Immigration and Refugees Law
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Can you be found inadmissible to Canada for crimes you did not personally commit? Yes, but only under specific legal tests. Canadian immigration law can exclude or bar people who were complicit in war crimes or crimes against humanity, or who served as prescribed senior officials of a government the Minister has designated. For complicity, the Supreme Court of Canada in Ezokola v Canada, 2013 SCC 40, requires a voluntary, significant and knowing contribution to the crime or criminal purpose—mere association is not enough. For senior officials, section 35(1)(b) of the Immigration and Refugee Protection Act (IRPA) applies based on the position held. Pax Law Corporation represents applicants facing these allegations.
| Issue | Test or Rule | Authority |
|---|---|---|
| Complicity (refugee exclusion) | Voluntary, significant and knowing contribution to a crime or criminal purpose | Ezokola v Canada (Citizenship and Immigration), 2013 SCC 40; Refugee Convention Art 1F(a); IRPA s 98 |
| Human or international rights violations | Inadmissibility for committing an offence referred to in the Crimes Against Humanity and War Crimes Act | IRPA s 35(1)(a) |
| Prescribed senior officials | Inadmissibility for being a prescribed senior official in the service of a designated government | IRPA s 35(1)(b); IRPR s 16 |
| Standard of proof | “Reasonable grounds to believe” | IRPA s 33 |
Before Ezokola, individuals could be excluded largely because of their membership in, or association with, an organization that committed crimes. The Supreme Court rejected that “guilt by association” approach. A person is complicit only if they made a voluntary, significant and knowing contribution to the organization’s crime or criminal purpose. The Supreme Court identified factors to guide this contextual assessment (not a rigid checklist), including:
Duress and the absence of a realistic opportunity to leave can be important, particularly for people who served involuntarily.
IRPA s 35(1)(b) works differently. It does not require proof of personal involvement in any crime. Instead, it applies where the person was a prescribed senior official in the service of a government that the Minister has designated as having engaged in terrorism, systematic or gross human rights violations, genocide, a war crime or a crime against humanity. IRPR s 16 defines a prescribed senior official as a person who, by virtue of their position, is or was able to exert significant influence on the exercise of government power or to benefit from their position. The listed positions include heads of state or government, members of the cabinet or governing council, senior advisers, senior public servants, senior members of the military and of the intelligence and internal security services, ambassadors and senior diplomats, and members of the judiciary. The analysis therefore focuses on the person’s position, rank and period of service, and on whether the government was designated at the relevant time.
Under IRPA s 42.1, the Minister may declare that certain specified inadmissibility provisions, including s 35(1)(b), do not apply to a person if satisfied that doing so is not contrary to the national interest. The considerations the Minister may take into account are limited by s 42.1(3), and relief is discretionary and assessed separately from the immigration application.
No. Ezokola requires a voluntary, significant and knowing contribution; mere membership or association is not enough for exclusion based on complicity.
No. Section 35(1)(b) is based on holding a prescribed position in a designated government.
Inadmissibility facts are assessed on the “reasonable grounds to believe” standard under IRPA s 33, which is lower than the civil balance of probabilities.
If you received a procedural fairness letter raising complicity or senior-official concerns, contact Pax Law Corporation.
The information presented is for informational and educational purposes only and may not be accurate. This information does not replace getting legal advice from a qualified, practicing lawyer. If you are facing a legal dilemma, you should make an appointment and consult with one of our licensed and practicing lawyers.
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