This article was initially published in the June edition of The Hamilton Law Association Journal
Foreign nationals who have been found to have committed crimes against humanity cannot visit, study, work or immigrate to Canada. The question of inadmissibility will generally be raised if the foreign national (hereinafter the “applicant”) was a member of military, police or security forces that are deemed to have participated in gross violations of human rights. The issue, however, is that Immigration, Refugees and Citizenship Canada (hereinafter “IRCC”) can sometimes take a zealous approach and conclude that the applicant is inadmissible to Canada based on mere membership in the questionable security, military, or police forces.
Over the past year, I’ve had the pleasure of handling a case where the applicant’s tourist visa was denied when IRCC found that my client participated in crimes against humanity because he was a member of the Serbian army and police forces during the war in the Balkans. We appealed the refusal before the Federal Court, and the matter was settled and returned to IRCC for reassessment. This case brought me back to my law school years and made me re-examine some of the basic principles of human rights and international criminal law, such as individual, rather than collective, responsibility and procedural fairness.
Procedural fairness
If IRCC suspects that the issue of inadmissibility for crimes against humanity is at stake, they will most likely ask the applicant to:
- complete one application form, whereby the applicant will provide details on the size of their unit, commanders, rank, duties, active combat information, etc.;
- attend an interview, so that a Canadian visa officer can enquire about the specific details of the applicant’s involvement with the questionable forces; and
- provide written submissions as to why the applicant should be allowed to come to Canada.
The above-mentioned process is rather lengthy and can take a couple of years.
IRCC will sometimes rely on cryptic documents to demonstrate the basis of their suspicion. And sometimes it will not be clear why and how they concluded that the applicant participated in crimes against humanity. It can, therefore, appear that the applicant can be held guilty by association, which borders with objective responsibility. In my client’s case, IRCC found the applicant inadmissible because he was a member of the Serbian armed and police forces. No evidence was presented to show that the units to which the applicant belonged had engaged in atrocities.
Standard of proof
The standard of proof is whether the applicant made a voluntary, knowing, and significant contribution to the commission of crimes against humanity. The leading authority on the matter is the decision of the Supreme Court of Canada in Ezokola. In Ezokola, the Supreme Court laid out the following factors that are to be assessed when determining whether a person made a voluntary, knowing, and significant contribution to a crime or criminal purpose:
- “the size and nature of the organization;
- the part of the organization with which the refugee claimant was most directly concerned;
- the refugee claimant’s duties and activities within the organization;
- the refugee claimant’s position or rank in the organization;
- the length of time the refugee claimant was in the organization, particularly after acquiring knowledge of the group’s crime or criminal purpose; and
- the method by which the refugee claimant was recruited and the refugee claimant’s opportunity to leave the organization” (Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40 (CanLII), [2013] 2 SCR 678 at para. 91).
Ezokola further reiterates that: “guilt by association violates the principle of individual criminal responsibility. Individuals can only be liable for their own culpable conduct” (Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40 (CanLII), [2013] 2 SCR 678 at para. 82).
In Ali, the Federal Court affirmed that: “in the case of a multifaceted organization such as a police force or military, there must be an assessment of whether the person significantly contributed to the crimes or criminal purpose of the group and not just to the organization itself (Ali v. Canada (Public Safety and Emergency Preparedness), 2021 FC 698 at para. 31). Similarly, In Niyugeko, the Federal Court concluded that “… individuals are not personally liable for crimes committed by a group simply because they are associated with that group” (Niyungeko v. Canada (Citizenship and Immigration), 2019 FC 820 (CanLII) at para. 49).
Conclusion
Canada prides itself on the protection of human rights and international criminal justice systems. Our legal system is very clear that war criminals, terrorists, and the like have no place in this country. But the question remains: What happens if the duty to prevent questionable individuals from coming here violates basic rights, such as individual responsibility and the right to know the case made against them? Litigating flawed findings before the Federal Court is time-consuming and expensive, for everyone involved. Hopefully, our immigration system will come up with a more efficient way to assess the applicants’ contribution to crimes against humanity.