Docket: IMM-3246-15
Citation:
2016 FC 901
Ottawa, Ontario, August 5, 2016
PRESENT: The
Honourable Madam Justice Elliott
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BETWEEN:
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JADRANKA BLAZIC
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
decision by a Visa Officer in Vienna, Austria by letter dated April 16, 2015
[Decision] which denied the Applicant’s application for permanent residence
under the Provincial Nominee in Canada class pursuant to subsection 42(1)(a) of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]
on the grounds that the Applicant’s then spouse was inadmissible under
subsection 35(1)(a) of IRPA.
I.
background facts
[2]
On May 7, 2015, the Applicant sought reconsideration
of the Decision. It was refused on May 12, 2015. By letter dated June 5, 2015
Applicant’s counsel sought another reconsideration on the basis that her marriage
had been annulled. On June 30, 2015 reconsideration was once again refused on
the basis that the written explanation provided in the Decision (April 16,
2015) fully concluded the application.
[3]
The persistence of the Applicant in seeking
reconsideration is at least partially explained by the fact that approximately
one year earlier, on April 4, 2014, her application had been refused on the
same ground – her spouse was “a member of an
inadmissible class of persons described in section 35(1)(a) of IRPA”
and therefore her application was refused under subsection 42(1)(a) of IRPA.
At that time, the Respondent voluntarily offered to have the application
reconsidered in exchange for the Applicant discontinuing the Application for
Leave and Judicial Review that she had commenced.
[4]
The Applicant discontinued her application for
leave, then her application for permanent residence was reconsidered and the
result was the same – she was inadmissible because of the war time activities
of her spouse in Yugoslavia.
[5]
The Applicant is a citizen of Serbia who arrived
in Canada in May, 2008 with her 2 children aged 16 and 17 at that time. The
Applicant was approved as a Provincial Nominee on June 6, 2012. She filed her
application for permanent residence on September 12, 2012. In the application
she included her husband, Sinisa Jelisic, whom she had married on May 21, 2011
in Serbia. The Applicant left Serbia for Canada on May 30, 2011 never to reside
with her husband again. The marriage was annulled under Serbian law on or about
May 29, 2105.
[6]
The Applicant’s permanent residence application
was refused under section 42 of IRPA because her husband was found to be
inadmissible under subsection 35(1)(a) of IRPA as result of having been
a member of the Yugoslav People’s Army and then the Bosnian Serb Army during
the period 1991 to 1995. He was a guard in the 43rd Motorized Brigade
between May and August 1992 during the time when “ethnic
cleansing” was occurring in the area to which he was posted being
Prijedor. The Applicant’s husband worked as a guard at one of the barracks and
there were reports that barracks served as prison and detention centres.
[7]
A procedural fairness letter was sent to the
Applicant on December 23, 2014. It expressed concerns over her husband’s army service.
Reference was made to several open source documents that had been consulted in
forming those initial concerns. The letter also referred to a response made by
her husband in January, 2013 in connection with the first application in which
he said he only worked as a guard to watch over objects in empty barracks. He
also said he “did not know what happened in Prijedor
between May and August 1992 and his unit didn’t participate in any kind of
actions.” The letter noted this information contradicted several of the
reports listed in the letter. The letter concluded there were reasonable
grounds to believe the Applicant’s husband was aware of the events in Prijedor
and in his role as a guard in the barracks “was aiding
and abetting crimes against humanity and war crimes perpetrated in the district
and town of Prijedor during his posting”. A response within 60 days was
requested.
[8]
On February 18, 2015 counsel for the Applicant
responded. He stated the accusations were speculative as the husband had
reported his duties during his military service and they were innocuous. The
thrust of the response was that while others may have committed war crimes,
many of whom were “identified, named, published in
official reports” and punished, the Applicant’s husband was neither a
war criminal nor was he among those identified nor did he deserve to be among
them.
II.
Issue
[9]
This case turns on whether the correct test of
inadmissibility was applied by the Visa Officer.
[10]
In Mugesera v. Canada (Minister of
Citizenship and Immigration), 2005 SCC 40 the Supreme Court reviewed the
distinction between proof of questions of fact and determination of questions
of law. There, as here, whether the facts meet the requirements of a crime
against humanity is a question of law and the facts, as determined, must show
that the husband’s actions constituted a crime against humanity in law. (see
para 116)
[11]
For the reasons that follow, I find the facts
were applied using the wrong legal test. As a result, the application will be allowed.
III.
POSITIONS OF THE PARTIES
[12]
The Applicant asserts that the Officer used
speculation based on “reports” but there was no
evidence the husband directed, influenced or controlled commission of any war
crimes. The husband was being found guilty using as evidence random generalized
information to draw conclusions about his specific activities. The Applicant
relies on the Supreme Court of Canada decision in Ezokola v Canada
(Citizenship and Immigration) 2013 SCC 40 [Ezokola] to the
effect that “Canada does not deprive people of their
rights based on guilt by association”.
[13]
The Respondent submits the Officer had good
reason to determine that the Applicant’s spouse was inadmissible under IRPA.
The documentary evidence consulted by the Officer supports that finding.
Contrary to the Applicant’s submission that her husband was being found
inadmissible because of “guilt by association”
the Respondent says the finding was that her spouse actively and directly
participated in or, was complicit, because he aided and abetted the Commission
of war crimes and crimes against humanity as a guard in the barracks in
Prijedor.
[14]
The Respondent also relies upon Ezokola and
on Varela v Canada (Minister of Citizenship and Immigration), 2008 FC
436 to say that complicity by association or passive acquiescence is to be
avoided but, if one carries out acts “specifically
directed to assist, encourage or lend moral support to the perpetration of a
certain specific crime” and the support has a substantial effect upon
the perpetration of the crime, that is aiding and abetting.
IV.
Analysis
[15]
The Court of Appeal in Kanagendren v Canada
(Citizenship and Immigration), 2015 FCA 86 [Kanagendren], at
paragraph 21, confirms that paragraph 35(1)(a) of IRPA attaches criminal
liability to both perpetrators and their accomplices. The application of paragraph 35(1)(a)
involves consideration of whether the participant was complicit in the commission
of an offence referred to in sections 4 to 7 of the Crimes Against Humanity
and War Crimes Act, SC 2000, c 24. The Court of Appeal notes this is a
different test than the one under subsection 34(1) where inadmissibility can
arise from being a member of an organization that engages in terrorism. Kanagendren
was determined before Ezokola but the analysis with respect to paragraph
35(1)(a) was not altered by Ezokola. What did change is the test for
complicity.
[16]
The question to be answered in this review is
the one that was posed and answered by the Supreme Court of Canada in Ezokola:
when does mere association become culpable complicity?
[17]
The first decision in this matter was made pre-Ezokola.
The CBSA notes informing that decision were also written pre-Ezokola. They
are the only CBSA notes in the CTR. Those notes indicate the CBSA reviewing
officer referred to the Federal Court of Appeal decision in Ramirez v Canada
(Minister of Employment and Immigration), [1992] 2.F.C. 306 (C.A.) [Ramirez]
when determining whether the husband “aided and
abetted” in the commission of war crimes or crimes against humanity. The
CBSA also relied on the judgment summary in the case Prosecutor v Charles
Ghankay Taylor, a decision in the Special Court of Sierra Leone, specifically
quoting that the “essential mental element
required for aiding and abetting is that the accused knew that his acts would
assist the commission of the crime by the perpetrator or that he was aware of
the substantial likelihood that his acts would assist the commission of a crime
by the perpetrator.” (my emphasis)
[18]
The nature or degree of assistance, which is
also referred to as the contribution, is not a factor in those earlier cases. Pre-Ezokola that was an acceptable approach. Once Ezokola
was decided and released in July 2013 that approach was replaced with a new
test. As I cannot improve upon the wording of the new test and the reasons for
it as given by the Supreme Court, I make reference to some of the reasons
provided in Ezokola that are most apropos this application:
[9] This contribution-based approach to
complicity replaces the personal and knowing participation test developed by
the Federal Court of Appeal in Ramirez v. Canada (Minister of Employment and
Immigration), [1992] 2 F.C. 306. In our view, the personal and knowing
participation test has, in some cases, been overextended to capture individuals
on the basis of complicity by association. A change to the test is therefore
necessary to bring Canadian law in line with international criminal law,
the humanitarian purposes of the Refugee Convention, and fundamental criminal
law principles.
. . .
[68] . . . At a minimum, complicity under
international criminal law requires an individual to knowingly (or, at the very
least, recklessly) contribute in a significant way to the crime or
criminal purpose of a group.
. . .
[82] . . . unless an individual has control
or responsibility over the individuals committing international crimes, he
or she cannot be complicit by simply remaining in his or her position without
protest.
. . .
[88] Given that contributions of almost
every nature to a group could be characterized as furthering its criminal
purpose, the degree of the contribution must be carefully assessed. The
requirement of a significant contribution is critical to prevent an
unreasonable extension of the notion of criminal participation in
international criminal law. (all emphasis is mine)
[19]
When the Decision under review was made Ezokola
had been law for almost two years. It is not referred to in the Decision and it
appears not to have been considered. The language in the Decision follows Ramirez.
It speaks of the husband being “aware of all the
war crimes and crimes against humanity being committed by members of his own
military unit” and that there are “reasonable
grounds to believe that your spouse has either committed or been aiding and
abetting the commission of war crimes”.
[20]
The reports relied upon in the Decision provide
graphic details of the war crimes committed by the 43rd Motorized Brigade to
which the husband belonged. There is no denying the magnitude of the crimes
against humanity that were committed in the war in Bosnia. There is no denying
the husband was present in Prijedor during the time those atrocities were
committed. However, in Ezokola the Supreme Court at paragraph 74 warns
that we must guard against “a complicity analysis that
would exclude individuals from refugee protection on the basis of mere
membership or failure to dissociate from a multifaceted organization which is
committing war crimes.”
[21]
By not following and applying the law in Ezokola
the Visa Officer made an error in law. The resulting Decision must be set
aside.
[22]
There is no serious issue of general importance
for certification.
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