Canadian Test for Exclusion Brought into Line with International Law

On 19 July 2013, Amnesty International welcomed an important decision of the Supreme Court of Canada (SCC) in the case of Rachidi Ekanza Ezokola.  The unanimous judgment, written by Justices LeBel and Fish, brings Canada’s interpretation of the UN Refugee Convention into line with international law.

by Anna Shea and Gloria Nafziger

Supreme Court Ruling in Ezokola case

Mr. Ezokola had a long career with the government of the Democratic Republic of the Congo (DRC). In 2008 he resigned from his position at the Permanent Mission of the DRC at the UN in New York and fled to Canada with his family, seeking refugee protection.  He stated that he could no longer work for a government which he considered corrupt, violent and antidemocratic. 

The Immigration and Refugee Board determined that he was prevented from claiming refugee status, because having been employed by a government that committed terrible crimes rendered him complicit in those atrocities. There has never been any allegation that Mr. Ezokola was personally responsible for any crimes, nor that he made statements intended to minimize or camouflage the criminal activity of the Congolese government. Mr. Ezokola’s case eventually made it to the SCC.

Amnesty International intervened at the SCC hearing in January 2013, and was represented by lawyers Michael Bossin, Laïla Demirdache, and Chantal Tie, with assistance from Anna Shea. Amnesty International argued that Canadian law, which excludes people who are not in any way connected with the commission of international crimes, is unfair, overly broad and out of line with the human rights purpose of the Refugee Convention.

Exclusion from refugee status is a complex issue. The Refugee Convention is a human rights instrument, designed to protect people fleeing persecution. Therefore, individuals who contribute towards persecution – such as people who commit crimes against humanity – should not be allowed to exploit the refugee protection system to their advantage. Another complicating factor is that exclusion decisions are made in the context of a refugee hearing – not in a criminal trial in which guilt or innocence is determined. The difficulty is how to develop a fair and workable test for determining when someone should be prevented from claiming refugee status.

In Amnesty International’s view, the SCC has succeeded in doing so, and has brought Canada’s interpretation of the Refugee Convention into line with international law. The decision sends a clear message that Canadian decision-makers have been too keen to exclude refugee claimants. Under the new, stricter test, “an individual will be excluded from refugee protection under art. 1F(a) for complicity in international crimes if there are serious reasons for considering that he or she voluntarily made a knowing and significant contribution to the crime or criminal purpose of the group alleged to have committed the crime.” In other words, it is not enough to simply belong to a group that commits criminal offences; it is necessary to voluntarily and knowingly make a significant contribution to those crimes.

Amnesty International is hopeful that this decision will bring some much-needed clarity and fairness to Canada’s jurisprudence on exclusion, and lend support to a growing international trend towards a more restrictive application of the Refugee Convention’s exclusion clauses.

Read the Supreme Court’s decision here:

Amnesty International’s legal briefing and intervention at the supreme court can be found here: