M. v. Canada (Minister of Citizenship and Immigration), 2002 FCT 833

Date: 20020731

Docket: IMM-1689-01

Neutral citation: 2002 FCT 833

BETWEEN:

                                                                           M.

                                                                                                                                            Applicant

                                                                        - and -

                      THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                                    REASONS FOR ORDER

DAWSON J.

[1]                 The applicant, M., bring this application for judicial review from the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") which found him to be excluded from the application of the United Nations Convention Relating to the Status of Refugees ("Convention") pursuant to Article 1F(a) of the Convention.

BACKGROUND

[2]                 M. is a citizen of Iran who claims a well-founded fear of persecution by reason of his political opinion as a former member of the National Security Intelligence Service, the Iranian secret police organization known as SAVAK.

[3]                 According to his Personal Information Form ("PIF"), M. voluntarily applied for a job with the intelligence service. Over the years while with SAVAK his duties included:

·           observing people and reporting back on the activities of people who were believed to have participated in anti-Shah activity;

·           interviewing persons who were arrested in order to obtain information;

·           arresting three individuals; and

·           reviewing files to see which files warranted further action.

[4]                 In his PIF, M. stated that he was never involved in any torture of any kind. In his words, "[i]t was suggested a few times but I refused saying that I did not have the heart for this sort of treatment. I never saw anyone being tortured but was aware that it was happening."

[5]                 M. ultimately resigned from SAVAK.

[6]                 Once the Khomayni regime took power, former Shah supporters, including SAVAK personnel, were arrested and executed. When M. learned that he was being sought by people from the new regime he went into hiding. Ultimately M. came to Canada and made a claim for status as a Convention refugee.

THE DECISION OF THE CRDD

[7]                 The CRDD commenced its analysis by reviewing the nature of SAVAK and M.'s role and activities within SAVAK.

[8]                 As to the nature of SAVAK, the CRDD noted that its primary purpose was to eliminate threats to the Pahlavi throne. The CRDD quoted the following from documentary evidence before it:

Founded to round up members of the outlawed Tudeh, SAVAK expanded its activities to include intelligence and neutralizing the regime's opponents. An elaborate system was created to monitor all facets of political life. For example, a censorship office was established to monitor journalists, literary figures and academics throughout the country; it took appropriate measures against those who fell out of line. Universities, labour unions, and peasant organizations, among others, were subject to intense scrutiny by SAVAK agents and paid informants.

[9]                 The CRDD then went on to write:

Over the years, SAVAK became a law unto itself, having legal authority to arrest and detain suspected persons indefinitely. SAVAK operated its own prisons in Tehran (the Komiteh and Evin facilities) and, many suspected, throughout the country as well. SAVAK's torture methods , according to the documentary evidence already cited, included electric shock, whipping, beating, inserting broken glass and pouring boiling water into the rectum, tying weights to the testicles, and the extraction of teeth and nails. Many of these activities were carried out without any institutional checks. The same documentary evidence states that SAVAK increasingly symbolized the Shah's rule from 1963-1979, a period of corruption in the royal family, one-party rule, the torture and execution of thousands of political prisoners, suppression of dissent, and alienation of the religious masses.

[10]            After reviewing the testimony of M. given before it, the CRDD inferred on the basis of that testimony that:

[...] SAVAK was active in pursuing the objectives indicated in the documentary evidence during the period when the claimant was an officer, and that during the same period it used torture to attain those objectives. The panel further finds that the acts and methods used by SAVAK are offences which satisfy the dimension of cruelty and barbarism necessary to a definition of crimes against humanity, and that these offences were carried out in a systematic fashion. [footnote omitted]

[11]            As to M.'s involvement in those activities, the CRDD noted that there was no evidence that M. himself participated in acts of torture. The CRDD accepted that he disapproved of the mistreatment of detainees, protested an order given by a superior to have detainees beaten, and went out of his way to avoid any personal participation in acts of brutality. As a result of those acts, M. had forfeited the possibility of promotion and some salary. The CRDD then properly went on to consider whether or not M. was complicit in the crimes against humanity perpetrated by SAVAK.

[12]            In that regard, the CRDD found that:

[...] given his knowledge of the purpose of the organization in identifying and removing those opposed to the government, his knowledge of a torture unit in [a particular] prison, and the fact that he was formally invited to torture others on behalf of the organization, the panel finds it to be implausible that he was unaware that at least some of those he interviewed would meet the same fate. The panel therefore concludes that the claimant did have knowledge of the commission of crimes against humanity by SAVAK during his period of employment. The panel also finds that by interviewing detainees, preparing reports on the basis of those interviews, and then handing detainees over for further action by others, the claimant was serving the purpose of SAVAK and thereby sharing in the purpose of those crimes directly perpetrated by others in the organization. [underlining added]

The CRDD found, on a balance of probabilities, that SAVAK was responsible for the systematic arrest, torture, disappearance and extra-judicial execution of political and other detainees during M.'s tenure with it.

[13]            In light of that finding, and M.'s failure to disassociate himself from SAVAK after he became aware of its commission of crimes against humanity, the CRDD found that there were serious reasons for considering that M. was complicit in the crimes against humanity perpetrated by SAVAK during his tenure there. The CRDD concluded therefore that M. was excluded from consideration as a refugee under Article 1F(a) of the Convention.

THE ISSUE

[14]            M. does not challenge the findings of fact made by the CRDD, but raises the following legal issue:

Whether a person who does not personally commit or participate in any crime against humanity, but who works for an organization which commits crimes against humanity in a systematic manner, can be found to be complicit in those crimes when the person knows of the existence of some such crimes, but does not know of their systematic nature?

[15]            On M.'s behalf it is submitted that in that circumstance for there to be complicity there must be knowledge of the systematic nature of the crimes. It is said that here the CRDD erred by making no finding as to whether M. had knowledge of the systematic nature of the crimes.

ANALYSIS

[16]            The definition of Convention refugee in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 ("Act") expressly excludes any person to whom the Convention does not apply pursuant to section F of Article 1 of the Convention. Section F of Article 1 of the Convention in material part provides:

[17]            With respect to the reference to international instruments, Article 6 of the 1945 London Agreement and Charter of the International Military Tribunal ("London Charter"), referred to in paragraph 150 and in Annex VI of the Handbook on Procedures and Criteria for Determining Refugee Status of the Office of the United Nations High Commissioner for Refugees, defines a crime against humanity as:

(c) Crimes against humanity : namely, murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

[18]            More recently, the Rome Statute of the International Criminal Court ("Rome Statute") defines "crime against humanity" to include torture "when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of that attack". "Attack directed against any civilian population" is further defined to mean "a course of conduct involving the multiple commission of acts [described in the section] against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack". Counsel did not dispute that the Rome Statute was an international instrument within the contemplation of Section F of Article 1 of the Convention.

[19]            This latter definition makes express the historic requirement that crimes against humanity must generally be committed in a widespread, systematic fashion. What elevates a domestic crime such as murder to the realm of a crime against humanity is the requirement that the victim be a member of a group which has been targeted systematically and in a widespread manner. See: Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (F.C.A.) at page 443.

[20]            The reason that crimes against humanity shock the conscience and warrant intervention by the international community is because they are not isolated, random attacks of individuals, but rather result from a deliberate attempt to target a civilian population (see, for example, Prosecutor v. Tadic, No. IT-94-1-T (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, May 7, 1997 at paragraph 653).

[21]            Therefore, the Rome Statute makes clear that to be convicted of a crime against humanity an accused must be aware of the context in which his or her acts took place in order for those acts to be "part of" a widespread or systematic attack.

[22]            The London Charter also provides that:

"Leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan."

[23]            Thus, it is possible for a person to commit a crime against humanity as an accomplice, even though the person did not personally carry out the act which constituted the crime.

[24]            In Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (F.C.A.) the Court of Appeal considered the extent of participation required in order to constitute one as an accomplice. Principles articulated by the Court included that:

·     no one can commit a crime against humanity without "personal and knowing participation";

·     members of a group which commits crimes against humanity may, depending upon the facts, be considered to be personal and knowing participants;

·     complicity rests on the existence of a shared common purpose and the knowledge that all of the parties in question have of the purpose; and

·     mere membership in an organization principally directed to a limited, brutal purpose may by necessity involve personal and knowing participation in persecutorial acts.

[25]            In the present case, the CRDD made no finding that SAVAK was principally directed to a limited, brutal purpose.

[26]            When the legal issue posed in this application is viewed against the general principles articulated by the Court of Appeal in Ramirez, supra, it seems to me that, as a matter of law, the applicant is correct in his submission that to be complicit in the crimes against humanity committed by SAVAK he must be found to have known of the widespread or systematic nature of the crimes committed by SAVAK. This is because isolated and random acts, reprehensible as they are, cannot amount to crimes against humanity. Therefore, to be a knowing participant in a crime against humanity one must know, or ought to know, that one is participating in something other than an isolated or random occurrence.

[27]            Having so concluded, it is next necessary to consider whether the CRDD properly considered whether M. had knowledge of the systematic nature of the crimes committed by SAVAK.

[28]            The CRDD demonstrated its awareness of the requirement that crimes against humanity be committed in a widespread or systematic fashion when it found that the acts and methods used by SAVAK were offences sufficiently cruel and barbarous to be offences, "and that these offences were carried out in a systematic fashion". The CRDD further demonstrated this understanding when it found that SAVAK engaged in "systematic torture of those it suspected of anti-government sentiments" while M. was employed by SAVAK. Having demonstrated that understanding, it follows, in my view, that embedded in or implicit in the panel's subsequent finding that M. "did have knowledge of the commission of crimes against humanity by SAVAK during his period of employment" is the conclusion that M. had knowledge of the systematic or widespread nature of those crimes. Otherwise, his knowledge would not be knowledge of crimes against humanity.

[29]            Further, review of the reasons of the CRDD as a whole indicates that it was the view of the CRDD that M. had knowledge of the torture conducted on a systematic nature, and not that M. only had knowledge of isolated incidents of torture.

[30]            In this regard, the CRDD wrote of the role of torturer being suggested to M. on more than one occasion and his knowledge of a torture unit in a particular prison, found it to be implausible that he was unaware that some persons he interviewed would be tortured, and relied upon not just the documentary evidence, but upon the testimony of M. to conclude that "SAVAK was responsible for the systematic arrest, torture, disappearance and extra-judicial execution of political and other detainees during [M.'s] tenure with the organization."

[31]            It was argued on M.'s behalf that his only knowledge of torture came from one occasion when he overheard two employees discuss the fact that two members of the Mojahedin were being tortured in a particular prison. Particular reliance was placed upon the following testimony elicited from M. by his lawyer:

CLAIMANT (MR.) :             Two of the employees were working for the section 3. They were talking to each other. It was that these two were talking. One was saying to the other that do you know the people who are arrested because they were Muhjahideen. They were torturing them in [a particular prison]. I heard that. That was it. That's what I heard. Because usually employees of SAVAK were under orders not to talk about things that were happening in SAVAK. Because of that, I would not have asked any questions or nobody would have offered anything that I would have known.

BY MR. MATAS :

Q.             So you overheard this. Did you overhear this conversation, type of conversation once or more than once?

A.             It was the time that I heard that. That was the time that I heard and then I became aware and that things like that and torture things were happening at the [particular] Prison.

Q.             Did you have any other source of information besides that one overheard conversation?

A.             No, because employees of SAVAK did not have that sort of connections with each other.

[32]            It was therefore argued that there was insufficient evidence upon which the CRDD could conclude that M. was sufficiently knowledgeable of the systematic nature of the crimes, and the CRDD erred by in effect retroactively imputing what is now known about SAVAK to M.

[33]            However, the following was also in evidence before the CRDD:

i)           M. told a representative of CSIS that the torture "was mostly happening to people and groups against the regime. Communist and some other group called Tudih [sic]". This evidence was repeated by M. at the hearing before the CRDD.

ii)          M. did not resign from SAVAK to be "poor member of society" with a "wife and kids", but rather he instead satisfied himself by "not to deal with any sort of beatings and other things".

iii)          M. advised the CSIS representative that "whoever accepted to do the torturing they put them on the training to do this kind of stuff".

iv)         M. gave the following responses before the CRDD when questioned by the Minister's representative:

BY MR. OFFROWICH :

Q.             Yeah, you treated people politely, you disapproved of torture and you wouldn't perform it. But you were aware by 1964 that the branch you were with was performing torture.

A.             Yes.

Q.             Why did you wait another [number of] years before you resigned from SAVAK?

A.             It was due to the fact that they - the jobs that were done by the SAVAK.

Q.             Well, I'm not asking that.

A.             I was in a lot of pain and angry. And I didn't want to participate in disturbing people at that point.

Q.             Which people?

A.             What do you mean?

Q.             No. I'm asking you what you mean. You said in disturbing people at that point. Who? Who would you be disturbing by resigning?

A.             I wouldn't have disturbed anybody by resigning. It was because SAVAK was doing things that I wasn't approving of and due to all those things that they were doing I made a decision to resign.

PRESIDING MEMBER :     The point of Mr. Offrowich's question is why you did not resign earlier since you had known about what SAVAK was doing for some time.

CLAIMANT (MR.) :             When I became aware of this, the people were talking about torturing and all kings of things at the [particular] Prison. I decided to get a transfer to [another location] because I wanted to be away from all these problems. Then when I was in [the other location] and I noticed also that Colonel was ordering to beating people, I became very, very upset. Because of this, in the first half of [a specific year] I did resign.

[34]            On this, and the whole of the record before the CRDD, I am satisfied that the CRDD's conclusions that it was implausible that M. was unaware that some of the persons he interviewed would be tortured, and that M. did have knowledge of the commission of crimes against humanity, were supported by the evidence, and were not patently unreasonable.

[35]            To the extent to which it was argued that M.'s evidence that he had been invited to torture others was premised solely on an assumption which he made after overhearing one conversation, M. did not give that explanation in evidence. Further, if M. assumed that a transfer to a certain position would require him to engage in torture, M. must have believed or had reason to believe that torture was not an isolated, random event.

[36]            It follows that the CRDD committed no reviewable error in finding there are serious reasons for considering that M. was complicit in the crimes against humanity perpetrated by SAVAK during his tenure with it.

[37]            It was also argued on M.'s behalf that the CRDD erred in not making a finding with respect to inclusion. However, the Federal Court of Appeal has held that it is not an error of law to make an exclusion finding without first reaching a conclusion with respect to inclusion. See: Gonzalez v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 646 (F.C.A.).

[38]            At the time of the hearing before the CRDD, M.'s claim was joined with that of his wife. Subsequently the claims were severed, and the wife's application for judicial review was allowed on consent. In my view, this cured any error caused by failing to consider inclusion in the special circumstance where M.'s wife was a party before the CRDD so that by application of the principle established in Gonzalez this is not a sufficient ground for vitiating the decision in respect of M.

[39]            It follows that an order will issue dismissing the application for judicial review.

[40]            Counsel for M. will have until August 30, 2002 to serve and file submissions with respect to the certification of a question. Thereafter, counsel for the Minister will have until September 27, 2002 to serve and file responsive submissions. Counsel for M. will then have an opportunity to reply to the Minister's submission, such response to be served and filed by October 4, 2002. This timeline reflects the availability of counsel.

"Eleanor R. Dawson"

                                                                                                           Judge                        

Ottawa, Ontario

July 31, 2002

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

COURT FILE NO.:             IMM-1689-01

STYLE OF CAUSE:             M.

v.

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:           WINNIPEG, MANITOBA

DATE OF HEARING:            JUNE 26, 2002

REASONS FOR ORDER OF THE HONOURABLE MME JUSTICE DAWSON

DATED:                       JULY 31, 2002

APPEARANCES:

MR. DAVID MATAS             FOR THE APPLICANT

MS. SHARLENE TELLES-LANGDONFOR THE RESPONDENT

SOLICITORS ON THE RECORD:

MR. DAVID MATASFOR THE APPLICANT

WINNIPEG, MANITOBA

MR. MORRIS ROSENBERGFOR THE RESPONDENT

DEPUTY ATTORNEY GENERAL OF CANADA