The Supreme Court of Canada issued a ruling Friday that clarifies the test that immigration officials should use when deciding if a refugee applicant was complicit in war crimes.

The unanimous decision found that guilt by association is not reason enough to deny someone refugee protection.

It said in order to be excluded from protection the refugee applicant must "voluntarily make a knowing and significant contribution to the crime or criminal purpose of the group alleged to have committed the crime." It added the evidentiary burden falls on the Minister of Citizenship and Immigration.

'Decision makers should not overextend the concept of complicity to capture individuals based on mere association or passive acquiescence.'—Supreme Court of Canada

The ruling means the case of Rachidi Ekanza Ezokola will go back to the Immigration and Refugee Board, with new guidance from the court on how the rules should be interpreted.

"Decision makers should not overextend the concept of complicity to capture individuals based on mere association or passive acquiescence," the ruling said. The court said that the test immigration officials use has at times been overextended and that Canada needs to "rearticulate" its approach to refugee law.

The case stems from a decision by the federal government to deny refugee status to Ezokola. He worked for the government of the Democratic Republic of Congo (DRC) for eight years, four of them as a prominent diplomat at the United Nations.

Ezokola moved to Montreal in 2008 with his wife and eight children, alleging he had received death threats from Congolese intelligence agents. Canada's Immigration and Refugee Board denied Ezokola refugee status after finding him complicit by association in war crimes and crimes against humanity.

In the years Ezokola served the DRC government, it was responsible for a number of atrocities including the massacre of civilians and recruitment of child soldiers.

Ezokola appealed the ruling and won at Federal Court but then lost at the Federal Court of Appeal.

Ezokola says he faced threats

In its factum filed with the Supreme Court, counsel for the minister of citizenship and immigration argued, "For several years, the appellant willingly represented his government on the international scene while heinous crimes were being committed by his own government in his country."

"It is common ground that he was not credible when he stated he did not know about the crimes committed by his own government and that he dissociated himself from his government only when he felt his personal safety was in jeopardy," the factum said.

But lawyers for Ezokola say there is no direct or indirect link between their client and his work and the crimes committed by DRC security forces. They presented evidence that members of the DRC intelligence service started to threaten Ezokola when they learned he did not support President Joseph Kabila and raised concerns about what was happening in his home country.

The president of the Canadian Association of Refugee Lawyers Lorne Waldman says Canada is out of line with other countries in how it interprets the United Nations convention that allows nations to deny refugee status to people who've committed war crimes.

Direct connection

Waldman says jurisprudence in Canada has given a very expansive definition of when a person is responsible for war crimes and crimes against humanity. "The person can be found to have committed a war crime or crime against humanity under the immigration laws in Canada even if there's no direct link between him or her and any actual crime."

Annick Legault, one of Ezokola's lawyers, said she hoped the court will clarify the test for individual responsibility and make it clear that there must be a direct connection between the applicant refugee and the commission of a specific crime.

"We're not looking into asking, for instance, to specify the day of, like in a criminal court. But for instance if there's a direct link between the person and enrolling, enlisting child soldiers," she said.

If the Supreme Court agrees to such a test for complicity, Legault says she expects many more refugees would be permitted to stay in Canada. No one from the Department of Citizenship and Immigration would comment on the case as it is still before the courts.

No matter how the Supreme Court was going to rule today, Ezokola will have to return to the Immigration and Refugee Board for a new hearing.