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First,
the good news … The Supreme Court of
Canada Ezokola
v Canada July 2013 established a
principled test limiting those who could
be excluded from refugee status on
grounds of committing or being complicit
in international crimes. "To
exclude a claimant from the
definition of “refugee” by virtue of
art. 1F(a), there must be serious
reasons for considering that the
claimant has voluntarily made a
significant and knowing contribution
to the organization’s crime or
criminal purpose. Decision
makers should not overextend the
concept of complicity to capture
individuals based on mere
association or passive
acquiescence. In Canada, the
personal and knowing participation
test has, in some cases, been
overextended to capture individuals
on the basis of complicity by
association. It is therefore
necessary to rearticulate the
Canadian approach to bring it in
line with the purpose of the Refugee
Convention and art. 1F(a), the role
of the Refugee Protection Division,
the international law to which art.
1F(a) expressly refers, the approach
to complicity under art. 1F(a) taken
by other state parties to the
Refugee Convention, and fundamental
criminal law principles. These
sources all support the adoption of
a contribution‑based test for
complicity — one that requires a
voluntary, knowing, and significant
contribution to the crime or
criminal purpose of a group." The hard work of
giving the court all the information and
various angles is important and a lot of
lawyer time must have gone into this -
given or at legal aid rates. An
impressive assembly of interveners –
Amnesty International, the UNHCR, the
CCR - helped the Court get it right. Second,
five points for reflection … 1.
In the wider sweep of law, this
Case is nailing down aspects of the
right to seek and obtain asylum in
accordance with both national law and
international agreements. This is a
right promised by the Inter-American
human rights system from all countries
which are members of it - including
Canada. The relevant
“international agreements” include: a)
human rights treaties clarified by
international human rights bodies like
the Inter-American Commission on Human
Rights. See John
Doe et al v Canada about Canada’s
former policy of turning back asylum
seekers from the US border to wait to be
heard by Canada. The Commission said inter
alia that the right to seek and
obtain asylum required an individualized
examination of the person’s need for
protection which took into account their
safety in a third country – here the US
- before border turnback to that third
country.
b)
the 1951 Convention relating to the
status of refugees. The
definition of refugee, 1951 Convention
article 1, allows for exclusion from
international refugee status for some
persons on a short list of limited
grounds such as international crimes as
in the Ezokola Case. So the Ezokola
Case has clarified the application
of this exclusion in the wider sweep of
the right to seek and obtain asylum … in
accordance with international
agreements. 2.
Although the case is about the
international right to seek and obtain
asylum, Canadian law has
incorporated only the international
refugee definition from the many
provisions of one international treaty -
the 1951 Refugee Convention. True, there
is a general requirement in the
Immigration and Refugee Protection Act
to apply the Act so as to comply with
international human rights treaties to
which Canada is a signatory. But this is
part of a long list of considerations
and the relevance of this particular one
has yet to be developed by the Court. So
this is work down the road. (See IRPA
article 3.) 3.
Related to human rights
obligations, the Ezokola decision makes
little mention of international human
rights or corresponding related rights
in the Canadian Charter
of Rights and Freedoms. In recent
case law it seems that the Supreme Court
avoids human rights obligations and
prefers to work with Canadian Federal
law - here the refugee definition in the
IRPA. This works much (I was told) as a
US Supreme Court principle of not
getting into rights if it can resolve a
case without them. This principle is an
inappropriate position for a court at
the Constitutional level in a country
which has agreed, by ratifying human
rights treaties, to promote and give
effect to the treaty human rights. The
highest court, the law-shaping court,
should be promoting and ensuring
international treaty rights by example
both in its shaping of the law and for
the individual person whose case is
before it. 4.
The Court’s ruling in this case
is unremarkable. It is not a courageous
or pioneering decision. a)
the number of refugee claimants affected
by this exclusion as clarified by the
Court is unlikely to exceed a handful or
two per annum. (True, before the
decision the exclusion was being wrongly
used to deny more cases refugee status!)
b)
UNHCR, the competent international
authority for supervising the
application of the 1951 Convention, has
provided guidelines on this exclusion
and c)
other countries have already agreed with
UNHCR. So this is a "me too" decision by
the Canadian Court. 5.
My particular concern in such
cases is with the individual. After
going before all the courts before the
Supreme Court with their procedures and
their timelines and now after this Court
and its application and deliberation
times, the persona still has no decision
on refugee status. The stress and cost
of waiting through the protracted legal
struggles must now be extended by
another refugee status hearing and
possibly a new appeal by the government.
The
Supreme Court is good for interveners
who like the law to be shaped. It is not
so good for an individual whose right to
seek and obtain asylum is still up in
the air. Remember even refugee status is
not the end of the road to secure status
in Canada. Permanent resident status is
needed to really get on with one’s life. If
the refugee definition were to be
applied as the UNHCR and member
governments of the UNHCR’s Executive
Committee like Canada agreed, the rest
of the refugee status test would be
determined before applying the exclusion
test. (The need for protection logically
comes first in a treaty with protection
as its primary purpose.) It would then
be easy and responsible for the higher
courts to declare the person a refugee
by finding the exclusion test, which
involves different legal factors,
wrongly applied. Also,
an
individual would be on the way back to a
home country and not before a higher
court unless refugee status had been
already established but for the
exclusion provision.
Third
… Despite
these
five thoughts, this is a useful decision
which required a lot of work from
several lawyers acting for several
agencies. The bits of rights slowly
clarified in such case law add up to an
expanded shift from discretion for the
authorities to a rule of law for the
individual. Things are now a wee bit
closer to a more predictable principled
right to seek and obtain asylum for the
individual. On
to the next case ...
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