Date: 20110617
Docket: IMM‑5122‑10
Citation: 2011 FC 671
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, June 17, 2011
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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EVANS EUGENE
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Applicant
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and
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MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This Court must rule on an application for
judicial review of the decision by an immigration officer in the Dominican
Republic to refuse the applicant’s application for permanent residence on the
ground that he was [translation] “inadmissible
to Canada under section 35” of the Immigration and Refugee Protection
Act, SC 2001, c 11 (IRPA). The applicant was found inadmissible
because of [translation] “reasonable
grounds to believe that, from 1996 to 1999, while you were a member of the
Haitian national police force [Police nationale d’Haïti (PNH)], you were
complicit in a war crime, genocide or a crime against humanity.”
[2]
The body of the decision consists of a letter,
dated May 18, 2010. The letter reproduces the definitions of the alleged
offences as set out in the Crimes Against Humanity and War Crimes Act,
SC 2000, c 24. The letter also details the consequences of
inadmissibility. To complement this letter, it is necessary to read the officer’s
notes in the Computer‑Assisted Immigration Processing System (CAIPS). Rather
curiously, the CAIPS notes were entered in the system after the refusal
letter was written. In this case, the CAIPS notes are a report of the interview
held with the applicant.
[3]
The notes contain the following key components
of the decision:
a. The applicant began working as a police officer in the PNH in 1995. He
then worked in a special unit, the Compagnie d’intervention et de maintien de l’ordre
(CIMO) [public order and intervention force], operating in the capital city and
assigned to crowd control during demonstrations. After that, he worked as a
bodyguard for the Minister of the Interior.
b. While working for the CIMO, the applicant was on duty during three
demonstrations. He carried a heavy weapon. He stated that he had heard of the CIMO’s
abuses at that time, but never witnessed any directly.
c. The CIMO’s abuses are recorded in the documentary evidence, which
recounts murders, disappearances and violence.
d. The officer was concerned about the applicant’s presence at
demonstrations and the role he may have played in repressing the expression of
political opinions.
e. The officer found that the applicant was complicit in the abuses
recounted.
[4]
Aside from that, the decision also states that,
at the end of the interview, the decision‑maker advised the applicant of
his inadmissibility.
[5]
The applicant submits that the immigration
officer’s decision is in error, for two principal reasons. First, the applicant
contends that he had no knowledge of the specific crimes alleged in the
reasons. Inferring that these were repressive actions by the CIMO, the
applicant argued that these actions are not crimes against humanity. Furthermore,
since the applicant’s alleged complicity is at issue, he contends that the
reasons for the decision are inadequate in terms of the legal characterization
of the applicant’s “complicity”. Thus, the legal argument concerns the adequacy
of the reasons for the decision that the applicant is inadmissible for having taken
part in crimes against humanity, war crimes or genocide.
[6]
The Minister argued that it was possible and, in
this case, desirable, that the Court supplement the reasons for the decision. This
argument is rooted in the decision of the Supreme Court in Dunsmuir v New
Brunswick, 2008 SCC 9, at paragraph 48, in which the Court stated that
the reasonableness of a decision is assessed with respect “to the reasons
offered or which could be offered in support of a decision”, quoting from “The
Politics of Deference: Judicial Review and Democracy”, in M. Taggart, ed., The
Province of Administrative Law (1997), 279, at page 286. Counsel for
the Minister completed this argument with the Federal Court of Appeal’s
decision in Sivakumar v Canada (Minister of Employment and Immigration),
[1994] 1 FC 433 (FCA), which he relied on to contend that the Court of Appeal
supplemented the trial Court’s reasons and the reasons of the decision‑maker.
However, counsel for the Minister called attention to the following passage
from the Supreme Court of Canada’s decision in Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12:
Dunsmuir thus reinforces in the context of adjudicative tribunals the
importance of reasons, which constitute the primary form of accountability of
the decision maker to the applicant, to the public and to a reviewing court. Although
the Dunsmuir majority refers with approval to the proposition that an
appropriate degree of deference “requires of the courts ‘not submission but a
respectful attention to the reasons offered or which could be offered in
support of a decision’” (para. 48 (emphasis added)), I do not think the
reference to reasons which “could be offered” (but were not) should be taken as
diluting the importance of giving proper reasons for an administrative
decision, as stated in Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817, at para. 43.
[7]
The Court appreciates this honest and
transparent clarification. The Minister thus submitted that the applicant was
deemed inadmissible because of his activities in the PNH and the CIMO. Other
evidence and statistics concerning the alleged abuses of the PNH and the CIMO were
also filed. The applicable tests from the case law concerning complicity in
crimes against humanity were also applied to the applicant’s situation.
Analysis
[8]
In adopting the IRPA in 2001, Parliament placed
greater emphasis on the security of Canada and its citizens (Suresh v Canada
(Minister of Citizenship and Immigration), 2002 SCC 1). Besides the
amendments to the IRPA, inadmissibility arrived hand in hand with the adoption
of the Crimes Against Humanity and War Crimes Act. Parliament’s security
concerns are clear, just as is the absence of an unqualified right for non‑residents
to enter and remain in Canada (Canada (Minister of Employment and
Immigration) v Chiarelli, [1992] 1 S.C.R. 711). It is also true that the
issuing of a permanent resident visa is, to a certain extent, discretionary,
and that the assessment of crimes against humanity is a question of fact (see,
among others, Moreno v Canada (Minister of Employment and Immigration),
[1994] 1 FC 298 (FCA); Ogunfowora v Canada (Minister of Citizenship and
Immigration), 2007 FC 471).
[9]
However, it goes without saying that a decision
and its reasons must be supported adequately so that anyone reading it may deduce
the key elements of the alleged conduct, and all the more so when the issue is
a question as important as crimes against humanity. The lack of adequate
reasons is an error of law reviewable by this Court (Sivakumar v Canada
(Minister of Employment and Immigration), [1994] 1 FC 433 (FCA); Plaisir
v Canada (Minister of Citizenship and Immigration), 2007 FC 264).
[10]
Obviously, since these are administrative
decisions, the standard is not whether the decision was perfect. As Justice
Hughes recently stated, a decision‑maker is not held “to a standard of
clarity and legal analysis that would impress even the most critical reader” (Singh
Warainch v. Canada (Citizenship and Immigration), 2011 FC 55).
[11]
In this case, upon reading the letter and the
CAIPS notes, it is not possible to discern that the decision‑maker had a real
understanding of the legal framework applicable to crimes against humanity. First,
the brevity of the May 18 letter should be emphasized. An applicant can
validly be excluded for involvement in genocide, a war crime or a crime against
humanity. However, the letter must specify which of the three categories
applies. Reciting the legal definitions of the three categories, without
specifying which one applies, is not enough.
[12]
The CAIPS notes provide an understanding of the
decision‑maker’s concerns about the employments in the PNH and the CIMO
and as bodyguard of the Minister of the Interior. However, the letter states
that only the years 1996 to 1999 in the CIMO are held against the applicant, so
the decision concerns only the alleged conduct of the CIMO, a special unit that
provides crowd control during demonstrations. Genocide and war crimes must be
excluded from the analysis outright, since there is no recognition that a war
or genocide happened in those years. When such an inference is drawn at this
stage, it is a sign that the reasons for a decision are weak.
[13]
The Canadian legal framework on war crimes has
been made clear by a number of courts, including the Supreme Court and the
Federal Court of Appeal. In Mugesera v Canada (Minister of Citizenship and
Immigration), 2005 SCC 40, the Supreme Court stated that for there to be a
war crime, there must first be the elements of a crime: (1) a criminal act; and
(2) a guilty mind (paragraph 127). Second, the criminal act alleged must
(1) be one of the enumerated proscribed acts in the Criminal Code; (2)
the act must be done as part of a widespread or systematic attack; and (3) the
attack must be directed against any civilian population or any identifiable
group (paragraph 128). The decision, conveyed by the letter and the CAIPS
notes, does not identify any of these elements. With some zeal, it would be
possible to infer those elements from the decision, but that is not the problem,
for the applicant’s complicity is also at issue.
[14]
The decision is devoid of any analysis of the
legal framework applicable to complicity in the crimes against humanity alleged.
First of all, the Court is concerned that the applicant’s guilt would seem to
result solely from his association with the CIMO. Mere membership in an
organization which from time to time commits international offences is not
normally adequate justification for inadmissibility (Ramirez v Canada
(Minister of Employment and Immigration), [1992] 2 FC 306 (FCA)), unless
this organization owes its very existence to a limited, brutal purpose (Saridag
v Canada (Minister of Employment and Immigration), (1994) 85 FTR 307
(FCTD)). Many factors have been identified in the case law, particularly in Ramirez,
above, and Sivakumar, above. For example, the Court notes the following:
a. The individual’s personal and knowing participation in or toleration
of the crimes;
b. Importance of the individual’s functions, both the duties themselves
and the individual’s position in the hierarchy of the organization;
c. The individual’s opposition to the conduct, or the individual’s
attempts to prevent them or to leave the organization;
d. Shared common purpose of the organization; and
e. Length of participation in the group.
[15]
Furthermore, the burden of proof for
establishing inadmissibility under section 33 of the IRPA is “reasonable
grounds to believe”. As explained by the Federal Court of Appeal, this requires
more than mere suspicion or conjecture, but less than proof on a balance of
probabilities (Sivakumar, above). In this case, the Court is not
satisfied from reading the reasons that this standard of proof has been met.
[16]
Consequently, the decision is flawed because of
inadequate reasons. The application for judicial review is allowed. No question
has been proposed for certification.
JUDGMENT
THIS COURT’S JUDGMENT IS that the
application for judicial review is allowed. The application for a permanent
resident visa is referred back for reconsideration by a different immigration
officer. No question is certified.
“Simon Noël”
Certified true
translation
Sarah Burns
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