Date:
20120911
Docket:
IMM-836-12
Citation:
2012 FC 1075
Ottawa, Ontario,
September 11, 2012
PRESENT: The
Honourable Madam Justice Mactavish
BETWEEN:
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EDGAR ALBERTO LOPEZ GAYTON
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
Edgar
Alberto Lopez Gayton was found to be inadmissible to Canada by the Immigration
Division of the Immigration and Refugee Board because of his involvement with
the Sinaloa Cartel in Mexico. The Board did not accept Mr. Lopez Gayton’s claim
that he had been acting under duress throughout the time that he worked for the
Cartel.
[2]
For
the reasons that follow, I have concluded that the Board erred in its
application of the law relating to the defence of duress. Consequently, Mr.
Lopez Gayton’s application for judicial review will be allowed.
Background
[3]
The
Board made no negative findings with respect to the credibility of Mr. Lopez
Gayton’s evidence and appears to have accepted his story in its entirety.
[4]
According
to Mr. Lopez Gayton, he began using drugs when he was 12 years old. He started
with marijuana, but by the time he was 15, he was using crystal methamphetamine
on a regular basis. By the time he turned 18, he had become addicted to the
drug.
[5]
Mr.
Lopez Gayton purchased his drugs at a house in his neighbourhood. The drug
dealers operating out of the house were affiliated with the Sinaloa Cartel.
When he was 18, the dealers began beating Mr. Lopez Gayton, and he was forcibly
recruited into working for the Cartel. Mr. Lopez Gayton’s life was threatened,
and he was told that his mother would be killed if she told anyone that her son
was working for the Cartel.
[6]
For
the next 18 months, the drug dealers picked Mr. Lopez Gayton up at his home
every morning, and he would spend his days packaging and selling drugs. On
occasion, Mr. Lopez Gayton would deliver protection money to the police on
behalf of members of the Cartel who wanted to ensure that it could continue to operate
unhindered by police investigations or criminal charges. Mr. Lopez Gayton was
beaten on a regular basis throughout this period, and he was told that if he
tried to leave the Cartel, he and his mother would both be killed.
[7]
Mr.
Lopez Gayton was not paid for his services, but the dealers would provide him
with drugs to feed his growing addiction.
[8]
Some
18 months after he started working for the Cartel, the house where he was
working was raided by the police and Mr. Lopez Gayton was taken into custody.
He decided to tell the police what was going on, in an effort to escape from
the Cartel.
[9]
After
he told them his story, the police took him to another house where members of
the Cartel were waiting for him. Mr. Lopez Gayton says that he was severely
beaten and was stabbed with a machete. The Cartel members threatened to kill
Mr. Lopez Gayton for talking to the police.
[10]
The
following day, Mr. Lopez Gayton overdosed on crystal meth. He is unsure what
happened next, but when he woke up, he was in a rehabilitation facility. He was
told that he had been thrown out of a truck outside the facility. Mr. Lopez
Gayton’s mother then moved him to a different rehabilitation facility, where he
stayed under an assumed name. He remained in rehab for three months, and was
ultimately able to overcome his addiction to drugs.
[11]
Mr.
Lopez Gayton and his mother then moved to another city, where they were able to
live and work safely for two years. Assuming that things would have cooled down
by then, they moved back to their home town, albeit to a different part of the
city. According to Mr. Lopez Gayton, shortly after he returned home he was
spotted by a member of the Cartel who began shooting at him. He left Mexico for Canada the next day.
The Board’s Decision
[12]
Mr.
Lopez Gayton was found to be inadmissible to Canada under paragraph 37(1)(a) of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27, which
provides that:
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37. (1) A
permanent resident or a foreign national is inadmissible on grounds of
organized criminality for
(a) being a member of an organization that
is believed on reasonable grounds to be or to have been engaged in activity
that is part of a pattern of criminal activity planned and organized by a
number of persons acting in concert in furtherance of the commission of an
offence punishable under an Act of Parliament by way of indictment, or in
furtherance of the commission of an offence outside Canada that, if committed
in Canada, would constitute such an offence, or engaging in activity that is
part of such a pattern; […]
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37. (1) Emportent
interdiction de territoire pour criminalité organisée les faits suivants :
a) être membre d’une
organisation dont il y a des motifs raisonnables de croire qu’elle se livre
ou s’est livrée à des activités faisant partie d’un plan d’activités
criminelles organisées par plusieurs personnes agissant de concert en vue de
la perpétration d’une infraction à une loi fédérale punissable par mise en
accusation ou de la perpétration, hors du Canada, d’une infraction qui,
commise au Canada, constituerait une telle infraction, ou se livrer à des
activités faisant partie d’un tel plan; […]
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[13]
Mr.
Lopez Gayton conceded before the Board that the Sinaloa Cartel was a criminal
organization within the meaning of paragraph 37(1)(a), and that he had personally
been engaged in criminal activities that were part of the Cartel’s criminal
enterprise. Thus the only issue for determination by the Board was whether Mr.
Lopez Gayton’s actions should be excused through the application of the common
law defence of duress.
[14]
The
Board found that the threats faced by Mr. Lopez Gayton were not “imminent”
within the meaning of the jurisprudence, and that he had a safe avenue of
escape from the clutches of the Cartel. Consequently, the Board found that the
defence of duress had not been made out, and Mr. Lopez Gayton was found to be
inadmissible to Canada for having engaged in criminal activities that supported
the Sinaloa Cartel.
Analysis
[15]
As
the Supreme Court of Canada observed in R. v. Hibbert, [1995] 2 S.C.R.
973, the defence of duress arises where an individual is subjected to an
external danger (such as threats of physical harm or death) and commits a
criminal act in order to avoid the threatened harm. While it does not negate
the physical or mental elements of the crime, the defence operates to relieve
an accused of the penal consequences of his or her conduct.
[16]
To
establish the defence of duress, three conditions must be met:
a. There must be a clear
and imminent danger;
b. The accused must not
have a reasonable legal alternative to breaking the law, such as a safe avenue
of escape; and
c. There must be
proportionality between harm inflicted and harm avoided.
[17]
The
Board properly identified the elements that had to be established by an
individual seeking to avail him or herself of the defence of duress. It
concluded that Mr. Lopez Gayton had failed to establish either the first or the
second element of the test. Given that the test is conjunctive, the Board
concluded that Mr. Lopez Gayton should be held responsible for his actions, and
that he was inadmissible to Canada as a result.
[18]
As
will be explained below, I am satisfied that the Board erred in its findings
with respect to both the first and the second elements of the test. As a result,
the application will be allowed.
The Immediacy of the Threat
[19]
The
Board accepted that Mr. Lopez Gayton had been forcibly recruited into the
Sinaloa Cartel and that the threat of death or physical peril was present when
the drug dealers first came to his home. However, it went on to find that the
threat ceased to be “imminent” over the next year and a half. The basis for the
Board’s conclusion was its finding that “[a]lthough the drug dealers continued
to beat Mr. Lopez Gayt[o]n, he was not held under their control 24 hours a day.
He went home to his mother’s house almost every night.”
[20]
Thus
it appears that the Board understood that for Mr. Lopez Gayton to establish the
first element of the test for duress, he had to show that he was under the
physical control of the Cartel at all times. This is clearly not what
the law requires.
[21]
As
the Supreme Court of Canada observed in R. v. Ruzic, [2001] 1 S.C.R.
687, the requirement that the threat to an accused be “imminent” must be
interpreted and applied in a flexible manner: at para. 86. It may include threats
of future harm to the accused or to a third party. What is required is “a close
temporal connection between the threat and the harm threatened”, such that the
person “loses the ability to act freely”: at paras. 96 and 65.
[22]
In
this case, the Board accepted that:
a. Mr. Lopez Gayton was
forcibly recruited into the Sinaloa Cartel;
b. He was suffering from
an addiction to drugs and the Cartel provided him with drugs on a daily basis
to feed his addiction;
c. He was often subjected
to beatings by members of the Cartel;
d. Threats to kill either
Mr. Lopez Gayton or his mother were made by Cartel members on a regular basis;
e. His one attempt to
seek help from the police led directly to his being severely beaten and
stabbed.
[23]
Moreover
the documentary evidence before the Board demonstrated that the Sinaloa Cartel
was a powerful organization that often used violence as a means to achieve its
goals.
[24]
Each
of these factors was potentially relevant to whether the threats faced by Mr.
Lopez Gayton continued to be “imminent” throughout the 18 months he spent
working for the Cartel. They were not, however, taken into account by the
Board as a result of its erroneous understanding that Mr. Lopez Gayton had to
be under the physical control of the Cartel on a constant and continual basis
throughout the time that he was affiliated with the organization for the “imminence”
requirement to be satisfied.
[25]
As
a consequence, I am satisfied that the Board erred in its assessment of the
first element of the test for duress. There is, moreover, a real concern that
the Board’s error with respect to the first element of the test tainted its
analysis of the second element of the test, given the statement by the Board
that “with respect to the facts of this case, the first and second elements of
duress blend together”: at para. 33.
[26]
Furthermore,
an examination of the Board’s analysis of whether Mr. Lopez Gayton had a safe
avenue of escape from the Cartel reveals additional errors in the Board’s
reasoning. These will be addressed next.
The Safe Avenue of Escape
[27]
The
Board found that Mr. Lopez Gayton had a legal way out of his predicament when
he was not in the presence of, or under the direct control of the drug dealers,
“when considered from both an objective and a subjective standpoint”: at para.
34.
[28]
The “safe
avenue of escape” element of the defence of duress requires that an accused
demonstrate that there was “no legal way out” of the situation that faced by the
accused. That is, an accused will not be able to rely on the common law defence
of duress if a safe avenue of escape was open to him or her. Where the accused
does in fact have a safe avenue of escape, the decision to commit the offence
in question becomes a voluntary one for which the accused is culpable: see Hibbert,
above, at para. 55.
[29]
In other
words, where an accused could have taken steps that would have enabled him or
her to avoid committing an offence, it can no longer be said that the
individual had no real choice in deciding whether or not to break the law: Hibbert,
above, at para. 62.
[30]
The question
of whether or not an accused had a safe avenue of escape is to be determined
according to an objective standard. When considering the perceptions of a
“reasonable person”, the Court must also take the personal circumstances and
frailties of the accused into account: Hibbert, above, at para. 62 and
67.
[31]
That is, an
“objective-subjective” standard must be applied. As the Supreme Court of Canada observed in Ruzic, above, at para. 61:
The test requires that the situation be examined
from the point of view of a reasonable person, but similarly situated. The
courts will take into consideration the particular circumstances where the
accused found himself and his ability to perceive a reasonable alternative to
committing a crime, with an awareness of his background and essential
characteristics.
[32]
In
this case, the Board did not address the impact of Mr. Lopez Gayton’s
acknowledged drug addiction on his ability to make a rational assessment as to
his potential avenues of escape.
[33]
Mr.
Lopez Gayton argued before the Board that his serious drug addiction impaired
his ability to assess whether he had a safe way out of the control of the Cartel.
While the Board did not dispute the fact that Mr. Lopez Gayton was suffering
from a drug addiction throughout the time that he was associated with the Cartel,
it nevertheless summarily dismissed his argument that he did not have a safe avenue of escape when viewed
from his subjective perspective. The sum total of the Board’s reasoning on this
issue was that Mr. Lopez Gayton had “not provided any evidence that he was
forced to take the drugs” and that he was “voluntarily using the drugs that
were given to him”: at para. 35.
[34]
To the extent
that the Board was faulting Mr. Lopez Gayton for having started to use drugs,
it was essentially blaming him for all that subsequently befell him. As was
argued by Mr. Lopez Gayton’s counsel, this would be akin to dismissing claims
of spousal abuse on the basis that a battered woman had voluntarily married her
abuser.
[35]
If the Board
was instead blaming Mr. Lopez Gayton for using the drugs that were provided to
him by the Cartel, then it seems to have totally disregarded the evidence
regarding Mr. Lopez Gayton’s drug addiction. Indeed, it is the essence of an
addiction that the individual loses the ability to voluntarily control his or
her consumption of the substance in question.
[36]
Either way,
the Board’s analysis of the subjective component of the “safe avenue of escape”
element of the defence of duress was unreasonable.
Conclusion
[37]
For these
reasons, the application for judicial review is allowed. I agree with the
parties that the case does not raise a question for certification.
JUDGMENT
THIS
COURT ORDERS AND ADJUDES that:
1. This
application for judicial review is allowed, and the matter is remitted to a
differently constituted panel for re-determination.
“Anne Mactavish”
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