Date: 20020301
Docket: IMM-906-01
Ottawa, Ontario, March 1, 2002
Before: Pinard J.
Between:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Plaintiff
- and -
JASSEM ABDEL HUSSAIN
Defendant
ORDER
The application for judicial review is allowed. The decision by the Refugee Division on January 10, 2001 is dismissed and the matter is referred back for re-hearing and re-determination by a panel of different members of the Refugee Division.
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Yvon Pinard
JUDGE
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Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L
Date: 20020301
Docket: IMM-906-01
Neutral Citation: 2002 FCT 209
Between:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Plaintiff
- and -
JASSEM ABDEL HUSSAIN
Defendant
REASONS FOR ORDER
PINARD J.
[1] The application for judicial review concerns a decision by the Refugee Division on January 10, 2001 that the defendant is a Convention refugee as defined in s. 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 ("the Act") and is not a person excluded from the application of that section under art. 1F(a).
[2] The definition of a Convention refugee found in s. 2(1) of the Act excludes person excluded from the scope of the Convention by art. 1F(a) of the latter, namely persons with respect to whom there are serious reasons for considering that they have committed a crime against humanity.
[3] The courts have consistently held that mere membership in a group which commits crimes of an international nature is not by itself sufficient to support a conclusion that the claimant was an accomplice in those offences (see Ramirez v. Canada (M.E.I.), [1992] 2 F.C. 306, at 317). The first requirement for complicity in a crime against humanity is "personal and knowing participation". To use the words of MacGuigan J.A. in Ramirez, supra, at 318:
At bottom, complicity rests in such cases, I believe, on the existence of a shared common purpose and the knowledge that all of the parties in question may have of it.
In the same case, at 327 and 328, MacGuigan J.A. also laid out the tests to be met to support a conclusion that a defence of duress is applicable in such a case:
On duress, Hathaway, supra, at page 218, states, summarizing the draft Code of Offences against the Peace and Security of Mankind, in process by the International Law Commission since 1947:
Second, it is possible to invoke [as a defence] coercion, state of necessity, or force majeure. Essentially, this exception recognizes the absence of intent where an individual is motivated to perpetrate the act in question only in order to avoid grave and imminent peril. The danger must be such that "a reasonable man would apprehend that he was in such imminent physical peril as to deprive him of freedom to choose the right and refrain from the wrong". Moreover, the predicament must not be of the making or consistent with the will of the person seeking to invoke the exception. Most important, the harm inflicted must not be in excess of that which would otherwise have been directed at the person alleging coercion. [Footnotes omitted.]
If I were to accept this as the state of international law, as the appellant urged, I could find that the duress under which the appellant found himself may be sufficient to justify participation in lesser offences, but I would have to conclude that the harm to which he would have exposed himself by some form of dissent or non-participation was clearly less than the harm actually inflicted on the victims.
[4] Like duress, complicity by membership in a group is a question of fact which must be considered and determined in each particular case.
[5] In the case at bar the tribunal, in a very brief decision, only raised one question concerning art. 1F(a) of the Convention. The full text of the decision on this point needs to be set out:
[TRANSLATION]
As to the applicability of the exclusion clause, it is clear that the claimant was involved in the extra-judicial execution of a deserter.
First, in the particular circumstances of this case, I do not see the necessary mens rea. My other two main points of reference are James C. Hathaway in The Law of Refugee Status and his comments on the concept of duress, "contrainte" in French, my second reference being the case law, and in particular Ramirez [reference omitted].
As regards the analysis of James C. Hathaway [reference omitted], he says at p. 218:
It is possible to invoke coercision (sic) state of necessity or force majeure, essentially (sic) exception recognizes the absence of intent were (sic) an individual is motivated to perpetrate the act in question only in order to avoid grave and imminent peril. The danger must be such that "a reasonable man who (sic) would apprehends (sic) that he was in such eminent (sic) physical peril as to deprive him of freedom to choose the right and refrain from the wrong". This is a quotation Hathaway takes from the High Command Case, the American Military Tribunals, in connection with the celebrated Nuremberg trials.
As to Ramirez, MacGuigan J.A. of the Federal Court wrote:
"One must be particularly careful not to condemn automatically everyone engaged in conflict under conditions of war"; and went on, "While the law may require a choice on the part of those ordered actually to perform international crimes, it does not demand the immediate benevolent intervention, at their own risk, of all those present at the site. Usually, law does not function at the level of heroism".
For these reasons, I find that Jassem ABDEL HUSSEIN is a refugee as defined in s. 2(1) of the Immigration Act.
[6] The case is replete with evidence that the defendant was aware of the crimes against humanity committed by the Iraqi army when he was a part of it:
- the use of chemical weapons, which caused some 150,000 deaths;
- the razing of towns and villages;
- the poisoning of water in one area of the country;
- the repeated hanging of deserters;
- the regular use of torture during interrogations; and
- the murder of a pregnant woman (which the defendant witnessed when he was on leave).
[7] The evidence further showed that the defendant was assigned to the maintenance of military vehicles used to transport light cannon.
[8] In these particular circumstances, I must conclude that it was not sufficient for the tribunal to raise only one question concerning the direct participation of the defendant in the extra-judicial execution of a deserter. The Act, as confirmed by the foregoing case law, required it also to ask questions about the defendant's complicity and his defence of duress. The error of law made thus has to do with the tribunal's failure to ask all the necessary relevant questions and dispose of them expressly. It is certainly not this Court's duty to perform these functions in a judicial review proceeding.
[9] In the circumstances, therefore, I consider that the application for judicial review should be allowed and the matter referred back to different members of the Refugee Division for re-examination.
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Yvon Pinard
JUDGE
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OTTAWA, ONTARIO
March 1, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-906-01
STYLE OF CAUSE: MCI v. JASSEM ABDEL HUSSAIN
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: FEBRUARY 5, 2002
REASONS FOR ORDER BY: PINARD J.
DATED: MARCH 1, 2002
APPEARANCES:
DANIEL LATULIPPE FOR THE PLAINTIFF
STYLIANI MARKAKI FOR THE DEFENDANT
SOLICITORS OF RECORD:
MORRIS ROSENBERG FOR THE PLAINTIFF
DEPUTY ATTORNEY GENERAL OF CANADA
STYLIANI MARKAKI FOR THE DEFENDANT
MONTRÉAL, QUEBEC
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