Assessing Article 1F exclusions in pre-removal risk assessments (PRRAs)

These instructions demonstrate how to assess whether an exclusion ground applies under Article 1F of the 1951 Convention Relating to the Status of Refugees (Refugee Convention).

Assessing the exclusion grounds

• Article 1F: General
• Article 1F(a): Crime against peace, war crime, or crime against humanity
• Article 1F(b): Serious non-political crime
• Article 1F(c): Acts contrary to the purposes and principles of the United Nations
• Further resources

Article 1F: General

Certain elements apply to all 3 exclusion grounds under Article 1F.

Exclusion determinations under Article 1F are not determinations of guilt and therefore are not based on proof beyond a reasonable doubt nor on the general civil standard of a balance of probabilities.

The phrase “serious reasons for considering” has been interpreted as setting a standard above mere suspicion. In Ezokola v. Canada (Citizenship and Immigration), [2013] 2 S.C.R. 678 (Ezokola), the test was interpreted by the Supreme Court of Canada as more similar to the standard of proof of “reasonable grounds to believe.”

Officers must assess the evidence before them to determine whether there are reasonable grounds to believe that a person committed an act that falls under one of the exclusion grounds identified in Article 1F.

It is not necessary for the applicant to have been charged or convicted of an act set out in Article 1F of the Refugee Convention. It is sufficient that there be reasonable grounds to believe that the applicant has committed such a crime.

The principles of complicity apply to all exclusion crimes:

• Complicity – Modes of liability, Ezokola and defences

Article 1F(a): Crime against peace, war crime, or crime against humanity

In order to understand what constitutes a crime under Article 1F(a), officers must refer to the international instruments that deal with these crimes.

Instruments

Several instruments exist today that define or elaborate on the notions of crimes against peace, war crimes and crimes against humanity. These include

• 1945 Charter of the International Military Tribunal (London Charter)
• Updated Statute of the International Criminal Tribunal for the Former Yugoslavia (PDF, 324 KB)
• Statute of the International Criminal Tribunal for Rwanda (PDF, 180 KB)
• Rome Statute of the International Criminal Court (PDF, 376 KB) (Rome Statute) (most recent and comprehensive)

The Supreme Court of Canada (SCC) noted in Ezokola that reference should also be made to the growing body of jurisprudence of international ad hoc tribunals and national courts.

When making a decision to seek exclusion under Article 1F(a), it is important that officers be clear with regard to what specific crimes they are stating the applicant participated in and ensure they put this to the applicant. Failing to do so may be seen as a reviewable error.

The officer should make findings as to all of the following:

• the specific acts committed by the person
• the person’s knowledge of the acts
• what element of the clause is being applied, that is, whether the acts constituted a
  • crime against peace
  • war crime
  • crime against humanity

Crimes against peace

• The London Charter defines crimes against peace as the
  • planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.
• The Rome Statute updated this concept in 2017. Though the term used is now a “crime of aggression”, it refers to the same idea as a crime against peace.
• The Rome Statute defines the crime of aggression as
  • the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.
• The term “act of aggression” in this context means
  • the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.

Examples of acts of aggression include

• invasion
• bombardment
• military occupation
• annexation by the use of force
• blockade of the ports or coasts

Such crimes can only be committed in the context of international wars by individuals who are representing a state or state-like entity and have the power to mobilize the state.

Due to the limited number of people to whom this subsection of Article 1F could apply, there are few precedents for exclusion under this category, and none in Canada to date.

War crimes

A war crime involves the violation of either of the following:

• international humanitarian law
• the laws of armed conflict

Such crimes can take place in either of the following scenarios:

• an international armed conflict
• a non-international armed conflict (that is, a civil war)

The Geneva Conventions of 1949 establish the standards of international law for humanitarian treatment in war, including laying out 8 core war crimes. However, international instruments such as the Rome Statute (and others listed under Instruments) are also important references in defining a war crime.

Example

There are over 50 war crimes enumerated in the Rome Statute, which include and go beyond the Geneva Conventions’ 8 “core crimes.” Besides being defined in international instruments, war crimes are also codified in Canadian legislation in the Crimes Against Humanity and War Crimes Act, which implements the Rome Statute.

Core crimes

The Geneva Conventions’ 8 core crimes are

• willful killing (murder)
• torture or inhuman treatment
• willfully causing great suffering or serious injury to body or health
• extensive destruction or appropriation of property not justified by military necessity and carried out unlawfully or wantonly
• compelling a prisoner of war or other protected person to serve in the forces of a hostile power
• willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial
• unlawful deportation or transfer or unlawful confinement
• the taking of hostages

Test for war crimes

Munyaneza v. R., 2014 QCCA 906, a decision of the Quebec Court of Appeal regarding an appeal of a conviction for war crimes committed in Rwanda, helps interpret the overarching elements of a war crime. In this decision, the Court states that all of the following elements must be established:

• an armed conflict, whether international or not
• offences committed against persons who did not take part in or had ceased to take part in the armed conflict
• a nexus between the offences committed and the armed conflict
• the person’s knowledge of this nexus

Crimes against humanity

Crimes against humanity may be committed in the context of an international or internal war as well as in times of peace. They are defined in the Rome Statute as any of the following:

• murder
• extermination
• enslavement
• deportation or forcible transfer of population
• imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law
• torture
• sexual violence
• persecution on grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this list or any crime within the jurisdiction of the International Criminal Court
• enforced disappearance of persons
• the crime of apartheid
• other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health

To rise to the level of a crime against humanity, the offence must be committed as part of a widespread or systematic attack.

• Widespread: defined by the scale of the act—consisting either of a number of smaller acts or of one large act with a significant effect in terms of number of people, geographic location, temporality or severity.
• Systematic: acts are organized and follow a pattern with similar elements that go beyond a random chance or coincidence.

The act must be committed against a civilian population rather than other combatants.

It can include (though is not limited to being part of) a policy of persecution with the same political, racial, religious or cultural motive.

Finally, perpetrators of crimes against humanity are not limited to persons acting on behalf of a state, but may also include individuals acting independently of the state, such as those involved in paramilitary or armed revolutionary movements.

Test for crimes against humanity

The Supreme Court of Canada, in Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100, 2005 SCC 40, established the elements of a crime against humanity. It found that a criminal act rises to the level of a crime against humanity when the following 4 elements are found:

1. an enumerated proscribed act was committed (this involves showing that the accused committed the criminal act and had the requisite guilty state of mind for the underlying act)
2. the act was committed as part of a widespread or systematic attack
3. the attack was directed against any civilian population or any identifiable group of persons
4. the person committing the proscribed act knew of the attack and knew or took the risk that his or her act comprised a part of that attack

Article 1F(b): Serious non-political crime

General

The aim of this subsection of the exclusion clause is to protect the community of a receiving country from the danger of admitting a refugee who has committed a serious common crime. This provision relates to the Immigration and Refugee Protection Act’s (IRPA’s) objectives of protecting Canadians and denying access to Canadian territory to serious criminals.

This clause applies to anyone for whom there are serious reasons to believe they have committed an act that could be considered a serious non-political crime prior to their entry to Canada.

It can include fugitives from justice; persons who have been previously convicted, whether or not they have served any sentence imposed; and even those who have never been charged. None of the following are a prerequisite for the application of this clause:

• laying of charges
• entering of a conviction
• request for an extradition

A person can be found excluded under this clause even when there is evidence of

• completion of an imposed sentence
• the current lack of dangerousness of a person
• rehabilitation

These factors are considered extraneous to the test of whether there are serious reasons for considering that the applicant has committed a serious non-political crime.

Elements to consider

When assessing whether a person committed an act or crime that falls under Article 1F(b), the officer must consider the following questions:

• Is the crime serious?
• Is the crime political?
• If political, is the political nature of the crime proportional to the impact of the crime?
• Was the crime committed prior to entry to Canada?

Is the crime serious?

An important element of this clause is determining whether the crime is “serious.”

The Handbook on Procedures and Criteria for Determining Refugee Status notes that what constitutes a serious non-political crime is difficult to define. However, it notes that a serious crime must be a capital crime or a very grave punishable act.

In the context of IRPA, a “serious crime” is understood to mean an indictable or hybrid offence under the Criminal Code of Canada that is punishable by a maximum term of imprisonment of at least 10 years.

For the purpose of exclusion under Article 1F(b), there is a rebuttable presumption that, where a maximum sentence of 10 years or more could have been imposed had the crime been committed in Canada, the crime will generally be considered serious. However, as noted by the Court in Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, this presumption cannot be applied in a mechanistic, decontextualized or unjust fashion. In other words, it cannot be applied automatically, without consideration for the context surrounding the crime.

Crimes with maximum penalties of less than 10 years or acts that are not considered crimes in the jurisdiction where they are committed may still result in exclusion, while crimes with a significant potential penalty may not result in exclusion based on extenuating factors. This is dependent on the circumstances and nature of the crimes committed.

Assessing the seriousness of the crime

The Federal Court of Appeal stated in Jayasekara v. Canada (Minister of Citizenship and Immigration), 2008 FCA 404 that, when assessing the seriousness of a crime in the context of Article 1F(b), there must be an evaluation of the following factors:

• the elements of the crime
• the mode of prosecution
• the penalty prescribed
• the facts
• the mitigating and aggravating circumstances underlying the conviction

Is the crime political?

Another important element of this clause is determining whether a crime is “political,” as an officer can only exclude a person under Article 1F(b) for serious non-political crimes.

For a crime to be considered political and fall outside of the scope of Article 1F(b), it must meet a two-pronged test defined by the Court of Appeal in Gil v. Canada (Minister of Employment and Immigration), [1995] 1 FC 508 (C.A.):

1. it must be committed for a political purpose that is in direct opposition to the government of the country
2. there must be a rational nexus between the crime committed and the political objective sought

There are offences that can clearly be political in nature. Examples include the following:

• treason
• espionage
• membership in a prohibited political party
• election fraud

However, there are also common offences that may be carried out with a clear political motivation.

The political aspect of the offence must be more important than the non-political crime aspect, and the person concerned should not be unduly benefiting from the offence.

If the political character of the offence outweighs the character of a common crime, the offence should be treated as a political offence and the person should not be excluded.

Other issues to consider

The issue of proportionality is also a factor in assessing crimes under this clause.

Where the offence is particularly serious and disproportionate to the goal, it cannot be considered political even if the motive is political.

Finally, the words “prior to his admission to that country as a refugee” refer to the last element of this clause, that the crimes in question were committed prior to the applicant’s entry into Canada.

Crimes committed in Canada are dealt with through the domestic criminal justice system and are covered by IRPA’s inadmissibility provisions. In these cases, determinations regarding whom restricted PRRAs apply to are based on paragraph A112(3)(b) and section A113, not the exclusion clauses.

Article 1F(c): Acts contrary to the purposes and principles of the United Nations

This clause is very general in nature and is intended to cover such acts against the purposes and principles of the United Nations that might not be fully covered by the 2 preceding exclusion clauses. These purposes and principles can be found in the Preamble and Articles 1 and 2 of the Charter of the United Nations.

The following conclusions on the application of this clause are generally accepted:

• that it should be interpreted restrictively
• that the acts committed must be criminal in nature
• that it includes acts committed in the country of refuge and acts committed in the country of origin
• that it may apply to acts committed by individuals in the exercise of government functions and individuals with no connection to government

In Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, the Supreme Court of Canada set out 2 categories of acts that fall within this clause.

First category of acts

Examples given by the Court of acts falling under this category include

• enforced disappearances
• torture
• international terrorism

International instruments exist that specifically designate these acts as being against the purposes and principles of the United Nations.

The Court also noted that other sources of international law may be relevant, giving by way of example determinations by the International Court of Justice. 

Second category of acts

An example given by the Court of acts falling under this category:

• any act that an international instrument has indicated is a violation of fundamental human rights

The types of activities that are against the principles and purposes of the United Nations continue to be outlined in international jurisprudence. Most of these cases have pertained to either terrorist activities or human rights violations.

Further resources

Chapter 11 of the Immigration and Refugee Board’s Interpretation of the convention refugee definition in the case law deals with applying exclusions under Article 1F and can serve as an additional resource:

• Chapter 11 - Article 1F