Date: 20050524
Docket: IMM-10257-03
Citation: 2005 FC 732
BETWEEN:
NELSON PINEDA COLLINS
BLANCA ISABEL SANDOVAL GONZALEZ
KENYA LIZETH PINEDA SANDOVAL
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
de MONTIGNY J.
[1] This is an application for judicial review, under s. 72(1) of the Immigration and Refugee Protection Act ("IRPA"), S.C. 2001, c. 27, of the decision by the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated December 17th, 2003, that the Applicants are not Convention refugees, nor persons in need of protection. The Board found that the applicants were not credible, and had no subjective fear of persecution. In addition, the Board found that the principal applicant was excluded by virtue of section 98 of the IRPA, with reference to Article I section F(a) of the Refugee Convention.
[2] The Applicants have not sought to challenge the Board's finding that they were not credible and that they had no subjective fear of persecution. Accordingly, I issued an order on May 3rd, 2005, dismissing their application for judicial review.
[3] The Applicants, however, have vigorously objected to the finding of exclusion made by the Board, and have asked this Court to rule on that aspect of the decision, because of the legal and practical implications of that finding for the Applicants beyond the immediate refusal to grant Convention refugee protection. They have argued, inter alia, that a finding of exclusion would have implications for a future application to immigrate (IRPA, s. 35) and a future application for protection (IRPA, s. 98), and could also have implications for their attempts to enter another country which is signatory of the UN Refugee Convention.
[4] In my previous order, I indicated that I would subsequently give reasons with respect to that finding of the Board. This is the purpose of the following reasons, which will focus exclusively on the exclusion aspect of the Board's decision.
[5] It must be mentioned, at the outset, that counsel for the Respondent conceded at the hearing that the Board erred in law in finding that there were serious grounds for considering that the main Applicant was complicit in crimes against humanity.
BACKGROUND
[6] The facts relevant to the exclusion finding are not in dispute, and the following summary is taken from the reasons of the Board. The principal claimant voluntarily joined the Mexican army in 1993 and remained in service until 1998. His initial term was for three years, but at the end of that period he renewed his commitment to the army for an indefinite period. He remained in the army for five and a half years. He testified that in order to leave the army after the first three year period he would need to have sought a voluntary discharge but he indicated he would have suffered no sanctions should he have made that request and should he have left the army earlier.
[7] He rose rapidly during his first three years of service, and by 1996 he was Private/Corporal and Second Sergeant to the First Sergeant with specific duties as Accounting Assistant. He did not, however, have soldiers under his command.
[8] The Minister's counsel did not suggest that the Mexican army was/is an organization with a "limited and brutal purpose" such as death squad or secret police. Rather, his contention was that the Mexican army, at the time when the claimant was a soldier, was an organization that in a systematic and widespread fashion perpetrated crimes against humanity against the civilian population in Mexico.
[9] Based on the documentary evidence that was put before it, the Board found that during the period in which the principal claimant served in the Mexican army, the army carried out crimes that fit the definitions of crimes against humanity in a systematic and widespread manner.
[10] The principal claimant testified that he was unaware of the crimes against humanity being perpetrated by the army during his time of service. He apparently shifted his explanation regarding his access to television while in the army, from the television set not being turned on, to there being no television set in his company's base, to his habit of never watching the news, to his watching the news but only a little, to his having seen nothing about the army's activities in Chiapas, to his having seen possibly some news footage on the subject.
[11] The principal claimant also testified that he sought no information/confirmation of what exactly the army was doing in Chiapas either from his superiors, or his colleagues, not even his colleagues who were stationed in Chiapas for ten months in 1994.
[12] The principal claimant himself travelled to Chiapas in April of 1994 and spent four days there at the military headquarters in Tuxtla Gutierrez. Between 1996 and 1998 he spent two days every fortnight working in a department at the National Defence Secretariat Headquarters in the Federal Districts whose job was to deal with material resources required to support the army in Chiapas.
DECISION UNDER REVIEW
[13] Relying on the decisions of the Federal Court of Appeal in Sivakumar v. Canada (MEI), [1994] 1 F.C. 433 and Ramirez v. Canada (MEI), [1992] 2 F.C. 306, the Board outlined the test against which complicity should be judged in the following way:
The method by which the individual was recruited to the organization; the person's length of time/service in the organization; his/her rank in the organization; opportunities which the individual had to leave the organization; the nature of the organization; the person's knowledge of atrocities committed by the organization.
[14] On the basis of the main Applicant's membership in the Mexican army, the Board found that there were "serious reasons for considering that he was complicit in crimes against humanity". The Board came to that conclusion on the basis that the main Applicant was, or could have become, aware of the crimes against humanity committed by the army.
[15] The Board also took into consideration that the main Applicant was not forced to join the army but did so of his own free will, that he spent over five years in the service and that there were no sanctions that would have impeded his earlier departure from Mexico's military service.
[16] The Board member found that the main Applicant was or could have become aware of the army's crimes because news of them appeared on television and in magazines at the time in
question, and because he occasionally travelled to Chiapas and Mexico City for his work. He also found that the main Applicant's work as an Accounting Assistant "directly resourced the army in Chiapas - whether it was dealing with roads and bridges or other matters".
ISSUE
[17] The only issue to be considered in these reasons is whether the Board erred in his conclusion that Mr. Collins was excluded from the definition of refugee due to his complicity in crimes against humanity, pursuant to Article 1F(a) of the Convention and section 98 of the IRPA.
ANALYSIS
[18] Because there was no evidence before the Board that Mr. Collins himself committed a crime against humanity, the Board focussed its analysis on the circumstances of the case to determine if these circumstances warranted an inference of complicity. This is a question of mixed fact and law, and as a consequence the decision of the Board on that question is reviewable against a standard of reasonableness simpliciter (Harb v. Canada(MCI) (2003), 302 N.R. 178, at para. 14).
[19] Section 98 of the IRPA states that "a person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention Refugee or a person in need or protection". That Article excludes from the scope of the Convention "any person with respect to whom there are serious reasons for considering that he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect to such crimes".
[20] It is settled law that an individual need not be the actual perpetrator of the crimes mentioned in Article 1(E) or (F) of the Refugee Convention to fall within the exclusion. In certain circumstances, one may be held responsible for being complicit in the crimes committed by others.
[21] The burden of establishing that an individual has been directly or indirectly involved in crimes against humanity falls on the respondent (Ramirez v. Canada (MEI), op. cit. supra. As for the standard of proof, it is more than a mere suspicion, but less than the civil standard of a balance of probabilities (Lai v. Canada (MCI), [2005] FCA 125, at para. 25).
[22] My colleague Justice Layden-Stevenson has aptly summarized the principles governing the required level of participation to establish complicity, and I cannot do better but to quote from her decision in Zazai v. Canada (MCI), [2004] F.C.J. 1649:
[27] Accomplices as well as principal actors may be found to have committed international crimes (although, for present purposes, I am not concerned with principal actors). The court accepted the notion of complicity defined as a personal and knowing participation in Ramirez and complicity through association whereby individuals may be rendered responsible for the acts of others because of their close association with the principal actors in Sivakumar. Complicity rests on the existence of a shared common purpose and the knowledge that all of the parties may have of it: Ramirez; Moreno.
[28] Madam Justice Reed in Penate v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 79 (T.D.) synthesized the trilogy principles at pages 84 and 85:
The Ramirez, Moreno, and Sivakumar cases all deal with the degree or type of participation which will constitute complicity. Those cases have established that mere membership in an organization which from time to time commits international
offences is not normally sufficient to bring one into the category of an accomplice. At the same time, if the organization is principally directed to a limited, brutal purpose, such as a secret police activity, mere membership may indeed meet the requirements of personal and knowing participation. The cases also establish that mere presence at the scene of an offence, for example, as a bystander with no intrinsic connection with the persecuting group will not amount to personal involvement. Physical presence together with other factors may however qualify as a personal and knowing participation.
As I understand the jurisprudence, it is that a person who is a member of the persecuting group and who has knowledge that activities are being committed by the group and who neither takes steps to prevent them from occurring (if he has the power to do so) nor disengages himself from the group at the earliest opportunity (consistent with safety for himself) but who lends his active support to the group will be considered to be an accomplice. A shared common purpose will be considered to exist. I note that the situation envisaged by this jurisprudence is not one in which isolated incidents of international offences have occurred but where the commission of such offences is a continuous and regular part of the operation.
[23] It is clear from the foregoing that to be found complicit in crimes against humanity, a claimant has to have the required mental element for complicity. If the organization with which the claimant is associated is one dedicated to a "limited, brutal purpose", then the required mental element is inferred from the claimant's "mere membership" in the organization. This was clearly not the case here, as the Board found that the Mexican army is not such an organization.
[24] The mental element required to establish complicity in crimes against humanity has been characterized variously as "shared common purpose", "personal and knowing participation or toleration of the crimes", and participation in an organization knowing it commits crimes against humanity, when combined with a failure to stop the crimes or disassociate oneself.
[25] Also implicit in the notion of "guilty knowledge" is proportionality. Those in leadership positions must bear more moral responsibility for crimes committed by their organizations than non-leaders. As Justice Tremblay-Lamer stated in Zrig v. Canada (MCI), [2002] 1 F.C. 559, at para. 99, quoting from Nadon J. in Mohammad v. Canada (MCI)(1995), 115 F.T.R. 161:
The more important the position held by a person in an organization that has committed one or more crimes, the more likely his or her complicity.
A person who continues to hold a leadership position in such an organization with full knowledge that the organization is responsible for crimes may be considered an accomplice.
[26] Finally, passive acquiescence will not be sufficient to establish a basis for exclusion. As indicated in Moreno v. Canada (MCI), [1994] 1 F.C. 298 (F.C.A.), personal involvement in the persecutorial acts must be established in order to demonstrate complicity.
[27] On the basis of these principles, I am of the view that the Board erred in concluding that Mr. Collins was complicit in the crimes against humanity committed by the Mexican army.
[28] The Board found as a fact that the Applicant had no soldiers under his command. Nor is there any finding that the Applicant directly participated in any crimes against humanity or assisted others in the commission of such offences. Even if he may have been aware of crimes committed by others, I do not think that it was enough to establish that he shared a common purpose with the perpetrators of the crimes.
[29] I would agree with counsel for the Applicant that setting the threshold so low as to exclude the Applicant on the basis of such marginal "involvement" in the army's abuses as his work related to providing material resources to support the army in Chiapas, would be tantamount to make "mere membership" the test of complicity even where the organization committing the crimes is not one of "limited, brutal purposes". This would be at odds with Canadian case law.
[30] For these reasons, I am of the view that the Board made a reviewable error in concluding that the main Applicant, Mr. Collins, should be excluded from refugee protection in Canada. However, the Board's ultimate decision to reject the claim for refugee protection of the Applicants should not be disturbed, since its finding that they were not credible and had no subjective fear of persecution has not been challenged.
(s) "Yves de Montigny"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10257-03
STYLE OF CAUSE: NELSON PINEDA COLLINS
BLANCA ISABEL SANDOVAL GONZALEZ
KENYA LIZETH PINEDA SANDOVAL
v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 6, 2005
REASONS FOR ORDER: de MONTIGNY J.
DATED: MAY 24, 2005
APPEARANCES:
Ms. Patricia Wells FOR THE APPLICANTS
Ms. Claire le Riche FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ms. Patricia Wells
Toronto, Ontario FOR THE APPLICANTS
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
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