Date: 20090909
Docket: IMM-2795-08
Citation: 2009 FC 881
Ottawa, Ontario, September
9, 2009
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
MAURICIO
CERVERA BONILLA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act) for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board) dated May 28, 2008, wherein the Board found the applicant was
excluded from refugee protection by reason of Article 1F of the United Nations Convention
Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6
(the Convention).
[2]
The
applicant requested that the decision be set aside and the matter referred back
to a newly constituted panel of the Board for redetermination.
Background
[3]
Mauricio
Cervera Bonilla (the applicant), was born in 1966 and made a claim for
refugee protection in Canada with his wife and three children. They are
citizens of Colombia. The Board
found the applicant’s wife and children to be Convention refugees and therefore
in need of refugee protection. The applicant was excluded from refugee
protection, as stated above. During the determination of his refugee claim, the
Minister intervened seeking a determination that the applicant was a person to
be excluded by reason of Article 1F(a) of the Convention. The Minister
participated in the claim based on the allegation that the applicant was
complicit in crimes against humanity during his service with the Colombian
Army.
[4]
In
1984 when the applicant was 17 years old, he joined the Colombian army to study
civil engineering and gain financial stability. He resigned from the military
nine years later after marrying his present wife.
[5]
While
in the Colombian army, the applicant initially received two years of initial
training and attained the rank of 2nd Lieutenant.
[6]
In
January 1987, the applicant was assigned to the 3rd Battalion of engineers
within the 3rd Brigade in the areas of Palmira, Valle in
the Uraba region as the leader of a platoon. The applicant testified that
although this was not officially classified as a red zone, it was nevertheless
considered to be a red zone because of the presence of M 19, a Colombian
guerrilla movement. The applicant testified that his role included
administration, delivering instructions, coordinating the technical section,
keeping track of the weaponry of each soldier and performing guard service once
a week at military detention facilities. According to the applicant, his
platoon was not involved in military conflicts but in providing support to the
military by way of setting up bridges to support military operations.
[7]
In
December 1988, the applicant testified that he was transferred to the 13th
Brigade of the 4th Division, is a counter-guerrilla battalion. The role of this
battalion was to take part in military operations, maintain peace and military
control and make contact with subversive groups and to reduce their number. The
applicant was again commander of this platoon which had 32 infantry men.
Initially the applicant spent one and a half months training and then his
company was transferred back to the Uraba region in Antioquia. The applicant
testified that this region was under control of General Guzman and that guerrilla
groups, including the Fuerzas Armadas Revolucionaries de Colombia (FARC) had
been very active there. It was considered a red zone as many military and
police had been killed. The battalion was sent there to cover for troops that
had been mobilized elsewhere in the region. In the year before the applicant
arrived there, there is alleged to have been mass killings of banana workers
and peasant farmers by paramilitary groups backed by military officers.
[8]
In
the applicant’s Personal Information Form (PIF), the applicant states that in
March of 1989 he was involved in an operation for which he was later accused of
participating in the torture of a union member and a peasant at a farm house.
The applicant testified in the hearing that he was not involved in questioning
these individuals in the house, rather he was securing a perimeter outside of
the house where the men were being held before they were ultimately detained
elsewhere. The applicant claimed that he did not have a view of the house and
had no knowledge of what took place in the house during the time the
individuals were held. The applicant testified that his superior, Captain
Velandia, was suspicious that the men were hiding weapons. The two individuals
were apparently freed after several hours and the direct intervention by the
Attorney General.
[9]
The
applicant remained in Uraba for nine months following this incident during
which time the People’s Liberation Army (EPL) was active and attacking military
units. The applicant acted in Captain Velandia’s position for six months while the
captain recovered from combat injuries but claimed that his platoon never had
any direct contact with any subversive elements during that period.
[10]
Between
January and March 1990, the applicant testified that his platoon took part in
two search and seizures of narco-producer’s properties which resulted in
seizing millions of dollars and rifles, munitions and explosives.
[11]
The
applicant stated that his name and Captain Velandia’s names were given to the
Attorney General of Colombia as being in charge of the operation at the farm
house. However, the applicant states that he was unaware that he was being
accused of torturing the two detainees until May 1993 when he was contacted by
a military officer who informed him that his name had appeared in a book
published in Germany called, “Terrorisme de estado en Columbia” which indicated
that he had been involved in the torture of two people in the Uraba region.
[12]
The
applicant was reassigned away from this region in June 1990 when he was
appointed as a platoon commander of a cadet battalion. He taught courses to
cadets as well as fulfilled courses necessary to become captain himself.
[13]
In
1993, the applicant resigned from the army and became involved in security
management positions for private companies.
[14]
The
claim for refugee protection was based on the threats the applicant received
after working for two different companies: Cemex Colombia and Carulla
Vivera. During his work for Cemex Colombia he became aware that he
was on an assassination list of the FARC guerrillas. Carulla Vivera is a large
department store chain in Colombia. During his work as a
security manager, the applicant received repeated communications from FARC
guerrillas asking for payment of vacuna (war tax). In 2000, the negotiations
failed and the guerrillas obtained the name of the applicant who up until this
point had been negotiating anonymously. The FARC informed the applicant that he
was considered a military target. As a result, the applicant resigned his
position and fled with his family from Colombia.
Board’s Decision
[15]
The
Board issued a lengthy decision outlining the reasons for the exclusion of the
applicant and the inclusion of the applicant’s wife and children as Convention
refugees. The decision to exclude the applicant from refugee protection is the
only portion of the Board’s decision subject to review.
[16]
At
the outset, the Board set out the legal basis for exclusion. Section 98 of the
Act states that a person referred to in sections E or F of Article 1 of the
Convention is not a Convention refugee or person in need of protection. The
purpose of Article 1F is to exclude from the benefit of refugee protection, persons
who have breached international norms of acceptable behaviour. The burden of
proof rests on the Minister and this burden was defined in the Federal Court of
Appeal decision in Sivakumar v. Canada (Minister of Employment and Immigration),
[1994] 1 F.C. 433 as “serious reasons for considering” or “reasonable grounds
to believe” and as in Chiau v. Canada (Minister of
Citizenship and Immigration), [2001] 2 F.C. 297.
[17]
The
Board noted that crimes against humanity as defined in Article 7 of the Rome
Statute of the International Criminal Court (the Rome Statute) consists
of:
…imprisonment or other severe deprivation
of physical liberty in violation of fundamental rules of international law,
torture, other inhumane acts of a similar character internationally causing
great suffering, or serious injury to body or to mental or physical health.
[18]
The
Board cited Suresh v. Canada (Minister of Citizenship and Immigration),
[2002] 1 S.C.R. 3 at paragraph 43 as an authority for accepting the definition
of “torture” found in Article 1 of the Convention Against Torture. That
definition is also incorporated by reference in paragraph 97(1)(a) of the Act.
[19]
Within
this framework the Board sought to determine “whether the claimant is legally
responsible as an accomplice for the crimes against humanity perpetuated by the
Colombian military during his years of service with that organization”.
[20]
The
Board then addressed how claimants can be liable by way of their role as
accomplices in such crimes as crimes against humanity. This attachment of
responsibility is supported by Article 6 of the Charter of the International
Military Tribunal (UNHCR Handbook, Jan./88, Annex V, p. 88) (Article 6), and is
referred to in Article 1(F)(a) of the Convention.
[21]
Article
6 states:
Leaders, organisers, instigators and
accomplices participating in the formulation or execution of a common plan or
conspiracy to commit any of the foregoing crimes [including crimes against
humanity] are responsible for all acts performed by any persons in execution of
such plan.
[22]
The
jurisprudence followed by the Board in establishing the “principle of
complicity of an accomplice” includes Ramirez v. Canada (Minister of
Employment and Immigration), [1992] 2 F.C. 306, Harb v. Canada (Minister of
Citizenship and Immigration), 2003 FCA 39, 27 Imm. L.R. (3d) 1, Penate
v. Canada (Minister of
Employment and Immigration), [1994] 2 F.C. 79 and Sivakumar above.
[23]
The
following outlines the most important parts of the cases cited by the Board. In
Ramirez above, “personal and knowing participation” and a “shared common
purpose” were established as essential elements of complicity. In Harb
above, it was held that “complicity by association” does not require personal
commission of such crimes. As well, in Harb above, denial, even if
credible, is held to be not sufficient to negate the presence of a common
purpose of committing crimes against humanity. In other words, “[a] plaintiff’s
actions can be more revealing than his testimony and the circumstances may be
such that it can be inferred that a person shares objectives of those with whom
he is collaborating”. Penate above, defines shared common purpose as:
…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 occurring (if he has the power to do so) nor disengages himself
from the group at the earliest opportunity (consistent with the safety of
himself) but who lends his active support to the group will be considered an
accomplice…
[24]
In
conclusion, the Board stated that an analysis of the following six factors
enumerated by the Federal Court will determine whether or not an applicant is
complicit in crimes against humanity:
1. Nature
of the organization;
2. Method
of recruitment;
3. Position/rank
in organization;
4. Knowledge
of the organization’s atrocities;
5. Length
of time in the organization; and
6. Opportunity
to leave the organization.
[25]
At
this point in the decision, the facts in this case were examined by the Board
under each of the six factors stated above.
[26]
First,
the Board examined the nature of the organization in question: the Colombian
army. The most important elements brought forward included: evidence that it
acted with impunity in cases of human rights cases violations; the nature and
culture towards the treatment of civilians; evidence of torture committed by
the Colombian army; evidence of killings and enforced disappearances;
paramilitaries that committed crimes against humanity and were known to
collaborate with the Colombian army; and the tactics used by the Colombian army
during the campaign known as the “war on drugs”. The Board found documentary
evidence in regard to each element that suggests that the Colombian army
committed crimes against humanity including torture, killings, and
disappearances of Colombian civilians.
[27]
The
Board then turned to some more specific facets of the crimes against humanity
committed by the Colombian army where the applicant was alleged to be
complicit.
[28]
Substantial
documentary evidence supported the conclusion that paramilitary groups backed
by military officers carried out torture and mass killings in a systematic and
widespread manner in the region of Uraba at the time the applicant was assigned
to that region. The massacres “received nation wide and international attention
and ended in impunity for the members of the military”.
[29]
Second,
the Board examined the method of recruitment of the applicant and noted that
the applicant testified that he voluntarily joined the army in January of 1984
when he was 17 years old for the purposes of studying civil engineering and
gaining financial stability.
[30]
Third,
the Board examined the position and rank the applicant had in the army. The
Board concluded that the applicant was a middle-ranking officer and that he was
able to advance in his rank because he was “. . . a faithful employee, and
because he upheld and followed the Colombian army’s principles and mandates, .
. .”. The time that the applicant spent in the Uraba region as a commander of a
platoon and as an acting captain was noted by the Board as it related to the
connection that Sivakumar above at paragraph 10, makes between rank and
complicity:
In my view, the case for an individual’s
complicity in international crimes committed by his or her organization is
stronger if the individual member in question holds a position of importance
within the organization. Bearing in mind that each case must be decided on its
facts, the closer one is to being a leader rather than an ordinary member, the
more likely it is that an inference will be drawn that one knew of the crime
and shared an organization’s purpose in committing that crime. Thus, remaining
in an organization in a leadership position with the knowledge that the
organization was responsible for crimes against humanity may constitute
complicity.
[31]
Fourth,
the Board explored the extent of knowledge the applicant had of the Colombian
army’s atrocities. Taken as a whole, the Board did not find it plausible that
the applicant as a mid-ranking officer did not have knowledge of the atrocities
committed by the Colombian military in the nine years of his career. The Board
found that the applicant “turned a blind eye” to the atrocities to the extent
of being “wilful[ly] blind” and cited Sivakumar above, and Cortez v.
Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 470,
for the proposition that wilful blindness implies a culpability beyond
possessing knowledge of the atrocities.
[32]
The
Board rejected the applicant’s arguments that he was unaware of the atrocities
because of the regions where he served and the positions he held. The Board
also noted that one did not have to be in these positions to know of the atrocities
committed by the Colombian army. The President of Colombia, Cesar Gavira,
publicly spoke of the reputation of the army in this regard and torture was an
issue of public discussion in Colombia.
[33]
Also
related to the applicant’s knowledge of the army’s atrocities were the
allegations that he was involved directly in torture in the Uraba region in
March of 1989. As supported by the documentary evidence, the Board stated that
the applicant’s claim that he was not aware of an investigation of him related
to these events is consistent with a common pattern in Colombia. The Board also
stated that there is no persuasive evidence to suggest that a book written in Germany alleging the
applicant was involved in torture at the farmhouse was written to discredit him
and his captain. The Board rejected the applicant’s testimony that the union
fabricated the allegations in order to discredit the military. The Board stated
that this is implausible given that civilian and union members were commonly
perceived to be guerrilla sympathisers and the same union members had already
been attacked the year before by the military and many were massacred and had
much to fear in making any report of torture by the army.
[34]
According
to the Board, the applicant had to have known what was going on in the
farmhouse even if he was located outside when the men were held. The applicant
was the second highest ranking officer in that operation and led a platoon of
professional soldiers. In conclusion, the Board found that the applicant’s lack
of knowledge was not possible given that he had a lengthy career in the army,
that torture was so widely discussed in Colombian society and that he was
specifically accused in a book of torturing while he was stationed in the Uraba
region. The argument by the applicant that allegations against the army were
never proven goes more to the inadequacies of the Colombian justice system,
said the Board, than the suggestion that the atrocities did not take place.
[35]
Fifth,
the Board found that the long tenure of service in the Colombian army suggests
that the applicant “shared a common purpose” with that of the organization and
as such, had complicity in human rights abuses committed by the army during
that time.
[36]
Sixth,
under the heading “Opportunity to Leave”, the Board noted that the applicant
remained in the military for several years after his posting to the Uraba
region and only left the military when he was married and did not want to make
his wife a widow.
[37]
The
Board stated that although they do believe that the applicant was involved in
torture in March 1989, the applicant was complicit in crimes against humanity
notwithstanding that event. The Board believes that he had knowledge of the
massacres of farmers in the Uraba region the year before he was stationed there
but did not resign. Nor did he resign after the incident in March 1989 or the
confrontation with guerillas involving his superior, Captain Velandia. And, he
did not resign after he was moved to Bogota in June 1990, in the
aftermath of his time in the Uraba region. In fact, the Board states that his
reason for resigning from the army were related to his new marriage and the
inherent risks in serving in the military rather than any concern over the
atrocities in terms of serious human rights abuses being committed by the
Colombian army.
[38]
In
conclusion, the Board found that the applicant was a “knowing participant of
the crimes perpetuated on a widespread and systemic basis against civilians by
the Colombian army” as a middle ranking officer for about seven years of the
nine he served, including time as an acting captain.
[39]
The
Board found that the applicant had full knowledge of the widespread and
systemic crimes being perpetrated by the army against civilians and turned a
blind eye to the atrocities and as such, falls within the parameters of Article
1F(a) of the Convention. The serious reasons for considering that the applicant
was an accomplice in crimes against humanity during his service with the
Colombian army excludes him from refugee protection under paragraphs 97(1)(a)
and 97(1)(b), based on section 98 of the Act.
Applicant’s Written Submissions
[40]
The
standard of review, according to the applicant is reasonableness for the
Board’s findings of fact and correctness for the Board’s interpretation of what
constitutes complicity in crimes according to law.
[41]
The
applicant brings forward preliminary issues in the analysis of the facts by the
Board.
[42]
The
applicant suggests that the Board was in error when it did not identify any
particular unit or brigade within the Colombian army that would implicate the
applicant in crimes against humanity. Instead, the applicant submits the Board
uses documentary evidence that “speaks broadly” about the Colombian military,
army, security forces and various other agencies.
[43]
The
applicant suggests that the Board reverses the onus to the applicant by
expecting the applicant to prove that he was not involved in the March 1989
torture event.
[44]
The
applicant also suggests that the Board’s finding of knowledge of atrocities of
the Colombian army and the applicant’s wilful blindness is illogical given that
they did not question the applicant’s credibility.
[45]
The
applicant also submits that the Board was wrong to conclude that the applicant
was involved in an incident in January 1990 without any evidence to support
that conclusion. The applicant submits that he was seizing drugs during that period
and was not fighting guerrilla forces.
[46]
The
main role of the applicant was not in military conflicts but in doing work
unrelated to military operations such as setting up portable “baily” bridges
for the civilian population rather than the military as stated by the Board.
[47]
The
applicant takes issue with the characterization of the applicant’s rank in the
military as middle rank or higher in the last six years. He states that he held
the rank of 2nd Lieutenant, which was the second lowest listed rank of
officers.
[48]
The
applicant submits that the definitions of crime against humanity post-date the
applicant’s alleged involvement. The applicant also questions whether crimes
against humanity can be committed when Colombia was fighting
an internal conflict.
[49]
Next,
the applicant submits that the Minister failed to meet the burden of proof that
there were “serious reasons for considering” that the applicant had committed
crimes against humanity. While the applicant concurs with the Board that
“serious reasons for considering” and “reasonable grounds to believe” are
basically an equivalent standard set by the Federal Court in Sivakumar
above, the Supreme Court of Canada in Mugesera v. Canada (Minister of
Citizenship and Immigration), 2005 SCC 40, [2005] S.C.J. No. 3 at
paragraph 114 stated that reasonable grounds to believe requires “more than
mere suspicion, but less than the standard applicable in civil matters of proof
on the balance of probabilities” and that the evidence should create an
objective belief “based on compelling and credible information”.
[50]
The
applicant submits that the Board failed to refer to all of the elements that
elevate a crime to an international crime against humanity as enumerated as
follows in Mugesera above, at paragraph 119:
1. An enumerated proscribed act
was committed (this involves showing that the accused committed the criminal
act and had the requisite guilty state of mind for the underlying act);
2. The act was committed as part
of a widespread of systemic attack;
3. The attack was directed
against any civilian population or any identifiable group of persons; and
4. The person committing the
proscribed act knew of the attack and knew or took the risk that his or her
comprised a part of that attack.
[51]
The
applicant is also critical of the Board’s reasoning given the principles set
out in Ardila v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1518, [2005] F.C.J. No. 1876 at
paragraph 9. One of the principles highlighted is where consequences of
exclusion are potentially so “dire”, as in this instance, the expectation that
reasons are given in unmistakable terms with a thorough consideration of the facts
and issues is greater.
[52]
The
other principle from Ardila above, emphasized by the applicant is that
mere membership in an organization is insufficient for exclusion, except where
the organization has a limited brutal purpose. The Board must focus on the
specific acts of the person and determine whether the person and the
organization shared a common purpose.
[53]
Since
the Board did not properly identify the part of the organization in which he
was complicit, the applicant takes issue with the Board using the words “army”
and “military” interchangeably and that security forces should be lumped in
with these groups. He states that this does not provide the specificity
required as in Corrales Murcia v. Canada (Minister of
Citizenship and Immigration), 2006 FC 287, [2006] F.C.J. No. 364 where the
Federal Court of Appeal stated that when an organization’s purpose goes beyond
a bare brutal one, it is imperative to identify the proximity to the part of
the organization the applicant was involved with. This broad brush of indicting
all facets of the Colombian army is also evident in the Board’s evaluation of
the impunity of the army in atrocities. In Ardila above, at paragraph
19, a broad analysis was found to be in error where “mere membership in a
270,000 army would exclude everyone”.
[54]
The
applicant states that he cannot in law be complicit in all acts committed by
the Colombian army, air force and navy as well as the National Police, the
Administrative Department of Security (DAS) and the Prosecutor’s General’s Corps
of Technical Investigators (CTI).
[55]
In
the case of Bedoya v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1092, this Court stated that the
applicant could not be said to have “personal knowledge and knowing
participation” and “a shared common purpose” with the entire Colombian army. In
that case, members of the Colombian army served from March of 1985 until May
1994 and participated in active operations against FARC during the same time
period as the applicant here. The Court held that the “unit/brigade” to which
the applicant was assigned must be implicated.
[56]
In
another case, Bonilla Vasquez v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1302, a major in the Colombian
army from 1989 to 2004 was found to be excluded for being aware of crimes
against humanity or wilfully blind to them. The Court held that it was
necessary to determine what “operations” were committing these crimes.
[57]
The
applicant addresses the issue of the March 1989 allegations of torture and
states that Bedoya above, is relevant when considering the “probative
value” of the evidence. Bedoya above, states that evidence of newspaper
clippings and documentary reports are not the best evidence and may not meet
the “less than balance of probabilities” test required for exclusion. In la
Hoz v. Canada (Minister of
Citizenship and Immigration), 2005 FC 762, the Federal Court stated
that the Board reversed the onus and incorrectly applied the test for
complicity. At paragraph 21, the Court states, “...the Board seems to have
concluded that the male applicant should be excluded because he did not provide
convincing evidence that he did not commit these acts”.
[58]
The
applicant submits that he testified at length regarding his time in the Uraba
region and included it in his PIF in detail. The applicant denies he was ever
involved in a case of torture in March of 1989 in the Uraba region and it was
not until four years after the alleged torture took place that the applicant
became aware of any allegations against him.
[59]
The
applicant’s evidence is that he arrived at a banana plantation where weapons
were believed to be hidden and searched the house. He left his captain in the
house with seven people from the house and secured a perimeter around the house
returning five hours later. When the applicant arrived back at the army base
with the two prisoners, the Procuraduria (the Attorney General’s office in Colombia) took
possession of them. Two of the persons in the house were banana union workers.
The applicant states that the banana union immediately went to the Procuraduria
to have them intervene on the union workers’ behalf. At that time, the
applicant and the commanding officer were questioned and the applicant alleges
that he was never contacted further about the incident or as aware of any
further investigations.
[60]
For
the remaining time in the Uraba region, the applicant contends that he acted in
a captain’s position for six of the nine months but never had any direct
contact with any subversive elements. Instead, the applicant was tasked with
searching for and seizing weapons belonging to narco-producers and traffickers.
[61]
However,
instead of the Board focusing on whether the Minister met the burden of showing
“serious reasons for considering” that the applicant was complicit in war
crimes, the Board focused on the evidence that the Attorney General intervened
but never launched an investigation or found proof of torture. In La Hoz
above, the Federal Court stated that ‘[t]he Minister cannot meet its burden
through inferences...”.
[62]
In
summary, the applicant states that of nine years in the army, only three were
spent in the field in a low ranking officer position. Given this evidence, he
states that “he knew of no systemic violations of human rights abuses or an
army policy to employ systemic human rights violations”. He also submits that
“he had no first-hand knowledge of torture” and “was unaware that the Colombian
army had a reputation for perpetrating crimes against humanity, including
killings, torture and enforced disappearances during the time he was in the
army”.
[63]
The
last matter that the applicant addresses involves the interpretation of the law
governing exclusion. There are two main issues in this regard. The first issue is
whether the applicant can be excluded based on definitions of crimes against
humanity that come from statutes that did not exist at the time of the alleged
incidents. Can these laws be applied retroactively? (see Ventocilla v. Canada (Minister of
Citizenship and Immigration), 2007 FC 575). The second issue is whether
civilian casualties are crimes against humanity when a country is involved in
an internal conflict. This has two dimensions. One, the perspective that
civilians are not necessarily civilians in the sense of the word as it was
regarded for the Conventions and international statutes against torture and
crimes against humanity when a country is in a conflict of the nature of the
one in Colombia. Two, some
international laws such as the Rome Statute have been found not to
encompass war crimes when they are committed in the context of an armed
conflict as was the finding by the Federal Court in Ventocilla above,
regarding the armed conflict in Peru between 1985 to 1992. In the Rome
Statute, which contains a retroactivity clause, a reading of the Crimes
against Humanity and War Crimes Act must be an international crime “at the
time and in the place of its commission”.
[64]
The
applicant submits that the Board erred in law, evaluated on a standard of
correctness, when it used the Rome Statute retroactively to attribute
crimes committed by the Colombian army to the applicant. The Board’s lack of
reference to the four elements set out in Mugesera above, and the
Board’s assumption that crimes against humanity can occur in internal conflict
were reviewable errors.
Respondent’s Submissions
[65]
The
respondent submits that the Board was not unreasonable when it determined that
the applicant should be excluded from refugee protection because of his
complicity in torture as stated in a foreign news report and because he was an
accomplice by way of his involvement in the Colombian army who was committing
crimes against humanity. They state that the sole issue is the reasonability of
the Board’s determination that there were serious reasons to believe that the
applicant had been an accomplice in crimes against humanity.
[66]
The
respondent’s arguments regarding the standard of review centre around the “move
towards a single reasonableness standard” (see Dunsmuir v. New
Brunswick,
[2008] S.C.J. No. 9) and the renewed emphasis on employing an attitude of
deference and respect. For the respondent, Dunsmuir above, mandates a
very robust standard of deference when dealing with expert tribunals such as
immigration boards. The respondent also notes that there is a statutory basis for
review in the Federal Courts Act, R.S.C. 1985, c. F-7, subsection 18.1(4)
that should take precedence over common law standards of review. The statute
mandates review on matters of fact only when a court finds “erroneous finding
of fact made in a perverse or capricious manner or without regard to the
evidence”.
[67]
The
respondent submits that the Court should be even more reluctant to intervene
when the assessment of fact and credibility was made after an oral hearing as
in this case (see Diazgranados v. Canada (Minister of
Citizenship and Immigration), 2008 FC 617).
[68]
Although
the applicant has submitted that the standard of review to be applied is
correctness when reviewing the legal term of “crimes against humanity”, the
respondent argues that despite being an issue of law, it is also one that
involves applying legal principles to facts. Dunsmuir above, addressed
legal and factual issues that are intertwined and cannot be readily separated.
The Supreme Court concluded that questions such as these are ones requiring
deference.
[69]
In
regards to the analysis of the facts, the respondent states that they were
reasonably considered as they were presented to the Board. The applicant was
found to have significant areas of his testimony that were implausible or not credible.
This testimony covered the activities and reputation of the army as a whole,
along with specific allegations against the applicant.
[70]
The
respondent states that it was implausible that the applicant did not know of
the reputation of the army due to the widespread public discussion of it, his
positions of practical responsibility for anti-guerrilla platoons in the combat
area, his rank as an officer, his being stationed in the same area where
massacres had occurred a few months earlier, his service training other
soldiers, and his grooming for promotion before he resigned at a military
academy that was considered to be an elite unit of the army. The idea that FARC
sympathizers wanted to discredit the applicant in a book written alleging
torture of the two men in the farmhouse in March of 1989 was also not
persuasive.
[71]
The
Board determined that on a balance of probabilities the applicant, as second in
command of the combined two combat platoons, would have known what was
occurring in the farmhouse. The applicant could have resigned from the military
because he objected to what the army had done or what he was forced to do.
Instead, the applicant only left after becoming married and for advancement of
his civil engineering career. All of these findings, the respondent asserts,
were reasonable given the evidence and there is no basis for overturning the
decision on this ground.
[72]
The
respondent disagrees that the Board did not follow the legal test for
complicity as they provided conclusions on each factor relevant to this case.
[73]
The
respondent argues that Bedoya above, does not suggest an error of the
Board. The applicant was not found to be complicit on the proposition that he
belonged to the Colombian army, rather, the applicant was considered complicit
in the specific circumstances of his service in the Uraba region and in
particular, the torture allegations from the farmhouse.
[74]
The
respondent disagrees that the Board was illogical in its analysis of
credibility. On the facts regarding exclusion, the Board found the applicant
made statements that were implausible and not credible. It is true that the
Board accepted his well-founded fear of the FARC in relation to the facts
surrounding his claim for refugee protection, but these are not the issues at
play in the exclusion of the applicant.
[75]
The
respondent submits that the applicant has not raised a reviewable error in
regard to the legal definition of crimes against humanity. The Federal Court
judge in Carrasco Varela above, while certifying the questions about the
application of the Rome Statute, found that the Rome Statute
applied to crimes committed in the 1980s notwithstanding. The earlier Ventocilla
above, case has not been followed in other cases.
[76]
The
respondent states that the sections of the Crimes against Humanity and War
Crimes Act (CAHWCA) that the applicant referred to are pertinent only to
crimes committed in Canada, rather than the more applicable sections 6 to
8. As the Board noted, the CAHWCA incorporated the Rome Statute definitions
of crimes against humanity as well as having its own definition. The definition
in the CAHWCA explicitly applies to actions before the CAHWCA came into force.
The CAHWCA also specifically references the London Charter
(1945)
and the Allied Control Council Law No. 10 (1946) which included
the similar definitions of crimes against humanity.
[77]
Harb above,
articulated the Federal Court of Appeal’s view that the Rome Statute
consolidated certain crimes against humanity and many other decisions
unequivocally accepted that inhumane treatment or torture of prisoners in the
1980’s constituted a crime against humanity (see Figueroa c. Canada
(Minister of Citizenship and Immigration), 2001 FCA 112, Ramirez
above, Sivakumar above, and Morena v. Canada (Minister of Employment
and Immigration), [1994] 1 F.C. 298 (C.A.)). Severe mistreatment of
prisoners including psychological torture was also included in this category
(see Alza v. Canada (Minister of Citizenship and Immigration), [1996]
F.C.J. No. 430, Quinonez v. Canada (Minister of
Citizenship and Immigration) (1999), 162 F.T.R. 37, and Osagie v. Canada (Minister of
Citizenship and Immigration) (2000), 186 F.T.R. 143). Complicity was
also found in handing people over to organizations known to commit crimes
against humanity in the 1980s (see Sulemana v. Canada (Minister of
Citizenship and Immigration) (1995), 91 F.T.R. 53, Gutierrez v. Canada (Minister of
Citizenship and Immigration), [1994] F.C.J. No. 1494 and Ponce Vivar
v. Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 286).
[78]
The
respondent also submits that the Board was not in error when it referred to the
1998 Rome Statute because it is a “reflection of customary or
conventional international law having regard to the inclusion of inhumane acts,
murder and torture of civilians in the definition of crimes against humanity”.
At the time of their commission, the applicant’s actions were offences in international
law.
Issues
[79]
The
applicant submitted the following issues for consideration:
1. What is the appropriate
standard of review?
2. Did the Board err in
law when it concluded that the applicant was complicit in crimes against
humanity perpetrated by the “Colombian army” or the “Colombian military”?
3. Did the Board make
an error on the face of the record that was significant to its conclusion
regarding the applicant’s complicity in crimes against humanity committed by
the Colombian army?
4. Did the Board err in
law by applying definitions of crimes against humanity from the Rome Statute
retroactively and by finding that crimes against humanity could be committed in
the context of an internal armed conflict?
[80]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the Board commit
a reviewable error on the facts related to the applicant’s complicity in crimes
against humanity committed by the Colombian army?
3. Did the Board commit
a reviewable error when it concluded that the applicant was complicit in crimes
against humanity perpetrated by the “Colombian army” or the “Colombian
military”?
4. Did the Board err in
law by applying definitions of crimes against humanity from the Rome Statute
retroactively?
5. Did the Board err in
law by finding that crimes against humanity could be committed in the context
of an internal armed conflict?
Analysis and Decision
[81]
Issue
1
What is the appropriate
standard of review?
In Dunsmuir
above, the Supreme Court of Canada stated at paragraph 62 that:
... the process of judicial review involves two
steps. First, courts ascertain whether the jurisprudence has already
determined in a satisfactory manner the degree of deference to be accorded with
regard to a particular category of question. Second, where the first
inquiry proves unfruitful, courts must proceed to an analysis of the factors
making it possible to identify the proper standard of review.
[82]
Of
the issues raised in this review, the last two issues require the
least amount of deference by this Court. On the other hand, the second and
third issues require a review of the Board’s analysis of the factual
circumstances as it relates to the law. It is well established that questions
of law and fact are to be reasonable. Reasonableness is described in Dunsmuir
above as being:
Reasonableness is a deferential standard
animated by the principle that underlies the development of the two previous
standards of reasonableness: certain questions that come before administrative
tribunals do not lend themselves to one specific, particular result.
Instead, they may give rise to a number of possible, reasonable
conclusions. Tribunals have a margin of appreciation within the range of
acceptable and rational solutions. A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable, referring
both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within
a range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
[83]
As
I stated in Zeng v. Canada (Minister of Citizenship and Immigration), 2008 FC 956, the Board’s
finding of exclusion based on the evidence before it required consideration
where the legal issues cannot easily be separated from the factual ones. In Dunsmuir
above, the Court explained that deference usually applies automatically in this
case unless there are constitutional questions involved. The Board was also
tasked with evaluating the factual evidence presented in an oral hearing. It
would be inappropriate for me to second guess the Board’s findings as I did not
have the evidence directly before me. Although the applicant argued that
correctness should apply in the case of such difficult international legal
issues, I find that Dunsmuir above, and subsequent jurisprudence has not
gone in that direction.
[84]
The final issues, however, warrant less deference. The question of
whether the Rome Statute can apply retroactively and whether crimes
against humanity can be committed within internal conflicts are bare legal
questions separate from the facts. I find that in this domain, the standard of
review should be one of correctness.
[85]
Issue
2
Did the Board commit a
reviewable error on the facts related to the applicant’s complicity in crimes
against humanity committed by the Colombian army?
There are
many aspects of this issue that the applicant raised and they will be addressed
on a reasonableness standard.
[86]
I
agree with the applicant that the onus is on the Minister to establish that a
person is excluded as in Ramirez above. The applicant’s position is that
the Board put the onus on him to prove that he did not commit the international
crimes he was accused of.
[87]
I
find, however, that the Board was not unreasonable in how it conducted the
analysis. The Minister tendered evidence to the Board that it said supported its
position that the applicant should be excluded because of complicity in crimes
against humanity. The Board was investigating the allegations made by the
Minister and whether it found the applicant’s responses compelling enough to
disprove the Minister’s position.
[88]
As
I mentioned above, this Court is not tasked with reevaluating the facts in this
case beyond requiring a decision to have “intelligibility” being “within a
range of possible outcomes” (see Dunsmuir above). In this regard, I find
that the applicant is suggesting that the Court do just that. In his arguments,
the applicant reiterates the evidence and explanations he provided to the Board
rather than suggesting why the Board’s inferences drawn from the Minister’s
evidence, the documentary evidence and the applicant’s testimony were so
unreasonable.
[89]
As
the Board stated, the standard of proof for the Minister has been called
“serious reasons for considering”, “reasonable grounds to believe” and both
standards “require more than suspicion or conjecture, but something less than a
balance of probabilities” (see Sivakumar above). These standards
inform to what degree the Board’s inferences and findings were reasonable.
[90]
The
applicant submitted that inferences being drawn from given facts were not
enough for a finding of exclusion. I am satisfied, however, that the Board
member went beyond finding superficial inferences. For each finding, the Board
member explained why an inference was made as it related to documentary
evidence and testimony.
[91]
The
Board’s findings of complicity in crimes against humanity lay squarely on the
time period the applicant spent in the Uraba region. During the applicant’s
time there, he is alleged to have committed torture. He also is alleged to have
been in charge of a platoon of professional soldiers and in an acting Captain
position for part of that time.
[92]
I
agree with the Board’s assessment that it is implausible that the applicant was
not aware of the allegations of torture and other crimes against humanity being
levelled at Colombia’s military
during this period. It was well known in Colombia. I also
accept that the Board’s finding that it was implausible that the applicant was
not aware of the events happening at the farmhouse in March 1989. He was in
charge of the group that went to the farmhouse and it is reasonable to conclude
that in that role he would have had knowledge of the events that transpired
there.
[93]
I
have not been satisfied that the Board’s inferences were unreasonable or were
lacking transparency, justification, and intelligibility as outlined in Dunsmuir
above. I have considered the applicant’s submission that the consequences
are “so dire” as stated in Ardila above, “that the reasons [must be]
given in unmistakeable terms and with a thorough consideration of the facts and
issues” and I am satisfied that they were.
[94]
The
applicant also argues, however, that ultimately these findings are illogical or
“unintelligible” because the Board never directly accused the applicant of
lying. I disagree.
[95]
I
concur with the respondent that the Board did question the applicant’s
credibility in relation to the incidents and time the applicant spent as a
platoon leader in the Uraba region, even though they did not formally question
his credibility. The Board found the testimony implausible as it related to
these events, in other words, they found the applicant’s testimony
unbelievable. I would not allow the judicial review on this ground.
[96]
Issue
3
Did the Board commit a
reviewable error when it concluded that the applicant was complicit in crimes
against humanity perpetrated by the “Colombian army” or the “Colombian
military”?
The applicant
states that the Board did not identify any particular unit or brigade within
the Colombian army. In the end, the applicant says it is not clear to which
group he was accused of being complicit with in crimes against humanity and the
idea that he was implicated because he belonged to a group of such
wide-ranching functions as the “army” or “military” suggested that the finding
of complicity in crimes against humanity was too far reaching. In Ardila
above, the applicant argues, this type of broad analysis was said to be in
error where membership in an army with thousands would exclude everyone from
refugee protection.
[97]
This
is an important aspect of the Article 1F(a) analysis. As stated in Mugesera
above, “[c]rimes against humanity, like all crimes, consist of two elements:
(1) a criminal act; and (2) a guilty mind.” It is important to characterize the
organization or group that is implicated in crimes against humanity (see Mugesera
above). If the purpose of the organization is not limited to its brutality,
then the applicant must be found to be a “knowing and willing participant in
specific crimes against humanity”. If a person has held senior leadership
positions in the organization, it is more likely that they were complicit in
such crimes (Sivakumar above). If the person did not hold senior
leadership positions, then there must be a nexus between the crime committed
and the person implicated. Finally, a person’s role in an organization, the
length of time he or she participated in the organization and his/her awareness
of the crimes is essential (Sivakumar above).
[98]
This
Court, the Federal Court of Appeal and the Supreme Court of Canada have all
grappled with the questions above in the context of individuals that were members
of military organizations associated with the government including Ramirez above,
and Moreno above,
amongst others.
[99]
I
agree that finding the applicant complicit in crimes against humanity for mere
membership in the Colombian army would unduly simplify what is a complex and
multi-faceted organization made up of thousands of persons and erroneously
implicate the applicant as having a criminal intent. Without a close nexus
between the unit he belonged to and the army’s systemic attacks against
civilian populations, a finding of exclusion would be in error (see Mugesera
above).
[100] As the
applicant stated, the objectives of serving in the army were personal and
professional for him. There is no suggestion that the applicant was invested in
the greater objectives and policies in the organization. In this case, the
applicant wanted to gain an education and financial stability. These are common
objectives of individuals that serve in armies the world over. At what point
then, do our international standards require the applicant to take
responsibility for the wider objectives of an organization? When in this case
did the applicant become responsible for resigning his membership in an
organization thereby avoiding complicity in atrocities?
[101] In Sivakumar
above, the Court addresses when a crime is elevated to the sphere of an
international crime:
This requirement does not mean that a
crime against humanity cannot be committed against one person, but in order to
elevate a domestic crime such as murder or assault to the realm of
international law an additional element will have to be found. This element is
that the person who has been victimized is a member of a group which has been
targeted systematically and in a widespread manner for one of the crimes
mentioned.
[102] I note that
the Board found it implausible that the applicant served in the Uraba region
for three years without knowledge of crimes against humanity perpetrated by the
army or even without direct involvement in those crimes. The reason it is
implausible, according to the Board, is that the applicant eventually became
platoon leader of a group that was made up of professional soldiers. This was
different than the groups that the applicant had been a part of in the past,
namely groups associated with fulfilling supportive roles of military
operations such as maintaining bridges.
[103] From the
documentary evidence, the Board concluded that the activities of the army, and
by extension, it is inferred, the applicant’s platoon group in that region,
involved a systemic targeting of civilians. The Amnesty International
Procurator General’s Report on the human rights situation in 1992, states:
The state security and defence agencies
are trained to persecute a collective enemy and generally consider that
victim’s form a part of that enemy….they establish a direct link between , for
example, trade unions or peasant organisations, with the guerrilla forces and
when they carry out counter-insurgency operations these passive subjects are
not identified as “independent” victims, but as part of the enemy.
[104] The most
significant issue, in my mind, that arises in this analysis is whether the
Board found that there was a nexus to the systemic targeting of populations and
the applicant’s service in the Uraba region. The inference is made that the
applicant participated in activities targeting civilians but was this
reasonable? I find that it was reasonable and I would not allow the judicial
review on this ground.
[105] Issue 4
Did the Board err in law by
applying definitions of crimes against humanity from the Rome Statute
retroactively?
First, I wish to state some of the national and
international laws and instruments that define crimes against humanity.
[106] The CAHWCA reads in part
as follows:
OFFENCES
OUTSIDE CANADA
Genocide, etc.,
committed outside Canada
6. (1) Every person who, either before or
after the coming into force of this section, commits outside Canada
(a)
genocide,
(b)
a crime against humanity, or
(c)
a war crime,
is
guilty of an indictable offence and may be prosecuted for that offence in
accordance with section 8.
Definitions
(3)
The definitions in this subsection apply in this section.
"crime
against humanity"
«crime contre l’humanité »
"crime
against humanity" means murder, extermination, enslavement, deportation,
imprisonment, torture, sexual violence, persecution or any other inhumane act
or omission that is committed against any civilian population or any
identifiable group and that, at the time and in the place of its commission,
constitutes a crime against humanity according to customary international law
or conventional international law or by virtue of its being criminal according
to the general principles of law recognized by the community of nations,
whether or not it constitutes a contravention of the law in force at the time
and in the place of its commission.
[107] The applicant’s
submission that section 4 of CAHWCA precludes the application of the Rome
Statute because it had not come into force requires an analysis of that
section.
Interpretation —
customary international law
4.(4)
For greater certainty, crimes described in Articles 6 and 7 and paragraph 2 of
Article 8 of the Rome Statute are, as of July 17, 1998, crimes according
to customary international law. This does not limit or prejudice in any way the
application of existing or developing rules of international law.
[108] I note the respondent’s
submission that this section is under the heading “OFFENCES WITHIN CANADA” and
as such, does not apply to these circumstances.
[109] I also note that the
wording of the section suggests that Parliament, by enacting the statute, did
not want to open the door for the kind of arguments put forward by the
applicant. The second sentence states that the coming into force date does not
mean that “existing or developing rules of international law” should be limited
or prejudiced by the introduction of this legislation.
[110] Canadian courts have
also incorporated international conventions on torture. As the Board noted, Suresh
v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at
paragraph 43 approved the definition of “torture” in Article 1 of the Convention
Against Torture and Other Cruel, Inhumane, or Degrading Treatment or Punishment
ratified by Canada in 1987.
[111] Secondly, the analysis
required here involves interpreting international and national laws regarding
crimes against humanity.
[112] As stated by Lorne
Waldman in Immigration Law and Practice “Convention Refugees and Persons
in Need of Protection”, (2006) 1 LexisNexus Canada 8.519 at 8.540:
.
. . the acts constituting crimes against humanity are no longer limited to
those contained in the definition of Art. 6 of the IMT Charter. The
international community has since labeled genocide and apartheid as crimes
against humanity. In addition, acts such as torture and piracy have been
declared, in effect, to be international crimes.
[113] The Supreme Court of
Canada in Mugesera above, stated that “a crime against humanity”
consists of the commission of one of the enumerated proscribed acts which
contravenes customary or conventional international law or is criminal
according to the general principles of law recognized in the community of
nations”. Clearly, the Supreme Court recognizes that it would be wrong to get
bogged down in the technical aspects of many different laws, established for
differing purposes, enacted at different times.
[114] There is no doubt that
there is consensus in our courts and in the world that the elimination of
crimes against humanity such as torture has been the focus of international instruments
since the aftermath of World War II (see Ramirez above). There has been
no arbitrary date imposed on finding culpability in torture. For these reasons,
I am not satisfied that the Board made an error in law and I would not allow
the judicial review on this ground.
[115] Issue 5
Did the Board err in law
by finding that crimes against humanity could be committed in the context of an
internal armed conflict?
The applicant argued that his actions in
the army were related to stopping the narco-producers and drug traffickers in Colombia. In his testimony, he
stated that the incident in March 1989 was in response to suspicion that farm
and union workers knew of weapons stashed in the area. In 1990, the applicant
states that his platoon was seizing drugs and weapons rather than fighting
guerilla forces.
[116] The bare issues at play
in relation to the law are many. Was the applicant fighting an internal war? Were
civilians implicitly involved in this war on many levels? In other words, were
the actions of the army in the time that the applicant served in the Uraba
region more complex than just an army gone awry morally and criminally?
[117] It can be inferred that
the applicant feels he did not have the mens rea in the commission of
international crimes as he felt that his service was related to the entrenched
“war on drugs” in Colombia.
[118] International law on
armed conflict within borders is instructive. Article 3 of Convention (III)
relative to the Treatment of Prisoners of War, Geneva, 12 August 1949 is applicable to
non-international armed conflict within the borders of a contracting state and
reads in part:
In
the case of armed conflict not of an international character occurring in the
territory of one of the High Contracting Parties, each Party to the conflict
shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of
armed forces who have laid down their arms and those placed ' hors de combat '
by sickness, wounds, detention, or any other cause, shall in all circumstances
be treated humanely, without any adverse distinction founded on race, colour,
religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and
in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation,
cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading
treatment;
.
. .
[119] It may be the
case that the Colombian army was fighting a complex conflict with many
different facets. However, as international law dictates, this does not absolve
individuals from accountability in cases where they are found to be complicit
in crimes that go beyond the necessities of war. The Supreme Court, however,
has said that for crimes to be elevated to crimes against humanity, the crimes
must be directed against a civilian population as the “primary object of an
attack”, not collateral to it (see Mugesera above, at paragraph 161).
[120] I am
satisfied that the civilian population was targeted in Colombia during the
time that the applicant served in a manner that is against international law. I
would not allow the judicial review on this ground.
[121] The
application for judicial review is therefore dismissed.
[122] The applicant
submitted the following proposed serious question of general importance for my
consideration for certification:
Is it an error of law to apply the
definition of “crimes against humanity” as set out in the Rome Statute to
alleged acts committed prior to July 1, 2002? In other words, can the
definition of “crimes against humanity” apply retroactively given the
requirement of mens rea for an international crime?
[123] The
respondent opposed the certification of this question on the basis that the
question would not be determinative of the issues in the case and because the
question has already been considered by the Court of Appeal.
[124] The issue of
torture of civilians has been part of the definition of crimes against humanity
since 1945. I agree with the respondent’s statement:
The reasons for decision show that the
tribunal referred to the Rome statute as well as the CAHWCA definitions of
crimes against humanity, but the this [sic] was not an application of the Rome statute, rather it was a consolidation
of the traditional definition which was in existence at least since 1945. The
applicable definition is in the CAHWCA, which explicitly applies to past events
which were considered to be crimes against humanity at international law.
Torture of civilians has been in the definition of crimes against humanity at
least since 1945.
The question would not affect the case
because torture of civilians has been in the definition of crimes against
humanity at least since 1945, and so it is not a retroactive application of a
new definition.
[125] In addition,
I am bound by the decision of the Federal Court of Appeal in Harb above
(see paragraphs 5 to 10). The question has already been considered by the
Federal Court of Appeal.
[126] Consequently,
I cannot certify the question proposed by the applicant.
JUDGMENT
[127] IT IS ORDERED
that:
1. The application for
judicial review is dismissed.
2. The question put
forward by the applicant for certification will not be certified as a serious
question of general importance.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
The
relevant statutory provisions are set out in this section.
The United Nations Convention Relating
to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6:
|
1F. 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.
|
1F.
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.
|
The Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA):
|
96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
97.(1)
A person in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
(2) A person
in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
|
96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
97.(1)
A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
|
Crimes
Against Humanity and War Crimes Act,
2000, c. 24:
|
4.(3) The
definitions in this subsection apply in this section.
"crime against humanity" means murder, extermination, enslavement,
deportation, imprisonment, torture, sexual violence, persecution or any other
inhumane act or omission that is committed against any civilian population or
any identifiable group and that, at the time and in the place of its
commission, constitutes a crime against humanity according to customary
international law or conventional international law or by virtue of its being
criminal according to the general principles of law recognized by the
community of nations, whether or not it constitutes a contravention of the
law in force at the time and in the place of its commission.
. . .
(4) For
greater certainty, crimes described in Articles 6 and 7 and paragraph 2 of
Article 8 of the Rome Statute are, as of July 17, 1998, crimes according to
customary international law. This does not limit or prejudice in any way the
application of existing or developing rules of international law.
|
4.(3)
Les définitions qui suivent s’appliquent au présent article.
« crime
contre l’humanité » Meurtre, extermination, réduction en esclavage,
déportation, emprisonnement, torture, violence sexuelle, persécution ou autre
fait — acte ou omission — inhumain, d’une part, commis contre une population
civile ou un groupe identifiable de personnes et, d’autre part, qui
constitue, au moment et au lieu de la perpétration, un crime contre
l’humanité selon le droit international coutumier ou le droit international
conventionnel, ou en raison de son caractère criminel d’après les principes
généraux de droit reconnus par l’ensemble des nations, qu’il constitue ou non
une transgression du droit en vigueur à ce moment et dans ce lieu.
. .
.
(4)
Il est entendu que, pour l’application du présent article, les crimes visés
aux articles 6 et 7 et au paragraphe 2 de l’article 8 du Statut de Rome sont,
au 17 juillet 1998, des crimes selon le droit international coutumier sans
que soit limitée ou entravée de quelque manière que ce soit l’application des
règles de droit international existantes ou en formation.
|
Schedule
(Subsection 2(1)) – Provisions of Rome Statute, Article 6:
|
PROVISIONS OF ROME STATUTE
ARTICLE 6
Genocide
For the
purpose of this Statute, “genocide” means any of the following acts committed
with intent to destroy, in whole or in part, a national, ethnical, racial or
religious group, as such:
(a) killing
members of the group;
(b) causing
serious bodily or mental harm to members of the group;
(c)
deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in part;
(d) imposing
measures intended to prevent births within the group;
(e) forcibly
transferring children of the group to another group.
ARTICLE 7
Crimes against
humanity
1. For the
purpose of this Statute, “crime against humanity” means any of the following
acts when committed as part of a widespread or systematic attack directed
against any civilian population, with knowledge of the attack:
(a) murder;
(b)
extermination;
(c)
enslavement;
(d)
deportation or forcible transfer of population;
(e)
imprisonment or other severe deprivation of physical liberty in violation of
fundamental rules of international law;
(f) torture;
(g) rape,
sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable gravity;
(h)
persecution against any identifiable group or collectivity on political,
racial, national, ethnic, cultural, religious, gender as defined in paragraph
3, or other grounds that are universally recognized as impermissible under
international law, in connection with any act referred to in this paragraph
or any crime within the jurisdiction of the Court;
(i) enforced
disappearance of persons;
(j) the crime
of apartheid;
(k) other
inhumane acts of a similar character intentionally causing great suffering,
or serious injury to body or to mental or physical health.
2. For the
purpose of paragraph 1:
(a) “attack
directed against any civilian population” means a course of conduct involving
the multiple commission of acts referred to in paragraph 1 against any
civilian population, pursuant to or in furtherance of a State or
organizational policy to commit such attack;
(b)
“extermination” includes the intentional infliction of conditions of life,
inter alia the deprivation of access to food and medicine, calculated to
bring about the destruction of part of a population;
(c)
“enslavement” means the exercise of any or all of the powers attaching to the
right of ownership over a person and includes the exercise of such power in
the course of trafficking in persons, in particular women and children;
(d) “deportation
or forcible transfer of population” means forced displacement of the persons
concerned by expulsion or other coercive acts from the area in which they are
lawfully present, without grounds permitted under international law;
(e) “torture”
means the intentional infliction of severe pain or suffering, whether
physical or mental, upon a person in the custody or under the control of the
accused; except that torture shall not include pain or suffering arising only
from, inherent in or incidental to, lawful sanctions;
(f) “forced
pregnancy” means the unlawful confinement of a woman forcibly made pregnant,
with the intent of affecting the ethnic composition of any population or
carrying out other grave violations of international law. This definition shall
not in any way be interpreted as affecting national laws relating to
pregnancy;
(g)
“persecution” means the intentional and severe deprivation of fundamental
rights contrary to international law by reason of the identity of the group
or collectivity;
(h) “the crime
of apartheid” means inhumane acts of a character similar to those referred to
in paragraph 1, committed in the context of an institutionalized regime of
systematic oppression and domination by one racial group over any other
racial group or groups and committed with the intention of maintaining that
regime;
(i) “enforced
disappearance of persons” means the arrest, detention or abduction of persons
by, or with the authorization, support or acquiescence of, a State or a
political organization, followed by a refusal to acknowledge that deprivation
of freedom or to give information on the fate or whereabouts of those
persons, with the intention of removing them from the protection of the law
for a prolonged period of time.
3. For the purpose
of this Statute, it is understood that the term “gender” refers to the two
sexes, male and female, within the context of society. The term “gender” does
not indicate any meaning different from the above.
|
ANNEXE
(paragraphe
2(1))
DISPOSITIONS
DU STATUT DE ROME
ARTICLE
6
Crime
de génocide
Aux
fins du présent Statut, on entend par « crime de génocide » l’un
quelconque des actes ci-après commis dans l’intention de détruire, en tout ou
en partie, un groupe national, ethnique, racial ou religieux, comme
tel :
a)
meurtre de membres du groupe;
b)
atteinte grave à l’intégrité physique ou mentale de membres du groupe;
c)
soumission intentionnelle du groupe à des conditions d’existence devant
entraîner sa destruction physique totale ou partielle;
d) mesures
visant à entraver les naissances au sein du groupe;
e)
transfert forcé d’enfants du groupe à un autre groupe.
ARTICLE
7
Crimes
contre l’humanité
1.
Aux fins du présent Statut, on entend par « crime contre
l’humanité » l’un quelconque des actes ci-après lorsqu’il est commis
dans le cadre d’une attaque généralisée ou systématique lancée contre toute
population civile et en connaissance de cette attaque :
a)
meurtre;
b)
extermination;
c)
réduction en esclavage;
d)
déportation ou transfert forcé de population;
e)
emprisonnement ou autre forme de privation grave de liberté physique en
violation des dispositions fondamentales du droit international;
f)
torture;
g)
viol, esclavage sexuel, prostitution forcée, grossesse forcée, stérilisation
forcée ou toute autre forme de violence sexuelle de gravité comparable;
h)
persécution de tout groupe ou de toute collectivité identifiable pour des
motifs d’ordre politique, racial, national, ethnique, culturel, religieux ou
sexiste au sens du paragraphe 3, ou en fonction d’autres critères
universellement reconnus comme inadmissibles en droit international, en
corrélation avec tout acte visé dans le présent paragraphe ou tout crime
relevant de la compétence de la Cour;
i)
disparitions forcées de personnes;
j)
crime d’apartheid;
k)
autres actes inhumains de caractère analogue causant intentionnellement de
grandes souffrances ou des atteintes graves à l’intégrité physique ou à la
santé physique ou mentale.
2.
Aux fins du paragraphe 1 :
a) par
« attaque lancée contre une population civile », on entend le
comportement qui consiste en la commission multiple d’actes visés au
paragraphe 1 à l’encontre d’une population civile quelconque, en application
ou dans la poursuite de la politique d’un État ou d’une organisation ayant
pour but une telle attaque;
b)
par « extermination », on entend notamment le fait d’imposer
intentionnellement des conditions de vie, telles que la privation d’accès à
la nourriture et aux médicaments, calculées pour entraîner la destruction
d’une partie de la population;
c)
par « réduction en esclavage », on entend le fait d’exercer sur une
personne l’un quelconque ou l’ensemble des pouvoirs liés au droit de
propriété, y compris dans le cadre de la traite des êtres humains, en
particulier des femmes et des enfants;
d)
par « déportation ou transfert forcé de population », on entend le
fait de déplacer de force des personnes, en les expulsant ou par d’autres
moyens coercitifs, de la région où elles se trouvent légalement, sans motifs
admis en droit international;
e)
par « torture », on entend le fait d’infliger intentionnellement
une douleur ou des souffrances aiguës, physiques ou mentales, à une personne
se trouvant sous sa garde ou sous son contrôle; l’acception de ce terme ne
s’étend pas à la douleur ou aux souffrances résultant uniquement de sanctions
légales, inhérentes à ces sanctions ou occasionnées par elles;
f)
par « grossesse forcée », on entend la détention illégale d’une
femme mise enceinte de force, dans l’intention de modifier la composition
ethnique d’une population ou de commettre d’autres violations graves du droit
international. Cette définition ne peut en aucune manière s’interpréter comme
ayant une incidence sur les lois nationales relatives à la grossesse;
g)
par « persécution », on entend le déni intentionnel et grave de
droits fondamentaux en violation du droit international, pour des motifs liés
à l’identité du groupe ou de la collectivité qui en fait l’objet;
h)
par « crime d’apartheid », on entend des actes inhumains analogues
à ceux que vise le paragraphe 1, commis dans le cadre d’un régime
institutionnalisé d’oppression systématique et de domination d’un groupe
racial sur tout autre groupe racial ou tous autres groupes raciaux et dans
l’intention de maintenir ce régime;
i)
par « disparitions forcées de personnes », on entend les cas où des
personnes sont arrêtées, détenues ou enlevées par un État ou une organisation
politique ou avec l’autorisation, l’appui ou l’assentiment de cet État ou de
cette organisation, qui refuse ensuite d’admettre que ces personnes sont
privées de liberté ou de révéler le sort qui leur est réservé ou l’endroit où
elles se trouvent, dans l’intention de les soustraire à la protection de la
loi pendant une période prolongée.
3.
Aux fins du présent Statut, le terme « sexe » s’entend de l’un et
l’autre sexes, masculin et féminin, suivant le contexte de la société. Il
n’implique aucun autre sens.
|
Email this Content