., no. IMM-3119-95), Heald, October 25, 1996
  136. Rivera Pen, John William v. M.C.I. (F.C., no. IMM-1460-07), Phelan, January 28, 2008; 2008 FC 103
  137. Rocha, Guifo Elmer Viviano v. M.C.I. (F.C., no. IMM-4312-03), O'Keefe, February 25, 2005: 2005 FC 304
  138. Rodriguez, Santiago Rafael Garcia v. M.C.I. (F.C., no. IMM-4220-06), Lagacé, May 1, 2007; 2007 FC 462
  139. Rudakubana, Jean-Pierre v. M.C.I. (F.C., no. IMM-5836-09), Phelan, September 21, 2010; 2010 FC 940
  140. Rudyak, Korniy v. M.C.I. (F.C., no. IMM-6743-05), Pinard, September 29, 2006; 2006 FC 1141
  141. Ruiz, Mario Roberto Cirilo v. M.C.I. (F.C., no. IMM-4644-02), Tremblay-Lamer, October 10, 2003; 2003 FC 1177
  142. Ryivuze, Tharcisse v. M.C.I. (F.C., no. IMM-3663-06), Shore, February 8, 2007; 2007 FC 134
  143. Sadakah, Jadallah v. M.C.I. (F.C., no. IMM-882-05), Blanchard, November 3, 2005; 2005 FC 1494
  144. Saftarov, Hasan v. M.C.I. (F.C., no. IMM-4718-03), O'Reilly, July 21, 2004; 2004 FC 1009
  145. Salgado, Ricardo Antonio v. M.C.I. (F.C., no. IMM-2463-05), Noël, January 5, 2006; 2006 FC 1
  146. Saridag, Ahmet v. M.E.I. (F.C.T.D., no. IMM-5691-93), McKeown, October 5, 1994
  147. Savundaranayaga, Mary Antanita v. M.C.I. (F.C., no. IMM-4937-07), Mandamin, January 12, 2009; 2009 FC 31
  148. Say, Chea v. M.C.I. (F.C.T.D., no. IMM-2547-96), Lutfy, May 16, 1997
  149. Shakarabi, Seyed Hassan v. M.C.I. (F.C.T.D., no. IMM-1371-97), Teitelbaum, April 1, 1998
  150. Sharma, Gunanidhi v. M.C.I. (F.C.T.D., no. IMM-1668-02), Noël, March 10, 2003; 2003 FCT 289
  151. Singh, Gurpal v. M.C.I. (F.C.T.D., no. IMM-5116-97), Strayer, September 2, 1998
  152. Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.)
  153. Sleiman, Mohamed Wehbe v. M.C.I. (F.C., no. IMM-2447-04), Kelen, February 24, 2005; 2005 FC 285
  154. Solomon: M.C.I. v. Solomon, Yohannes (F.C.T.D., no. IMM-326-95), Gibson, October 26, 1995. Reported: Canada (Minister of Citizenship and Immigration) v. Solomon (1995), 31 Imm. L.R. (2d) 27 F.C.T.D.
  155. Suliman, Shakir Mohamed v. M.C.I. (F.C.T.D., no. IMM-2829-96), McGillis, June 13, 1997
  156. 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.)
  157. Sumaida: M.C.I. v. Sumaida, Hussein Ali (F.C.A., no. A-800-95), Létourneau, Strayer, Noël, January 7, 2000
  158. Sungu v. Canada (Minister of Citizenship and Immigration) [2003] 3 F.C. 192 (T.D.); 2002 FCT 1207
  159. Szekely, Attila v. M.C.I. (F.C.T.D., no. IMM-6032-98), Teitelbaum, December 15, 1999
  160. Taleb, Ali et al. v. M.C.I. (F.C.T.D., no. 1449-98), Tremblay-Lamer, May 18, 1999
  161. Tchoumbou, Eric Francis v. M.C.I. (F.C., no. IMM-5149-07), Tremblay-Lamer, June 11, 2008; 2008 FC 585
  162. Teganya, Jean Leonard v. M.C.I. (F.C., no. IMM-6085-05), Blais, May 12, 2006; 2006 FC 590
  163. Tilus, Francky v. M.C.I. (F.C., no. IMM-3426-05), Harrington, December 23, 2005; 2005 FC 1738
  164. Tshienda: M.C.I. v. Tshienda, Mulumba Freddy (F.CT.D., no. IMM-3984-01), O'Keefe, March 27, 2003; 2003 FCT 360
  165. Valere, Nixon v. M.C.I. (F.C., no. IMM-8674-04), Mactavish, April 19, 2005; 2005 FC 524
  166. Ventocilla, Alex Yale v. M.C.I. (F.C., no. IMM-4222-06), Teitelbaum, May 31, 2007; 2007 FC 575
  167. Vergara, Marco Vinicio Marchant v. M.C.I. (F.C.T.D., no. IMM-1818-00), Pinard, May 15, 2001
  168. Wajid, Rham v. M.C.I. (F.C.T.D., no. IMM-1706-99), Pelletier, May 25, 2000
  169. Xie, Rou Lan v. M.C.I. (F.C., no. IMM-923-03), Kelen, September 4, 2003; 2003 FCT 1023
  170. Xie, Rou Lan v. M.C.I. (F.C.A., no. A-422-03), Décary, Létourneau, Pelletier, June 30, 2004, 2004 FCA 250
  171. Xu, Hui Ping v. M.C.I. (F.C., no. IMM-9503-04), Noël, July 11, 2005; 2005 FC 970
  172. Yang, Jin Xiang v. M.C.I. (F.C.T.D., no. IMM-1372-98), Evans, February 9, 1999
  173. Yogo, Gbenge v. M.C.I. (F.C.T.D., no. IMM-4151-99), Hansen, April 26, 2001
  174. Zadeh, Hamid Abass v. M.C.I. (F.C.T.D., no. IMM-3077-94), Wetston, January 21, 1995
  175. Zamora, Miguel Angel v. M.E.I. (F.C.A., no. A-771-91), Stone, Létourneau, Robertson, July 5, 1994
  176. Zeng, Hany v. M.C.I. (F.C., no. IMM-2319-07), O'Keefe, August 19, 2008; 2008 FC 956
  177. Zoeger La Hoz, Carmen Maria v. M.C.I. and Contreras Magan, Miguel Luis v. M.C.I. (F.C., no. IMM-5239-04), Blanchard, May 30, 2005; 2005 FC 762
  178. Zrig, Mohamed v. M.C.I. (F.C.T.D., no. IMM-601-00), Tremblay-Lamer, September 24, 2001
  179. Zrig, v. Canada (Minister of Citizenship and Immigration), [2003] 3. F.C. 761; 2003 FCA 178

Notes

Note 1

For further reading see Research Paper on Article 1F of the 1951 Convention Relating to the Status of Refugee in Canadian Law, IRB Legal Services, (Manon Brassard & Nancy Weisman), December 14, 1994, and Weisman, N., "Article 1F(a) of the 1951 Convention Relating to the Status of Refugees in Canadian Law", International Journal of Refugee Law, Volume 8, No 1/2, Oxford University Press, 1996. (http://www.unhcr.org/3b66c2aa10.html#_ga=1.52855208.1608783133.1435858040). These papers provide a useful summary of the jurisprudence arising out of the Nuremberg trials, in particular, the interpretation of international crimes.

Return to note 1 referrer

Note 2

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

Return to note 2 referrer

Note 3

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 3 referrer

Note 4

Adopted by Security Council resolution 955 (1994) of 8 November 1994, as amended. (http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N95/140/97/PDF/N9514097.pdf?OpenElement)

Return to note 4 referrer

Note 5

Adopted by Security Council resolution 827 (1993) of 25 May 1993, as amended. (http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N93/306/28/IMG/N9330628.pdf?OpenElement)

Return to note 5 referrer

Note 6

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 is directly at odds with the more recent 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.

Return to note 6 referrer

Note 7

Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.), at 310. In Bermudez, Ivan Antonio v. M.C.I. (F.C.T.D., no. IMM-1139-99), MacKay, June 13, 2000, the Court held that a "war crime" is limited to the ill-treatment of civilians in another country in the course of an international war.

Return to note 7 referrer

Note 8

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

Return to note 8 referrer

Note 9

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

Return to note 9 referrer

Note 10

Discriminatory intent is only required for crimes against humanity that take the form of persecution. See Mugesera, supra, footnote 9, at paragraph 44.

Return to note 10 referrer

Note 11

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 11 referrer

Note 12

Sivakumar, supra, footnote 11, 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 12 referrer

Note 13

Finta, supra, footnote 8. 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 13 referrer

Note 14

Mugesera, supra, footnote 9.

Return to note 14 referrer

Note 15

Mugesera, supra, footnote 9.

Return to note 15 referrer

Note 16

Mugesera, supra, footnote 9.

Return to note 16 referrer

Note 17

Mugesera, supra, footnote 9, at paragraph 161.

Return to note 17 referrer

Note 18

Mugesera, supra, footnote 9, at paragraph 174.

Return to note 18 referrer

Note 19

Sivakumar, supra, footnote 11, at 444.

Return to note 19 referrer

Note 20

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

Return to note 20 referrer

Note 21

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

Return to note 21 referrer

Note 22

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 22 referrer

Note 23

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

Return to note 23 referrer

Note 24

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

Return to note 24 referrer

Note 25

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

Return to note 25 referrer

Note 26

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. Reported: Canada (Minister of Citizenship and Immigration) v. Malouf (1995), 190 N.R. 230 (F.C.A.) and M.C.I. v. Cadovski, Ivan (F.C., no. IMM-1047-05), O'Reilly, March 21, 2006; 2006 FC 364.

Return to note 26 referrer

Note 27

Ramirez, supra, footnote 7, 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 27 referrer

Note 28

Ramirez, supra, footnote 7, at 328.

Return to note 28 referrer

Note 29

Ramirez, supra, footnote 7, 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 29 referrer

Note 30

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

Return to note 30 referrer

Note 31

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.

Return to note 31 referrer

Note 32

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

Return to note 32 referrer

Note 33

Finta, supra, footnote 8, 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 truth out of someone is manifestly unlawful".

Return to note 33 referrer

Note 34

Gonzalez, supra, footnote 26, (see concurring reasons of Mr. Justice Létourneau, at 661).

Return to note 34 referrer

Note 35

Ramirez, supra, footnote 7, at 328.

Return to note 35 referrer

Note 36

Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.), at 320; Penate v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 79 (T.D.), at 84.

Return to note 36 referrer

Note 37

As explained in Fabela, Veronica Maria v. M.C.I. (F.C., no. IMM-7282-04), Beaudry, July 25, 2005; 2005 FC 1026. In Justino, Jose Pedro v. M.C.I. (F.C., no. IMM-7347-05), Pinard, September 29, 2006; 2006 FC 1138, the Court found that the rank that a person has in an organization is not determinative of whether the person can be found to be complicit in crimes against humanity. It is one of a number of factors to be taken into account. While the Court in Bouasla, Ali v. M.C.I. (F.C., no. IMM-2646-07), Lemieux, July 31, 2008;2008 FC 930 affirmed the applicability of the six factors in the complicity determination, the Court said that these factors are merely elements that the panel must assess as a whole, taking into account all the evidence. In this case the Court did not uphold the exclusion of the claimant who had been a student trainee inspector with the Algerian police for only 20 days.

Return to note 37 referrer

Note 38

Ramirez, supra, footnote 7, at 317. See also Cardenas, Roberto Andres Poblete v. M.E.I. (F.C.T.D., no. 93-A-171), Jerome, February 4, 1994. Reported: Cardenas v. Canada (Minister of Employment and Immigration) (1994), 23 Imm. L.R. (2d) 244 (F.C.T.D.), at 251-252, where the Court set aside the decision of the CRDD because it erroneously inculpated the claimant in the crimes against humanity committed by a faction of the claimant's organization of which the claimant was not a member. As the Court pointed out in M.C.I. v. Bazargan, Mohammad Hassan (F.C.A., no. A-400-95), Marceau, Décary, Chevalier, September 18, 1996, "personal and knowing participation" can be direct or indirect, and does not require formal membership in the group concerned. One need not be a member of a group in order to be an accomplice to its acts. In M.C.I. v. Sumaida, Hussein Ali (F.C.A., no. A-800-95), Létourneau, Strayer, Noël, January 7, 2000, the Court stated that there was no requirement that a claimant be linked to specific crimes as the actual perpetrator or that crimes against humanity committed by an organization be necessarily and directly attributable to specific acts or omissions of a claimant. See also Albuja, Jorge Ernesto Echeverria v. M.C.I. (F.C.T.D., no. IMM-3562-99), Pinard, October 23, 2000. In Salgado, Ricardo Antonio v. M.C.I. (F.C., no. IMM-2463-05), Noël, January 5, 2006; 2006 FC 1, the Court held that the definition of complicity must be derived from international law and cannot be interpreted solely under an Act of Parliament, such as the Crimes Against Humanity and War Crimes Act. In a decision of the Federal Court, in Ezokola, Rachidu Ekanza v. M.C.I. (F.C., no. IMM-5174-09), Mainville, June 17, 2010; 2010 FC 662 Mr. Justice Mainville took a different view of the test for complicity than that found in the Federal Court of Appeal decision in Ramirez and said that criminal liability for war crimes requires personal involvement in the alleged crime, or personal control over the events leading to the alleged crime and therefore complicity by association requires that the claimant personally participated, personally conspired or was personally involved in the execution of the alleged crime. This decision is currently under appeal (FCA no., A-281-10) and is scheduled to be heard on June 9, 2011. The certified question is as follows: For the purposes of exclusion under Article 1F(a) of the United Nations Convention relating to the Status of Refugees, is complicity by association in crimes against humanity established by the fact that a refugee protection claimant was an employee of a government that committed such crimes, coupled with the fact that the refugee protection claimant had knowledge of those crimes and did not denounce them, where there is no evidence that the refugee protection claimant was personally involved, directly or indirectly, in the crimes? In Rudakubana, Jean-Pierre v. M.C.I. (F.C., no. IMM-5836-09), Phelan, September 21, 2010; 2010 FC 940, the exclusion of the claimant was upheld based on the principles in Ramirez. In the latter case, the claimant was found to be complicit in crimes against humanity given his role in the Rwandan Patriotic Army.

Return to note 38 referrer

Note 39

In M.C.I. v. Maan, Akash Deep Singh (F.C., no. IMM-2003-05), Martineau, December 9, 2005; 2005 FC 1682 the Court found that the RPD erred in excusing the claimant from any personal and knowing participation in the militant group, Babbar Khalsa, in India, because he was a minor at the time. The Court noted that what counts is not the age of the claimant but the degree of his "personal and knowing participation" in crimes. For an interesting discussion of whether a minor can be found described under s. 34 (f) of IRPA (membership in a terrorist organization), see Poshteh, Piran Ahmadi v. M.C.I. (F.C.A., no., A-207-04), Rothstein, Noël, Malone, March 4, 2005; 2005 FCA 85.

Return to note 39 referrer

Note 40

M.C.I. v. Solomon, Yohannes (F.C.T.D., no. IMM-326-95), Gibson, October 26, 1995. Reported: Canada (Minister of Citizenship and Immigration) v. Solomon (1995), 31 Imm. L.R. (2d) 27 F.C.T.D.

Return to note 40 referrer

Note 41

Ledezma, Jorge Ernesto Paniagua v. M.C.I. (F.C.T.D., no. IMM-3785-96), Simpson, December 1, 1997. In Sungu, supra, footnote 23 the Court found that the panel had applied an inappropriate principle in finding complicity in that there was no evidence the claimant shared in the common purpose in the perpetration of crimes by the Mobutu regime.

Return to note 41 referrer

Note 42

Ramirez, supra, footnote 7, at 317. The Court held in M.C.I. v. Tshienda, Mulumba Freddy (F.C.T.D., no. IMM-3984-01), O'Keefe, March 27, 2003; 2003 FCT 360 that it was open to the CRDD not to exclude the claimant since he was a civilian employee at city hall in the Democratic Republic of Congo and did not work for the police or the military.

Return to note 42 referrer

Note 43

Ramirez, supra, footnote 7, at 317.

Return to note 43 referrer

Note 44

Pushpanathan, Veluppillai v. M.C.I. (F.C., no. IMM-4427-01), Blais, September 3, 2002; 2002 FCT 867. In Plaisir, Bety v. M.C.I. (F.C., no. IMM-4248-06), Tremblay-Lamer, March 8, 2007; 2007 FC 264, the Court said that in determining the nature of an organization, it is not sufficient to identify isolated offences. It must be determined whether the situations in which those offences are committed are a continuous and regular part of the operation of the organization.

Return to note 44 referrer

Note 45

Pushpanathan, supra, footnote 44, at paragraph 40.

Return to note 45 referrer

Note 46

Saridag, Ahmet v. M.E.I. (F.C.T.D., no. IMM-5691-93), McKeown, October 5, 1994, at 4. The issue of knowledge may be a matter of credibility. See Zamora, Miguel Angel v. M.E.I. (F.C.A., no. A-771-91), Stone, Létourneau, Robertson, July 5, 1994 where the Court upheld the decision of the CRDD to reject the claimant's contention that he had no knowledge of the acts of torture perpetrated by his group. In Mehmoud, Sultan v. M.C.I. (F.C.T.D., no. IMM-1734-97), Muldoon, July 7, 1998 the claimant was found complicit in crimes against humanity even though he never took part in violence. Although he claimed to be merely a supporter of its religious and charitable activities, given his rank as a deputy commander in a militant organization it was determined he must have had knowledge of the violent attacks and was therefore excluded as an accomplice. See also Singh, Gurpal v. M.C.I. (F.C.T.D., no. IMM-5116-97), Strayer, September 2, 1998, involving the claimant's time of service with the Punjab Armed Police. In Goncalves, Lenvo Miguel v. M.C.I. (F.C.T.D., no. IMM-3144-00), Lemieux, July 19, 2001, the Court did not uphold the exclusion of the claimant as the claimant was not initially aware of the harmful consequences of his actions. In contrast, however, the Court, in Lalaj, Genci v. M.C.I. (F.C.T.D., no. IMM-4779-99), Simpson, December 19, 2000, agreed with the CRDD that it was implausible that a person in the claimant's position could be unaware of the purposes for which his department's surveillance was being used. In Allel, Houcine v. M.C.I. (F.C.T.D., no. IMM-6593-00), Nadon, April 3, 2002; 2002 FCT 370 the Court upheld the exclusion of the claimant who having worked for the Algerian police, had knowledge of the torture of detainees. Similarly, in Khan, Aseel v. M.C.I. (F.C.T.D., no. IMM-422-02), Kelen, March 14, 2003; 2003 FCT 309 the Court upheld the exclusion of the claimant who, as a pilot in the Afghan Air Force, had knowledge of and was therefore complicit in the crimes against humanity committed by the Afghan military. In De Quijano, Ana Yolanda Martinez (F.C., no. IMM-527-07), Beaudry, September 24, 2007; 2007 FC 910, the Court found that the RPD made no error in finding that the claimant was complicit in the crimes against humanity committed by the FMLN while a member of the student group associated with that organization, given her knowledge of the abuses committed. Also in Teganya, Jean Leonard v. M.C.I. (F.C., no. IMM-6085-05), Blais, May 12, 2006; 2006 FC 590, the Court upheld the RPD finding of complicity in the crimes committed by the military during the time of the massacres in Rwanda because the claimant, an intern at a hospital, was aware of the abuses committed in the hospital. While the claimants in Savundaranayaga, Mary Antanita v. M.C.I. (F.C., no. IMM-4937-07), Mandamin, January 12, 2009; 2009 FC 31 were members of the cultural wing of the LTTE, the Court found that the RPD was wrong to find them complicit since the RPD did not state how this finding of membership supported the conclusion that the claimants had personal and knowing participation in the LTTE and a shared common purpose with the LTTE.

Return to note 46 referrer

Note 47

Saridag, ibid., at 4. See Zadeh, Hamid Abass v. M.C.I. (F.C.T.D., no. IMM-3077-94), Wetston, January 21, 1995, at 4, where the Court upheld the finding of the CRDD that the claimant's organization, which routinely used torture, was an "organization with a limited, brutal purpose". The Court then considered whether the claimant had the requisite "personal and knowing participation". In Grewal, Harjit Singh v. M.C.I. (F.C.T.D., no. IMM-4674-98), Reed, July 23, 1999 and Khera, Daljinder v. M.C.I. (F.C.T.D., no. IMM-4009-97), Pinard, July 8, 1999, the Court found that although the Punjab Police force has a legitimate purpose - the maintaining of law and order - the Court upheld the CRDD findings that the claimants were complicit in crimes against humanity because of their knowledge of the atrocities committed by that police force. See also, Say, Chea v. M.C.I. (F.C.T.D., no. IMM-2547-96), Lutfy, May 16, 1997; Guardano, Roberto v. M.C.I. (F.C.T.D., no. IMM-2344-97), Heald, June 2, 1998; Paz, Lazaro Cartagena v. M.C.I. (F.C.T.D., no. IMM-226-98), Pinard, January 6, 1999; Canada (Minister of Citizenship and Immigration) v. Hajialikhani, [1999] 1 F.C. 181 (T.D); and Quinonez, Hugo Arnoldo Trejo v. M.C.I. (F.C.T.D., no. IMM-2590-97), Nadon, January 12, 1999. In Ordonez, Luis Miguel Castaneda v. M.C.I. (F.C.T.D., no. IMM-2821-99), McKeown, August 30, 2000, the Court found that the claimant knowingly provided maintenance for planes that bombed civilians and therefore there was a shared purpose with the pilots. In M.C.I. v. Hussain, Jassem Abdel (F.C.T.D., no. IMM-906-01), Pinard, March 1, 2002; 2002 FCT 209, the Court did not uphold the finding of the CRDD not to exclude the claimant because there was evidence indicating that the claimant had knowledge about the crimes against humanity committed by the Iraqi army while he was a member of that army. The Court indicated that the CRDD is obliged to ask itself questions concerning the issue of complicity and the duress defence. In upholding the decision of the CRDD in M. v. M.C.I. (F.C.T.D., no. IMM-1689-01), Dawson, July 31, 2002; 2002 FCT 833, the Court found that there was evidence to support the CRDD's conclusion that the claimant, as a former member of SAVAK, had knowledge of the systematic and widespread nature of that organization's crimes. In Chitrakar, Narayan Lal v. M.C.I. (F.C.T.D., no. IMM-2769-01), Lemieux, August 19, 2002; 2002 FCT 888, the Court found that it was open to the CRDD to exclude the claimant as an accomplice in the crimes against humanity committed by the United People's Front Party (UPF) because the claimant had knowledge of the organization and he failed to withdraw his financial support at the earliest opportunity. In Akanni, Olusegun (Segun) Adetokumbo (Adejokumb) Kabir v. M.C.I. (F.C.T.D., no. IMM-5405-02), Gauthier, May 27, 2003; 2003 FCT 657, the Court upheld the finding of complicity as the RPD had not believed that the claimant was unaware of the violence committed by the group in which he had participated (the Gani Adams's faction of the Oodua Peoples Congress). In Sleiman, Mohamed Wehbe v. M.C.I. (F.C., no. IMM-2447-04), Kelen, February 24, 2005; 2005 FC 285, the Court upheld the finding that the claimant, as a guard, had knowledge of the crimes against humanity which took place and was therefore complicit in those crimes. The Court upheld the exclusion of the claimant in Mpia-Mena-Zambili, Claude v. M.C.I. (F.C., no. IMM-1740-05), Shore, October 3, 2005; 2005 FC 1349 since, as the head of post in the immigration service in the Democratic Republic of the Congo (DRC), it was reasonable for the RPD to conclude that he could not be unaware of the war crimes and crimes against humanity committed by the DRC, despite his claims of ignorance of these crimes. In Nagamany, Sivanesan v. M.C.I. (F.C., no. IMM-22-05), Gauthier, November 17, 2005; 2005 FC 1554, the Court upheld the finding of the RPD that the LTTE was an organization with a limited and brutal purpose. In upholding the RPD's finding of complicity, the Court held that if a person has knowledge of the activities of an organization with a limited and brutal purpose and neither takes steps to prevent them from occurring if he has the power to do so, nor disengages himself from the organization at the earliest opportunity and who lends his active support to the group will be considered to be an accomplice, and a shared common purpose will be considered to exist.

Return to note 47 referrer

Note 48

Saridag, supra, footnote 46, at 4. In Balta, Dragomir v. M.C.I. (F.C.T.D., no. IMM-2459-94), Wetston, January 27, 1995, at 5. Reported: Balta v. Canada (Minister of Citizenship and Immigration) (1995), 27 Imm. L.R. (2d) 226 (F.C.T.D.), the Court did not uphold the decision of the CRDD that there was sufficient evidence that the claimant had sufficient knowledge or personal participation. See also Aden, Ahmed Abdulkadir v. M.C.I. (F.C.T.D., no. IMM-2912-95), MacKay, August 14, 1996. Reported: Aden v. Canada (Minister of Citizenship and Immigration) (1996), 35 Imm. L.R. (2d) 40 (F.C.T.D.), and Sumaida, supra, footnote 11. In Mankoto, Vicky Keboulu v. M.C.I. (F.C., no. IMM-4455-04, Tremblay-Lamer, February 25, 2005; 2005 FC 294 the exclusion of the claimant, who had been a magistrate (in the DRC), was not upheld as there was no evidence that the claimant knew about the crimes committed by the regime.

Return to note 48 referrer

Note 49

Ramirez, supra, footnote 7, at 317.

Return to note 49 referrer

Note 50

Ramirez, supra, footnote 7, at 317.

Return to note 50 referrer

Note 51

Ramirez, supra, footnote 7, at 318. See also Alza, Julian Ulises v. M.C.I. (F.C.T.D., no. IMM-3657-94), MacKay, March 26, 1996, and Kudjoe, Rommel v. M.C.I. (F.C.T.D., no. IMM-5129-97), Pinard, December 4, 1998 where the Court held that the claimant was not an "innocent bystander" given his knowledge of the human rights abuses (in Ghana) and the fact he continued to work for the organization even after gaining this knowledge. In Loordu, Joseph Kennedy v. M.C.I. (F.C.T.D., no. IMM-1258-00), Campbell, January 25, 2001, the Court found that the claimant was merely at the scene of persecutorial acts but this presence was not coupled with being an associate of the principal offenders, therefore, there was no sharing in the common purpose of the persecutorial acts.

Return to note 51 referrer

Note 52

Moreno, supra, footnote 36, at 323.

Return to note 52 referrer

Note 53

Ramirez, supra, footnote 7, at 324. In Gutierrez, Luis Eduardo v. M.E.I. (F.C.T.D., no. IMM-2170-93), MacKay, October 11, 1994, at 11. Reported: Gutierrez v. Canada (Minister of Employment and Immigration) (1994), 30 Imm. L.R. (2d) 106 (F.C.T.D.), the claimant was found complicit because he knew that his work in transporting detainees led to the persecution of individuals. Similarly in Rasuli, supra, footnote 11, the claimant was excluded because he informed on individuals to an organization known for its commission of crimes against humanity.

Return to note 53 referrer

Note 54

Pushpanathan, supra, footnote 44.

Return to note 54 referrer

Note 55

Lai, Li Min v. M.C.I. (F.C., no. IMM-1849-04), Simpson, February 8, 2005; 2005 FC 179.

Return to note 55 referrer

Note 56

Alwan, Riad Mushen Abou v. M.C.I. (F.C., no. IMM-1582-02), O'Keefe, January 31, 2003; 2003 FCT 109.

Return to note 56 referrer

Note 57

Abbas, Redha Abdul Amir v. M.C.I. (F.C., no. IMM-6488-02), Pinard, January 9, 2004; 2004 FC 17.

Return to note 57 referrer

Note 58

Omar, Idleh Djama v. M.C.I. (F.C., no. IMM-2452-03), Pinard, June 17, 2004; 2004 FC 861.

Return to note 58 referrer

Note 59

Saftarov, Hasan v. M.C.I. (F.C., no. IMM-4718-03), O'Reilly, July 21, 2004; 2004 FC 1009.

Return to note 59 referrer

Note 60

Fabela, supra, footnote 37.

Return to note 60 referrer

Note 61

Balta, supra, footnote 48.

Return to note 61 referrer

Note 62

Shakarabi, Seyed Hassan v. M.C.I. (F.C.T.D., no. IMM-1371-97), Teitelbaum, April 1, 1998.

Return to note 62 referrer

Note 63

Imama, Lofulo Bofaya v. M.C.I. (F.C.T.D., no. IMM-118-01), Tremblay-Lamer, November 6, 2001.

Return to note 63 referrer

Note 64

Yogo, Gbenge v. M.C.I. (F.C.T.D., no. IMM-4151-99), Hansen, April 26, 2001.

Return to note 64 referrer

Note 65

Hovaiz, Hoshyar v. M.C.I. (F.C.T.D., no. IMM-2012-01), Pinard, August 29, 2002; 2002 FCT 908.

Return to note 65 referrer

Note 66

Harb, supra, footnote 6.

Return to note 66 referrer

Note 67

El-Hasbani, Georges Youssef v. M.C.I. (F.C.T.D., no. IMM-3891-00), Muldoon, August 17, 2001.

Return to note 67 referrer

Note 68

Chowdhury, Mohammad Salah v. M.C.I. (F.C., no. IMM-5041-02), Blanchard, June 13, 2003; 2003 FCT 744.

Return to note 68 referrer

Note 69

Ruiz, Mario Roberto Cirilo v. M.C.I. (F.C., no. IMM-4644-02), Tremblay-Lamer, October 10, 2003; 2003 FC 1177.

Return to note 69 referrer

Note 70

Marinas Rueda, Puglio Rodolfo v. M.C.I. (F.C., no. IMM-4775-08), Mandamin, September 30, 2009; 2009 FC 984.

Return to note 70 referrer

Note 71

M.P.S.E.P. v. Cortez Muro, Hector Martin (F.C., no. IMM-1922-07), Phelan, May 1, 2008; 2008 FC 566.

Return to note 71 referrer

Note 72

Rocha, Guifo Elmer Viviano v. M.C.I. (F.C., no. IMM-4312-03), O'Keefe, February 25, 2005: 2005 FC 304.

Return to note 72 referrer

Note 73

Zoeger La Hoz, Carmen Maria v. M.C.I. and Contreras Magan, Miguel Luis v. M.C.I. (F.C., no. IMM-5239-04), Blanchard, May 30, 2005; 2005 FC 762.

Return to note 73 referrer

Note 74

Bukumba, Madeleine Mangadu v. M.C.I. (F.C., no. IMM-3088-03), von Finckenstein, January 22, 2004; 2004 FC 93.

Return to note 74 referrer

Note 75

M.C.I. and Sol. Gen. v. Farah, Abdulcadir Abdu (F.C., no. IMM-1187-05), Campbell, September 22, 2005; 2005 FC 1300.

Return to note 75 referrer

Note 76

Sadakah, Jadallah v. M.C.I. (F.C., no. IMM-882-05), Blanchard, November 3, 2005; 2005 FC 1494.

Return to note 76 referrer

Note 77

Catal, Ibadullah v. M.C.I. (F.C., no. IMM-102-05), Kelen, November 9, 2005; 2005 FC 1517.

Return to note 77 referrer

Note 78

M.C.I. v. Kahn, Masud Akhtar (F.C., no. IMM-4350-04), Gauthier, June 23, 2005.

Return to note 78 referrer

Note 79

Herrera, Rasmussen Torres v. M.C.I. (F.C., no. IMM-3749-04), Campbell, April 7, 2005; 2005 FC 464.

Return to note 79 referrer

Note 80

Diasonama, Lino v. M.C.I. (F.C., no. IMM-5754-04), Noël, June 27, 2005; 2005 FC 888.

Return to note 80 referrer

Note 81

Collins, Nelson Pineda v. M.C.I. (F.C., no. IMM-10257-03, de Montigny, May 24, 2005; 2005 FC 732.

Return to note 81 referrer

Note 82

Valere, Nixon v. M.C.I. (F.C., no. IMM-8674-04), Mactavish, April 19, 2005; 2005 FC 524.

Return to note 82 referrer

Note 83

Bedoya, Juan Carlos Sanchez v. M.C.I. (F.C., no. IMM-592-05), Hughes, August 10, 2005; 2005 FC 1092.

Return to note 83 referrer

Note 84

M.C.I. v. Perez de Leon, Neptali Elin (F.C., no. IMM-887-05), Noël, September 6, 2005; 2005 FC 1208.

Return to note 84 referrer

Note 85

Antonio, Manuel Joao v. Sol. Gen. (F.C., no. IMM-6490-04), Snider, December 16, 2005; 2005 FC 1700.

Return to note 85 referrer

Note 86

Ariri, Ojere Osakpamwan v. M.C.I. (F.C.T.D., no. IMM-2111-01), Dawson, March 6, 2002; 2002 FCT 251.

Return to note 86 referrer

Note 87

Atabaki, Roozbeh Kianpour v. M.C.I. (F.C., no. IMM-8000-04), Noël, July 11, 2005; 2005 FC 969.

Return to note 87 referrer

Note 88

Ali, Nadeem Akhter v. M.C.I. (F.C., no. IMM-8686-04, Shore, September 23, 2005; 2005 FC 1306.

Return to note 88 referrer

Note 89

Chougui, Ahcene v. M.C.I. (F.C., no. IMM-7339-05), Blais, August 17, 2006; 2006 FC 992.

Return to note 89 referrer

Note 90

Ryivuze, Tharcisse v. M.C.I. (F.C., no. IMM-3663-06), Shore, February 8, 2007; 2007 FC 134.

Return to note 90 referrer

Note 91

Rivera Pen, John William v. M.C.I. (F.C., no. IMM-1460-07), Phelan, January 28, 2008; 2008 FC 103.

Return to note 91 referrer

Note 92

Tchoumbou, Eric Francis v. M.C.I. (F.C., no. IMM-5149-07), Tremblay-Lamer, June 11, 2008; 2008 FC 585.

Return to note 92 referrer

Note 93

Murugamoorthy, Kanapathy v. M.C.I. (F.C., no. IMM-3299-07), O'Reilly, September 4, 2008; 2008 FC 985.

Return to note 93 referrer

Note 94

Liqokeli, Imeda v. M.C.I. (F.C., no. IMM-5170-08), Beaudry, May 22, 2009; 2009 FC 530.

Return to note 94 referrer

Note 95

Ndabambarire, Alain v. M.C.I. (F.C., no. IMM-3273-09), Boivin, January 18, 2010; 2010 FC 1.

Return to note 95 referrer

Note 96

Mukasi, Charles v. M.C.I. (F.C., no. IMM-5080-09), Barnes, April 28, 2010; 2010 FC 463.

Return to note 96 referrer

Note 97

Sivakumar, supra, footnote 11, at 439.

Return to note 97 referrer

Note 98

Sivakumar, supra, footnote 11, at 440.

Return to note 98 referrer

Note 99

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

Return to note 99 referrer

Note 100

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

Return to note 100 referrer

Note 101

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

Return to note 101 referrer

Note 102

Jayasekara, ibid., at par. 45. The exclusion of the claimant was not upheld in Poggio Guerrero, Gustavo Adolfo v. M.C.I. (F.C., no. IMM-2723-09), Russell, April 12, 2010; 2010 FC 384 because even though the RPD listed the Jayasekara factos, it did not explain why it had found some factors more persuasive than other and there was no real evaluation of the evidence or how the conclusion was reached. It is not enough to just list the factors without proper analysis.

Return to note 102 referrer

Note 103

Jayasekara, supra, footnote 101 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.

Return to note 103 referrer

Note 104

Jayasekara, supra, footnote 101 at par. 43.

Return to note 104 referrer

Note 105

Jayasekara, supra, footnote 101 at par. 40.

Return to note 105 referrer

Note 106

Jayasekara, supra, footnote 101 at par. 44.

Return to note 106 referrer

Note 107

Brzezinski, Jan v. 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 Tong v. 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. 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.

Return to note 107 referrer

Note 108

Xie, Rou Lan v. M.C.I. (F.C.A., no. A-422-03), Décary, Létourneau, Pelletier, June 30, 2004, 2004 FCA 250. 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), Malone, Richard, Sharlow, 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. The Court in Ileiv, Dimitar Niklov v. M.C.I. (F.C., no. IMM-2162-04), Heneghan, March 21, 2005; 2005 FC 395 did not uphold the exclusion finding. 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 108 referrer

Note 109

Kovacs, Miklosne v. M.C.I. (F.C., no. IMM-8183-04), Snider, October 31, 2005; 2005 FC 1473. See also Montoya, Jackeline Mari Paris v. M.C.I. (F.C., no. IMM-2107-05), Rouleau, December 9, 2005; 2005 FC 1674.

Return to note 109 referrer

Note 110

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

Return to note 110 referrer

Note 111

Zeng, Hany v. M.C.I. (F.C., no. IMM-2319-07), O'Keefe, August 19, 2008; 2008 FC 956.

Return to note 111 referrer

Note 112

Jayasekara, supra, footnote 101.

Return to note 112 referrer

Note 113

In Jayasekara the Federal Court of Appeal, at paragraph 27, noted that the decision in Chan v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 390 (C.A.) "did not then, nor does it now, … stand for the proposition that, whatever the circumstances, a country cannot exclude an applicant who was convicted and served his sentence. The following three cases appear to be based on the notion that the Court in Chan did stand for this proposition, even though exclusion in these cases was upheld. In Rodriguez, Santiago Rafael Garcia v. M.C.I. (F.C., no. IMM-4220-06), Lagacé, May 1, 2007; 2007 FC 462, the Court upheld the exclusion of the claimant who had been convicted of trafficking in a controlled substance in the U.S. and served 26 months of a 54 month sentence. He was subject to exclusion because he voluntarily chose to complete his sentence back in his country, yet once he was removed from the U.S., he failed to do so. In Al Husin, Ibrahim Mohammad v. M.C.I. (F.C., no. IMM-2814-06), Phelan, November 30, 2006; 2006 FC 1451, the claimant could not complete his probation period because he was deported before the probation period was finished. The Court said that it remains unclear in the case law whether deportation completes the sentence. However, in Médina, Ysidro Garcia v. M.C.I. (F.C., no. IMM-4742-05), Noël, January 23, 2006; 2006 FC 62, the Court upheld the exclusion of the claimant who had been sentenced to 60 months in prison and 4 years of probation but was deported from the U.S. after serving 52 months. The Court found that since the probation period was not served he had not yet served his full sentence.

Return to note 113 referrer

Note 114

Zrig v. Canada (Minister of Citizenship and Immigration), [2003] 3. F.C. 761; 2003 FCA 178. Thus, the exclusion of the claimant in Jafri, Syed Musrafa Abbas v. M.C.I. (F.C., no. IMM-6276-02), Kelen, August 18, 2003; 2003 FC 984 for the crime of murder was upheld even though the Pakistani government was not seeking the extradition of the claimant.

Return to note 114 referrer

Note 115

Zrig, supra, footnote 114.

Return to note 115 referrer

Note 116

Zrig, supra, footnote 114. In coming to this conclusion, Justice Décary noted that he had consulted precedent, academic commentary and the actual wording of 1F(b) and determined that the drafters of this exclusion clause had various objectives in mind, namely "ensuring that the perpetrators of international crimes or acts contrary to certain international standards will be unable to claim the right of asylum; ensuring that the perpetrators of ordinary crimes committed for fundamentally political purposes can find refuge in a foreign country; ensuring that the right of asylum is not used by the perpetrators of serious ordinary crimes in order to escape the ordinary course of local justice; and ensuring that the country of refuge can protect its own people by closing its borders to criminals whom it regards as undesirable because of the seriousness of the ordinary crimes which it suspects such criminals of having committed."

Return to note 116 referrer

Note 117

Ibid.

Return to note 117 referrer

Note 118

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 could be considered proportional to the objective of removing a hated political figure. See also the Court of Appeal decision in Lai, supra, footnote 108, paragraphs 62-64.

Return to note 118 referrer

Note 119

See also the Federal Court of Appeal decision in Malouf, supra, footnote 26, 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 119 referrer

Note 120

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 26, 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 120 referrer

Note 121

Gil, supra, footnote 118, at 535.

Return to note 121 referrer

Note 122

Malouf, supra, footnote 26, at 553.

Return to note 122 referrer

Note 123

Supra, footnote 118.

Return to note 123 referrer

Note 124

Sivakumar, supra, footnote 11.

Return to note 124 referrer

Note 125

Bazargan, supra, footnote 38.

Return to note 125 referrer

Note 126

Xie, supra, footnote 108. The Court in Malouf, supra, footnote 26 had already rejected the notion of balancing. See also Ivanov, Nikola Vladov v. M.C.I. (F.C., no. IMM-2942-04), Snider, September 2, 2004; 2004 FC 1210, where the Court concluded that the RPD was not required to balance the potential harm awaiting the applicant against the seriousness of his offence. The Court recently came to the same finding in Quitana Murillo, Leopoldo v. M.C.I. (F.C., no. IMM-930-08), Shore, August 26, 2008; 2008 FC 966.

Return to note 126 referrer

Note 127

See also the discussion above relating to balancing and proportionality (Gil, supra, footnote 118; Malouf, supra, footnotes 118 and 120).

Return to note 127 referrer

Note 128

Lai, supra, footnote 108.

Return to note 128 referrer

Note 129

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 129 referrer

Note 130

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

Return to note 130 referrer

Note 131

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

Return to note 131 referrer

Note 132

Arevalo Pineda, Jose Isaias 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 132 referrer

Note 133

Malouf, supra, footnote 26.

Return to note 133 referrer

Note 134

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

Return to note 134 referrer

Note 135

Ibid., at 1032.

Return to note 135 referrer

Note 136

Ibid., at 1029.

Return to note 136 referrer

Note 137

Pushpanathan, supra, footnote 134, 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 137 referrer

Note 138

Pushpanathan, supra, footnote 134, 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 138 referrer

Note 139

Pushpanathan, supra, footnote 134, at 1030.

Return to note 139 referrer

Note 140

Pushpanathan, supra, footnote 134, at 1032.

Return to note 140 referrer

Note 141

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 141 referrer

Note 142

Ibid., at 1035.

Return to note 142 referrer

Note 143

Ibid., at 1035.

Return to note 143 referrer

Note 144

Ibid., at 1035.

Return to note 144 referrer

Note 145

Ibid., at 1031.

Return to note 145 referrer

Note 146

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1996] 2 F.C. 49 (C.A.).

Return to note 146 referrer

Note 147

Malouf, supra, footnote 26.

Return to note 147 referrer

Note 148

Bazargan, supra, footnote 38.

Return to note 148 referrer

Note 149

Ramirez, supra, footnote 7.

Return to note 149 referrer

Note 150

Bazargan, supra, footnote 38, at 4.

Return to note 150 referrer

Note 151

In Bazargan, supra, footnote 38, where complicity was an issue in the application of Article 1F(c), the Court of Appeal relied on several decisions where complicity was dealt with in the context of Article 1F(a), namely, Ramirez, supra, footnote 7; Gutierrez, supra, footnote 53; Sivakumar, supra, footnote 11; and Moreno, supra, footnote 36.

Return to note 151 referrer

Note 152

Islam, Khokon v. M.C.I. (F.C., no. IMM-2777-09), Pinard, January 22, 3010; 2010 FC 71.

Return to note 152 referrer

Note 153

Ramirez, supra, footnote 7, at 314. Bazargan, supra, footnote 38, 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 153 referrer

Note 154

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 Asna v. 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 154 referrer

Note 155

In Moreno, supra, footnote 36, at 309, Mr. Justice Robertson wrote: "However, it may well be that in strict legal theory the exclusion clause should be construed as erecting a threshold test to be met by the Minister rather than prescribing a standard of proof per se."

Return to note 155 referrer

Note 156

Ramirez, supra, footnote 7, at 311-4.

Return to note 156 referrer

Note 157

Moreno, supra, footnote 36, at 308.

Return to note 157 referrer

Note 158

Sivakumar, supra, footnote 11, at 445. In Pushpanathan, supra, footnote 36 the Trial Division held that the Supreme Court of Canada decision in Pushpanathan did not increase the standard of proof for exclusion.

Return to note 158 referrer

Note 159

Moreno, supra, footnote 36, at 308.

Return to note 159 referrer

Note 160

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

Return to note 160 referrer

Note 161

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 Rule 23 of the RPD Rules.

Return to note 161 referrer

Note 162

Xie, supra, footnote 108.

Return to note 162 referrer

Note 163

See for example Cadovski, supra, footnote 26.

Return to note 163 referrer

Note 164

Gurajena, supra, footnote 130.

Return to note 164 referrer

Note 165

The Federal Court of Appeal in Moreno, supra, footnote 36, noted that there are three reasons why the Board should consider inclusion: 1) as a practical matter, there are cases where it is extremely difficult to separate the grounds of the claim from the circumstances giving rise to exclusion; 2) in the event the exclusion finding is incorrect, the Court can decide if it is unnecessary to refer the case back for re-hearing; and 3) where the claims of other family members are dependant on the excluded claimant, the Board has to consider the refugee claim anyway. Also, as noted in Qazi, supra, footnote 129, where the claimant makes an allegation that charges are false or trumped-up, the Board must consider the credibility of those allegations and if found to be credible, it is likely that the refugee claim must be considered.

Return to note 165 referrer

Previous | Table of Contents | Next