Latest Immigration Decision

Eugene c Canada (Minister of Citizenship & Immigration)

Decider: Simon Noel J.

Court: Federal Court

Citation: 2011 CF 671

Judgment: June 17, 2011

Docket:  IMM-5122-10

[13]           The Canadian legal framework on war crimes has been made clear by a number of courts, including the Supreme Court and the Federal Court of Appeal. In Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 (CanLII), 2005 SCC 40, the Supreme Court stated that for there to be a war crime, there must first be the elements of a crime: (1) a criminal act; and (2) a guilty mind (paragraph 127). Second, the criminal act alleged must (1) be one of the enumerated proscribed acts in the Criminal Code; (2) the act must be done as part of a widespread or systematic attack; and (3) the attack must be directed against any civilian population or any identifiable group (paragraph 128). The decision, conveyed by the letter and the CAIPS notes, does not identify any of these elements. With some zeal, it would be possible to infer those elements from the decision, but that is not the problem, for the applicant’s complicity is also at issue.

[14]           The decision is devoid of any analysis of the legal framework applicable to complicity in the crimes against humanity alleged. First of all, the Court is concerned that the applicant’s guilt would seem to result solely from his association with the CIMO. Mere membership in an organization which from time to time commits international offences is not normally adequate justification for inadmissibility (Ramirez v Canada (Minister of Employment and Immigration), reflex, [1992] 2 FC 306 (FCA)), unless this organization owes its very existence to a limited, brutal purpose (Saridag v Canada (Minister of Employment and Immigration), reflex, (1994) 85 FTR 307 (FCTD)). Many factors have been identified in the case law, particularly in Ramirez, above, and Sivakumar, above. For example, the Court notes the following:

a.      The individual’s personal and knowing participation in or toleration of the crimes;

b.      Importance of the individual’s functions, both the duties themselves and the individual’s position in the hierarchy of the organization;

c.      The individual’s opposition to the conduct, or the individual’s attempts to prevent them or to leave the organization;

d.      Shared common purpose of the organization; and

e.      Length of participation in the group.

[15]           Furthermore, the burden of proof for establishing inadmissibility under section 33 of the IRPA is “reasonable grounds to believe”. As explained by the Federal Court of Appeal, this requires more than mere suspicion or conjecture, but less than proof on a balance of probabilities (Sivakumar, above). In this case, the Court is not satisfied from reading the reasons that this standard of proof has been met.