Date: 20080408
Docket: IMM-506-07
Citation: 2008 FC 436
BETWEEN:
JAIME CARRASCO VARELA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
HARRINGTON J.
[1]
The
Immigration and Refugee Board found there were reasonable grounds to believe
that Mr. CARRASCO Varela, a Nicaraguan citizen and a member of the Sandinista
Front of National Liberation, was an active and willing participant in combat
against the Contras, armed guerrillas opposed to the government. His activities
included the committing of atrocities against individuals under his guard, the
killing of peasants in the mountains and the execution of four prisoners
responsible for the kidnapping of a Soviet military attaché, all part of a
widespread and systematic attack against any civilian population operating
contrary to Sandinista rule. Mr. Carrasco was determined to be a person
described in section 35(1) (a) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27, (IRPA), and as such inadmissible to Canada. He was
ordered deported.
[2]
This
is a judicial review of that decision, which held he violated human or
international rights for having committed an act outside Canada that
constituted an offence referred to in sections 4 to 7 of the Crimes Against Humanity
and War Crimes Act, S.C. 2000, c. 24. In the context of the decision, the
Board was of the view there were reasonable grounds to believe Mr. Carrasco had
committed a crime against humanity which is defined in section 6 of that Act as
meaning:
|
murder,
extermination, enslavement, deportation, imprisonment, torture, sexual
violence, persecution or any other inhumane act or omission that is committed
against any civilian population or any identifiable group and that, at the
time and in the place of its commission, constitutes a crime against humanity
according to customary international law or conventional international law or
by virtue of its being criminal according to the general principles of law
recognized by the community of nations, whether or not it constitutes a
contravention of the law in force at the time and in the place of its
commission.
|
Meurtre, extermination, réduction en esclavage, déportation,
emprisonnement, torture, violence sexuelle, persécution ou autre fait — acte
ou omission — inhumain, d’une part, commis contre une population civile ou un
groupe identifiable de personnes et, d’autre part, qui constitue, au moment
et au lieu de la perpétration, un crime contre l’humanité selon le droit
international coutumier ou le droit international conventionnel ou en raison
de son caractère criminel d’après les principes généraux de droit reconnus
par l’ensemble des nations, qu’il constitue ou non une transgression du droit
en vigueur à ce moment et dans ce lieu.
|
ISSUES
[3]
As
in all judicial reviews of the decisions of administrative tribunals, the Court
must determine the degree of deference it owes the decision maker. In this
case:
a. are there
reasonable grounds to believe Mr. Carrasco participated in: i) the committing
of atrocities against prisoners under his guard; ii) the killing of peasants in
the Nicaraguan mountains; and iii) the extra-judicial execution of four
kidnappers?
b. if so, do any
of these events constitute a crime against humanity? and
c. were defences
or mitigating factors which may be available to Mr. Carrasco properly
considered, more particularly duress, superior orders and a general amnesty?
[4]
Mr.
Carrasco has had a long and complicated history in Canada, since his
arrival here in 1991. As events finally unfolded, this history is irrelevant,
at least to this judicial review. He was a member of the Sandinistas, the party
which overthrew the Somoza Regime in 1979 and which held sway in Nicaragua until voted
out in 1990. It was a time of internal conflict with armed guerrillas, the
Contras, opposing the government; with Cold War overtones on both sides. From
1983 to 1989, Mr. Carrasco served in the military, primarily as a guard at El
Chipote prison in the capital of Managua, but also for a short time in the village of San Jose de los
Ramates, situated in the mountains.
[5]
When
Mr. Carrasco arrived here, crimes against humanity were defined in the Criminal
Code and although the definition thereof is somewhat expanded in the current
Act, and although the admissibility hearing began under the Immigration Act
and was thereafter continued under the current IRPA, these changes do not
affect Mr. Carrasco’s case, with the possible exception that the Crimes
Against Humanity and War Crimes Act appends portions of the Rome Statute
of the International Criminal Court adopted by the United Nations in 1998,
and which came into force in 2002.
CRIMES AGAINST HUMANITY
[6]
It
must be borne in mind that crimes against humanity are considered in two
different Canadian contexts. Persons are not normally charged in Canada with respect
to alleged crimes committed in other jurisdictions. However, war crimes and
crimes against humanity are considered so heinous that those alleged to have
committed them may be charged in Canada with an indictable
offence and, if found guilty, are liable to life imprisonment. Mr. Carrasco has
not been charged with a crime against humanity, or any crime, here or
elsewhere.
[7]
The
second context arises in refugee and immigration matters. It may be determined
that the United Nations Convention Relating to the Status of
Refugees is not applicable because section 1F thereof specifically
excludes its application to persons who have committed crimes against peace,
war crimes or crimes against humanity, or that a putative refugee or immigrant
is not admissible for having committed an act outside Canada that constitutes
either a war crime or a crime against humanity. The burden of proof is neither
on the criminal standard of beyond a reasonable doubt nor on the civil standard
of the balance of probabilities. Section 33 of IRPA only requires that there be
“…reasonable grounds to believe…”
[8]
Crimes
against humanity, in the immigration context, were recently considered by the
Supreme Court in Canada (Minister of Citizenship and Immigration) v. Mugesera,
2005 SCC 40, [2005] 2 S.C.R. 100. The Court held at paragraphs 37 and 38 that
the standard of review on questions of law was correctness and on questions of fact
patent unreasonableness. However, in light of the Court’s subsequent decision
in Dunsmuir v. New Brunswick, 2008 SCC 9, which
eliminated the patent unreasonableness standard, I take it that questions of
fact are analysed on a reasonableness simpliciter basis.
[9]
In
interpreting “reasonable grounds to believe” set out in s. 33 of IRPA, I rely upon
paragraph 114 of Mugesera where the Court said:
“…[T]he reasonable grounds to believe” standard requires something
more than mere suspicion, but less than the standard applicable in civil
matters of proof on the balance of probabilities: Sivakumar v. Canada
(Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.), at
p. 445; Chiau v. Canada (Minister of Citizenship and
Immigration), [2001] 2
F.C. 297 (C.A.), at para. 60. In essence, reasonable grounds will exist
where there is an objective basis for the belief which is based on compelling
and credible information: Sabour v. Canada
(Minister of Citizenship & Immigration) (2000), 9 Imm. L.R. (3d) 61 (F.C.T.D.).
[10]
As
to the elements of a crime against humanity (and it makes no difference that the
reference was to the Criminal Code rather than to the current Act), the
Court stated at paragraph 119:
As we
shall see, based on the provisions of the Criminal Code and the
principles of international law, a criminal act rises to the level of a crime against
humanity when four elements are made out:
1. An enumerated proscribed act was committed
(this involves showing that the accused committed the criminal act and had the
requisite guilty state of mind for the underlying act);
2. The act was committed as part of a
widespread or systematic attack;
3. The attack was directed against any civilian
population or any identifiable group of persons; and
4. The person committing the proscribed act
knew of the attack and knew or took the risk that his or her act comprised a
part of that attack.
[11]
I
now turn to the three factual findings in their basic chronological order: i)
the commitment of atrocities while acting as a prison guard at El Chipote Prison;
ii) the murder of peasants while posted in the village of San Jose de los
Ramates; and iii) the murder of the four kidnappers. I will then consider whether
the facts justify a conclusion in law that crimes against humanity were
committed.
i) EL CHIPOTE PRISON
[12]
Mr.
Carrasco served as a prison guard from mid-1984, except for a brief sojourn at San Jose de los
Ramates, until he left Nicaragua in 1989. El Chipote was
a prison in the capital of Managua where political
prisoners were held, although thereafter they might be transferred elsewhere.
[13]
According
to Mr. Carrasco’s own testimony, prisoners were held in what can only be
considered brutal and inhumane conditions. Many were held in tiny bare cells
with no means of removing their excrement. They were regularly deprived of food
and water and interrogated by Russian and Cuban advisors. Interrogation
techniques included subjecting prisoners to extremes of hot and cold, so much
so that some died of heart failure. Reprisals were threatened against their
families. Many left, and Mr. Carrasco did not hear of them again. He did not
have sufficient authority to make inquiries. I doubt there is clear and
compelling evidence to give reason to believe that they were “disappeared” as
that term is now used. According to Mr. Carrasco, all he did was escort
prisoners to and from their cells and their interrogation rooms.
[14]
A
case very much on point, and a case frequently cited, is the decision of the
Federal Court of Appeal in Ramirez v. Canada (Minister of Employment and
Immigration), [1992] 2 F.C. 306. In speaking for the Court, Mr. Justice
MacGuigan held that simple membership in an organization which, from time to
time, commits international offences is not normally sufficient to tar a mere
guard with same, unless the organization is principally directed to a limited brutal
purpose such as secret police activity. The Sandinistas formed the government
and so cannot be considered as being limited to brutal purposes (Moreno v.
Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A)
and Murillo v. Canada (Minister of
Citizenship and Immigration), [2003] 3 F.C. 287 per Lemieux, J. at para.42).
[15]
Mere
presence at the scene of an offence is not enough to qualify as personal and
knowing participation, and as Mr. Justice MacGuigan added, one must be careful
not to automatically condemn everyone engaged in conflict under conditions of
war as the law does not demand immediate benevolent intervention at a person’s
own risk. “Usually, law does not function at the level of heroism.” However, he
went on to say: “With respect to the appellant’s serving as a guard, I find it
impossible to say that no properly instructed tribunal could fail to draw a
conclusion as to personal participation”.
[16]
He
added that Mr. Ramirez:
[37] […] was an active part of the
military forces committing such atrocities, he was fully aware of what was
happening, and he could not succeed in disengaging himself merely by ensuring
that he was never the one to inflict the pain or pull the trigger.
[17]
Mr.
Ramirez only had 20 months of service. Mr. Carrasco had six years; six years
which afforded him ample opportunity to withdraw his services and to leave Nicaragua. He did not.
The finding that he participated in these atrocities should not be disturbed.
[18]
Ramirez has served
as a template in these matters. See Sivakumar v. Canada (Minister of Employment and
Immigration),
[1994] 1 F.C. 433 (C.A.), Bazargan v. Canada
(Minister of Citizenship and Immigration) (1996), 205 N.R. 282, [1996]
F.C.J. No. 1209 (C.A.) and Harb v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 502 (Madam Justice Tremblay-Lamer).
ii) THE KILLING OF PEASANTS
[19]
According
to Mr. Carrasco, because he regularly raised the plight of prisoners at El
Chipote Prison at party meetings, he was banished to the countryside. He served
as a guard in the village of San Jose de los Ramates for a time in 1986.
He was concerned that the hunting down of Contras in the countryside was
indiscriminate. He did not wish to be a member of search parties. With the help
of an understanding superior officer, he was protected from active service as he
was issued a medical certificate which stated he had a heart condition. The Board
member did not consider this evidence credible, and his finding stands up to
examination. He pointed out that it would be highly unlikely that a commander
would jeopardize his own situation as once Mr. Carrasco returned to El Chipote
Prison, which he did, it would likely be discovered that he had no heart
condition. Mr. Carrasco claims that after six months at that village, he deserted
and was captured but only spent two weeks in jail before he returned to his
duties at El Chipote Prison and later formed part of a death squad.
[20]
However,
it does not follow that the situating of Mr. Carrasco in the mountains, hunting
down Contras, gives rise to a crime against humanity. I see no clear and
compelling information which would give reasonable grounds to believe he
deliberately killed innocent peasants.
[21]
As
stated in Mugesera, above, the facts are one thing, but the
determination that a crime against humanity has been committed is quite
another, a matter of law.
[22]
In
Gonzalez v. Canada (Minister of
Citizenship and Immigration), [1994] 3 F.C. 646, (1994), 115 D.L.R.
(4th) 403, the Court of Appeal dealt with a refugee applicant who had
been a member of a Nicaraguan battalion which encountered Contras hiding in a
peasant’s house. In the ensuing gun battle, three women and six children were
killed along with about ten Contras. Apparently, Mr. Gonzalez had objected to
firing on the women and children. The Court of Appeal held that this was an
incident of war, not a war crime. In the circumstances, Mr. Gonzalez had committed
neither a war crime nor a crime against humanity and so the Immigration and
Refugee Board erred in applying exclusion clause 1F of the Convention. In
concurring reasons, Mr. Justice Létourneau added:
However, I do not wish to be understood as
saying that the killing of civilians by a private soldier while engaged in an
action against an armed enemy can never amount to a crime against humanity or a
war crime so as to never give rise to the application of the exclusion found in
Article lF(a) of the Convention. Each individual case will depend on its own
particular facts and circumstances. It may be that in a given situation, while the
death of innocent civilians occurred at the time of, or during, an action
against an armed enemy, such deaths were not the unfortunate and inevitable
casualties of war as contended, but rather resulted from intentional,
deliberate and unjustifiable acts of killing and slaughtering.
iii) THE MURDER OF THE KIDNAPPERS
[23]
Notwithstanding
the many run-ins Mr. Carrasco said he had with the authorities, and
notwithstanding his prior desertion, he was assigned to be part of a death
squad to deal with four just captured kidnappers of a Soviet military attaché.
They were led out into a field handcuffed and blindfolded. There, they were
murdered in cold blood. Mr. Carrasco said that he did not fire and protested.
His superior officer said, however, to use Mr. Carrasco’s own words:
So at that time, at that moment, I knew
that I could not kill people like that because I’ve never done it before. So
being very nervous I told the commander, I told the commander, Lenin Cerna,
that I was going to go there but I wasn’t going to take part in the execution.
At that time Oscar Losa, the department chief, was also present so the
commander shouted at me and said, how is it possible that a member of the party
would be so weak in front of the enemy? […]
[24]
Mr.
Carrasco did not fire, and again was punished. He remained on the job and only
left Nicaragua, however,
more than a year later.
[25]
The
remarks of Mr. Justice MacGuigan in Ramirez are even more telling when it
comes to cold blooded murder.
CRIMES AGAINST HUMANITY
AND MR. CARRASCO
[26]
I
have no doubt that the Board was correct in holding that Mr. Carrasco had
committed crimes against humanity not only with respect to the murder of the
kidnappers, but also with respect to his participation in the abuse of other
prisoners at El Chipote Prison. As mentioned above, and relying on Gonzalez,
there is insufficient evidence to give reasonable grounds to believe he
participated in the murder of peasants in the mountains.
[27]
The
Board based itself on the summary of the jurisprudence set out by Mr. Justice
Nadon in Mohammad v. Canada (Minister of Employment
and Immigration), [1995] 115 F.T.R. 161. One of the issues is whether he protested
against the crimes and either tried to stop their commission or attempted to
withdraw from the organization. It was open to the Board not to be convinced
that Mr. Carrasco ever experienced discipline problems. Even if he did, they
were minor. He had ample opportunity to withdraw from the Sandinistas and leave
Nicaragua. He chose
not to do so.
[28]
Mr.
Carrasco argues that the kidnappers were garden variety criminals out for
personal gain. Although they were civilians, there is no evidence that the
murder was committed as part of a widespread or systematic attack, or against a
civilian population, as opposed to four specific individuals. While these
events might give rise to serious criminality, another ground for
inadmissibility under section 36 of IRPA, that was not the basis of the report
against Mr. Carrasco which led to the admissibility hearing.
[29]
The
evidence is clear and compelling that the kidnappers were treated as enemies of
the state. Mr. Carrasco claims the President of Nicaragua personally attended
El Chipote Prison. As Mr. Justice MacGuigan said in Ramirez, it does not
really matter whether the crime is a war crime or a crime against humanity. It
was a crime committed during the course of what was either a civil war or civil
insurrection. He simply employed the term “international crime”. In Sivakumar,
above, Mr. Justice Linden referred to article 6 of the Charter of the
International Military Tribunal. Historically, a crime against humanity was
committed against one’s own nationals, which helped distinguish it from a war
crime. In Gonzalez, above, Mr. Justice Mahoney made mention of the United
Nations Handbook on Procedure and Criteria for Determining Refugee Status,
1979, which in turn referred to the London Agreement of 1945. A war
crime included murder, and ill-treatment of prisoners of war. Crimes against
humanity included murder, or other inhumane acts committed against any civilian
population. Article 8 provided that superior orders would not free a person
from responsibility, but could be considered in mitigation of punishment.
[30]
Regardless
how the matter is considered, Mr. Carrasco was rightly ordered deported. The
order states: “The Immigration Division determines that you are a person
described in 35(1) (a) of the Act.” Both crimes against humanity and war crimes
are covered.
[31]
By
the same token, the prisoners in El Chipote Prison were either Contras or
ordinary political dissidents. It matters not whether Mr. Carrasco’s
involvement could be characterized as ill-treatment of prisoners of war or
inhumane acts committed against a civilian population. As Madam Justice
Tremblay-Lamer noted in Harb, above, even if the prisoners had been
soldiers, they were not involved in hostilities at the time of their
ill-treatment in prison. She concluded that they could be considered as
civilians, basing herself on the decision in International Tribunal for the
Prosecution of Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991
in Prosecutor v. Blaskic, IT-95-14-T, ICTY, March 3, 2000, Trial
Chamber.
[32]
The
Act requires the Court to take account of international law, and the Supreme
Court referred to a great number of international cases in Mugesera, above.
More recently, the importance of international law was re-emphasized in R.
v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292.
[33]
The
tests set out in Mugesera have been met.
DEFENCES AND MITIGATION
[34]
The
defences of superior orders and duress do not apply. Section 14 of the Crimes
Against Humanity and War Crimes Act repeats the long standing rule in
international law that the defence of superior orders has no application if the
order was manifestly unlawful. Cold blooded murder is always manifestly
unlawful. Over time Mr. Carrasco also had to come to learn that the treatment
of inmates at El Chipote Prison was manifestly unlawful.
[35]
Duress
would only apply if Mr. Carrasco had reason to apprehend that he was in
imminent physical peril, at least equivalent to the harm he was ordered to
inflict (Ramirez, above). He testified that he had heard it said that a
soldier who had disobeyed orders had been killed. More to the point is the
fact that his own treatment in the past for disobeying orders was mild. He was
not in physical danger, and he knew it.
AMNESTY
[36]
The
Board noted Mr. Carrasco’s argument that the Managua Accord led to a general
amnesty in favour of Sandinistas and Contras alike. This amnesty is claimed to
serve as a complete discharge or exoneration, and as a defence to all
inadmissibility allegations. The Board obviously considered the submissions
were without merit, but never analyzed them. The more important the issue, the
more important it is to give reasons. If one is to be branded as one who has
committed a crime against humanity, and one submits what may be a defence then
that defence should be considered, and reasons given why it was rejected.
[37]
As
Mr. Justice Pelletier, speaking for the Court of Appeal, said in North v.
West Region Child and Family Services Inc., 2007 FCA 96, [2007] F.C.J.
No. 400:
[3] The
obligation to give reasons is a requirement of procedural fairness. The basis
of the obligation was set out by the Supreme Court in R. v. Sheppard, 2002 SCC
26, [2002] 1
S.C.R. 869, a decision which, though made
in the criminal context, is equally applicable to the administrative law
context. In this case, the obligation to give reasons is found in the statute.
[4]
If the decision-maker does not provide reasons which set out his findings and
the basis upon which they are made, there is no substrate for the application
of the standard of review.
[38]
However,
if despite the lack of this procedural fairness there could only be one result
then the matter need not be sent back for re-determination per Mr. Justice
Linden at page 449 (Sivakumar, above);
In some cases,
the inadequacy of the Refugee Division’s findings would require the case to be
sent back to the Refugee Division for a new determination. However, as
MacGuigan J.A. held in Ramirez, supra, this Court may uphold the decision of
the Refugee Division, 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” (pages 323-324). In my opinion, under the standard
articulated in Ramirez, supra, it is not necessary to send this matter back to
the Refugee Division for a new determination for no properly instructed
tribunal could come to any other conclusion than that there were serious
reasons for considering that the appellant had committed crimes against
humanity.
See also Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore
Petroleum Board, [1994] 1 S.C.R. 202.
[39]
The legal issue is whether an amnesty could have
benefited Mr. Carrasco at the admissibility hearing. The Minister argues that
the record does not contain sufficient detail of the amnesty. That may, or may
not, be so, but the Board did not make a ruling on that point.
[40]
Two interesting articles were cited to me; Rikhof
“The Treatment of the Exclusion Clauses in Canadian Refugee Law” (1994), 24 Imm.
L.R. (2d) 31 and Naqvi “Amnesty for War Crime: Defining the Limits of International
Recognition”, [2003] 85 I.R.R.C 583. They make the assertion
that amnesties do not presently have international effect. However, within the
Canadian context, they really address the issue whether a person could or
should be charged with a crime against humanity, notwithstanding a general
pardon or amnesty. More on point are the United Nations Refugee Agency (UNHCR) Guidelines
on International Protection: Application of the Exclusion Clauses: Article 1F
of the 1951 Convention Relating to the Status of Refugees. Paragraph 23 thereof
provides;
“Where expiation of the crime is
considered to have taken place, application of the exclusion clauses may no
longer be justified. This may be the case where the individual has served a
penal sentence for the crime in question, or perhaps where a significant period
of time has elapsed since commission of the offence. Relevant factors would
include the seriousness of the offence, the passage of time, and any expression
of regret shown but the individual concerned. In considering the effect of any
pardon or amnesty, consideration should be given to whether it reflects the
democratic will of the relevant country and whether the individual has been
held accountable in any other way. Some crimes are, however, so grave and
heinous that the application of Article 1F is still considered justified
despite the existence of a pardon amnesty.”
[41]
Section 36 of the IRPA
specifically provides that inadmissibility on the grounds of serious criminality
may not be based on a conviction in respect of which a pardon has been granted,
or if there has been a final acquittal. Furthermore, rehabilitation is taken
into account. Although section 35 which deals with war crimes and crimes
against humanity is silent on these matters, given the international context of
the case, the United Nations Guidelines cannot simply be ignored.
[42]
The Crimes Against Humanity
and War Crimes Act, but again I emphasize in the criminal charge context
rather than in the immigration and refugee context, sets out at section 12
that if the person has been tried and dealt with outside Canada in such a
manner that if he or she had been tried and dealt with in Canada a plea of autrefois
acquit, autrefois convict or pardon would be available, the person is
deemed to have been so tried and dealt with in Canada.
[43]
Mr. Carrasco has not
been dealt with on the criminal level in Nicaragua, Canada or elsewhere.
[44]
In any event, I hold,
taking into account the UNHCR Handbook, that Mr. Carrasco’s participation in a
death squad and in the treatment of prisoners above described was so grave and
heinous that as a matter of law the full application of section 35 of IRPA
cannot be mitigated.
[45]
It follows, as per Sivakumar,
above, that it is not necessary to send this matter back for a new
determination, as there was only one legal conclusion open to the Board.
[46]
Mr. Carrasco submits
that the Board fell into error in referring to the Rome Statute. In my
opinion, it is not necessary to consider that submission as the Statute says nothing
new as far as Mr. Carrasco’s activities are concerned, as per Gonzalez,
above.
ABUSE OF PROCESS
[47]
In this case, unlike
many of the others cited, it was never found that Mr. Carrasco would be at risk
if returned to Nicaragua. He was excluded by the Board in 1992 on
the basis of Article 1F. However, his accompanying wife and minor son were
found not to be at risk. Reasons were never given, so we are left to speculate
whether the Board had in mind that the Sandinistas had been voted out of power,
or the general amnesty, or both. Then as a humanitarian gesture the Minister
allowed the family to return to Canada on a series of
temporary residence permits, subject to establishing admissibility.
[48]
When questioned as to
why the report to the Minister did not include serious criminality as a ground
of inadmissibility, the reply was that if Mr. Carrasco ultimately succeeds
on the crimes against humanity issue it would then be open to the Minister to
attempt to render him inadmissible on the grounds of serious criminality. The
decision of Al Yamani v. Canada (Minister
of Citizenship and Immigration), 2003 FCA 482, (2003) 314 N.R. 347, was cited as authority. Mr. Justice
Rothstein, speaking for the Court, said:
“In the circumstances of this
case, even though the Minister has unsuccessfully engaged a permanent resident
in inadmissibility proceedings for more than eight years, it is not an abuse of
process for the Minister to commence a new proceeding against the permanent
resident on a different ground, even though that ground has been available to
the Minister since February 1, 1993.”
[49]
It is certainly
desirable that all matters of inclusion and exclusion be dealt with at once.
In granting judicial review in Rai v. Canada (Minister of Citizenship and Immigration), 2001 FCT 764, [2001] F.C.J. No. 1163, Mr.
Justice Nadon stated at paragraph 21:
It would be
preferable for the new panel, as it would have preferable for the panel that
rendered the impugned decision, to consider both exclusion and inclusion so as
to avoid unnecessary delays.”
In Gonzalez, supra, Mr. Justice
Mahoney said there was a practical reason for all elements of the claim to be
dealt with. “Taxpayers might appreciate the economies of that approach.”
[50]
Although not necessary
for the purposes of this decision, I am compelled to say that the idea of the
Minister saving another argument for another day is disturbing. The decision
of the Court of Appeal in Abbott Laboratories v. Canada (Minister of Health),
2007 FCA 140, 282 D.L.R. (4th) 145, 59 C.P.R. (4th) 139
may stand for the broad proposition that one has to put one’s best foot
forward, and not save arguments for a possible second go-around. (See also Morel
v. Canada, 2008 FCA 53, [2008] F.C.J. No. 204.)
[51]
For instance had the facts
been somewhat different, there might still have been reasonable grounds to
believe that Mr. Carrasco participated in the murder of the four kidnappers but
that the murder was not part of a widespread or systematic attack, or was not
directed against a civilian population or an identifiable group. It would be a
waste of resources both at the Board level and at this Court to start the whole
matter over on what is an included offence, as murder is certainly a serious
crime, even if other requirements of a crime against humanity, or a war crime, were
not met.
[52]
It might also be
abusive if in an admissibility hearing it had been found that Mr. Carrasco
had not participated in the mistreatment of prisoners or the murder of the four
kidnappers. Is it right that the Minister could gather up better evidence at a
fresh hearing based on serious criminality?
CERTIFIED QUESTIONS
[53]
Section 74(d) of IRPA
provides that a judgment in judicial review is final with no appeal to the
Federal Court of Appeal unless “the judge certifies that a serious question of
general importance is involved and states the question.” It was agreed during
the hearing that a draft of the reasons would be provided to counsel before the
issuance of a judgment so as to give them an opportunity to suggest appropriate
questions. Consequently, a draft of the above paragraphs was duly circulated.
[54]
The question must be
one which has not been already decided by an appellate court and one, depending
on the answer, which could be determinative of the appeal. However, once the
matter is in appeal, the Court of Appeal is not confined to answering the
stated question or questions. All issues arising from the appeal may be
considered (Zazai v. Canada (Minister of Citizenship and Immigration), 2004 FCA 89, (2004), 36 Imm. L.R. (3d)
167, 318 N.R. 365).
[55]
Counsel for Mr.
Carrasco proposed four questions, which I have reworded somewhat:
a.
Are all prisoners necessarily
“civilians” for the purpose of defining a crime against humanity as per Canada
(Minister of Citizenship and Immigration) v. Mugesera, 2005 SCC
40, [2005] 2 S.C.R. 100?
b.
May the execution of
criminals constitute a crime against humanity as being part of a widespread and
systemic attack on civilians?
c.
Were the acts committed
by the Sandinistas against the Contras in military or civil war activities part
of a “widespread and systemic attack on civilians”?
d.
Is it an error in law to
rely on the Rome Statute in consideration of whether the mistreatment of
prisoners constitutes a crime against humanity (in relation to the applicant’s
service as a prison guard at El Chipote Prison)?
[56]
Counsel for the
Minister submits that none of the proposed questions transcends the interests
of the immediate parties, or contemplates issues of broad significance, or has
not already been answered. More particularly, it was suggested that in Sumaida
v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 10, the Federal Court
of Appeal dealt with the first three questions. I do not share that reading of
the Sumaida case. In speaking for the Court, Mr. Justice Létourneau noted
that some of those targeted were civilians, and could not be considered
terrorists. The question as certified need not have been and was not answered. Furthermore,
in Gonzalez, above, the Court of Appeal characterized encounters between
the Sandinistas and Contras as incidents of war. Although there has been
reference in the case law to the distinction between war crimes and crimes
against humanity based on the characteristics of the targeted group, it may
well be time to revisit that distinction, in the light of recent international
developments.
[57]
As to the fourth
question, the Minister submits, at least in so far as it relates to Mr. Carrasco’s
situation, that the Rome Statute is simply a restatement of existing
law. That is indeed my opinion. However, this is an important issue, and that
opinion might not be shared.
[58]
These questions are
interrelated, and at the risk of being somewhat overcautious, I am prepared to
certify all of them.
[59]
Although the general
amnesty in Nicaragua was the subject of considerable discussion in both written
and oral submissions, no question was proposed by Mr. Carrasco in that regard.
However, as other questions will be certified, given the distinction between
sections 35 and 36 of IRPA, and the UNHCR Handbook, I propose certifying
the following question myself:
Should a pardon
or general amnesty be taken into account in considering whether a person is
inadmissible on grounds of violating human or international rights within the
meaning of section 35 of the Immigration and Refugee Protection Act?
“Sean Harrington”
Ottawa, Ontario
April 8, 2008
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