2011 FCA 224, 2011 FCA 224

[2011] 3 F.C.R. 417 A-281-10 2011 FCA 224 The Minister of Citizenship and Immigration ( Appellant ) v. Rachidi Ekanza Ezokola ( Respondent ) Indexed as: Ezokola v. Canada (Citizenship and Immigration) Federal Court of Appeal, Noël, Nadon and Pelletier JJ.A.—Montréal, June 9; Ottawa, July 15, 2011. Citizenship and Immigration — Exclusion and Removal — Inadmissible Persons — Appeal from Federal Court decision setting aside Immigration and Refugee Board finding that United Nations Convention Relating to the Status of Refugees, Art. 1F(

a) applying to respondent, that respondent therefore not covered by refugee protection provisions — Test for complicity established, applied by Federal Court inconsistent with Federal Court of Appeal’s case law — Applying test too narrowly in requiring personal participation by individual in crimes alleged — “Personal and knowing participation” test adopted by Federal Court of Appeal broader — Criminal responsibility described in Rome Statute of the International Criminal Court not only ascribed in case of “personal participation in crime alleged or personal control over events leading to crime alleged” — “Personal and knowing participation” test established by Federal Court of Appeal in Ramirez v.

Canada (Minister of Employment and Immigration) in harmony with Rome Statute — Federal Court’s certified question, as reformulated by Federal Court of Appeal, answered affirmatively: senior official may, by remaining in position without protest, demonstrate “personal and knowing participation” in crimes, be complicit with government in commission thereof — Refugee Board wrong to say that Ramirez establishing “personal and knowing awareness test”, confusing “awareness” with “participation” — While personal knowledge of crimes one of elements required for “personal and knowing participation”, only participation may support finding of complicity — Appeal allowed.

This was an appeal from a Federal Court decision allowing an application for judicial review by the respondent. The Federal Court set aside the finding of the Immigration and Refugee Board, Refugee Protection Division, that

Article 1F(

a) of the United Nations Convention Relating to the Status of Refugees applied to the respondent and that he was therefore not covered by the refugee protection provisions. It intervened on the ground that the Board could not have found serious reasons for considering that the respondent had committed crimes against humanity as a result of his diplomatic duties with the Permanent Mission of the Democratic Republic of Congo (DRC) to the United Nations.

The Federal Court certified a question of general importance regarding whether a public servant in a government that has committed crimes against humanity may be complicit by association. The respondent was assigned to the Permanent Mission of the DRC to the United Nations as second counsellor of embassy. The respondent submitted that the events leading up to his claim for refugee status began during the election campaign of the DRC. The DRC’s permanent representative to the United Nations was connected with President Joseph Kabila while the respondent supported a change in government.

According to the respondent, following President Kabila’s election, an atmosphere of hostility set in against him in the Permanent Mission. Shortly thereafter, the respondent resigned from his position since he refused to serve President Kabila’s government. He fled with his family to Canada where he claimed refugee protection for himself and his family. The main issue was whether, for the purposes of exclusion pursuant to

Article lF(

a) of the Convention, complicity by association in crimes against humanity can be established by the fact that the refugee claimant was a senior public servant in a government that committed such crimes, was aware of these crimes and remained in his position without denouncing them. Held , the appeal should be allowed.

The question certified by the Federal Court was problematic since its final lines (“when there is no proof of personal participation, whether direct or indirect, of the refugee claimant in these crimes”) assumed that the respondent, by remaining in his position and continuing to defend the regime’s interests despite his awareness of the crimes being committed by that regime, could not make himself a direct or indirect participant in those crimes. Furthermore, the certified question should have evoked a possibility of complicity rather than a certainty.

Therefore, the question was reformulated to reflect these changes. The Federal Court was of the view that one cannot be an accomplice without having personally participated in the crimes alleged, personally conspired to commit them or personally facilitated their commission. The test for complicity established and applied by the Federal Court was inconsistent with the Federal Court of Appeal’s case law. It was also useful to recall that there is only one form of complicity. Complicity contemplates a contribution to the commission of a crime.

The Federal Court was bound in principle to follow the Federal Court of Appeal’s case law on the scope of the concept of complicity regarding crimes against humanity. In light of the Federal Court of Appeal’s decisions regarding complicity as it relates to

Article 1F(

a) of the Convention, the Federal Court applied too narrow a test in requiring personal participation by the individual in the crimes alleged, whether by carrying them out personally or facilitating their commission in the manner described. The “personal and knowing participation” test adopted by the Federal Court of Appeal is broader than that. Moreover, the expression “complicity by association” is fundamentally misleading since it implies that an individual who associates with the perpetrators of international crimes becomes an accomplice to their crimes based on this association alone.

Liability is generated not by the association but rather by personal and knowing participation in these crimes. The time has come to drop the term “complicity by association” and henceforth refer to complicity alone. While the Federal Court correctly stated that

Article lF(

a) of the Convention must be interpreted in light of international instruments such as the Rome Statute of the International Criminal Court , criminal responsibility described therein is not ascribed only in the case of “personal participation in the crime alleged or personal control over the events leading to the crime alleged”. The language of Article 25(3) of the Rome Statute and in particular the expressions “otherwise assists” and “[i]n any other way” in paragraphs (

c) and (

d) respectively, clearly indicates that criminal responsibility for international crimes falling thereunder is not limited to personalparticipation in the crime or personal control over the events. This provision is quite broad on its face and goes beyond the test adoptedby the Federal Court. The “personal and knowing participation” test established by the Federal Court of Appeal in Ramirez v. Canada(Minister of Employment and Immigration) and applied thereby ever since, is in harmony with the Rome Statute. The Federal Court’s reasoning that the distinction

section 35 of the Immigration and Refugee Protection Act makes regarding theinadmissibility of individuals and of those occupying senior positions must also be made for the purposes of applying

Article lF(

a) of theConvention did not take into account the fact that a person falling under

Article lF(

a) of the Convention is automatically inadmissibleunder paragraph 35(1)(

a) of the Act. It was not open to the Federal Court to find that complicity by association must be understood as being a presumption and that it wouldbe unreasonable to apply that presumption on the basis of the respondent’s membership in the DRC government. While it is true thatmembership in an organization pursuing a limited, brutal purpose establishes a presumption of participation in the crimes of thatorganization, the opposite is true if the organization in question is not pursuing such a purpose, as the Board concluded with respect tothe DRC.

In this case, no presumption arose from the respondent’s membership in the DRC government and the onus was on theappellant to establish his participation in his government’s crimes. Therefore, the certified question, as reformulated, was answered in theaffirmative. A senior official may, by remaining in his or her position without protest and continuing to defend the interests of his or hergovernment while being aware of the crimes committed by this government, demonstrate “personal and knowing participation” in thesecrimes and be complicit with the government in their commission.

The Board’s reasons regarding the application of the test in this case were troubling. There is a fundamental difference between“personal and knowing awareness” of the crimes committed by the DRC and “personal and knowing participation” in these crimes. TheBoard erred in stating that Ramirez establishes a “personal and knowing awareness test” since this expression appears nowhere in thejudgment and seems to confuse “awareness” with “participation”. Also, by indicating that “personal and knowing awareness” is “theelement required to establish complicity” the Board displayed the same confusion.

While personal knowledge of the crimes is one of theelements required for “personal and knowing participation”, only participation, so described, may support a finding of complicity. TheBoard was required to apply the correct test and determine whether the respondent, by remaining in his position while he had knowledgeof the crimes committed by his government, personally and knowingly participated in the crimes of his government. The knowledge ofthese crimes was not determinative on its own.

Only the respondent’s personal and knowing participation in these crimes could support afinding of complicity for the purposes of

Article lF(a). It was not clear, on reading the Board’s decision, whether it applied the correcttest. STATUTES AND REGULATIONS CITED Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, ss. 4–7. Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 35, 98. TREATIES AND OTHER INSTRUMENTS CITED Rome Statute of the International Criminal Court, 17 July 1998, [2002] Can. T.S. No. 13, Arts. 25, 28, 30. United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1F(a). CASES CITED applied: Ramirez v.

Canada (Minister of Employment and Immigration), (FCA), [1992] 2 F.C. 306, (1992), 89 D.L.R. (4th)173, 135 N.R. 390 (C.A.); Moreno v. Canada (Minister of Employment and Immigration), (FCA), [1994] 1 F.C. 298,(1993), 107 D.L.R. (4th) 424, 21 Imm. L.R. (2d) 221 (C.A.); Bazargan v. Canada (Minister of Citizenship and Immigration) (1996), 205N.R. 282 (F.C.A.); R (on the application of JS) (Sri Lanka) v. Secretary of State for the Home Department, [2010] UKSC 15; Sivakumarv. Canada (Minister of Employment and Immigration), (FCA), [1994] 1 F.C. 433, (1993), 163 N.R. 197 (C.A.); Zazaiv.

Canada (Minister of Citizenship and Immigration), 2005 FCA 303, 259 D.L.R. (4th) 281, 50 Imm. L.R. (3d) 107, 339 N.R. 201. considered: Sungu v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1207, [2003] 3 F.C. 192, 230 F.T.R. 67, 26 Imm. L.R. (3d) 242;Bouasla v. Canada (Minister of Citizenship and Immigration), 2008 FC 930; Harb v. Canada (Minister of Citizenship and Immigration),2003 FCA 39, 238 F.T.R. 194, 27 Imm. L.R. (3d) 1, 302 N.R. 178. referred to: Mugesera v. Canada (Minister of Citizenship and Immigration), 2003 FCA 325, [2004] 1 F.C.R. 3, 232 D.L.R. (4th) 75, 31 Imm.

L.R.(3d) 159; Sivakumar v. Canada (Minister of Employment and Immigration), (FCA), [1996] 2 F.C. 872, 33 Imm. L.R.(2d) 113, 198 N.R. 219 (C.A.); Gonzalez v. Canada (Minister of Employment and Immigration), (FCA), [1994] 3 F.C.646, (1994), 115 D.L.R. (4th) 403, 24 Imm. L.R. (2d) 229 (C.A.); Sumaida v. Canada (Minister of Citizenship and Immigration), (FCA), [2000] 3 F.C. 66, (2000), 183 D.L.R. (4th) 713, 3 Imm. L.R. (3d) 169 (C.A.); Aden v. Canada (Minister ofEmployment and Immigration), (FCA), [1994] 1 F.C. 625, (1993), 23 Imm. L.R. (2d) 50 (T.D.); Attorney General v.Tamil X, [2010] NZSC 107; Dr. Q v.

College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, 223D.L.R. (4th) 599, [2003] 5 W.W.R. 1; Canada (Attorney General) v. Davis, 2010 FCA 134, 403 N.R. 355; Telfer v. Canada (RevenueAgency), 2009 FCA 23, [2009] 4 C.T.C. 123, 2009 DTC 5046; Zeng v. Canada (Minister of Citizenship and Immigration), 2010 FCA118, 402 N.R. 154; Zrig v. Canada (Minister of Citizenship and Immigration), 2003 FCA 178, [2003] 3 F.C. 761, 229 D.L.R. (4th) 235,32 Imm. L.R. (3d) 1.

AUTHORS CITED United Nations. High Commissioner for Refugees. Background Note on the Application of the Exclusion Clauses:

Article 1F of the 1951Convention relating to the Status of Refugees, HCR/GIP/03/05, 4 September 2003, online:<http://www.unhcr.org/refworld/docid/3f5857d24.html>. APPEAL from a Federal Court decision (2010 FC 662, [2011] 3 F.C.R. 377) allowing an application for judicial review of theImmigration and Refugee Board’s finding (X (Re), ) that

Article 1F(

a) of the United Nations Convention Relating tothe Status of Refugees applied to the respondent. Appeal allowed. APPEARANCES Daniel Latulippe for appellant. Jared Will for respondent. SOLICITORS OF RECORD Deputy Attorney General of Canada for appellant. Jared Will, Montréal, for respondent.

The following is the English version of the reasons for judgment rendered by [1] Noël J.A.: The Minister of Citizenship and Immigration (the Minister) is appealing a decision by Mainville J. [2010 FC 662, [2011] 3F.C.R. 377], then of the Federal Court (the applications Judge), in which he allowed an application for judicial review filed by RachidiEkanza Ezokola (the respondent). The applications Judge set aside the finding of the Immigration and Refugee Board, RefugeeProtection Division [X (Re), ] (the panel) that

Article 1F(

a) of the United Nations Convention Relating to the Statusof Refugees [July 28, 1951, [1969] Can. T.S. No. 6] (the Convention) applied to the respondent and that he was therefore not covered bythe refugee protection provisions.

He also certified a question of general importance, thereby making this appeal possible. [2] The applications Judge intervened on the ground that the panel could not have found serious reasons for considering that therespondent had committed crimes against humanity as a result of his diplomatic duties with the Permanent Mission of the DemocraticRepublic of Congo (DRC) to the United Nations.

The applications Judge reached this conclusion on the basis of the test that he adoptedfor complicity by association, namely, that the individual must have personally participated in the crimes alleged, personally conspired tocommit them or personally facilitated the commission of those crimes.

Applying this test, he found that the facts relied on by the panelcould not have allowed it to ascribe responsibility to the respondent for the crimes alleged (reasons of the applications Judge, paragraph104), and that the matter should be heard by a different panel in accordance with the test set out in his reasons. [3] For the following reasons, I am of the view that the appeal should be allowed, as the applications Judge applied a test not found in thelaw of complicity. Like him however, I have come to the conclusion that the matter should be re-examined by another panel, but fordifferent reasons.

RELEVANT FACTS [4] In January 1999, the respondent was hired as a financial attaché at the Ministry of Finance and assigned to the Ministry of Labour,Employment and Social Welfare. Between July 1999 and November 2000, the respondent successively occupied the positions offinancial attaché and financial adviser at the Ministry of Human Rights.

The respondent was then transferred to the Ministry of ForeignAffairs and International Cooperation as a financial adviser to the Minister’s office. [5] In June 2003, following the elimination of the Minister’s office where he worked, the respondent joined the administration as officemanager in the Ministry of Foreign Affairs and International Cooperation. However, it seems that the respondent did not work much atthe time because he was sick (reasons of the panel, paragraph 25). [6] In July 2004, the respondent was assigned to the Permanent Mission of the DRC to the United Nations as second counsellor ofembassy.

The respondent’s duties consisted, among other things, of representing the DRC at the Second Committee (Economic andFinancial Committee) and the Fifth Committee (Administrative and Budgetary Committee) of the United Nations. The respondent alsorepresented the DRC at the United Nations Economic and Social Council, as well as acting as a focal point for least developed countries(LDCs). In that capacity, the respondent represented the DRC at the LDC Expert Meeting in Ethiopia and the LDC MinisterialConference in Benin.

The respondent acted as a liaison between the Permanent Mission of the DRC and various United Nationsdevelopment agencies (reasons of the panel, paragraphs 26 and 27). [7] While on assignment to the United Nations, the respondent led the Permanent Mission of the DRC as acting chargé d’affaires fromFebruary 11 to 19, 2007, and from June 16 to 30, 2007.

During one of these periods, he spoke before the Security Council regardingnatural resources and conflicts in the DRC (reasons of the panel, paragraph 5). [8] The respondent submits that the events leading up to his claim for refugee status began during the campaign for the election of thePresident of the DRC. The DRC’s permanent representative to the United Nations was connected with President Joseph Kabila, who wasa candidate, while the respondent supported a change in government. The opposition candidate was Jean-Pierre Bemba of theMouvement de libération du Congo.

According to the respondent, the transfer order assigning him to the Permanent Mission of the DRCto the United Nations had been signed by the Minister of Foreign Affairs, a position held at the time within the Congolese transitionalgovernment by a member of the Mouvement de libération du Congo (reasons of the applications Judge, paragraphs 11 and 12). [9] The respondent submits that following President Kabila’s election, an atmosphere of hostility set in against him in the Permanent

Mission. His membership in the Bangala ethnic group made him suspect in the eyes of supporters of President Kabila, given theconnection that ethnic group had with Mr. Bemba (reasons of the applications Judge, paragraph 14). In September 2007, the respondentwas questioned by two DRC intelligence agents about Mr. Bemba’s presence in New York. According to the respondent, the intelligenceagents threatened and followed him (reasons of the applications Judge, paragraph 15).

On January 4, 2008, the respondent and theambassador had a [translation] “heated discussion” about the organization of the conference on peace, security and development in theprovinces of North-Kivu and South-Kivu (reasons of the panel, paragraph 13). [10] On January 11, 2008, the respondent signed a letter of resignation, which he mailed a few days later. The respondent attributes hisresignation to his refusal to serve the corrupt, anti-democratic and violent government of President Kabila and alleges that it would beinterpreted as

an act of treason by the DRC government (reasons of the applications Judge, paragraph 17). Following his resignation, hefled with his family to Canada. They arrived in Canada on January 17, 2008. The respondent claimed refugee protection for himself, hiswife and their eight children. LEGISLATION [11]

Section 98 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), states that a person referred to in

Article 1F(a)of the Convention is not considered a refugee or a person in need of protection and, therefore, cannot benefit from the protection offeredby the Convention and the IRPA: Exclusion — RefugeeConvention 98. A person referred to in

section E or F of

Article 1 of the Refugee Convention is not a Convention refugeeor a person in need of protection. [12]

Article 1F(

a) of the Convention, set out in the

Schedule to the IRPA, reads as follows: F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (

a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawnup to make provision in respect of such crimes; DECISION OF THE PANEL [13] The panel rejected the respondent’s claim for refugee protection because it believed that there were serious reasons for consideringthat he had been complicit in crimes against humanity, and he was therefore a person referred to in

Article 1F(

a) of the Convention andnot entitled to the protection offered by the Convention to refugees and persons in need of protection. [14] The panel divided its analysis into two parts. First, it considered whether the government of the DRC had committed crimes againsthumanity. The panel concluded that the acts committed by the DRC government constituted crimes against humanity, as defined by theRome Statute of the International Criminal Court, 17 July 1998, [2002] Can. T.S. No. 13 (Rome Statute) and by the decisions inMugesera v.

Canada (Minister of Citizenship and Immigration), 2003 FCA 325, [2004] 1 F.C.R. 3; Sivakumar v. Canada (Minister ofEmployment and Immigration), (FCA), [1996] 2 F.C. 872 (C.A.) (Sivakumar II); Gonzalez v. Canada (Minister ofEmployment and Immigration), (FCA), [1994] 3 F.C. 646 (C.A.); and Sumaida v. Canada (Minister of Citizenshipand Immigration), (FCA), [2000] 3 F.C. 66 (C.A.) (Sumaida).

The panel also determined that the government of theDRC was not an organization pursuing a limited, brutal purpose (reasons of the panel, at paragraphs 31 and 43). [15] In the second part of its analysis, the panel considered whether the applicant was complicit in the acts committed by the governmentof the DRC. Relying on the decisions of this Court in Ramirez v. Canada (Minister of Employment and Immigration), (FCA), [1992] 2 F.C. 306 (C.A.) (Ramirez); Moreno v.

Canada (Minister of Employment and Immigration), (FCA),[1994] 1 F.C. 298 (C.A.) (Moreno); and Sivakumar II and on certain decisions of the Federal Court, the panel noted that for the purposesof

Article 1F(

a) of the Convention, complicity requires knowledge that acts are being committed and the failure to take steps to preventthem or to disassociate oneself from the group. [16] Despite the respondent’s claims to the contrary, the panel concluded that he was aware of the violent acts committed by hisgovernment, noting in particular that he held “a very high-level position” and that he represented his country abroad (reasons of thepanel, paragraphs 50 and 51). The panel also stated that his “meteoric career and his strategic position at the [Permanent Mission of theDRC] in [New York], as well as the fact that his resignation was considered

an act of treason, are evidence of a shared vision inaccomplishing his government’s objectives” and found that “he was aware of the events and had a shared common purpose, which canbe deduced from his voluntary association with the Congolese authorities and is sufficient to find him complicit by association”[footnotes omitted] (reasons of the panel, paragraphs 67 and 69). [17] The panel recognized that the respondent did not personally commit violent acts against civilians and did not point to any instancesin which the respondent, in the exercise of his duties, made statements for the purpose of camouflaging or minimizing his government’scrimes.

It found, however, that given the importance of the respondent’s diplomatic duties, it was sufficient that he knowingly enabledhis government to perpetuate itself while doing nothing to disassociate himself (reasons of the panel, paragraph 75). DECISION OF THE APPLICATIONS JUDGE [18] The applications Judge begins by accepting the panel’s finding that, during the period that he held his position, the respondent hadpersonal knowledge of the crimes against humanity committed by the Congolese government (reasons of the applications Judge,paragraph 50).

He notes, however, that according to the panel’s analysis, the respondent did not participate physically or directly in theseacts. [19] The applications Judge opens his analysis by distinguishing two types of complicity (paragraph 60): There are two components in the concept of complicity in crimes against humanity in Canadian jurisprudence: complicity in the

traditional sense of Canadian criminal law, and complicity by association. Here, only complicity by association is in issue. Is this truly aparticular mode of complicity, and what elements must be present to establish complicity by association? These are the questions thatmust be addressed. [20] He continues his analysis by reviewing this Court’s decisions on complicity by association. Citing Ramirez, he notes that there canbe no complicity “without personal and knowing participation” (reasons of the applications Judge, paragraph 62).

He also notes, relyingon Moreno, that mere membership in an organization involved in international offences is not a sufficient basis on which to invokeArticle 1F(

a) of the Convention (paragraph 64). The applications Judge also notes that in Bazargan v. Canada (Minister of Citizenshipand Immigration) (1996), 205 N.R. 282 (F.C.A.) (Bazargan), Décary J.A. stated that it is contributing to the activities of the group, ratherthan membership in the group, that establishes complicity by association (paragraph 66). [21] The applications Judge then expresses his view that the exclusion clause in

Article 1F(

a) does not apply because “there must be apersonal nexus between the refugee claimant and the crimes alleged, and no such nexus was established in respect of the [respondent]”(reasons of the applications Judge, paragraph 70).

In reaching this conclusion, the applications Judge relies on certain decisions of theFederal Court, comments by the United Nations High Commissioner for Refugees, the Rome Statute and foreign cases (paragraphs 71–82). [22] The applications Judge notes that the existence of a personal nexus between the refugee protection claimant and the crimes allegedas a necessary condition for exclusion is the approach adopted in cases issued by the Federal Court (Aden v. Canada (Minister ofEmployment and Immigration), (FCA), [1994] 1 F.C. 625 (T.D.) (Aden); Sungu v.

Canada (Minister of Citizenshipand Immigration), 2002 FCT 1207, [2003] 3 F.C. 192 (Sungu); and Bouasla v. Canada (Minister of Citizenship and Immigration), 2008FC 930 (Bouasla)). This is also the approach adopted by the Office of the United Nations High Commissioner for Refugees, accordingto its Background Note on the Application of the Exclusion Clauses:

Article 1F of the 1951 Convention relating to the Status of Refugees[HCR/GIP/03/05, 4 September 2003]. The decision of the Supreme Court of the United Kingdom in R (on the application of JS) (SriLanka) v.

Secretary of State for the Home Department, [2010] UKSC 15 (Sri Lanka), seems to adopt a similar stance. [23] Furthermore, the applications Judge’s reading of articles 25, 28 and 30 of the Rome Statute indicates that “criminal responsibility forcrimes against humanity requires personal participation in the crime alleged or personal control over the events leading to the crimealleged” (reasons of the applications Judge, paragraph 86).

He adds that “the concepts of individual criminal responsibility and effectivecontrol over other persons and the mental element described in the Rome Statute may and must be used to elucidate what the Canadiancase law refers to as complicity by association for the purposes of

Article 1F(a)” (paragraph 89). [24] The applications Judge concludes with the following statement (paragraph 90): ... complicity by association must be understood as being a presumption that is based on a set of facts from which it can be concludedthat there are serious reasons for considering that the refugee claimant personally participated in the crimes alleged, personally conspiredto commit them, or personally facilitated the commission of those crimes. [25] Applying this approach, the applications Judge expresses the principle that merely working in the public service of a state whosegovernment commits crimes against humanity is not sufficient; there must be a “personal nexus” between the refugee protection claimantand the crimes alleged (reasons of the applications Judge, paragraph 92).

According to the applications Judge, this conclusion issupported by

section 35 of the IRPA, which distinguishes between an individual who has committed a crime against humanity and asenior officer in the service of a government that has committed such crimes (paragraphs 97–100). He adds that there is “no evidence thattends to show direct or indirect personal participation by the [respondent] in the crimes alleged, and there is no evidence of incitement oractive support by the [respondent] for those crimes” (paragraphs 104–107). [26] The applications Judge therefore concludes that the panel applied the wrong test for complicity by association.

The formal judgmentgiving effect to this finding reads as follows: 1. The application for judicial review is allowed; 2. The decision of the panel is set aside as it relates to the conclusion that the [respondent] is excluded by operation of

Article 1F(a); 3.

The matter is referred back to the Immigration and Refugee Board to be heard by a different panel of the Refugee Protection Division,which will determine it de novo in accordance with the provisions of this judgment. [27] After informing the parties of his decision, the applications Judge invited them to propose a serious question of general importance.The Minister proposed the following question: [translation] Does a public servant or diplomat of a country that has committed crimes against humanity, who had knowledge of hiscountry’s crimes, who voluntarily associated with that country and who did not disassociate himself at the first opportunity, for no validreason, possess the required shared intention to be excluded, as an accomplice, from the application of the definition of “refugee” withinthe meaning of

Article 1F of the United Nations Convention relating to the Status of Refugees? [28] The applications Judge chose to reformulate the question: For the purposes of exclusion pursuant to paragraph 1Fa) of the United Nations Refugee Convention, is there complicity by associationin crimes against humanity from the fact that the refugee claimant was a public servant in a government that committed such crimes,along with the fact that the refugee claimant was aware of these crimes and did not denounce them, when there is no proof of personalparticipation, whether direct or indirect, of the refugee claimant in these crimes?

MINISTER’S POSITION [29] The Minister submits first that the certified question is incorrectly formulated, since it implies an absence of personal and knowing

participation by the respondent in the crimes committed by the DRC government. According to the Minister, the diplomatic duties exercised by the respondent while he had knowledge of the violent acts committed by his government constituted personal participation that made him an accomplice to the crimes alleged (Minister’s memorandum, paragraph 41). [ 30 ] Secondly, the Minister submits that the applications Judge erred in law in finding that a refugee protection claimant must have effective control over those who commit crimes against humanity in order to be excluded from the provisions of the Convention on the basis of complicity by association under

Article 1F(a).

The Minister argues that the test established by the applications Judge, namely, “personal participation in the crime alleged” and “personal control over the events leading to the crime alleged”, or that the refugee protection claimant “personally participated in the crimes alleged, personally conspired to commit them, or personally facilitated the commission of those crimes”, reflects an overly rigid approach to the mens rea required to establish complicity by association (reasons of the applications Judge, paragraph 70). [ 31 ] The Minister instead submits, in light of the jurisprudence of this Court, that complicity by association requires the existence of a shared common purpose and knowledge of the crimes committed by the organization of which the refugee protection claimant is a member.

The failure to take measures to prevent the organization’s crimes and the failure to disassociate from them at the first opportunity are key elements in establishing complicity by association (reasons of the applications Judge, paragraph 54). [ 32 ] The Minister also submits that the jurisprudence of this Court reflects the approach adopted by the Supreme Court of the United Kingdom in Sri Lanka , cited by the applications Judge, and by the Supreme Court of New Zealand in Attorney General v.

Tamil X , [2010] NZSC 107. [ 33 ] Thirdly, the Minister argues that the applications Judge erred in his appreciation of the panel’s factual findings on the importance of the duties exercised by the respondent within the DRC government. The Minister notes that although he had knowledge of the violent acts committed by his government, the respondent spoke before the Security Council, represented his country on two United Nations Committees and was given the role of chargé d’affaires in the ambassador’s absence.

The Minister argues that the applications Judge failed to consider, or, at the very least, minimized, the scope of the panel’s factual findings regarding the respondent’s duties, particularly the fact that he was representing his country while he had knowledge of the crimes against humanity committed by his government (reasons of the applications Judge, paragraph 80). The Minister submits that the respondent was not a mere public servant. RESPONDENT’S POSITION [ 34 ] The respondent submits that the applications Judge correctly interpreted and applied

Article 1F(

a) of the Convention. He argues that [ translation ] “a senior official of the state may be excluded from the definition of a refugee under

Article 1F(

a) of the [Convention] if he was an accomplice to the crimes committed by the state of which he is a member. However, one must look at all of the facts of a case to establish a connection between his actions and the commission of the crimes” (respondent’s memorandum, paragraph 1). [ 35 ] The respondent submits that the applications Judge’s

interpretation is consistent with the jurisprudence of the Supreme Court of Canada, this Court and the Federal Court. The respondent also submits that

Article 1F(

a) of the Convention must be interpreted in light of the Rome Statute, and that, accordingly, the applications Judge was correct in relying on it. The respondent submits that any cases decided prior to the adoption of the Rome Statute, or that do not take it into consideration, should be relied upon with caution. The respondent also submits that the applications Judge’s

interpretation is consistent with that of the courts of the United Kingdom, Australia, New Zealand and France. [ 36 ] Contrary to the argument submitted by the Minister, the respondent claims that the applications Judge did not minimize his role within the DRC government.

According to the respondent, the applications Judge simply concluded that the emphasis belonged on the nexus between the crimes committed and the individual in question rather than on the rank occupied by that person within the organization. [ 37 ] During his submissions, counsel for the respondent raised for the first time the argument that the appeal could not be allowed regardless.

In his view, the panel found that there had been complicity by association based on the respondent’s “personal and knowing awareness” of his government’s crimes, without asking itself whether the evidence established his “personal and knowing participation” in these crimes. ANALYSIS The standard of review [ 38 ] In the case of an appeal of a decision dealing with an application for judicial review, the Court must determine whether the applications judge correctly identified and applied the proper standard of review ( Dr. Q v.

College of Physicians and Surgeons of British Columbia , 2003 SCC 19 , [2003] 1 S.C.R. 226, paragraph 43 ; Canada (Attorney General) v. Davis , 2010 FCA 134 , 403 N.R. 355, paragraph 3 ; Telfer v. Canada (Revenue Agency) , 2009 FCA 23 , [2009] 4 C.T.C. 123, paragraph 18 ). [ 39 ] The fundamental issue identified by the applications Judge is the scope of the concept of complicity by association for the purposes of applying

Article 1F(

a) of the Convention. As he indicates, this is a question of law subject to the standard of correctness. Once the test has been properly identified, the issue of whether the facts in this case trigger the application of

Article 1F(

a) is a question of mixed fact and law with respect to which the panel is entitled to deference ( Zeng v. Canada (Minister of Citizenship and Immigration) , 2010 FCA 118 , 402 N.R. 154, paragraph 11 ). The certified question [ 40 ] Before embarking on the analysis, I must comment on the question certified by the applications Judge, which I restate once again with emphasis on the last lines: For the purposes of exclusion pursuant to paragraph 1Fa) of the United Nations Refugee Convention, is there complicity by association

in crimes against humanity from the fact that the refugee claimant was a public servant in a government that committed such crimes,along with the fact that the refugee claimant was aware of these crimes and did not denounce them, when there is no proof of personalparticipation, whether direct or indirect, of the refugee claimant in these crimes? [Emphasis added.] [41] Those final lines are problematic, since they assume that the respondent, by remaining in his position and continuing to defend theregime’s interests despite his awareness of the crimes being committed by that regime, could not make himself a direct or indirectparticipant in those crimes.

That, however, is the very issue which is at the heart of this dispute. [42] The question must also take into account the importance that the panel attributes to the position held by the respondent within thegovernment (reasons of the panel, paragraph 50), which is not called into question by the applications Judge (reasons of the applicationsJudge, paragraph 69) as well as the fact that the respondent remained in his position notwithstanding his knowledge of the crimescommitted by his government. [43] Finally, the question should evoke a possibility rather than a certainty.

As Linden J.A. explained in Sivakumar v. Canada (Ministerof Employment and Immigration), (FCA), [1994] 1 F.C. 433 (C.A.) (Sivakumar I) (page 442): ... association with a person or organization responsible for international crimes may constitute complicity if there is personal andknowing participation or toleration of the crimes. Mere membership in a group responsible for international crimes ... is not enough....[Emphasis added.] (See also Harb v.

Canada (Minister of Citizenship and Immigration), 2003 FCA 39, 238 F.T.R. 194 (Harb), paragraph 19.) The final answer depends on the specific facts of each case (Ramirez, page 320; Sivakumar I, page 438; Bazargan, paragraph 12). [44] In light of the above, I would reformulate the certified question as follows: For the purposes of exclusion pursuant to paragraph 1F(

a) of the United Nations Refugee Convention, can complicity by association incrimes against humanity be established by the fact that the refugee claimant was a senior public servant in a government that committedsuch crimes, along with the fact that the refugee claimant was aware of these crimes and remained in his position without denouncingthem? [45] According to the reasons of the applications Judge, the answer to this question would seemingly be no, since in his view one cannotbe an accomplice without having personally participated in the crimes alleged, personally conspired to commit them or personallyfacilitated their commission (reasons of the applications Judge, paragraph 90).

With this test in mind, he concludes that applying a“presumption of complicity by association” in the absence of evidence that the respondent exercised some kind of control over theDRC’s security forces or over any component of those forces or over any of their members would be unreasonable (paragraphs 106 and107). [46] In my opinion, the test for complicity established and applied by the applications Judge is inconsistent with the jurisprudence of thisCourt, and must therefore be set aside. The jurisprudence of the Court of Appeal [47]

Article 1F(

a) of the Convention states that a person is excluded from the application of the refugee protection provisions if there are“serious reasons for considering” that he has committed, among other things, a crime against humanity. In Ramirez, MacGuigan J.A.specifies that the expression “serious reasons for considering” represents a lower standard of proof than the balance of probabilities(pages 311 and 312; see also Moreno, page 308; Sumaida, paragraph 25). [48] In Sivakumar I, Linden J.A. comments on the reasons for the lower standard of proof established by

Article 1F(

a) of the Convention(page 445): The standard of proof in

section F(

a) of

Article 1 of the Convention is whether the Crown has demonstrated that there are seriousreasons for considering that the claimant has committed crimes against humanity. In Ramirez, supra, MacGuigan J.A. stated that seriousreasons for considering constitutes an intelligible standard on its own which need not be assimilated to the reasonable grounds standardin

section 19 [as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 3] of the Immigration Act. This conclusion was echoed by Mr. JusticeRobertson in Moreno, supra, although Robertson J.A. indicated that, for practical purposes, there was no difference between thestandards. I agree that there is little, if any, difference of meaning between the two formulations of the standard. Both of these standardsrequire something more than suspicion or conjecture, but something less than proof on a balance of probabilities.

This shows that theinternational community was willing to lower the usual standard of proof in order to ensure that war criminals were denied safe havens.When the tables are turned on persecutors, who suddenly become the persecuted, they cannot claim refugee status. Internationalcriminals, on all sides of the conflicts, are rightly unable to claim refugee status. [Emphasis added.] [49] The issue, therefore, is whether the individual in question may claim refugee status in Canada, not whether he or she is criminallyresponsible.

For this purpose, all that is required are “serious reasons for considering” that the individual committed a crime within themeaning of

Article 1F(a). [50] It is also useful to recall, given the reasons of the applications Judge (see in particular paragraphs 60 and 90, reproduced atparagraphs 19 and 24 of these reasons), that there is only one form of complicity. As Létourneau J.A. explains in Zazai v. Canada(Minister of Citizenship and Immigration), 2005 FCA 303, 259 D.L.R. (4th) 281, at paragraph 13: At common law and under Canadian criminal law, [complicity] was, and still is, a mode of commission of a crime. It refers to the act oromission of a person that helps, or is done for the purpose of helping, the furtherance of a crime.

An accomplice is then charged with,and tried for, the crime that was actually committed and that he assisted or furthered. In other words, whether one looks at it from theperspective of our domestic law or of international law, complicity contemplates a contribution to the commission of a crime. [Emphasis

added.] [ 51 ] With this in mind, I will turn to a more in-depth review of this Court’s jurisprudence on the scope of the concept of complicity with respect to crimes against humanity, which the applications Judge was, in principle, bound to follow. [ 52 ] In Ramirez , MacGuigan J.A. states that an individual cannot have committed crimes under

Article 1F(

a) of the Convention— including crimes against humanity—“without personal and knowing participation” (pages 316 and 317). He adds that mere membership in an organization which from time to time commits international offences is not normally sufficient for exclusion from refugee status. This is not the case, however, where an organization is principally directed to a limited, brutal purpose (page 317). MacGuigan J.A. adds that members of an organization may, depending on the facts, be considered to be personal and knowing participants.

In such cases, “complicity rests … on the existence of a shared common purpose and the knowledge that all of the parties in question may have of it” (pages 317 and 318). He also states that it is undesirable to go beyond the criterion of “personal and knowing participation” in persecutorial acts in establishing a general principle; the rest should be decided in relation to the particular facts of each case (page 320). [ 53 ] In Moreno , Robertson J.A. reiterates the idea that mere membership in an organization involved in international offences is not a sufficient basis on which to invoke

Article 1F(

a) of the Convention, unless the organization is principally directed to a limited, brutal purpose (page 321). Citing Ramirez , Robertson J.A. states that “acts or omissions amounting to passive acquiescence are not a sufficient basis for invoking the exclusion clause”; what must be established is personal participation, which depends on the existence of a shared common purpose (page 323).

He also states that “the closer a person is involved in the decision-making process and the less he or she does to thwart the commission of inhumane acts, the more likely criminal responsibility will attach” (page 324). [ 54 ] In Sivakumar I, Linden J.A. not only reiterates the “personal and knowing participation” test established in Ramirez , but adds the following with respect to complicity by association (page 442): ... association with a person or organization responsible for international crimes may constitute complicity if there is personal and knowing participation or toleration of the crimes . [Emphasis added.] In so saying, Linden J.A. recognizes that complicity for the purposes of

Article 1F(

a) of the Convention is a broad concept that is not limited to physical participation in crimes or the exercise of effective control over their commission. [ 55 ] In Bazargan , Décary J.A. states that “personal and knowing participation” may be direct or indirect and does not require formal membership in the organization involved in the commission of international offences.

He adds that it is not the fact of working for an organization that makes an individual an accomplice to the acts committed by that organization, but rather the fact of knowingly contributing to these activities in any manner whatsoever, whether from within the organization or from outside (paragraph 11). Décary J.A. again notes that everything depends on the particular facts of each case (paragraph 12). [ 56 ] The subsequent decisions of this Court in Sumaida and Harb did not modify the principles previously set out regarding

Article 1F(

a) of the Convention. In Harb , Décary J.A. states (paragraph 11): It is not the nature of the crimes with which the appellant was charged that led to his exclusion, but that of the crimes alleged against the organizations with which he was supposed to be associated.

Once those organizations have committed crimes against humanity and the appellant meets the requirements for membership in the group, knowledge, participation or complicity imposed by precedent (see inter alia , [ Ramirez ]; [ Moreno ]; [ Sivakumar I]; [ Sumaida ] and [ Bazargan ]), the exclusion applies even if the specific acts committed by the appellant himself are not crimes against humanity as such. [ 57 ] In light of this Court’s decisions regarding complicity as it relates to

Article 1F(

a) of the Convention, I am of the view that the applications Judge applied too narrow a test in requiring personal participation by the individual in the crimes alleged, whether by carrying them out personally or facilitating their commission in the manner described. The “personal and knowing participation” test adopted by this Court is broader than that. [ 58 ] The same decisions also compel us to realize that the expression “complicity by association” is fundamentally misleading.

It implies that an individual who associates with the perpetrators of international crimes becomes an accomplice to their crimes based on this association alone. However, liability is generated not by the association but rather by personal and knowing participation in these crimes. In my view, the time has come to drop the term “complicity by association” and henceforth to refer to complicity, period. The jurisprudence of the Federal Court [ 59 ] In my opinion, the Federal Court cases relied on by the applications Judge do not support his approach either.

On the one hand, Gibson J.’s decision in Aden , which he cites with approval, does not take into account this Court’s decisions in Moreno or Sivakumar I. As Gibson J. explains at the end of his reasons, they were released too late for counsel to refer to them so that he was unfortunately unable to consider their impact ( Aden , pages 634 and 635). [ 60 ] On the other hand, Blanchard J.’s decision in Sungu and that of Lemieux J. in Bouasla both state that the evidence did not support a sufficient shared common purpose to give rise to an exclusion under

Article 1F(

a) of the Convention. Neither of these judges set out a rule whereby the fact of remaining in one’s position while being fully cognizant of the crimes being committed by the organization cannot be a sufficient basis for an exclusion. The Rome Statute [ 61 ] The applications Judge seems to have drawn inspiration from the Rome Statute, which was ratified by Canada in 2000 and which came into force in 2002, to justify an approach that departs from the decisions rendered by this Court prior to the coming into force of that Statute.

According to him, criminal responsibility for crimes against humanity under the Rome Statute “requires personal participation in the crime alleged or personal control over the events leading to the crime alleged” (reasons of the applications Judge, paragraph 86). He adds that this “requirement must also be used to clarify the concept of participation through association”.

[ 62 ] In this respect, the applications Judge cites Articles 25(3) and 30 of the Rome Statute:

Article 25 … 3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (

a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; (

b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; (

c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission , including providing the means for its commission; (

d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (

i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime; …

Article 30 Mental element 1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. 2. For the purposes of this article, a person has intent where: (

a) In relation to conduct, that person means to engage in the conduct; (

b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. 3. For the purposes of this article, “knowledge” means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. “Know” and “knowingly” shall be construed accordingly. [Emphasis added.] [ 63 ] The applications Judge is correct in stating that

Article 1F(

a) of the Convention must be interpreted in light of international instruments such as the Rome Statute ( Zrig v. Canada (Minister of Citizenship and Immigration) , 2003 FCA 178 , [2003] 3 F.C. 761, paragraph 151 ). However, I do not believe that the criminal responsibility described in the Rome Statute is ascribed only in the case of “personal participation in the crime alleged or personal control over the events leading to the crime alleged” (reasons of the applications Judge, paragraph 86). [ 64 ] The language of Article 25(3), and in particular the expressions “otherwise assists” and “[i]n any other way” in paragraphs (

c) and (

d) respectively, clearly indicates that criminal responsibility for international crimes falling under the Rome Statute is not limited to personal participation in the crime or personal control over the events. This provision is quite broad on its face and goes beyond the test adopted by the applications Judge. [ 65 ] The applications Judge also cites

Article 28 of the Rome Statute, which deals with the responsibility of military commanders for the acts of their soldiers. He notes that, as with employers with respect to the wrongful acts of their employees in civil law or at common law, “effective control over other persons” must be exercised for any kind of responsibility to be ascribed (reasons of the applications Judge, paragraph 89). [ 66 ]

Article 28 of the Rome Statute reads as follows:

Article 28 Responsibility of commanders and other superiors In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court: (

a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where: (

i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and

(ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution; (

b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where: (

i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes; (ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and (iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. [ 67 ] One can easily understand why military commanders cannot be held responsible in that capacity for the conduct of individuals who are not under their control, or employers with respect to employees who are outside of their control.

However, this issue does not arise under article 25(3) of the Rome Statute, which covers any individual who orders, solicits, induces, facilitates or in any other way contributes to the commission of a crime against humanity, the sole requirement being that the individual in question has acted knowingly. [ 68 ] In my opinion, the “personal and knowing participation” test established in Ramirez is in harmony with the Rome Statute.

As Lord Brown explains in Sri Lanka , the language of the Rome Statute is particularly broad, as compared with domestic legislative provisions establishing criminal responsibility for crimes that are, in fact, committed by others (paragraph 34). According to Lord Brown, only personal knowledge of the crimes and an intention to contribute to their commission is required (paragraph 37). In my opinion, this is entirely consistent with the “personal and knowing participation” test adopted by MacGuigan J.A. in Ramirez and applied by this Court ever since.

Section 35 of the IRPA [ 69 ] The applications Judge also refers to the regime set out in

section 35 of the IRPA , which provides that individuals who have committed offences under sections 4 to 7 of the Crimes Against Humanity and War Crimes Act , S.C. 2000, c. 24 (paragraph 35(1)( a )) are inadmissible. He notes that the same inadmissibility is imposed separately on those occupying senior positions—defined by regulation— in a government that has committed such crimes (paragraph 35(1)( b )). According to the applications Judge, this implies that, for the purposes of

section 35 , remaining in a position despite the crimes committed by one’s government is not alone sufficient to make a senior official an accomplice to these crimes. He adds that the same distinction must be made for the purposes of applying

Article 1F(

a) of the Convention (reasons of the applications Judge, paragraphs 99 and 100). [ 70 ] With respect, this reasoning does not take into account the fact that a person falling under

Article 1F(

a) of the Convention is automatically inadmissible under paragraph 35(1)( a ). Paragraph 35(1)(

b) merely extends the inadmissibility to senior officials in the service of the government that has committed the crimes, without it being necessary to prove their direct or indirect participation in them. Depending on the circumstances, nothing prevents a senior official, who remains in office despite the crimes committed by his or her government, from becoming an accomplice to these crimes and subject to paragraph 35(1)( a ).

Presumption of participation [ 71 ] Finally, it was not open to the applications Judge to find that complicity by association must be understood as being a presumption and that it would be unreasonable to apply that presumption on the basis of the respondent’s membership in the DRC government (reasons of the applications Judge, paragraphs 90 and 105 to 107).

While it is true that membership in an organization pursuing a limited, brutal purpose establishes a presumption of participation in the crimes of that organization, the opposite is true if the organization in question is not pursuing such a purpose, as the panel concluded with respect to the DRC ( Ramirez , page 317; Moreno , page 321; Sivakumar I, pages 440 and 442 and Sumaida , paragraph 24 ).

In this case, no presumption arises from the respondent’s membership in the DRC government, and the onus was on the Minister to establish, on the applicable standard of proof, his participation in his government’s crimes. [ 72 ] I therefore find that the certified question as reformulated must be answered in the affirmative.

In my view, a senior official may, 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 this government demonstrate “personal and knowing participation” in these crimes and be complicit with the government in their commission.

It is useful to remember, however, that the final outcome will always depend on the facts particular to each case ( Ramirez , page 220; Bazargan , paragraph 12). [ 73 ] The next issue would be whether, given the particular facts of this case, it was reasonable for the Panel to find that the respondent participated personally and knowingly in the crimes of his government. New error of law [ 74 ] Before addressing this question, counsel for the respondent raised for the first time the argument that, despite the above, the panel applied the wrong test in deciding the issue.

According to counsel, the panel did not apply the “personal and knowing participation” test, but rather the “personal and knowing awareness” test. In this respect, counsel for the respondent cited the following excerpts of paragraphs 71 and 75 of the panel’s reasons: Therefore, it is reasonable to conclude that the [respondent] had a “personal and knowing awareness” in the Congolese government’s actions, which is the “element required to establish complicity”.

… Upon examination of the evidence on file, the [respondent] had “personal and knowing awareness” [ Ramirez ] of the atrocities committed by the Congolese government and army through the duties he carried out. [ 75 ] These passages are troubling, as there is a fundamental difference between “personal and knowing awareness” of the crimes committed by the DRC, an awareness that is no longer challenged, and “personal and knowing participation” in these crimes as developed by this Court’s jurisprudence.

The panel has erred in stating that Ramirez establishes a “personal and knowing awareness” test, as this expression appears nowhere in the judgment and seems to confuse “awareness” with “participation”. Also, by indicating that “personal and knowing awareness” is “ the element required to establish complicity” [emphasis added], the panel displays the same confusion.

While personal knowledge of the crimes is one of the elements required for “personal and knowing participation”, only participation, so described, if established according to the applicable burden of proof, may support a finding of complicity. [ 76 ] Counsel for the Minister, who was notified of the respondent’s argument during the week preceding the hearing, was unable to persuade me that this error is of no consequence.

It is true that the panel, at paragraph 75 of its reasons, found that there were serious reasons for considering that the respondent had “personally and wittingly participated” in the crimes committed by his government.

Although this comes sufficiently close to the correct test, I cannot, in light of the language used earlier, rule out the respondent’s argument that the panel was confusing awareness and participation when it made this finding. [ 77 ] The panel was required to apply the correct test and determine whether the respondent, by remaining in his position while he had knowledge of the crimes committed by his government in the circumstances described above, personally and knowingly participated in the crimes of his government. The knowledge of these crimes is not determinative on its own.

Only the respondent’s personal and knowing participation in these crimes can support a finding of complicity for the purposes of

Article 1F(a) ( Ramirez , pages 317 and 318; Moreno , page 323). My reading of the panel’s decision leaves me uncertain as to whether it applied the correct test. [ 78 ] Because of the nature of its duties, the panel is in the best position to judge whether there is sufficient evidence to support a finding of complicity by the respondent, and deference is owed to it when it carries out this duty according to the correct test.

In the circumstances, the matter should be remitted to a differently constituted panel for a new hearing to determine whether, according to the correct test, the respondent was complicit in his government’s crimes by virtue of his conduct. [ 79 ] For these reasons, I would answer the certified question as reformulated in the manner set out at paragraph 72 of these reasons, I would allow paragraphs 1 and 2 of the judgment rendered by the applications Judge to stand and replace paragraph 3 thereof by the following direction: 3.

The matter is remitted to the Immigration and Refugee Board to be heard by a different panel of the Refugee Protection Division, which will determine it de novo and determine whether the respondent was an accomplice to the crimes committed by the Democratic Republic of Congo in accordance with the personal and knowing participation test. Nadon J.A.: I agree. Pelletier J.A.: I agree.