Date: 20080717
Docket: IMM-2552-08
Citation: 2008 FC 881
BETWEEN:
JAMES
COREY GLASS
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
ORDER
FRENETTE D.J.
[1]
This
is a motion to stay the execution of an order rendered against the applicant for
removal to the United States (U.S.), scheduled to be executed on July 10th,
2008. I granted the stay on July 9th, 2008 and here are my reasons.
I. Background
[2]
The
applicant is a citizen of the U.S. who came to Canada on August 6,
2006, claiming refugee status. His claim was dismissed on June 21, 2007; he was
denied leave for judicial review of that decision. His Pre-Removal Risk
Assessment (PRRA) was decided negatively on March 25, 2008. His humanitarian
and compassionate (H&C) application was refused on the same day.
[3]
He
now seeks judicial review of both decisions. The applicant’s claim results from
his refusal to serve in the U.S. army in Iraq. He joined
the Army National Guard (National Guard) in 2002 to serve his community in
humanitarian missions in case of national disasters and local needs. He was
told that the National Guard would never be involved in foreign wars.
[4]
In
1993, numerous National Guard units were advised they were activated to go to
war in Iraq and Afghanistan. After his transfer to the California National
Guard, he was promoted to the rank of Sergeant. After activation, the National
Guard unit of which Mr. Glass was a member was sent to join the U.S. army and
deployed in Iraq, where he
was ordered to serve in the military intelligence service.
[5]
He
served during six months in Iraq during which he observed “gross human rights
violations and gross misconduct by U.S. soldiers against Iraqi
civilians including children”. During this service, he observed many Iraqi civilians
who were killed “for no good reason”.
[6]
He
also became aware of misconduct by U.S. soldiers, including extorting
protection money from Iraqi shopkeepers. He stated that military records were
falsified to “white wash” the real situation of violation of human rights against
Iraqi civilians and misconduct by some army soldiers.
[7]
He
tried to inform his superiors of the violations of human rights and discuss the
situation with them but was told to mind his own business. His immediate
supervisor attributed his worries to stress and recommended leave. He was
reminded that if he deserted, he would face the death penalty.
[8]
Scandalized
by what he saw, he decided to try to avoid participating in what he considered
an “illegal war”. He tried, with no avail, to be transferred to a non-combatant
role in Iraq. When he was
granted a two week leave in the U.S., he decided not to
report back to the army and in August 2006, fled to Canada. Here he
publicly denounced the conditions in Iraq and publicized his
opposition to that war.
II. The PRRA officer’s
decision
[9]
Officer
Dello, who decided both applications (PRRA & H&C), determined that most
of the evidence submitted in the PRRA was not “new evidence” and did not take
it into consideration. The evidence submitted as new consisted of four
affidavits and the opinion of the U.S. Attorney Eric Seitz, dated March 2008,
who has represented numerous military personnel or conscientious objectors to
the wars in Vietnam and Iraq.
[10]
The
Officer concluded that U.S. soldiers who objected to and publicly
condemned these wars, would face severe punishment including incarceration and
be denied due process before military tribunals.
[11]
This
type of treatment was confirmed in public documentation and exhibits provided
by the applicant from ex-members of the U.S. Forces, amongst whom were Mr. Funk
and Mr. Kjar.
[12]
In
2008, the applicant learned that in 2006, his membership in the California
National Guard had been terminated and he had been transferred to the U.S.
Ready Reserve, a program from which former soldiers can be recalled to the
military. The result of this action is that he could be assigned to active
duty, made subject to Court Martial proceedings for desertion leading to a term
of imprisonment or re-activated for re-deployment in Iraq. Because of
the on-going war in Iraq, the U.S. Military Forces have had to
re-activate members of the National Guard. The evidence emanating from U.S.
Army sources shows that prosecution for desertions were increasing, with prison
terms imposed, particularly against those members who had publicly denounced the
war in Iraq.
[13]
Among
the documents provided by the applicant, is a New York Times article of April
9, 2007 entitled “Army is cracking down on deserters”, which states that:
Army prosecutions of desertion and other unauthorized
absences have risen sharply in the last four years, resulting in thousands more
negative discharges and prison time for both junior soldiers and combat-tested
veterans of the wars in Iraq and Afghanistan, Army records show.
[…] Using courts-martial for these
violations, which before 2002 were treated mostly as unpunished nuisances, is a
sign that active-duty forces are being stretched to their limits, military
lawyers and mental health experts said.
[14]
The
same article quotes Maj. Anne D. Edgecomb, an army spokeswomen, as saying “[t]he
Army’s leadership will take whatever measures they believe are appropriate if
they see a continued upward trend in desertion, in order to maintain the health
of the force.”
[15]
The
problems set out in that article are supported by a 2008 CNN report, entitled
“Concern mounts over rising troop suicides”.
[16]
The
situation prompted the Canadian Parliament to pass a resolution on June 3,
2008, calling on the Canadian Government to permit U.S. conscientious objectors
to remain in Canada and to cease
deportations of such objectors.
[17]
In
this case, Officer Dello rejected the evidence put forward by the applicant as
“not new” and did not consider its implication on the issues to be decided. In the
March 25, 2008 PRRA decision, it was concluded that the applicant would not
risk persecution if he were returned to the U.S. The Officer decided
there was no objective new evidence since the RPD decision to support the
applicant’s claim and that he faced “no more than a mere possibility of persecution”.
The allegation of a risk of undue hardship was dismissed on the basis that the
presumption of state protection had not been rebutted.
[18]
Finally,
the Officer referred to the RPD decision, which stated that 94% of AWOL soldiers
between 1994 and 2001 were not persecuted by the military or were given “less
than honourable discharges” (the same fact relied upon which the Federal Court
of Appeal in Hinzman v. Canada (Minister of Citizenship and Immigration),
2007 FCA 171, 282 D.L.R. (4th) 413 (Hinzman), saying 2000-2001
statistics showed those deserters were only sentenced to “less honourable
discharges”).
[19]
This
evidence was contradicted by recent documentation and the “new evidence”
adduced in this case by the applicant, showing that in 2007-2008 the “army is
cracking down on deserters”, prosecuting them and convicting them to lengthy
imprisonment. This statement was corroborated in 2008 by the affidavit of an
experienced U.S. Attorney, Mr. Eric Seitz, who represented numerous objectors
to the war and deserters in their U.S. prosecutions.
[20]
I
also find support on this point in Justice Robert L. Barnes’ decision in Key
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 838, [2008] F.C.J. No. 1003 (QL).
I reproduce partly what Justice Barnes wrote:
13 For the sake of argument, I am
prepared to accept the Board’s conclusion that the conduct of the United States
Army in Iraq as described by Mr. Key would
not meet the definition of a war crime or a crime against humanity.
Nevertheless, the Board’s observations that some of that conduct reflected “a
disturbing level of brutality” and that many of these reported indignities
would represent violations of the Geneva Convention prohibition against
humiliating and degrading treatment cannot be seriously challenged.
14 The Board concluded that refugee
protection could only be extended to Mr. Key if he had been or would be
expected to be complicit in the commission of war crimes, crimes against peace
or crimes against humanity. Put another way, the Board indicated that refugee
status can only be conferred where a soldier's past combat experiences or the
expectations for further combat service would constitute excludable conduct
under the Convention Relating To The Status Of Refugees, 189 U.N.T.S.
150, Can. T.S. 1969 No. 6 (entered into force April 22, 1954.) In my view, the
Board erred in its interpretation of Article 171 of the UNHCR Handbook by
concluding that refugee protection for military deserters and evaders is only
available where the conduct objected to amounts to a war crime, a crime against
peace or a crime against humanity.
15 The relevance of the UNHCR Handbook
was considered by the Supreme Court of Canada in Chan v. Canada (M.E.I.),
[1995] 3 S.C.R. 593, 128 D.L.R. (4th) 213 at para. 46 where it was accepted as
a "highly relevant authority": also see Hinzman above at para.
116. Accordingly, I consider that reference and the legal authorities which
have considered and applied it, to be determinative of the first issue raised
on this application. (footnotes removed)
[21]
Also,
Justice Barnes points out, the Board’s narrow interpretation of Article 171 of
the UNHCR Handbook in that case resulted in a failure to follow the Federal
Court of Appeal’s decision in Zolfagharkhani v. Canada (Minister of Employment
and Immigration), [1993] 3 F.C. 540, 155 N.R. 311 (F.C.A.). In Zolfagharkhani,
the Court of Appeal granted the applicant medic refugee status finding that his
conscientious opposition to the use of chemical weapons against Iran’s internal
war against the Kurds, was reasonable:
171. Not every conviction, genuine though it
may be, will constitute a sufficient reason for claiming refugee status after
desertion or draft-evasion. It is not enough for a person to be in disagreement
with his government regarding the political justification for a particular
military action. Where, however, the type of military action, with which an
individual does not wish to be associated, is condemned by the international
community as contrary to basic rules of human conduct, punishment for desertion
or draft-evasion could, in the light of all other requirements of the
definition, in itself be regarded as persecution.
[22]
I
believe the behaviour of the U.S. Army in Iraq, as
described in Key above, is condemned by the international community as
contrary to basic rules of human conduct. Punishment for desertion or draft
evasion could, in light of all other requirements of the deportation, in itself
be regarded as persecution.
[23]
I
agree with Justice Barnes when he wrote in Key at para. 29:
It is clear from the above passages that
officially condoned military misconduct falling well short of a war crime may
support a claim to refugee protection. […]
III. State protection
[24]
The
applicant alleges that, at this time, he would not enjoy state protection in
the U.S. because of
the crackdown on deserters, the growing opposition to the war in the U.S. and
the difficulty of recruiting Army Personnel for the war in Iraq and Afghanistan.
[25]
He
contends that the Officer illegally excluded new evidence which the RPD had not
considered and which would have modified that decision. The respondent counters
that the issue of state protection has been dealt with by the Federal Court of
Appeal, in a similar case, i.e. Hinzman. That case has raised the bar which
a deserter has to meet before claiming there is insufficient state protection
in the U.S.
IV. Analysis
[26]
On
the issue of new evidence, I realize that the Officer found that the evidence
put forward by the applicant had already been assessed by the RPD and therefore
refused to consider it, relying on Raza v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 385, 370 N.R. 344. However, as
evidenced by the opinion of the U.S. Attorney, Eric Seitz, the current or
recent situation in the U.S., i.e. 2007-2008, is different from
that which existed in 2001-2002 because of the difficulties described earlier.
[27]
In
Hinzman, Justice J. Edgar Sexton wrote that the first step in such case
is to examine whether there is an objective fear of persecution or undue hardship
and only after a decision that state protection does not exist at that stage could
one go to the second stage, where the illegality of the war could be raised.
[28]
I
note that in the Hinzman case, Justice Sexton’s reasons appear to turn in
large measure upon the fact that, according to statistics of 2000-2001, the
usual sentence for deserters was a less than honourable discharge, totalling
approximately 94 % of cases,.
[29]
However,
with the new evidence in this case, it is established that the situation has
drastically changed in 2007-2008, and a crackdown on deserters is established
whereby prosecution and conviction by military tribunals results in prison
sentences of up to five years.
[30]
This
is the same situation that Justice Barnes considered in the Key
decision. I therefore believe that, in light of this new situation, the issue
of effective state protection for U.S. Army deserters must be re-examined.
[31]
Justice
Sexton in the Hinzman case goes on to point out that the U.S. is a
democratic state with a system of checks and balances within its three branches
of government. He held, therefore, that the appellants bore a heavy burden in
attempting to rebut the presumption of state protection.
[32]
The
U.S. has procedures to punish deserters and the evidence before the Board,
dating from 2001-2002, was that the vast majority of army deserters in the U.S. had not been
persecuted or court-martialled. Rather, approximately 94% of deserters had been
dealt with administratively and merely received a less than honourable
discharge from the military.
[33]
However,
the situation has since changed. The evidence before the Board, here particularly
the new evidence, reveals that, while the majority of deserters had previously
been treated in a lenient manner, since 2007-2008 those who have spoken publicly
against the war have suffered a different and harsher treatment which
distinguishes the facts of the instant case from those of Hinzman.
[34]
On
this basis, it can reasonably be argued that state protection does not exist in
the U.S. to shelter
these persons from such treatment and would not prevent the applicant from
suffering degrading treatment during a prison term which could be as much as
five years.
[35]
This
would bring the applicant to the second stage of Justice Sexton’s test where
the legality of the war could be assessed among other factors.
[36]
There
has been no official declaration of war by the U.S. against Iraq and it is a notorious
fact that the U.S. Congress has not officially authorized such war. The
applicant reported human rights abuses committed by American Forces against Iraq’s civilian population
which revolted him and prevented him from returning there.
[37]
As
Justice Barnes pointed out in Key in para. 19:
It is apparent to me that the Board in Hinzman
did not have before it the kind of evidence that was presented by Mr. Key and,
therefore, neither the Board nor Justice Mactavish were required in that case
to determine the precise limits of protection afforded by Article 171 of the
UNHCR Handbook. I do not consider Justice Mactavish's remarks to be
determinative of the issue presented by this case -- that is, whether refugee
protection is available for persons like Mr. Key who would be expected to
participate in widespread and arguably officially sanctioned breaches of
humanitarian law which do not constitute war crimes or crimes against humanity.
[38]
I
acknowledge that the recent jurisprudence is divided on the issues raised in
this case, i.e. deserters from U.S. Army whose objections to the war are
based upon their conscience or the way the war is conducted.
[39]
Justice
Michel Beaudry, in Colby v. Canada (Minister of
Citizenship and Immigration), 2008 FC 805, [2008] F.C.J. No. 1015 (QL)
(Colby), relied upon the Court of Appeal decision in Hinzman,
because the factual situation was similar. In Colby, the applicant
joined the U.S. Army as a medic but was later informed that the invasion and
occupation of Iraq was based
upon the claim of weapons of destruction which were never found.
[40]
Justice
Beaudry dismissed the application principally because, as reiterated in Hinzman,
the applicant had not passed the first stage of assessing the existence of
objective fear, by exhausting the potential for state protection in the U.S.
[41]
In
a recent case, Robin Long v. Canada (MCI & MPSEP), IMM-3042-08 (July
14, 2008), Justice Mactavish refused a stay because there had been no clear and
convincing evidence that Mr. Long would suffer irreparable harm if deported.
[42]
I
conclude that the Officer, in the present case, did not give the applicant the
opportunity to present a meaningful case on the issue of state protection and
to establish the undue hardship he feared if returned to the U.S.
V. The test for granting
a stay of removal order
[43]
The
test for granting a stay is whether:
a) A
serious issue exists to be tried;
b) Irreparable
harm will be caused if the stay is not granted; and
c) The
balance of convenience favours the applicant.
See Toth v. Canada (Minister of
Employment and Immigration) (1988), 86 N.R. 302, 6 Imm. L.R. (2d) 123
(F.C.A.). All of these conditions must be met in order to grant a stay.
a. Serious issue
[44]
The
first branch of the test is whether on a preliminary and tentative assessment
of the merits of the case, a prima facie case can be made out.
[45]
The
applicant alleges that the Officer erred in law in failing to accept and assess
the new evidence presented. The Officer excluded the evidence because it was
found that it was not new and that some of it was presented at the RPD hearing
or was then available to the applicant.
[46]
The
respondent counters this submission that some of this evidence was known before
the hearing and that Mr. Kjar’s affidavit of November 2007 could have been
obtained earlier. The respondent also says that the affidavit of U.S. Attorney
Mr. Seitz, although sworn in March 2008, attests to information that predates
the board’s decision.
[47]
It
is true that some of this evidence was available before the board’s hearing but
some was not, such as Mr. Sutz and Mr. Kjar’s affidavits, the opinion of U.S.
Attorney Mr. Seitz and the documentation regarding persecution of AWOL members
of the U.S. Army in 2007-2008.
[48]
What
constitutes “new evidence” for the purpose of the PRRA application is governed
by section 113(a) of the IRPA. It is a question of law reviewable on a standard
of correctness, see Raza. In this case, as discussed above, the PRRA Officer
Dello failed to consider new evidence in support of the applicant’s PRRA
application when assessing the risk of persecution under section 96 of the IRPA
and when assessing the applicant’s risk of cruel and unusual treatment under
section 97 of the IRPA.
[49]
The
PRRA Officer erred in failing to provide adequate reasons for excluding the new
evidence. The respondent submits this was sufficiently explained. A simple
analysis of the law leads to the conclusion that such reasons were essential to
explain excluding such evidence but were not given.
[50]
The
PRRA Officer misconstrued the risks identified by the applicant and failed to
analyse the new risks not raised before the RPD.
[51]
The
respondent alleges that the Officer did not fail to assess the new risk. The
respondent relies upon the U.S. Army publicity claiming the applicant is not
considered a deserter. An analysis of the new evidence and the reasons of the Officer,
it is evident that the risk was considered to be low as found by the RPD when
in fact the new evidence contradicted findings made by the RPD as to the recent
situation in the U.S. and its treatment of deserters.
VI. State protection
[52]
The
applicant submits that the Officer’s reference to state protection indicates the
application of a more stringent test. The respondent argues that the Court of
Appeal’s decision in Hinzman shows that soldier facing punishment in the
U.S. for deserting must, as a rule, pursue state protection at home before
seeking protection in Canada.
[53]
However,
as Justice Barnes points out at paragraph 32 of the Key decision, the
circumstances of each case varies:
[…] The circumstances of this case are
very different from those which were considered in Hinzman and Hinzman (C.A.),
above, most notably because, unlike Mr. Hinzman, Mr. Key was not required to
address the state protection issue.
He also added:
34. Unlike many cases where state protection
is invoked as the basis for denying refugee status, here the 'die may have been
cast' by Mr. Key's decision to enter Canada
before exhausting his protection options at home. […] If there is clear and
convincing evidence presented that Mr. Key faced a serious risk of prosecution
and incarceration notwithstanding the possible availability of less onerous,
non-persecutory treatment, he is entitled to make that case and to have that
risk fully assessed.
[54]
I
endorse these remarks and believe they apply to the facts of the present case.
i.
Agent of the State
[55]
A
problem arises to rebut the presumption of state protection when the agents of
the State themselves are the cause of the persecution.
[56]
Justice
Tremblay-Lamer wrote the following statement on this point in Chaves v. Canada (MCI), 2005
FC 193, 45 Imm. L.R. (3d) 58 at para. 15:
[…] where agents of the state are
themselves the source of the persecution in question, and where the applicant's
credibility is not undermined, the applicant can successfully rebut the
presumption of state protection without exhausting every conceivable recourse
in the country.
[57]
The
statement was quoted with approval by Justice Kelen in Farias v. Canada (MCI),
2008 FC 578, [2008] F.C.J. No. 735 (QL) at para. 30.
[58]
This
issue should have been addressed in this case.
b. Irreparable
harm
[59]
The
applicant submits that if returned to the U.S., he will be
court-martialled for desertion and will be incarcerated in a military prison
where, like Stephen Funk, Camilo Mejia and Kevin Benderman, he will suffer persecution,
cruel and inhuman treatment. Desertion being considered a felony in some states,
it carries the loss of crucial rights, including the right to vote and to hold
public office.
[60]
The
respondent argues that the applicant has not discharged the onus of
demonstrating irreparable harm through clear and convincing evidence.
[61]
Irreparable
harm must constitute more than a mere possibility and cannot be based upon
assertions and speculations (Atwal v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 427, 330 N.R. 300).
[62]
I
believe the evidence here shows that, if returned to the U.S., the
applicant will suffer the irreparable harm he has described.
[63]
Furthermore,
these applications for judicial review could become moot if he is removed
before they are heard (Perez v. Canada (Minister of
Citizenship and Immigration), 2008 FC 663, [2008] F.C.J. No. 836 (QL).
c. The
balance of convenience
[64]
The
applicant pleads that the balance of convenience leans in his favour. He also
relies upon the fact that a recent resolution passed by the Parliament in Canada is
favourable to U.S. Army deserters who are conscientious objectors to the war in
Iraq.
[65]
He
argues that he is well established in Canada, is employed and is not
a burden upon Canadian society. The respondent submits that section 48 if the IRPA:
|
Enforceable
removal order
48.
(1) A removal order is enforceable if it has come into force and is not
stayed.
(2)
If a removal order is enforceable, the foreign national against whom it was
made must leave Canada immediately and it must be
enforced as soon as is reasonably practicable.
|
Mesure
de renvoi
48.
(1) La mesure de renvoi est exécutoire depuis sa prise d’effet dès lors
qu’elle ne fait pas l’objet d’un sursis.
(2)
L’étranger visé par la mesure de renvoi exécutoire doit immédiatement quitter
le territoire du Canada, la mesure devant être appliquée dès que les
circonstances le permettent.
|
stipulates that enforceable removal orders must
be executed as soon as reasonably practical. She also argues that public
interest requires that the application of the IRPA and removal orders
should be obeyed (Dugonitsch v. Canada (Minister of Employment
and Immigration) (1992), 53 F.T.R. 314, 6
Admin. L.R. (2d) 47).
[66]
In
the circumstances of this case, on the basis of the strong possibility of
irreparable harm on removal, the balance of convenience favors the applicant.
[67]
The
application has therefore satisfied all the conditions of a stay.
THEREFORE, THIS COURT grants the application
for a stay of execution of the removal order until:
i.
the
disposition of the latest leave application; and
ii.
if
leave is granted, until such time as the sections 18 and 18.1 application is
disposed of by this Court.
"Orville
Frenette"
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