Date: 20080501
Docket: IMM-1922-07
Citation: 2008 FC 566
Ottawa, Ontario, May 1, 2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY
PREPAREDNESS
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Applicants
and
HECTOR MARTIN CORTEZ MURO
DIEGO ENRIQUE CORTEZ ALVARADO
MARIA EUFEMIA ALVARADO ROJAS
JASON MARTIN CORTEZ ALVARADO
KEVIN DAVID CORTEZ
ALVARADO
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
case involves a former Peruvian naval cadet and whether he should be excluded
from Canada because he
was a member of an organization which had committed crimes against humanity.
[2]
The
Immigration and Refugee Board (Board) hearing this judicial review became
somewhat muddled, distracted and mired in technical arguments about the
amendments to the Personal Information Form (PIF) and whether such amendments
should have been permitted. However, the Board did not lose its way in dealing
with the important subject matter.
[3]
The
important matter before the Board was whether the principal Respondent, Hector
Martin Cortez Muro (his family members were also claimants but their situation
is not germane to this issue), was complicit in crimes against humanity by
virtue of membership in an organization that committed such crimes. There was
no evidence that Cortez Muro committed any crimes personally nor did he direct
or order such crimes.
II. BACKGROUND
[4]
The
Board found that the Respondent was a person in need of protection and that
finding is not challenged here. The facts are useful only to set out the
context for the consideration of whether the Respondent should be excluded from
protection.
[5]
The
basis of the Respondent’s claim was that members of the Peruvian terrorist
group “Shining Path” had set out to kill him. The reason for this threat is
that the Respondent, while serving in the navy, was involved in the capture of
some terrorists who, when released or after their escape, systematically
targeted Cortez Muro and other members of his unit for assassination. The Respondent
sought protection from the military after a number of his colleagues had been
killed.
[6]
The
Board accepted his evidence and further found that state protection for him was
inadequate. The Board also found that the Respondent did not have a viable IFA
given the Peru-wide presence of the Shining Path.
Exclusion
[7]
The
other issue before the Board, and the principal one before this Court, was that
of complicity in war crimes. Towards that end, the Solicitor General took the
unusual step of filing a Notice of Intervention so as to participate in the
Board’s hearings.
[8]
That
Notice raised the issue of the potential for exclusion under Article 1F of the
Convention. It is important to note the scope of that Notice, which reads in
part:
“The Solicitor relies on the following
elements of fact and/or law:
1. The claimant has
indicated that he was in the Peruvian navy from September 1984 to February
1988, he was also a member of a unit called “Caiman 20” and “Caiman 27”.
2. Documentary
evidence describes the serious violations of human rights committed by the
Peruvian navy during that period which can be characterized as crimes against
humanity, war crimes and /or acts contrary to the purposes and principles of
the United Nations.”
Naval
Service
[9]
Mr.
Cortez Muro joined the Peruvian navy in October 1984 as a “student of the 1st
cycle” (the Canadian equivalent of an officer cadet) and was subsequently
promoted to the 2nd and 3rd cycle over the course of the
following two years.
[10]
Due
to the emergency situation in Peru in 1986 involving the Shining Path, he was
sent to the Los Cabitos military base in Ayacucho.
[11]
The
Respondent was assigned to a naval unit “Caiman 20” and as part of his duties,
he engaged in searches for terrorists. At one point, he was assigned to guard
four suspects and was ordered to abuse those prisoners, which he refused to do.
He claimed that he was arrested upon return to the naval school in Lima and was
confined to barracks for a month as a result of his refusal to follow orders.
[12]
The
Respondent continued his training and was later assigned to “Caiman 27” in
1987. While patrolling the Apurimac River, the Respondent
and his unit were involved in a gunfight with the Shining Path resulting in the
death of 15 guerrillas and one soldier and the capture of 18 other guerrillas.
The Respondent, having fractured his ankle in the battle, was assigned to guard
three prisoners who would later become his persecutors.
[13]
The
Respondent claimed that upon his return he was discharged from the naval school
for missing his exams while on assignment to the Caiman units. He was later
reinstated because the assignment was contrary to the military regulations
which provided that more senior cadets were to be assigned to that kind of
duty.
[14]
The
Respondent was eventually discharged from the navy in 1988 with full benefits.
It should be noted that the Respondent had originally volunteered for military
service.
[15]
Finally,
the Respondent claims that he did not notice, was not aware of, and did not
participate in any abuse, torture or other mistreatment of prisoners during his
service.
Personal
Information Form (PIF)
[16]
When
the Respondent came to Canada and applied for protection, he retained
the services of a lawyer and an interpreter working under that lawyer. Mr.
Cortez Muro claims to have fired the lawyer in February 2005 after he found out
that the PIFs which were filed by his former lawyer with the help of the
translator did not contain an accurate translation of his narrative.
[17]
The
first PIF was signed on June 16, 2004 – part of the document was typed and part
was written in the handwriting of the translator. The Respondent signed a
“Declaration A” which essentially states that the Respondent affirms the
contents of the PIF and understands English. This is an obvious error as
neither the Respondent nor his wife could speak any English.
[18]
The
second PIF narrative was filed on January 18, 2005 which contained minor
amendments to the original. This time, the appropriate “Declaration B” with
regard to translation and interpretation was executed.
[19]
At
the original Board hearing scheduled for February 8, 2005, the former lawyer
attended but was allowed to leave after the Respondent explained the situation
of having fired the lawyer. The Respondent claimed that the PIFs had not been
read to him and that he did not understand English. He claimed that he signed
whatever he was told to sign by the lawyer. The Respondent’s wife also
testified to essentially the same effect. The hearing was adjourned to allow
the Respondent to obtain new counsel.
[20]
For
the third time, the PIFs were amended on April 8, 2005. A number of changes
were made in regard to the information about Cortez Muro’s military service and
the form contained an extended narrative giving more details about his
involvement with the navy, his training and subsequent participation in areas
of combat.
[21]
The
central issue with respect to the PIFs is whether or not the changes made
between the first and third versions were a mere elaboration of the core of the
Respondent’s claim or whether it constituted a completely different narrative.
This issue is essentially one of credibility, both as to the reasons for the
various PIF versions and as to the veracity of the events described or
elaborated upon.
Board’s
Decision
[22]
In
the Board’s decision rendered April 26, 2007, the Board found that the third
PIF was a mere elaboration of incidents referred to in the first two PIFs. The
Board also accepted the affidavit evidence of third parties corroborating
Cortez Muro’s explanation for making the changes. There was a considerable
question raised as to the nature and the quality of the activities of the
former counsel.
[23]
The
Board noted that there were a number of obvious errors between the first PIF
and the third, errors of inconsistency on the face of the documents and errors
which were clearly mistakes.
[24]
The
Board rejected the Applicants’ contention that Cortez Muro was attempting to
recast his story and essentially found as a matter of credibility that the
amendments were made simply to provide more detail of his involvement and
activities with the navy.
[25]
The
Board further found that the Minister had failed to meet the burden of proof in
respect of the exclusion under Article 1F(a). The Board noted that the
Respondent had given his evidence in a straightforward manner without
hesitation and without omissions or exaggeration. The Board accepted his claim that
he was not involved in atrocities and he was not aware of any crimes against
humanity committed by naval personnel during his service.
[26]
In
considering the issue of the Respondent’s complicity in atrocities during his
military service, the Board considered the factors established in the
jurisprudence including the nature of the organization, its method of
recruitment, the Respondent’s rank, length of service, opportunities to leave
and knowledge of the crimes of the organization. The Board also examined the
evidence with respect to the Peruvian navy as an organization having a limited
and brutal purpose.
[27]
As
to findings of fact, the Board found that there was no documentary evidence
presented by the Minister to indicate that the Peruvian navy was a terrorist
organization or had a limited and brutal purpose. It relied on Ramirez v.
Canada (Minister of Employment and Immigration) (C.A.), [1992] 2 F.C. 306,
which held that membership in a military organization that was involved in
armed conflict with guerrillas (such as the Shining Path) and is involved in
some human rights abuses is not sufficient in and of itself as a basis for
exclusion. The Board further found that as for rank, recruitment and
opportunities to leave, Cortez Muro was a student at all times during his
service in the navy, that he joined voluntarily because of his sense of civic
duty, and finally that he was only engaged in combat with armed guerrillas and
was ultimately discharged due to his physical incapacity.
[28]
In
respect of Cortez Muro’s knowledge of atrocities, the Board reviewed in detail
the evidence relied upon by the Minister’s counsel to establish a constructive
knowledge on Cortez Muro’s part and summarized the argument as being based on
media reports and public debates which Cortez Muro would not have had access to
since he was serving in remote areas of Peru. In the result, the Board held
that Cortez Muro’s membership in the Peruvian navy was not sufficient in itself
to find complicity.
III. ANALYSIS
[29]
As
indicated earlier, there are two principal matters for review. The first
relates to the changes to the PIF, the substrata of that argument being issues
as to the former counsel’s competence and integrity. The second issue is that
of complicity in crimes against humanity including the issue of the burden of
proof with respect to complicity. In particular, the Minister argues that the
Board erred in not considering the activities of Cortez Muro’s naval units
(Caiman 20 and 27) and that it was this organization that had a limited and
brutal purpose.
Standard of Review
[30]
With
the Supreme Court of Canada’s decision in Dunsmuir v. New
Brunswick,
2008 SCC 9, the Court has clarified that there are only two standards of review
- reasonableness regarding issues of fact and mixed fact and law and
correctness on issues of law and procedural fairness. The standard of
reasonableness requires the Court to take into account a number of factors
including the nature of the Board, its expertise, and its opportunity to
observe witnesses, all of which are relevant in this case. To the findings with
respect to the PIF, these are largely questions of fact. As to the question of
complicity, this is an issue of mixed fact and law which is also subject to
standard of review of reasonableness.
Findings
in respect of Personal Information Form (PIF)
[31]
This
issue was, for purposes of argument, divided into the question about the
changes to the PIF and questions about the former lawyer’s competence and
integrity. In reality, those two issues directly relate to Cortez Muro’s
credibility and therefore should be considered as one issue.
[32]
As
stated earlier, the Board essentially found that the third PIF was an elaboration
of incidents already referred to in the first PIF narrative. The Board further
concluded that Cortez Muro made the amendments for the sole purpose of
correcting mistakes and to add more details to the essential core of the story.
[33]
In
this regard, the Board is making findings of credibility as to Cortez Muro’s
explanation for the initial errors in the first PIF. The Board was in a far
better position to assess the credibility of the witness than this Court and
considerable deference is owed to the Board in this regard.
[34]
Further,
a comparison of the three PIFs in issue makes it clear that a reasonable person
could come to the conclusion to which the Board came. Given the Supreme Court
of Canada’s explanation in Dunsmuir that a reasonable decision is one
where the decision maker can choose one of a range of reasonable results, the
Board’s credibility finding with respect to Cortez Muro’s explanation is a
reasonable one.
[35]
It
would have been difficult for the Board to have reasonably rejected the Respondent’s
explanation in view of the Board’s characterization of his evidence as being
honest and straightforward and the fact that the evidence was corroborated by
sworn affidavits of two third parties and not otherwise contradicted.
Furthermore, the explanation was consistent with the reading of the documents
themselves.
[36]
The
Applicants also challenged the Board’s decision in respect of that aspect of
the case which turns on the alleged competence and integrity of counsel and to
some extent the interpreter hired by the lawyer. The Applicants argued that in
the absence of evidence from either the former lawyer or translator, the Board
made an unreasonable decision with respect to finding that the cause of the
errors in the first and second PIFs was the responsibility of former counsel
and the translator.
[37]
The
courts have been loath to accept explanations from litigants that the blame for
all of their problems rests with their counsel. These are easy allegations to
make and generally difficult, if not impossible, to rebut. Certainly they are
difficult to rebut as allegations of professional negligence in the context of
an immigration review board hearing. Justice Pelletier in Estimé v. Canada
(Minister of Citizenship and Immigration), 2001 FCT 209, Justice Martineau
in Jaouadi v. Canada (Minister of Citizenship and Immigration), 2003 FC
1347, as well as other decisions of this Court, have indicated that the Court
is not prepared to accept allegations of wrongdoings against a lawyer without
some factual foundation or some form of proceeding.
[38]
These
cases do not say, however, that in all cases a court would not be prepared to
accept, nor should a board be prepared to accept, such allegations only in the
circumstances of a complaint to the Law Society or some other proceeding.
Indeed, those complaints or proceedings may be as unmerited as the allegations
themselves and would not likely be disposed of by the time the matter came
before the decision maker.
[39]
There
is a critical distinction between this case and those of many other cases
involving claims of professional negligence, incompetence and breach of duty.
There was a factual foundation for the allegations both in the testimony of the
Respondent, the nature of the changes in the PIF and the evidence of two third
parties. Whether this resulted from negligence need not be determined by the
Board. Indeed, the Board has no jurisdiction to do so.
[40]
Under
all of these circumstances, I am of the view that the Board’s conclusion of
accepting the third PIF and accepting the Respondent’s explanation for those
amendments is reasonable and in accordance with the very function which the
Board is to carry out.
Complicity
– Crimes Against Humanity
[41]
The
Applicants’ principal contention in respect of this issue of complicity is that
the Board erred in failing to analyse whether the naval unit stationed in Los
Cabitos could be qualified as an organization with a limited brutal purpose in
accordance with the finding in Canada (Minister of
Citizenship and Immigration) v. de Leon, 2005 FC 1208. It was
the Applicants’ position that the Board was required, on its own, to break down
the general allegation of brutality by the navy into the responsible sub-units,
particularly those in which the Respondent served and in respect of the
military activities in the geographic locations in which he was situated.
[42]
With
respect to Cortez Muro’s specific navy units, the Applicants relied on
documentary evidence of atrocities committed by “the navy” in and around Los
Cabitos during the period of the Respondent’s service. The Applicants argued
that this general documentary evidence was sufficient to characterize an
organization such as the Respondent’s naval units as being principally directed
to a limited and brutal purpose and that a rebuttable presumption of complicity
arises once it is established that a person is a member of such an
organization.
[43]
It
is well established law that the burden of proof to establish an exclusion
falls on the Minister. In that regard, the Minister is required to give notice of
the basis upon which the Minister relies for his claim of exclusion.
[44]
The
notice in this case identifies the organization said to have committed serious
violation of human rights as “the Peruvian navy”, not any particular sub-units
thereof. It was the Minister who cast the net so wide. It was therefore the
Minister’s obligation to establish that the Peruvian navy had the limited and
brutal purpose. This might be done by building the case up from the conduct of
sub-units. The method of proof depends on the circumstances.
[45]
A
review of the transcript of the submissions of the Minister’s counsel
indicates, consistent with the Minister’s Notice of Intervention, that the
Minister was building this case and relying on documentary evidence of
atrocities committed by the navy (and army) as the grounds upon which to find
the Respondent complicit.
[46]
There
was no evidence in the record that the naval sub-units, most particularly the
“Caiman 20” or “Caiman 27”, were involved in any of the activities which were
said to form the atrocities committed by the military. There is also
considerable doubt in the record with respect to the issue of burden of proof
and whether that burden has shifted. That analysis is dependent upon the
Minister showing that a person is a member of an organization which either
directly committed the atrocities or had a limited and brutal purpose. The
difficulty with the Applicants’ case is that in the absence of any evidence
that the units to which Cortez Muro was actually assigned were engaged in atrocities,
the only evidence relied upon against the Peruvian navy as an organization is a
general statement of the situation in 1984 prior to Cortez Muro’s
assignment.
[47]
Even
if the Board should have focused its attention on the navy units in which
Cortez Muro served as being the units having a limited brutal purpose, any
presumption of complicity is not irrefutable (see Sungu v. Canada (Minister
of Citizenship and Immigration), 2002 FCT 1207). The Board made findings
which were open to it that rebutted any presumption that would have arisen from
a determination that either the Peruvian navy or the particular units involved
had a limited brutal purpose. There was no other evidence that Cortez Muro was
complicit in crimes against humanity. There was no evidence of any atrocities
committed by those units or behaviour which might be considered as grounds for
concluding that those units were complicit.
[48]
With
respect to the general proposition that the Board must identify the particular
sub-units of a military organization in its assessment of whether an
organization has a limited brutal purpose, that proposition depends on the
allegations made by the Minister. In this case, the Notice of Intervention
alleges the Peruvian navy is the targeted organization for that consideration.
Having failed to make out a case that the whole of the Peruvian navy had a
limited and brutal purpose, in the absence of any direct evidence in respect of
the activities of the naval units, the Respondent would have been caught by
surprise if there had been any finding that the specific units “Caiman 20” and
“Caiman 27” were the organizations with the limited purpose. Indeed, there was
no such evidence. There was no documentary evidence that indicated that the
specific units to which Cortez Muro was assigned committed any impunable acts
and there is no suggestion that he himself directly did so.
[49]
Therefore,
in view of all of the facts canvassed in this case, the Board, acting upon the
Minister’s Notice, reasonably considered the evidence in respect of the
targeted organization and reached reasonable conclusions, both as to the
involvement of the Peruvian navy and of the Respondent in regards to crimes
against humanity.
IV. CONCLUSION
[50]
In
respect of the acceptance of the Respondent’s evidence, the Board reached a
reasonable conclusion on the evidence before it when it accepted the
Respondent’s explanation for the multiple PIFs. The Board committed no error,
as suggested by the Applicants, nor did it shift the burden of proof in respect
of Cortez Muro’s justification for acceptance of his PIFs to the Applicants.
The Respondent’s obligation remained always to establish the grounds for his
fear. If the Minister had issues with respect to that evidence, it was open to
the Minister to challenge that explanation and to call witnesses to rebut those
of the Respondent.
[51]
In
respect of complicity, the Board reached a reasonable conclusion, consistent
with the Minister’s own Notice of Intervention, in examining the allegations
that the Peruvian navy committed serious crimes of human rights. It was
incumbent upon the Applicants to establish that either the navy as a whole or
sub-units of the navy in which the Respondent was involved were complicit. The
Board also made a reasonable finding regarding the Respondent’s complicity in
terms of his rank, length of service and knowledge of alleged atrocities.
[52]
Therefore,
this judicial review will be dismissed.
[53]
The
parties made submissions in respect of certified questions. The difficulty with
the Applicants’ proposed question regarding the Board’s obligation to identify
the specific units is that it is an academic question given the facts in this
case and the basis upon which the Court reached its conclusion. Therefore, no
question will be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review will be dismissed.
“Michael
L. Phelan”
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