Date: 20060309
Docket: IMM-2392-05
Citation: 2006 FC 304
Ottawa, Ontario, March 9, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
CARLOMAGNO REYNA LOAYSA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
THE APPLICATION
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board (Board) dated March 5, 2005 (Decision) excluding the Applicant from protection as a refugee under section 98 of the Immigration and Refugee Protection Act (Act). In the same Decision, the Applicant's wife, their two children, and his wife's godmother were found to be Convention refugees. The application for judicial review is limited to that aspect of the Decision that excludes the Applicant from refugee protection.
BACKGROUND
[2] The Applicant, Mr. Loayza, was born in Peru in 1953. From 1978 to 2001 he worked as a police officer in Lima and other communities in Peru. According to the work history he filed, Mr. Loayza began his career as a sub-commissioner and took on a number of other roles, including 2nd commissioner, captain, major, and commandant, with the Peruvian National Police (PNP). In January and August of 1992, Mr. Loayza held the position of "major" with Dincote, the anti-terrorism division of the PNP. Mr. Loayza describes his role by the end of his career as "Operative Chief of Control and Prevention of Crimes (Terrorism, Drug Traffic, Crimes, Dispossession and Prostitution)" and "Personnel Control."
[3] In December, 2001, Mr. Loayza and his wife received a number of threatening phone calls at the police station and at their home. When they reported the threats to the police, lack of resources prevented the police from offering assistance. Mr. Loayza retired from the PNP in January 2002, but over the course of 2002 the threatening calls continued, and his wife was attacked on one occasion. The claimants left Peru on October 12, 2002, and arrived in Miami, Florida the same day. They entered Canada by car on October 17, 2002 and immediately claimed refugee protection on the grounds of a well-founded fear of persecution based on their membership in a particular social group (family) and political opinion.
[4] The hearing for these claims took nine days between July 9, 2003 and October 6, 2004.
DECISION UNDER REVIEW
[5] In the Decision dated March 5, 2005, the Board found that Mr. Loayza came within the exclusion specified in section 98 of the Act because he had been complicit in activities within the ambit of Article 1 F(a) of the United Nations Convention relating to the Status of Refugees (Convention). As such, the Board rejected his claim for refugee status. The Board's Decision was based on several findings.
A. Activities of the Peruvian Police
[6] Based on reports from Human Rights Watch, the IRB Research Directorate, and the U.S. Department of State, the Board found that the PNP used torture in a widespread and systematic manner as an interrogation strategy with persons suspected of crime and in the context of counter-insurgency operations, and that the abuses were committed at the time the Applicant was a member of the PNP. Also based on documentary evidence, the Board found that Dincote and other police counter-subversion operations were responsible for the torture of a large number of people in the 1980s and 1990s.
[7] The parties agreed, and the Board held, that the PNP is not an organization with "limited brutal purpose" and that mere membership is insufficient to establish a shared common purpose.
B. Mr. Loayza's Complicity
[8] The Board accepted the Applicant's testimony that he never used torture himself, or witnessed acts of torture in his professional life. But the Board found that the Applicant voluntarily joined the PNP. The Board also found that he had been involved in the PNP for more than 30 years, and had occupied a leadership or command position from 1978 onward. The Board noted that Peru has been dealing with serious terrorist activity since the 1980s, an example of which is the "Shining Path" group. Based on his testimony, the Board held that the Applicant knew: (i) that there were abuses and corruption within the PNP, although he did not have direct knowledge of the people and circumstances involved; (ii) that torture was routinely used between 1990 and 2000, during the presidency of President Fujimori; (iii) that Dincote had engaged in "excesses" before and after his time at that division; and (iv) that Dincote routinely used torture.
[9] The Board found there were several contradictions and inconsistencies between the Applicant's testimony and his PIF, including contradictory evidence with regard to whether or not he was heading police operations in Region VII and his failure to indicate on his PIF that he had arrested people in 2001.
[10] Although the Applicant stated at the hearing that he was not privy to information about abuses either in his professional capacity or through the media, and that his work for Dincote was of an administrative nature (dealing with paperwork) the Board found that this was not plausible and that the Applicant had knowledge of the crimes committed by the PNP and Dincote. The Board said "I find that the documentary evidence from objective sources referred to by the Minister illustrate clearly that it is not plausible for the principal claimant not to have known about the crimes and abuses perpetrated by the security forces, including the PNP and Dincote, having regard to his rank and length of years in service." (Board Decision, p. 46) The Board further held that, based on his testimony and PIF, the Applicant had arrested and turned suspects over to Dincote, knowing that Dincote used torture. The Board rejected the Applicant's argument that he had not reported abuses because he did not have the evidence to prove that specific torture had taken place, and held that the Applicant did not report abuses or dissociate himself from the organization when he could or should have.
[11] The Board concluded that the Minister had met the burden of proof to establish that there are serious reasons for considering that the Applicant falls within the parameters of Article 1(F)(a) of the Convention, and thus excluded him from consideration as a refugee claimant under section 98 of the Act.
RELEVANT LEGISLATION
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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.
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SCHEDULE
(Subsection 2(1))
| SECTIONS E AND F OF ARTICLE 1 OF THE UNITED NATIONS CONVENTION RELATING TO THE STATUS OF REFUGEES
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F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(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;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.
| ARTICLE 1 OF THE CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN AND DEGRADING TREATMENT OR PUNISHMENT
1. For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.
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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.
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ANNEXE
(paragraphe 2(1))
| SECTIONS E ET F DE L'ARTICLE PREMIER DE LA CONVENTION DES NATIONS UNIES RELATIVE AU STATUT DES RÉFUGIÉS
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F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser :
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;
b) Qu'elles ont commis un crime grave de droit commun en dehors du pays d'accueil avant d'y être admises comme réfugiés;
c) Qu'elles se sont rendues coupables d'agissements contraires aux buts et aux principes des Nations Unies.
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| ARTICLE PREMIER DE LA CONVENTION CONTRE LA TORTURE ET AUTRES PEINES OU TRAITEMENTS CRUELS, INHUMAINS OU DÉGRADANTS
1. Aux fins de la présente Convention, le terme « torture » désigne tout acte par lequel une douleur ou des souffrances aiguës, physiques ou mentales, sont intentionnellement infligées à une personne aux fins notamment d'obtenir d'elle ou d'une tierce personne des renseignements ou des aveux, de la punir d'un acte qu'elle ou une tierce personne a commis ou est soupçonnée d'avoir commis, de l'intimider ou de faire pression sur elle ou d'intimider ou de faire pression sur une tierce personne, ou pour tout autre motif fondé sur une forme de discrimination quelle qu'elle soit, lorsqu'une telle douleur ou de telles souffrances sont infligées par un agent de la fonction publique ou toute autre personne agissant à titre officiel ou à son instigation ou avec son consentement exprès ou tacite. Ce terme ne s'étend pas à la douleur ou aux souffrances résultant de sanctions légitimes inhérentes à ces sanctions ou occasionnées par elles.
2. Cet article est sans préjudice de tout instrument international ou de toute loi nationale qui contient ou peut contenir des dispositions de portée plus large.
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ISSUES
[12] The Applicant raises the following issues:
(a) Did the Board err in law by including suspected terrorists of the Shining Path who participated in an armed conflicts as civilians for the purpose of the 1 F(a) of the Convention?
(b) Did the Board fail to address the issue of the defence of obedience to superior orders?
(c) Did the Board make erroneous findings of fact in relation to the career and status of the Applicant within the PNP, particularly his role and leadership position in the VII Region of Peru, thereby implying that he held a leadership position that he did not have?
(d) Did the Board err when it ascertained the Applicant's knowledge of abuses?
APPLICANT'S SUBMISSIONS
[13] The Applicant submits that, by transferring detainees to Dincote and executing arrest warrants, he was not complicit in the activities of Dincote, but rather he was carrying out lawful orders and following police procedure.
[14] The Applicant cites a section of the Board's Decision in which it held that he had been complicit by "arresting civilians and turning them over to Dincote." (Board Decision, p. 47) He submits that detainees who were identified as "subversives or terrorists" should not be considered civilians, and that the detainees he transferred were terrorists involved in armed services for a terrorist organization. He says that those individuals could themselves be accused of crimes against humanity, and that his actions towards such people should not be considered as actions towards civilians. Citing the case of Gonzalez v. Canada(Minister of Employment and Immigration), [1994] 3 F.C. 646, the Applicant argues that he was not engaged in war crimes or crimes against humanity because he was a "private soldier engaged in an action against an armed enemy." He submits that there is no evidence that he sent civilians to Dincote, and that, even if such evidence existed, it would not amount to a crime against humanity unless it was "intentional, deliberate, and unjustifiable." He contends that the Board made an error in law by categorizing the persons arrested, and for whom warrants were issued by the Applicant, as "civilians."
[15] Citing the criminal law case of R. v. Finta, [1994] 1 S.C.R. 701, the Applicant argues that, in transferring detainees, he was obeying the orders of his superiors. He claims that he raised this defence indirectly at the hearing before the Board by stating that without drastic consequences for himself he had no option but to release the detainees, and that the Board erred by failing to consider this defence.
[16] With regard to the findings of the Board based on the Applicant's rank and status, the Applicant submits that the Board also erred by finding that he "had a command or leadership responsibility from 1978 onward, and as many as 70 police officers and sub-officers reported to him at various postings." (Board Decision, p. 17) The Applicant contends that this finding disregards the testimony he gave indicating that it was only after 1988 that he had that level of responsibility. He reproduces a portion of the transcript in which he states that there were "approximately 20" commandants in his region, and also argues in his submissions that "the conclusion that there were only 20 Police Commanders in [that region] is not supported on the evidence."
[17] The Applicant further submits that the Board's finding that he was in control, and made decisions (Board Decision, p. 44) was not supported by the evidence. He makes the same argument with regard to the Board's conclusion that he was a high ranking officer in the PNP, and that he had knowledge that Dincote routinely abused detainees.
[18] With regard to the discrepancies between his testimony and his PIF, the Applicant states that the Board's finding that there were no amendments made to his PIF (Board Decision, p. 44), is incorrect. The Applicant argues that he filed detailed descriptions of his positions and gave evidence for a number of days with regard to the nature of his positions.
[19] Based on the above arguments, the Applicant requests this Court to grant his application for judicial review and remit the matter to a differently constituted Board.
RESPONDENT'S SUBMISSIONS
Standard of Review and Standard of Proof
[20] Citing Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (QL) and Singh v. Canada (Minister of Citizenship and Immigration) 2003 FC 1146, [2003] F.C.J. No. 1451 (QL), the Respondent submits that the appropriate standard of review for credibility findings of the Board is patent unreasonableness, and that the Board is entitled to make credibility findings, including a determination that a claim is not plausible. The Respondent argues that many of the issues raised by the Applicant relate to findings of fact and credibility, and as such should be reviewed on the standard of patent unreasonableness.
[21] The Respondent submits that the standard of proof contained in Article 1(F)(a) of the Convention is whether there are "serious reasons for considering" that a claimant has committed crimes against humanity, and that this standard has been interpreted by the Federal Court of Appeal as being more than mere suspicion, but less than the balance of probabilities (Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 at para. 5).
[22] The Respondent says that complicity in crimes against humanity rests on the existence of a "shared common purpose and knowledge that the parties may have of it," and that an individual who is part of such a group must withdraw or protest at the first reasonable opportunity (Valère v. Canada (Minister of Citizenship and Immigration) 2005 FC 524, [2005] F.C.J. No. 643 (QL).
[23] The Respondent says that the finding of complicity should be reviewed on the standard of reasonableness, as it is a question of mixed fact and law, and that the Board's Decision in this regard was reasonable in light of the evidence that the Applicant was a voluntary, long-time, member of the PNP who was aware of corruption and the use of torture by the PNP during the governance of President Fujimori, and that he did not dissociate himself from the PNP.
[24] The Respondent submits that the finding of exclusion was open to the Board given the evidence in its totality, that the reasons given were clear, precise, and intelligible, and that the Applicant has failed to demonstrate that the findings were unreasonable or that the Board committed any error of law or breached the requirements of natural justice.
Complicity
[25] The Respondent's position is that the determination of whether someone has been complicit in crimes against humanity is essentially a factual question that needs to be examined on a case by case basis. It is well established that the individual in question need not be the actual perpetrator of the crimes against humanity in order to trigger the application of Article 1(F)(a). (See Valère at para. 20.)
[26] An individual is complicit in the commission of crimes against humanity where he or she has knowingly and voluntarily associated with a group known to have committed crimes against humanity. Complicity rests on the existence of a shared common purpose and the knowledge that all of the parties may have of it. As stated by this Court in Penate v. Canada(Minister of Employment and Immigration), [1994] 2 F.C. 79 at para. 6:
As I understand the jurisprudence, it is that a person who is a member of the persecuting group and who has knowledge that activities are being committed by the group and who neither takes steps to prevent them from occurring (if he has the power to do so) nor disengages himself from the group at the earliest opportunity (consistent with safety for himself) but lends his active support to the group will be considered to be an accomplice. A shared common purpose will be considered to exist.
[27] It is well-established that an individual must dissociate from the group on the first reasonable occasion. Accordingly, an important factor in the complicity analysis is whether the individual attempted to stop the crimes from being carried out, protested against their commission, or attempted to withdraw from the organization. (See Valère, at para. 24 and Sivakumar v. Canada(Minister of Employment and Immigration), [1994]1 F.C. 433 at para. 10.)
[28] In the present case, the Respondent says that the Applicant had a lengthy and voluntary association with the PNP for more than 30 years. He voluntarily entered the Police Academy for sub-officers in 1971, and the Academy for officers in 1974.
[29] During his career with the PNP, the Applicant received a number of promotions and rose through the ranks. He started working as a sub-Commissioner Major in 1978. He was then promoted to Second Commissioner in 1981, Captain in 1985, Major in 1991 and Police Commander in January 1999. The Applicant retired from the PNP on January 1, 2002. He then worked as a security consultant for a private company.
[30] When promoted to Commander in 1999, the Applicant worked in the VII Region of Peru. In this position, the Applicant was head of police operations and was involved in searching for and conducting raids on suspected terrorists. As stated by the Board at page 17 of its Decision:
There are only 20 Police Commanders in the VII Region and only two Generals and 15 Colonels had a higher rank than the principal applicant out of a total force of 25-30,000 officers and sub-officers in the VII Region. The principal claimant had a command or leadership responsibility from 1978 onward, and as many as 70 police officers and sub-officers reported to him at various postings.
[31] The Respondent emphasizes that an important factor in the Board's Decision was the Applicant's involvement with and knowledge of Dincote, a specialized unit of the PNP dealing with terrorism. For nine months, the Applicant worked at Dincote Headquarters where torture and mistreatment of prisoners routinely took place. He admitted that, by 1994, he had heard that torture of prisoners was taking place in the basement cells in the Dincote building in which he had worked. As part of his police responsibilities, the Applicant would turn over the prisoners that he had arrested to the relevant police division, including the Dincote.
[32] Based on the documentary evidence, the Respondent says that the Board had ample evidence upon which to find that there were serious reasons to believe that the PNP regularly engaged in serious, systematic and widespread human rights violations, including the use of torture on civilians. In particular, the documentary evidence confirmed as follows:
(a) Torture was routinely used by the PNP in the interrogation of criminals/suspects for both criminal and security cases;
(b) A 1997 Human Rights Watch report stated that the use of torture in Perupredates the outbreak of guerrilla violence and is not restricted purely to counter insurgence. The report stated that the "Police throughout Peru commonly abused suspects and used torture ...";
(c) An IRB Research Directorate Report (2000) stated that "torture typically occurs on police premises while suspects are being held and interrogated";
(d) The 1994 annual report from the U.S. D.O.S. revealed that government security forces "routinely" tortured suspected subversives at police detention centres.
[33] Based on the documentary evidence, the Board concluded as follows at page 5 of its Decision:
I noted that the abuses reported above were committed during the period the principal claimant was a member of the Peruvian Police. I conclude from these reports that the Peruvian Police committed human rights abuses, including murder and torture on both a widespread and systematic basis during the principal's claimant's service in the police.
[34] The question of complicity by membership in a group is a question of mixed fact and law. As such, the Respondent says the Board's finding on this issue should be reviewed against the standard of reasonableness. (See Valère at para. 12 and Rocha v. Canada(Minister of Citizenship and Immigration) 2005 FC 304, [2005] F.C.J. No. 385 (T.D.) (QL) at para. 43.)
[35] The Respondent's view is that the Board's finding of complicity was reasonable in light of the evidence regarding the Applicant's involvement with the PNP. In particular, that evidence revealed the following:
(a) The Applicant made a deliberate choice of career, in that he voluntarily entered the Police Academy in 1971. The Applicant was in no way forced or coerced to join the police force;
(b) The Applicant was a long-time member of the PNP, in that he was associated with it for more than 30 years;
(c) The Applicant admitted that torture was routinely used at least during the period of time under President Fujimori (July 1990 to November 2000), and that the leadership of the PNP was corrupt;
(d) Despite his knowledge of the serious human rights violations being committed by the PNP, the Applicant continued his voluntary association with the organization. The Applicant never disassociated himself from the organization.
[36] The Respondent points out that the Applicant's knowledge of the activities of the Dincote was also an important factor for the Board's Decision. The Applicant testified that he was aware the Dincote engaged in excesses, both before he joined Dincote in January 1992 and after he left Dincote in August 1992. The Applicant also admitted that it was known that Dincote routinely used torture. The Dincote "holding cells" were located in the basement of the building in which the Applicant had worked, and he had visited the basement on one occasion to look around. The Board made the following important finding at page 46 of its Decision:
I find that the principal claimant is complicit in the torture at Dincote either because of the effective support he lent to the unit when he worked there in 1992, or because he turned suspects over to Dincote to be dealt with as they saw fit, knowing of their routine use of torture.
[37] The rank of the individual within the organization at issue is another important consideration in the complicity analysis. The closer he or she is to the decision-making process and the less done to thwart the commission of inhumane acts, the more likely that criminal responsibility will attach. As stated in Sivakumar at para. 10:
Thus, remaining in an organization in a leadership position with the knowledge that the organization was responsible for crimes against humanity may constitute complicity.
[38] In the present case, the Respondent says that the Applicant's rank, responsibilities and leadership position with the PNP all support the Board's finding of complicity. In fact, as pointed out by the Board, the Applicant received several promotions throughout his career with the PNP:
I agree with the Minister's submission that the principal claimant demonstrated that he embraced the organization (the PNP, PIP, Dincote and all of the security forces) and its goals by arresting civilians and turning them over to Dincote, by not taking any actions to investigate reports of abuses, by not reporting his superiors who made improper requests from him and by his commitment to stay in the PNP to advance his own career with the police.
Failure to Disassociate
[39] The Respondent also says that the evidence was clear that the Applicant failed to disassociate himself from the PNP. There was no evidence before the Board that the Applicant had any safety concerns that prevented him from leaving the police force. Rather, the Applicant remained as an officer for more than 30 years, despite his knowledge of PNP activities. There was also no evidence that the Applicant attempted in any way to stop or protest against the use of torture on prisoners.
[40] In fact, the Applicant's evidence was that he wanted to remain with the PNP for as long as possible, and hoped to obtain the rank of General. The Applicant had no thoughts of retirement until he and his wife began to receive threatening telephone calls in December 2001. The Respondent says there is no reviewable error with the Board's conclusions in this regard:
I find that he failed to report abuses or dissociate himself from the abuses in the VII Region when he could or should have. I do not accept his evidence as credible that he did not complain or denounce them because he did not have the evidence to prove specific torture had taken place.
I agree with the submission of the Minister - "that is a copout." The principal claimant preferred to maintain his position in the PNP, hoping to raise to the rank of General rather than listen to his voice of conscience.
Credibility
[41] The Respondent points out that the Board's credibility findings were equally sound. The Board found that certain parts of the Applicant's testimony were not credible. In particular, the Board found that, based on the documentary evidence and the Applicant's rank and length of service, it was not plausible for the Applicant not to have known about the crimes and abuses perpetrated by the security forces, including the PNP and Dincote. The Board's conclusion at page 46 of its Decision is as follows:
The documentary evidence confirms that police torture and other inhuman acts were widespread in Lima as well as many other parts of the country. One would have to be blind, deaf or comatose not to have knowledge about such atrocities. It is beyond my comprehension, under all of the circumstances, how the principal claimant would not now (sic) about the abuses at the extent of such abuse.
Conclusions
[42] Based on the above, the Respondent says the Board did not commit any reviewable errors in finding that the Applicant should be excluded under Article 1 F(a). The Applicant was complicit in crimes against humanity by sending suspects to face predictable torture and other human rights abuses. In any event, the Applicant's arguments regarding complicity essentially amounts to an attack on the Board's findings of fact, and the manner in which it weighed the evidence. The Applicant, however, has failed to establish that any of the Board's findings were patently unreasonable.
[43] The Applicant argues that in handing over prisoners to Dincote, he was following "superior orders" to turn over the detained individuals and so had not choice.
[44] In response, the Respondent says that the Applicant cannot avoid responsibility for what happened to the detainees that he transferred to the Dincote by simply saying that he was following orders. The Board specifically found that the Applicant was aware of the reputation of the Dincote, and he knew how the prisoners he turned over were treated. The evidence was clear that the Applicant assisted the Dincote by arresting suspects and turning them over. Given the Applicant's rank, lengthy service, and knowledge of the Dincote, the Respondent says it was entirely appropriate for the Board to conclude that, in the circumstances of this case, the defence of "superior orders" is not applicable.
ANALYSIS
Basis of Decision - Crimes Against Humanity
[45] The Applicant says that the entire reasoning of the Board "revolves around the connection that the appellant [Applicant] had with the specialized unit dealing with terrorism, the Dincote (Direccion National Contra el Terrorismo)."
[46] The Applicant was a member of the PNP, which is the general police force of Peru. The Dincote was one of eight specialized units created after 1988. During his career, the Applicant was assigned to work for a period of eight months at the headquarters of Dincote in 1992.
[47] The Applicant takes the position that he transferred detainees to the Dincote and executed warrants of arrest. One of the reasons he says this is because he feels that transferring detainees who were identified as subversives or terrorists means that he was not transferring civilians. He says the detainees were members of a criminal terrorist organization and they had a clear military objective to change the government of Peru.
[48] The Applicant says this means the detainees were not civilians as that term is defined in the jurisprudence, so that he cannot be found to be complicit in crimes against humanity. He alleges that there was no evidence before the Board that he had committed crimes against humanity, because that means crimes against civilians. He says that all the evidence dealt with his arrest of terrorists and transfers of detainees to the Dincote. Those terrorists should not be regarded as civilians.
[49] The Applicant concludes that the Board "erroneously equated the terrorists arrested in two operations of the appellant [the Applicant] and those wanted pursuant to arrest warrants as civilians." He submits this "is an error in law."
[50] I do not believe that the Applicant's attempt to interpret the Decision in this particular way (in order to be able to take advantage of a possible distinction between civilians and non-civilians in the context of crimes against humanity) can be reconciled with the Decision as a whole or the evidence upon which the Board relied.
[51] The evidence clearly established widespread torture, crimes and abuses perpetrated by the security forces generally in Peru during the relevant period, including the PNP and Dincote.
[52] The Applicant was complicit in crimes against humanity either because of the effective support he gave to Dincote when he worked there in 1992, or because he turned suspects over to be dealt with by Dincote as saw fit, knowing of the routine use of torture.
[53] Also, the Applicant "failed to report abuses or dissociate himself from the abuses in the VII Region when he could or should have." He "preferred to maintain his position in the PNP, hoping to rise to the rank of General rather than listen to his voice of conscience."
[54] The Board reaches the following conclusion about the extent of the Applicant's complicity:
I agree with the Minister's submission that the principal claimant demonstrated that he embraced the organization (the PNP, PIP, Dincote and all the security forces) and its goals by arresting civilians and turning them over to Dincote, by not taking actions to investigate reports of abuses, by not reporting his superiors who made improper requests from him and by his commitment to stay in the PNP to advance his own career with the police.
[55] The Board clearly relates its finding on the Applicant's complicity in crimes against humanity to a much wider picture than Dincote. And the Board clearly finds that, even with Dincote, the Applicant was "arresting civilians and turning them over ..." There is nothing in the evidence to suggest that this conclusion was wrong. The Applicant says he was turning terrorists over to Dincote. But the Board says they were not terrorists; they were "suspects" and they were "civilians" and they were dealt with as Dincote "saw fit." As the Respondent points out, there was ample evidence before the Board to support this finding.
[56] So even if the jurisprudence did make a distinction between "civilians" and others in the context of crimes against humanity (and I do not address that point because it is not necessary on the facts in this case), the Decision clearly encompasses civilians and suspects and it is clearly about complicity in abuses in "the organization" that go wider than Dincote. There is nothing that the Applicant has brought before the Court to suggest that the Board was wrong in these conclusions on any standard of review.
Rank
[57] Both sides agree that the way the Board handled the issue of the Applicant's rank is crucial for the Decision because it is connected to the concept of complicity in several ways.
[58] In his PIF narrative the Applicant said that he was promoted from Major to Commander in 1999, that he worked in the VII Region, and that he was involved in raids and searching for suspected terrorists.
[59] At the hearing before the Board, the Applicant took a somewhat different tack and said that he was not the head of operations but was, in fact, nothing more than a paper-pusher in the operations section.
[60] As it was entitled to do, the Board took issue with this change of position. The Applicant now complains that the Board merely accepted without question the assessment of the Applicant's rank put forward by the Minister's delegate. But the Decision makes it clear that this is clearly not the case. What troubled the Board was the discrepancy between the PIF narrative and the Applicant's later attempts to distance himself from any real involvement in operations:
The principal claimant, who is a practicing (sic) Catholic and God-fearing person, made a declaration at the time he signed his PIF on November 28, 2002 that the information provided therein was complete, true and correct, and that this declaration had the same force and effect as if made under oath.
He was shown his PIF before the hearing began. He made an oath at that time to tell the truth and confirm once again that the information in his PIF was true and correct to the best of his knowledge and belief. No attempts were made before the hearing to amend the contents of the PIF or its narrative.
I find it somewhat peculiar that when he was questioned about the context of his PIF, and in particular paragraph 8 of his narrative he states (sic) "I was heading Police Operations when we made searches and raided suspected terrorist bases," that he would then tell me that sentence was a mistake and that he was not the Head of Police Operations in Region VII.
Being the head (Commander) in Region VII carried with it may implications. He was in control. He made decisions.
The Board goes on to say that it does not accept the Applicant's response as credible on the issue of his rank: "I believe that he wanted to portray himself as just another low ranking police officer and that his responsibilities related mainly to office administration and similar paperwork":
I find that he, with full knowledge, failed to disclose his full involvement in the police force of Region VII for the purpose of hiding his true activities within the police force operation in Region VII.
[61] These are findings of fact and credibility. The Board reaches its conclusions based upon discrepancies in the evidence given by the Applicant under oath. The Applicant now wants the Court to look at a revisionist account of the Applicant's rank and role in the police force. But no acceptable ground is advanced to justify any interference by the Court in the Board's findings on this issue.
Knowledge
[62] The knowledge of crimes against humanity that can be imputed to the Applicant is connected to the Board's view of his rank. The Applicant now argues that "the error in his leadership position has led the Board member to conclude that it was impossible that the appellant [Applicant] would not be aware of the abuses."
[63] The Applicant also argues now that he was not aware it was part of Dincote's practice to torture detainees.
[64] The Applicant is once again asking the Court to interfere with findings of fact, in this case based upon what he said he knew happened at Dincote, as well as inferences drawn by the Board from the Applicant's position as a leader in Region VII.
[65] I have already said that the Court has no grounds upon which to interfere with the Board's findings concerning his rank, and the Board provides more than adequate reasons, based upon its evidentiary findings, to support its conclusions concerning the Applicant's knowledge and the complicity in crimes against humanity that comes with that knowledge. The Court sees no reviewable error on this point and no reason to interfere with the Decision on this basis.
Obedience to SuperiorOrders
[66] Finally, the Applicant says that the Board failed to consider the defence of obedience to superior orders. He says that it was his duty to transfer detainees accused of terrorism to the specialized unit, and that it was his duty to transfer detainees to the appropriate unit if a warrant of arrest had been issued against them.
[67] He submits that the Board "has failed to consider this defence despite the clear testimony of the claimant on that issue."
[68] The Applicant only raised this defence indirectly at the hearing "by testifying he could no longer detain people on grounds of terrorism nor did he have any option but to transfer the individuals to the Dincote."
[69] So the defence was only raised by implication. Nevertheless, the Board dealt with it as part of its general discussion on the Applicant's commitment to his promotion in the PNP, and his failure to disassociate himself from an organization that he knew was involved in crimes against humanity: "I find that he failed to report abuses or dissociate himself from the abuses in the VII Region when he could or should have." The Board accepts the Minister's submissions on this issue:
The Minister submits that the reasoning in Penate can be applied to the principal claimant. As a result of the extensive involvement of the police in abuses, he was either knowledgeable about or willfully blinded by them. By arresting civilians and turning them over to Dincote, by not taking any actions to investigate reports of abuse, by not reporting superiors who made improper requests to him, and by commitment to advancement of his career with the police, the principal claimant demonstrated that he embraced the organization and its goals. By lending his effective support to the PNP and its goads in this context, the principal claimant became an accomplice in the "darker aspects" of the police operations.
[70] In other words, the Applicant did not have to make a career in the PNP and seek high rank. There was no danger if he left. He embraced the organization and was promoted and did not retire until January 1, 2002 after threatening phone calls were made against him and his family. He had no thoughts of retirement until he and his wife began to receive threatening telephone calls. This is why the Board says that it agrees "with the Minister's submission that the principal claimant embraced the organization (the PNP, PIP, Dincote and all the security forces) and its goals ... ."
[71] There is nothing to suggest that the Applicant could not have disengaged himself from this embrace. He wanted a career in an organization whose goals and methods he knew about. There was no compulsion to follow the orders of superiors.
[72] InRamirez, the Federal Court of Appeal elaborated on the defence of duress at p. 188, as follows:
Essentially, this exception recognizes the absence of intent where an individual is motivated to perpetrate the act in question only in order to avoid grave and imminent peril. The danger must be such that "a reasonable man would apprehend that he was in such imminent physical peril as to deprive him of freedom to choose the right and refrain from the wrong."
[73] In the present case, there is nothing to indicate that the Applicant was deprived of his freedom to choose; on the contrary, it is clear from the record that the Applicant remained voluntarily committed to participation in an organization whose practices fell within the ambit of Article 1(F) of the Convention.
ORDER
THIS COURT ORDERS that
1. The Application is dismissed.
2. There is no question for certification.
"James Russell"
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