November 9, 2018
Are You Inadmissible to Canada for Complicity in Crimes Against Humanity?
On 18 December 1998, Canada became a signatory to the Rome Statute of the International Criminal Court, reinforcing its commitment to hold those believed to have committed or been involved in war crimes, crimes against humanity or genocide accountable for their actions. For a considerable number of years, Canada has implemented a “no safe haven” policy against individuals believed to have participated in serious international crimes. The policy is strictly enforced by the Government of Canada through an interdepartmental initiative called the Crimes Against Humanity and War Crimes Program (“War Crimes Program”), established in 1998. The Canada Border Services Agency, the Department of Citizenship and Immigration, the Department of Justice and the Royal Canadian Mounted Police deliver the War Crimes Program by responding to individuals suspected of international criminal conduct and denying them access to Canada or removing them from Canada if they have already entered.
Recently, the Federal Court of Canada in Jeleca [Jelaca v. Canada (M.C.I), 2018 FC 887] upheld the negative decision of an Immigration Officer after determining there were reasonable grounds to believe that the Applicant was inadmissible under paragraph 35(1)(a) of the Immigration and Refugee Protection Act (IRPA) because of his role as a member of the Bosnian Serb Army also known as the Vojska Republike Srpske (VRS) that led the siege of Sarajevo during the Bosnian War. Paragraph 35(1)(a) of IRPA provides that a person can be inadmissible to Canada for violating human or international rights if he or she has committed an act outside Canada that constitutes an offence under sections 4 to 7 of the Crimes Against Humanity and War Crimes Act.
The Applicant in Jeleca was deployed as a guard in Sarajevo during the siege from August 1993 to January 1994. The siege itself lasted for nearly four years and during that time many moral lines were crossed, including the killing, raping, wounding and looting of civilian population at a shocking scale. Open source documentation indicated that members of the VRS in the location where the Applicant served prevented humanitarian assistance from reaching the besieged civilian population. Although there was no direct evidence linking the Applicant to the crimes committed, the Court in Jelaca noted that, based on the Supreme Court of Canada’s decision in Ezokola, a determination of inadmissibility “on grounds of violating human or international rights” under paragraph 35(1)(a) of IRPA, does not require personal commission of the crime to establish complicity.
In Ezokola, the Supreme Court of Canada determined that as long as there is evidence showing that the person made “voluntary, knowing and significant contribution” to the crime or criminal purpose, the person is inadmissible to Canada even if they were not directly involved in crimes against humanity. [Ezokola v. Canada (M.C.I.), 2013 SCC 40]. This is because, as noted in Ezokola, the standard of proof required for exclusion or inadmissibility determinations under paragraph 35(1)(a) is “reasonable grounds to believe,” which is different from the standard of proof for determinations of guilt that is “beyond a reasonable doubt.” Since Ezokola Canadian jurisprudence has continued to find that the applicability of paragraph 35(1)(a) does not depend on non-involvement. Complicity is made out if there is cogent evidence of “voluntary, knowing and significant contribution” in the commission of crimes against humanity. The Federal Court in Jeleca decided that the officer’s decision was justifiable in law and fact as there were reasonable grounds to believe that the Applicant as a member of the VRS had made a “voluntary, significant and knowing contribution” to the siege of Sarajevo and as a result was inadmissible.
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