An individual can be excluded from refugee protection in Canada under Article 1F of the Refugee Convention if there are serious reasons for considering that the person has committed a crime against peace, a war crime, or a crime against humanity.

Where an individual has committed a serious non-political crime outside Canada prior to their admission to Canada as a refugee or has been guilty of acts contrary to the purposes and principles of the United Nations, the individual will be excluded.

According to section 98 of the Immigration and Refugee Protection Act (IRPA), a person who is excluded under Article 1E of the Refugee Convention cannot be recognized as a Convention refugee nor a person in need of protection.

Exclusion from refugee protection under Article 1F(a) of the Refugee Convention essentially is warranted only where there are “serious reasons for considering” that a claimant has made a voluntary, knowing and significant contribution to the crimes or criminal purpose of the impugned organization.

As noted by the Supreme Court of Canada in Ezokola v. Canada, [2013] 2 S.C.R. 678, exclusion determinations are not determinations of guilt and therefore are not based on proof beyond a reasonable doubt nor on the general civil standard of the balance of probabilities. 

The standard of proof applicable to determining whether there are “serious reasons for considering” is lower than a balance of probabilities but above a mere suspicion. Passive membership in or mere association with an impugned organization is not enough to rise to the level of complicity, but rather, there must be a link between the individual and the criminal purpose of the group.

In Ghirme v. Canada, [2024] FC 104, the Federal Court found that the RAD unreasonably determined that the applicant was complicit in the acts of the Eritrean army. The RAD’s determination that the Applicant is excluded was influenced by Eritrea’s shoot‑to‑kill policy, notwithstanding the findings that the Applicant did not shoot anyone pursuant to the policy and that the enforcement of the policy had lessened by the time the Applicant’s duties changed from menial jobs, during his first eight years in the army, to detention of individuals at the border.

There was no analysis as to how the applicant’s actions constituted a “significant contribution.” Further, several of the RAD’s findings lacked coherence and, therefore, intelligibility. The Court found that the RAD also unintelligibly discounted duress on the basis of the length of time the Applicant spent in the army, while acknowledging the Applicant’s forcible recruitment and the documentary evidence that supported the Applicant’s contention that if he tried to leave the army and was caught, he would face imprisonment.

Where the Board finds that there was no link between the jobs performed by a claimant and the criminal purpose of torture and mistreatment in the organization, the Board makes an erroneous finding if the applicant is excluded based upon that premise.

The applicability of the exclusion clause does not depend on whether a claimant has been charged or convicted of the acts set out in the Convention.