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The Supreme Court of Canada building in Ottawa. (DAVE CHAN FOR THE GLOBE AND MAIL)
The Supreme Court of Canada building in Ottawa. (DAVE CHAN FOR THE GLOBE AND MAIL)

Supreme court allows high-level Congo diplomat to appeal refugee application Add to ...

Annick Legault, lawyer for Rachidi Ekanza Ezokola, breaks the news to him on the phone. In the background, she can hear his wife and eight children screaming happily and singing.

The Supreme Court of Canada has given its unanimous consent for Mr. Ezokola, a high-level diplomat from the Democratic Republic of the Congo, to appeal his refugee application. Canada’s Immigration and Refugee Board had turned him down, citing concerns that Mr. Ezokola may have been complicit by association in war crimes in the Congo based on his senior ranking there. The board acknowledged that Mr. Ezokola himself had not directly participated in war crimes.

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The Supreme Court’s decision released on Friday brings Canada in line with international standards on refugee exclusion. The panel of nine judges ruled that “senior officials may be held criminally responsible for crimes committed by their government if they are aware of the crimes” and continue to defend their government’s interests. However, the test for determining complicity in these crimes must come from contribution, not association, the court said.

“In our view, the personal and knowing participation test has, in some cases, been overextended to capture individuals on the basis of complicity by association. A change to the test is therefore necessary to bring Canadian law in line with international criminal law, the humanitarian purposes of the Refugee Convention, and fundamental criminal law principles,” Justice Louis LeBel and Justice Morris J. Fish wrote on behalf of all the judges.

Ms. Legault praised the Supreme Court’s ruling as extremely thorough.

“It’s like an epic decision basically,” she said. “It goes through all the major points that were argued. We’re very happy because we believe what we wanted came out. So we couldn’t ask for more.”

Ms. Legault said that Mr. Ezokola would not speak to the media because of privacy concerns for his family. A call to his home in Montreal was not returned.

A new IRB panel must now reconsider Mr. Ezokola’s refugee application and apply the contribution-based test for complicity. The judges referenced Article 1F(a) of the United Nations Refugee Convention, which states that a person who has committed a war crime or a crime against humanity should be refused refugee status. The court rejected a “guilt-by-association approach to complicity,” essentially saying that it is not enough to have been aware of crimes committed by an organization with which a person is associated. The individual must have knowingly contributed to be rejected as a refugee.

“To exclude a claimant from the definition of ‘refugee’ by virtue of Article 1F(a), there must be serious reasons for considering that the claimant has voluntarily made a significant and knowing contribution to the organization’s crime or criminal purpose,” the ruling said. “Decision makers should not overextend the concept of complicity to capture individuals based on mere association or passive acquiescence.”

Ms. Legault said she hopes the judgment will help the IRB understand “there is no reason to exclude our client.”

IRB spokesman Mark Van Dusen said the Supreme Court’s decision speaks for itself and he could not comment much further.

“We’re bound by the decisions of higher courts and the ruling is something we will look at to try to determine what sort of direction it gives us when dealing with this particular issue of complicity and war crimes and crimes against humanity,” he said.

Mr. Ezokola, 47, held the second-highest diplomatic position at Congo’s post to the UN in New York. After the 2006 election of President Joseph Kabila, he said he experienced harassment, intimidation and threats from his government, which he claimed suspected him of having ties to a former vice-president who now faces charges of war crimes.

He and his family came to Montreal in January, 2008, to seek refugee status. His family’s refugee applications were approved in 2010. During his years working with the Congolese government, Mr. Ezokola’s country experienced widespread massacres, rapes, arbitrary arrests and torture.

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