CITIZENSHIP AND IMMIGRATION
Exclusion and Removal
Removal of Permanent Residents
Appeal from Federal Court decision ([2005] 2 F.C.R. 78) adjudicator’s findings of fact not unreasonable or vitiated by errors warranting intervention—Federal Court certifying question as to whether definition of “crime against humanity” found at Crimes Against Humanity and War Crimes Act (CAHWCA), s. 6(3) including complicity therein—Federal Court of Appeal answering question affirmatively—Appellant, Afghan, made refugee claim in Canada under former Immigration Act—Claim denied by Convention Refugee Determination Division (CRDD) of Immigration and Refugee Board because serious reasons for considering appellant had committed crimes against humanity, excluded from definition of Convention refugee under former Act—Appellant submitted application for landing as post‑determination refugee claimant but ordered deported by adjudicator because inadmissible—Federal Court rejected appellant’s argument that while Federal Court cases deciding complicity in commission of crime against humanity justifying exclusion from scope of protection offered to refugees, no authority for finding person under similar circumstances inadmissible to Canada under Immigration and Refugee Protection Act (IRPA), s. 35(1)(a)—Also stated argument would result in incongruity in application of relevant laws—Main purpose of CAHWCA to sanction crimes of genocide, crimes against humanity, war crimes committed in or outside Canada— CAHWCA, s. 6(1)(b) making it indictable offence punishable in Canada to commit, outside Canada, crime against humanity—Crime of complicity not found in CAHWCA because complicity not crime—At common law, under Canadian criminal law, complicity still mode of commission of crime—Referring to act or omission of person that helps, or is done for purpose of helping furtherance of crime— Accomplice then charged with, tried for, crime actually committed, that accomplice assisted or furthered—Complicity not to be confused with inchoate crimes of conspiracy, attempt and incitement to commit crime—Inchoate crimes found in CAHWCA, s. 6(1.1), are substantive offences of own or stand‑alone offences—Not modes or means of committing crime—Notion of complicity also existing in international criminal law—Repeal of Criminal Code, ss. 7(3.76), 7(3.77) and replacement by CAHWCA, ss. 4, 6 not aiding appellant’s argument complicity not punished by IRPA, CAHWCA— Former s. 7(3.76) provided definition of crime against humanity—For greater clarity, former s. 7(3.77 ) indicated definition included complicity in form of aiding and abetting any person in commission of act or omission—Repeal of s. 7(3.77) not legally changing anything with respect to complicity except creating potential confusion, fuelling litigation—Repeal not altering law because word “commits” in relation to crime as used in CAHWCA, s. 6(1)(b) referring to, including various means of committing crime—Person who “commits” crime may be actual perpetrator of act personally or through innocent agent, aider, abettor, etc. of criminal act committed—Repeal of Criminal Code provision affecting neither common‑law rules governing issue nor case law developed by Canadian courts under Canadian criminal law—CAHWCA, s. 6(1), which uses word “commits” in relation to crime against humanity no exception to principle complicity refers to methods or means of committing crime; criminally engages those found to be accomplices— Complicity must also not be confused with inchoate crime of incitement—Concept of complicity broader than act of aiding, abetting crime since Federal Court of Appeal has recognized, accepted concept of complicity by association—Mere membership in organization that committed crimes against humanity outside Canada not sufficient to trigger application of CAHWCA, s. 6(1)(b)—Therefore, does not result in inadmissibility finding under IRPA, s. 35(1)(a)—Appellant not mere member of organization, but knowingly, voluntarily, participating, active member for five years in secret service organization within Ministry of State Security (KHAD) that tortured, eliminated people opposed to government— Appellant rose in military ranks of brutal organization, espoused views thereof, attended training sessions, provided names of persons who failed to cooperate—Appellant willingly, to own benefit, member of organization that only existed for limited brutal purpose—Knew organization committing crimes of torture, murder—Under both Canadian, international case law, appellant’s behaviour amounting to complicity in commission of crimes against humanity— Federal Court properly confirmed adjudicator’s decision that appellant inadmissible under former Act (new IRPA, s. 35(1)(a))—Appeal dismissed—Crimes against Humanity and War Crimes Act, S.C. 2000, c. 24, s. 6—Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 35—Criminal Code, R.S.C., 1985, c. C‑46, ss. 7(3.76), (3.77) (repealed by S.C. 2000, c. 24, s. 42)—Immigration Act, R.S.C., 1985, c. I‑2 (repealed by S.C. 2001, c. 27, s. 274).
Zazai v. Canada (Minister of Citizenship and Immigration) (A‑539‑04, 2005 FCA 303, Létourneau J.A., judgment dated 20/9/05, 12 pp.)