Supreme Court rules guilt by association not enough to deny refugee status

Guilt by association isn't enough reason to deny someone refugee status, the Supreme Court of Canada has ruled.

In a decision handed down Friday, the high court ordered the Immigration and Refugee Board to take another look at the case of former Congolese diplomat Rachidi Ekanza Ezokola.

His refugee claim was denied based on his work for the government of the Democratic Republic of Congo, which has faced a range of war-crimes accusations from massacring civilians to using child soldiers, CBC News reported.

Ezokola served in the Congolese government for eight years as an economic adviser and later as second counsellor in the country's delegation to the United Nations in New York, the Globe and Mail reported. He quit that post in 2004 and came to Montreal with his family, where they claimed refugee status.

According to the Globe, Ezokola began to fear for his safety after the 2006 election of President Joseph Kabilia, whom he had not supported.

Ezokola told a the refugee board he was harassed, intimidated and threatened by the Kabila government. It suspected him of ties to Jean-Pierre Bemba, the exiled former vice-president and opposition leader, the Globe said. Bemba was arrested in Belgium in 2008 for alleged involvement in war crimes and crimes against humanity in the conflict-ridden African country.

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The refugee board granted refugee status to Ezokola's wife and eight children but denied his claim over concerns he may have been complicit by association in his government's crimes. Before taking up his UN post in 2004, Ezokola had been a financial adviser in various Congolese government ministries at a time of widespread massacres, mass rapes, arbitrary arrests and torture, the Globe said.

The board conceded Ezokola had not directly taken part in any atrocities but rejected his claim based on his senior position in the government.

The board's ruling was overturned in Federal Court in 2010 but reinstated by the Federal Court of Appeal the following year.

"The Federal Court of Appeal held that a senior official in a government could demonstrate personal and knowing participation and be complicit in the crimes of the government by remaining in his or her position without protest and continuing to defend the interests of his or her government while being aware of the crimes committed by the government," the Supreme Court said in backgrounding its unanimous decision striking down that ruling.

But excluding someone from refugee status requires that "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."

In its submission to the Supreme Court, the government argued Ezokola "willingly represented his government on the international scene while heinous crimes were being committed by his own government in his country.

"It is common ground that he was not credible when he stated he did not know about the crimes committed by his own government and that he dissociated himself from his government only when he felt his personal safety was in jeopardy," the government said in its submission, according to CBC News.

The Supreme Court sided with Ezokola's lawyer, who had argued the board's rejection went against the UN Refugee Convention that requires evidence a person committed war crimes to justify rejecting their claim, the Globe said.

“It’s like an epic decision basically,” lawyer Annick Legault told the Globe. “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.”

The court's decision brings Canada in line with other countries' interpretation of UN guidelines on refugee claims. Up to now, Canada used an expansive definition when assessing someone's complicity in war crimes, Lorne Waldman, president of the Canadian Association of Refugee Lawyers, told CBC News earlier.

"The person can be found to have committed a war crime or crime against humanity under the immigration laws in Canada even if there's no direct link between him or her and any actual crime," Waldman said.

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Ezokola would not comment on the decision, citing privacy for him and his family. But Legault told CBC News the ruling produced a burst of emotion from them.

"I could hear the tears, the laughs," she said. "The family is definitely relieved."

Legault did not know when Ezokola's new hearing would be scheduled.

“We strongly hope that this judgment, this decision from the Supreme Court will help in the understanding that with the file as it is, there is no reason to exclude our client,” she said.

A spokesman for the board said the ruling largely speaks for itself but the board would consider its longer-term implications.

“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,” Mark Van Dusen told the Globe.