Date: 20060105
Docket: IMM-2463-05
Citation: 2006 FC 1
Ottawa, Ontario, the 5th day of January 2006
PRESENT:
THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
Ricardo
Antonio Salgado
Applicant
and
The
Minister of Citizenship and Immigration
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review of a decision by the Refugee Protection
Division of the Immigration and Refugee Board (the Board) dated
October 28, 2004. By that decision, the Board rejected the claim for
refugee protection of the applicant Ricardo Antonio Salgado and of his wife
Sofia Esperanza Alas de Salgado and his two minor children, Eduardo Antonio
Salgado Alas and Ricardo Vladimir Salgado Alas.
ISSUES
[2]
The issue
is the following:
-
Did the
Board err in law in dismissing the applicant’s claim for refugee protection
based on the exclusion grounds provided for by the Convention Relating to
the Status of Refugees, Can. T.S. 1969, No. 6 (the Convention)?
CONCLUSION
[3]
For the
reasons that follow, the application for judicial review is dismissed.
FACTS ALLEGED BY APPLICANT
[4]
The
applicant and the members of his family are citizens of El Salvador. The
applicant worked for that country’s Air Force from 1983 to 1994. The position
he held was that of stock clerk in the Air Force spare parts warehouse. In
particular, he was responsible for the warehouse section for the model A‑37‑B
aircraft. From 1995 onwards, the applicant made several trips to the U.S..
[6]
The
applicant and his family filed their claim for refugee protection in Canada
while travelling in the U.S. in December 2002.
IMPUGNED DECISION
[7]
In his
decision of October 28, 2004, Board member Michel Jobin dismissed the
applicant’s claim on account of a ground of exclusion based on the
Convention. Relying on documentary evidence, Mr. Jobin found that, in the
1980s and 1990s, the Salvadoran army bombed civilian populations in the course
of its struggle against the FLMN, which also affected the civilian population.
Mr. Jobin applied the exclusion clause contained in subsections F(a)
and (c) of the Convention, on the ground that the applicant was a party to
crimes against humanity committed by the Salvadoran army in the 1983-1994
period. These exclusion clauses are expressly incorporated by section 98
IRPA and subsection 2(1) IRPA.
ANALYSIS
[8]
The
applicable standard of review is that of the reasonableness simpliciter when
the exclusion clauses in section F of the Convention are in issue in a
particular case, since the question is one of mixed fact and law (Shresta v.
Canada (Department of Citizenship and Immigration), 2002 FCTT 887, [2002]
F.C.J. No. 1154, at para. 12; Valère v. Canada (Department
of Citizenship and Immigration), 2005 FC 524, [2005] F.C.J. No. 643,
at para. 12).
[9]
The
relevant provisions of the IRPA read as follows:
|
2.
(1) The definitions in this subsection apply in this Act.
|
2.
(1) Les définitions qui suivent s’appliquent à la présente loi.
|
|
.
. .
|
[…]
|
|
"Refugee
Convention" means the United Nations Convention Relating to the Status
of Refugees, signed at Geneva on July 28, 1951, and the Protocol to that
Convention, signed at New York on January 31, 1967. Sections E and
F of Article 1 of the Refugee Convention are set out in the schedule.
|
« Convention
sur les réfugiés » La Convention des Nations Unies relative au statut
des réfugiés, signée à Genève le 28 juillet 1951, dont les
sections E et F de l’article premier sont reproduites en annexe et le
protocole afférent signé à New York le 31 janvier 1967.
|
|
.
. .
|
[…]
|
|
98.
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.
|
98.
La personne visée aux sections E ou F de l’article premier de la Convention
sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à
protéger.
|
|
.
. .
|
[…]
|
|
Schedule
|
Annexe
|
|
.
. .
|
[…]
|
|
F. The provisions of
this Convention shall not apply to any person with respect to whom there are
serious reasons for considering that:
|
F. Les dispositions de
cette Convention ne seront pas applicables aux personnes dont on aura des
raisons sérieuses de penser :
|
|
(a)
he has committed a crime against peace, a war crime, or a crime against humanity,
as defined in the international instruments drawn up to make provision in
respect of such crimes;
|
a) Qu’elles ont commis un crime contre la paix,
un crime de guerre ou un crime contre l’humanité, au sens des instruments
internationaux élaborés pour prévoir des dispositions relatives à ces crimes;
|
|
.
. .
|
[…]
|
|
(c)
he has been guilty of acts contrary to the purposes and principles of the
United Nations.
|
c) Qu’elles se sont rendues coupables
d’agissements contraires aux buts et aux principes des Nations Unies.
|
[10]
In the
case at bar, it is not in dispute that the Salvadoran Army committed the crimes
for which it is blamed in the documentation (see panel’s record, Decision, at
pages 8 and 9; M‑8, at page 133, M‑23, at page 257,
M‑15, at page 195, M‑16, at page 206 and M‑20, at
page 234). There is ample evidence that the Salvadoran Armed Forces,
including the Air Force, committed numerous crimes against humanity during the
relevant period. Therefore, only the definition of complicity in a crime
against humanity, and its application to the facts, is at issue here.
[11]
The
applicant argued that it is the Crimes Against Humanity and War Crimes Act,
S.C. 2000, c. 24 (the Crimes Against Humanity Act) which
provides a definition of the concept of complicity in a crime against humanity
within the meaning of the Convention. For the following reasons, I do not
share that view.
[12]
First, in Ramirez
(Minister of Employment and Immigration), [1992] 2 F.C. 306, [1992] F.C.J.
No. 109, Mr. Justice MacGuigan dismissed the idea that the
concept of complicity could only be interpreted in light of the Canadian Criminal
Code. At paragraph 13, he wrote:
It was common
ground to both parties during argument that it is not open to this Court to
interpret the “liability” of accomplices under this Convention exclusively in
the light of section 21 of the Canadian Criminal Code [R.S.C. 1985,
c. C‑46], which deals with parties to an offence, since that
provision stems from the traditional common law approach to “aiding” and
“abetting.” [See Note 4 below]. An international convention cannot be
read in the light of only one of the world’s legal systems.
I think the same is true for the Crimes Against Humanity
Act, in the absence of an express reference thereto. Section 35 IRPA
refers to the Crimes Against Humanity Act. If Parliament had intended
that the definition of complicity in a crime against humanity referred to in
the Schedule to the IRPA should be that of the Crimes Against Humanity Act,
it would have indicated this as it did in section 35 of the IRPA.
Further, in the recent case of Zrig v. Canada (Department of Citizenship and
Immigration), 2003 FCA 178, [2003] F.C.J. No. 565, at
paragraph 131, Mr. Justice Nadon indicated that the definition
of this concept must be taken from international law:
Article F(a)
and (c) deals with extraordinary activities, that is international
crimes in the case of Article 1F(a), or acts contrary to
international standards in the case of article 1F(c) (which
explains the presence of the word “committed” in Article 1F(a),
which deals with crimes, and the fact that it is not present in
Article 1F(c), which deals with acts that are not necessarily
crimes). These are activities which I characterize as extraordinary because,
if I might so phrase it, they have been criminalized by the international
community collectively for exceptional reasons, and their nature is described
in international instruments (Article 1F(a)) or in terms of such
instruments (Article 1F(c)). One feature of some of these activities
is that they affect communities and are conducted through persons who do not
necessarily participate directly in them. In order for the persons who really
are responsible to be held to account, the international community wished
responsibility to attach to the persons, for example, on whose orders the
activities were carried out or who, aware of their existence, deliberately
closed their eyes to the fact that they were taking place. It is in these
circumstances that the concept of complicity by association developed, making
it possible to reach the persons responsible who would probably not have been
responsible under traditional criminal law. Fundamentally, this concept is one
of international criminal law.
Therefore, in order to understand this concept derived from
international criminal law (in the context of the Schedule to the IRPA, which
refers to the Convention), we must look to the Federal Court of Appeal’s
jurisprudence.
[13]
In Sivakumar
v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433,
[1993] F.C.J. No. 1145, the Court held that it is possible to commit a
crime against humanity within the meaning of section F(a) as an
accomplice.
[14]
Certain
benchmarks derived from the case-law make it possible to determine whether a
person has committed a crime against humanity by complicity. In Harb v.
Canada (Department of Citizenship and Immigration), 2003 FCA 39,
[2003] F.C.J. No. 108, at paragraph 19, Mr. Justice Décary
wrote:
As the Court noted in Bazargan at
286, membership in a group makes it easier to conclude that there was “personal
and knowing participation” – which remains the first test – than when there was
no membership, but the difference affects the evidence, not the principles.
Counsel for the respondent would like the Court to clarify what is meant by
“membership in a group”. I do not think this is necessary. The expression was
used in Ramirez in the context of a member whom the Court described as
“active”. The expression suggests the existence of an institutional link
between the organization and the person, accompanied by a more than nominal
commitment to the organization’s activities. As everything is a question of
fact, at the end of the analysis I feel that it is better to speak in terms of
participation in the group’s activities than of membership in the group.
[15]
After
reviewing the facts in the record, I have no doubt that the applicant
personally and knowingly participated in the crime against humanity committed
by the Salvadoran Army with respect to the civilian population of that
country. The definition seems quite broad, and the evidence mentioned by
Mr. Jobin is abundant and persuasive:
-
according
to his testimony, the applicant voluntarily joined the Air Force of the
Salvadoran Army, though his family advised him against it;
-
the
applicant was responsible for the general spare parts and equipment warehouse
for aircraft used by the Salvadoran Army;
-
in
particular, he was responsible for a storage division for parts for the A-37-B
aircraft which, according to the applicant’s testimony, are the fighter planes
responsible for covering combat zones against FMLN guerrilla forces;
-
the
plaintiff was fully aware of the various flights and the frequency of aircraft
flying over the country and knew that during the 1980s the number of missions
increased;
-
the
applicant knew that the aircraft carried bombs the weight of which amounted to
750 kilos in some cases, and that the bomb most regularly used weighed
500 lb.;
-
like the
greater part of the population, the applicant knew that the bombing affected
civilian populations as well as the FMLN guerrilla forces (specifically, he was
aware of this from 1983 onwards);
-
the
applicant admitted that the Army did not treat the population properly;
-
the
applicant remained in the Army for a lengthy period, for economic reasons,
although he said he considered leaving his job around 1989;
-
the
applicant never tried to find any other civilian employment.
[16]
These
facts show that the applicant, knowingly acted as an accomplice in relation to
crimes against humanity committed by the Air Force of the Salvadoran Army.
Further, it must be emphasized that, according to the applicant’s own
testimony, he deliberately chose to stay in the Air Force of the Salvadoran
Army, in a position directly linked to the commission of crimes against
humanity. He knew full well that the Air Force kept on bombing the civilian
population and was fully aware of the link between his work and those
bombings. He still decided to stay in his job for economic reasons. In Sivakumar
v. Canada (Minister of Employment and Immigration), supra, at
paragraph 10, Mr. Justice Linden wrote:
. . .
an important factor to
consider is evidence that the individual protested against the crime or tried
to stop its commission or attempted to withdraw from the organization.
Mr. Justice Robertson noted this point in Moreno, supra, when he
stated [at page 324]:
[T]he closer a
person is involved in the decision-making process and the less he or she does
to thwart the commission of inhumane acts, the more likely criminal
responsibility will attach.
Of course, as Mr. Justice MacGuigan
has written, “law does not function at the level of heroism” (Ramirez, supra,
at page 320). Thus, people cannot be required, in order to avoid a charge
of complicity by reason of association with the principal actors, to encounter
grave risk to life or personal security in order to extricate themselves from a
situation or organization. But neither
can they act as amoral robots.
[17]
It is true
that membership in itself will not suffice to establish complicity. However,
it is a relevant factor in determining personal and knowing participation. The
facts of this case speak for themselves. The applicant belonged to an
organization engaged in crimes against humanity, for a very lengthy period.
Taken together with the factors noted by Mr. Jobin in his decision, these
circumstances lead to the conclusion that the applicant is captured by the
Convention exclusion clauses, incorporated in the IRPA pursuant to section 98
IRPA and subsection 2(1) IRPA.
[18]
For these
reasons, the Board’s decision on the question of exclusion within the meaning
of the Convention cannot be varied, irrespective of the applicable standard of
review. This was a correct decision.
CONCLUSION
[20]
The
application for judicial review is dismissed and no question will be certified.
ORDER
THE COURT ORDERS THAT:
- The application for judicial review
be dismissed and no question be certified.
“Simon
Noël”
Certified
true translation
François
Brunet, LLB, BCL
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