Date: 20020306
Docket: IMM-518-01
Neutral Citation: 2002 FCT 256
OTTAWA, ONTARIO, THE 6TH DAY OF MARCH, 2002
PRESENT: THE HONOURABLE MADAM JUSTICE DANIÈLE TREMBLAY-LAMER
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
ANTONIO-NESLAND MUTO
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board (the panel) in which the panel concluded that the applicant is a refugee within the meaning of the United Nations Convention Relating to the Status of Refugees (the Convention) under subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the Act).
[2] The respondent, Antonio-Nesland Muto, is a citizen of Angola. He arrived in Canada on August 29, 1998 and claimed refugee status that same day.
[3] In 1992, the respondent had voluntarily joined the ranks of the Frente de Libertação do Enclave de Cabinda (FLEC). The FLEC is an armed movement fighting for the independence of the Cabinda enclave. In 1993, following the murder of his parents, the respondent decided to
become further involved and to put all of his resources, including his trucks, at the disposal of the FLEC.
[4] Between 1992 and June 1997, the respondent, while based in Zaire, now the Democratic Republic of the Congo (DRC), was attached to the FLEC's transportation department. He handled the transportation of goods and services and is said to have transported weapons for the army and the people.
[5] Board member Auguste Choquette concluded that the respondent did not fall within the ambit of the exclusion cause defined in paragraph 1F(a) of the Convention on the ground that there was no serious reason for considering that the claimant had committed a crime against peace, a war crime, or a crime against humanity.
[6] The definition of "Convention refugee" in subsection 2(1) of the Act excludes persons who fall within the ambit of sections E or F of Article 1 of the Convention.
[7] In the instant case the applicant [sic] was excluded [sic] pursuant to paragraph 1F(a) of the Convention. Paragraph 1F(a) reads as follows:
| 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; [...]
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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; [...]
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[8] The standard of proof comprised in the expression "serious reasons for considering" is one that is well below that required under either the criminal law ("beyond a reasonable doubt") or the civil law ("on a balance of probabilities or preponderance of evidence") (Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.)).
[9] As Mr. Justice Linden said in Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.), this standard requires something more than suspicion or conjecture, but something less than proof on a balance of probabilities. However, I note that in view of the serious consequences for the parties, exclusion clauses should be construed restrictively (Moreno, supra).
[10] In R. v. Finta, [1994] 1 S.C.R. 701, at p. 814, Cory J. defined the motion of crime against humanity as follows:
What distinguishes a crime against humanity from any other criminal offence under the Canadian Criminal Code is that the cruel and terrible actions which are essential elements of the offence were undertaken in pursuance of a policy of discrimination or persecution of an identifiable group or race.
[11] More recently, in Sumaida v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 66, at p. 73, the Court of Appeal reiterated the definition adopted by the Charter of the International Military Tribunal (Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis) [82 U.N.T.S. 279] which reads:
Crimes against humanity: namely, murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal whether or not in violation of the domestic law of the country where perpetrated.
[12] The applicant submits, first, that Board member Choquette failed to rule on the issue of whether the acts committed by the FLEC-R are comparable to crimes against humanity.
[13] In fact, Board member Choquette states that he has no reason to think that the claimant committed a crime against humanity, without ruling in relation to the FLEC-R. Yet this characterization is essential to determining subsequently the degree of participation or complicity of an individual in the actions committed by an organization. He erred in law, therefore, in not ruling on this issue. The standard of review for errors of law is correctness, and Board member Choquette's error is reviewable by this Court. Since it is decisive, it is unnecessary to decide whether Board member Choquette erred as to the definition and application of the concept of complicity.
[14] For these reasons, the application for judicial review is allowed. The matter is returned for redetermination by a newly constituted panel.
"Danièle Tremblay-Lamer"
JUDGE
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-518-01
STYLE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION
v.
ANTONIO-NESLAND MUTO
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: FEBRUARY 19, 2002
REASONS FOR ORDER AND ORDER OF MADAM JUSTICE TREMBLAY-LAMER
DATED: MARCH 6, 2002
APPEARANCES:
MICHEL PÉPIN FOR THE APPLICANT
DEBRA SHAPIRO FOR THE RESPONDENT
SOLICITORS OF RECORD:
MORRIS ROSENBERG FOR THE APPLICANT
DEPUTY ATTORNEY GENERAL OF CANADA
GREEN GLAZER NADLER DANINO FOR THE RESPONDENT
MONTRÉAL, QUEBEC
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