Caballero v. Canada (Citizenship and Immigration), docket IMM-272-96

     IMM-272-96

BETWEEN:

     FLORENCIO CABALLERO

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

HEALD D.J.:

     This is an application for judicial review of a decision by Adjudicator E. McNamara, of the Immigration and Refugee Board, Adjudication Division, dated January 12, 1996, in which he determined that the applicant was a member of an inadmissible class as set out in paragraph 19(1)(j) of the Immigration Act.¹

FACTS

     The facts in this application are not in dispute. The applicant was forcibly recruited into the Honduran army in December 1977. Sometime early in 1979, he was transferred to the 12th Infantry Battalion pursuant to the order of his superiors. On several occasions he sought permission to legally leave the military but was refused. Shortly after his transfer, the applicant was assigned to an intelligence unit called "S2". Initially, the applicant refused this assignment and was sentenced to incarceration for 30 days as a result. During this period of confinement, he was strongly urged to reconsider his refusal and to accept a transfer. It was suggested that a further refusal would entail dire consequences. He interpreted this to mean that he would be killed since he knew soldiers who had "disappeared" in similar situations. He decided not to further resist his recruitment into S2.

     In the applicant's view he tried every reasonable or sensible means of leaving the unit and the military, but was unsuccessful. He repeatedly asked to be released from service, although he did not consider deserting and leaving his country. The applicant believed that he would be killed if he simply walked away.

     The primary purpose of this intelligence unit was to gather information on both civilian and military personnel. While on a mission with this unit at the border with El Salvador, the applicant acquired knowledge about the massacre of about 150 Salvadorans by a combined force of Honduran and Salvadoran soldiers. He passed this information on to the media, but a cover-up took place when his superiors learned of his actions. The applicant states that his life was threatened and he was held incommunicado for two months.

     While in S2, the applicant was not a party to any kidnapping or "disappearances." However, sometime in 1981 the applicant was transferred to a unit called "G2"; this unit was the army headquarters intelligence operations, sometimes referred to as "Squadron 316". The applicant submits that, at this point, he was not aware that G2 was also in the business of kidnapping, torture and murder. Over time, as his duties expanded to include the role of psychological interrogator, he again made efforts to leave the military. He was refused a discharge and it was made clear to him that he would not be permitted to leave since he knew too much. The applicant believed that if he illegally left the military, he would be killed.

     In 1982, the applicant learned that G2 was kidnapping and torturing people, often keeping prisoners in a clandestine jail until they "disappeared". Despite this revelation, the applicant did not seek to leave the military because he believed it to be too dangerous and there was no one he knew in Honduras to whom he could turn for assistance.

     Acting under orders, the applicant participated in several "illegal captures" or kidnappings. He testified that, in the beginning, he did not know that these people would "disappear", but that he soon learned the truth. The applicant testified that, over his eighteen months of military service, he participated in a number of kidnappings. He also testified to being present on four occasions when torture took place, but denies torturing or killing any one.

     With the permission of a new commander, the applicant was able to leave G2 in October 1983. This was a formal discharge, although the applicant was subject to being recalled to active service. He was involuntarily recalled two months later and required to serve for another two months. He was again discharged in March 1994 and, from that point on, the applicant took steps to avoid being recalled. He left Honduras for Mexico, entering illegally, and stayed for about two months. In June 1984, the applicant returned to Honduras and stayed with his family for one year. Although he felt he was being watched, the applicant was not threatened and was able to live and work without interference. He obtained a Honduran passport and visa to Mexico and travelled legally to Mexico in June 1985. Although he intended to stay in Mexico permanently, he resided there for only two months. The applicant returned to his family in Honduras for economic reasons.

     The applicant left Honduras for the last time in June 1986, after an attempt was made on his life. Leaving his family behind, the applicant sought asylum from an official at the Mexican embassy in El Salvador. He was told that he could not be offered protection because he was not a national of El Salvador; however, the Mexican authorities put him in touch with a human rights organization. The applicant then travelled from Mexico to Canada.

     At the hearing before the Adjudicator, two witnesses testified in support of the applicant: Dr. Ramon Custodio, President of the Honduran Human Rights Commission, and Mr. Juan Mendez of Human Rights Watch. Both witnesses testified that the applicant had been pivotal in bringing forth evidence of human rights abuses in Honduras, that he had testified against the Honduran government at a hearing at the Inter-American Court and that the applicant had not engaged in torture or murder.

THE ADJUDICATOR'S DECISION

     The Adjudicator first addressed the question as to whether the activities described by the applicant fell within the meaning of "crimes against humanity". In defining this phrase, the Adjudicator relied on a passage from R v. Finta, [1994] 1 S.C.R. 701 at 814 where Mr. Justice Cory stated:

What distinguishes a crime against humanity from any other criminal offence under the Canadian Criminal Code is that the cruel and terrible actions which are essential elements of the offence were undertaken in pursuance of a policy of discrimination or persecution of an identifiable group or race.

The Adjudicator concluded that the applicant's actions constituted crimes against humanity. He stated:

... I am satisfied that the identifiable group in this case was comprised of any person or persons who were suspected by Mr. Caballero's superiors of being subversives or who were perceived to be some threat to the established authorities. The "cruel and terrible" acts perpetrated in this case were, according to Mr. Caballero's own words, that persons were kidnapped, tortured and murdered or "disappeared". In his testimony Mr. Caballero admits to witnessing torture sessions of at least four persons and to being a party to the "illegal capture" or kidnapping of four or five persons knowing they would be tortured and murdered. This took place over a period of one and one half years. I find that these activities do constitute "crimes against humanity".2

The Adjudicator next considered the defence of duress or coercion, specifically that the applicant was following orders and that to refuse meant putting his own life at risk. Relying on the Federal Court of Appeal's decision in Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306, the Adjudicator concluded that such a defence required the applicant to demonstrate that he was himself in danger of imminent harm, the evil threatened him was, on balance, greater than the evil inflicted on his victims and that he was not responsible for his own predicament. The Adjudicator also relied on Finta, supra, wherein the Court clarified the defence of obedience to superior orders, finding that such a defence was not available when the orders in question were manifestly unlawful. The Adjudicator then proceeded to consider whether the applicant had satisfied the conditions precedent to relying on the defences of duress, coercion or obedience to superior orders.

     First, the Adjudicator considered whether there was an imminent threat of harm to the applicant. The Adjudicator did not find the applicant's evidence that he did everything he reasonably could to extricate himself from the army credible or trustworthy, as demonstrated by the applicant's actions in the months and years after his discharge. Specifically, the applicant did not take active steps to avoid being recalled after he was discharged in October 1983. The Adjudicator noted that the applicant was no longer being watched and was able to leave the country on three occasions without difficulty. Although the Adjudicator accepted that the applicant had left his family behind when he left for Mexico (and, presumably, this would be a sound reason to return to Honduras), the Adjudicator also noted that the applicant eventually left the country without his family.

     The Adjudicator also noted that the applicant did not seriously try to leave the country until after the attempt was made on his life in 1986, several years after his discharge from the military. The Adjudicator inferred that:

... if this attempt had not occurred he may well have stayed in Honduras and kept his silence about "G2" and "316" Squadron until his situation, both personally and economically, was more conducive to leaving. This seems to have been his plan until he was motivated to act out of self-preservation. The point is that Mr. Caballero taking his leave from Honduras appears to have had nothing to do with avoiding being a party to crimes against humanity nor with a desire to make these atrocities public. He simply wanted to avoid being a victim himself. This may be the basis of a refugee claim but it has little to do with the issues to be decided here and does not support the idea he was acting under duress while in the military. His contention that he left at the earliest opportunity is not credible and not supported by the facts.3

     The Adjudicator also determined that in the context of duress or coercion, "imminent peril" means immediate or pending. He doubted whether "imminent peril" could have meaning over a protracted period. In the applicant's case, he learned of the kidnapping, torture and murder eighteen months before he left the military and did not make full disclosure of his knowledge for almost four years.

     The Adjudicator concluded:

Mr. Caballero testifies that all along he intended to "blow the whistle" on the activities of the "G2" and would have me believe he did so at the earliest favourable opportunity. In making this claim, he has endeavoured to wrap himself in a cloak of righteousness but it is a poor fit. In my view his actions in this respect were calculated and self-serving. Besides not taking any concrete action to quit while in the military, even though the risks were minimal, he later made two trips to Mexico without difficulty yet he did nothing to bring to light what was happening in Honduras. Even in 1986 when he finally did contact human rights activist [sic], it was done after the attempt on his life and only when Mexican authorities in El Salvador could provide no assistance and referred him to the human rights group.4

     The Adjudicator next considered whether the evil threatening the applicant was as great as the evil inflicted on his victims. The Adjudicator, however, considered that the applicant could have deserted, saying:

I acknowledge there was some risk of capture and capture could mean his being "disappeared" but considering the crimes he was a party to, he should have taken the risk. The likelihood of one of his victims dying was a virtual certainty, whereas the possibility of Mr. Caballero being caught and only then punished was minimal. A reasonable person intending to minimize his complicity in such crimes would have taken flight. Mr. Caballero chose to remain and be a party to these crimes against humanity.5

     The Adjudicator further determined that the applicant's orders were "manifestly unlawful" and that any intelligent and reasonable person would know that kidnapping, torture and murder were a flagrant and manifest breach of the law.

     The Adjudicator also held the applicant responsible for his own predicament. While the applicant was conscripted into the army against his will, the Adjudicator noted that the applicant had nonetheless been promoted. Once all legal and conventional means for release from the army had been exhausted, the Adjudicator was of the view that the applicant should have taken some extraordinary or unconventional means to avoid further complicity. The applicant, however, chose to participate and so was responsible to a great extent for his own predicament.

     The defence of following superior orders was also not open to the applicant. On this point the Adjudicator stated:

Obeying the order to kidnap persons for the purpose of torture and murder is without doubt so outrageous an order that it would be seen by anyone to be manifestly unlawful. To any reasonable person it is "an overt and salient violation of the law ... that pierces the eye and agitates the heart" (Finta, supra).6

     Finally, the Adjudicator dealt with the testimony of the applicant's witnesses, Dr. Custodio and Mr. Mendez. While he accepted their evidence as credible, the Adjudicator found that the witnesses' evidence did not support the conclusion that the applicant would have been killed if he had left the military; he would only have been killed if he were caught, the likelihood of which was slim. The Adjudicator concluded:

My role is not to decide if Mr. Caballero should be exonerated or excused for any crimes against humanity because of the significant good that flowed from his testifying in a human rights investigation, nor to decide that he may be a refugee based on events in Honduras or his activities since leaving there. The issue for me to decide is whether there are reasonable grounds to believe he committed acts or omissions that constituted crimes against humanity. It is to his favour that he did what he did after he fled Honduras but he took this action long after he had continued to participate in these military activities knowing the consequences of his actions.7

     The Adjudicator concluded that there were reasonable grounds to believe that the applicant had committed crimes against humanity, that the defences of superior orders, coercion or necessity were not open to him and that these crimes, if committed in Canada, would constitute offences under the Criminal Code. Accordingly, the Adjudicator found that the applicant was a member of an inadmissable class of persons described in paragraph 19(1)(j) of the Immigration Act and issued a conditional deportation order against him.

ISSUES

     At the hearing, counsel for the applicant raised three issues for the Court's consideration:

(i)      whether the Adjudicator erred in law in concluding that there existed in Honduras an identifiable group that was subject to persecution,

(ii)      whether the Adjudicator erred in law by misconstruing the test for what is "manifestly unlawful", and

(iii)      whether the Adjudicator erred in law by concluding that there was no imminent harm to the applicant or otherwise misconstrued the evidence.

IDENTIFIABLE GROUP

     Both the applicant and the respondent agree that to constitute a crime against humanity the persecution must be directed to an identifiable group. Indeed, subsection 7(3.76) of the Criminal Code defines "crimes against humanity" as follows:

"crime against humanity" means murder, extermination, enslavement, deportation, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group of persons, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission, and that, at that time and in that place, constitutes a contravention of customary international law or conventional international law or is criminal according to the general principles of law recognized by the community of nations.

(emphasis mine)

The Adjudicator found the "identifiable group" to be comprised of any person or persons who were suspected by the applicant's superiors of being subversive or who were perceived to be of some threat to the established authorities.

     Counsel for the applicant submitted that the Adjudicator's delineation of the group was too amorphous or vague. In Finta, supra, at page 814 the Court held that a crime against humanity requires that the "actions which are essential elements of the offence were undertaken in pursuance of a policy of discrimination or persecution of an identifiable group or race." The applicant submitted that "identifiable group" should only apply to identifiable races or groups united by an inalienable characteristic. In the identifiable group delineated by the Adjudicator, however, the only uniting characteristic was the fact that the members were victims of G2's acts. Moreover, the applicant testified that, in some cases, the persons who were kidnapped and tortured were not involved in any subversive activity and may have been reported on false information, to settle a grudge.

     I do not accept the applicant's submissions. In my view, the applicant is advocating too narrow an interpretation of "identifiable group." If the Supreme Court had required an inalienable characteristic, it would not have used the words "identifiable group or race". As race is an inalienable characteristic, the reference to an identifiable group must refer to characteristics other than those which are inalienable. Moreover, if I accepted the applicant's argument, one could never commit a crime against humanity against a group of persons who were racially or ethnically diverse but were united by political opinion or membership in a particular social group since these latter qualities are not inalienable characteristics. Accordingly, I conclude that, on this record, the Adjudicator was entitled to find the existence of an identifiable group that was subject to persecution.

MANIFESTLY UNLAWFUL

     The applicant directed the Court to the following passage from Finta, supra, at pages 845 and 846 which, in his submission, sets out a defence to following orders that were manifestly unlawful:

---

(ii) Summary With Respect to Availability of Defences

The defence of obedience to superior orders and the peace officer defence are available to members of the military or police forces in prosecutions for war crimes and crimes against humanity. Those defences are subject to the manifest illegality test. That is to say, the defences will not be available where the orders in question were manifestly unlawful. Even where the orders were manifestly unlawful, the defence of obedience to superior orders and the peace officer defence will be available in those circumstances where the accused had no moral choice as to whether to follow the orders. That is to say, there was such an air of compulsion and threat to the accused that the accused had no alternative but to obey the orders. As an example, the accused could be found to have been compelled to carry out the manifestly unlawful orders in circumstances where the accused would be shot if he or she failed to carry out the orders.

     The Adjudicator, in the applicant's submission, did not follow the approach advocated by the Supreme Court. The Adjudicator concluded that the "disappearances" executed by the applicant were manifestly unlawful. It is submitted, however, that the Adjudicator did not properly consider the defence to superior orders in that he did not consider whether the accused had a moral choice as to whether to follow the orders.

     In my view, the Adjudicator did consider whether the applicant had a moral choice, although he did not employ that turn of phrase. Under the heading, "Was He Following Superior Orders", the Adjudicator correctly stated that "this defence is available unless the act is so outrageous as to be manifestly unlawful."⁸ The Adjudicator then expressed the view that the threat to the applicant was not "imminent and immediate throughout the entire period and that he could have avoided participating in these crimes by leaving the military and the country."⁹ The Adjudicator also concluded that, while the applicant would have been punished if he was caught leaving the military, the likelihood of this happening was slim. The Adjudicator's assessment of the risk to the applicant accords with the Supreme Court's explanation supra that there must be "such an air of compulsion and threat to the accused that the accused had no alternative but to obey the orders."

     While the assessment of the applicant's moral choice is not as clear as it might ideally be, upon reading the decision as a whole, I think it is evident that the Adjudicator turned his mind to the issue of superior orders and determined that the applicant could have disobeyed. While the applicant clearly disagrees with this assessment, I can discern no error with the Adjudicator's reasoning. To oblige the decision-maker to employ the precise language of the Supreme Court demands a microscopic examination of the Adjudicator's reasons.¹⁰

IMMINENT HARM

     I now turn to the applicant's final submission. The applicant argued that the Adjudicator committed an error of law by misinterpreting the words "imminent harm." Specifically, the Adjudicator erred in placing a time limit on the concept of imminent harm. It was the applicant's submission that imminent harm could be continuous or could continue for an extended period of time. There is no temporal limitation and for the whole period of time that the applicant was part of the military, he was in imminent harm if he refused to obey an order.

     Again, I respectfully disagree. I do not think that the interpretation of the words "imminent harm" should be characterized as a question of law. Whether a person is or is not in "imminent harm" is a question of fact, based upon the circumstances surrounding his or her particular case. The Adjudicator in this case was required to determine this question on the evidence adduced. My perusal of the record persuades me that the Adjudicator was entitled to conclude as he did. Given my conclusion that the construction of "imminent harm" is a question of fact, I cannot conclude that the Adjudicator arrived at his conclusion without regard to the evidence.

     Counsel for the applicant also submitted that the Adjudicator ignored the evidence of Dr. Ramon Custodio and Mr. Juan Mendez or, at least, ignored those portions of their testimony that indicated that the applicant was in danger of being killed if he sought to leave the military. The applicant is seeking to have the Court weigh the evidence: a task that is within the purview of the Adjudicator. The evidence of the witnesses is cited by the Adjudicator; he did not ignore it. He did, however, find that it had little bearing on the issues before him. He acknowledged that Dr. Custodio and Mr. Mendez were supportive of the applicant and that the applicant was instrumental in the prosecution of human rights violations. Nonetheless, the Adjudicator correctly identified the issue before him, namely, whether the applicant had committed crimes against humanity and should, on that basis, be excluded from Canada. The question before the Adjudicator was not whether the applicant should be "pardoned" for those crimes because he later helped to shed light on the crimes of his superiors.

     Since I have concluded that the Adjudicator herein did not commit reviewable error, it follows that this application for judicial review must be dismissed. At the conclusion of the hearing, counsel were asked if they had questions to certify. Neither counsel for the applicant nor counsel for the respondent submitted questions and, accordingly, none will be certified.

    

     JUDGE

Ottawa, Ontario

November 13, 1996.

__________________

     ¹      This paragraph provides:
No person shall be granted admission who is a member of any of the following classes: ...
(j) persons who there are reasonable grounds to believe have committed an act or omission outside Canada that constituted a war crime or a crime against humanity within the meaning of subsection 7(3.76) of the Criminal Code and that, if it had been committed in Canada, would have constituted an offence against the laws of Canada in force at the time of the act or omission.

     ²      Applicant's Application Record, p. 12.

     ³      Applicant's Application Record, p. 15.

     ⁴      Applicant's Application Record, p. 16.

     ⁵      Applicant's Application Record, p. 17.

     ⁶      Applicant's Application Record, p. 18.

     ⁷      Applicant's Application Record, p. 18.

     ⁸      Applicant's Application Record, p. 17.

     ⁹      Applicant's Application Record, pp. 17 and 18.

     ¹⁰      Compare [1974] S.C.R. 875">Boulis v. Canada (M.E.I.), [1974] S.C.R. 875 at p. 885.