I. Introduction
[1]
Branko
Rogan came to Canada from war-torn
Bosnia-Herzegovina in 1994. He became a Canadian citizen three years later.
The Minister of Citizenship and Immigration comes before this Court seeking a
declaration that Mr. Rogan obtained his Canadian citizenship by false
representation or fraud or by knowingly concealing material circumstances.
[2]
In
accordance with the provisions of the Citizenship Act, the revocation
process was commenced by the service of a Notice in Respect of Revocation of
Citizenship on Mr. Rogan. This Notice advised him of the Minister’s intent to
make a report to the Governor in Council seeking the revocation of his citizenship
on the grounds that it was obtained by false representation or fraud or by
knowingly concealing material circumstances.
[3]
In
particular, the Notice asserts that Mr. Rogan failed to disclose his activities
during the conflict in the former Yugoslavia to immigration officials responsible for
selecting applicants to come to Canada. The activities identified in the Notice
include:
(i)
Mr.
Rogan’s work in Bileća, Bosnia-Herzegovina, during 1992; and/or
(ii)
Mr.
Rogan’s position and duties as a reserve police officer and/or police officer
and/or military member in Bosnia-Herzegovina during 1992; and/or
(iii)
Mr.
Rogan’s activities during service at Bileća detention camp in 1992; and/or
(iv)
Mr.
Rogan’s activities mistreating, assaulting and/or torturing detainees at Bileća
detention camp in 1992; and/or
(v)
Other
activities in which Mr. Rogan was involved and which would have rendered him
inadmissible to Canada at the time of his coming to Canada.
[4]
After
receipt of the Minister’s Notice Mr. Rogan exercised his statutory right to
have this matter referred to the Federal Court. This was done through the
issuance of a Statement of Claim by the Minister.
[5]
While
citizenship revocation proceedings are not uncommon in this Court, the majority
of such proceedings involve matters such as undisclosed criminality or
misrepresentations with respect to family circumstances. I am advised that this
is the first citizenship revocation proceeding involving allegations of war
crimes or crimes against humanity occurring in the post-World War Two era.
[6]
For
the reasons that follow, I find on a balance of probabilities that Mr. Rogan
was employed as a reserve police officer and worked as a guard at detention
facilities in Bileća, Bosnia-Herzegovina, in June and July of
1992. I am further satisfied that Muslim males were arrested and detained
during this period, simply because they were Muslims, and that Mr. Rogan would
have been aware of this fact.
[7]
I also
find that the conditions under which the prisoners were held in these
facilities were inhumane, that prisoners were subjected to physical abuse, and
that Mr. Rogan was aware of this.
[8]
I
have also concluded that Mr. Rogan participated, both directly and indirectly,
in the mistreatment and torture of prisoners held at those facilities. Mr.
Rogan knowingly concealed this information from Canadian immigration officials
in the course of his application for permanent residence. As a consequence, I
find that Mr. Rogan obtained his Canadian citizenship by false representation
or fraud or by knowingly concealing material information.
II. Mr. Rogan’s
Participation in the Hearing
[9]
Mr.
Rogan was represented by counsel during most of the pre-trial phase of this
case. However, he delivered a Notice of Intent to Act in Person after the
matter was set down for hearing. Although Mr. Rogan was encouraged to consult
with Legal Aid in order to obtain legal assistance, he did not retain new
counsel.
[10]
Several
trial management teleconferences were held in advance of the hearing. Mr.
Rogan participated fully in each of these teleconferences, and stated that he
would not be able to attend the hearing for financial reasons. He indicated,
however, that he did want to come to Court to tell his story. Accordingly, a
date was identified for Mr. Rogan’s appearance at the hearing, although he was
encouraged to attend throughout the proceeding. Mr. Rogan appeared on the
specified date, and had a full opportunity to provide the Court with whatever
evidence he wished to adduce.
[11]
Mr.
Rogan was provided with documentary disclosure in advance of the hearing, and
examined a Ministerial witness for discovery. I also directed that Mr. Rogan be
provided with will-say statements for each of the witnesses to be called by the
Minister in advance of the hearing, in an effort to provide him with as much
information as possible about the allegations against him.
[12]
Because
Mr. Rogan was not present for the testimony of the Minister’s witnesses, I did
not have the benefit of observing the witnesses under cross-examination. I
have, however, examined the evidence of each witness very carefully in
assessing their credibility. This is particularly so in the case of the four
eyewitnesses, each of who testified to Mr. Rogan’s actions as a prison guard in
Bileća in the summer of 1992.
III. The Nature of
the Proceedings and the Law
[13]
A
reference by the Minister under section 18(1)(b) of the Citizenship Act, R.S.,
1985, c. C‑29 (the “Citizenship Act, 1985”) is not an
action in the conventional sense of the word. Rather, it is “essentially an
investigative proceeding used to collect evidence of facts surrounding the
acquisition of citizenship, so as to determine whether it was obtained by
fraudulent means”: Canada (Minister of Citizenship and Immigration) v. Obodzinsky,
2002 FCA 518, [2002] F.C.J. No. 1800, at para. 15 [Obodzinsky, (FCA)].
[14]
The
task for the Court is to make factual findings as to whether Mr. Rogan obtained
his Canadian citizenship by false representation or fraud or by knowingly
concealing material circumstances. Findings made by this Court under section
18(1)(b) of the Citizenship Act, 1985 are final, and cannot be appealed.
[15]
Although
these reasons follow a hearing at which a great deal of evidence was adduced,
the Court’s factual findings are not determinative of any legal rights. That
is, this decision does not have the effect of revoking Mr. Rogan’s Canadian
citizenship: Canada (Minister of
Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, [1997] S.C.J. No.
82, at para. 52, citing Canada (Secretary of State) v. Luitjens, [1992] F.C.J. No. 319,
142 N.R. 173 at 175 [Luitjens, (FCA)].
[16]
These
findings may, however, form the basis of a report by the Minister to the
Governor in Council requesting the revocation of Mr. Rogan’s citizenship. The
ultimate decision with respect to the revocation of citizenship rests with the
Governor in Council, which is the sole authority empowered to revoke
citizenship. A decision by the Governor in Council to revoke an individual’s
citizenship may be judicially reviewed: Canada (Minister of
Citizenship and Immigration) v. Furman, 2006 FC 993, [2006] F.C.J. No. 1248, at para.
15.
A.
Procedural Rights
[17]
Mr.
Rogan’s procedural rights are governed by the citizenship legislation that was
in effect on August 20, 2007 - the date upon which he was served with the
section 18 Notice initiating the revocation proceedings. The relevant
provisions are sections 10 and 18 of the Citizenship Act, 1985. The full
text of these and other relevant legislative provisions are attached as an
appendix to these reasons.
[18]
Subsection
10(1) of the Citizenship Act, 1985 allows the Governor in Council to
revoke the citizenship of an individual where the Governor in Council is
satisfied, on the basis of a report from the Minister, that the person has
obtained his or her citizenship by false representation or fraud or by
knowingly concealing material circumstances.
[19]
Subsection
10(2) of the Citizenship Act, 1985 addresses the situation where an
individual does not misrepresent or conceal material information at the time
that he obtains his Canadian citizenship, but has done so in the course of
being admitted to Canada for permanent
residence.
[20]
Subsection
10(2) deems such an individual to have obtained his citizenship by false
representation or fraud or by knowingly concealing material circumstances if he
was “lawfully admitted to Canada for permanent residence by false representation or fraud or
by knowingly concealing material circumstances”, and, because of that
admission, subsequently obtained his citizenship.
B.
Substantive Rights
[21]
Mr.
Rogan’s substantive rights are governed by the version of the Citizenship
Act in effect when he obtained his Canadian citizenship on November 14,
1997: Canada (Minister of Citizenship and Immigration) v. Bogutin (1998),
144 F.T.R. 1, [1998] F.C.J. No. 211 at paras. 116, 119 and 121; Canada (Minister of
Citizenship and Immigration) v. Skomatchuk, 2006 FC 994, [2006] F.C.J. No. 1249, at
para. 16. The Citizenship Act, 1985 was the governing legislation at
that time.
[22]
Section
5(1) of the Citizenship Act, 1985 sets out the criteria that had to be
satisfied in 1997 in order to be granted a certificate of citizenship. Amongst
other things, Mr. Rogan had to satisfy the Minister that he had “been lawfully
admitted to Canada for permanent
residence”: paragraph 5(1)(c). Thus, the lawfulness of admission to Canada is a condition
precedent to the acquisition of Canadian citizenship: Skomatchuk, above,
at para. 17.
[23]
Mr.
Rogan’s substantive rights are also governed by the provisions of the Immigration
Act, R.S.C. 1985, c. I-2 that were in force at the time that he applied for
permanent residence in Canada in January of 1994, and
when he entered Canada some three months
later. The relevant legal principles governing his application are addressed
further on in these reasons, in the section dealing with Mr. Rogan’s
application for permanent residence.
C.
The Burden and Standard of Proof
[24]
Before
turning to address the burden and standard of proof in a matter such as this,
it is important to start by observing that a citizenship revocation hearing is
not a criminal proceeding.
[25]
Canadian
citizenship is a valuable privilege (Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358,
[1997] S.C.J. No. 26, at para. 72), and the stakes are undoubtedly high for Mr.
Rogan. Nevertheless, it must be kept in mind that the Minister is trying to
deprive Mr. Rogan of his citizenship through this proceeding, and not his
liberty. Thus Mr. Rogan’s interests do not weigh as heavily in the balance as
they would in a criminal proceeding: Tobiass, above, at para. 108.
[26]
The
burden is on the Minister to demonstrate that Mr. Rogan obtained his
citizenship by false representation or fraud or by knowingly concealing
material circumstances: Skomatchuk, above, at para. 21.
[27]
An
early citizenship revocation case suggested that the onus was on the Minister
to establish grounds for revocation with a “high degree of probability”: Canada (Secretary of State) v.
Luitjens
(1991), 46 F.T.R. 267, [1991] F.C.J. No. 1041 at para. 11 (F.C.T.D.) [Luitjens
(FCTD)]. However, subsequent jurisprudence has clearly established that the
standard of proof is that of the balance of probabilities: Skomatchuk, above,
at para. 23, citing Bogutin, above, at para. 110; Canada (Minister of
Citizenship and Immigration) v. Obodzinsky, 2003 FC 1080, [2003] F.C.J. No. 1344 at
para. 7 [Obodzinsky (FC)]; Canada (Minister of Citizenship and Immigration)
v. Baumgartner,
2001 FCT 970, [2001] F.C.J. No. 1351 at para. 8; Canada (Minister of Citizenship
and Immigration) v. Odynsky, 2001 FCT 138, [2001] F.C.J. No. 286 at para. 13; Canada (Minister of
Citizenship and Immigration) v. Oberlander, (2000), 185 F.T.R. 41, [2000] F.C.J. No.
229 (F.C.T.D.) at para. 187 [Oberlander (F.C.T.D.)]; Canada (Minister of
Citizenship and Immigration) v. Kisluk (1999), 169 F.T.R. 161, [1999] F.C.J. No. 824
(F.C.T.D.) at para. 5; and Canada (Minister of Citizenship and Immigration) v.
Katriuk
(1999), 156 F.T.R. 161, [1999] F.C.J. No. 90 at para. 38 (F.C.T.D.)).
[28]
The
balance of probabilities standard will be satisfied if the evidence establishes
that it is more probable than not that something occurred. That is, I must be
satisfied that an event or fact in dispute is not only possible, but probable: Skomatchuk,
above, at para. 25; Obodzinsky (FC), above, at paras. 8-9.
[29]
That
said, because of the seriousness of the allegations that have been made and the
significant negative consequences that revocation of citizenship may have for
Mr. Rogan, the evidence must be scrutinized with great care: Canada
(Minister of Citizenship and Immigration) v. Schneeberger, 2003 FC 970, [2004]
1 F.C.R.280, at para. 25; Canada (Minister of Citizenship and Immigration) v.
Coomar
(1998), 159 F.T.R. 37, [1998] F.C.J. No. 1679 at para. 10 (F.C.T.D.); Skomatchuk,
above, at para. 24.
D. What must be
established in Order to find that there has been a False Representation or
Fraud or a Knowing Concealment of Material Circumstances?
[30]
As
was noted earlier, the question for the Court to determine in this reference is
whether Mr. Rogan obtained his Canadian citizenship by false representation or
fraud or by knowingly concealing material circumstances.
[31]
The
Minister does not have to demonstrate that, had he been truthful during the immigration
process, Mr. Rogan’s application for permanent residence would necessarily have
been rejected. Rather, the Minister need only show that Mr. Rogan gained entry
to Canada by knowingly concealing material circumstances which had the effect
of foreclosing or averting further inquiries: Canada (Minister of Manpower
and Immigration) v. Brooks, [1974] S.C.R. 850, [1973] S.C.J. No. 112, at
873; Odynsky, above, at para. 159; Canada (Minister of
Citizenship and Immigration) v. Wysocki, 2003 FC 1172, 250 F.T.R. 174
at para. 16.
[32]
In order to find that
someone “knowingly conceal[ed] material circumstances” within the meaning of
section 10 of the Citizenship Act, 1985, “the Court must find on
evidence, and/or reasonable inference from the evidence, that the person
concerned concealed circumstances material to the decision, whether he knew or
did not know that they were material, with the intent of misleading the
decision-maker”: Odynsky, above, at para. 159. See also Schneeberger,
above, at para. 20.
[33]
“A
misrepresentation of a material fact includes an untruth, the withholding of
truthful information, or a misleading answer which has the effect of
foreclosing or averting further inquiries”: Schneeberger, at para. 22,
citing Brooks. This is so even if the answer to those inquiries might not
turn up any independent ground of deportation: Brooks, above, at 873.
[34]
In
assessing the materiality of the information concealed, regard must be had to
the significance of the undisclosed information to the decision in question: Schneeberger,
at para. 21. However, “more must be established than a technical transgression
of the Act. Innocent misrepresentations are not to result in the revocation of
citizenship”: Schneeberger, at para. 26, citing Canada (Minister of
Multiculturalism and Citizenship) v. Minhas (1993), 66 F.T.R. 155, [1993] F.C.J. No.
712 (F.C.T.D.).
[35]
That
said, misrepresentations claimed to be “innocent” must be carefully examined,
and willful blindness will not be condoned. If faced with a situation of
doubt, an applicant should invariably err on the side of full disclosure: Canada (Minister of
Citizenship and Immigration) v. Phan, 2003 FC 1194, 240 F.T.R. 239 at
para. 33.
IV. The
Historical Context
[36]
In
order to put the allegations involving Mr. Rogan into context, it is necessary
to have some understanding of events surrounding the conflict occurring in the
early 1990’s in the former Yugoslavia, and, in particular, what happened in
Bosnia-Herzegovina.
A. Dr.
Nielsen’s Expertise
[37]
Historical
evidence regarding the war in Bosnia-Herzegovina was provided to the Court by
Doctor Christian Axboe Nielsen. Dr. Nielsen holds a Ph.D. in East Central
European history with a specialty in the history of the Socialist Federal
Republic of Yugoslavia (the “former Yugoslavia”) from Columbia University. He is currently
employed as an Assistant Professor of Southeast European Studies and the
Bosnian-Serbian-Croatian language (also known as Serbo-Croatian) at the
Institute for History and Area Studies at the University of Aarhus in Denmark.
[38]
In
addition to his other qualifications, Dr. Nielsen has worked as a Research
Officer in the Investigations Division of the Office of the Prosecutor at the International
Criminal Tribunal for the Former Yugoslavia (“ICTY”). In that capacity, he was
called upon to examine the conduct of the Bosnian-Serb police forces during the
war in the Former Yugoslavia. Dr. Nielsen has testified as an expert witness
with respect to the structure and role of the police and the Bosnian-Serb
Ministry of Internal Affairs in proceedings before the ICTY.
[39]
Dr.
Nielsen has also worked as an Associate Analyst in the Investigations Division
of the Office of the Prosecutor at the International Criminal Court in The Hague. In addition, he has
published articles relating to ethnic cleansing in Croatia, Bosnia-Herzegovina
and Kosovo in the Encyclopedia of Migration (Santa Barbara: ABC Clio, 2005).
[40]
In
the course of both the pre-trial conference and the trial management process,
Mr. Rogan accepted Dr. Nielsen’s expertise with respect to the matters dealt with
in his report, disputing only the authenticity of pay records referred to by
Dr. Nielsen at footnote 33 of the report.
[41]
Dr.
Nielsen was qualified as an expert in relation to political, military and
social developments in Bosnia-Herzegovina generally, and more specifically, in
the municipality
of Bileća, between the November,
1990 multi-party elections in the Socialist Republic of Bosnia-Herzegovina and
the end of 1992.
[42]
In
particular, Dr. Nielsen’s expertise relates to the structure and function of police
and reserve police organizations under the Ministry of Internal Affairs,
including the role played by those bodies in the political and military
developments during the relevant period. Dr. Nielsen was also qualified as an
expert with respect to the Serbo-Croatian language.
B. The
Conflict in Bosnia-Herzegovina
[43]
The
historical evidence provided by Dr. Nielsen was extensive and was invaluable in
understanding the roots of the conflict in the former Yugoslavia, and the war in
Bosnia-Herzegovina in particular. While I have been greatly assisted by this
evidence, it is not necessary to review all of Dr. Nielsen’s evidence in
detail. Rather, I will provide a brief overview of certain key events in order
to address the issues relating to Mr. Rogan’s acquisition of Canadian
citizenship.
[44]
The
events giving rise to this matter took place in Bileća, a small town in
south-eastern Bosnia-Herzegovina, and, more precisely, in eastern Herzegovina. In 1991, the municipality of Bileća had a
population of just over 13,000 people, approximately 80% of whom were of Serb
ethnicity. Bosnian Muslims (now known as “Bosniaks”) made up nearly 15% of the
population, and a very small number of residents were Croats.
[45]
While
Bileća was a predominantly Serb town, the same could not be said for
Bosnia-Herzegovina as a whole, which Dr. Nielsen described as “an absolute
patchwork of ethnicities”, including Serbs, Muslims and Croats.
[46]
Dr.
Nielsen explained that Bosnian Serbs, Muslims and Croats all share a common
Southern Slavic ethnic origin, as well as a common language. The differences
between the groups are religious in nature. Bosniaks are of the Muslim faith,
whereas Bosnian Serbs are Eastern Orthodox Christians, and Bosnian Croats are
Roman Catholic.
[47]
The
constitution of the Socialist Federal Republic of Yugoslavia recognized certain
“nations”, which enjoyed the highest degree of constitutional protection
afforded by the Socialist Federal Republic of Yugoslavia. Serbs, Croats and
Muslims were each considered to be “nations”, and each had a strong group
identity as a national group, in addition to a religious affiliation.
[48]
Dr.
Nielsen stated that after 45 years of living in an officially atheist communist
state, the level of religious observance in all three groups had declined
significantly compared to what it had been prior to the creation of socialist
Yugoslavia. That said, with the rise in ethnic nationalism in the late 1980’s
and early 1990’s, religious observance also began to increase.
[49]
The
two largest groups living in Eastern Herzegovina were the Bosnian Serbs and Bosnian Muslims.
Prior to the 1990’s, these groups lived together in relative harmony. However,
the legacy of World War II, which saw massacres of the civilian population
perpetrated against both Bosnian Serbs and Bosnian Muslims, remained alive in
the collective memory of the region's population. These memories, combined with
an increasingly fractious political environment as Communism collapsed,
contributed to a dramatic rise in ethnic tensions in the late 1980’s, and to
general apprehension on all sides.
[50]
According
to Dr. Nielsen, November of 1990 was “a crucial tide mark in the history of Yugoslavia”. That month, the first
multi-party elections since World War II were held in Bosnia-Herzegovina. These
elections ended the Communists’ monopoly on power in Bosnia-Herzegovina, and in
Yugoslavia generally.
[51]
The
coalition that defeated the Communists in the November, 1990 elections was made
up of three nationalist parties: the Serbian Democratic Party (or “SDS”) - the
Bosnian Serb party led by Radovan Karadžić; the Bosnian Muslim Party of
Democratic Action (or “SDA”), led by Alija Izetbegović; and the Croatian
Democratic Union (or “HDZ”).
[52]
In
June of 1991, Croatia and Slovenia declared their independence from Yugoslavia. The decision of
Croatia to secede from Yugoslavia was severely contested,
not only by the Yugoslav federal military forces (including the Yugoslav Army
or “JNA”), but also by the sizable Serbian minority living in the Republic of Croatia. This led to
a protracted military conflict in Croatia, which finally came to a conclusion in 1995.
[53]
Dr.
Nielsen explained that the outbreak of armed conflict on the territory of the Republic of Croatia inevitably had a
spill-over effect into Bosnia-Herzegovina. As people in the former Yugoslavia
were aligning along ethnic lines, Croats in Bosnia aligned with Croats in Croatia in
supporting Croatian independence, while Serbs in Bosnia-Herzegovina supported
Serbs in Croatia who wished to maintain
a close relationship to the Yugoslav state. Bosnian Muslims found themselves
increasingly stuck politically and militarily between the Croats and the Serbs,
both of who were becoming radicalized by the war in Croatia.
[54]
Things
continued to escalate through the fall and winter of 1991 and into early 1992. The
Serb attack on Dubrovnik in November of 1991 led
to the area of eastern Herzegovina around Bileća becoming a military
staging ground for JNA forces, local reserve police units, and irregular
unofficial armed formations from Montenegro and Serbia. Military personnel would return to Bileća
from the front radicalized by their wartime experiences. This had very negative
consequences for the security situation in Bileća, and increased tensions
in the community.
[55]
By
the time war broke out in Bosnia-Herzegovina in early April of 1992, Bosnian
Muslims had voted for an independent state of Bosnia and Herzegovina, a prospect that was
unacceptable to Bosnian Serbs. Bosnian Serbs had, in turn, unilaterally
declared the creation of the “Republika Srpska” or Serb Republic, which came
into being in January of 1992 with Radovan Karadžić as its first
president. Bileća was located in this new entity.
[56]
As
tensions continued to escalate, Bosnian Serbs were arming their civilian
population. A decision was made to augment the ranks of the police by
activating the reserve police and putting these officers at the disposal of the
military. Hundreds of Bosnian Serbs were called up - some to serve in the
military, and others to serve with the reserve police forces. According to Dr.
Nielsen, all of this led to a “fraying” of command and control structure of the
police.
[57]
On
April 1, 1992, the Ministry of Internal Affairs of the Republika Srpska
unilaterally proclaimed that it had sole police jurisdiction throughout the Serbian Republic of Bosnia and Herzegovina. This covered all of eastern
Herzegovina including Bileća.
[58]
In
early April of 1992, Bosnian Serb paramilitary forces commenced the takeover of
Bijeljina in north-western Bosnia-Herzegovina, an event that is generally
regarded by international observers as the beginning of the war. In mid-April,
the Minister of National Defence of the Serbian Republic of Bosnia and Herzegovina commenced a full mobilization.
All military-aged males who were not already working in government jobs, in
vital economic positions, or in the military, Territorial Defence or police
forces were called up for reserve police or military service. The only way that
male Bosnian Serbs of military age could have avoided mobilization would have
been to flee illegally to other parts of the former Yugoslavia, or to go abroad.
[59]
The JNA
had become increasingly identified with the cause of the Bosnian Serbs, with
the result that many Bosnian Muslims and Croats resisted responding to
mobilization. In May of 1992, the JNA withdrew from Bosnia-Herzegovina
altogether. At that point, the remnants of the JNA, along with members of the
Territorial Defence force, formed the nucleus of the nascent Army of the
Republika Srpska.
[60]
At
the same time, employees of the Republika Srpska’s Ministry of Internal Affairs
were organized into war units. There was a complete militarization of the
police structure, including the issuing of military ranks to many police
commanders. The exigencies of the situation were such that little or no time or
resources were available to provide training for members of the reserve police.
[61]
After
the Republika Srpska’s Ministry of Internal Affairs began to function on the
territory controlled by Bosnian Serb forces, non-Serbs in the police were
either summarily dismissed or forced to take loyalty oaths to Republika Srpska.
However, Bosnian Muslim police employees in Bileća were not allowed to
express their loyalty to the new Serbian republic, and all non-Serbs were
forced out of the police, either by being explicitly dismissed, or through
extended unpaid sick leaves. Once armed hostilities engulfed a municipality,
the Bosnian Serb police often prioritized the detention and incarceration of
their erstwhile Bosnian Muslim and Croat colleagues.
[62]
According
to Dr. Nielsen, after April of 1992, the police in the Republika Srpska were no
longer operating as a police force primarily engaged in maintaining law and
order. On the contrary, internal Ministry documents confirm that for most of
1992, the Bosnian Serb police (both regular and reserve forces) were a combat
force that spent, by their own account, over 300,000 man-days in combat between
April and December of 1992.
C. Events in Bileća
[63]
According
to Dr. Nielsen, with the advent of Serbian rule in Bileća in early 1992,
the situation of the Bosnian Muslim population became very difficult. Muslims
in Bileća were intimidated by Serbs, who increasingly carried weapons in
public. At the same time, the police, together with the relevant military
authorities, undertook to disarm the non-Serb civilian population. Checkpoints
were erected in the municipality, and restrictions on the movement of Muslim
residents were imposed. Many Muslims lost their jobs, and most were afraid to
leave their homes because of safety concerns.
[64]
Dr.
Nielsen explained that a number of significant military operations during 1992
were conducted on the pretext of disarming the non-Serb civilian population.
These efforts often evolved into mass arrests of all male Bosnian Muslims and
Croats in a given area. These individuals would then be detained in camps,
prisons, barracks or other, irregular, detention facilities. Many of these
individuals were eventually expelled from the municipalities in question.
[65]
Dr.
Nielsen pointed to judgments of the ICTY which have determined that the
campaign to disarm Bosnian Muslims in Bileća municipality began on June
10, 1992. It resulted in the mass coordinated arrest of large numbers of
Muslim and Croat males by regular and reserve police forces.
D. Conclusion
Regarding the Evidence of Dr. Nielsen
[66]
It
is clear from the evidence of Dr. Nielsen that in 1991 and 1992 there was an
attack directed against the Muslim civilian population in Bosnia-Herzegovina generally,
and in Bileća in particular, which was both widespread and systematic.
[67]
The
attack was widespread in that it consisted of massive, frequent and large scale
actions carried out collectively with considerable seriousness and directed
against a multiplicity of victims. The attack against the Bosnian Muslim
civilian population occurred not only throughout the municipality of Bileća, but throughout the
entire Republika Srpska.
[68]
The
attack manifested itself in Bileća through the significant increase in the
number of armed Serb military, paramilitary and police units, and the arming of
the Serb civilian population by Serb authorities. This created fear in the
Bosnian Muslim civilian population, and threatened their safety. In addition
to the loss of their employment, the Muslims of Bileća also faced
restrictions on their travel, and the destruction or confiscation of their
homes. The attack culminated in the unlawful arrest and detention of the
Bosnian Muslim male population of Bileća by Serb authorities, and the
eventual ethnic cleansing of the area of the Bosnian Muslim civilian population
by Serb authorities.
[69]
The
attack against the Bosnian Muslim civilian population of Bileća was also
systematic, in that it was organized and followed the pattern of attacks occurring
throughout the Republika Srpska.
V. The Eyewitness
Testimony
[70]
It
is Mr. Rogan’s involvement in the detention of Muslim prisoners in detention
facilities in Bileća that the Minister says was knowingly concealed by Mr.
Rogan in his application for permanent residence in Canada. As a consequence,
before looking at the information provided by Mr. Rogan in connection with his
immigration application, it is first necessary to examine the events occurring
in Bileća in 1992, and the role played by Mr. Rogan in those events.
[71]
Five
witnesses provided first-hand evidence in this regard. These included Mr. Rogan
himself, as well as four Bosnian Muslim men who were arrested and held in
detention facilities in Bileća: Ramiz Pervan, Sabir Bajramovic, Huso
Hadzic and Kamel Hadzic.
A. Branko Rogan
[72]
Branko
Rogan is a Bosnian Serb, who was approximately 30 years old in 1992. He was
born and raised in Bileća, although there is a question as to where he
spent the years leading up to the outbreak of the war in Bosnia-Herzegovina.
This issue will be addressed later in these reasons.
[73]
Mr.
Rogan stated in his Statement of Defence that he “was not involved in guarding
and transporting Bosniak detainees”. However, Mr. Rogan now admits that he was
a reserve police officer in the early summer of 1992, and that he worked as a
prison guard at two detention facilities in Bileća during that time. Mr.
Rogan does, however, deny any direct or indirect role in the mistreatment or
abuse of detainees in those facilities.
[74]
Mr.
Rogan explained that after the war began in Bosnia-Herzegovina, he received a
call-up notice for military service. Mr. Rogan’s wife had just given birth to a
child, and a second child had just had surgery. As a consequence, Mr. Rogan
says that he obtained a medical note regarding his second child’s condition,
and went to the Bileća city hall where he asked not to be sent to the
battle front.
[75]
Mr.
Rogan testified that he was told to report to the police station in Bileća.
When he did so, he was told that he would be working as a reserve policeman,
guarding prisoners. Although Mr. Rogan was serving as a reserve police officer
when carrying out his guard duties, he wore a JNA military uniform, he had the
military rank of private or soldier and he was given a Kalashnikov to carry
while on guard duty.
[76]
Mr.
Rogan says that sometime later, he was told that he could no longer work as a
guard and would have to go to the front. At that point, Mr. Rogan fled Bileća,
ultimately rejoining his family in Belgrade, Serbia. Mr. Rogan had taken his family to
safety in Serbia in April or May of
1992.
[77]
Mr.
Rogan says that he began working as a prison guard on or around June 9, 1992.
He stated on his examination for discovery that he only completed eight shifts
as a guard at the two prisons, two shifts at one facility and six at the other.
In a statement given to the RCMP, Mr. Rogan claimed that he worked as a guard
for 15 days at the most.
[78]
However,
Mr. Rogan conceded in cross-examination that he really does not recall how long
it was that he worked as a guard at the detention facilities in Bileća.
Indeed, he stated that it could have been weeks, months or even a couple of
years.
[79]
Dr.
Nielsen testified that he had located Republika Srpska Ministry of Internal
Affairs payroll records for the summer of 1992. He stated that he had
personally obtained these documents from a police station in Banja Luka in November of 2002.
Dr. Nielsen has discussed the documents with Bosnian Serb police officers, who
have also corroborated their authenticity. It is Dr. Nielsen’s opinion that the
individuals listed in the payroll records were employed by the reserve police
in Bileća in the months listed.
[80]
Mr.
Rogan does not accept the authenticity of the documents. At the same time,
however, he does not dispute that the records accurately reflect the days that
he worked with the reserve police. Mr. Rogan also identified his father’s
signature appearing on the payroll documents as the individual who had
collected his pay. No explanation was provided by Mr. Rogan as to how his
father’s signature could have found its way onto a fabricated document.
[81]
I
accept Dr. Nielsen’s evidence that the payroll records produced by him are
authentic, and that they reflect the dates worked by reserve police officers in
Bileća in the summer of 1992. These records show that Mr. Rogan worked as
a reserve police officer for 20 days in June of 1992. This is consistent with
Mr. Rogan’s testimony that he began working as a guard on June 9. It is also
consistent with Dr. Nielsen’s evidence that the round-up and imprisonment of
Muslim men in Bileća began on June 10, 1992.
[82]
The
payroll records also show that Mr. Rogan worked as a reserve police officer for
31 days in July of 1992. There are no further entries for Mr. Rogan in the payroll
records.
[83]
Dr.
Nielsen testified that the absence of Mr. Rogan’s name from the payroll records
for August of 1992 is consistent with the fact that the Bosnian Serb Ministry
of Internal Affairs began to significantly reduce the number of individuals serving
as reserve police officers, beginning in July of 1992. Dr. Nielsen says that
107 reserve police officers from Bileća were sent to the front in August
of 1992, in furtherance of this objective. Mr. Rogan himself testified that he
fled Bileća after being told that he would have to go to the battlefront.
[84]
Based
upon Dr. Nielsen’s testimony and the payroll records, I am satisfied that Mr.
Rogan served as a reserve police officer and that he worked as a prison guard
in Bileća from June 9, 1992 to July 31, 1992.
[85]
Mr.
Rogan came to Canada as a refugee in 1994
and has been living in British
Columbia
with his family since that time. He became a Canadian citizen in November of 1997,
and is currently employed as a metal worker.
B. Ramiz
Pervan
[86]
Ramiz
Pervan lives in Sweden, where he and his
family were sent as refugees after Mr. Pervan’s release from detention. Mr.
Pervan lives on a disability pension as he continues to suffer significant
physical and psychological difficulties as a result of the treatment that he
endured while in prison in Bileća.
[87]
Mr.
Pervan was in his early forties in 1992. He had worked for many years as the
Vice-Commander of the Territorial Defence and General People's Protection force
in Bileća. Mr. Pervan became the Commander of the force in April of 1991,
after the previous Commander, himself a Muslim, fled from his post out of fear
of the pro-Serb Mayor of Bileća.
[88]
In
September of 1991, Mr. Pervan was relieved of his command responsibilities
after he expressed his reluctance to join the JNA in its attack on Dubrovnik. Mr. Pervan believes
that he was stripped of his position because he was a Muslim. Mr. Pervan was
then assigned to a position answering a telephone. He did this for several
months until he was sent home on an indefinite leave in February of 1992.
[89]
Mr.
Pervan’s description of his treatment is consistent with the evidence of Dr.
Nielsen regarding the way in which Muslim officers were excluded from the
police in Bileća during this period, including the fact that many were
simply sent home on extended leaves.
[90]
Mr.
Pervan testified that he spent the next several months confined to his home. He
was afraid to venture outside because Serbian paramilitary forces were roaming
the area, destroying everything that they encountered.
[91]
At
the time that he was sent home from his job, Mr. Pervan was told that Miroslav
Duka, the Commander of the police in the Municipality of Bileća during the war, had
ordered that he report to the police by phone twice daily, although there was
no suggestion that Mr. Pervan was suspected of having committed a crime. Mr.
Pervan did this until his arrest on June 11, 1992.
[92]
Mr.
Pervan’s family initially stayed in the family home after Mr. Pervan’s arrest.
However, the family’s Serb neighbours and long-time friends later came to the
Pervan home armed with an automatic rifle. The husband evicted Mr. Pervan’s
wife from her home, and she was forced to leave all of her possessions behind.
With no home and no source of income, Mr. Pervan’s wife was dependant on the
kindness of friends for her survival while her husband was in custody.
C. Sabir Bajramovic
[93]
Sabir
Bajramovic also now lives in Sweden, where he and his family were sent as refugees after his release
from detention. Like Mr. Pervan, Mr. Bajramovic is in receipt of a disability
pension, as he continues to suffer significant psychological difficulties,
which he described as “post-war trauma”, as a result of his experiences while
in detention in Bileća.
[94]
Mr.
Bajramovic was born and raised in a town near Bileća, and began living in Bileća
itself in 1977. Mr. Bajramovic spent more than 20 years working at a metal
fabrication factory known as “Kovnica” in Bileća, which was owned by the
Energoinvest Company.
[95]
Mr.
Bajramovic says that in May of 1991, he received a call-up notice to report to
the JNA to assist with preparations for the attack on Dubrovnik. Instead of reporting
for duty, Mr. Bajramovic fled with his family to Sarajevo. This resulted in him being fired from his
position at Kovnica.
[96]
While
he was living in Sarajevo, Mr. Bajramovic worked
as a bodyguard for Alija Izetbegović. Mr. Izetbegović was the head of
the Bosnian Muslim Party of Democratic Action, and the President of the
newly-declared independent country of Bosnia and Herzegovina.
[97]
The
Bajramovic family returned to Bileća in late December, 1991, in order to
celebrate the New Year with family. Because roads had become impassable for
Muslims, it was impossible for Mr. Bajramovic to return to Sarajevo after the holidays.
[98]
Mr.
Bajramovic says that he spent the next several months confined to his family
home in Bileća. According to Mr. Bajramovic, this was because there were
lots of Serb soldiers roaming the streets in Bileća, and the “killing
started to happen, and raping”. During this time Mr. Bajramovic says that “it
was better to be a dog than a Muslim”.
[99]
Two
or three days before Mr. Bajramovic’s arrest, he says that he was in the woods
near his home when Miroslav Duka and his police officers fired a rocket
launcher into the roof of his home, which then burned to the ground. Mr.
Bajramovic then took his family to his wife’s parents’ home on the outskirts of
Bileća.
[100] Mr. Bajramovic says that
he went to hide at his wife’s grandparent’s home, which was near the woods. He
explained that his plan was to try to flee into the woods in case of danger.
However, when the police came to the home on June 10, 1992, Mr. Bajramovic
decided to give himself up, as he was afraid that the police would set the
house on fire and harm the grandparents.
D. Huso Hadzic
[101] Huso Hadzic and his
family came to British
Columbia
as refugees in 1993. Mr. Hadzic is self-employed, and runs his own
long-distance telephone service business.
[102] Mr. Hadzic grew up in Bileća
with Branko Rogan, who he has known for most of his life as the two were a year
apart at school. Mr. Hadzic explained that religious identity was not a big
issue when he was growing up in Bileća, and that, as a child, he was not
conscious of the fact that he was a Muslim or that Branko Rogan was a Serb. Mr.
Hadzic testified that his wife is also a Serb.
[103] Mr. Hadzic worked at the
Kovnica factory in Bileća until 1987 or 1988, when he left to start a
business selling children’s toys at markets in Bileća and neighbouring
towns. Mr. Hadzic was not called up for military service when the conflict
started to heat up in Bosnia-Herzegovina, as he was ineligible for service.
Rather, he continued working as a market vendor until attacks on Muslims by
Serb soldiers returning from the front in April or May of 1992 made it
impossible for Mr. Hadzic to leave his home.
[104] Mr. Hadzic says that he
was not arrested in the initial round-up of Muslim males in early June of 1992.
He explains that the man sent to arrest him recognized Mr. Hadzic as the vendor
who had given a toy to the man’s child. After verifying that Mr. Hadzic did
not have any weapons in his home, the man left him alone. However, Mr. Hadzic
was arrested a few weeks later.
[105] It was Mr. Hadzic’s
actions that triggered the investigation into Branko Rogan’s activities during
the war in Bosnia-Herzegovina, which in turn led to these proceedings. Mr.
Hadzic explained that his wife spotted Mr. Rogan in a mall in Burnaby in 1996. After his wife
told him that Mr. Rogan was in British Columbia, Mr. Hadzic was able to track down his address,
and confirm that the individual living at that address was indeed Mr. Rogan.
Mr. Hadzic then contacted the RCMP.
[106] Mr. Rogan disputes Mr.
Hadzic’s claim that he only became aware of Mr. Rogan’s presence in Canada in 1996. According to
Mr. Rogan, Mr. Hadzic knew in advance that Mr. Rogan was coming to this country,
and Mr. Hadzic had seen Mr. Rogan on many occasions after he arrived in Canada in 1994. Why, then,
asks Mr. Rogan, did Mr. Hadzic wait four years to make a complaint to the RCMP?
[107] I agree with Mr. Rogan
that this does not make a great deal of sense. In my view, however, Mr.
Hadzic’s actions are more consistent with him only becoming aware of Mr.
Rogan’s presence in Canada in 1996. Accordingly, I
prefer Mr. Hadzic’s version of the events leading up to his complaint to the
RCMP.
E. Kamel
Hadzic
[108] Kamel Hadzic is Huso
Hadzic’s younger brother, who also now lives in British Columbia. He described an
idyllic childhood in Bileća, where he says, he often encountered Branko
Rogan who would be riding around Bileća on his bicycle.
[109] Kamel Hadzic returned to
Bileća in 1989, after completing his compulsory military service. Like his
brother, Kamel Hadzic worked as a market vendor, until he was called-up for
military service in September of 1991.
[110] In the latter part of
1991, Kamel Hadzic completed a four month rotation with the JNA during the
attack on Dubrovnik. He described seeing
homes set on fire by the JNA, and also testified to his conflicted feelings
participating in the attack. According to Mr. Hadzic, he felt that “this was
not my war”, and he was concerned by the fact that he had family living in Dubrovnik. He says that he
considered defecting to the other side of the conflict, but decided not to do
so as his defection would have jeopardized his family’s safety.
[111] Kamel Hadzic returned to
Bileća from the front in January of 1992, where he found that the
situation had deteriorated markedly. He stated that many Muslims had already
fled Bileća, and that his “so-called friends, Serbians” were singing
nationalistic songs and talking to him about what “your people” were doing to
the Serbs.
[112] In April of 1992, Kamel
Hadzic was once again called up for military service. Although he initially
refused to comply with this call-up, he was nevertheless sent to the front
lines in the western part of Herzegovina as an infantryman. After a month or so at the front, he was
injured by shrapnel and was sent back to Bileća.
[113] According to Kamel Hadzic,
on his return to Bileća he discovered that conditions had deteriorated to
the point that he was the only Muslim male who could walk freely in the town, which
he attributes to the fact that he was a war veteran. He decided to flee to Montenegro in June of 1992, but was
intercepted and arrested near the Montenegrin border.
VI. The Arrests and Detention of the
Eyewitnesses
[114] Ramiz Pervan, Sabir
Bajramovic, Huso Hadzic and Kamel Hadzic each described their arrests and the
treatment that they were subjected to while in detention. While none of these
individuals were themselves beaten by Mr. Rogan, as will be described below,
Messrs. Pervan and Bajramovic each suffered serious physical abuse during their
time in custody. All four eyewitnesses also suffered because of the conditions
in the detention facilities in which the men were held. These conditions will
be discussed later in these reasons.
A. Ramiz
Pervan’s Arrest and Detention
[115] Ramiz Pervan testified
that on June 11, 1992, four soldiers and a Commander came to his home to arrest
him. One of the soldiers hit Mr. Pervan and ordered him to get into a truck,
where other Muslim men were waiting. According to Mr. Pervan, one of the
soldiers told him to open his mouth. When he did so, the soldier put a gun into
his mouth and pulled the trigger, but the gun did not go off. The soldier told
Mr. Pervan that “This time you were lucky”. The soldier also told Mr. Pervan that
he had done this because Mr. Pervan had refused to go to the battlefield.
[116] Mr. Pervan testified
that he was taken to the police station in Bileća, and was led to the
office that he himself had occupied for 10 years. There were people waiting
there who he identified as members of the “White Eagles”, a Serb paramilitary
group. Mr. Pervan was told to put his hands on the wall, whereupon he was beaten
and kicked, suffering four broken ribs in the assault.
[117] Mr. Pervan says that he
fainted during the attack. When he awoke, Mr. Pervan saw the Mayor of Bileća
and the regional head of the Ministry of Internal Affairs looking at him. Mr.
Pervan knew these men, as he had previously worked with each of them. Mr.
Pervan said that both men just looked at him, and then turned away.
[118] Mr. Pervan says that
during this period, he could hear screams coming from other offices, which he
believed came from other Muslim men arrested that day.
[119] Mr. Pervan says later that
day, that approximately 60 men were taken by truck to the barracks on the
military base in Bileća (known as the “Moše Pijade” JNA compound). On his
arrival, Mr. Pervan encountered a Serb man that he knew by the name of Deputy
Lieutenant Branko Segrt. Mr. Pervan asked Deputy Lieutenant Segrt why he had
been arrested. According to Mr. Pervan, Deputy Lieutenant Segrt “probably felt
embarrassed at that moment because we were friends … He didn't look into my
eyes. He turned his head and he said, ‘You are arrested only because you are a
Muslim.’” Mr. Pervan testified that at no time during his arrest or detention
was he ever charged with an offence.
[120] Mr. Pervan describes the
detention facility on the military base as having been very clean and tidy.
While he says that prisoners were interrogated while being held at the military
barracks, he was not aware of prisoners being mistreated by the guards at that
facility.
[121] At one point during his
detention at the prison on the military base, a group of soldiers appeared at
the barracks, one of whom was introduced to Mr. Pervan as Branko Rogan. Mr.
Pervan testified that he did not recall having met Mr. Rogan previously,
although he says that he may have seen Mr. Rogan as a child, as Mr. Pervan knew
Mr. Rogan’s father, Radovan, and his father’s brother Pera very well. Mr.
Pervan described Radovan Rogan as “a very good, very nice man”.
[122] Mr. Pervan spent 15 days
in detention at the military barracks, after which he and the other prisoners
were then taken to a jail building next to the police station in central Bileća
(the “police station detention facility” or “lower jail”). Mr. Pervan remained
in detention at the police station detention facility until December of 1992.
[123] While he was being held
at the police station detention facility, Mr. Pervan was severely beaten by
Miroslav Duka and two other police officers. According to Mr. Pervan, Miroslav
Duka had previously been a very good friend of his. As a result of this
beating, Mr. Pervan says that he had blood coming out of his ears, nose and
mouth for 10 days, and that for the next year he was unable to move his head
without fainting.
[124] Mr. Pervan testified
that while he was in custody he would pray every night not to wake up in the
morning so that he would stop being a burden for his family.
[125] At no time while he was
in detention was Mr. Pervan provided with any medical attention for his
injuries. Mr. Pervan testified that he was hospitalized for his injuries upon
his arrival in Sweden, and that he continues
to suffer as a result of the beatings.
B. Sabir
Bajramovic’s Arrest and Detention
[126] Mr. Bajramovic testified
that when the police arrived at his wife’s grandparent’s home on June 10, 1992,
he left the home with his hands in the air saying “I surrender”. A neighbour
then began shooting at Mr. Bajramovic, and a bullet just missed him. Mr.
Bajramovic says that the shooting stopped when he said “Don’t shoot – I
surrender”.
[127] As Mr. Bajramovic
approached the police officers, he saw a relative of his whose arms were bound
and who had been badly beaten. Mr. Bajramovic and his relative were then driven
to the police station in Bileća where he was left in a room with his
brother and about 15 of his relatives.
[128] The next morning, a
reserve policeman by the name of Denda took Mr. Bajramovic into another room at
the police station where he was subjected to a severe beating. One of Mr.
Bajramovic’s assailants hit him on the head with a metal object, a blow so hard
that it took two years for the hair to grow back on Mr. Bajramovic’s scalp.
[129] Mr. Bajramovic says that
he lost consciousness during this beating, and that he woke up in a cell at the
police station. There were two other Muslim men in the cell with him, including
one of Mr. Bajramovic’s relatives. Both men had been badly beaten. Mr.
Bajramovic described the next two or three days as “torture, constant torture,
beating”.
[130] Mr. Bajramovic testified
that some of the police guards used what they called an “inductor” to inflict
torture on the prisoners. During this process, his hands would be cuffed,
electrodes would be attached to his ears, and an electrical current would then be
sent coursing through his body. Mr. Bajramovic stated that “this was really
horrible. And if I were to choose … between this electrical current torture and
being beaten by a baton, I would always choose to be beaten by a baton, by five
police officers, rather than being exposed to this torture by electrical
current.”
[131] Mr. Bajramovic remained
in this cell for a few days, after which he was taken to the cellar of a
student residence building, located some 300-400 metres from the police
station. This building was referred to in this proceeding as the “student
dormitory” or the “upper jail”.
[132] Mr. Bajramovic testified
that he was beaten by guards while he was in detention at the student dormitory,
and was subjected to electrical shocks five or six more times. Mr. Bajramovic
says that on one occasion the torture was so severe and lasted so long that a
police officer not involved in the torture came into the room and disconnected
the machine, as he could no longer stand listening to Mr. Bajramovic’s screams.
[133] Mr. Bajramovic says that
he was never given a reason for his arrest, nor was he ever charged with a
crime. According to Mr. Bajramovic, “It was enough that you are a Muslim or a
Catholic.”
[134] Mr. Bajramovic says that
he was held at the student dormitory until October of 1992, when he was
transferred to the jail near the police station. Mr. Bajramovic remained in
prison at the police station detention facility until he was released from
custody on December 17, 1992.
[135] Mr. Bajramovic was not
provided with medical care after his initial beating at the police station.
However, he says that he was taken to the hospital some time later. According
to Mr. Bajramovic, prisoners who showed signs of having been beaten were taken
to the hospital in advance of a visit to the Bileća detention facilities
by representatives of the International Committee of the Red Cross.
C. Huso Hadzic’s Arrest and
Detention
[136] In the spring of 1992,
Huso Hadzic and his family were staying at his mother’s home in Bileća. In
June of 1992, Mr. Hadzic’s wife had to go to the police station to obtain a
permit. This led to Mr. Hadzic being arrested and taken to the detention
facility adjacent to the police station. Mr. Hadzic testified that he remained
at the police station detention facility until his release from custody on
October 5, 1992.
[137] Mr. Hadzic testified
that although he was questioned while in detention, he was never beaten. He was
never charged with an offence, nor does he understand that he was suspected of
having committed any crime. Mr. Hadzic believes that he was arrested simply
because he was a Muslim. In support of this belief, Mr. Hadzic points to the
fact that there was only one Serb in the police station detention facility with
him, an individual who had many Muslim friends. Mr. Rogan agrees that all but
one or two prisoners at the police station detention facility were Muslim.
D. Kamel
Hadzic’s Arrest and Detention
[138] As mentioned earlier,
Kamel Hadzic was arrested in June of 1992, when he attempted to flee to Montenegro. He was taken to the
detention facility at the student dormitory along with the two men who had
accompanied him during his escape attempt.
[139] Mr. Hadzic testified
that on his arrival at the student dormitory, a police officer gave “a few
boots to the body” of one of the other men, although Mr. Hadzic himself was
never beaten. Mr. Hadzic testified that he was never charged with, or suspected
of having committed a crime, and that he believes that he was arrested simply
because he was a Muslim.
[140] Mr. Hadzic remained in
detention at the student dormitory facility until he was released in October of
1992. It appears from their descriptions of their release from detention that
the Hadzic brothers were released from prison on the same day, although Kamel
Hadzic says that he was released on October 10, 1992, while Huso Hadzic says
that he was released five days earlier. Nothing turns on the inconsistency in
their evidence in this regard, which I attribute to the fact that these events
occurred nearly 20 years ago. Indeed, it was clear throughout their testimony
that Huso and Kamel Hadzic’s recollections of their time in detention were not
as precise as the recollections of Ramiz Pervan and Sabir Bajramovic.
E. Findings
with Respect to the Reason for the Detentions
[141] Mr. Rogan testified that
at the time that he was working as a prison guard at the detention facilities
in Bileća, he assumed that the prisoners were in custody for refusing to respond
to military call-ups. He says that he now believes that the men were arrested
and detained for political reasons.
[142] While Mr. Pervan’s
reluctance to join the attack on Dubrovnik undoubtedly alienated his Serb colleagues, it
must be recalled that he was not arrested until approximately nine months after
being called-up for military service in September of 1991. When his arrest
finally came, it was in the general round-up of Muslim males described by Dr.
Nielsen that began on June 10, 1992.
[143] Similarly, while Mr.
Bajramovic’s involvement with the Bosnian Muslim Party of Democratic Action and
Alija Izetbegović may have contributed to the abuse that he suffered while
in detention, this involvement dated back some years, yet he was not arrested
until the June 10, 1992 round-up of Muslim males.
[144] Neither Huso nor Kamel
Hadzic had any political involvement. Kamel Hadzic had actually served with the
Serb forces at the front lines and been injured in the process. Huso Hadzic was
exempt from military service.
[145] Moreover, all of the
witnesses (including Mr. Rogan) agreed that, with one or two exceptions, all of
the prisoners held in both the police station and student dormitory detention
facilities were Muslim men. In some cases, the prisoners were elderly. None of
the witnesses arrested were ever charged with any offence.
[146] Having regard to all of
this evidence, I find on a balance of probabilities that Mr. Pervan, Mr.
Bajramovic and the Hadzic brothers were arrested and detained because they were
Muslim men living in Bileća in June of 1992. I am further satisfied that
these arrests were the culmination of a progressive series of human rights
limitations imposed upon the Bosnian Muslim civilian population of Bileća
by Serb authorities.
[147] In light of the
widespread and public nature of the punitive measures inflicted on the Muslim
population of Bileća at this time, I am also satisfied that Mr. Rogan
would have had to have known that the men held in the police station and
student dormitory detention facilities in Bileća had been arrested and
were being detained simply because they were Muslim men living in Bileća
in June of 1992.
VII. The Conditions in the Detention
Facilities
[148] As was noted in the
preceding section of these reasons, Ramiz Pervan and Huso Hadzic were held at
the detention facility at the police station in Bileća, while Sabir
Bajramovic and Kamel Hadzic were held at the student dormitory detention
facility. Each witness provided a detailed description of the difficult living
conditions in those facilities. Mr. Rogan also testified to the conditions
under which the prisoners were held.
A. The Police
Station Detention Facility
[149] The police station
detention facility was located beside the Bileća police station, with a
small yard separating the two buildings. Prior to the war, the building had
been used for storage.
[150] The witnesses gave
varying estimates of the size of the building, with Mr. Rogan estimating that
the floor plate of the building was approximately 30 feet by 25 or 26 feet, or
some 750 to 780 square feet in area. The building was divided into a series of
rooms divided by a central corridor. Some of the rooms were used for storage,
and were not accessible to the prisoners. One of the rooms available to the men
had coal in it, and the prisoners had to put wooden boards over the coal so
that they could sleep in the room.
[151] Mr. Pervan testified
that he shared a three by four metre room with 18 other prisoners. He stated
that the room was so crowded that the prisoners had to build a second tier or
level within the room in order to allow each prisoner to lie down at night.
[152] Mr. Pervan explained
that there were initially 62 men in custody at the police station detention
facility, and that another 48 men were brought in later. Huso Hadzic estimated
that there were between 120 and 150 prisoners in the jail at the time that he
was there. Both men agreed that the detention facility was extremely crowded.
[153] Mr. Rogan testified that
he had no idea how many men were being held at the police station detention
facility, although he did not take issue with the estimates provided by other
witnesses. Dr. Nielsen’s research has uncovered internal Republika Srpska
documents which indicate that, at one point, 150 men were held at the police
station detention facility.
[154] It is not necessary to
arrive at a precise figure as to the number of detainees held at the police
station detention facility. All of the witnesses, including Mr. Rogan, agreed
that the prison area was extremely crowded. Because of the lack of space, the
men were forced to sleep in a head-to-toe line in the rooms available to them,
including the corridor. Mr. Rogan agrees that there were no beds in the jail,
and that no mattresses, blankets or pillows were provided by the authorities to
the detainees. Prisoners were, however, allowed to receive bedding from their
families.
[155] There was one washroom
in the detention facility, which contained a latrine-style squat toilet and a
sink. There were no bathing facilities. Mr. Pervan testified that he wore the
same clothing throughout the six months of his detention, and that he was only
able to wash the lower half of his body twice during the time that he was in
custody. Huso Hadzic testified that his wife would sometimes bring him bottles
of hot water to wash with.
[156] Prisoners also did not
have access to soap, shampoo, toothbrushes or toothpaste. Mr. Pervan testified
that he lost most of his teeth during his time in detention.
[157] Mr. Rogan testified that
Bileća in the summer is very hot, “like Mexico” he said, with temperatures going up to 40
degrees Celsius. He agreed that the prisoners were never allowed to go outside,
and that the body heat of all of the people living in the confined area of the police
station detention facility increased the temperature inside the prison. Mr.
Pervan did point out, however, that the windows in the facility provided some
relief.
[158] Mr. Rogan agrees that no
food was provided to the detainees by prison officials. However, the families
of the detainees were allowed to bring food to the prisoners each day. Mr.
Pervan and Mr. Rogan agree that meals could only be brought in once per day.
Huso Hadzic believes that food could initially be brought in twice a day, but
that was reduced to once a day after a period of time.
[159] The meals were passed to
the prisoners through a small window. Mr. Pervan and Huso Hadzic testified that
prisoners had to eat the food brought by their families immediately after it
was delivered. Mr. Rogan disputes this, saying that if a family member brought
enough food for 10 meals, then the prisoner would be able to have 10 meals in a
day. I do not accept this testimony. It is clear that prisoners did not receive
sufficient food while in custody. Indeed, Mr. Pervan testified that he lost 34
kilograms during his time in detention, whereas Huso Hadzic says that he lost
half of his body weight.
[160] Finally, as will be
discussed further on in these reasons, some of the detainees at the police
station detention facility were physically mistreated, and all of the prisoners
regularly had to listen to the screams and pleas of fellow detainees as they
were being beaten, never knowing who the next victim would be.
B. The Student
Dormitory Detention Facility
[161] Sabir Bajramovic and
Kamel Hadzic each testified with respect to the conditions at the student
dormitory detention facility.
[162] They stated that 70-80
prisoners were held at the student dormitory detention facility. Mr. Bajramovic
was held in a room in the basement of the building that was approximately 15
square metres in size. There were 20 people in the room, requiring the
prisoners to sleep in a head-to-toe position in order to accommodate all of them.
[163] Mr. Rogan claimed to
have no knowledge of anything occurring within the prisons, including the
overcrowding of the prisoners in the student dormitory detention facility. At
the same time, he agreed that the prisoners in the police station detention
facility lived in very crowded conditions. When it was put to him in
cross-examination that prisoners at the student dormitory detention facility also
lived in excessively crowded conditions, he responded in a flippant tone by
asking “Is that my problem?”, a response that demonstrated an utter disregard
for the welfare of the prisoners.
[164] Prisoners at the student
dormitory detention facility had to sleep on the floor, and were not allowed to
change their clothing or wash themselves. Kamel Hadzic testified that his
sleeping space was approximately 16-18 inches wide. As was the case with the
police station detention facility, no beds or bedding was provided to the
prisoners although family members could bring in blankets for their loved ones.
[165] Food was brought to the
prisoners by family members. Sabir Bajramovic and Mr. Rogan agreed that meals
were brought in once a day, whereas Kamel Hadzic suggested that on occasion,
food was brought in twice a day. Mr. Bajramovic clearly had a more precise
recollection of his time in custody than did Kamel Hadzic, and I prefer his
evidence on this point.
[166] The prisoners had to
consume their food as soon as it was handed out, so that the containers could
be returned to the prisoners’ families. Mr. Bajramovic testified to the weight
loss that he suffered while in detention, explaining that three months after he
was liberated he still weighed only 54 kilograms (or 119 pounds). Mr.
Bajramovic is 190 centimetres (or approximately 6’3”) tall. Kamel Hadzic also
testified that he lost a lot of weight while in detention.
[167] Kamel Hadzic and Sabir
Bajramovic each testified that there was only one washroom available to
prisoners at the student dormitory, with a single urinal and a latrine-style
toilet. Mr. Rogan disputes this, pointing out that the building had previously
accommodated 140 students, suggesting that there must have been more washroom
facilities available. I prefer the evidence of Messrs. Hadzic and Bajramovic
in this regard. They were the ones actually living in the space, and would thus
be in the best position to know what washroom facilities were available. In
contrast, Mr. Rogan’s evidence was based upon speculation.
[168] Kamel Hadzic confirmed
that it was very hot in the student dormitory, and that the air quality was
poor. Prisoners were unable to open the windows, and the sanitary condition of
the space was terrible. Mr. Hadzic stated that he was unable to shower for four
months, and was only able to take the occasional sponge bath. According to Mr.
Hadzic, the close proximity of numerous unwashed bodies added to the oppressive
atmosphere.
C. Findings Regarding the Conditions
of Detention
[169] Based upon the foregoing
evidence I am satisfied that Muslim prisoners, including Messrs. Pervan,
Bajramovic and the Hadzic brothers, were held in inhumane conditions in the police
station and student dormitory detention facilities in Bileća in 1992.
[170] I note that my
conclusion is consistent with documentary evidence emanating from the Bosnian
police themselves, which stated that the detention facilities operated by the
police were inadequate. There is also contemporaneous documentation in which
the military of the Republika Srpska criticizes the conditions in
police-operated detention facilities and the large-scale manner in which the
police conducted mass detentions of non-Serbs.
[171] I would further note
that while I have based my findings with respect to the conditions under which
prisoners were held at the police station and student dormitory detention
facilities in Bileća in 1992 solely on the evidence before me, my findings
are nevertheless consistent with findings made by the ICTY with respect to the
conditions in the detention facilities in Bileća: see Prosecutor v.
Momčilo Krajišnik, ICTY, Case No. IT-00-39-T (27 September 2006), at
para. 614. The International Committee for the Red Cross and United Nations
High Commissioner for Refugees have also each independently come to the conclusion
that conditions in the detention facilities did not conform to appropriate
international and domestic standards.
[172] I am also satisfied that
Mr. Rogan was aware of the conditions under which the prisoners were being held
at the police station and student dormitory detention facilities.
D. The
Attacks on the Detention Facilities
[173] Before leaving the issue
of the living conditions at the detention facilities in Bileća, there is
one further matter that bears comment. All four of the eyewitnesses testified
that there were armed assaults on both the police station and student dormitory
detention facilities, which involved shots, tear gas and firebombs being fired
into the prisons.
[174] Mr. Pervan and Mr.
Bajramovic did not indicate when the assaults occurred, and it appears from the
evidence of Huso Hadzic that the attack on the police station detention
facility may have occurred after Mr. Rogan left his position as a prison guard.
Kamel Hadzic was clear in his evidence that the assault on the student
dormitory detention facility took place after the reserve police stopped
working as prison guards, which occurred at the end of July, 1992. Mr. Rogan
testified that although he had heard about the attacks after he came to Canada, they occurred after he
left Bileća.
[175] Given that the attacks likely
occurred after Mr. Rogan left his position as a prison guard, I have not taken
the assaults on the detention facilities into consideration in examining the
condition under which the prisoners were held.
VIII. The Abuse of Prisoners in the Detention
Facilities
[176] All four prisoner
eyewitnesses testified that the beating of prisoners was a routine occurrence
in both the police station and student dormitory detention facilities. The
beatings sustained by Ramiz Pervan and Sabir Bajramovic have already been
described earlier in these reasons. Mr. Bajramovic also testified that his
cousin, Fehrat Avdic, was beaten to death while in detention. Dr. Nielsen
testified that his research has determined that two detainees were killed in
the detention facilities in Bileća in 1992.
[177] Not all of the prisoners
were physically mistreated, as is evidenced by the fact that neither of the
Hadzic brothers was ever beaten while in detention. Mr. Pervan stated that
about 20% of the prisoners were beaten. Kamel Hadzic suggested that prisoners
who were suspected of having been engaged in political activities or of having
guns were singled out for abuse. Indeed, Mr. Bajramovic’s public role as a
bodyguard for Alija Izetbegović may explain why he was beaten and tortured
so often and so badly. Similarly, Mr. Pervan testified that Miroslav Duka
suspected him of giving arms to an opposition group, which may have been a
factor in his mistreatment.
[178] While Mr. Rogan claimed not
to have known what was going on inside the police station and student dormitory
detention facilities while he was working there, elsewhere in his testimony he
stated that he knew what was happening inside the prisons, but that it was not
his business.
[179] Mr. Rogan asserted that
that none of the guards were forced to abuse prisoners. At the same time, he
acknowledged that he was aware that beatings were in fact occurring. In support
of his contention that he was not involved in the mistreatment of prisoners,
Mr. Rogan described an incident where two policemen brought a prisoner into one
of the detention facilities. Mr. Rogan stated that he assumed that the
policemen might beat the prisoner, so he left the area as he wanted no part of
it. He says that “when everything was finished” he returned to the area,
whereupon the prisoner thanked Mr. Rogan for not beating him as well.
[180] When it was put to Mr.
Rogan that witnesses had described prisoners being returned to their cells in
an unrecognizable condition, with bruises, broken ribs and swollen faces, Mr.
Rogan did not deny that this occurred. He simply stated that this “could be”,
while insisting at the same time that he had never personally beaten a
prisoner.
[181] Mr. Rogan confirmed that
while he was still in Bileća he heard that a prisoner had been killed by
the police, although he says that he was not on duty at the time of the
prisoner’s death. Mr. Bajramovic stated that Fehrat Avdic was killed after Mr.
Bajramovic was transferred to the police station detention facility, which
occurred in October of 1992. This was after Mr. Rogan had left Bileća.
However, Dr. Nielsen testified that two prisoners were killed in the
detention facilities in Bileća in 1992, and thus it may be that Mr. Rogan
was told about the death of the other prisoner.
[182] Mr. Rogan also described
walking by the police station during this period and hearing screams coming
from the building.
[183] As a result of these
admissions, I have no doubt that at the time that he was working as a prison
guard at the police station and student dormitory detention facilities in Bileća,
Mr. Rogan was well aware of the physical abuse to which prisoners were being
subjected.
[184] The next question to be
determined is whether Mr. Rogan himself ever participated directly in the abuse
of prisoners.
IX. Mr.
Rogan’s Actions at the Detention Facilities
[185] While Mr. Rogan now
concedes that he worked as a guard at both the police station and student
dormitory detention facilities in the summer of 1992, he insists that he was
never personally involved in the abuse of prisoners. He did say, however, that
it would have been open to him to beat or even kill any of the prisoners, had
he wanted to do so.
[186] Mr. Rogan’s presence as
a guard at the police station detention facility was confirmed by Ramiz Pervan
and Huso Hadzic, who saw him working there on a number of occasions. Sabir
Bajramovic and Kamel Hadzic each recalled seeing Mr. Rogan working as a guard
at the student dormitory detention facility. Mr. Bajramovic testified that he
saw Mr. Rogan working at the student dormitory on 15 to 20 occasions. Kamel
Hadzic stated that Mr. Rogan worked at the student dormitory during the first
two months that he was in custody, after which the regular police took over the
guarding of the prisoners.
[187] According to Mr.
Bajramovic, Huso Hadzic and Kamel Hadzic, Mr. Rogan was often drunk while on
duty. Mr. Rogan himself acknowledged that when he was on guard duty, he sometimes
left his post in order to visit the bars and cafés of Bileća. Kemal Hadzic
also stated that Mr. Rogan would close the windows in the prisoner area, that
he would not allow any of the prisoners’ families to see them, and that he
tried to psychologically abuse the prisoners.
[188] Ramiz Pervan, Huso
Hadzic and Sabir Bajramovic all testified that Mr. Rogan was one of the guards
who would call out a prisoner’s name and take the person out of the prisoner
area. Mr. Rogan would later return the prisoner to the living area with the
prisoner appearing to have been badly beaten.
[189] None of the four eyewitnesses
was ever beaten by Branko Rogan. However, the witnesses provided evidence of
abuse inflicted on other prisoners by Mr. Rogan. Huso Hadzic identified Sadam
Mujacic as one of the prisoners taken out of the prisoner area by Branko Rogan,
although no information was provided as to what happened to Mr. Mujacic. Three
other individuals were identified by witnesses as having been beaten by Mr.
Rogan. These were Sreco Kljunak, Munib Ovcina and Asim Catovic. The evidence
regarding each of these individuals will be discussed next.
A. The Assault
on Sreco Kljunak
[190] The only witness to
actually see Mr. Rogan strike a prisoner was Kamel Hadzic. Mr. Hadzic testified
that while he was imprisoned at the student dormitory detention facility, he
personally witnessed Mr. Rogan enter the prisoner area and call for a prisoner
by the name of Sreco Kljunak. Mr. Kljunak was Mr. Hadzic’s second cousin.
According to Sabir Bajramovic, Mr. Kljunak was a child of a mixed marriage,
with Serbs, Muslims, and Catholics in his family.
[191] Mr. Hadzic testified
that as Mr. Kljunak approached Mr. Rogan, Mr. Rogan said something to Mr.
Kljunak. Before Mr. Kljunak had a chance to respond, Mr. Rogan struck Mr.
Kljunak in the face. According to Mr. Hadzic, Mr. Rogan then took Mr. Kljunak
out of the prisoner area.
[192] Mr. Hadzic says that he then
heard Mr. Kljunak screaming and yelling. He also heard Mr. Kljunak begging
“Stop, don’t do it, don’t do it.” A few minutes later, Mr. Kljunak was returned
to the prisoner area. Mr. Hadzic testified that Mr. Kljunak was red in the face,
although Mr. Hadzic did not see any blood on him. It is a reasonable inference
that Mr. Kljunak was beaten during the time that he was outside the prisoner
area. Mr. Hadzic also testified that Mr. Kljunak told him that he had been
beaten by Mr. Rogan.
[193] Mr. Rogan denies ever
having struck Mr. Kljunak. Indeed, he insists that he never even entered the
detention facilities, always remaining outside the buildings that he was
assigned to guard. However, Mr. Rogan’s testimony on this latter point is
difficult to reconcile with his claim that he was very good to prisoners, going
so far as to bring food, medication and alcohol inside to the prisoners.
Mr. Rogan also testified that on two occasions he brought things to Huso Hadzic
inside the prison that had been delivered to the detention facility by
Mr. Hadzic’s father or wife.
[194] I prefer the evidence of
Kamel Hadzic to that of Mr. Rogan as it relates to the Sreco Kljunak incident.
Mr. Hadzic’s evidence on this point was consistent and clear, and he bore no
evident animosity towards Mr. Rogan. Indeed, Mr. Rogan himself described Mr.
Hadzic as “a good guy”.
[195] In contrast, Mr. Rogan’s
testimony with respect to the role that he played as a guard at the Bileća
detention facilities in the summer of 1992 has varied over the years, as he
repeatedly tried to minimize his involvement in the detention and abuse of
prisoners.
[196] While other
inconsistencies in Mr. Rogan’s evidence will be discussed further on in these
reasons, one example of the shifting nature of his evidence will illustrate the
point. Mr. Rogan testified at the trial that his duties as a reserve policeman
were not limited to guarding prisoners at the two detention facilities, and
that in the brief time that he worked as a reserve police officer he also
guarded a hotel, patrolled the streets of Bileća, and guarded the highway.
However, Mr. Rogan stated on his examination for discovery that his only orders
were to guard the student dormitory and police station detention facilities,
and nothing else. He specifically denied ever patrolling the streets of Bileća.
[197] As I observed in the
section of these reasons dealing with the applicable legal principles, evidence
in a proceeding such as this is to be examined with great care. Based upon Mr.
Hadzic’s first-hand observations, I am satisfied on a balance of probabilities
that Mr. Rogan struck Sreco Kljunak in the face. I am not, however, prepared to
accord any weight to Mr. Hadzic’s evidence that Mr. Kljunak told him that Mr.
Rogan had beaten him, as Mr. Hadzic’s evidence on this point is hearsay and lacks
corroboration. Moreover, no explanation was provided by the Minister as to why
Mr. Kljunak could not himself testify with respect to his experiences.
[198] I note that Sabir
Bajramovic testified that Mr. Kljunak was one of the badly beaten prisoners in
hospital with him. However, it is not clear when that occurred relative to the
incident witnessed by Huso Hadzic, or whether Mr. Kljunak’s hospitalization
resulted from the beating described by Mr. Hadzic or from a different assault.
[199] That said, based upon the
proximity in time between the removal of Mr. Kljunak from the prisoner area by
Mr. Rogan and the screams heard by Kamel Hadzic, I find that, at a minimum, Mr.
Rogan personally and knowingly facilitated and was complicit in the beating of
Mr. Kljunak.
B. The Beating
of Munib Ovcina
[200] Munib Ovcina was a
professor and a Muslim prisoner being held in the police station detention
facility in Bileća in the summer of 1992.
[201] Huso Hadzic testified
that he witnessed Munib Ovcina being called out of the detention facility by
Mr. Rogan on a number of occasions. Mr. Hadzic says that on one occasion,
Professor Ovcina was called out and never came back. Mr. Hadzic stated that he
heard that Professor Ovcina had been sent to hospital.
[202] Ramiz Pervan testified
to seeing the guards take Professor Ovcina out of the prisoner’s living area,
along with several other prisoners. Mr. Pervan says that he then heard screams,
following which Professor Ovcina and the others were returned to the prisoner
area in an unrecognizable condition. Mr. Pervan stated that Professor Ovcina
was taken from the police station detention facility by ambulance the next day.
[203] Sabir Bajramovic
testified that Professor Ovcina was one of the badly beaten prisoners in
hospital with him.
[204] Mr. Rogan denies ever
having beaten Munib Ovcina. He further states that he has reviewed a statement
given to the RCMP by Professor Ovcina, and that Mr. Rogan’s name was never
mentioned in it. Counsel for the Minister did not challenge this statement in
cross-examination, and Professor Ovcina’s statement was never put to Mr. Rogan
or otherwise entered into evidence.
[205] Mr. Rogan testified that
Professor Ovcina was living in Burnaby, British Columbia after the war, although he has since
returned to Bosnia. No explanation was
provided by the Minister for not calling Professor Ovcina as a witness.
[206] Mr. Pervan’s testimony
does not link Mr. Rogan to the beating of Professor Ovcina. I am prepared to
accept Huso Hadzic’s testimony that he saw Professor Ovcina being called out of
the police station detention facility by Mr. Rogan. However, Mr. Hadzic did not
see Professor Ovcina after that, and thus there is little direct or
circumstantial evidence to link Mr. Rogan to the abuse of Professor Ovcina.
[207] I am also troubled by
the Minister’s failure to challenge Mr. Rogan’s assertion that Professor Ovcina
never implicated Mr. Rogan in his abuse in the statement that he provided to
the RCMP. When I raised my concern with counsel for the Minister during final
argument, counsel offered to produce Professor Ovcina’s statement, although
counsel did not suggest that Mr. Rogan’s name actually appeared in it.
[208] I refused to admit the
statement at that late stage in the proceeding. In my view, it would have been
unfair to Mr. Rogan to do so. Not only was Mr. Rogan not in attendance during
the final argument, more importantly, the statement had not been put to him in
cross-examination, and he had thus not been afforded the opportunity to respond
to it in his testimony.
[209] Considering the
conflicts and gaps in the evidence in relation to the beating of Professor
Ovcina, I decline to make any finding in this regard.
C. The Beating of Asim Catovic
[210] Another prisoner held at
the police station detention facility along with Ramiz Pervan and Huso Hadzic
was an elderly Muslim man by the name of Asim Catovic, who was also known by
the nickname “Malovilo”.
[211] Sabir Bajramovic
described an incident involving Asim Catovic and Mr. Rogan occurring some
months before the outbreak of war in Bosnia-Herzegovina which suggests that
there may have been pre-existing bad blood between Mr. Catovic and Mr. Rogan.
[212] Mr. Bajramovic testified
that he had attended a political rally held in the Sports Hall in Bileća
in 1991, and that Mr. Rogan was also present at the rally. Mr. Bajramovic
described Mr. Rogan as a member of the Serb Democratic Party and an extremist.
Mr. Bajramovic says that in the course of the meeting Mr. Rogan made
threatening comments aimed at Muslims, and that Mr. Catovic publicly took issue
with Mr. Rogan’s comments.
[213] While Mr. Rogan denied
ever being a member of the Serb Democratic Party, he confirmed that he was in
attendance at the political rally referred to by Mr. Bajramovic. He also
conceded that he may have made a speech at the rally that angered the Muslims
in attendance. Finally, he did not dispute that he may also have made
threatening anti-Muslim comments at the rally, and that Mr. Catovic may have
spoken out against him.
[214] Ramiz Pervan testified
that Mr. Catovic and his son were in detention with him at the police station
detention facility. One day, Mr. Pervan was looking out of a window that
overlooked the yard between the police station and the adjoining detention
facility. He saw Mr. Rogan approaching the detention facility, calling for Mr.
Catovic, saying “Malovilo, come here”. Mr. Pervan then observed Mr. Catovic and
Mr. Rogan leave the detention facility and go into the police station building
next door. According to Mr. Pervan, “for the next hour, we are listening to [Mr.
Catovic] scream”.
[215] Mr. Pervan went on to
state that “After one hour, Malovilo stays there. Rogan is coming back here and
he's calling his son […] He's calling his son's name, ‘Come here, come to tell
you something’”. According to Mr. Pervan, Mr. Rogan then asked Mr. Catovic’s
son “Did you hear how I killed your father?” Mr. Pervan says that the son was
afraid to say anything other than “Yes”. Mr. Rogan then told Mr. Catovic’s son
that “As long as I am a guard, this is going to happen. This is always going to
happen to him.”
[216] Mr. Pervan stated that
Mr. Catovic later returned to the detention facility and immediately went to
lie down in his cell.
[217] Mr. Rogan came back
later that same day and once again called for Mr. Catovic, whereupon the same
routine was repeated. Mr. Catovic was taken from the detention facility, and
screams and cries were heard emanating from the police station for
approximately an hour. Mr. Rogan then returned to the detention facility, once
again asking Mr. Catovic’s son if he had heard how Mr. Rogan had killed his
father. According to Mr. Pervan, this time, Mr. Catovic’s son did not respond.
[218] Mr. Pervan did not know
why Mr. Rogan singled Mr. Catovic out for this abuse. He stated however, that
the routine was repeated on seven to 10 occasions, and that each time it was
Mr. Rogan who took Mr. Catovic from the detention facility.
[219] According to Mr. Pervan,
Mr. Catovic would usually return to his cell and go to lie down after these
episodes. However, on one occasion, Mr. Pervan encountered Mr. Catovic in the
washroom. Mr. Pervan observed that Mr. Catovic’s body “was totally black,
because of the beating”.
[220] As was mentioned
earlier, Huso Hadzic’s recollection of events during his time in detention at
the police station jail was less precise than that of Mr. Pervan. Mr. Hadzic
says that he saw Mr. Rogan call for prisoners and leave the detention facility
with them on a regular basis, only to have the prisoners return some time later
appearing to have been badly beaten. Mr. Hadzic recalls seeing Asim Catovic
after a beating, although he is unclear as to whether Mr. Catovic had been in
the police station detention facility prior to the beating.
[221] According to Mr. Hadzic,
Mr. Catovic’s face was unrecognizable, and he lifted his shirt to show his
bruises to the other prisoners. Mr. Hadzic testified that “it was really really
bad and disturbing to look at”. Mr. Hadzic also stated that Mr. Catovic told
the prisoners that Mr. Rogan had beaten him. Mr. Hadzic only referred to one
beating in relation to Mr. Catovic, and did not mention hearing Mr. Rogan tell
Mr. Catovic’s son that he had killed his father.
[222] Mr. Pervan says that Mr.
Catovic did not receive any medical treatment while at the police station
detention facility and that Mr. Catovic subsequently left the prison. However,
it will be recalled that Sabir Bajramovic testified that he was taken to
hospital in advance of a visit to the prison by representatives of the
International Committee of the Red Cross as he still showed the physical
effects of his beating. Mr. Bajramovic stated that one of the other prisoners in
hospital with him was Asim Catovic.
[223] Mr. Bajramovic testified
that Mr. Catovic “looked very bad”. When the other prisoners asked Mr. Catovic
what had happened to him, Mr. Catovic told the prisoners that Mr. Rogan had
beaten him.
[224] Mr. Rogan acknowledged
that he knew Asim Catovic before the war, stating that Mr. Catovic was
associated with the “Muslim Party”. It should also be noted that Mr. Rogan
displayed real antipathy towards Mr. Catovic in his testimony, describing Mr.
Catovic as a very arrogant fundamentalist Muslim. Mr. Rogan further concedes
that Mr. Catovic may have been beaten while in detention, although he denies
having anything to do with it.
[225] Mr. Rogan attacked Mr.
Bajramovic’s credibility on this and other points on the basis that Mr.
Bajramovic had not mentioned Mr. Rogan’s name in a statement that he gave to
the Swedish police. At Mr. Rogan’s request, and with the consent of the Crown,
the statements given by Sabir Bajramovic were entered into evidence.
[226] It is evident on the
face of the document that the statement referred to by Mr. Rogan was given in
relation to an investigation into the conduct of Miroslav Duka, the Commander
of the police in Bileća during the time in issue in this proceeding. This
statement does not contain any reference to Mr. Rogan. However, two other
statements given by Mr. Bajramovic to police authorities (one given earlier and
one given later) do mention Mr. Rogan by name. The content of these statements
is largely consistent with the testimony provided by Mr. Bajramovic to this
Court.
[227] I do not attach the same
significance to the fact that Mr. Rogan is not mentioned by name in Mr.
Bajramovic’s second statement as does Mr. Rogan. The second statement was provided
in relation to an investigation into the actions of Miroslav Duka, not Mr.
Rogan. Mr. Bajramovic had already provided considerable evidence to the Swedish
police implicating Mr. Rogan in the abuse of prisoners, and there would have
been no reason for him to repeat all of this evidence a second time in
connection with a different investigation. Moreover, whenever Mr. Bajramovic
did discuss the conduct of Mr. Rogan in his pre-trial statements, his evidence
was largely consistent with his testimony at trial. As a consequence, I attach
no weight to the failure of Mr. Bajramovic to mention Mr. Rogan in the
statement provided in connection with the Duka investigation.
[228] Mr. Rogan also denies
making the statements to Mr. Catovic’s son attributed to him by Mr. Pervan,
insisting that he did not even know that Mr. Catovic had a son. According to
Mr. Rogan, M. Pervan “lies incredible lies”. Mr. Rogan also claimed
that the evidence against him was fabricated, suggesting that it was the
product of hatred between Serbs and Bosnian Muslims.
[229] I do not accept Mr.
Rogan’s suggestion that the evidence against him results from a Muslim
conspiracy. There is no evidence before me that would suggest any collusion
between the witnesses. While it is reasonable to assume that the Hadzic
brothers have been in regular contact since their release from prison, there is
nothing that would suggest that there has been any communication, let alone
collusion, between the other eyewitnesses and the Hadzic brothers.
[230] When it was put to Mr.
Rogan in cross-examination that the beating of Mr. Catovic was repeated on a
daily basis over a seven to 10 day period, Mr. Rogan’s smiling response was “He
is still alive, good. I suppose.” This flippant response clearly suggests that
Mr. Rogan did not view the beating of an elderly man to be a matter of serious
concern.
[231] I have no hesitation in
preferring the testimony of Mr. Pervan to that of Mr. Rogan in relation to this
issue. Moreover, to the extent that there are inconsistencies between the
evidence of Mr. Pervan and Huso Hadzic with respect to the beating of Asim
Catovic, I prefer the evidence of Mr. Pervan. While I do not believe that Mr.
Hadzic was anything other than truthful in his testimony, Mr. Pervan has a much
clearer recollection of his time in detention than does Mr. Hadzic.
[232] I found Mr. Pervan to be
a most impressive witness. He testified calmly and with a quiet dignity as he
recounted his experiences during the war in Bosnia-Herzegovina, displaying no
evident animosity towards Mr. Rogan. Despite the fact that he was clearly
deeply wounded, both physically and psychologically, by his experiences in
detention in Bileća in 1992, Mr. Pervan did not attempt to exaggerate or
overstate in his testimony, readily making concessions where appropriate.
[233] A simple example will
illustrate the point: when it was put to Mr. Pervan that it was unbearably hot
in the police station detention facility, Mr. Pervan was quick to volunteer
that the windows in the building provided the prisoners with some relief.
Similarly, Mr. Pervan did not hesitate to describe the detention facility on
the military base as having been very clean and tidy. Mr. Pervan was also
careful to specify what he himself had observed, as opposed to things that he
had merely been told.
[234] In contrast, Mr. Rogan’s
evidence has shifted and evolved over time. As a consequence, to the extent
that the evidence of Mr. Pervan and Mr. Rogan conflicts, I prefer the testimony
of Mr. Pervan to that of Mr. Rogan.
[235] Huso Hadzic and Mr.
Bajramovic’s evidence that Mr. Catovic had told them that Mr. Rogan had beaten
him is clearly hearsay. Mr. Catovic did not testify at the trial.
[236] By all accounts, Mr.
Catovic was an elderly man in 1992. He was evidently interviewed during the
investigation into Mr. Rogan’s activities and gave a statement to the RCMP at
that time. While it appears that Mr. Catovic is still alive, I was advised by counsel
for the Minister that they were unable to have Mr. Catovic testify at the
trial.
[237] If all I had before me
was the hearsay evidence that Mr. Rogan had inflicted beatings on Asim Catovic,
I would not give this evidence any weight. Indeed, this was the approach that I
took in relation to Kamel Hadzic’s hearsay evidence that Mr. Rogan had
inflicted a beating on Sreco Kljunak. However, in the case of the beatings
inflicted on Asim Catovic, there is additional evidence which corroborates the
statements made by Mr. Catovic to Huso Hadzic and Mr. Bajramovic.
[238] First of all, Mr.
Pervan, Mr. Bajramovic and Mr. Hadzic all confirm seeing Mr. Catovic’s battered
and bruised body. This confirms that Mr. Catovic was badly beaten, although it
does not establish who actually inflicted the injuries.
[239] In addition, however, we
also have Mr. Pervan’s first-hand evidence that he witnessed Mr. Rogan
repeatedly taking Mr. Catovic out of the detention facility, followed
immediately by Mr. Pervan hearing Mr. Catovic screaming and crying. The close
proximity in time of these events is circumstantial evidence strongly suggesting
that, at a minimum, Mr. Rogan facilitated and was complicit in the beatings of
Asim Catovic.
[240] Finally, and most
importantly, we have Mr. Pervan’s first-hand eyewitness evidence of Mr. Rogan
himself repeatedly boasting to Mr. Catovic’s son that Mr. Rogan had killed his
father. It is highly unlikely that Mr. Rogan would have made inculpatory (if
untrue) statements of this nature had he not been involved in the beating of
Asim Catovic.
[241] Taken together, this
evidence confirms the hearsay evidence of statements attributed to Asim Catovic
that it was Mr. Rogan who had beaten him. I am therefore satisfied on a balance
of probabilities that this was indeed the case. I am also satisfied that the
statements made by Mr. Rogan to Mr. Catovic’s son were intended to inflict
serious psychological pain on the son.
X. Conclusion Regarding Mr. Rogan’s
Involvement in the Mistreatment and Physical Abuse of Prisoners
[242] For the above reasons, I
am satisfied on a balance of probabilities that Mr. Rogan worked as a guard at
both the police station and student dormitory detention facilities in Bileća
in the summer of 1992. I am further satisfied that prisoners in both facilities
were arrested and detained simply because they were Muslim men living in Bileća.
[243] I have found that the
prisoners in both detention facilities were held in inhumane conditions, and
that Mr. Rogan was personally aware of the conditions under which the prisoners
were being held.
[244] I have also found that some
prisoners were mistreated and beaten at both the police station and student
dormitory detention facilities. I have no doubt that at the time that Mr.
Rogan was working as a prison guard at the detention facilities in Bileća,
he was well aware of the abuse to which prisoners were subjected.
[245] I have further found
that Mr. Rogan participated, both directly and indirectly, in the abuse of
Muslim prisoners in those facilities. In particular, I am satisfied on a
balance of probabilities that Mr. Rogan struck Sreco Kljunak in the face, and
that he personally and knowingly facilitated and was complicit in a beating
inflicted on Mr. Kljunak. I am further satisfied that Mr. Rogan was directly
responsible for beating Asim Catovic, and for making statements to Mr.
Catovic’s son regarding the killing of his father that were intended to cause
serious psychological pain.
[246] With this understanding
of events occurring in Bileća during the summer of 1992 and the role
played by Mr. Rogan in those events, the next question to be determined is
whether Mr. Rogan obtained his Canadian citizenship by false representation or
fraud or by knowingly concealing material circumstances. This requires a
careful examination of the law governing Mr. Rogan’s immigration application,
the application form itself, and the evidence relating to the processing of
that application including Mr. Rogan’s immigration interview.
XI. The Law
Governing Mr. Rogan’s Application for Permanent Residence
[247] As was noted at the
outset of these reasons, Mr. Rogan’s substantive rights are governed by the
provisions of the Immigration Act that were in force at the time that he
applied for permanent residence in Canada in January of 1994 and when he
entered Canada some three months later.
[248] The relevant provisions of the Immigration
Act include subsection 9(3), which imposed an obligation on an applicant to
truthfully answer all questions put to him by a visa officer, and to produce
such documentation as may be required by the visa officer for the purpose of
establishing that the individual’s admission to Canada would not be contrary to
the Immigration Act or Regulations.
[249] Mr. Rogan was admitted
to Canada as a permanent resident
based upon his being a Convention refugee. To be granted status in Canada as a Convention
refugee, Mr. Rogan had to be both eligible to claim Convention refugee status, and admissible
to Canada: Immigration Act,
sections 2 and 19.
[250] The definition of a
“Convention refugee” contained in section 2 of the Act excluded anyone from the
protection of the Convention where there were serious reasons for considering
that the person had committed a war crime or a crime against humanity.
[251] Once it was determined
that a person such as Mr. Rogan was eligible for protection as a Convention
refugee, he could be approved for permanent residence in Canada as long as he met the
admissibility requirements of section 19 of the Immigration Act.
[252] Section 19(1)(j) of the Immigration
Act provided that “No
person shall be granted admission” to Canada if there were “reasonable grounds
to believe” that the person had “committed an act or omission outside Canada
that constituted a war crime or a crime against humanity within the meaning of
subsection 7(3.76) of the Criminal Code and that, if it had been
committed in Canada, would have constituted an offence against the laws of
Canada in force at the time of the act or omission”.
[253] The Supreme Court of
Canada described the “reasonable grounds to believe” evidentiary standard as
requiring “something more than mere suspicion, but less than the standard
applicable in civil matters of proof on the balance of probabilities”.
Reasonable grounds will exist “where there is an objective basis for the belief
which is based on compelling and credible information”: Mugesera v. Canada (Minister of
Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100 at para. 114.
XII. The Processing
of Applications for Permanent Residence at the Belgrade Office in 1994
[254] Evidence regarding the
processing of applications for permanent residence in the former Yugoslavia in the 1990’s was
provided by Michel Dupuis and Brian Casey. Both witnesses were personally
involved in the processing of Mr. Rogan’s immigration application.
[255] Michel Dupuis is
currently working as an immigration officer and immigration program manager at
the Canadian High Commission in Trinidad and Tobago. He worked as the
senior immigration officer at the Canadian Embassy in Belgrade between 1992 and 1995.
Belgrade is located in what became Serbia after the dissolution of Yugoslavia.
[256] During the time that Mr.
Dupuis was in Belgrade, his primary
responsibility was the processing of applications for permanent residence and
applications for temporary visas for visitors, workers and students. As the
senior immigration officer in the Belgrade office, Mr. Dupuis also had responsibility for
supervising the registry operations. Mr. Dupuis reported to Brian Casey, who
was the immigration program manager.
[257] Mr. Casey was an
experienced immigration official, whose familiarity with the former Yugoslavia
dated back nearly 20 years by the time that he dealt with Mr. Rogan’s
application for permanent residence in 1994. Mr. Casey was also fluent in Serbo-Croatian.
[258] Both witnesses described
the training provided to immigration officers working at the Belgrade office during the early
1990’s in some detail. In addition to the standard training provided to all
Canadian immigration officers regarding the processing of visa applications,
immigration officers in Belgrade were also provided with
ongoing information and regular updates with respect to the situation of
various ethnic groups in different parts of Bosnia-Herzegovina as the situation
evolved.
[259] Mr. Dupuis admitted that
he did not know much about the situation in the former Yugoslavia when he
arrived in Belgrade in 1992. However, it
was apparent from Mr. Dupuis’ evidence that by the time that he examined Mr.
Rogan’s application for permanent residence in early 1994, he had a deep
understanding of how the conflict in Bosnia-Herzegovina had played out in
various regions for members of the different ethnic groups.
[260] In particular, both Mr.
Dupuis and Mr. Casey were aware of the ethnic cleansing taking place in
Bosnia-Herzegovina, including in Bileća, as well as the establishment of
detention camps, and the impact that the conflict was having on civilians.
[261] Mr. Casey testified that
Canada started accepting
refugees from Bosnia in 1992. In response to
the conflict in the former Yugoslavia, the Government of Canada announced a
Special Measures Program in July of that year to extend the categories of
relatives that were eligible to sponsor their relatives in the former Yugoslavia to include siblings,
nieces, nephews, aunts and uncles. Within two years Belgrade had become Canada’s biggest refugee
processing mission. Indeed, Canada became the largest resettlement country in
the world for refugees from the former Yugoslavia.
[262] According to Mr. Dupuis,
the Belgrade office was incredibly
busy during this period. He was personally conducting six interviews a day,
five days a week. By the time that he interviewed Mr. Rogan in early 1994, Mr.
Dupuis had conducted hundreds, if not thousands of interviews. Mr. Dupuis testified
that approximately 80% of those interviewed were applying for permanent
residence in Canada as refugees.
[263] By 1994, Canada was accepting some
4,000 refugees from Bosnia – 2,500 of who were
government-sponsored. The remainder of the applicants were either self-financed
or were sponsored by family members or volunteer groups.
[264] Mr. Dupuis described the
process that would be followed in assessing an application for permanent
residence by a person from Bosnia seeking refugee protection. Because of the huge number of
applicants for resettlement in Canada, the Belgrade office had instituted a pre-screening
process. In 1994 alone, more than 120,000 people completed and submitted the
pre-screening form. Because Mr. Rogan and his family were sponsored by a family
member in Canada, they did not have to
go through the pre-screening process. Instead, their application for permanent
residence was initiated by the filing of a Form IMM0008 (or “IMM8”).
[265] Mr. Casey testified that
the potential involvement of applicants in war crimes or crimes against
humanity was one of their biggest concerns for applicants from Bosnia-Herzegovina,
given that war crimes and crimes against humanity were being committed on a
fairly large scale there. As a consequence, by 1994, immigration officials in
the Belgrade office were focusing
their attention on the issue of admissibility, particularly in the case of male
applicants. Their mandate was to ensure that anyone from Bosnia-Herzegovina who
was involved in massacres or actions against civilians would not be admitted
into Canada.
[266] Because of his
proficiency in Serbo-Croatian, Mr. Casey was the one to review the
pre-screening questionnaires in order to determine which individuals would be allowed
to proceed to the processing stage. Mr. Casey testified that if there was any
indication on the pre-screening questionnaire that an applicant had been
involved in the conflict, “We basically wouldn’t look at it. They would be
screened out very, very quickly, in a matter of seconds”. As Mr. Casey put it,
“the program [did] not exist for people that are - have been involved in this
armed conflict.”
[267] Once an application for
permanent residence made it through the pre-screening process or was received
from a sponsored applicant, the application would be reviewed to ensure that it
was complete and that all of the necessary documents had been provided. The
application was then placed in a queue awaiting an interview.
[268] Mr. Dupuis testified
that he would review an applicant’s file before the interview. He would focus
on the information provided in the IMM8 with respect to the applicant’s
education, dates and place of residence, profession and, if the applicant was a
male, his military service.
[269] The applicant’s
interview allowed the immigration officer to confirm the information contained
in the IMM8, and make his or her own assessment of the credibility of the
applicant in order to determine the applicant’s eligibility for refugee
protection and admissibility to Canada.
[270] Immigration officers
were particularly interested in knowing what the applicant had been doing
during the war years. As Mr. Casey stated:
[B]ut
you were more interested in just what were they doing in 1992, in those crucial
periods when the war was going on in Bosnia. Just what were they doing? Where were
they situated? Where were they living? What was their activity? What
organizations were they involved in? Just what were they doing? That’s what you
wanted to know.
[271] As a consequence,
immigration officers focused on specific areas in reviewing the IMM8 and in
their interview with the applicant. These included the individual’s place and
dates of residence, their military or police service, their type of work or
profession, their education and the route they took to leave Bosnia-Herzegovina
to come to Serbia. Each of these factors
was considered in assessing whether an applicant might be inadmissible to Canada for having committed war
crimes or crimes against humanity.
[272] Mr. Dupuis explained
that the education of the individual could give clues to their background. By
way of example, Mr. Dupuis said that questions would arise if an applicant
claimed to have both a university degree and a military rank of Private, as a
university-educated member of the military would ordinarily be an officer.
[273] Insofar as an
applicant’s military service was concerned, Mr. Dupuis explained that he would
look closely at an applicant who had served in the military or had performed
any other kind of service at any time during the conflict. In such cases Mr.
Dupuis would want to know precisely what the individual had done.
[274] Mr. Dupuis testified
that so many individuals had lied about their military service in their
applications in an effort to limit their involvement in the conflict that it
got to the point that he would tell applicants that if they were going to claim
to have worked as a driver, in a medical clinic or as a cook, that would be the
end of the application as he would assume that they were trying to hide something.
[275] According to Mr. Dupuis,
the most important information for his purposes was the applicant’s dates and
place of residence. He explained that he would want to see whether the places
an applicant claimed to reside during certain periods meshed with what he knew
of the situation in those parts of the country at the times in question.
Discrepancies could call the veracity of an applicant’s story into question,
and could raise concerns about the individual’s potential involvement in crimes
against humanity.
[276] Information regarding
the route that an applicant took to leave Bosnia-Herzegovina was also important
to corroborate the story the applicant was telling the immigration officer. For
example, the existence or lack of roadblocks at the relevant time would be of
interest to the officer. If he had any concerns about the information provided
by an applicant in the IMM8 form, such as how they were able to travel from Bosnia to Serbia, Mr. Dupuis would
question the applicant closely during the interview.
[277] Because most of the
applicants spoke neither English nor French, Mr. Dupuis would always have an
interpreter present at the interview. Mr. Dupuis explained that these were
experienced, well trained individuals, and that there had never been any
concern with respect to ethnic bias on the part of any of the interpreters used
by the Embassy.
[278] Mr. Dupuis testified
that he would start the interview with a few simple questions to put the
applicant at ease, and then would quickly focus on any areas of concern,
particularly with respect to the issue of admissibility. Interviews typically
lasted between 30 and 45 minutes, but could go much longer if there were areas
of real concern. Mr. Dupuis kept contemporaneous notes of the interview.
[279] As was noted earlier,
the issue of an applicant’s admissibility to Canada was a primary concern at that time.
Immigration officers were particularly concerned as to whether there was any
possibility that an applicant had been involved in war crimes or crimes against
humanity.
[280] Question 27 on the IMM8
form dealt specifically with the issue of admissibility, and had a number of
parts to it. Applicants were asked a series of questions relating to matters
such as whether they suffered from a serious medical condition, whether they
had been convicted of or were currently charged with a criminal offence, and
whether they had ever been ordered to leave Canada.
[281] Applicants were also
asked: “In periods of either peace or war, have you ever been involved in the
commission of a war crime or crime against humanity, such as: willful killing,
torture, attacks upon, enslavement, starvation or other inhumane acts committed
against civilians or prisoners of war; or deportation of civilians?”
[282] Mr. Dupuis testified that
his practice in dealing with Question 27 was to put each of the questions
referred to in that section of the application form to the applicant. The
question would then be translated, and would be answered by the applicant.
Because the question relating to crimes against humanity was lengthy, he would
break it into parts, and have each part translated for the applicant.
[283] It was also Mr. Dupuis’
practice to circle each part of Question 27 on the IMM8 form as it was
addressed at the interview, and to record the applicant’s answers on the form.
After the applicant had answered all of the questions contained in Question 27,
Mr. Dupuis would sign and date that section of the application form.
[284] According to both Mr.
Dupuis and Mr. Casey, this practice was followed by all of the immigration
officers in the Belgrade office. This was the
only section of the application form treated in this fashion. It was singled
out for special treatment because of the seriousness of the concerns with
respect to admissibility.
[285] The legislative
requirement for truthfulness in the application process is expressly set out in
the IMM8 form, which requires an applicant to declare that the information
given in the application is truthful, complete and correct before submitting
the application. Mr. Dupuis testified that at the end of the interview he would
also have the applicant solemnly declare that all of the information provided
in support of the application was truthful, complete and correct. The applicant
would sign the declaration in his presence, and the signature would be
witnessed by the interpreter.
[286] Mr. Dupuis stated that
if he had any concerns as to the applicant’s admissibility by the end of an
interview, the application for permanent residence would be refused.
Similarly, if Mr. Dupuis had any sense that the applicant was being evasive, he
would refuse the application. Mr. Dupuis was the one who would make the actual
decision to refuse an application, although Mr. Casey was required to concur in
that decision.
[287] As Mr. Dupuis put it,
his job was to help the victims, whichever side of the conflict they may have
been on, and not to help those responsible for the victimization.
[288] If Mr. Dupuis concluded
that the application for permanent residence should be granted, he would write
up his findings and send them to Mr. Casey along with the file. The ultimate
decision to accept an application would be that of the immigration program
manager.
XIII. Mr. Rogan’s Application for Permanent
Residence
[289] Mr. Rogan testified that
his wife’s uncle had come to Canada in 1972, and was living in Burnaby, British Columbia. After the outbreak of
hostilities in Bosnia-Herzegovina, the uncle agreed to sponsor Mr. Rogan and
his family to come to Canada. An Undertaking of
Assistance was completed by the uncle in September of 1992, and an application
for permanent residence package was sent to Mr. Rogan by Employment and
Immigration Canada in October of 1992.
[290] Mr. Rogan did not
immediately apply for permanent residence in Canada. He explained that his father did not want
Mr. Rogan to leave Bosnia-Herzegovina with his family, as this would separate
the father from his grandchildren. However, the conditions under which the
family were living were so poor that Mr. Rogan finally went ahead and submitted
his application for permanent residence in January of 1994.
[291] As required, prior to
submitting his application, Mr. Rogan certified that all of the information
provided in his IMM8 was “truthful, complete and correct”. He further acknowledged
that “any false statements or concealment of a material fact may result in
[his] exclusion from Canada, and even though [he] should be admitted to Canada for permanent
residence, a fraudulent entry on this application may be grounds for [his]
prosecution and/or removal.”
[292] Mr. Rogan’s completed
application for permanent residence was produced at the hearing. Mr. Rogan identified
the form as his, and explained that he was assisted in completing the
application by a friend who spoke some English. Mr. Rogan confirmed that he
knew at the time that he completed the form that he was legally obliged to be
truthful in his answers.
[293] There are, however, a
number of areas of concern with respect to the truthfulness of the information
provided by Mr. Rogan to Canadian immigration authorities. As will be explained
below, in both his IMM8 and in his subsequent interview with Mr. Dupuis, Mr.
Rogan misrepresented or failed to disclose material information relating to his
residence, education, employment and whereabouts. As a result, there was no
need for Mr. Dupuis to ask probing questions of Mr. Rogan’s activities,
especially with respect to his involvement in the conflict in
Bosnia-Herzegovina.
A. Mr. Rogan’s
Education
[294] The first area of
concern in Mr. Rogan’s application for permanent residence relates to his
education. The IMM8 form asks applicants to provide “Details of [their] post
secondary education”. Mr. Rogan wrote N/A in this section of the form.
[295] Mr. Dupuis interviewed
Mr. Rogan in connection with his application for permanent residence on
February 25, 1994. Mr. Rogan has little recollection of what was said in the
course of the interview. Somewhat surprisingly, given the passage of time and
the number of interviews that he conducted, Mr. Dupuis was able to identify Mr.
Rogan’s picture in a photographic line-up in 1999. He also has a general
recollection of the interview, although he does not recall the details of what
was discussed.
[296] Mr. Dupuis’ recollection
was, however, refreshed by the notes that he made in the course of the
interview. The only reference to Mr. Rogan’s education in Mr. Dupuis’
contemporaneous interview notes is the statement “termine secondaire”,
indicating that Mr. Rogan had completed high school. There is no reference to Mr.
Rogan having completed any university studies in Mr. Dupuis’ notes.
[297] Mr. Rogan testified that
he completed high school in 1980, following which he did one year of compulsory
military service. After completing his military service, Mr. Rogan says that
he began studying at the Biza Technika Schola (or technical school) at the University of Novi Sad in Serbia, commencing his studies
in September of 1981.
[298] Mr. Rogan testified that
his university career was not a smooth one. He started out studying to be a
machinist, later switching to a textile engineering program. Mr. Rogan left
school from time to time over the next few years, returning home to Bileća.
When he would get bored living at home, he would go back to school. Mr. Rogan
says that he completed three full years of studies before finally leaving
university in 1986 or 1987. Mr. Rogan says that he was one course short of
completing his university degree when he left university for good.
[299] Mr. Rogan testified that
he did not mention his university studies in his application for permanent
residence because he did not complete his program. This is not a satisfactory
answer, as the form clearly asks about the number of years of school
successfully completed, and not just degrees obtained. When this was pointed
out to him in cross-examination, Mr. Rogan simply reiterated that he had not
referred to his university studies in his application for permanent residence
because he had never graduated.
[300] Mr. Rogan offered a
different explanation for his failure to mention his university studies in his
examination for discovery. After confirming that he had done five years of
university studies between 1981 and 1986, Mr. Rogan explained that he had not
disclosed this in his application for permanent residence because “I didn’t
want to go into great detail in listing all that, because that would involve
perhaps of me [sic] start having to dig up papers documenting that.”
[301] The inaccuracy in Mr.
Rogan’s IMM8 with respect to his years of education was not an innocent
misrepresentation on Mr. Rogan’s part. He clearly made a conscious decision not
to be truthful on his application for permanent residence with respect to his
level of education because he did not want to have to obtain supporting
documentation with respect to his university studies.
[302] It is also clear from
Michel Dupuis’ testimony that information regarding an applicant’s level of
education could be important in assessing an individual’s admissibility. While
the disclosure of accurate information regarding his university studies would
not necessarily have jeopardized Mr. Rogan’s application for permanent
residence, his failure to provide truthful information in this regard
demonstrates a total lack of concern on the part of Mr. Rogan for ensuring that
his responses in his application for permanent residence were truthful,
complete and correct.
B. Mr. Rogan’s Employment
[303] The next area of concern
relates to the answers provided by Mr. Rogan with respect to his employment.
[304] Question 18 on the IMM8
form asks applicants to provide their work history for the past 10 years. In
the case of Mr. Rogan, the relevant period was from February of 1984 to
February of 1994. Mr. Rogan stated on the form that he worked at the “Metal”
factory in Stolac between October of 1986 and June of 1992.
[305] No other employment is
mentioned in the answer to Question 18, although Mr. Rogan states that “from
[J]une 1984 to [O]ctober 1986 I was at the Burreau (sic) for unemployed
citizens” in an addendum to his application form. Mr. Rogan’s addendum goes on
to state that “in June 1992 I left my hometown and my job because of war
activities in Bosnia-Her[z]egovina, and
became a[…] refuge[e]. I came to Belgrade at my relatives with all my famil[y] and I am
still here.”
[306] First of all, it is
difficult to reconcile Mr. Rogan’s statement that he was “at the Burreau for
unemployed citizens” between June of 1984 and October of 1986 with his evidence
regarding his university studies - specifically his statement that he did not
finally leave university until 1986.
[307] More significant,
however, is Mr. Rogan’s claim to have been working in Stolac between 1986 and June
of 1992. By Mr. Rogan’s own admission, this information is not accurate as he
acknowledges having left Stolac for Bileća in March of 1992. Most
importantly, Mr. Rogan admits that he failed to mention his nearly two months
of employment as a reserve police officer in Bileća in June and July of
1992.
[308] I will first consider
the question of where Mr. Rogan worked between 1986 and 1992, and then examine
his failure to refer to his work with the reserve police in Bileća in the
summer of 1992.
(1) Did Mr. Rogan work at Metal or Kovnica
between 1986 and 1992?
[309] Sabir Bajramovic
testified that he supervised Mr. Rogan for the last five or six years that Mr.
Bajramovic worked at the Kovnica factory in Bileća. Mr. Bajramovic stopped
working at Kovnica in May of 1991, which means that Mr. Rogan would have been
working at Kovnica since 1985 or 1986. Mr. Bajramovic also testified that he
had known several members of Mr. Rogan’s family, and that the two men
socialized after work on occasion.
[310] Kamel Hadzic testified
that he would regularly see Mr. Rogan around the town during this time period,
and that he believed that Mr. Rogan worked at the Kovnica factory in Bileća.
[311] Huso Hadzic worked at
the Kovnica plant from 1981 until 1987 or 1988. He testified that Branko Rogan
worked there as well, although Mr. Hadzic does not recall if Mr. Rogan was
still working at Kovnica when Mr. Hadzic left his employment there.
[312] In contrast, Mr. Rogan
testified that he started working in Stolac in 1987, 1988 or 1989, although
his IMM8 form says that he started working there in October 1986. Mr. Rogan
stated that he only worked at Kovnica for a few months in 1982 or 1984, on one
of his breaks from his university studies. Mr. Rogan did not recall if Mr.
Bajramovic was working there at the time. Indeed, Mr. Rogan claimed never to
have spoken to Mr. Bajramovic, and to know little about him.
[313] I prefer the evidence of
Mr. Bajramovic on this point to that of Mr. Rogan for the following reasons.
[314] Mr. Rogan’s attitude
towards Mr. Bajramovic differed greatly from the attitude that he demonstrated
towards the other eyewitnesses. Mr. Rogan testified that he did not know Ramiz
Pervan. Although Mr. Rogan called Mr. Pervan a liar in his testimony, he did
not display any particular animosity towards him. Mr. Rogan also described
Kamel Hadzic as a “good guy”.
[315] While Mr. Rogan did
demonstrate some dislike of Huso Hadzic in his testimony, his attitude towards
Mr. Bajramovic was hostile in the extreme. While professing to know little
about Mr. Bajramovic, and to have never even spoken to the man, Mr. Rogan
nonetheless stated that Serbs were talking about what Sabir Bajramovic was
doing for a couple of years before the war. Mr. Rogan also described Mr.
Bajramovic as “a criminal extremist”. He testified that unlike Mr. Pervan and
“Hadzic”, Mr. Bajramovic (and Asim Catovic) were “a different kind of people”,
and that they were very arrogant fundamentalist Muslims.
[316] Mr. Rogan also expressed
outrage that the Government of Canada would pay to bring Mr. Bajramovic to Canada to testify against him.
According to Mr. Rogan, no one in this country but Mr. Rogan himself knows who
Mr. Bajramovic is.
[317] Suffice it to say that
the degree of animosity exhibited by Mr. Rogan towards Mr. Bajramovic was out
of all proportion for someone that he had never spoken to and knew little
about.
[318] It should be noted that
Mr. Bajramovic demonstrated an equally visceral antipathy to Mr. Rogan in his
testimony. This could have been explained by Mr. Rogan’s role in Mr.
Bajramovic’s imprisonment and torture. However, Mr. Bajramovic also demonstrated
a knowledge of Mr. Rogan and his personal life. Mr. Bajramovic knew the name of
Mr. Rogan’s father and grandfather, as well as Mr. Rogan’s wife’s maiden name.
He knew where Mr. Rogan had grown up, and where Mr. Rogan’s wife was from.
Moreover, Mr. Bajramovic was able to identify Mr. Rogan at the political rally
at the Sports Hall in Bileća in 1991, well before Mr. Bajramovic
encountered Mr. Rogan working as a guard at the student dormitory detention
facility.
[319] From this I am satisfied
that Mr. Rogan and Mr. Bajramovic knew each other long before June of 1992, and
that Mr. Bajramovic’s evidence that the two men worked together at Kovnica is
more consistent with there having been a prior relationship between the two
men. Mr. Bajramovic’s testimony in this regard is also corroborated by the
evidence of Huso Hadzic.
[320] Thus I find that Mr. Rogan
did not work at the Metal plant in Stolac between October of 1986 and June of
1992. He worked at the Kovnica factory in Bileća until at least May of
1991.
[321] This was a material
misrepresentation that had the effect of foreclosing lines of inquiry by
Canadian immigration officials. As Michel Dupuis stated, the dates and places
of residence were key to his assessment of an application for permanent
residence, as it was important to know whether the applicant’s story meshed
with what he knew about what was going on in that part of the country at the
time in question.
[322] Mr. Rogan’s application
for permanent residence states that he worked in Stolac until June of 1992. Mr.
Dupuis’ interview notes indicate that Mr. Rogan told him that he left Stolac in
June of 1992, collected his wife in Bileća and then traveled to Belgrade and on to Subotica. Mr. Dupuis testified
that it was significant that Mr. Rogan went directly from Stolac to Belgrade (albeit via Bileća),
as this pattern of movement was typical, and suggested that this was a straightforward
case.
[323] As Mr. Dupuis put it:
[I]f I look at a file like this, if I'm
back in 1994, and I do the interview this morning, I look at this and I say, “Oh,
he was in Stolac, he was working there, and then when the war started he left
with his family to come to New Belgrade.” Already for me it's an indication
that this case could be a pretty straightforward case, because there was
nothing in the file that could give me an indication that the applicant was
doing anything else than being a locksmith [more properly translated as a
“machinist”], leaving the company that were closing, one after the other, at
the beginning of the war, and then coming immediately with his wife and
children to Serbia. So it was a fairly standard movement of people that I would
see during my time in Belgrade.
[324] Dr. Nielsen’s report
indicates that unlike Bileća, Stolac was a predominantly Muslim town where
Serbs made up only approximately 20% of the population. Dr. Nielsen also stated
that Stolac remained under JNA control until the middle of June 1992, when
Croatian forces launched a military offensive, capturing Stolac and its environs.
According to Dr. Nielsen, by mid-1992, most of the Serb population of Stolac
had left the municipality. Thus Mr. Rogan’s story of leaving Stolac in June of
1992 was consistent with historical events.
[325] Brian Casey confirmed
that Mr. Rogan’s story was also consistent with what Mr. Casey himself knew of
the situation in Bosnia-Herzegovina in June of 1992. That is, it was not
suspicious that a Serb living in a predominantly Muslim area at that time would
flee his home for a location where he would be part of an ethnic majority. As a
consequence, an application for permanent residence providing such a history
would not raise any red flags.
[326] I therefore find on a
balance of probabilities that Mr. Rogan misrepresented a material fact, namely
where he was working prior to June of 1992. I am further satisfied that this
misrepresentation had the effect of foreclosing or averting further inquiries
by Canadian immigration officials.
(2) Mr. Rogan’s
Failure to Disclose his Work as a Reserve Police Officer and Prison Guard in
his Application for Permanent Residence
[327] The most important
omission from Mr. Rogan’s application for permanent residence is any reference
to his work as a reserve police officer in Bileća in June and July of 1992.
It is also clear from Mr. Dupuis’ interview notes that Mr. Rogan did not
disclose his work at the Bileća detention facilities during his
immigration interview. Indeed, Mr. Rogan does not suggest that he did so.
[328] Mr. Dupuis’ evidence was
unequivocal: had he been aware that Mr. Rogan served as a reserve police
officer in Bileća in the summer of 1992, he would have asked him a lot of
very detailed questions in order to determine precisely what Mr. Rogan had done
in that capacity. Unless he was satisfied by the answers provided, Mr. Dupuis
would have found that Mr. Rogan had not demonstrated that he was not
inadmissible to Canada, and his application
for permanent residence would have been refused.
[329] Mr. Dupuis further
stated that if an applicant had told him that he was in the reserve police
force and had been guarding Muslim prisoners in Bileća in June of 1992,
the applicant would have certainly been refused admission to Canada.
[330] Mr. Rogan admits that he
failed to disclose his nearly two months of employment as a reserve police
officer in Bileća in June and July of 1992 to Canadian immigration
authorities. His explanation for failing to mention this crucial information
has varied over time.
[331] In his examination for
discovery, Mr. Rogan stated that he did not tell Canadian immigration
authorities about his work with the reserve police “Because that is not
considered a real job. I did not really receive a salary for it. I was there
under force, I mean, I wasn’t – yeah, I was there under force. It was not a
real job”. I do not accept this explanation.
[332] I will deal with the
issue of duress later in these reasons. Suffice it to say at this juncture that
even if Mr. Rogan had been compelled to work as a reserve police officer, it
did not take away from the fact that he was indeed employed as such. As a
result, Mr. Rogan’s employment with the reserve police should have been
disclosed in his response to Question 18 on the application form.
[333] Moreover, Mr. Rogan’s
statement that he “did not really receive a salary” for his work with the
reserve police is belied by the pay records located by Dr. Nielsen, which I
have already found to be reliable. These records indicate that Mr. Rogan
received 4,000 dinars for his work with the reserve police in June of 1992 and
10,000 dinars for July of 1992. Mr. Rogan also acknowledged in his testimony at
trial that he did in fact receive money for his work with the reserve police.
[334] A much more plausible
explanation for Mr. Rogan’s failure to disclose his work with the reserve
police was provided by Mr. Rogan in the statement that he gave to the RCMP in
October of 1998. Mr. Rogan was interviewed by Constable (now Inspector) Paul
Richards of the War Crimes section and Constable (now Staff Sergeant) Carl
Sesley of the Burnaby detachment. Staff
Sergeant Sesley speaks Serbo-Croatian, and acted as an interpreter during the
interview.
[335] Mr. Rogan was given a
Charter caution at the beginning of the interview, and was also provided with
the opportunity to consult a lawyer. No argument has been advanced to suggest
that Mr. Rogan’s statement was taken in breach of his Charter rights, and Mr.
Rogan admitted at the pre-trial conference (when he was still represented by
counsel) that the statement was given voluntarily.
[336] While Mr. Rogan now
suggests that he was under the influence of alcohol at the time of the
interview, this was not evident to either Inspector Richards or Staff Sergeant
Sesley, both of whom have been trained to recognized signs of impairment, and each
of whom has had a great deal of experience dealing with those under the
influence of alcohol. Moreover, Mr. Rogan did not deny making the statements
attributed to him, and insisted at trial that everything that he said at the
interview was true.
[337] In the course of the
interview, Mr. Rogan was asked why he had not disclosed to Canadian immigration
officials that he had worked with the reserve police. Mr. Rogan responded by
saying “I was scared that they will not accept me”. When Inspector Richards
asked Mr. Rogan why he would not have been accepted, Mr. Rogan’s response was
“I don’t know. I was there with no food, my children had nothing to eat. I had
to go somewhere.” Mr. Rogan went on to say that he was afraid that the
immigration officer would say “whoever was anywhere can’t [come to Canada], no matter if he did
something or not”.
[338] Mr. Rogan also discussed
his failure to mention his work as a reserve police officer in his evidence in
chief. He stated “I thinking about that, I need or not. But I suspicious, if I
say for that short time, is still a reserve police officer. Must be very
dangerous for me because can prolong my coming to Canada and to my family. In
that time, my three young boys were hungry, without diapers, without food,
without anything. And I say, ‘Why I need voluntarily to say something like
that?’”
[339] It was put to Mr. Rogan
in cross-examination that he had not disclosed his role as a reserve police
officer because he was scared that Canada would not accept him if he had said
that he had worked as a reserve police prison guard in Bileća in June of
1992. Mr. Rogan responded by suggesting that he was never asked a question
about his wartime work. He stated “Maybe if a question here asked me for that,
maybe I will disclose. But because a question of that is not -- was discussed
here, I say to myself, ‘Why I voluntarily need to make problems to myself and
to prolong coming to Canada?’”
[340] The fact is that Mr.
Rogan was expressly asked to provide details of his work history for the 10
years preceding his application for permanent residence. He did not do so. Mr.
Rogan had been employed with the reserve police and worked as a prison guard
for two months during the relevant period. This was not mentioned in his IMM8
form, nor was it disclosed by Mr. Rogan at his immigration interview.
[341] Moreover, Mr. Rogan
clearly understood that such disclosure could have led to difficulties or
delays with his application for permanent residence. He made the conscious
choice not to tell Canadian immigration officials about his work at the Bileća
detention facilities. In so doing, Mr. Rogan misrepresented his employment
history and knowingly concealed material circumstances.
C. Mr. Rogan’s Addresses
[342] Question 24 on the IMM8
form asks applicants to list the addresses where they had lived in the 10 years
preceding the date of the application. Mr. Rogan stated that he had lived in Bileća
from January of 1984 to October of 1986. He is then shown as having resided in
Stolac between October of 1986 and June of 1992, and in New Belgrade between
June of 1992 and January of 1994.
[343] In the addendum to Mr.
Rogan’s application for permanent residence, Mr. Rogan further stated: “in June
[sic] 1992 I left my hometown and my job because of war activities in Bosnia-Her[z]egovina, and
became a[…] refuge[e]. I came to Belgrade at my relatives with all my famil[y] and I am
still here”.
[344] I do not accept the
Minister’s suggestion that Mr. Rogan should have identified an address in Serbia for the period that he
was in university. Mr. Rogan’s explanation that his family home in Bileća
remained his permanent address while he was a university student is a
reasonable one.
[345] Mr. Rogan says that he
lived in Stolac during the period between 1986 and 1992, although he says that
he also spent time in Berkovici at the home of his father-in-law. Berkovici is
about 20 kilometres to the east of Stolac. Mr. Rogan also says that he
occasionally spent time during this period at his father’s home in Bileća.
[346] I have already concluded
that Mr. Rogan was probably working at the Kovnica factory in Bileća
between 1986 and 1991. I think it unlikely that he was living in Stolac during
this period, given that Stolac is some 60 kilometres from Bileća and Mr.
Rogan did not own a car.
[347] Mr. Rogan’s claim to
have been at university for much of the time between 1980 and 1986 and then to
have been living and working in Stolac for most of the period from 1986 to 1992
with only occasional visits to Bileća is also difficult to reconcile with
his claim that he was a “very popular man in town” who knew everybody in Bileća,
including the mayor and everyone who worked at city hall.
[348] More important, however,
is the fact that Mr. Rogan himself admits that he was living in Bileća
after the end of March, 1992, although he viewed the situation as temporary. He
also accepts that he may have been working as a prison guard in Bileća
until the end of July, 1992, and I have found this to have been the case.
Nowhere on Mr. Rogan’s application for permanent residence is there any
indication that he was living in Bileća during this four month period.
[349] When this was put to Mr.
Rogan in cross-examination, he suggested that he may have told Mr. Dupuis that
he had been living in Bileća in the course of his immigration interview. I
do not believe this to have been the case. Mr. Rogan clearly had no real
recollection of what had been discussed during the interview and Mr. Dupuis’
contemporaneous notes of the interview record Mr. Rogan as having gone from
Stolac to Belgrade in June of 1992. There
is no reference in Mr. Dupuis’ notes to a four month lay-over in Bileća.
[350] Reference has already
been made to Mr. Dupuis’ statement that the most important information for his
purposes in processing an application for permanent residence was the
applicant’s dates and places of residence. Had Mr. Rogan informed Mr. Dupuis
of his true whereabouts between March and July of 1992, it would have led to
extensive questioning at the interview as to what he was doing at the time, his
activities and his affiliations.
[351] Mr. Rogan’s knowing
concealment of the time that he spent in Bileća in the spring and summer
of 1992 was clearly a material omission which had the effect of averting any further
inquiries that Mr. Dupuis may have wished to make, had he known where Mr. Rogan
really was during that period.
[352] Before leaving this
issue, there is one further matter that bears comment. Mr. Rogan’s application
for permanent residence lists an address in New Belgrade as his permanent home
address as of June, 1992. Mr. Rogan testified that this was a friend’s address,
and that he was actually living in Bajmok from the time that he left Bosnia
until his departure for Canada in March of 1994.
[353] According to Mr. Rogan,
he put his friend’s address on his application form because it was “easier”.
This once again reflects a fundamental lack of concern with accuracy and
truthfulness on the part of Mr. Rogan in his dealings with Canadian immigration
authorities.
D. Mr. Rogan’s Membership or
Association with Organizations
[354] Question 25 on the IMM8
form states “Since my 18th birthday, I have been (or still am) a
member of, or associated with the following political, social, youth, student
or vocational organizations (including trade unions and professional
associations). Include any military service (show rank, unit and location of
service in last column)”.
[355] According to both Mr.
Dupuis and Mr. Casey, Mr. Rogan’s service with the reserve police should have
been disclosed in response to either Question 18 (regarding employment) or
Question 25. Mr. Dupuis also confirmed Dr. Nielsen’s evidence that during this
period, the police forces were, as Dr. Nielsen put it “more or less under the
command of the military during the war in Bosnia. And so the police forces were part of the
whole apparatus.”
[356] Mr. Rogan listed his
period of compulsory military service in 1980-1981 in response to Question 25,
but made no reference to his time as a reserve police officer in 1992. When
asked why he did not mention his time with the reserve police in response to Question
25, Mr. Rogan stated that the question on the form referred to military service,
and not to a civil position.
[357] Mr. Rogan conceded that
he had been called-up by the Army of Republika Srpska in the spring of 1992
during the general mobilization of the army. However, he says that then “I made
somehow that is not military duty”. Mr. Rogan nevertheless acknowledges that
he had the rank of private or soldier, that he wore a military uniform
throughout the time that he worked at the Bileća detention facilities, and
that he was ultimately told that he would have to go to the battlefront.
[358] At the same time, Mr.
Rogan tried to suggest that he also did not have to mention his time working as
a reserve police officer in response to the question relating to his employment
history, as it was not true employment. Rather, he said that this time “I spend
like military -- like reserve police officer. That is not work nor employment…
That is call from government. Is not my employment.” He went on to state that
“It's not voluntary… If I don't come in there, I will -- I would spend time in
the prison with Huso Hadzic.” Minister’s counsel then stated “Right. Because it
was a military call-up?” to which Mr. Rogan answered “Yes”.
[359] With respect, Mr. Rogan
cannot have it both ways.
[360] Mr. Rogan clearly
considered whether he needed to disclose his police service in response to
Question 25, and decided not to. In his evidence in chief, Mr. Rogan stated as
follows, seemingly with respect to his answer to this question:
In that application I think question 17
was: Did you was military participant and war participant? I thinking about
that. I think maybe I need say for that short time, but my three young boys is
still in Serbia, without anything. Without diapers,
without food. And I think, why I need disclose this voluntarily, because really
I never was participant in the military. My brother was.
[361] This is also evidenced
by the exchange that took place during Mr. Rogan’s cross-examination with
respect to his answer to Question 25:
Q. Right, but what you did not put on
your form is that you were in the reserve police?
A. Nobody asked me here.
Q. But the form is asking you for
truthfulness, completeness, and accuracy.
A. Yes, but nobody asked me, I didn't
say voluntarily, and still I honestly say, I'm thinking about that. But I think
if I mention that short time, this could be prolong my coming to Canada. It's very clear.
[362] From this, I am once
again satisfied on a balance of probabilities that Mr. Rogan knowingly
concealed material information with respect to his work as a prison guard with
the reserve police in Bileća in the summer of 1992.
E. The Crimes Against Humanity Question
[363] The final question on
Mr. Rogan’s application for permanent residence to be addressed is Question 27.
It will be recalled that this question has a number of parts to it, each of
which is directed to the issue of admissibility.
[364] One of the questions
posed to applicants was “In periods of either peace or war, have you ever been
involved in the commission of a war crime or crime against humanity, such as:
willful killing, torture, attacks upon, enslavement, starvation or other
inhumane acts committed against civilians or prisoners of war; or deportation
of civilians?” Mr. Rogan answered “No” in response to the question on his
application for permanent residence.
[365] As mentioned earlier,
Mr. Rogan has limited recall as to what was discussed in his immigration
interview. I am satisfied from both Mr. Dupuis’ testimony and the documentary
record that the question regarding his involvement in crimes against humanity
was put to Mr. Rogan in the course of his immigration interview, and that he
answered the question in the negative.
[366] When Mr. Rogan was asked
in cross-examination whether his negative answer was correct, Mr. Rogan
answered by saying “I ask you honestly, what you be answer in my place? You
think I need answer yes?” The Minister’s counsel then asked “I'm asking you.
This is your form.” To which Mr. Rogan responded “I say ‘No,’and I still think
my answer is no.”
[367] The Minister argues that
Mr. Rogan’s activities as a prison guard at the detention facilities in Bileća
in the summer of 1992 amount to his having been involved in crimes against
humanity, including imprisonment, inhumane acts, torture and persecution. As a
consequence, the Minister says that Mr. Rogan did not answer Question 27
truthfully and completely when he denied any such involvement.
[368] In order to determine
whether this is the case, it is first necessary to understand what constitutes
a crime against humanity.
a) What is a Crime Against Humanity?
[369] The ICTY was established
in 1993 by Resolution of the United Nations Security Council to address
continuing reports of widespread and flagrant violations of international
humanitarian law occurring within the territory of the former Yugoslavia, especially in Bosnia-Herzegovina.
[370] The Statute of the
International Criminal Tribunal for the Former Yugoslavia, SC res. 827, UN
SCOR 48th sess., 3217th mtg. at 1-2 (1993) [ICTY Statute”] is an
international instrument drawn up specifically in relation to war crimes,
crimes against humanity and genocide committed in the territory of the former
Yugoslavia from 1991 onward.
[371] Article 5 of the ICTY
Statute defines “crimes against humanity” as including the following
crimes, when committed in armed conflict, whether international or internal in
character, and directed against any civilian population:
(a) murder;
(b) extermination;
(c) enslavement;
(d) deportation;
(e) imprisonment;
(f) torture;
(g) rape;
(h) persecutions on
political, racial and religious
grounds;
(i) other
inhumane acts.
[372] In 1994, “crime against
humanity” was defined in Canadian law by subsections 7(3.76) and 7(3.77) of the
Criminal Code, R.S.C., 1985, c. C-46, which stated that:
|
7.(3.76) For
the purposes of this section,
“crime against
humanity” means murder, extermination, enslavement, deportation, persecution
or any other inhumane act or omission that is committed against any civilian
population or any identifiable group of persons, whether or not it
constitutes a contravention of the law in force at the time and in the place
of its commission, and that, at that time and in that place, constitutes a
contravention of customary international law or conventional international
law or is criminal according to the general principles of law recognized by
the community of nations;
[…]
(3.77) In the
definitions "crime against humanity" and "war crime" in
subsection (3.76), "act or omission" includes, for greater
certainty, attempting or conspiring to commit, counseling any person to
commit, aiding or abetting any person in the commission of, or being an
accessory after the fact in relation to, an act or omission.
|
(3.76)
Les définitions qui suivent s’appliquent au présent article.
« crime
contre l’humanité » Assassinat, extermination, réduction en esclavage,
déportation, persécution ou autre fait — acte ou omission —
inhumain d’une part, commis contre une population civile ou un groupe
identifiable de personnes — qu’il ait ou non constitué une transgression
du droit en vigueur à l’époque et au lieu de la perpétration — et
d’autre part, soit constituant, à l’époque et dans ce lieu, une transgression
du droit international coutumier ou conventionnel, soit ayant un caractère
criminel d’après les principes généraux de droit reconnus par l’ensemble des
nations.
[…]
(3.77)
Sont assimilés à un fait, aux définitions de « crime contre
l’humanité » et « crime de guerre », au paragraphe 3.76,
la tentative, le complot, la complicité après le fait, le conseil, l’aide ou
l’encouragement à l’égard du fait.
|
[373] “Conventional international law” was
defined in subsection 7(3.76) to mean:
|
(a) any convention, treaty or other international
agreement that is in force and to which Canada is a party, or
(b) any convention, treaty or other international
agreement that is in force and the provisions of which Canada has agreed to
accept and apply in an armed conflict in which it is involved;
|
Conventions, traités et autres ententes
internationales en vigueur auxquels le Canada est partie, ou qu’il a accepté
d’appliquer dans un conflit armé auquel il participe.
|
[374] These sections of the Criminal
Code have since been repealed. Crimes against humanity are now defined in
and proscribed by sections 4 and 6 of the Crimes Against Humanity and War
Crimes Act, S.C. 2000, c. 24. However, as was noted earlier, issues
relating to Mr. Rogan’s substantive rights are to be decided based upon the
legislation in effect at the time of his application for permanent residence.
[375] There is no evidence
before me as to whether the actions of Mr. Rogan would have constituted a crime
against humanity under the laws of Bosnia-Herzegovina. A similar situation
appears to have confronted the Supreme Court of Canada in Mugesera, above,
a case involving the admissibility of an individual to Canada in light of allegations
of crimes against humanity allegedly carried out in Rwanda.
[376] At paragraph 59 of Mugesera,
the Supreme Court of Canada stated that:
We will proceed, as did the
courts below, on the basis that, where the Minister relies on a crime committed
abroad, a conclusion that the elements of the crime in Canadian criminal law
have been made out will be deemed to be determinative in respect of the
commission of crimes under Rwandan criminal law. No one challenges the fact
that the constituent elements of the crimes are basically the same in both
legal systems.
[377] Similarly, there is
nothing in the record before me to suggest that the constituent elements of the
crimes are not basically the same in both legal systems.
b) The
Standard of Proof
[378] Citing the decision of
the Federal Court of Appeal in Ramirez v. Canada (Minister of Employment and
Immigration), [1992] 2 F.C. 306, [1992] F.C.J. No. 109, the Minister says
that the standard which applies in determining whether a crime against humanity
has been committed in this case is the “reasonable grounds to believe”
standard.
[379] The reasonable grounds
to believe standard was also applied by the Supreme Court of Canada in Mugesera,
above. Indeed, section 19(1)(j) of the Immigration Act specifically
states that “no person should be granted admission” for whom “there are reasonable
grounds to believe have committed an act or omission outside Canada that
constituted a war crime or a crime against humanity within the meaning of subsection
7(3.76) of the Criminal Code”.
[380] I agree that the
“reasonable grounds to believe” standard is the appropriate one when the issue
is whether the individual is inadmissible to Canada for one of the reasons cited in section
19(1) of the Immigration Act. This would include exclusion or
inadmissibility for involvement in crimes against humanity. The related
standard of “serious reasons for considering” applies
in assessing whether an individual is excluded from the protection of
the Refugee Convention: see Ramirez, above.
[381] However, the issue
before me is not whether Mr. Rogan was in fact excluded from the protection of
the Refugee Convention or was inadmissible to Canada. Rather, the issue for me to determine is
whether Mr. Rogan gained his permanent residence in Canada, and through that his
Canadian citizenship, by false representation or fraud or by knowingly
concealing material circumstances, in this instance his involvement in crimes
against humanity. This question must be decided on the balance of
probabilities standard.
[382] Having made findings as
to Mr. Rogan’s actions as a prison guard at the detention facilities in Bileća
in the summer of 1992, I must then determine whether Mr. Rogan was untruthful
or knowingly concealed material circumstances when he stated at his immigration
interview that he had not been involved in crimes against humanity. To do this,
I must consider whether Mr. Rogan’s actions constituted a crime against
humanity. This is a question of law.
c) Did Mr. Rogan’s
Actions Constitute a Crime Against Humanity?
[383] The Supreme Court noted in Mugesera that what distinguishes a
crime against humanity from an ordinary crime is the context in which the crime
takes place. A proscribed act will become a crime against humanity when it is
committed “as part of a widespread or systematic attack directed against a
civilian population or identifiable group”: at para. 151. As with any criminal
offence, there are two components to a crime against humanity: the criminal act
(actus reus) and the guilty mind (mens
rea).
[384] The Supreme Court
identified four essential elements that must be proven in order to establish
the existence of a crime against humanity in Mugesera. These are that:
(i) 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);
(ii) The act was committed as
part of a widespread or systematic attack;
(iii) The attack was directed
against any civilian population or identifiable group of persons; and
(iv) The person committing
the proscribed act knew of the attack and knew or took the risk that his or her
act comprised a part of that attack [at para. 119]
i) Was There an Enumerated
Proscribed Act?
[385] The first question to be
determined is whether these findings correspond to an enumerated proscribed act
necessary to satisfy the first element of the test for a crime against
humanity.
[386] I have found that Mr.
Rogan was a reserve police officer working as a prison guard at detention
facilities in Bileća in June and July of 1992. During that time, Mr. Rogan
was aware that the prisoners being held in the police station and student
dormitory detention facilities had been arrested and were being detained simply
because they were Muslim men living in Bileća in June of 1992. Mr. Rogan
was further aware that the prisoners were being held in inhumane conditions.
[387] Mr. Rogan was also aware
that prisoners in the detention facilities were being beaten and, in at least
one instance, killed. Mr. Rogan facilitated and was complicit in the beating
of prisoners. Mr. Rogan was himself directly responsible for striking Sreco
Kljunak in the face, for the beating of Asim Catovic, and for the intentional
infliction of severe psychological pain on Mr. Catovic’s son.
[388] “Persecution” is one of
the proscribed acts identified in the Criminal Code definition of crimes
against humanity. The Supreme Court of Canada recognized in Mugesera that
persecution is not a “stand-alone” crime under Canadian law. As a consequence,
the Court looked to the international jurisprudence, particularly that
emanating from the ICTY, in order to identify the essential elements of
persecution as a crime against humanity.
[389] From this jurisprudence,
the Supreme Court concluded that “the criminal act of persecution is the gross
or blatant denial of a fundamental right on discriminatory grounds. The guilty
mental state is discriminatory intent to deny the right”: Mugesera, at
para. 145. See also Prosecutor v. Milorad Krnojelac, ICTY, Case No. IT-97-25-T
(15 March 2002), at para. 434.
[390] I am satisfied that the
actions of Mr. Rogan described above amount to “persecution” within the meaning
of section 7(3.76) of the Criminal Code, thus satisfying the first of
the four essential elements of a crime against humanity identified by the
Supreme Court of Canada in Mugesera.
[391] I am further satisfied
that Mr. Rogan’s actions also constitute “other inhumane acts”, as the term is
used in section 7(3.76) of the Criminal Code.
[392] The list of proscribed
acts identified in the Criminal Code also includes “other inhumane
acts”, without specifying what those acts may be. The Supreme Court did not
address this issue in Mugesera, but did, however, make it clear that
Canadian courts can look to international jurisprudence for guidance on these
matters.
[393] In Prosecutor v.
Milorad Krnojelac, above, the ICTY found that the living conditions within
a detention facility in the town of Foca in Bosnia-Herzegovina amounted to inhumane acts
and cruel treatment. In this regard the Tribunal noted that as a result of the
living conditions at the facility, many detainees suffered serious physical and
psychological consequences: at paras. 440 and 443. The living conditions
described by the Tribunal in the Krnojelac case were very similar to,
and in some ways indistinguishable from, the conditions that the detainees were
subjected to at the police station and student dormitory detention facilities
in Bileća in the summer of 1992.
[394] In light of my
conclusions in relation to the crimes against humanity of persecution and other
inhumane acts, I do not need to determine whether imprisonment and torture also
constituted crimes against humanity in Canada in 1994, even though that they
were not specifically identified as such in section 7(3.76) of the Criminal
Code.
ii) Was
the Act Committed as Part of a Widespread or Systematic Attack against any
Civilian Population or Identifiable Group of Persons?
[395] The second and third
elements of crimes against humanity identified in Mugesera require the
act to have been committed as part of a widespread or systematic attack against
any civilian population or identifiable group of persons.
[396] The evidence of Dr.
Nielsen establishes that the round-up and imprisonment of Muslim men in Bileća
in June of 1992 was part of a widespread and systematic attack by forces of the
Republika Srpska, including the military and the reserve police, against the
civilian Muslim population of Bosnia-Herzegovina.
[397] I have found that this
attack manifested itself in Bileća in a number of different ways. These
included the significant increase of armed Serb military, paramilitary and
police units, and the arming of the Serb civilian population by Serb
authorities. This created fear in the Bosnian Muslim civilian population, and
threatened their safety. In addition to the loss of employment, the Muslim of
Bileća also faced restrictions on their travel and the destruction or
confiscation of their homes. The attack culminated in the unlawful arrest and
detention of the Bosnian Muslim male population of Bileća by Serb
authorities and the eventual ethnic cleansing of the area of the Bosnian Muslim
civilian population by Serb authorities.
[398] Thus the second and
third elements of a crime against humanity have been established.
iii) Did Mr. Rogan
know of the Attack and Know or take the Risk that his Acts Comprised a Part of
that Attack?
[399] Insofar as the fourth
element is concerned, the Supreme Court observed in Mugesera that a
determination of the individual’s knowledge of the existence of the attack can
be factually implied from the circumstances existing at the time of the alleged
acts. The Court may consider the individual’s position, public knowledge of the
existence of the attack, the scale of the violence and the general historical
and political environment in which the acts occurred. The individual need not
know the details of the attack: at para. 175.
[400] Similarly, the ICTY has held
that an accused “… must know that there is an attack directed against the
civilian population and he must know that his acts are part of that attack, or
at least take the risk that they are part thereof.” An accused need not have knowledge
of the details of the attack. It will be sufficient “that, through his acts or
the function which he willingly accepted, he knowingly took the risk of
participating in the implementation of that attack”: see Prosecutor v.
Milorad Krnojelac, above, at para. 59 [footnotes omitted].
[401] The evidence of Dr.
Nielsen establishes that the role of the reserve police units in the Republika Srpska
generally, and in Bileća in particular, was well known by the general
population. No effort was made to conceal police actions and they were of a
massive scale. The evidence also demonstrates that Mr. Rogan was aware of the
torture and abuse of Muslim detainees within the detention facilities by the
guards and other officials, and that he played an active role in the
mistreatment of prisoners.
[402] In light of its
magnitude and public nature, Mr. Rogan must have known of the existence of the
attack on the Muslim population of Bileća by the military and police
forces of the Republika Srpska. Moreover, Mr. Rogan could not have helped
but know that his actions guarding prisoners at the detention facilities in Bileća
comprised a part of that attack. As a result, I find that the final element of
the test for a crime against humanity has been established.
d) Conclusion with respect to
the Crimes Against Humanity Question
[403] As was noted earlier,
this is not a criminal proceeding. This is an important point, as the standard
of proof in this proceeding is not the high standard of “proof beyond a
reasonable doubt” that would apply in a criminal case and Mr. Rogan does not
enjoy the full range of Charter rights in a case of this nature that would
apply if he were facing criminal charges.
[404] The question for this
Court is not whether it has been established beyond a reasonable doubt that Mr.
Rogan is guilty of a crime against humanity under the Criminal Code, but
rather whether it has been established on a balance of probabilities that he made
false representations or concealed material information in his answer to Question
27 on his application for permanent residence.
[405] For the reasons given, I
find on a balance of probabilities that Mr. Rogan was not truthful when he
denied involvement in crimes against humanity in his answer to Question 27. I
am further satisfied that he knowingly concealed material information as to his
involvement in the crimes against humanity perpetrated against the Muslim
population of Bileća in the summer of 1992.
F. Did
Mr. Rogan Act under Duress?
[406] Before leaving this
issue, there is one final matter that must be addressed and that is the
question of whether Mr. Rogan acted under duress.
[407] The fact that an
individual may have acted under duress does not absolve their complicity in
crimes against humanity. That is, it does not negate findings that the acts
occurred, or that the individual had the necessary guilty mind. Rather, it
excuses that complicity: see Oberlander v. Canada (Attorney General), 2009 FCA 330, [2009] F.C.J.
No. 1451, at paras. 24 & 27 [“Oberlander FCA”].
[408] In order to establish
that he acted under duress, an individual must demonstrate that he was in
imminent physical peril in a situation not brought about voluntarily, and that
the harm to the victim or victims of the crime was not greater than the harm faced
by the perpetrator: Oberlander FCA, at para. 25.
[409] The question in this
proceeding is not, however, whether Mr. Rogan should be absolved of complicity
in crimes against humanity. As was noted at the outset of these reasons, the
role of this Court is to make factual findings as to whether Mr. Rogan made
false representations or knowingly concealed material information as to his
involvement in crimes against humanity in his answer to the question posed to
him at his immigration interview. The findings may then form the basis of a
report by the Minister to the Governor in Council requesting the revocation of
Mr. Rogan’s citizenship. The ultimate decision with respect to the revocation
of citizenship rests with the Governor in Council.
[410] Whether Mr. Rogan acted
under duress may, however, be a relevant consideration for the Governor in
Council to take into account in determining whether to exercise the discretion
to revoke Mr. Rogan’s citizenship. A factual finding in relation to this issue
may therefore be of assistance to the Governor in Council.
[411] Mr. Rogan was assigned
to work as a prison guard with the reserve police after having been called-up
for military service. Mr. Rogan had requested alternate service, as he did not
want to be sent to the battlefront for family reasons. As a result, I find that
Mr. Rogan served as a reserve police officer as an alternative to compulsory
military service.
[412] Mr. Rogan stated that
none of the prison guards were ordered to abuse prisoners at the detention
facilities in Bileća. Indeed, it is apparent from Mr. Rogan’s testimony
that the reserve police officers serving as prison guards at the police station
and student dormitory detention facilities in Bileća in the summer of 1992
were largely left to their own devices, receiving little in the way of
direction from anyone.
[413] No persuasive evidence
has been put before the Court to demonstrate that Mr. Rogan acted under duress
in abusing prisoners. On his own evidence, both in his interview with Inspector
Richards and Staff Sergeant Sesley of the RCMP and in his testimony before the
Court, Mr. Rogan stated that he was free to do whatever he wanted while working
as a guard in Bileća. Indeed, he testified that it was open to him to beat
or even kill prisoners if he wanted to do so.
[414] Mr. Rogan made no
attempt to disassociate himself from the reserve police, notwithstanding the
fact that he was clearly aware of the inhumane conditions under which the
prisoners were living and the abuses that were occurring in the detention
facilities. Indeed, Mr. Rogan actively participated in some of those abuses.
Mr. Rogan only decided to leave the reserve police when he was told by Miroslav
Duka that he would be sent to fight at the battlefront. As Mr. Rogan told
Inspector Richards of the RCMP, he left then because he “didn’t want to die on
the front line”.
[415] Mr. Rogan could have
left Bileća at any point during the spring and summer of 1992. He
testified that he had been able to travel freely between Bileća and Serbia
while he was working as a prison guard, and that he regularly went to see his
family in Serbia during this time.
Indeed he noted that he was even able to travel free of charge if he wore his
military uniform. Moreover, when Mr. Rogan did finally decide to flee Bileća,
he was able to do so without any apparent difficulties.
[416] In light of these facts,
I am not persuaded that Mr. Rogan was acting under duress during the time that
he worked as a prison guard in Bileća in the summer of 1992.
XIV. Summary of
Factual Findings
[417] The factual findings
made by the Court in this proceeding are summarized below.
A. Findings
Regarding Mr. Rogan’s Actions as a Prison Guard in Bileća
[418] Mr. Rogan was a reserve
police officer working as a guard at both the police station and student
dormitory detention facilities Bileća, Bosnia-Herzegovina in June and July of 1992.
[419] Muslim males living in Bileća,
including Mr. Pervan, Mr. Bajramovic and the Hadzic brothers, were arrested and
detained in the summer of 1992 simply because they were Muslim men living in Bileća.
Mr. Rogan would have been aware of this fact.
[420] Muslim prisoners,
including Messrs. Pervan, Bajramovic and the Hadzic brothers, were held in
inhumane conditions, and Mr. Rogan was aware of the inhumanity of the
conditions under which the prisoners were being held.
[421] At the time that he was
working as a prison guard at the detention facilities in Bileća, Mr. Rogan
was well aware of the fact that prisoners were being subjected to physical
abuse, including beatings.
[422] Mr. Rogan was directly
involved in the physical abuse of prisoners. He struck Sreco Kljunak in the
face, and facilitated and was complicit in the subsequent beating of Mr.
Kljunak. Mr. Rogan also beat Asim Catovic, and made statements to Mr.
Catovic’s son intended to inflict serious psychological pain.
[423] Mr. Rogan was not acting
under duress during the time that he worked as a prison guard at the detention
facilities in Bileća in the summer of 1992.
B. Findings
Regarding Mr. Rogan’s Application for Permanent Residence
[424] Mr. Rogan knowingly
misrepresented his educational qualifications in his application for permanent
residence in order to avoid having to produce supporting documentation to
Canadian immigration authorities.
[425] Mr. Rogan did not accurately
disclose his addresses for the period between 1986 and 1994 on his application
for permanent residence. He intentionally concealed the fact that he was living
in Bileća between March and July or August of 1992, which had the effect
of foreclosing or averting further inquiries by Canadian immigration officials.
Mr. Rogan also misrepresented that he was living in New Belgrade between August
of 1992 and early 1994, when he was in fact living in Bajmok during most of
that period.
[426] Mr. Rogan also
misrepresented his employment history in his application for permanent
residence as it related to where he was living and working prior to June of
1992. This had the effect of foreclosing or averting further inquiries by
Canadian immigration officials.
[427] Most importantly, Mr.
Rogan knowingly concealed his employment as a reserve police officer working as
a prison guard in Bileća in June and July of 1992. Disclosure of this
information would almost certainly have led to a finding that Mr. Rogan was
ineligible for refugee protection and inadmissible to Canada.
[428] Mr. Rogan also did not
disclose his involvement with the reserve police in answer to the question on
the application form regarding membership in organizations, including the
military. Even if I accept that the reserve police in Bileća were not
technically the military, Mr. Rogan’s involvement with the reserve police
should have been disclosed on the application form, either in response to this
question or in response to the question dealing with his employment history.
[429] Mr. Rogan also did not
answer truthfully and knowingly concealed material information in both his
application for permanent residence and at his immigration interview in
relation to his involvement in crimes against humanity perpetrated against the male
Muslim civilian population of Bileća in the summer of 1992.
[430] Mr. Rogan clearly
understood that the disclosure of his work as a reserve police officer and prison
guard in Bileća could have led to difficulties or delays with his
application for permanent residence. Taken together, the omissions and
inaccuracies in the information provided by Mr. Rogan in his application for
permanent residence and at his immigration interview were clearly a calculated attempt
on his part to conceal his role with reserve police in Bileća in June and
July of 1992, and to foreclose any inquiries by Canadian immigration officials in
this regard.
[431] As a consequence, I am
satisfied that Mr. Rogan obtained his Canadian citizenship by false
representation or fraud and by knowingly concealing material circumstances and
a declaration to this effect will issue.
XV. Costs
[432] The Minister is seeking
his costs associated with this proceeding. The Minister shall have one week in
which to file written submissions with respect to the issue of costs, including
particulars of the amount being claimed, which submissions are not to exceed
five pages in length. Mr. Rogan shall then have a further week in which to file
responding submissions on the issue of costs. Mr. Rogan’s submissions are also
not to exceed five pages in length.
JUDGMENT
THIS COURT DECLARES that:
The Defendant Branko
Rogan obtained his Canadian citizenship by false representation or fraud and by
knowingly concealing material circumstances within the meaning of paragraph
18(1)(b) of the Citizenship Act, R.S.C. 1985, c. C-29.
“Anne
Mactavish”
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