The Supreme Court of Canada issued a ruling Friday clarifying the test that immigration officials should use when deciding if a refugee applicant was complicit in war crimes.
The court said it is not enough to believe an asylum seeker may have known about crimes to deny them refugee status.
The top court issued a ruling that sends the case of Rachidi Ekanza Ezokola back to the Immigration and Refugee Board, saying in its ruling that the board erred in the test it used when it first considered the man's case.
The Supreme Court said if someone is going to be excluded from applying for refugee status because of alleged complicity in war crimes, it has to be shown that the person was an active participant in the crimes. Someone knowing about crimes that were committed is not enough to exclude them, the court decided.
The case stems from a decision by the federal government to deny refugee status to Ezokola. He worked for the government of the Democratic Republic of Congo (DRC) for eight years, four of them as a prominent diplomat at the United Nations.
Ezokola moved to Montreal in 2008 with his wife and eight children, alleging he had received death threats from Congolese intelligence agents. Canada's Immigration and Refugee Board denied Ezokola refugee status after finding him complicit by association in war crimes and crimes against humanity.
In the years Ezokola served the DRC government, it was responsible for a number of atrocities including the massacre of civilians and recruitment of child soldiers.
Ezokola appealed the ruling and won at Federal Court but then lost at the Federal Court of Appeal.
In its factum filed with the Supreme Court, counsel for the minister of citizenship and immigration argued, "For several years, the appellant willingly represented his government on the international scene while heinous crimes were being committed by his own government in his country."
Ezokola says he faced threats
"It is common ground that he was not credible when he stated he did not know about the crimes committed by his own government and that he dissociated himself from his government only when he felt his personal safety was in jeopardy," the factum said.
But lawyers for Ezokola say there is no direct or indirect link between their client and his work and the crimes committed by DRC security forces. They presented evidence that members of the DRC intelligence service started to threaten Ezokola when they learned he did not support President Joseph Kabila and raised concerns about what was happening in his home country.
The president of the Canadian Association of Refugee Lawyers Lorne Waldman says Canada is out of line with other countries in how it interprets the United Nations convention that allows nations to deny refugee status to people who've committed war crimes.
Waldman says jurisprudence in Canada has given a very expansive definition of when a person is responsible for war crimes and crimes against humanity. "The person can be found to have committed a war crime or crime against humanity under the immigration laws in Canada even if there's no direct link between him or her and any actual crime."
Annick Legault, one of Ezokola's lawyers, said she hopes the court will clarify the test for individual responsibility and make it clear that there must be a direct connection between the applicant refugee and the commission of a specific crime.
"We're not looking into asking, for instance, to specify the day of, like in a criminal court. But for instance if there's a direct link between the person and enrolling, enlisting child soldiers," she said.
If the Supreme Court agrees to such a test for complicity, Legault says she expects many more refugees would be permitted to stay in Canada. No one from the Department of Citizenship and Immigration would comment on the case as it is still before the courts.
No matter how the Supreme Court was going to rule today, Ezokola will have to return to the Immigration and Refugee Board for a new hearing.
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