Sivakumar v. Canada

Sivakumar v. Canada (Minister of Employment and Immigration ), [1994] 1 FCR 433, 1993 CanLII 3012 (FCA)

• This is another pre-Ezokola 1F(a) case. Ezokola should now be consulted for the test for complicity.
• Sri Lankan Tamil claimant. Found to have a well-founded fear of persecution but excluded on the basis of 1F(a) for having committed crimes against humanity through association with the LTTE.
• The issue on this appeal is whether the appellant was properly held responsible for crimes against humanity alleged to have been committed by the Liberation Tigers of Tamil Eelam (LTTE) even though he was not personally involved in the actual commission of the criminal acts.
• The following is no longer good law following Ezokola:

o To sum up, association with a person or organization responsible for international crimes may constitute complicity if there is personal and knowing participation or toleration of the crimes. Mere membership in a group responsible for international crimes, unless it is an organization that has a “limited, brutal purpose”, is not enough (Ramirez, supra, at page 317). Moreover, the closer one is to a position of leadership or command within an organization, the easier it will be to draw an inference of awareness of the crimes and participation in the plan to commit the crimes.

• Following Ezokola, the test for 1F(a) exclusion is that the person voluntarily made a significant and knowing contribution, even where the group has a limited purpose

• The facts here showed that Sivakumar held high-ranking positions in the LTTE (head of intelligence at one point, etc.) and had been involved with the LTTE for over 10 years
• He left the organization in the late 1980’s over a dispute with head leadership
• There was a paucity of evidence with respect to whether he had actually carried out or ordered any killings or torture, and the RPD didn’t really make any finding of facts in this regard
• FCA says that due to his rank, the length of time in the LTTE, etc. and the obvious crimes against humanity committed by the LTTE, he was complicit in the crimes and can be excluded on 1F(a) grounds