Date: 20171108

Docket: IMM-1753-17

Citation: 2017 FC 1015

[ENGLISH TRANSLATION]

Montréal, Quebec, November 8, 2017

PRESENT: The Honourable Mr. Justice Shore

BETWEEN:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Applicant

and

IURII VERBANOV

Respondent

JUDGMENT AND REASONS

I.                    Introduction

[1]               “How is it possible not to know, not to hear, not to see and, yet, to be an integral member, voluntarily!” (Ali v Canada (Minister of Citizenship and Immigration), 2005 FC 1306 at para 1 [Ali]; see also Ezokola v Canada (Citizenship and Immigration), 2013 SCC 40) [Ezokola]).

[2]               “A plaintiff’s actions can be more revealing than his testimony and the circumstances may be such that it can be inferred that a person shares the objectives of those with whom he is collaborating” (Harb v Canada (Minister of Citizenship and Immigration), 2003 FCA 39 at para 27 [Harb]; see also Ezokola, above).

[3]               “[W]here one hears of persons arrested and tortured, it appears to me, to be totally unbelievable that one would not have knowledge of what is taking place.” (Shakarabi v Canada (Minister of Citizenship and Immigration), 1998 CanLII 7685 (FC), [1998] FCJ No 444 (QL) at para 25 [Shakarabi]; see also Ezokola, above). “According to the Prosecutor General’s office, most abuses occurred at the time of apprehension; during transport to a detention facility” (Applicant’s record, at p. 98).

II.                 Nature of the case

[4]               This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA], of a decision by the Immigration Appeal Division [IAD] of the Immigration and Refugee Board, dated April 3, 2017. In that decision, the member dismissed the appeal of the Minister of Public Safety and Emergency Preparedness [MPSEP] of the decision by the Immigration Division [ID] dated April 16, 2015, in accordance with subsection 63(5) of the IRPA. The ID found that the respondent was not inadmissible pursuant to paragraphs 35(1)(a) and 36(1)(c) of the IRPA.

III.               Facts

[5]               The respondent, 31 years old, is a citizen of Moldova. On July 12, 2011, he became a permanent resident of Canada after being selected under the economic class category, through his wife, who is a skilled worker.

[6]               In his application for permanent residence, the respondent stated that he was employed as a police officer in Moldova. He had achieved the rank of junior sergeant. He was assigned to help eradicate pick-pocketing in public transit and around the central market of the capital of Moldova, in Chisinau.

[7]               From 2007 to 2011, the respondent worked in the department for combatting crime in public places and urban transport, at the Chisinau General Police Directorate. He worked as a civilian, without weapons or handcuffs, and in groups of three or four police officers. He went to the General Directorate about three times a week, to attend a service meeting, or to write an incident report after an arrest.

[8]               During the demonstrations that took place after the elections of April 5, 2009, the respondent had to accompany a colleague who was filming the demonstrations. The demonstration on April 7, 2009, was peaceful, according to the respondent. In the afternoon, the respondent had to leave the site of the demonstrations, because he received a call from his wife, who had to be transported to the hospital. In the days that followed, the respondent allegedly stayed by his wife’s side, following a surgery. He then returned to work in the public places where he had worked before.

[9]               On April 27, 2013, a wanted notice was issued by Interpol for the respondent for an event dating back to February 4, 2010. The respondent, and other Moldovan police officers, had been accused of being involved in violent acts and abuse.

[10]           As soon as the respondent was aware of the charges against him, he returned to Moldova to defend himself before the courts. On March 17, 2014, the Biuicani Court of the municipality of Chisinau rendered a judgment dismissing the criminal prosecution against the respondent on the ground that the act alleged in the complaint did not meet the elements of the offence.

[11]           On December 20, 2013, two inadmissibility reports were issued by the Canada Border Services Agency regarding allegations of inadmissibility within the meaning of paragraphs 36(1)(c) and 35(1)(a) of the IRPA. The same day, the Minister’s delegate referred these reports to the ID for an admissibility hearing.

[12]           In a decision dated April 16, 2015, the ID found that the respondent was not inadmissible within the meaning of paragraphs 36(1)(c) and 35(1)(a) of the IRPA. During the hearing, the respondent gave clear, specific, credible, and trustworthy testimony. The ID noted a contradiction between Interpol’s wanted notice and the competent Moldovan court’s judgment dismissing the criminal complaint against the respondent. The ID therefore gave little probative value to the MPSEP’s evidence. Indeed, the ID could not, based on generalizations or suspicions, accuse all Moldovan police, including the respondent, of certain acts involving some Moldovan police officers. According to the ID, the MPSEP failed to demonstrate that the respondent or the police officers that belonged to his department had [TRANSLATION] “committed violent acts and/or acts of torture against the accused that could constitute crimes against humanity”. The MPSEP therefore appealed the ID’s decision to the IAD, pursuant to subsection 63(5) of the IRPA, based on the allegation contemplated by paragraph 35(1)(a) of the IRPA.

IV.              Decision

[13]           On April 3, 2017, the IAD dismissed the MPSEP’s appeal of the ID’s decision dated April 16, 2015.

[14]           The IAD considered that the respondent’s testimony was plausible and credible. With respect to the demonstrations of April 6 to 8, 2009, in Moldova, the IAD found, on a balance of probabilities, that the respondent was taking care of his wife at the hospital for much of that time, and that it was plausible that police officers with the respondent’s expertise were assigned somewhere other than in the affected zones. On the other hand, with respect to the charges that were brought against the respondent in Moldova, the IAD determined that Interpol’s wanted notice and the evidence clearly indicated that these charges had been withdrawn by the courts of justice in Moldova. The IAD also found it important to mention that the respondent voluntarily returned to his country to defend himself as soon as he became aware of the charges against him. According to the IAD, the respondent’s behaviour was not consistent with the behaviour of someone who would avoid returning to their country to attempt to hide a crime. The IAD therefore took this factor into consideration before it rendered its decision.

[15]           Also, according to the evidence, the IAD found that the crimes committed by some Moldovan police officers could be considered isolated or systematic acts and could be considered crimes against humanity. However, the IAD considered that the applicant had failed to demonstrate that the respondent was among the same police officers who committed these crimes. On a balance of probabilities, the IAD found that this would have the effect of making any police officer inadmissible coming from a country, like Moldova, where there is corruption, abuse, and reprisals in relation to the civilian population. The IAD validated the ID’s decision. Considering all the evidence, [TRANSLATION] “neither [the respondent], nor his unit, on a balance of probabilities, committed violent acts or acts of torture against individuals that could constitute crimes against humanity. The appeal is dismissed.” It is this decision that is the subject of this application for judicial review.

V.                 Issue

[16]           The only issue is the following: Did the IAD err in fact and in law in finding that the respondent was not inadmissible pursuant to paragraph 35(1)(a) of the IRPA?

[17]           A decision finding that a person is inadmissible involves a question of mixed fact and law subject to the standard of reasonableness (Williams v Canada (Public Safety and Emergency Preparedness), 2015 FC 917 at para 14; Qureshi v Canada (Citizenship and Immigration), 2012 FC 335 at para 12). Accordingly, the Court should not intervene if the IAD’s decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47 [Dunsmuir]).

VI.              Relevant provisions

[18]           The following provisions of the IRPA are relevant in this case:

[19]           Subsections 6(1) and 6(3) of the Crimes Against Humanity and War Crimes Act, SC 2000, c. 24, merit being read with paragraph 35(1)(a) of the IRPA:

[20]           Crimes against humanity are also defined in Article 7 of the Statute of Rome of the International Criminal Court:

VII.            The parties’ submissions

A.                 Applicant’s arguments

[21]           According to the applicant, the IAD erred in fact and in law in finding that the respondent was not inadmissible pursuant to paragraph 35(1)(a) of the IRPA. In fact, the IAD clearly erred in law, several times, in applying the “balance of probabilities” standard to the facts. The IAD also required that the allegations be proved according to that same standard of proof, whereas to apply section 35 of the IRPA, the standard of proof is provided under section 33 of the IRPA, namely “reasonable grounds to believe”.

[22]           The applicant then argues that the IAD failed to apply the principles and tests for the notion of complicity set out by the Supreme Court of Canada in Ezokola, above. The IAD failed to determine whether the respondent’s participation was voluntary, knowing, and significant (Ezokola, above, at para 84). The applicant does not understand how the respondent could claim to be unaware that acts of torture were committed by Moldovan police officers during the interrogations at the Chisinau Commissariat. In Hadhiri v Canada (Citizenship and Immigration), 2016 FC 1284 at para 36 [Hadhiri], Justice René LeBlanc notes, referring to Ezokola, above, at para 68, that it “is permissible to find individuals guilty of complicity under international law if they have knowingly or recklessly made a significant contribution to a crime or criminal purpose of the group to which they are associated”. The IAD should therefore have considered the possibility that a person could commit a crime against humanity, notwithstanding the fact that the person did not personally commit an act that constituted such a crime (Ezokola, above, at para 77).

[23]           The applicant submits that the IAD ignored considerable documentary evidence regarding the violent acts perpetrated by the Moldovan police, in particular at the Chisinau Directorate. The evidence indicates that during the years the respondent was employed as a police officer, the Moldovan police committed acts of torture and abuse of the accused. The evidence also indicates that these acts are widespread and systematic, in particular in the Chisinau police directorates, at the custody stage and during interrogations. On this point, the applicant cites subsection 6(3) of the Crimes Against Humanity and War Crimes Act to indicate that “torture” or “inhuman treatment” are included in the definition that is given for “crimes against humanity”. Still relying on the evidence in the record, it is also alleged that the IAD misapprehended the evidence regarding the number of police officers present at the demonstrations of April 6 to 8, 2009.

B.                 Respondent’s submissions

[24]           Contrary to what is alleged by the applicant, the respondent essentially argues that the crimes committed by some police officers in Moldova are not crimes against humanity within the meaning of customary international law (Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para 151 [Mugesera]). The IAD found only that a certain isolated act some committed by Moldovan police officers “could” be considered a crime against humanity. The respondent also emphasizes that, according to the documentary evidence, Moldova is considered to be a democratic country that prohibits torture and cruel treatment. Finally, the respondent alleges that, according to the evidence in the record, the Moldovan police are not an organization that is principally directed to a limited and brutal purpose. It was therefore reasonable for the IAD not to declare that the respondent was complicit in crimes against humanity for mere membership in the police. The IAD recognized on this point that it was important to make [TRANSLATION] “a distinction between mere association and culpable complicity”.

[25]           The respondent also submits that “[o]nly the attack needs to be widespread or systematic, not the act of the accused” (Mugesera, above, at para 156). In accordance with Article 7(1) of the Statute of Rome, the respondent states that there must be knowledge of a widespread or systematic attack to meet the definition of crime against humanity. In this case, the respondent denies that he was aware of the acts of torture and inhuman treatment perpetrated by some police officers. Finally, the documentary evidence does not demonstrate that some Moldovan police officers committed crimes in a widespread and systematic attack; according to the respondent, these crimes were instead committed for purely personal reasons. Accordingly, the respondent considers that the notion of complicity in Ezokola, above, did not have to be analyzed in this case. Nevertheless, the respondent submits that the IAD considered the principle and tests established by the Supreme Court of Canada in Ezokola.

[26]           Finally, the respondent argues that it did not matter that the IAD applied the wrong standard of proof. Neither the MPSEP nor the applicant submitted evidence demonstrating that the crimes committed by some Moldovan police officers constitute crimes against humanity. For that reason alone, the respondent considers that this application must be dismissed. The IAD’s decision was reasonable, considering all the evidence.

C.                 Reply

[27]           In its reply, the applicant notes that the IAD has de novo jurisdiction. It can therefore substitute its own decision for the decision that should have been made (Mendoza v Canada (Public Safety and Emergency Preparedness), 2007 FC 934 at para 18; Iyamuremye v Canada (Citizenship and Immigration), 2014 FC 494 at para 34).

[28]           The applicant again raises the issue of standard of proof, specifying that the IAD failed to determine whether the respondent was in fact inadmissible pursuant to section 33 of the IRPA (Castello Viera v Canada (Citizenship and Immigration), 2012 FC 1086 at para 26). The IAD allegedly erred in law by requiring the applicant to establish, among other things, that the majority or most of the police officers were present at the demonstrations of April 6 to 8, 2009.

[29]           Finally, the applicant alleges that the IAD did not analyze Mugesera in making its decision and the respondent did not have to do so either. Based on the documentary evidence, the applicant submits that the acts committed by the Moldovan police meet the definition of crimes against humanity that we find in Mugesera.

VIII.         Analysis

[30]           “How is it possible not to know, not to hear, not to see and, yet, to be an integral member, voluntarily!” (Ali, above, at para 1; see also Ezokola, above).

[31]           “A plaintiff’s actions can be more revealing than his testimony and the circumstances may be such that it can be inferred that a person shares the objectives of those with whom he is collaborating” (Harb, above, at para 27; see also Ezokola, above).

[32]           “[W]here one hears of persons arrested and tortured, it appears to me, to be totally unbelievable that one would not have knowledge of what is taking place” (Shakarabi, above, at para 25; see also Ezokola, above). “According to the Prosecutor General’s office, most abuses occurred at the time of apprehension; during transport to a detention facility” (Applicant’s record, at p. 98).

[33]           For the following reasons, this application for judicial review is allowed.

[34]           First, the Court notes that it should not interfere in this matter to draw a different conclusion than the one drawn by the IAD (Hadhiri, above, at para 46).

[35]           Next, it is appropriate to list the factors used to assess whether an individual has voluntarily made a significant and knowing contribution to a crime or criminal purpose: (Ezokola, above, at para 91):

(i) the size and nature of the organization;

(ii) the part of the organization with which the refugee claimant was most directly concerned; 

(iii) the refugee claimant’s duties and activities within the organization;

(iv) the refugee claimant’s position or rank in the organization;

(v) the length of time the refugee claimant was in the organization, particularly after acquiring knowledge of the group’s crime or criminal purpose; and

(vi) the method by which the refugee claimant was recruited and the refugee claimant’s opportunity to leave the organization.

[Emphasis added.]

[36]           Considering the documentary evidence in the record, the respondent was aware of the nature and extent of the Moldovan police’s criminal activities. The facts are such that the respondent could not have been in his department without being at all aware of the acts of torture perpetrated by his own colleagues. The facts in the record also demonstrate that the respondent voluntarily became a police officer in 2007. He stayed in the organization until 2011, without disassociating himself from the group. Even if the IAD found that the respondent’s testimony was credible, the fact remains that, according to the material facts in the record, there were reasonable grounds to believe that the respondent was complicit in these crimes. In rendering its decision, the IAD therefore failed to consider the possibility that the respondent was aware of the crimes perpetrated by the Moldavan police. The IAD failed to examine the respondent’s actions to determine his complicity, and instead decided to prefer the respondent’s testimony in this case.

[37]           For these reasons, the Court finds that the IAD’s decision is unreasonable and does not fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir, above, at para 47).

IX.              Conclusion

[38]           This application for judicial review is allowed.

JUDGMENT in IMM-1753-17

THE COURT ORDERS AND ADJUDGES that the application for judicial review be allowed and that the matter be referred to a differently constituted panel of the Immigration Appeal Division of the Immigration and Refugee Board for redetermination. There is no question of general importance for certification.

“Michel M.J. Shore”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:		IMM-1753-17
STYLE OF CAUSE:		THE MINISTER OF CITIZENSHIP AND IMMIGRATION v IURII VERBANOV
PLACE OF HEARING:	Montréal, Quebec
DATE OF HEARING:	October 31, 2017
JUDGMENT AND REASONS:	SHORE J.
DATED:	November 8, 2017

APPEARANCES:

Lisa Maziade	For the Applicant
Igor Dogaru	For the Respondent

SOLICITORS OF RECORD:

Attorney General of Canada Montréal, Quebec	For the Applicant
Idlex Legal Services Inc. Montréal, Quebec	For the Respondent