Date: 20101203
Docket: IMM-6485-09
Citation: 2010 FC 1168
Ottawa, Ontario, this 3rd
day of December 2010
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
FAUSTIN RUTAYISIRE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review, pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, (the “Act”) of a decision of the
Immigration Division of the Immigration and Refugee Board (the “Board”). The
Board determined that the applicant was inadmissible to Canada by virtue of paragraph
35(1)(a) of the Act as a person who committed offences outside Canada
listed in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act,
S.C. 2000, c. 24. For the reasons that follow, this application must be
dismissed.
[2]
In
my opinion, the Butare prefecture in Rwanda, of which the applicant was sub-prefect, was
not a limited, brutal purpose organization. However, the applicant was
nonetheless complicit in crimes against humanity through his position and is
accordingly inadmissible to Canada.
* * * * * * * *
[3]
The
applicant, Faustin Rutayisire, is a 54-year-old citizen of Rwanda of Hutu
background. Prior to the genocide in Rwanda, he worked as a math teacher and was a founding
member of the Parti social démocrate (“PSD”), an opposition party to the
dominant Mouvement républicain national pour la démocratie et le développement.
[4]
On
April 6, 1994, the plane carrying Rwandan President Juvénal Habyarimana was
shot down, igniting a genocide perpetrated by Rwanda’s majority Hutus against the minority
Tutsis. The genocide lasted approximately 100 days, ending when the Hutu regime
was toppled by the Tutsi-led Rwandan Patriotic Front (“RPF”) in July 1994. The
RPF had been invading from the North during the genocide. The applicant lived
in the southernmost province, Butare.
[5]
In
early May 1994, the applicant was appointed sub-prefect of Butare. He learned
of his appointment from a news broadcast on the radio. He claims that he
accepted the position against his will because he was frightened that refusing
could endanger his safety. The former prefect of Butare, Jean-Baptiste Habyalimana,
a Tutsi, had been murdered along with his family. The applicant knew of this
murder, having seen the bodies of the former prefect’s wife and daughters; he
also knew about the widespread massacres of Tutsis in Butare, as he had seen
corpses at a university and seen murders taking place in the hills.
[6]
His
duties as sub-prefect did not include actively participating in the genocide.
He was in charge of technical and economic affairs, and describes his duties as
being of a purely administrative nature. He says the sub-prefects continued to
perform their regular duties despite the ongoing violence. In his affidavit and
oral testimony, the applicant provided the following details about his duties:
·
he was named as a
signing officer on the Civil Defense bank account by the prefect, and could not
refuse this signing authority without risk; he says that to his knowledge the
account never functioned after money was deposited and that he never signed a
cheque to the account;
·
the prefecture worked
to ensure medical care and education continued to be available;
·
he was responsible
for a number of agricultural development projects;
·
the sub-prefects
worked to keep the economy running by encouraging people to return to work,
re-opening the public markets, ensuring that banks were still operating, and
helping a factory stay open;
·
he was responsible
for rationing and redistributing items such as gasoline and food;
·
he was responsible
for providing travel passes and military escorts;
·
the prefecture
collected goods left behind by people who fled or were killed, allegedly to
avoid pillaging;
·
the prefecture
provided social services to tens of thousands of displaced people; and
·
the prefecture
ensured communications services, electricity, and water continued to function
during the violence.
[7]
The
applicant fled Rwanda on July 3, 1994, and eventually made his way to South Africa, where he made a claim
for refugee protection at the Canadian High Commission in 2002. On his
application he indicated that he had been sub-prefect; there is accordingly no
issue of misrepresentation here. On November 13, 2003 the applicant became a
permanent resident of Canada. On January 21, 2005, a
report was prepared under subsection 44(1) of the Act alleging the applicant
was inadmissible to Canada as a person who committed offences outside Canada
listed in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act
or as a prescribed senior officer in the service of a government that has
engaged in genocide or crimes against humanity.
* * * * * * * *
[8]
Subsection
35(1) of the Act provides the relevant inadmissibility provisions:
|
35.
(1) A permanent resident or a foreign national is inadmissible on grounds of
violating human or international rights for
(a) committing
an act outside Canada that constitutes
an offence referred to in sections
4 to 7 of the Crimes Against Humanity
and War Crimes Act;
(b) being
a prescribed senior official in the service
of a government that, in the opinion
of the Minister, engages or has engaged
in terrorism, systematic or gross human
rights violations, or genocide, a war
crime or a crime against humanity within
the meaning of subsections 6(3) to (5)
of the Crimes Against Humanity and War
Crimes Act; or
[.
. .]
|
35.
(1) Emportent interdiction de territoire pour atteinte aux droits humains ou
internationaux les faits suivants :
a) commettre,
hors du Canada, une des
infractions
visées aux articles 4 à 7 de la
Loi sur les
crimes contre l’humanité et les
crimes de guerre;
b) occuper
un poste de rang supérieur – au sens
du règlement – au sein d’un gouvernement
qui, de l’avis du ministre, se
livre ou s’est livré au terrorisme, à des violations
graves ou répétées des droits de la
personne ou commet ou a commis un génocide,
un crime contre l’humanité ou un
crime de guerre au sens des paragraphes
6(3) à (5) de la Loi sur les crimes
contre l’humanité et les crimes de guerre;
[.
. .]
|
[9]
Subsection
6(1) of the Crimes Against Humanity and War Crimes Act provides that the
relevant offences are genocide, a crime against humanity, or a war crime, which
are defined in subsection 6(3). The fact that genocide and crimes against
humanity occurred is not at issue in this case.
[10]
Two
pieces of case law are also central to the disposition of this application for
judicial review. In Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306
(C.A.), Justice Mark MacGuigan wrote for the Federal Court of Appeal, at page
317:
.
. . where an organization is principally directed to a limited, brutal purpose,
such as a secret police activity, mere membership may by necessity involve
personal and knowing participation in persecutorial acts.
[11]
In Ali
v. Minister of Citizenship and Immigration, 2005 FC 1306, Justice Michel Shore noted, at paragraph 10,
six factors which should be considered by the Court in determining whether an
individual is complicit in crimes against humanity:
(1)
the nature of the
organization;
(2)
the method of
recruitment;
(3)
position/rank in the
organization;
(4)
knowledge of the
organization’s atrocities;
(5)
the length of time in
the organization; and,
(6)
the opportunity to
leave the organization.
* * * * * * *
*
[12]
The decision
of the Board was issued on December 4, 2009, after 11 days of hearings. The
Board reviewed the applicable law on crimes against humanity as well as the
jurisprudence with respect to complicity. The Board then proceeded to conduct
an analysis based on the six factors articulated in Ali, supra.
[13]
The
Board’s analysis of the six factors can be summarized as follows.
1. The nature
of the organization / limited, brutal purpose organization
[14]
The
Board found that after the assassination of President Habyarimana, a small
group of leaders took control of the government and over the next 100 days
undertook a campaign of genocide against the country’s Tutsi population.
[15]
The
Board considered the administrative framework which facilitated the genocide,
specifically noting that the prefects, sub-prefects, and burgomasters served as
the link between the army and the civilian population. According to the
evidence, these different levels of government collaborated to control the
movement of Tutsis and others, access to food and water, patrols, distribution
of vehicles and gasoline, the redistribution of goods taken from those who had
been displaced or murdered, and the cleaning up of evidence of the massacres.
While these politicians and bureaucrats were not necessarily those holding the
machetes, the Board cites evidence that “[l]a différence entre la vie ou la
mort tenait parfois, pour les Tutsis, à une simple decision bureaucratique”.
[16]
The
Board also considered the fact that the Minister of Citizenship and Immigration
has designated the regime in power between April and July of 1994 as a regime
that committed genocide. The Board specifically cited the case of Imeri v. The
Minister of Citizenship and Immigration, 2009 FC 542, where Justice Luc Martineau
overturned the decision of the Board that the National Liberation Army, a
pro-Albanian group operating in Macedonia, was not a limited, brutal purpose
organization.
[17]
Ultimately,
the Board concluded that because the seizure of power by a small group of
leaders was primarily motivated by the eradication of Tutsis, the interim
government of Rwanda, including the Butare
prefecture, was a limited brutal purpose organization.
2. The
method of recruitment
[18]
The
Board considered that the appointment of Sylvain Nsabimana as prefect of Butare
was a strategic choice by the central government and the Interahamwe militia
because as a member of the PSD, the dominant political party in Butare, he
would be in a position to facilitate the genocide in that province. The Board
found that the applicant’s appointment to the position of sub-prefect was also
a strategic decision to facilitate the genocide in Butare, given the need to
garner popular support in Butare and the applicant’s status as a founding
member of the PSD. The Board found that the interim government did not want to
appoint a moderate Hutu as sub-prefect, but rather sought someone who would
follow orders from the central government: the applicant.
[19]
The
Board considered the applicant’s testimony that he had no choice but to accept
his appointment because of the danger inherent in refusing. The Board found
that the applicant had not established duress to the degree required by the
jurisprudence: “imminent physical peril in a situation not brought about
voluntarily and that the harm caused was not greater than the harm to which the
individual was subjected” (Oberlander v. The Attorney General of Canada,
2009 FCA 330, at paragraph 25). The Board noted that many people, including a
former sub-prefect, had fled across the border to Burundi. The Board found that
the applicant made no effort to refuse the position, and in so doing chose to
associate with the Hutu extremists who perpetrated the genocide.
3. Position/rank
in the organization
[20]
The
Board concluded that the sub-prefect held a high-ranking position at the local
level and that the mandate given to him was important. The Board reviewed his
responsibilities, detailed above, and found that contrary to the applicant’s
statements, there was good reason to believe that the applicant was a part of
the “Conseil de sécurité de la préfecture”, given the appearance
of the applicant’s name on various pertinent documents.
[21]
The
Board also concluded that the administrative tasks performed by the prefecture
facilitated the implementation of the central government’s plan to exterminate
the Tutsis and had a direct link with the genocide perpetrated in Butare.
4. Knowledge
of the organization’s atrocities
[22]
The
Board found that the applicant knew that massacres had occurred when he was
appointed as sub-prefect. Indeed, he had witnessed massacres as well as seen
corpses on a number of occasions. He knew that refugees seeking protection at
the prefecture were disappearing at night.
5. The length
of time in the organization
[23]
The
Board noted that the time the applicant served as sub-prefect, from May to July
of 1994, was within the 100 days during which the genocide took place.
6. The opportunity
to leave the organization
[24]
The
Board noted that the applicant only left Butare when the RPF had taken control
of the country, and accordingly the Board was not satisfied that he had tried
to dissociate himself from the government or looked for ways to flee, even
though his nephew and other family members had left in June, at the same time
as others.
[25]
Thus,
on the basis of this analysis, the Board concluded that given his close
association with his government and his knowledge of the atrocities, the
applicant was complicit by association with the government, and the requisite mens
rea existed. The Board also found, based on an evaluation of the first of
the six factors (the nature of the organization) that the applicant was
complicit based on his membership in an organization with a limited brutal
purpose. Accordingly, the Board determined that the applicant was inadmissible
by virtue of paragraph 35(1)(a) of the Act.
[26]
However,
with respect to paragraph 35(1)(b) of the Act, the Board concluded that the
applicant was not a prescribed senior official.
* * * * * * * *
[27]
The
issues in this matter may be formulated as follows:
- Did the Board err in finding that
the interim government of Rwanda, and accordingly the Butare
prefecture, was a limited brutal purpose organization?
- Did the tribunal err in finding that
the applicant was complicit in the genocide and crimes against humanity?
* * * * * * * *
- Did the Board err in finding that
the interim government of Rwanda, and accordingly the Butare prefecture, was a limited,
brutal purpose organization?
[28]
The
applicant submits that the prefecture of Butare was not a limited, brutal purpose organization.
According to the applicant, only if an organization is one that has no
objective other than the commission of crimes against humanity is it properly
characterized as a limited brutal purpose organization.
[29]
The
applicant submits that in this case, the prefecture of Butare was engaged in multiple functions,
and that the applicant’s duties involved a range of activities. The applicant
argues that it was the military and not civil authorities that had control over
the genocide, and that although some of the activities he worked on could be
linked to the genocide, these tasks were necessary to keep the prefecture
functioning. The applicant submits that the primary goal of the prefecture was
not to commit war crimes or crimes against humanity, but that the prefecture
was a “complex organization involved in a variety of functions and purposes,”
many of which were distinct from the functions of the central government.
[30]
For
his part, the respondent argues that the determinative factor is whether the
main purpose of the organization is achieved by crimes against humanity.
According to the respondent, the single limited brutal purpose of the interim
government of Rwanda was the massacre of
Tutsis and moderate Hutus. The respondent says that the evidence demonstrates
that the interim government used the instruments and authority of the Rwandan
state to achieve its purpose of killing Tutsis, and that the fact that the
Butare prefecture continued to offer services to the population is not relevant
and does not alter the genocidal purpose of the organization. Accordingly, the
interim government, including the Butare prefecture, was “an organization whose
very existence was premised on achieving the eradication of the Tutsis and of
Hutu moderates by any means necessary.”
[31]
A
preliminary issue in considering whether the applicant was a member of a
limited brutal purpose organization is whether the focus of the inquiry should
be on the national interim government or on the Butare prefecture. The
applicant’s submissions focus on the Butare prefecture, while the respondent
focuses on the interim government as a whole. In my view the focus must be on
the Butare prefecture. This is the organization with which the applicant was
associated. There is no evidence that he had any links with the senior leaders
in the national interim government.
[32]
The
Butare prefecture does not fit neatly into the existing jurisprudence regarding
limited brutal purpose organizations. Cases that have considered this status
have typically concerned specific and discrete groups, not entire governments
and bureaucracies. Examples include militias (Balta v. Canada (M.C.I.),
[1995] F.C.J. No. 146 (T.D.) (QL)), police forces (Loordu v. Canada (M.C.I.),
[2001] F.C.J. No. 141 (T.D.) (QL)), death squads (Oberlander, supra),
armies (Antonio v. Solicitor General, 2005 FC 1700), and terrorist or
rebel groups (Rai v. Canada (M.C.I.), [2001] F.C.J. No. 1163 (T.D.) (QL)); Mendez-Leyva
v. The Minister of Citizenship and Immigration, 2001 FCT 523). Although in Thomas
v. Minister of Citizenship and Immigration, 2007 FC 838, Justice Richard Mosley
found that the Armed Forces Revolutionary Council, the military group which formed
the government of Sierra Leone, was a limited brutal purpose organization, he
did not go so far as to say that all subordinate levels of government would
also be assigned this status.
[33]
Furthermore,
the language used in the jurisprudence appears to anticipate a much narrower
focus, not one that would encompass entire bureaucracies. In the seminal Ramirez
decision, Justice MacGuigan’s understanding of “limited” purpose seemed to
be more strict than the interpretation the respondent proposes:
It
seems apparent, however, that where an organization is principally directed to
a limited, brutal purpose, such as a secret police activity, mere
membership may by necessity involve personal and knowing participation in
persecutorial acts. (Emphasis added.)
[34]
More
recently, in Minister of Citizenship and Immigration v. Seifert, 2007 FC
1165, Justice James O’Reilly, at paragraph 20, offered a death squad as an
example of a limited brutal purpose organization. In the context of Rwanda it has been held that
the Rwandan military during the genocide was a limited brutal purpose
organization: Seyoboka v. Canada (Minister of Citizenship and Immigration), [2010] 2 F.C.R. 3
(F.C.).
[35]
The
interpretation proposed by the respondent is tantamount to asking this Court to
accept that an entire state may be classified as a limited brutal purpose
organization. I do not think the jurisprudence goes this far. The Board found,
reasonably in my view, that the leaders who seized power after the President’s
assassination usurped the power of the state and used it to accomplish
genocide. In so doing, they employed the administrative powers of the state,
including the prefecture of Butare, to
facilitate crimes against humanity. Many bureaucrats, administrators, and local
civic leaders either actively participated or acquiesced to the violence and
performed compartmentalized duties which contributed to the genocide. For this
reason they are complicit in genocide and must be held accountable. However,
the avenue for accountability should be through a finding of complicity on the
facts of their participation, not a presumption based on their membership in an
institution as varied and multipurpose as a government.
[36]
The respondent’s
submission that the Butare prefecture was “an organization whose very existence
was premised on achieving the eradication of the Tutsis and of Hutu moderates
by any means necessary” is not logical. The Butare prefecture existed before
the genocide and continued to exist after the genocide. It evidently had
purposes other than crimes against humanity before April 1994, purposes which
included the promotion of health, education, agriculture and commerce. During
the genocide these purposes continued to exist. The Board found and the
respondent suggests that the performance of the prefecture’s duties from April
to July of 1994 became encompassed within a broader genocidal purpose. It is
clear on the facts that a number of the ostensibly administrative activities of
the prefecture supported the genocide, for example those functions related to
travel and finance. However, it is also clear that other activities did not
support the genocide, for example saving cows or promoting the coffee trade.
The purposes of the prefecture were manifold, not limited.
- Did the
tribunal err in finding that the applicant was complicit in the genocide
and
crimes against humanity?
[37]
The
applicant notes that absent direct involvement in crimes against humanity, a
close association with an organization responsible for such crimes may
constitute complicity only if there is “personal and knowing” participation in
the crime. The applicant submits that the Board’s assessment of the six
complicity factors was unreasonable and that the Board ignored evidence from
the applicant’s testimony that showed that he had no personal and knowing
participation in the genocide.
[38]
The
applicant submits that in the case law, “personal and knowing” participation
has been found in cases where associations with organizations perpetrating
crimes against humanity were longstanding and voluntary, and that this is not
the case here. The applicant relies on Bazargan v. Canada (M.C.I.),
[1996] F.C.J. No. 1209 (C.A.) (QL), Ryivuze v. Minister of Citizenship and
Immigration, 2007 FC 134, and Loayza v. Minister of Citizenship and
Immigration, 2006 FC 304. The applicant submits that he feared his life would
be in danger if he refused the appointment, that he left the organization when
he felt it was safe to do so, and that his entire association with the
organization lasted less than two months.
[39]
The
applicant also submits that mere knowledge of crimes committed by the
organization is insufficient to ground a finding of complicity absent other
evidence that the applicant was involved in the offence. Likewise, the
applicant says mere membership does not indicate complicity unless it is a
limited brutal purpose organization.
[40]
After
reviewing the Board’s analysis of each of the six factors used to determine
whether the applicant was complicit in crimes against humanity, the respondent,
for his part, submits that none of the Board’s findings in that regard were unreasonable.
I agree. In my view, the Board’s findings regarding the applicant’s complicity fell
“within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law”: Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190.
[41]
At
paragraph 11 of Bazargan, supra, the Federal Court of Appeal,
relying on Justice MacGuigan’s decision in Ramirez, found as
follows:
.
. . At p. 318, MacGuigan J.A. said that “[a]t bottom, complicity rests . . . on
the existence of a shared common purpose and the knowledge that all of the
parties in question may have of it”. Those who become involved in an operation
that is not theirs, but that they know will probably lead to the commission of
an international offence, lay themselves open to the application of the
exclusion clause in the same way as those who play a direct part in the
operation.
[42]
While
as noted above the Butare prefecture was not a limited brutal purpose
organization, once the control of the prefecture had been overtaken by the
directing minds of the genocide, the prefecture and its agents had a shared
common purpose with the interim government. The applicant had knowledge of the
genocide and that it was taking place within the prefecture, and accordingly
his participation was “personal and knowing.”
[43]
Although
the applicant states that he feared for his life if he were to refuse the
appointment, he failed to demonstrate that he was at risk of “imminent physical
peril in a situation not brought about voluntarily and that the harm caused was
not greater than the harm to which the individual was subjected” (Oberlander,
supra, at paragraph 25). While he stated that opponents of the
government were at risk, he did not present evidence that this risk was
imminent.
[44]
The
applicant suggests the Board ignored his statement that his decision to sign
travel passes for Tutsis to be taken to the refugee camp was based on a desire
to protect them. However, the Board never found that the applicant knew the
Tutsis would be killed at the refugee camp; the Board’s finding was that the
accomplishment of various administrative tasks, including but not limiting to
enabling travel, facilitated the genocide.
[45]
The
Board did not ignore the fact that the applicant attempted to protest the
crimes; rather, the Board found that his intervention was insufficient. Nor did
the Board conflate general knowledge with specific knowledge; the Board
considered that the applicant knew that massacres were occurring and that he had
witnessed murders and seen dead bodies.
[46]
The
applicant’s submission that the Board erred when it found that the applicant
could have fled because it did not consider that a Tutsi-led military
government was in power in Burundi is also unconvincing. The reasonableness of the Board’s
finding is confirmed by the applicant’s own affidavit, in which he writes, at
paragraph 18, that “[t]ens of thousands of Hutus were attempting to flee to Burundi . . .”.
[47]
The
applicant’s argument that the jurisprudence surrounding “personal and knowing”
participation requires longstanding and voluntary involvement does not assist
the applicant here. Considerations of the length of involvement are unhelpful
on the facts of this case because of the short duration of the interim regime.
Moreover, the applicant remained in his position until the very end of the
regime when the RPF invaded. The question of voluntariness was addressed by the
Board when it provided a reasonable analysis of the alleged existence of
compulsion and duress.
[48]
The
applicant’s
submission that mere knowledge of crimes against humanity is insufficient to
ground a finding of complicity absent other evidence the applicant was involved
does not assist the applicant, because here there was other evidence that the applicant
was involved in the offence. The Board found that the applicant, as sub-prefect,
facilitated the genocide through both his specific duties and delegations as
well as more generally by ensuring the continuing functioning of the
prefecture, the apparatus of which was used to perpetrate genocide. This latter
finding reflects one of the most frightening aspects of genocide: the
compartmentalization of responsibility into discrete tasks such that each of
the perpetrators is able to say that they themselves were not guilty. The Board,
at page 11 of its decision, cited Alison Des Forges’ description of this
disturbing tendency (Expert Report by Alison Des Forges Prepared for the
Butare Case ICTR-98-42-T, 1 June 2001, at page 77):
. . . By the regular and supposedly respectable exercise of their
public functions, they condemned Tutsi to death for the mere fact of being
Tutsi. Silent before the daily horror, they sought to hide behind the
bureaucratic routine that divided the genocide into a series of discrete tasks,
each ordinary in itself. But in the end, the semblance of administration as
usual failed to disguise the ultimate objective of extermination.
[49]
The
Board itself wrote at paragraph 81 of its decision:
Un dernier mot sur la situation à
Butare par rapport aux activités de M. Rutayissire comme fonctionnaire
exécutant. L’administration locale à Butare fonctionnait remarquablement bien
en dépit des massacres. Or, selon la preuve documentaire, l’accomplissement de
tâches administratives par la préfecture facilitait la mise en place du plan
national pour exterminer les Tutsis. […] Cependant, le tribunal ne peut que
constater que la plupart des tâches que M. Rutuyisire accomplissaient avait un
lien direct avec les effets du génocide qui faisaient rage à Butare pendant son
mandat à titre de sous-préfet.
[50]
Any
realistic approach to state-sanctioned crimes against humanity and genocide
must acknowledge that the circle of complicity is much broader than simply
those directly ordering or carrying out violent acts. It should properly
encompass those who, with knowledge of the crimes being perpetrated, acted or
acquiesced in administrative positions that facilitated violence and normalized
brutality. This is the approach the Board took. It reached a reasonable
conclusion on the applicant’s complicity based on a comprehensive and reasoned
balancing of the evidence before it, including the applicant’s own testimony.
[51]
At
the hearing, learned counsel for the applicant argued that after finding that
the prefecture was a limited brutal purpose regime, the Board proceeded to
consider the question of complicity in the context of rebutting a presumption
of complicity, rather than engaging in an independent analysis of whether the relevant
factors demonstrated complicity. Thus, the applicant contends, given that the
Board was mistaken in its determination that the prefecture was a limited
brutal purpose organization, the entire decision must fail because this
unreasonable determination coloured the Board’s analysis of the complicity
factors.
[52]
A
careful reading of the Board’s reasons reveals that this is not the case.
Although the Board considered the question of whether the Butare prefecture was
a limited brutal purpose regime under the heading of the first of the six complicity
factors, the nature of the organization, it is clear that the Board’s finding
in this respect did not taint its broader analysis of complicity, which
remained a conceptually and practically distinct exercise throughout the
Board’s reasons. For example, at the beginning of the Board’s analysis on
complicity, at paragraph 59 of its reasons, the Board clearly demonstrates its
understanding of the two distinct routes for arriving at a finding of
complicity:
. . . Selon la jurisprudence, il y a deux façons qu’une
personne puisse être considérée « complice »: soit par une
association étroite et volontaire avec les acteurs principaux qui ont commis
les actes de persécution, soit par simple appartenance à une organisation qui
vise principalement des fins limitées et brutales.
[53]
The
Board went on to cite from a number of cases, including Ali, supra.
Ali addressed the six complicity factors and, by my reading, does not
relate to rebutting any presumption of complicity arising from membership in a
limited, brutal purpose organization. Likewise, in Teganya v. The Minister
of Citizenship and Immigration, 2006 FC 590, Justice Pierre Blais provided
guidance as to determining complicity but did not address the limited, brutal
purpose issue. In my view, the Board’s reference to these cases on complicity
is further evidence that the Board did not conflate the limited, brutal purpose
presumption with an analysis of complicity based on the six relevant factors.
[54]
Paragraph
64 of the Board’s decision further demonstrates that the issue of whether the
prefecture was a limited, brutal purpose regime was considered on its own
merit, although within the Board’s analysis of the first complicity factor, the
nature of the organization:
Les critères soutirés de la
jurisprudence se résument surtout en six facteurs à appliquer. Cependant, étant
donné que le conseil du ministre allègue que le gouvernement intérimaire au
Rwanda entre les mois d’avril et juillet 1994 constitue une organisation ayant
principalement des fins limitées et brutales, nous allons aussi traiter de
cette prétention dans le cadre du premier facteur.
[55]
The
distinction also appears from the heading of the analysis of the first factor,
just before paragraph 65 of the Board’s reasons:
1. La nature de
l’organisation / organisation ayant des fins limitées et brutales
[56]
This
organizational choice does not disrupt the integrity of the Board’s analysis
regarding complicity. The Board made it clear, at paragraph 87 of its reasons,
that its analysis of the six complicity findings led it to a finding that the
applicant was complicit in crimes against humanity:
Après avoir analysé les faits
en fonction des six critères précités, le tribunal conclut que M. Rutayisire
est complice en raison de son association avec les auteurs principaux qui ont
commis des crimes contre l’humanité, à savoir, le gouvernement intérimaire du
Rwanda, perpétrés entre les mois de mai et juillet 1994. . . .
[57]
This
conclusion was not one based on any presumption. It derived from the Board’s
conclusions regarding complicity, which were based on its analysis of the
evidence before it. In the paragraphs that follow, the Board summarizes the
common knowledge and intention that the applicant shared with the perpetrators
of the genocide. The Board then proceeds, at paragraph 91, to come to an
independent determination of complicity based on the applicant’s membership in
a limited, brutal purpose organization:
De plus, le tribunal arrive à la
conclusion que M. Rutayisire est complice par son appartenance à une organisation
visant principalement des fins limitées et brutales, à savoir son gouvernement.
(Emphasis added.)
[58]
In
my view, the Board’s choice of the words “de plus” is a clear indication of the
discrete nature of its finding.
[59]
The
applicant referred to Yogo v. The Minister of Citizenship and Immigration,
2001 FCT 390, a decision where Justice Dolores Hansen, at paragraph 21, found
that the complicity factors must be considered within the context of the first
factor, the nature of the organization. Here, it is clear that the Board
considered the five other complicity factors within the context of the nature
of the organization, which was determined to be a limited brutal purpose
organization. However, I do not think that in this case the Board’s analysis
should be disrupted based on its finding that the Butare prefecture was a
limited brutal purpose organization given that the Board clearly stated that
the applicant was guilty of complicity “en raison de son association avec les
auteurs principaux qui ont commis des crimes contre l’humanité”. In Yogo,
this clear language did not exist, and indeed Justice Hansen found, at paragraph
22, that having reviewed the Board’s reasons:
.
. . it remains unclear whether the applicant’s complicity was based on the
operation of the presumption and his failure to rebut the presumption because
his evidence was disbelieved or whether the personal and knowing participation
was inferred from its analysis of the [complicity] factors . . . (Emphasis
added.)
[60]
Yogo
can also
be distinguished on the basis that in that case, the Board had erred in its
finding that the applicant voluntarily joined and continued his association
with an organization that committed crimes against humanity. The Court in Yogo
was unable to determine whether, in the absence of that error, the Board
would have reached the same conclusion. The same is not true here. The Board
did not err in finding that the interim government and the Butare prefecture
committed crimes against humanity, and it did not err in its analysis of the
applicant’s complicity with the prefecture, which it supported with its
findings regarding his recruitment, lack of attempt to disassociate himself, and
knowledge of the crimes against humanity being committed. The Board then, “de
plus,” found that the applicant was complicit based on his membership in a
limited brutal purpose organization.
[61]
Here,
unlike in Yogo, there is no mystery as to what the Board would have
concluded absent its finding that the prefecture was a limited brutal purpose
regime. The Board, in reliance on the applicant’s direct association and common
intention with his government and knowledge of the atrocities committed, found
that the applicant was complicit. It is clear that this determination was not
based on any presumption given that the Board specifically found the applicant
to have the requisite mens rea (paragraph 90). The Board then proceeded
to the independent conclusion that he was complicit based on his membership in
a limited brutal purpose organization.
[62]
For
the above-mentioned reasons, the application for judicial review is dismissed.
[63]
The
applicant proposes the following question for certification:
Is
the proper test for characterization of an organization as one with a limited
brutal purpose whether all the activities of the organization are directed
towards the commission of crimes against humanity and are thus so intertwined
with the commission of crimes as to be inseparable from such a purpose?
[64]
In
view of my above finding that the applicant was complicit in genocide, crimes
against humanity and war crimes and inadmissible under paragraph 35(1)(a)
of the Act regardless of the issue of whether the organization he belonged to
had a limited brutal purpose, the proposed question is not determinative of the
application for judicial review and is, therefore, not certified (see Liyanagamage
v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4
(F.C.A.)).
JUDGMENT
The application for judicial
review of the decision rendered on December 4, 2009 by the Immigration Division
of the Immigration and Refugee Board of Canada is dismissed.
“Yvon
Pinard”
Email this Content