Date: 20070813
Docket: IMM-3780-06
Citation: 2007 FC 838
Ottawa, Ontario, August
13, 2007
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
PAUL
THOMAS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant, a
citizen of Sierre Leone, seeks judicial
review of a decision of the Refugee Protection Division of the Immigration and
Refugee Board, dated June 14, 2006, in which the Board determined that Mr.
Thomas was not a refugee or a person in need of protection due to his exclusion
pursuant to Section 98 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27. While the Board’s decision is not error free, for the
reasons that follow I am satisfied that no reasonably instructed tribunal could
have reached a different conclusion and exercise my discretion to dismiss the
application.
[2]
The applicant joined the Sierra
Leone Army in 1991 rising to the level of Captain, the rank he held when he left
Sierra Leone in 1998.
[3]
On May 25, 1997 a coup ousted the
ruling Sierra Leone People’s Party (SLPP). The precise role played by the
applicant, if any, in the planning and execution of the coup is unclear from
the record. It is clear, however, that he was deeply involved with the military
government that formed after the coup, the Armed Forces Revolutionary Council
(AFRC), from its inception on May 25, 1997 until it was unseated from
government on February 13, 1998 by a Nigerian-led intervention force, the Economic
Community of West African States Cease-fire Monitoring Group (ECOMOG).
[4]
In considering the evidence before
it, the Board found that the applicant became an official spokesman for the
cabal that led the coup, held the position of “Under Secretary of State for
Mineral Resources” during the short-lived coup government, participated in
negotiations in July 1997 on behalf of the AFRC, and was appointed to the
position of “Secretary of State, Marine Resources” in a cabinet shuffle on
December 17, 1997. The applicant held this last post until the AFRC was ousted
on February 13, 1998. In his submissions in the present case, the applicant has
not disputed that he held these positions. He asserts that he fled Sierra Leone on
April 1, 1998.
DECISION
[5]
The Board accepted the applicant’s
identity. The Board described the applicant’s contention that he fears the
current government of Sierra Leone because of his involvement with the AFRC government
as being central to his claim, noting that he had testified that he risks being
put to death like many of his colleagues. The Board also noted the applicant’s
argument that he had been forced to become involved with the AFRC, but found
that a different picture emerged through his testimony and from the documentary
evidence.
[6]
The Board recognized that there
was much reason for the applicant to try and distance himself from the AFRC,
stating that the documentary evidence before the panel left no doubt as to the AFRC’s
nature. The Board found that the AFRC was an organization with a limited brutal
purpose, and that the applicant was a leader of this organization. In reaching
these conclusions, the Board relied significantly on Exhibit M-14, item 2,
“Findings”, Report of the Truth and Reconciliation Commission, Sierra Leone,
2004 (the “TRC Report”). The TRC Report sets out the findings of the Truth and
Reconciliation Commission (the “Commission”) that was set up in Sierra Leone to
make findings in relation to the causes, nature and extent of violations and
abuses during the armed conflict of which the AFRC was a part.
[7]
In addressing the role of the
applicant within the AFRC, the Board emphasized that though the applicant had
only referred to his position as Secretary of State for Marine Resources in both
his PIF and when he was questioned by the Canadian Security Intelligence
Service upon his entry into Canada, he had also held other leadership positions
in the AFRC government. When the applicant offered testimony trying to downplay
his involvement with and knowledge of the activities of the AFRC, the Board did
not accept his explanations as credible. The Board noted in particular that the
applicant’s progress into positions of increasing seniority was an indication
that he was an integral member of the AFRC junta and a knowing participant in
their plans and activities.
[8]
When asked by the Board why he had
stayed with the AFRC until it was ousted from power, the applicant responded
that he had had no choice. The panel did not accept this explanation. The Board
found instead that “[b]y not extricating himself at the earliest possible
opportunity, and by remaining with the AFRC from their inception until they
were ousted from Freetown, the claimant willingly subscribed to the ideology of
an organization that was “principally directed to a limited brutal purpose.””
[9]
In light of the applicant’s level
of involvement with the AFRC, and in light of the AFRC’s activities, the Board
concluded that there were serious reasons for believing that the applicant had
committed an international offence, namely a crime against humanity. As a
result, his refugee claim was rejected pursuant to section 98 of the Act, and
Article 1F(a) of the United Nations Convention Relating
to the Status of Refugees, July 28, 1951, [1969] Can. T.S.
No. 6 (the Refugee Convention).
ISSUES
[10]
The
issues raised in the present case can be described as follows:
1)
Did the Board err in misinterpreting the proper legal test to apply with
respect to complicity?
2)
Did the Board err in failing to provide adequate reasons with respect to
the purpose of the AFRC?
3)
Did the Board err in misapplying the test for complicity by:
a.
finding that the AFRC has a limited and brutal purpose?
b.
finding that the applicant was a knowing participant who held a shared,
common interest with the objectives of the AFRC?
c.
referring to atrocities committed after the period in which the
applicant was involved with the AFRC?
4)
Is the present case one in which the Court should exercise its
discretion to dismiss the application, despite there being an error with
respect to the crimes against humanity issue?
STATUTORY FRAMEWORK:
[11]
Section 98 of the Act
provides as follows:
|
98. A person referred to in section E or F of Article 1 of
the Refugee Convention is not a Convention refugee or a person in need of
protection.
|
98. La
personne visée aux sections E ou F de l’article premier de la Convention sur
les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger.
|
[12]
Article
1F(a) of the Refugee Convention states as
follows:
Article 1…
F. The provisions of this
Convention shall not apply to any person with respect to whom there are serious
reasons for considering that:
(a) He has committed a crime
against peace, a war crime, or a crime against humanity, as defined in the
international instruments drawn up to make provision in respect of such crimes;
…
ANALYSIS
Standard of
Proof & Standard of Review
[13]
The standard of proof that applies with respect to Article 1F(a)
of the Refugee Convention in this context is whether the Crown has demonstrated
that there are serious reasons for considering that the claimant has committed
crimes against humanity. This standard requires more than suspicion or
conjecture, but something less than proof on a balance of probabilities: Sivakumar v. Canada (Minister of Employment and
Immigration.), [1994]
1 F.C. 433 at para. 18 (C.A.),
leave to appeal to the S.C.C. dismissed, [1994] S.C.C.A. No. 27 (QL) [Sivakumar]; Ali v. Canada
(Solicitor General), 2005 FC 1306
at para. 13.
[14]
With respect to the standard of
review, to the extent that the issues raised go to findings of fact, they are
to be reviewed on a standard of patent unreasonableness; where the question is
one of mixed fact and law, they “can only be reviewed if they are unreasonable”; to the extent
that they raise a question of pure law alone, such as the interpretation of the
exclusion clause, “the findings can be reviewed if they are erroneous” i.e. the
standard of correctness: Harb v.
Canada (Minister of Citizenship and Immigration), 2003 FCA 39 at para 14. Where the issue
raised is one of procedural fairness, such as the adequacy of reasons, the standard of review is
correctness, and the pragmatic and functional approach need not be applied: Adu v. Canada (Minister of Citizenship and Immigration), 2005 FC 565 at para. 9; Canadian Union of Public Employees
(C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539 at para. 100.
[15]
The question as to whether the
facts, as found, establish that an individual has been complicit in crimes
against humanity is therefore reviewable on a standard of reasonableness, as
this is a question of mixed fact and law: Kasturiarachchi v. Canada
(Minister of Citizenship and Immigration), 2006 FC 295 at para. 12 [Kasturiarachchi]. That being said, the
question of what is required to make a finding of complicity is a question of
law which must be reviewed on a standard of correctness.
1. Legal
Test for Complicity
[16]
The
applicant asserts that the first question
to be determined in a complicity finding for crimes against humanity is which
crimes are alleged to have been committed. According to the applicant, such a
determination requires that the facts of the crimes be identified by the Board
as well as the respective sanction in the corresponding international
instrument, before a finding of complicity can be made.
[17]
The respondent
counters that the Board has made clear factual findings in the present case,
setting out specific acts for which the AFRC was responsible including:
abductions, forced labour (including child labour), beatings and killings of
civilians, mass rape, and amputations. The respondent argues that accepting the
applicant’s argument would require the Court to find fault with the Board for
simply not stating the obvious, that these crimes are crimes against humanity.
The respondent further argues that it is not necessary for the Board to refer
to specific international instruments, the real issue being whether the acts
identified by the Board are crimes against humanity as defined in the
jurisprudence. The respondent argues that it is plainly obvious, having regard
to the jurisprudence, that the crimes at issue in the present case qualify as
crimes against humanity.
[18]
The applicant
argues further that in finding the applicant complicit in crimes against
humanity, the Board has misapplied the test. The respondent argues that the
applicant appears to be objecting to the fact that the Board found both that
the AFRC was a limited and brutal purpose regime, and that the applicant was a
knowing participant who held a shared common purpose. The respondent asserts
that the Board cannot be held in error because it made additional findings in
support of its conclusion.
[19]
The
respondent, the applicant and the Board all refer to the same case law and
principles in setting out what the appropriate law to apply is in the present
case. For example, the Board citing Gutierrez
v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No.1494 at para. 22 (T.D.) (QL) [Gutierrez]
referred to the fact that there are three prerequisites to making a finding of complicity, including:
1) membership in an
organization which committed international offences as a continuous and
regular part of its operation;
2) personal and knowing
participation; and
3) failure to dissociate
from the organization at the earliest safe opportunity.
[emphasis mine]
These
prerequisites were established by the Court in Gutierrez on the basis of
an excerpt taken from the earlier decision of Penate v. Canada (Minister of Employment
and Immigration),
[1993] F.C.J. No. 1292 at paras. 4-6 (T.D.) (QL) wherein the Court had summarized
the principles set out in the foundational cases of: Ramirez v.
Canada (Minister of Employment and Immigration), [1992] 2
F.C. 306 (C.A.) [Ramirez]; Moreno v. Canada
(Minister of Employment and Immigration), [1994] 1
F.C. 298 (C.A.); and Sivakumar. These three prerequisites have since
been
utilized by
the Court, indicating they represent an accurate summary of the law, see for
example: Petrov v. Canada (Minister of Citizenship and Immigration), 2007 FC 465 at para.
8; Canada (Minister of Citizenship and Immigration) v. Yaqoob, 2005
FC 1017 at
para. 26.
[20]
Referring to Ramirez, the Board further
recognized six factors for determining
complicity in crimes against humanity: method of recruitment; nature of the
organization; position/rank; knowledge of atrocities; length of time as a
member; and opportunity to leave the organization. These factors have since been
described by the Court as “the most important factors to consider when
determining whether there were serious reasons to believe that the principal
Applicant had personal knowledge, or could be considered as an accomplice in
the perpetration of crimes against humanity”: Fabela v. Canada
(Minister of Citizenship and Immigration), 2005 FC 1028 at para. 24.
[21]
It is clear that the Board applied
these factors in the present case. For example, in its reasons the Board found that:
the applicant voluntarily joined the AFRC; the AFRC had a limited and brutal
purpose; the applicant was a leader of the organization and a knowing participant;
at best the applicant was willfully blind to the violence going on around him; the
applicant remained a member throughout the time the AFRC was in power; and that
the applicant did not leave the organization at the earliest possible
opportunity.
[22]
The law makes it clear that in order to be complicit in the
commission of an international offence an individual's participation must be
personal and knowing. Complicity in such an offence rests on a shared common
purpose: Gutierrez, above at para. 22, citing
Penate, above at para. 4 This has been described as the mens
rea requirement of the exclusion clause: Cardenas v. Canada
(Minister of Employment and Immigration), [1994] F.C.J. No. 139 at para. 12
(T.D.) (QL) [Cardenas].
[23]
In
the context of assessing complicity by way of involvement with an organization,
the first step is to look at the purpose of the organization in
question. Where
the “main objective of the organization is achieved by crimes against humanity
or is directed towards a limited and brutal purpose, membership is generally
sufficient to establish complicity”: Pushpanathan v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 867 at para. 41 [Pushpanathan].
Unless the organization at issue is found to have a limited, brutal
purpose however, mere membership in a group responsible for international
crimes is not enough: Sivakumar, above at para. 13.
[24]
It
was therefore legally open to the Board to find that the AFRC had a limited and brutal
purpose and to presume a shared common purpose in light of the applicant’s
membership as a result. As was further specified by the Court in Yogo v. Canada
(Minister of Citizenship and Immigration), 2001 FCT 390 [Yogo], this however is a rebuttable
presumption:
15 …
Where an organization is characterized as being principally directed to a
limited brutal purpose, a presumption operates which may result in a finding
of complicity in the absence of any further evidence other than membership.
The fact that the organization exists for a single purpose leads to the
assumption that, as stated by McKeown J. in Saridag v. Canada (Minister of
Employment and Immigration), [1994] F.C.J.
No. 1516 at paragraph 10 "... its members intentionally and
voluntarily joined and remained in the group for the common purpose of actively
adding their personal efforts to the group's cause. This assumption gives rise
to a presumption of complicity on the part of any refugee claimant who was
found to be a member of such a group ...". A shared common purpose is
presumed unless the applicant is able to rebut the presumption.
[emphasis
mine]
[25]
Therefore,
when the applicant offered testimony attempting to downplay his
involvement and role within the AFRC, the Board had to address the testimony
and determine whether the presumption had been rebutted. In doing so, it was
open to the Board to refer to other relevant factors.
[26]
With respect to the leadership position of the applicant in
particular, even where an organization’s purpose has not been determined to be
limited and brutal, it is “possible to infer knowledge of crimes and a common
purpose with the perpetrators of the crimes when the person in question
occupies a sufficiently high leadership position and either tolerates the
crimes or fails to withdraw from the organization”: Cardenas, above at para. 13. As was similarly
noted by the Court of Appeal in Sivakumar at paragraph 10: “[b]earing
in mind that each case must be decided on its facts, the closer one is to being
a leader rather than an ordinary member, the more likely it is that an
inference will be drawn that one knew of the crime and shared the
organization's purpose in committing that crime. Thus, remaining in an
organization in a leadership position with knowledge that the organization was
responsible for crimes against humanity may constitute complicity.” See also: Baqri v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 1096 at
para. 28 [Baqri].
[27]
By finding that the AFRC had a
limited and brutal purpose, and by going on to assess the evidence and
concluding that the applicant was a knowing participant; the Board did not
misapply the law. That being said, the law also makes it clear that specific
factual findings are required when a Board makes a finding of complicity, with
respect to the crimes
against humanity themselves.
[28]
To
meet this requirement, more is need then vague statements about “atrocities” and “abhorrent” tactics: Sivakumar, above at para.
32. Though the reasons of the Board in the present case arguably meet this standard,
the Court has also found that it is insufficient for the Board to speak in “general
terms of a broad range of violent and criminal acts”, specifying instead that the Board must state
specifically what crimes the applicant has been found to be complicit in: Baqri,
above at paras. 40-41.
[29]
Considering
the evidence that was before the Board in the present case, I believe the following words of the Court of Appeal in Sivakumar
equally apply here:
33... Given the seriousness of
the possible consequences of the denial of the appellant's claim on the basis
of section F(a) of Article 1 of the Convention to the appellant and the
relatively low standard of proof required of the Minister, it is crucial that
the Refugee Division set out in its reasons those crimes against humanity
for which there are serious reasons to consider that a claimant has committed
them. In failing to make the required findings of fact, I believe that the
Refugee Division can be said to have made an error of law.
[emphasis mine]
[30]
Though
the Board referred to a broad range of violent and criminal acts in the present
case, this is not sufficient. It was not however necessary for the Board to
refer to international instruments to make adequate findings as argued
by the applicant, the “real issue” being whether the acts identified “are crimes against humanity as
discussed in the court's jurisprudence”: Shakarabi v. Canada (Minister of Citizenship and Immigration) (1998), 145 F.T.R. 297 at para. 20
(T.D.).
[31]
By not making
adequate findings of fact the Board has erred in law in the present case. The Court may however uphold a decision of the Board to exclude, despite the errors
committed by the panel, if “on the basis of the correct approach, no properly
instructed tribunal could have come to a different conclusion”: Ramirez;
Sivakumar, above at para. 34; Cardenas, above at para. 14; Dzimba
v. Canada (Minister of Citizenship and Immigration), 2007 FC 500 at para. 38 [Dzimba].
As will be seen below, whether this exception should be applied in the present
case is the issue on which the case turns.
2. Adequate Reasons
[32]
The applicant argued that the failure of the Board to assess what
the purpose of the AFRC was before finding that it was limited and brutal in
nature, equates to a failure to fulfill the reasons requirement, rendering the
decision inadequate.
[33]
It
is true that the duty to give reasons is “only fulfilled if the reasons provided are adequate”, what
constitutes adequate reasons however “is a matter to be determined in light of
the particular circumstances of each case”: Via Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25 at para. 21 [Via Rail].
[34]
For reasons to be adequate, the
decision maker “must set out its findings of fact and the principal
evidence upon which those findings were based. The reasons must address the
major points in issue. The reasoning process followed by the decision maker
must be set out and must reflect consideration of the main relevant factors”: [footnotes
omitted] Via Rail, above at para. 22.
[35]
When
assessing the adequacy of reasons however, they must not be held to a standard
of perfection or read microscopically, they should be considered as a whole: Liang
v Canada (Minister of
Citizenship and Immigration), 2003 FC 1501 at para. 42; Andryanov v. Canada (Minister of Citizenship and Immigration), 2007 FC 186 at para. 21.
[36]
Though the
applicant is asserting that the Board did not address the purpose of the AFRC, this
is not accurate. Though arguably the issue could have been more clearly
addressed, the Board did review the evidence before it. It found that the
documentary evidence left “no doubt as to the nature of the AFRC”. The Board further
recognized that the AFRC “competed in sheer brutality with the notorious RUF”; that
it “was a brutal and systematic violator of human rights whilst in office”; and
that it “was more concerned with the pursuit of personal gain”. The Board
highlighted that the AFRC plundered the resources of the state, and that the
management of Sierra
Leone’s mineral
resources was irresponsible and motivated by personal profit. The Board further
found that the
AFRC had
“unconstitutionally seized power and unleashed a reign of lawlessness and
violence on the people”, and that “the officers who held state functions under
the military rule of the AFRC acted with utter impunity” looting civilians’
property and beating up and summarily killing both soldiers and civilians.
[37]
Though the
Board did not present a succinct summary of its characterization of the AFRC’s
purpose before describing it as being limited and brutal, it clearly made
findings of fact in support of its conclusion. The Board’s conclusion that the
AFRC’s purpose was therefore “limited and brutal” is sufficient to meet the
adequate reasoning requirement.
3. Application
of the Test
a) Limited and Brutal
Purpose
[38]
As was accepted by both parties,
in Ramirez at paragraph 16 the Court of Appeal made it clear that “mere membership in an organization
which from time to time commits international offences is not normally
sufficient for exclusion from refugee status” however, “where an organization
is principally directed to a limited, brutal purpose, such as a secret police
activity, mere membership may by necessity involve personal and knowing
participation in persecutorial acts.”
[39]
The applicant argues that though
the AFRC was an organization that from time to time committed human rights
abuses and crimes, it was not an organization with a limited and brutal purpose
– it instead had a valid political purpose. The
respondent counters that there was ample evidence before the Board to support
the Board’s conclusions that the AFRC had a limited and brutal purpose.
[40]
In order for the Board to properly characterize the purpose of an
organization or group as limited and brutal, it must ensure that there is
sufficient evidence to support its finding. Where the documentary evidence does not support the Board’s characterization
of the nature of the organization its finding constitutes a reviewable error: Yogo, above at para.
20.
[41]
In
support of his argument that the Board erred in finding that the AFRC’s purpose
was limited and brutal, the applicant relies on Balta v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 146 at para. 14 (T.D.) (QL),
wherein the Serbian Army, which had committed international crimes in the
Balkans, was found by the Court not to be an organization with a limited and
brutal purpose because it had a political objective, namely Serbian control of Bosnia.
[42]
It
is however open to the Board to reject an asserted purpose
on the evidence. In Antonio v. Canada (Solicitor General), 2005 FC 1700 at paras.
17-18 [Antonio] for example, the Court upheld the finding that the
Angolan Army had
a limited and brutal purpose for the time period in question, despite the
assertion that it had had the purpose of National Defense. The Court referred
to the fact that the applicant had pointed to “two
sentences in the voluminous documentary evidence that state that the role of
the Angolan Army was responsible for protecting the country against external
threats.” The Court went on to find however that there was “ample documentary
evidence that, during the period of civil war in which the Applicant served in
the Army, the Angolan Army carried out activities directed at defeating the
UNITA and terrorizing the citizens of Angola. Importantly, there is no
documentary evidence that the Army engaged in any other activities whatsoever
during the time in question”: Antonio, above at para. 17.
[43]
It is also open to the Board to recognize that an
organization is limited and brutal in nature where its violent activities
cannot be separated from whatever other objectives it may have. For example, where there is no evidence that an organization’s political
objectives can be separated from its militaristic activities, or where its
terrorist or reprehensible activities cannot be separated from its other
objectives, it is reasonable to conclude that it is an organization with a
limited and brutal purpose: Pushpanathan, above at para. 40; Nagamany
v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1554 at para. 35 [Nagamany].
[44]
The applicant argued that as the
leader of the AFRC (Major Johnny Paul Koroma) ordered the military to cease
their lawless behavior, this suggests that the sole purpose of the AFRC was not
to commit international crimes. The applicant acknowledges that the AFRC was
not a legitimate government but asserts it cannot be equated with a secret
police force whose only purpose is the arrest and abuse of political prisoners.
[45]
Though the
Board did not specifically refer to this piece of evidence, it did refer to the
findings of the Commission with respect to the involvement of the AFRC’s
leadership in the ongoing violence.
[46]
As
was noted by the Court in Taher v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 1433 at para. 14
(QL): “[i]t is trite law that a tribunal must be presumed to have
considered all the evidence that was presented to it. Still, a tribunal is not
obliged to mention in its reasons all the elements of evidence it has taken
into account before rendering its decision. Furthermore, because certain
evidence is not mentioned in the tribunal's reasons, it does not mean that such
evidence was ignored.” See also: Agastra v. Canada
(Minister of Citizenship and Immigration), 2006 FC
548 at para. 43. That being said, the Board's failure to mention an “important
piece of evidence which contradicted its finding” can support an inference that
the Board failed to take this evidence into account: Otti v. Canada
(Minister of Citizenship and immigration), 2006 FC
1031 at para. 13.
I do not believe that the evidence of the
announcement made by Major Johnny Paul Koroma required such specific mention as
it is at best self-serving in light of the international condemnation directed
at the activities of his army and not incompatible with the finding reached by
the Board.
[47]
In
the case of the AFRC, it is clear that the Board recognized that at some level
it had political objectives. The
Board recognized the fact that the AFRC had come into being after the duly
elected government of President Kabbah was overthrown on May 25, 1997. The
Board further characterized the AFRC’s time in power as a period of violent and
corrupt military rule. Despite this inherent political aspect to the AFRC,
there is overwhelming evidence of violence and human rights abuses
characterizing its period in power. Considering the evidence before the Board,
it was not unreasonable of the Board to conclude that the AFRC’s purpose was one that could be characterized as limited
and brutal in that there was no evidence that its violent militaristic
activities could be separated from what ever other objectives it might have
had.
b) Knowing
Participant, Shared Common Purpose
[48]
In
addition to finding that the AFRC had a limited and brutal purpose, the Board also referred to the applicant as being a “knowing
participant”, and having “willingly subscribed to the ideology” of the
organization. The Board relied in particular on the applicant’s leadership
position within the organization, his rise through the ranks, and the fact that
the applicant stayed with the organization for the entire time it was in power
in reaching these conclusions. As was specified by the Court of
Appeal in Sivakumar at paragraph 13: “…the closer one is to a position
of leadership or command within an organization, the easier it will be to draw
an inference of awareness of the crimes and participation in the plan to commit
the crimes”.
[49]
In the present case, the Board
specifically noted that the applicant attempted in his testimony to distance
himself from the AFRC and downplay his role, however the Board clearly
rejected
the applicant’s explanations as not credible. As previously noted, the
credibility findings of the Board were not challenged in this review. The
applicant asserts instead that there was evidence that the violations committed
by AFRC members may not have been consistent with the objectives of the AFRC,
in light of the denouncement of such actions by Major Johnny Paul Koroma. On
the basis of this evidence the applicant argues that his knowing participation
and his support of AFRC’s objectives may not render him complicit, because the
crimes at issue were in fact “isolated incidents” or crimes committed by rogue
elements which were not obeying the orders of the organization.
[50]
As I noted above, it was open to
the Board to reject this evidence. The Board clearly found that the leadership
of the AFRC itself showed a particularly ruthless disregard for human life and
limb, that the officers of the AFRC betrayed the trust of the people, unleashed
a reign of lawlessness and violence, looted civilian property, acted with utter
impunity, and beat up and summarily killed both soldiers and civilians. The
Board further found that the applicant was a leader of this organization, and concluded
that as a leader he must be held accountable for what it did.
[51]
As I previously noted, it was open
to the Board to rely on the applicant’s leadership position within the AFRC to reinforce
its findings with respect to the applicant’s complicity. It was similarly open
to the Board to reject the applicant’s explanations as not credible. The
findings of the Board with respect to this issue can not be said to be unreasonable.
c) Referral
to Atrocities Occurring After the Applicant’s Involvement
[52]
As was recently made clear by the Court in Nagamany
at paragraph 37: “it must be kept in mind that one should assess the nature
of an organization on the basis of its activities at the time the particular
claimant was allegedly involved”. That being said, it was not found to be fatal in Nagamany
that the Board had referred to events occurring after the time in which the
applicant was clearly involved with the organization at issue, in light of the
fact that it also referred to ample evidence throughout the time in which he
was involved: at para. 39. Having carefully reviewed the evidence, and having acknowledged that the decision of the Board could have been
better structured, the Court went on to conclude that the Board’s finding that
the organization at issue was one with a limited and brutal purpose was reasonable, and should therefore
not be set aside: Nagamany, above at para. 41.
[53]
The
same can be said in the present case. It is clear that the applicant was involved with the AFRC until they were ousted
from Freetown. Though in the present case the Board relied on one piece of evidence that
mentioned an atrocity which took place during and after the AFRC was ousted
from power, a program of amputations from
1998 to 1999, it otherwise properly restricted its analysis to evidence that
pertained to the time period in which the applicant was directly involved with
the AFRC. Considering the
totality of the evidence, though the Board’s reasons could have been better
structured, it cannot be said that they are unreasonable on the basis of this
issue.
4. Impact of
the Errors of the Board
[54]
As I noted above, the Court may uphold a decision of the Board to exclude,
despite errors committed, if “on the basis of the correct approach, no properly
instructed tribunal could have come to a different conclusion”: Ramirez;
Sivakumar, above at para. 34; Cardenas, above at para. 14; Dzimba,
above at para. 38. Taking into
consideration that only evidence pertaining to the time in which the applicant
was involved with the AFRC can be considered, the question at issue is whether
this principle should be applied in the present case.
[55]
As
noted above, in making findings with respect to crimes against humanity, the
real issue is whether the acts are crimes against humanity as defined in the jurisprudence. As
was recognized by the Court in Chougui v. Canada
(Minister of Citizenship and Immigration), 2006 FC
992 at para. 11, on many occasions, the Federal Court of Appeal has adopted the
definition of crimes against humanity found in section 6(c) of the Charter of
the International Military Tribunal. Article 6(c) of the Charter of
the International Military Tribunal (Agreement for the Prosecution and
Punishment of the Major War Criminals of the European Axis) [82 U.N.T.S. 279]
reads as follows:
Article 6
…
(c) Crimes against humanity:
namely, murder, extermination, enslavement, deportation and other inhumane acts
committed against any civilian population, before or during the war; or
persecutions on political, racial or religious grounds in execution of or in
connection with any crime within the jurisdiction of the Tribunal whether or
not in violation of the domestic law of the country where perpetrated.
See
for example: Sumaida v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 66 at para. 13 (C.A.) [Sumaida]; Sivakumar, above at para.
14.
[56]
In
Mugesera
v. Canada (Minister of
Citizenship and Immigration), 2005 SCC 40 [Mugesera], the Supreme
Court discussed crimes against humanity. As noted by the Court in Kasturiarachchi at paragraph 17, “[a]lthough
the court was dealing with crimes against humanity in the context of
admissibility, the discussion, in my view, is equally applicable to the issue
of exclusion.”
[57]
The
Supreme Court, after referring to relevant Canadian domestic law and
international principles,
set out four criteria required for a finding that a criminal act had
risen to the level of a crime against humanity. It specified: 1) that an enumerated proscribed act must have been committed (this involves showing
that the accused committed the criminal act and had the requisite guilty state
of mind for the underlying act); 2) the act must have been committed as part of a widespread or systematic attack; 3) the attack must have been directed against any civilian
population or any identifiable group of persons; and 4) the person committing the proscribed act knew of the attack and knew or
took the risk that his or her act comprised a part of that attack: Mugesera,
above at para. 119.
[58]
The Supreme Court went on to clarify that to
meet the “widespread or systematic” criteria, an attack will usually
involve the commission of acts of violence, though it may also involve the
imposition of a system such as apartheid. Furthermore an attack need be only
widespread or systematic. To determine the nature of an attack however,
one must examine the means, methods, resources and
results of the attack upon the civilian population. The Supreme Court further
made it clear that only the attack needs to be widespread or systematic, not
the act of the accused. Even a single act may
constitute a crime against humanity as long as the attack it forms a part of is
widespread or systematic and is directed against a civilian population: Mugesera,
above at
paras. 153-156.
[59]
Taking the above into account, it
is clear that there
was a significant amount of evidence
before the Board that support’s the Board’s conclusion that the AFRC was guilty
of crimes against humanity, and that indicates that a properly instructed
tribunal could have reached no other conclusion.
[60]
For example, the TRC Report notes
that the AFRC only came into being in 1997 and only existed until 1999. Yet it
was responsible for the second largest number of human rights violations from
the period of 1991 to 2000, committing 325 in 1997 and 1943 in 1998, which
includes the period in which the applicant was involved: TRC Report, at paras.
108 and 112. The sheer number of human rights abuses supports the argument that
the crimes committed were part of a widespread or systematic attack.
[61]
In addition, the
Commission states clearly that all factions of the conflict specifically
targeted civilians, and that combatant groups executed brutal campaigns of
terror against civilians in order to enforce their military and political
agendas: TRC Report, at paras. 76 and 84. The Commission further found that
while the majority of victims were adult males, the perpetrators also singled
out women and children for some of the most brutal violations of human rights
recorded: TRC Report, at paras. 77, 81-82. The Commission further stated that
forced displacements, abductions, arbitrary detentions and killings were the
most common violations. Other violations included destruction of property,
assault/beating, looting of goods, physical torture, forced labour, extortion,
rape, sexual abuse, amputation, forced recruitment, sexual slavery, drugging,
and forced cannibalism: TRC Report, at paras. 78 and 87. Clearly many of
these violations fall into the category of crimes against humanity,
particularly in light of the fact that civilians were specifically targeted in
systematic campaigns.
[62]
The TRC Report also indicates that the Commission found that
all of the armed groups pursued a policy of deliberately targeting children. The
AFRC in particular was found responsible for the abduction and forcible
recruitment of children as child soldiers, and the Commission found the
leadership of the AFRC to be responsible for the strategy that led to these
violations: [emphasis mine] TRC Report, at para. 487.
[63]
The Commission found in
particular that “the AFRC was responsible for the amputations,
mutilations, slave labour, forced drugging, torture, assault, cruel and
inhumane treatment of children during the conflict in Sierra Leone” and that “the
leadership of the AFRC not only permitted those under their command to carry
out these violations, but engaged in the commission of these violations
themselves”: [emphasis mine] TRC Report, at para. 489. The applicant himself
acknowledged this finding in his written submissions: Application
Record, at 165.
The TRC further stated that
“[t]here are no mitigating factors to justify such inhuman and cruel conduct”:
TRC Report, at para. 90.
[64]
The Commission also found
that “the AFRC pursued a deliberate strategy of targeting girls and women with
the specific intention of violating them by abducting them, raping them and
perpetrating acts of sexual violence against them”: TRC Report, at para. 505.
The strategy particularly targeted women and girls between the ages of 10 and
14: TRC Report, at para. 516.
AFRC was listed as the major perpetrator, along with RUF, of sexual
slavery and forced marriages, in addition to “enforced sterilization” and
mutilation of women and girls.
[65]
As was summarized by the
Commission “the AFRC was a brutal and systematic violator of human rights
whilst in office”: TRC Report, at para. 240. Clearly much of the above meets the legal definition of crimes against
humanity with respect to the activities of the AFRC.
[66]
Furthermore, there was
ample evidence before the Board that supported its finding that the applicant
was a leader of the AFRC. As was noted by the Board, the applicant’s name was
included by the Commission in the list of individuals whom it had found to have
played “prominent leadership roles throughout the evolution of the AFRC”: TRC
Report, at para. 261. There was also overwhelming evidence of the involvement
and support of the AFRC leadership in the crimes noted above.
[67]
Though the Amnesty
International Report entitled “Sierra Leone: A disastrous set-back for human
rights” which was before the Board, indicated that while the leader of AFRC, Major Johnny Paul Koroma, “has
called on soldiers to refrain from illegal activity, lack of effective control
over both soldiers and members of RUF has resulted in human rights violations
being committed with impunity”, the TRC Report repeatedly found that the
leadership of the AFRC was responsible for the listed human rights violations. For
example, the Commission found that “the leadership and membership of the
AFRC displayed a particularly ruthless disregard for human life and limb”, and
that Johnny Paul Koroma “was the man most responsible for the violations and
abuses carried out by the AFRC soldiers: first as the Head of State under
the AFRC junta government; later in his capacity as the Chairman of the
ill-fated Commission for the Consolidation of Peace”: [emphasis mine] TRC
Report, at paras. 232 and 239.
[68]
It is also of note that
the applicant has not disputed the positions he held within the AFRC, nor has
he disputed the Board’s credibility findings with respect to his level of
involvement with the AFRC.
[69]
Taking all of this into
account, I believe that the evidence is such that on the basis of the correct
approach, no properly instructed tribunal could have concluded that the
applicant was not complicit in crimes against humanity, in light of his role
and involvement with the AFRC. I believe this is therefore an appropriate case in which to dismiss the application
for judicial review despite the errors committed by the Board outlined above. The application is therefore
dismissed. No serious questions of general importance were proposed.
JUDGMENT
THIS COURT ORDERS THAT: The
application is dismissed. No questions are certified.
“Richard
G. Mosley”
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