Moreno v. Canada

Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 FCR 298, 1993 CanLII 2993 (FCA)

• Section 1F(a) of the Convention is at issue here – “crimes against humanity”
• El Salvadoran army – forcibly recruited at age 16 and served for four months
• Was a witness to torture on one occasion, and deserted military shortly thereafter
• RPD excluded him on 1F(a) basis and the JR was negative. Appealed to FCA here.
• Court follows the Ramirez test for assessing complicity in crimes against humanity
• Finds that he is not excluded.
• Note that Ezokola has since replaced the Ramirez “personal and knowing participation test”, followed here in Moreno, with a “voluntary, significant and knowing contribution test”
• See Ezokola:

o [9] This contribution-based approach to complicity replaces the personal and knowing participation test developed by the Federal Court of Appeal in Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306. In our view, the personal and knowing participation test has, in some cases, been overextended to capture individuals on the basis of complicity by association. A change to the test is therefore necessary to bring Canadian law in line with international criminal law, the humanitarian purposes of the Refugee Convention, and fundamental criminal law principles.

Moreno cited in Ezokola:

o [44] Whether an individual is complicit in an international crime cannot be considered in light of only one of the world’s legal systems: Ramirez, at p. 315; Moreno v. Canada (Minister of Employment and Immigration), 1993 CanLII 2993 (FCA), [1994] 1 F.C. 298 (C.A.), at p. 323. This flows not only from the explicit instruction in art. 1F(a) to apply international law, but also from the extraordinary nature of international crimes. They simply transcend domestic norms. As Fannie Lafontaine explains in Prosecuting Genocide, Crimes Against Humanity and War Crimes in Canadian Courts (2012), at p. 95:
Genocide, crimes against humanity and war crimes, because of their very raison d’être, their particular magnitude and the context of their commission, cannot be assimilated to ordinary crimes, regardless of the latter crimes’ intrinsic gravity.
• Commentary:

o Note that the Court’s focus in this case and in Ezokola was on the concept of complicity or membership in organizations which commit war crimes or crimes against humanity
o There was really no doubt that the actual crimes of the organizations amounted to crimes against humanity
o The question was whether the individual’s involvement in such crimes was sufficient to warrant exclusion
o In Mugesera, however, the actual definition of crimes against humanity had to be explored in detail as it related to a discrete instance of incitement to murder where no murders were actually committed