Canada's Program on Crimes Against Humanity and War Crimes - 2011–2015: 13th Report

Remedies for Persons Believed to Have Committed or Been Complicit in War Crimes, Crimes against Humanity or Genocide

Remedies

The term “remedy” is used in this report to indicate some type of temporary or permanent resolution regarding an individual believed to have committed or been complicit in war crimes, crimes against humanity or genocide. These remedies are governed by various pieces of legislation, including the Immigration and Refugee Protection Act, the Crimes Against Humanity and War Crimes Act, the Citizenship Act and the Extradition Act. Remedies, as outlined below, can be immigration or criminal based, and one or more remedies can be employed regarding the same individual. The File Review Committee, which reports to the Program Coordination and Operations Committee, assesses each allegation and, using established criteria, determines which remedy should initially be applied.

The Immigration and Refugee Protection Act provides specific grounds of inadmissibility for people involved in war crimes, crimes against humanity or genocide and outlines procedures for reporting, admissibility hearings and removals. It also provides for the exclusion from the refugee determination process of people involved in war crimes or crimes against humanity. Section 35 of the Immigration and Refugee Protection Act states:

35(1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for

(a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act;

(b) being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act; or

(c) being a person, other than a permanent resident, whose entry into or stay in Canada is restricted pursuant to a decision, resolution or measure of an international organization of states or association of states, of which Canada is a member, that imposes sanctions on a country against which Canada has imposed or has agreed to impose sanctions in concert with that organization or association.

The Crimes Against Humanity and War Crimes Act provides for the prosecution of any individual present in Canada for any offence listed in the Crimes Against Humanity and War Crimes Act regardless of where the offence occurred.

In the war crimes context, the Citizenship Act allows for the refusal of an application for citizenship submitted by an individual who is under investigation, charged with, on trial for, subject or party to an appeal relating to, or convicted of, an offence under any of sections 4 to 7 of the Crimes Against Humanity and War Crimes Act. See the section below for further details. The Citizenship Act also provides for the revocation of citizenship of people who have obtained citizenship by fraud or misrepresentation by concealing their involvement in crimes against humanity and war crimes. Recent changes to the Citizenship Act have affected the revocation process considerably. See the section regarding revocation below for further details.

Immigration-Based Remedies

Refusal of Visas to Persons Outside Canada

The refusal of visas overseas is the most cost-effective method of preventing persons believed to have committed or been complicit in war crimes, crimes against humanity or genocide from entering Canada. This remedy is legislated under the Immigration and Refugee Protection Act. The Department of Citizenship and Immigration’s immigration officers are the first line of defence in preventing such persons from reaching Canada, as they ensure that applicants for permanent and temporary residence are admissible under the Immigration and Refugee Protection Act as part of the visa assessment process.

Partners in the War Crimes Program provide training, screening aids, intelligence, research and analytical support to the Department of Citizenship and Immigration and Canada Border Services Agency officials who use this information to help identify persons who are believed to have committed or been complicit in war crimes, crimes against humanity or genocide. In some cases, a designation is made by the Minister of Public Safety and Emergency Preparedness regarding regimes that have committed war crimes. The list of regimes designated pursuant to paragraph 35(1)(b) of the Immigration and Refugee Protection Act is included in Appendix 4. When requested, the Canada Border Services Agency provides immigration officers with an assessment of an applicant’s involvement or complicity in war crimes, crimes against humanity or genocide. The final decision to issue or refuse a visa is made by a Department of Citizenship and Immigration official. A visa allows an individual to present themselves at the port of entry for examination. A Canada Border Services Agency border services officer has the final authority to allow or refuse entry.

Admissibility/Exclusion

Admissibility

When allegations about the commission of or complicity in war crimes, crimes against humanity or genocide are made against persons seeking entry or those already in Canada, these cases are referred by the Canada Border Services Agency or the Department Citizenship and Immigration to admissibility hearings before the Immigration Division of the Immigration and Refugee Board. If the person is a refugee claimant, the refugee claim is suspended pending the outcome of the admissibility hearing.

The Faster Removal of Foreign Criminals Act (Bill C-43) received Royal Assent on June 19, 2013, bringing into force amendments that limit access to relief mechanisms under the Immigration and Refugee Protection Act. The amendments support the government’s “no safe haven” policy by ensuring that foreign nationals who are inadmissible on grounds of security, human or international rights violations (including war crimes, crimes against humanity or genocide) or organized criminality are no longer able to apply for permanent resident status under humanitarian and compassionate provisions. Therefore, a person found inadmissible for war crimes, having committed or been complicit in war crimes, crimes against humanity or genocide, is ineligible to request humanitarian and compassionate considerations as a way to remain in Canada permanently.

Admissibility Hearing Statistics
  2011–2012 2012–2013 2013–2014 2014–2015
Admissibility hearings initiated for non-refugee claimants 2 5 4 2
Admissibility hearings initiated for refugee claimants 9 7 6 6
Non-refugee claimants found inadmissible to Canada, because of reasonable grounds to believe the claimants committed or were complicit in war crimes, crimes against humanity or genocide, and ordered removed 0 4 0 2
Refugee claimants found inadmissible to Canada, because of reasonable grounds to believe the claimants committed or were complicit in war crimes, crimes against humanity or genocide, and ordered removed 5 8 7 3
Non-refugee claimants found admissible to Canada following a hearing at the Immigration and Refugee Board regarding war crimes, crimes against humanity or genocide 1 1 4 3
Refugee claimants found admissible to Canada following a hearing at the Immigration and Refugee Board regarding war crimes, crimes against humanity or genocide 5 2 1 2
Non-refugee claimant cases still under investigation as of March 31 of the fiscal yearFootnote 1 33 37 54 41
Refugee claimant cases still under investigation as of March 31 of the fiscal yearFootnote 1 232 105 80 35
Exclusion

During the refugee claim process, claims that raise concerns about possible involvement in war crimes, crimes against humanity or genocide are investigated by the Canada Border Services Agency, and, if the results of the investigation show reasonable grounds to believe that the claimant has committed or was complicit in such crimes, then the Canada Border Services Agency intervenes before the Immigration and Refugee Board’s Refugee Protection Division and seeks to exclude the claimant from refugee protection. Under article 1F of the 1951 United Nations Convention Relating to the Status of Refugees, a person cannot be a Convention refugee if they have committed war crimes, crimes against humanity, serious non-political crimes outside Canada, crimes against peace or acts contrary to the purposes and principles of the United Nations.

Exclusion Statistics
  2011–2012 2012–2013 2013–2014 2014–2015
Refugee claims investigated by the Canada Border Services Agency for the commission of or complicity in war crimes, crimes against humanity or genocide 602 503 365 445
Interventions filed by the Canada Border Services Agency before the Immigration and Refugee Board’s Refugee Protection Division to exclude claimants from refugee protection because there were reasonable grounds to believe that the claimants committed or were complicit in war crimes, crimes against humanity or genocide 103 59 77 41
Cases excluded from refugee protection by the Immigration and Refugee Board’s Refugee Protection Division because there were reasonable grounds to believe that the claimants committed or were complicit in war crimes, crimes against humanity or genocide 37 34 8 5
Cases denied refugee protection by the Immigration and Refugee Board’s Refugee Protection Division for reasons other than reasonable grounds to believe that the claimants committed or were complicit in war crimes, crimes against humanity or genocide, where an intervention for exclusion had been filed 15 31 38 10
Cases granted refugee protection by the Immigration and Refugee Board’s Refugee Protection Division where an intervention for exclusion had been filed 11 18 13 3
Refugee claims withdrawn or abandoned by claimants 22 13 15 5

Supreme Court of Canada Decision Impacts on the War Crimes Program

On July 19, 2013, the Supreme Court of Canada rendered its decision in Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 SCR 678, refining the law with respect to complicity for the purposes of determining exclusion pursuant to Article 1F of the United Nations Convention Relating to the Status of Refugees. The Supreme Court of Canada established a new contribution-based test requiring serious reasons for considering that an individual made a voluntary, significant and knowing contribution to an organization’s international crimes or criminal purposes. The decision has impacted Canada Border Services Agency and Department of Citizenship and Immigration programs, as it applies directly to inadmissibility decisions made under paragraph 35(1)(a) of the Immigration and Refugee Protection Act and Article 1F exclusion decisions.

Cessation/Vacation of Refugee Protection

In some instances, an individual can have their refugee status removed. In cases of cessation, a person ceases to be a refugee if, for example, they voluntarily re-availed themselves of the protection of their country of nationality or obtained protection from another country (citizenship). A person can have their refugee status vacated if they obtained that status by directly or indirectly misrepresenting or withholding material facts relating to a relevant matter.

Danger Opinion

If a protected person or Convention refugee is the subject of a deportation order, they cannot be removed because of the principle of non-refoulement. Non-refoulement is a principle of international law that forbids the return of a victim of persecution to their persecutor. In immigration practice, this means that individuals cannot be returned to a state if there is evidence to indicate that, if returned there, their lives or freedoms would be threatened. If individuals are found inadmissible to Canada, but their protected person or Convention refugee status was not vacated or ceased, these individuals cannot be removed unless the Canada Border Services Agency obtains a danger opinion from the Minister of Citizenship and Immigration prior to removal. A danger opinion assesses if an individual poses such a considerable risk to the Canadian public that they must be removed, notwithstanding their protected status. Paragraph 115(2)(b) of the Immigration and Refugee Protection Act also states that a person can be removed if they are found to be inadmissible on grounds of security, violating human or international rights or organized criminality and, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada.

Removal

Persons who were excluded from the refugee process, whose refugee or protected person status has been vacated or has ceased or who were otherwise found inadmissible to Canada can be removed after all legal avenues have been exhausted. See below for more detailed information on removals.

Admissibility Hearing and Removal from Canada under the Immigration and Refugee Protection Act

Admissibility Hearing

Allegations that individuals have participated in war crimes, crimes against humanity or genocide are received in a variety of ways. Allegations may originate from witnesses, foreign governments, community groups, non-governmental organizations, immigration proceedings or open-source information. If a Canada Border Services Agency officer or an official of the Department of Citizenship and Immigration has reasonable grounds to believe that a permanent resident or a foreign national who is seeking entry to Canada or who is in Canada is inadmissible on grounds of human or international rights violations, the officer may prepare a report setting out the relevant facts and refer it to a Minister’s delegate. A Minister’s delegate who is of the opinion that the report is well founded may refer the report to the Immigration and Refugee Board’s Immigration Division for an admissibility hearing to determine the merits of allegations of inadmissibility and to issue an applicable removal order, if appropriate.

Removal

Persons who are excluded from refugee protection or who are otherwise found inadmissible to Canada can be removed after all legal avenues have been exhausted and a pre-removal risk assessment has been conducted. Persons whose citizenship has been revoked and for whom a removal order has been issued may also be subject to removal.

Pursuant to the Immigration and Refugee Protection Act, an officer may issue a warrant for the arrest and detention of a permanent resident, protected person or foreign national when there are reasonable grounds to believe that the individual is inadmissible under any provision of the Immigration and Refugee Protection Act and either poses a danger to the public or is unlikely to appear for an examination, an admissibility hearing, a removal from Canada or a proceeding that could lead to the issuing of a removal order by the Minister’s delegate. The Immigration and Refugee Protection Act also allows for the arrest and detention of foreign nationals without a warrant. An immigration warrant is executed when an individual is arrested.

Removal Statistics
  2011–2012 2012–2013 2013–2014 2014–2015
Persons removed from Canada following a finding of inadmissibility because the persons committed or were complicit in war crimes, crimes against humanity or genocide 24 41 17 17
Canada Border Services Agency inventory of enforceable removal orders with respect to refugee claimants who were found inadmissible to Canada on the reasonable grounds that they committed or were complicit in war crimes, crimes against humanity or genocide 38 123 102 74
Removal orders that could not be carried out because of impedimentsFootnote 2 96 57 49 71
Removal orders awaiting pre-removal risk assessments 52 56 55 27
Immigration warrants issued 11 9 9 8
Immigration warrants executed 12 13 4 4
Inventory of outstanding immigration warrants at the end of the fiscal year (includes outstanding warrants from previous years) 176 172 177 181

Citizenship-Based Remedies

Prohibition under the Citizenship Act

The Crimes Against Humanity and War Crimes Act makes consequential amendments to the Citizenship Act with a view to explicitly prohibit those convicted or in the process of being prosecuted under the Crimes Against Humanity and War Crimes Act from being granted citizenship. These Citizenship Act provisions read as follows:

22 (1) Despite anything in this Act, a person shall not be granted citizenship under subsection 5(1), (2) or (4) or 11(1) or take the oath of citizenship

(c) while the person is under investigation by the Minister of Justice, the Royal Canadian Mounted Police or the Canadian Security Intelligence Service for, or is charged with, on trial for, subject to or a party to an appeal relating to, an offence under any of sections 4 to 7 of the Crimes Against Humanity and War Crimes Act;

(d) if the person has been convicted of an offence under any of sections 4 to 7 of the Crimes Against Humanity and War Crimes Act.

Revocation of Citizenship

The War Crimes Program partners continue to assess and investigate allegations concerning Canadian citizens who are believed to have committed or been complicit in war crimes stemming from the Second World War. However, the majority of cases related to the Second World War have been concluded. Future citizenship revocation cases that come to the attention of the War Crimes Program are more likely to pertain to such acts in the modern context (see Appendix 2). The Department of Justice, the Canada Border Services Agency, the Royal Canadian Mounted Police and the Department of Citizenship and Immigration work together in investigating allegations and assessing cases for possible revocation. These cases involve collecting information and evidence from domestic and international sources and take considerable time to complete.

On June 19, 2014, Bill C-24 received Royal Assent, and the Strengthening Canadian Citizenship Act became law. The objectives of the legislative reform included increasing the efficiency of the Citizenship Program, reinforcing the value of Canadian citizenship, strengthening program integrity and combating fraud, and protecting and promoting Canada’s interests and values.

Amendments to the Citizenship Act intended to streamline the existing revocation process are relevant to the War Crimes Program. The Federal Court will be the decision maker in cases involving allegations of false representation, fraud or knowingly concealing material circumstances with respect to war crimes, crimes against humanity and genocide. A new streamlined ground for revocation has been created in order to pursue cases that fall under this category. Subsection 10.1(1) of the Citizenship Act states:

10.1 (1) If the Minister has reasonable grounds to believe that a person obtained, retained, renounced or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances, with respect to a fact described in section 34, 35 or 37 of the Immigration and Refugee Protection Act other than a fact that is also described in paragraph 36(1)(a) or (b) or (2)(a) or (b) of that Act, the person’s citizenship or renunciation of citizenship may be revoked only if the Minister seeks a declaration, in an action that the Minister commences, that the person has obtained, retained, renounced or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances and the Court makes such a declaration.

The current decision-making process regarding citizenship revocation is expected to streamline the revocation process by including a concurrent decision-making authority for removal from Canada. The Department of Citizenship and Immigration commences an action in the Federal Court seeking a declaration that the person has obtained his or her citizenship by false representation or fraud or by knowingly concealing material circumstances. The declaration by the Federal Court revokes that person’s citizenship. The Court may also be asked to make a declaration that the person is inadmissible on grounds of violating human or international rights under subsection 35(1) of the Immigration and Refugee Protection Act if the Minister of Public Safety and Emergency Preparedness joins as a party to the action. The declaration by the Federal Court that the person is inadmissible is a removal order that comes into force when it is made. This streamlined process allows for better alignment with other remedies. The decision to pursue a declaration that the person is inadmissible rests with the Minister of Public Safety and Emergency Preparedness.

An applicant may appeal the decision of the Federal Court to the Federal Court of Appeal if the Federal Court certifies a serious question of general importance. An applicant may also seek leave to appeal the decision of the Federal Court of Appeal to the Supreme Court of Canada.

Transitional provisions in the Citizenship Act state that any proceeding that is pending before the Federal Court immediately before the day it comes into force will continue under subsection 10.1(1) of the Citizenship Act.

The various elements of the Strengthening Canadian Citizenship Act serves to improve the functioning of Canada’s War Crimes Program, thanks to a renewed focus on fraud deterrence.

Criminal-Based Remedies

Criminal Investigation and Prosecution

Under the Crimes Against Humanity and War Crimes Act, the Royal Canadian Mounted Police is responsible for the criminal investigation of individuals alleged to have committed or been complicit in war crimes, crimes against humanity or genocide. It is important to note that an administrative investigation of a case is different from a criminal investigation. The authority to pursue administrative remedies, such as a visa refusal, exclusion from refugee protection or citizenship revocation, is derived from the Immigration and Refugee Protection Act and the Citizenship Act. The evidentiary threshold of an administrative investigation is also different from that of a criminal investigation and prosecution. In order to pursue a criminal investigation and prosecution, the allegations must disclose personal involvement or command responsibility, and the evidence pertaining to the allegation must be corroborated and obtainable in a reasonable and rapid fashion, among other considerations. A criminal investigation of a war crime, crime against humanity or genocide allegation is challenging and resource intensive; travel and negotiations with foreign governments are frequently required, language barriers often need to be overcome and witnesses can be difficult to locate and reluctant to provide testimony to investigators.

The Royal Canadian Mounted Police interviews witnesses and is responsible for investigating the allegations. The Department of Justice assists the Royal Canadian Mounted Police with analyzing investigation results and provides legal advice on specific legal issues within a file. The consent of the Attorney General of Canada or the Deputy Attorney General of Canada is required to commence proceedings for offences under the Crimes Against Humanity and War Crimes Act. If the recommendation is to prosecute, the matter is forwarded to the Public Prosecution Service of Canada for consideration and prosecution. If the Public Prosecution Service of Canada lays charges, the Department of Justice provides subject matter and logistical support throughout the trial.

Extradition to Other States or Surrender to International Criminal Court or Tribunal Upon Request

Extradition is the process by which one state surrenders a person to another state for the purpose of prosecution or of imposing or enforcing a criminal sentence. Under Canada’s Extradition Act and related treaties, countries with which Canada has an extradition agreement or entities that are designated in the Schedule to the Extradition Act (including the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda and the International Criminal Court) may request that Canada arrest and surrender a person sought for prosecution or sentencing who is located on Canadian soil and is wanted for extraditable conduct.

The Minister of Justice is responsible for the administration of the Extradition Act and the implementation of extradition treaties or conventions to which Canada is a party. Where the requirements of the Extradition Act and any applicable treaty or convention are met, the Minister of Justice may authorize the commencement of extradition proceedings before the superior court in the jurisdiction in which the person sought has been located. The court must determine whether there is sufficient evidence to justify the person’s committal for extradition. In all cases, the conduct for which extradition is sought must be considered criminal in both the requesting country and Canada. This is known as “dual criminality.”

Where the person is committed for extradition by the superior court, the Minister of Justice must personally decide whether or not to order the person’s surrender to the foreign state and if conditions should be imposed on any surrender order. The International Assistance Group at the Department of Justice is delegated to act on behalf of the Minister of Justice in all matters under the Extradition Act, with the exception of the decision on surrender.

Extradition requests are confidential communications unless and until the matter is made public through court proceedings.

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