Modes of liability, Ezokola and defences (PRRA)

These instructions demonstrate the different ways in which a person may be held accountable for an act that falls under an Article 1F of the 1951 Convention Relating to the Status of Refugees (Refugee Convention) exclusion as well as common defences for a person who has committed such an act.

On this page

• Modes of liability
  • Direct perpetration
  • Complicity
• Defences
  • Superior orders
  • Duress

Modes of liability

To find a person excluded under one of the Article 1F exclusion clauses, a pre-removal risk assessment (PRRA) officer must show a connection between a person’s actions and the different elements contained under the various exclusion clauses.

The most prominent form of individual criminal responsibility is direct perpetration. However, it is not necessary for a person to have personally committed a crime to be found personally responsible for that crime.

Persons may be excluded from refugee protection under Article 1F based on a variety of different roles they played in a crime being committed. A person might have physically committed a crime, or they might have aided and abetted someone to commit a crime, or they might be seen as responsible if the persons committing the crime reported to them and they reasonably should have known the crimes were being committed. These different forms of individual criminal responsibility are called modes of liability.

There are 2 modes of liability PRRA officers are most likely to encounter:

• direct perpetration
• complicity

Direct perpetration

Direct perpetration occurs when it can be shown that a person physically carried out the main elements of an offence and that they did so with intent and knowledge.

This mode of liability is the focus of the section on Assessing Article 1F exclusions in pre-removal risk assessments (PRRAs).

To find someone excluded for having personally carried out an offence that fits under the exclusion clauses, a PRRA officer must demonstrate that the act that was carried out meets all the different elements under the particular clause being assessed.

Complicity

It is not necessary for a person to have physically committed an offence to have some form of individual criminal responsibility. Complicity recognizes that those who act to aid, incite, counsel, or otherwise support a perpetrator to commit an offence under Article 1F are equally culpable and should similarly be excluded from refugee protection.

• In Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40 (Ezokola), the Supreme Court of Canada dealt extensively with the issue of complicity in the context of Article 1F(a). The Court overturned previous Federal Court of Appeal jurisprudence to adopt a new contribution-based test for complicity (otherwise known as the “Ezokola test”):
  • To exclude a claimant from the definition of “refugee” by virtue of art. 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 Court warns decision makers that they should be cautious not to overextend the concept of complicity to capture individuals based on mere association or passive acquiescence. However, the focus on an organization’s crime or criminal purpose means that, unlike direct perpetration, complicity does not have to be tied to a specific act(s) or event(s).

The Ezokola test

The test in Ezokola has 3 components that must be met. The Immigration and Refugee Board lays out the test in its interpretation of the Convention refugee definition in the case law as follows:

1. The first component is voluntary contribution, and the factors to consider include
   • whether the person had no realistic choice but to participate in the crime
   • the method of recruitment and any opportunity to leave the organization
   • whether a defence (for example, duress) is applicable
2. The second component is significant contribution, and the factors to consider include
   • the nature of the association (mere association or passive acquiescence will not suffice)
   • the nature of the activities in question (the contribution does not have to be directed to specific identifiable crimes but can be directed to wider concepts of common design, such as the accomplishment of an organization’s purpose)
   • the degree of contribution (it must be significant)
3. The third component is knowing contribution (there must be a link between the person’s conduct and the criminal conduct of the group). The elements to consider include
   • the person’s awareness (as evidenced by intent, knowledge or recklessness) of the group’s crime or criminal purpose
   • the person’s awareness that their conduct will assist in the furtherance of the crime or criminal purpose

Factors to consider

To assist in determining whether a person’s conduct meets the test for complicity (that is, was voluntary, significant and knowing), the Supreme Court in Ezokola also identified 6 factors to consider:

1. the size and nature of the organization
2. the part of the organization with which the person was most directly concerned
3. the person’s duties and activities within the organization
4. the person’s position or rank in the organization
5. the length of time the person was in the organization, particularly after acquiring knowledge of the group’s crime or criminal purpose
6. the method by which the person was recruited and the person’s opportunity to leave the organization

The analysis of these factors is highly contextual; the weight of each factor depends on the facts and context of each case.

Defences

In certain circumstances, there are valid defences that may absolve the person from criminal responsibility for the crimes in question. Thus, despite having possibly committed a war crime or a crime against humanity, in these cases the person will not be excluded from refugee status.

The burden of proof for demonstrating that one or more defences apply remains with the person concerned.

Superior orders

An applicant may raise this defence in cases where they state they were ordered to commit an offence by a government or superior officer and where they were legally required to obey (for example, “I was just following orders…”).

This defence is not applicable, however, when the order was manifestly unlawful (for example, as noted by the Supreme Court in R. v. Finta, [1994] 1 SCR 701, when an order “offends the conscience of every reasonable, right-thinking person”) and the person has a moral choice as to whether to follow the order. The Crimes Against Humanity and War Crimes Act provides examples of manifestly unlawful acts, stating at subsection 14(2) that “orders to commit genocide or crimes against humanity are manifestly unlawful.”

Duress

The defence of duress may be raised to address cases where a person felt forced to act because of the danger of enduring imminent harm otherwise. However, the harm the person feared must have been equal to or greater than the harm they were forced to inflict on someone else. For example, there is no expectation that a person desert or disobey an order at a risk to their life.

The defence of duress has been set out in paragraph 31(1)(d) of the Rome Statute. For the defence of duress to be successful, the following elements must be demonstrated:

• there has to be an implicit or explicit threat of death or serious bodily harm to the person or a third party
• the harm must be imminent (that is, there is a close temporal connection between the threat and the harm)
• the person must have reasonably believed the threat would be carried out without any safe avenue of escape and must have acted necessarily and reasonably to avoid this threat
• the harm feared must be, on balance, greater than the harm inflicted