RPD Exclusion — Article 1F

Article 1F exclusion is a provision of the 1951 Refugee Convention, incorporated into Canadian law through IRPA s 98, that bars certain persons from refugee protection regardless of whether they otherwise qualify as Convention refugees or persons in need of protection. The exclusion exists because the Refugee Convention was intended to protect victims of persecution — not persons who have themselves committed serious offences.

IRPA s 98 provides that a person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection. Article 1F of the Convention sets out the three exclusion clauses:

• Article 1F(a): The person has committed a crime against peace, a war crime, or a crime against humanity as defined in international instruments;
• Article 1F(b): The person has committed a serious non-political crime outside the country of refuge prior to admission as a refugee;
• Article 1F(c): The person has been guilty of acts contrary to the purposes and principles of the United Nations.

Article 1E exclusion (also incorporated by s 98) applies to persons who have been recognised as having the rights and obligations of nationality in a third country — effectively, people who already have protection elsewhere.

Standard of proof: Exclusion under Article 1F requires "serious reasons to consider" that the person committed the relevant acts — a standard lower than the balance of probabilities. This means exclusion can be found even when there is less than 50% certainty, provided there are serious and credible reasons to believe the acts occurred: Ezokola v Canada [2013] 2 SCR 678.

Complicity: A person may be excluded not only for directly committing war crimes or crimes against humanity, but also for being complicit in such crimes committed by others. Complicity requires a personal and knowing contribution to the organisation's crimes — mere membership in an organisation that commits atrocities is insufficient. The Supreme Court of Canada in Ezokola clarified that complicity requires voluntary, knowing, and significant contribution.

Article 1F(b) — Serious non-political crime: This ground excludes persons who committed serious crimes (generally those equivalent to crimes punishable by imprisonment under Canadian law) in their country of origin or a third country before coming to Canada. "Political crime" is assessed by whether the act was committed in pursuit of political objectives and is proportionate to those objectives — the political motivation must predominate over ordinary criminal elements.

Procedure at the RPD: The Minister's representative may raise exclusion at the RPD hearing, or the RPD may raise it on its own motion. If exclusion is raised, the RPD must determine whether it applies before considering inclusion (whether the person is a refugee). An exclusion finding ends the refugee claim regardless of the merit of the protection claim.

Effect of exclusion: An excluded person has no protection from refoulement under IRPA — they may be removed even to a country where they face persecution. However, Canada's constitutional obligations under the Canadian Charter of Rights and Freedoms (ss 7 and 12) may impose a floor in cases where the person faces risk of torture or death, regardless of IRPA exclusion: Suresh v Canada [2002] 1 SCR 3.