Date: 20091120
Docket: IMM-677-09
Citation: 2009
FC 1194
Ottawa, Ontario,
November 20, 2009
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
BETHANY
LANAE SMITH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The applicant, Bethany Lanae Smith, is
a 21-year old American citizen who claims refugee protection pursuant to ss. 96
and 97(1) of the Immigration and Refugee Protection Act (“IRPA”).
She is a homosexual member of the U.S. Army, from which she has deserted. She
alleges a fear of persecution on the part of her colleagues and superiors
because of her sexual orientation. She also claims she would be personally
facing a risk to her life or cruel and unusual treatment or punishment if she
were returned to the United States.
[2]
Her claim was rejected by the Refugee
Protection Division of the Immigration and Refugee Board (the “RPD”) in a
decision dated February 2, 2009, on the ground that she had failed to seek
state protection which would have been adequate. Having thoroughly reviewed the
applicant’s record, as well as the oral and written submissions of both
parties, I have come to the conclusion that this application for judicial
review ought to be allowed. Here are my reasons in support of that conclusion.
BACKGROUND
[3]
The applicant was
born in Texas in 1988. At the age of 16, her father
discovered her sexual orientation and threw her out of his home. She then moved
to Oklahoma to live with her mother.
[4]
After completing her
education, she held various jobs before deciding to join the Army to make a
better life for herself. She was promised by the recruitment officer that the
Army would pay for her college education and that she would have the
opportunity to travel the world. She accepted the offer.
[5]
In September 2006,
she passed the physical, medical and aptitude tests. When she met with
occupation personnel at the Military Entry Program Services, she made it clear
that she did not want to engage in combat. She enlisted for three years as a
mechanic. Her contract stipulated that she had no right to cancel it, although
the Army could do so at any time. It also contained a waiver of the
“conscientious objector” status.
[6]
The applicant alleges
that, since the recruitment process involved a considerable amount of
paperwork, she did not have an opportunity to read the contract itself. She
also claims that when she enquired about the meaning of the phrase “conscientious
objector”, she was told that it was not important and that she should simply
fill out the forms. She also claims that she did not know about the “Don’t Ask,
Don’t Tell” policy towards homosexuals in the Army.
[7]
In March 2007, she
was sent to Fort Campbell in Kentucky and worked there as the only female mechanic in the motor
pool. She was harassed and insulted by other soldiers because she had the
appearance of a lesbian. The situation worsened when she was seen holding hands
with another woman in a public place. When her superiors became aware of this
situation, they started treating her harshly and giving her assignments that were
incompatible with her medical condition. She also received hundreds of
handwritten notes that were posted on her dormitory door, containing threats of
beatings. In early June, she was particularly frightened by one note whereby
she was threatened to be murdered in her sleep.
[8]
The applicant did not
tell anyone about the notes, because she did not know whom she could trust and
whether she would be talking to authors of the notes. She did not confront her
superiors either, because they had treated her badly after rumours circulated about
her sexual orientation. She thought that they would not do anything to help her
and she feared that higher ranking officers were also behind those acts of
harassment. She alleges that she destroyed all the notes.
[9]
During one of her
medical examinations, she told the medical examiner about a soldier who had grabbed
her and thrown her to the ground. She did not disclose to the doctor that she
was gay. He brushed off the incident as simple horseplay on the part of
companions-in-arms.
[10]
The applicant feared
that the death threat in the note she had received in early June could become
reality since, down the hall from her room, was the supplies room where the
keys to all the rooms were kept. She tried to obtain a discharge by frankly revealing
to her superiors that she was a lesbian. Her request was denied and the
Sergeant ordered her not to speak to officers of higher rank about it.
[11]
There is no evidence that
the applicant applied for conscientious objector status. This issue appears to
have been raised only at the time of her hearing before the Board, since
nothing is mentioned in that respect in her Personal Information Form (“PIF”).
[12]
On September 9, 2007,
fearing that her life was in danger, she fled from the base with another
soldier. After leaving the base, the applicant received an anonymous call,
apparently from her base, threatening to “kick a hole in her face” if she
returned to Fort Campbell. Another soldier from the base apparently sent her a text
message saying that she deserved to be killed for deserting the unit.
[13]
The applicant entered
Canada on September 11, 2007 and filed her
refugee claim on October 16, 2007.
THE
IMPUGNED DECISION
[14]
The RPD did not question
the applicant’s sexual orientation and found that she was a gay person. The
Board Member also recognized that harassment and violence against lesbian and
gay service members have been a source of concern. Reviewing the administrative
and regulatory prohibitions on military service by lesbian, gay and bisexual
persons since World War I, the Board Member then summarized briefly the
compromise solution better known as the “Don’t Ask, Don’t Tell, Don’t Pursue”
policy that has
been officially followed since
1993. That policy, to which was added a directive explicitly banning harassment
of lesbian and gay military personnel, was intended to ease the ban on
homosexuals in the military. It distinguished between “being gay” and “acting
on being gay”, allowing gay people to serve in the military provided that they
did not engage in homosexual conduct. As recognized by the Board Member
himself, this policy has had mixed results:
38.
Some scholars have challenged the basis of the “Don’t Ask, Don’t Tell, Don’t
Pursue” policy, as not offering protection to gay or lesbian military personnel
from harassment or scrutiny. The success of its translation into practices that
curb such harassment has been unclear and “[…] and reports since the adoption
of the plan suggest that sexual-orientation-base harassment continues to exist
in the military […] from derogatory terms against lesbian and gay persons used
in military training programs to incidents of severe violence,” such as in the
1990 murder of Barry Winchell, a soldier who was believed to be gay and who was
beaten to death by a baseball bat while he was asleep.
[It
is worth noting that Private Winchell was murdered in 1999, not in 1990, at Fort Campbell, the very base where the applicant was posted]
[15]
The Board Member ruled,
on the basis of two decisions of this Court (Sadeghi-Pari, Fariba v.
Canada (Minister of Citizenship and Immigration), 2004 FC 282, and Dosmakova,
Sofya v. Canada (Minister of Citizenship and Immigration),
2007 FC 1357) that a lesbian belongs to a particular social group for the purposes
of the phrase “Convention Refugee” and referred to a guidance note prepared by
the United Nations Refugee Agency (UNHCR) on sexual orientation and gender
identity. He noted, in particular, that “there is no duty to be “discreet” or
to take certain steps to avoid persecution, such as living a life of isolation,
or refraining from having intimate relationships” (para. 57). He then reviewed
the documentary evidence provided by the applicant about the situation of
homosexuals in the U.S. Army.
[16]
According to the RPD,
there are two determinative issues in this case: first, whether the acts of
harassment and discrimination, even if not amounting to persecution
individually, cumulatively constitute persecution, and 2) whether the claimant
has offered clear and convincing proof of the state’s inability or
unwillingness to protect her.
[17]
As to her first
claim, the applicant had to show that the U.S. Uniform Code of Military Justice
(“UCMJ”) would be applied to her in a discriminatory fashion or that the application
thereof would result in cruel and unusual treatment or punishment. For that
purpose, she invoked the affidavit of Donald G. Rehkopf Jr., an attorney who
has 32 years of military law experience as a prosecutor, defence counsel and
acting Staff Judge Advocate. In essence, his testimony is to the effect that
the U.S. military judicial system is unfair to, and
biased against homosexuals and soldiers who go on Absence With Out Leave
(“AWOL”). In his view, the court-martial process is stacked in favour of the
prosecution. On the basis of the information he received from the applicant’s
counsel, he opined that the applicant is in all probability facing a sentence of
imprisonment of at least three years if deported to the U.S.; in that respect,
he goes even much further than appellants’ counsel in Hinzman v. Canada
(Minister of Citizenship and Immigration), 2007 FCA 171 (as reported at
para. 40 of that decision), who had submitted that deserters face one to
five years in prison. Citing the American case law, Mr. Rehkopf is of the view
that life imprisonment is a “practical and legal” punishment for deserters in
time of war.
[18]
Mr. Rehkopf also
asserted that the applicant cannot effectively defend herself against a charge of
desertion. If Ms. Smith were to plead mitigating circumstances (e.g. by
arguing that her desertion was due to scruples of conscience against war even
though she had failed to obtain her discharge as a conscientious objector), she
could make a convincing case only by disclosing her true reasons for leaving
the Army. She would then find herself in deeper trouble, considering the climate
of prejudice against, the harassment and indeed the threats directed at military
members who are perceived as being non-heterosexual. Should she assert that her
superiors ignored the threats made against her, the military authorities will,
in effect, punish her for revealing a very embarrassing truth about the
military. Moreover, she could face additional criminal charges for having had sexual
relations with a person of the same
sex, in violation of Article 120 (”indecent act”) or Article 125 (“sodomy”) of
the UCMJ.
[19]
In short, Mr. Rehkopf
believes that although the U.S. Army are able to protect the claimant, they are
not willing to do so because of their hostility and bias against lesbians and
gays. Considering the anti-gay/lesbian climate at Fort Campbell, finding fair
and open-minded jurors on her court martial panel will be next to impossible,
in his view, because anyone who showed sympathy for her position would be
challenged by the prosecution.
[20]
The Board
rejected Mr. Rehkopf's opinion and found it to be not credible. First, it
determined that it was based on a number of assumptions that were speculative
at best. Moreover, the Board Member noted that
there is no evidence that a defence counsel has ever challenged the “Don’t Ask,
Don’t Tell” policy on the basis of a Supreme Court decision invalidating a
Texas statute making it a crime for two adults of the same sex to engage in
consensual sodomy (Lawrence v. Texas, 539 U.S. 538
(2003)). It is not clear what inference is to be drawn from this observation;
the Board Member may be suggesting that Articles 120 and 125 of the UCJM could
well be declared unconstitutional if challenged on behalf of the applicant.
[21]
The Board Member also
found that the Winchell murder was an isolated incident, and added that he
“suspected” the perpetrator(s) must have been sentenced to a lengthy term of
imprisonment and subjected to other severe penalties. As a result, he rejected
Mr. Rehkopf’s opinion that there is clear and convincing evidence of the
state’s inability to protect the claimant.
[22]
The Board also viewed
the applicant’s situation as not distinguishable from that of Mr. Hinzman,
because both of them had formally claimed "conscientious objector" status
and were reluctant to engage in combat. In this respect, the Board did not
accept as credible the applicant’s evidence that she did not know what that phrase
meant. On the contrary, the Member found that the applicant voluntarily enlisted
in the U.S. Army, and just like Mr. Hinzman developed an objection to the war
in Iraq after having spent some time in the
military. The Board Member determined that there is no internationally
recognized right to be a conscientious objector with respect to a specific war
(except in the specific cases provided for in paragraph 171 of the UNHCR
Handbook). The fact that the claimant may face prosecution upon return to the United States did not reveal a failure of state
protection or persecution on the basis of political opinion.
[23]
The Board Member also
rejected Mr. Rehkopf’s assessment of the court-martial process as being biased,
preferring to follow the Federal Court and the Federal Court of Appeal which
have both determined that the UCMJ as a law of general application, was not
applied in a discriminatory fashion.
[24]
In concluding that
prolix part of his reasons, the Board Member questioned the credibility and
expertise of Mr. Rehkopf. Referring to his statement that he has served as a
prosecutor, defense counsel and Acting Staff Judge Advocate and tried more than
225 cases, the Member challenged Mr. Rehkopf’s honesty, and wondered how he
could persist in prosecuting deserters if he was so concerned about the
inequities and unfairness of the military justice system.
[25]
Commenting next on
the disparities of sentences imposed by the Court Martial, the Board Member
noted that the requirement of uniformity has been abolished by the Court in
1959 (United States v. Mamaluy, 27 C.M.R. 176 (1959)); it was
recognized that consideration must given to the individualized circumstances of
the offenders. That being said, the Court of Criminal Appeals is expected to
ensure a minimal degree of uniformity in relation to sentencing, and Articles
85 and 86 of the UCMJ set maximum punishment for desertion and AWOL in various
circumstances. Such a system allows deserters to be treated uniformly and to be
spared any vindictiveness on the part of the sentencing authority.
[26]
The Board Member also
noted that the applicant waited a little more than one month to file her
refugee claim. In his view, that delay was inconsistent with the situation of a
refugee fleeing for her life and with probable knowledge that Canada was a
refuge for other members of the U.S. military who had preceded her. While this
was not held to be a determinative factor, it was nevertheless taken into
account as a factor relevant to the assessment of her subjective fear.
[27]
Finally, the Board
reiterated that an applicant is required to seek the protection of her or his
state where it might reasonably be forthcoming. In the case at bar, the
applicant spoke to the First Sergeant but did not make any attempts to seek
help from higher authorities in her unit. The Member dismissed her explanation
that higher ranking officers were involved in the harassment that she had
suffered, characterizing this allegation as mere speculation. As for the
argument that the military criminal code discriminates against gays and
lesbians and that the punishment would be the result of an unfair process, it
was also rejected on the basis of the Hinzman decision. The Board Member
refused to comment on the military court-martial system or on the “Don’s Ask,
Don’t Tell” policy, found that there was no credible evidence that the
applicant would not receive a fair hearing or would receive a more severe
sentence because she is gay if she were to be prosecuted before a court-martial,
and relied on the evidence accepted in Hinzman that 94% of deserters
have been dealt with administratively and merely received a less-than honorary
discharge from the military. Finally, the Board Member referred to newspapers
articles according to which President Obama is about to repeal the “Don’t Ask,
Don’t Tell” policy and inferred that the “ammunition” currently used by prosecutors
in U.S. court-martials, in situations similar to that of the applicant, will then
also be “swept away”.
[28]
In conclusion, the
Board summed up its findings in the following paragraphs:
209.
Having considered all of the evidences and the submissions of the claimant’s
counsel, I determine that the claimant has failed to present “clear and
convincing” proof of the inability of the United
States to protect her.
210.
I also determine that the claimant has not satisfied her burden of establishing
a serious possibility of persecution on a Convention ground or that it is more
likely she would be tortured or face a risk to her life or risk of cruel and
unusual treatment or punishment upon return to the United States.
211.
A given episode of mistreatment may constitute discrimination or harassment,
yet not be serious enough to be regarded as persecution. Indeed, a finding of
discrimination rather than persecution is within my jurisdiction. I find that
the acts of harassment and intimidation and written threats made against the
claimant do not constitute persecution in this particular case.
[29]
As a result, the
Board Member ruled that the applicant was not a “Convention” refugee under
section 96 of the IRPA or a “person in need of protection” within the
meaning of section 97(1)(a) and (b) of the same Act.
ISSUES
[30]
Counsel for the
applicant has raised a number of issues, which can be summarized as follows:
a.
Did the Board Member
err in determining that state protection would be available for the applicant? That
question must be broken down into the following sub-questions :
i)
Did the Board Member err in finding that the applicant did not seek state
protection?
ii)
Did he make a speculative finding when he concluded that the murder of Private
Winchell was an isolated incident?
iii)
Did he rely on extrinsic evidence taken from the decision of the Federal Court
of Appeal in Hinzman without giving the applicant an opportunity to
respond?
b.
Did the Board Member
err in determining that the Uniform Code of Military Justice as a law of
general application, is not applied in a discriminatory fashion, that the
applicant would receive a fair hearing and that she would therefore be
submitted to prosecution and not to persecution? In coming to that conclusion,
did the Board Member err in not providing reasons as to why the expert evidence
submitted on behalf of the applicant was not credible?
ANALYSIS
[31]
The RPD is an expert
tribunal. As such, its findings of fact or of mixed fact and law are reviewable
according to a standard of reasonableness. The Board’s assessment of the
adequacy of state protection is a question of mixed fact and law which must
accordingly be reviewed according to a standard of reasonableness. The same is
true of the question as to whether an individual faces persecution in his or
her country of origin: Hinzman v. Canada (Minister of Citizenship and
Immigration), 2006 FC 420,
at para. 199; 2007 FCA 171, at para. 38.
[32]
On the other hand,
the issues raised by the applicant that pertain to procedural fairness are questions
of law. Either the decision-maker has complied with the duty of fairness
appropriate in the particular circumstances, or has breached this duty: no
deference is due when such an issue is raised. See A.G. Canada v.
Sketchley, 2005 FCA 404, paras. 52-53.
A) Did the Board Member err in determining that state protection
would be available to the applicant?
[33]
The Federal Court of
Appeal and the Supreme Court of Canada have made it clear that the starting
point in assessing the applicant’s claim consists in the examination of the
adequacy of state protection: Canada (Attorney General) v. Ward,
[1993] 2 S.C.R. 689, at p 722; Hinzman v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 171, at para. 42. Where state
protection is found to be adequate, it is not necessary for the Board to go any
further. As the Federal Court of Appeal stated in Hinzman:
The
appellants say they fear persecution if returned to the United States. However, to successfully claim refugee
status, they must also establish that they have an objective basis for that
fear: Ward at p. 723. In determining whether refugee claimants have an
objective basis for their fear of persecution, the first step in the analysis
is to assess whether they can be protected from the alleged persecution by
their home state. As the Supreme Court of Canada explained in Ward at
page 722, “[i]t is clear that the lynch-pin of the analysis is the state’s
inability to protect: it is a crucial element in determining whether the
claimant’s fear is well-founded.” [Emphasis in original.] Where sufficient
state protection is available, claimants will be unable to establish that their
fear of persecution is objectively well-founded and therefore will not be
entitled to refugee status. It is only where state protection is not available
that the court moves to the second stage, wherein it considers whether the
conduct alleged to be persecutory can provide an objective basis for the fear
of persecution…
See
also: Colby v. Canada (Minister of Citizenship and Immigration), 2008 FC 805; Landry v. Canada (Minister of Citizenship and
Immigration), 2009 FC
594.
[34]
The case law is also
to the effect that refugee protection is meant to be a form of surrogate
protection to be invoked only in those situations where the refugee claimant
has unsuccessfully sought the protection of his home state. Absent a situation
of complete breakdown of state apparatus, it should be assumed that the state
is capable of protecting a refugee claimant. To rebut the presumption, an
applicant must offer “clear and convincing confirmation of a state’s inability
to protect”: Ward, at pp. 724-725; Hinzman, at para. 44. If an
applicant does not provide such clear and convincing evidence, he cannot qualify
as a Convention refugee or a person in need of protection. In other words,
proof must be adduced that all possible avenues of protection available have
been exhaustively sought before claiming refugee status. Speculation that state
protection would be inadequate is not sufficient.
[35]
That being said, a refugee
claimant has the obligation to seek out protection in his home country only if
that protection can be said to “reasonably have been forthcoming” (Ward,
supra, at p. 724). This is not meant to be an easy way out of the
requirement that a refugee claimant approach his home country for protection
before seeking international refugee protection. As the Supreme Court stated in
Ward (at p. 724), “…the claimant will not meet the definition of
“Convention refugee” where it is objectively unreasonable for the claimant not
to have sought the protection of his home authorities…”.
[36]
Of course, the burden
of the applicant is greater in this case as the country to which she is to be
returned is the United States, “a democratic country with a system of checks
and balances among its three branches of government”, and which “has adopted a
comprehensive scheme to ensure those who object to military service are dealt
with fairly”: Hinzman, at paras. 46, 57.
[37]
In the present case,
the situation is quite distinguishable from the problems raised, before this
Court and the Court of Appeal, by a number of recent U.S. Army deserters, and
most notably Mr. Hinzman. The Board Member appeared, at times, to have focused
on the applicant’s status as a conscientious objector. Indeed, he wrote at
para. 161 of his reasons:
It
appears to me that the claimant’s situation is no different from Hinzsman’s legal
situation because both of them made a formal claim of being a contentious [sic]
objector and a reluctance to engage in combat.
[38]
To be fair, it is
true that the applicant did mention in the narrative appended to her Personal
Information Form (PIF) that she did not know what the phrase “conscientious
objector” meant, and that it was not explained to her that one of the forms she
was made to sign when she joined the army was a waiver of her right to claim
that right.
[39]
But it is also
equally clear when reading her narrative as a whole and the evidence submitted
to the Board that her situation was much different from that of Mr. Hinzman and
that her claim was first and foremost predicated on her sexual orientation. Unlike
Mr. Hinzman, she could be punished not only on AWOL and desertion charges, but
also for simply being gay. As already mentioned, Article 125 of the Uniform
Code of Military Justice still makes it an offense to have sexual relations
with a person of the same sex. This fundamental flaw in the Member’s reasoning,
it seems to me, permeates his entire approach to the case and certainly skewed,
at least to some extent, his perception of the nature of the applicant’s claim
and predicament.
[40]
Before weighing the
various arguments made by counsel for the applicant, it is worth noting that
the Board did not make any adverse credibility findings with respect to the
applicant. He found that she was, indeed, a gay person, and there is no
suggestion that she faked her sexual orientation to be discharged from the
Army. Nor did the Board Member make any unfavourable credibility findings with
respect to the harassment and threats that were directed at the applicant while
a Member of the United States Army.
[41]
It is alleged that the
first error made by the Board Member was in his determination that Ms Smith did
not seek state protection. The Board Member wrote:
She
alleges she spoke to a sergeant asking permission from him to speak to the
First Sergeant to tell him about her being gay and wanting to leave the army.
She
did not make any attempts to seek the help of higher authorities in her unit
other than the sergeant.
A
claimant is required to approach her or his state for protection in situations
which protection might reasonably be forthcoming. The claimant must show that
it was reasonable for her not to seek protection. When asked why she did not
seek protection from higher authorities at Fort Campbell,
she replied: “]…] I considered it but did not. I felt higher ranking officers
were in on it”.
She
gave no explanation as to why she thought the higher ranking officers were
involved. In fact, her evidence is that she tried to find out who wrote the
note threatening to kill her in her sleep by comparing the signatures of fellow
soldiers to other paperwork the soldiers had signed, but was unable to
ascertain with certainty who wrote the note. It was speculation only on her
part that higher ranking officers were involved.
Reasons
for Decision, at paras. 189-192.
[42]
Contrary to the
situation in Hinzman, where the appellants had not made an adequate
attempt to avail themselves of the protections afforded by the UCMJ, the
applicant in this case provided evidence that she did approach her superiors to
try to obtain a discharge. According to the evidence offered by the applicant, she
went so far as to ask her superior for permission to speak to a higher
authority, but that was denied. She also testified that one superior scoffed at
her and said they would figure out the paperwork when she returned from her
tour of duty in Afghanistan.
[43]
The case law of this
Court requires more than one attempt to obtain state protection. It is often
said that an applicant must usually follow up on his complaint, and seek
assistance from higher authorities if unsuccessful at the first stage. Yet, one
must take into account the particular environment that an applicant finds
himself in. It is clear that in the Army reigns an atmosphere of unconditional
obedience to the hierarchy. The Board Member did not seem to be sensitive to
this special context.
[44]
Further, the
applicant provided evidence that she was afraid that her superiors may have
been involved in the harassment and threats targeted at her. She had reasons to
perceive her superiors as being the potential authors or participants in the
harassment and threats directed at her. She stated in her PIF and in her testimony
that she felt that she started receiving harsher treatment from her superiors
when they heard rumours that she was a lesbian. Moreover, one of her superiors
told her to “tone down her behaviour”, which the applicant believed was a
reference to her sexual orientation. Nonetheless, the Board Member found that
the applicant’s belief to the effect that higher ranking officers were involved
was pure speculation. While such a finding is normally entitled too much
deference, it may nevertheless be questioned when the Board Member has not
considered all the evidence submitted by the applicant, especially when that
evidence has remained uncontradicted.
[45]
What is more, the
personal experience of the applicant seems to be consistent with the
documentary evidence indicating that superiors in the U.S. military are too
often complacent and sometimes even actively participate in the harassment and
abuse directed at gays and lesbians in the military. This evidence should also
have been taken into account by the Board Member in assessing whether the
applicant adequately attempted to avail herself of the protection afforded by
the state.
[46]
This failure to give
due consideration to that documentary evidence ties in with two other errors
allegedly made by the Board Member and which relate to the willingness of the
state to afford protection.
[47]
First, counsel for
the applicant contended that the Board Member erred in speculating as to the
isolated nature of Private Barry Winchell murder, which took place in 1999. This
murder was clearly a watershed moment in the long struggle of gay, lesbian and
bisexual persons to be fully accepted in the U.S. Army. On July 5, 1999,
Private Winchell was brutally beaten to death with a baseball bat while
sleeping outside his barracks room at Fort
Campbell, Kentucky. Soldiers later testified that Private Winchell had faced
daily anti-gay harassment for more than four months prior to his murder, on the
basis of rumors that he was gay (“Conduct Unbecoming: Sixth Annual Report on
“Don’t Ask Don’t Tell, Don’t Pursue, Don’t Harass” by Servicemembers Legal
Defence Network, 2000; Exhibit “8” to the applicant’s affidavit).
[48]
When evaluating the
affidavit evidence of Mr. Rehkopf, the Board Member made the following finding:
151.
Mr. Rehkopf suggests further that because the US Army could not protect Private
First Class Barry Winchell, and a host of other gay and lesbian service members
who have been subjected to vicious attacks and murder, that this is “clear and
convincing” evidence of the state’s inability to protect the claimant.
152.
I do not accept his “opinion” as credible. The Winchell murder was no doubt a
brutal act but an isolated one. Although Mr. Rehkopf makes no mention as to
whether the perpetrator or perpetrators of that act were charged and convicted
of killing Winchell. I suspect they must have been and were sentenced to
lengthy periods in prison and subjected to other severe penalties.
[49]
This was clearly a
speculative finding that was not open to the Board Member in the absence of any
evidence to support it. The Federal Court of Appeal held, in Canada (Minister of Employment and Immigration)
v. Satiacum,
[1989] F.C.J. No. 505; 99 N.R. 171, that findings cannot be based upon evidence
that is the “sheerest conjecture or the merest speculation”. The Court
delineated the difference between speculation and reasonable inference by
stating:
The
dividing line between conjecture and inference is often a very difficult one to
draw. A conjecture may be plausible but it is of no legal value, for its
essence is that it is a mere guess. An inference in the legal sense, on the
other hand, is a deduction from the evidence, and if it is a reasonable
deduction, it may have the validity of legal proof. The attribution of an
occurrence to a cause is, I take it, always a matter of inference.
See
also: Hassan Bedria Mahmoud v. Canada
(Minister of Citizenship and Immigration), [1996] F.C.J. No. 250; 61 A.C.W.S.(3d) 768, at para. 7; Bains
v. Canada (Minister of Citizenship and
Immigration), [1998]
F.C.J. No. 1144, at para. 12.
[50]
There was simply no
evidence before the Board Member to support his finding that the brutal murder
of Private Winchell was an isolated incident, or that those who harass,
threaten or physically harm or kill gays and lesbians in the military are
severely punished. Quite to the contrary, the applicant submitted evidence that
was to the opposite effect: namely, that the harassment and violent attacks on
gays and lesbians in the Army is systemic and commonplace in the American
military, and that immediate supervisors and unit commanders tolerate or are
believed to tolerate that behaviour to some extent.
[51]
In a report
commissioned by the Center for the Study for Sexual Minorities in the Military
(“The Practical and Conceptual Problems with Regulating Harassment in a
Discriminatory Institution”, U. of California, 2004; Exhibit 5 to the
applicant’s affidavit), to which the Board Member refers extensively in his
reasons, it is indicated that the top of the chain of Command at Fort Campbell
did not issue a single statement condemning anti-gay conduct following Winchell’s
murder, and even denied its existence. This senior ranking officer blamed the
increase in gay discharges on gays seeking a means to leave the Army, but was
nevertheless promoted to Lieutenant General, the second highest position in the
Army. These specific findings are reported by the Board Member at paragraphs 84
and 85 of his reasons.
[52]
But it was not
sufficient to summarize the evidence presented by the applicant. The Board
Member should have addressed that evidence and discussed it in his reasons, and
could not content himself with speculations that Private Winchell murder was just
an isolated incident. This was all the more important since the applicant had
pointed out to the Board Member that she and Private Winchell not only shared a
perceived identity in sexual orientation, but that they were both based at Fort Campbell. She also provided evidence that she
received threats that she would be beaten with a baseball bat in her sleep,
just like Private Winchell. It was incumbent upon the Board Member, in making
his finding that Private Winchell’s murder was an isolated incident, to
indicate why he did not accept evidence to the opposite effect.
[53]
This speculative
finding of the Board Member is not innocuous. First of all, the evidence offered
by the applicant goes a long way to establishing her subjective fear of
persecution as well as the threat to her life. That evidence was also crucial
to substantiate the objectiveness of her fear, and the ability and willingness
of the state to protect her. One must not loose sight of the fact that the
applicant could be returned to her unit and face the same threats that she had faced
before pending determination of the measures to be taken against her. Accordingly,
I am of the view that the Board’s failure to explain why this evidence was
rejected was material to its decision. It is true that the Board Member summarized
at some length the evidence offered by the applicant, but he has by no means considered
it, let alone analyzed it and provided reasons for dismissing it.
[54]
The Board Member made
a second error when he relied on evidence not before him and failed to give the
applicant an opportunity to respond to that extrinsic evidence. Without even
mentioning his sources, the Board Member wrote:
While
punishment for desertion can include imprisonment, the evidence indicates that
the majority of Army deserters in the United States, for whatever reason, have
not been prosecuted or court-martialed and that 94 percent of deserters have
been dealt with administratively and merely received a less-than honorary
discharge from the military.
[55]
This evidence was
clearly not before the Board Member, and appears to come directly from the
decision of the Federal Court of Appeal in Hinzman (at paras. 48 and
58). The respondent submits that the Board could take notice of any generally
recognized facts and any information or opinion that is within its specialized
knowledge. There are, however, a number of problems with such a line of
argument.
[56]
First of all, I do
not think this is the kind of facts the Board could take “judicial notice” of. The
test to determine whether a particular fact can be considered by a court
without any proof has been well summarized in the doctrine:
Judicial
notice is the acceptance by a court, without the requirement of proof, of any
fact or matter that is so generally known and accepted in the community that it
cannot be reasonably questioned, or any fact or matter that can readily be
determined or verified by resort to sources whose accuracy cannot reasonably be
questioned.
[…]
Judicial
notice dispenses with the need for proof of facts that are clearly
uncontroversial or beyond reasonable dispute. Facts judicially noticed are not
proved by evidence under oath. Nor are they tested by cross-examination. Therefore,
the threshold for judicial notice is strict: a court may properly take judicial
notice of the facts that are either: (1) so notorious or generally accepted as
not to be the subject of debate among reasonable persons; or (2) capable of
immediate and accurate demonstration by resort to readily accessible sources of
indisputable accuracy.
Paciocco
& Stuesser, The Law of Evidence, 4th ed., Toronto, Irwin Law, 2005, at p. 376.
[57]
While rules of
evidence must be relaxed before administrative tribunals, I do not believe that
this should be taken as license to accept in evidence controversial facts that
have not been argued at all, especially when these facts can be of material
significance for the outcome of a case of such vital importance for an
applicant. The assertion that 94 percent of deserters have been dealt with
administratively is not “clearly uncontroversial or beyond reasonable dispute”.
Nor is it a fact that “is so generally known and accepted in the community” or
can “readily be determined or verified” by indisputable sources.
[58]
Assuming that this
kind of information could be considered within the specialized knowledge of the
Board, the applicant should have been advised that the Board intended to use
that knowledge and be given an opportunity to respond. Rule 18 of the Refugee
Protection Division Rules (S.O.R./2000-228) provides as follows:
|
Notice to the parties
18.
Before using any information or opinion that is within its specialized
knowledge, the Division must notify the claimant or protected person, and the
Minister if the Minister is present at the hearing, and give them a chance to
(a) make
representations on the reliability and use of the information or opinion; and
(b) give evidence in
support of their representations.
|
Avis aux parties
18.
Avant d’utiliser un renseignement ou une opinion qui est du ressort de sa
spécialisation, la Section en avise le demandeur d’asile ou la personne
protégée et le ministre — si celui-ci est présent à l’audience — et leur
donne la possibilité de :
a)
faire des observations sur la fiabilité et l’utilisation du renseignement ou
de l’opinion;
b)
fournir des éléments de preuve à l’appui de leurs observations.
|
[59]
Commenting on this Rule, this Court wrote
in Isakova v. Canada (Minister of Citizenship and Immigration), 2008 FC 149, at para. 16:
The
purpose of Rule 18 is to enable a claimant to have notice of the specialized
knowledge and to give him or her the opportunity to challenge its content and
use in reaching a decision. Therefore, in order for Rule 18 to be effective,
the RPD member who declares specialized knowledge must place on the record
sufficient detail of the knowledge so as to allow it to be tested. That is, the
knowledge must be quantifiable and verifiable.
See
also: Habiboglu v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1664; Sadeghi-Pari v. Canada (Minister of Citizenship and
Immigration), 2004 FC
282; Panuk v. Canada (Minister of Citizenship and
Immigration), 2003 FC
1187.
[60]
In the case at bar,
the Board Member did not give notice to the applicant that he had specialized
knowledge with regards to the fact that 94 per cent of deserters are dealt with
administratively, and that he intended to rely on that information. He did not
provide the source of that information either, and the applicant was not
afforded an opportunity to respond thereto.
[61]
In any event, I do
not think that this particular information can be characterized as falling
within the specialized knowledge of the Board. The explanation, it seems to me,
is more prosaic: the Board Member simply "lifted" a finding made in a
previous decision. This is clearly not acceptable, as it is well established
that a finding of fact must always based on the evidence submitted to the
decision-maker. As this Court has repeatedly stated, each case must be decided
on its own facts. Nowhere is this rule clearer than in matters pertaining to
state protection. It has been held time and again that it cannot be
conclusively determined, on the basis of previous findings of state protection
(or lack thereof) pertaining to a particular case, that state protection
exists or does not exist in a particular country. The correct approach has been
expressed as follows:
Second, it was not sufficient for the
Board to simply "refer" to an earlier decision of the Board for its
state protection analysis. The RPD may, as a matter of law, adopt another
panel's analysis or conclusion, but as I wrote in Olah v. Canada (Minister
Citizenship and Immigration), [2001] F.C.J. No. 623, at paragraph 25, a panel cannot
blithely incorporate findings of fact from other cases. In Badul v. Canada
(Minister of Citizenship and Immigration), [2003] F.C.J. No. 440, at
paragraph 25 my colleague Mr. Justice O'Reilly wrote that reliance upon the
findings of another panel must be "limited, careful and justified".
In Ali v. Canada (Minister Citizenship and Immigration),
[2004] F.C.J. No. 1755, I found that the RPD could adopt the reasoning and findings of another case with respect to
similarly situated people in Pakistan where satisfied that the facts and
evidence regarding country conditions in the earlier case were sufficiently
close to the facts and evidence before the RPD in the second case.
Shahzada
v. Canada (Minister of Citizenship and
Immigration) 2005 FC
1176, at para. 6. See also: Hassan v. Canada (Minister of Citizenship and
Immigration), 2005 FC
601, at paras. 6-7; Santiago v. Canada
(Minister of Citizenship and Immigration) 2008 FC 247; Arellano v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1265.
[62]
It is worth pointing
out that in Hinzman, counsel for the appellant disputed the statistics
relating to punishment for deserters on the basis that they were compiled prior
to the commencement of the most recent U.S. military action in Iraq. The Court of Appeal nevertheless accepted the evidence
indicating that the vast majority of Army deserters had not been prosecuted or
court-martialed because the appellants could not point to any contrary
evidence. The Court was also of the view that there was reason to believe the
statistics would not have changed materially following the outbreak of the war,
since it is in the best interests of the military to accommodate those who
object to combat as they may be ineffective at best and are likely to spread
their beliefs among their colleagues.
[63]
In the present case,
the applicant submitted documentary evidence revealing sentencing disparities
for those convicted of desertion and going AWOL (Exhibit 18 to the affidavit of
the applicant). As well, the applicant offered evidence that the military was
not discharging those identifying themselves as gay or lesbian at the same
rates as in the past, including a chart showing recent statistics indicating a
significant decrease in discharges of gays and lesbians since 2001, as well as
documentary evidence explaining that such decrease was due to the need for more
personnel for the wars that the United States is engaged in. Not only does this
evidence tend to refute the finding in Hinzman, but it also addresses a
different fact situation than that examined in that case.
[64]
In the light of the
evidence that was before him and that had not been offered in Hinzman,
and considering that the applicant was claiming refugee status not on the basis
of her conscientious objection to the war but on the ground of her sexual
orientation, the Board Member could not merely base his decision on a finding
made in another context. It was incumbent upon him, at the very least, to
provide reasons as to why he nevertheless adopted that finding and discounted
the evidence tending to invalidate it submitted by the applicant. I therefore
find that the Board Member came to an unreasonable conclusion since he followed
blindly a finding taken from another decision and grounded on a completely
different evidentiary basis.
[65]
In view of these two
errors (speculating about the isolated nature of Private Winchell murder and following
a finding in Hinzman that 94 per cent of deserters are dealt with
administratively), the argument that speculation is not enough when claiming that
state protection could not reasonably have been forthcoming cannot defeat the
applicant's claim. In Hinzman, it will be remembered, the Court held
that no evidence had been offered to establish that the appellants would not be
afforded the full protection of the law. In the case at bar, while the
applicant had (according to Hinzman) a heavy burden of proof with
respect to the presumption that the United States is capable of protecting her,
she did provide evidence (both in her own affidavit and testimony and in a
plethora of documents) in support of her allegations.
[66]
As a result, I am of
the view that the Board Member erred in two respects in determining whether the
applicant had an objective basis for her fear of persecution. First, he did not
take fully into account the evidence pertaining to the situation of gays and
lesbians in the U.S. Army in order to determine whether the applicant made an
adequate attempt to avail herself of the protection afforded in her country. Second,
the Board Member erred in weighing that evidence, and thus drew two unwarranted
conclusions therefrom. These two errors were material in the Board Member’s
decision. Even assuming the applicant could have pursued further her request to
be discharged, it was still open to her to demonstrate that she could not be
required to seek out state protection since it was unlikely to be forthcoming. In
failing to properly assess the evidence before him, the Board Member precluded
that line of reasoning.
B)
Did the Board Member err in finding that the applicant would be submitted to
prosecution and not to persecution?
[67]
Although not required
to do so, in view of his ruling as to the adequacy of state protection, the
Board Member nonetheless did proceed to examine the applicant’s claim that the
application of the Uniform Code of Military Justice upon her return to the United States would result in persecution. To
establish this claim, the applicant had to show that the relevant provisions of
the UCMJ would be applied to her in a discriminatory fashion or would result in
cruel and unusual punishment or treatment.
[68]
To support her
allegations in this respect, the applicant relied principally on the affidavit
of Mr. Rehkopf, an attorney at law who had 32 years of military law experience
both as prosecutor, defence counsel and acting Staff Judge Advocate. Yet, after
reviewing Mr. Rehkopf’s evidence (with which he disagreed on a number of points),
the Board Member questioned his credibility in the following manner:
173.
I find of interest that Mr. Rehkopf states in his affidavit that he entered
active duty in the Air Force in 1976 as a Judge Advocate;
“[…]
that he served in active duty from 1976 to 1981 as an Assistant Staff Judge
Advocate […] and he has 32 years “military law experience” as a prosecutor,
defense counsel and Acting Staff Judge Advocate. He has tried in excess of 225
cases to a verdict. The majority of them being military courts-martial […]”
174.
He does not indicate
how many times he acted as the prosecutor in those 225 plus cases. If Mr.
Rehkopf was so concerned about the inequities of the military justice system in
so far as it relates to homosexuality in the armed forces, one wonders why, if
he acted as a prosecutor in such military claims, that he was able to control
his emotions or continue on with those prosecutions of deserters (assuming that
some of the members included issues of homosexuality) in light of what he now
says about the injustices and Draconian sentences handed out by the
Court-Martial judges in situations in which the claimant now finds herself in.
[69]
This unfavourable finding
as to credibility is problematic in a number of ways. The respondent is correct
to point out that Mr. Rehkopf was not qualified as an expert by the Board, and
had no firsthand knowledge of the applicant or of her exact circumstances. That
being said, I am of the view that his affidavit was not just a lay opinion
which the board could reject without providing reasons for doing so. Mr.
Rehkopf obviously had a long experience as a military lawyer and has acted as
defense counsel, prosecutor and judge for many years. It was open to the Board,
of course, to prefer other evidence to that provided by Mr. Rehkopf. The
problem is that the Board Member discounted his experience and expertise
without providing reasons or referring to adverse evidence. Indeed, there was
no evidence whatsoever before the Board refuting the evidence of Mr. Rehkopf.
[70]
The Board Member
aptly noted that Mr. Rehkopf made some assumptions in his affidavit which must
be dismissed as speculative. This is a fair comment, although he offered only
one single example of such an assumption. It might have been helpful if he had
specified those other assumptions which he found unwarranted, as there is
obviously a fine line between offering an opinion and making unsubstantiated
assumptions. Moreover, the Board Member himself engaged in speculation (when he
stated that the murder of Private Winchell was an isolated act) to attack Mr.
Rehkopf’s credibility. Similarly, he seemed to assume that the “Don’t Ask,
Don’t Tell” policy, if challenged, would be declared unconstitutional. Not only
is this assumption, at best, highly questionable (the Board Member offers no
legal analysis to support that view), but it is irrelevant to determine how the
applicant would be treated, in the meantime, if returned to the United States. Finally, he quoted from a newspaper
article published after the hearing, according to which President Obama was
expected to repeal the “Don’t Ask, Don’t Tell” policy, and inferred that this
would “sweep away” most if not all of the ammunition presently used by
prosecutors in U.S. court-martials in situations similar to
those the applicant finds herself in. Once again, this reference was totally
inappropriate as it was purely speculative and did not change the law as it
stood at the time the Board Member rendered his decision.
[71]
The only reason
provided by the Board Member to dismiss Mr. Rehkopf’s affidavit is the apparent
inconsistency between the position he now takes and the fact that he worked as
a prosecutor in cases of desertion. While this may validly raise questions as
to the motives underlying Mr. Rehkopf’s testimony, it is not sufficient, in and
of itself, to undermine his opinions. In fact, one could even argue that it
makes his opinion all the more compelling, since he had the advantage of seeing
firsthand not only what the black-letter law is but how it operates in
practice. Mr. Rehkopf was never cross-examined on his affidavit, and so we will
never know how he reconciled the views expressed in his affidavit with his past
work experiences. It may well be, for example, that he never had to deal
personally with prosecutions of deserters involving issues of homosexuality,
contrary to the groundless assumption made by the Board Member. I am therefore
of the view that this attack on his credibility was totally inappropriate, and was
based, at least in part, on pure speculation.
[72]
Counsel for the
respondent suggested that the opinion of Mr. Rehkopf was dismissed because he
did not exhibit the degree of impartiality and objectivity necessary to render
his testimony reliable, assuming instead the role of an advocate. Using the
same example as the Board (i.e. Mr. Rehkopf’s assumption that the applicant
will not be paid for a considerable time because her pay records will have been
“lost” and that she would be treated worse than drug dealers), counsel argues
that Mr. Rehkopf’s affidavit is that of an advocate as it is replete with
speculations and conjectures.
[73]
Having read carefully
the affidavit of Mr. Rehkopf, I am not prepared to go that far. As previously
mentioned, it is the role of an expert to offer an opinion on the basis of
inferences drawn from the facts. Of course, the accuracy and reliability of the
underlying facts on which the opinion is based will be crucial in determining
the weight to be given to expert evidence. In the case at bar, the Board Member
not only found the applicant’s story credible, but failed to refute the facts
upon which the opinion of Mr. Rehkopf was based by referring to adverse evidence.
While some comments made by Mr. Rehkopf could properly be given little weight
as they verged on advocacy, this was clearly not sufficient to justify the
outright rejection of his affidavit altogether.
[74]
There is another,
perhaps more fundamental, problem with this argument. Nowhere in his reasons
did the Board Member offer such an explanation for rejecting Mr. Rehkopf’s
evidence. It is trite law that on judicial review, it is the reasons provided
by the Board that are to be reviewed; there is no room for ex post facto
rationalization of the decision offered by the party wishing to have that
decision upheld.
[75]
The same can be said
with respect to the further argument made by the respondent that Mr. Rehkopf’s
opinion constituted a pronouncement on the questions that were to be ruled on by
the Board, such as the availability of state protection and persecution versus
prosecution. The Board Member quite correctly remarked that it was for him, and
not for Mr. Rehkopf’s, to draw the line between prosecution and persecution in
the application of the UCMJ. Similarly, it was open to him to find that, as a
law of general application, the UCMJ is applied in a non-discriminatory fashion
and to reject Mr. Rehkopf's opinion in that respect. But nowhere did he write
that he dismissed the affidavit in its entirety because Mr. Rehkopf expressed
an opinion on the mode of application of domestic law. Indeed, that would have
been excessive.
[76]
Mr. Rehkopf did not
offer an opinion as to whether the applicant is a refugee under Canadian law. He
did not purport to state categorically that the applicant would be persecuted
if she were to return to the United
States either. Quite to the
contrary, he acknowledged that it is not an easy task to draw the line between
prosecution and persecution, and simply described the situation that she would likely
face when she returned (see pp. 20 and 21 of his affidavit, Exhibit 20 of the
applicant affidavit). He also offered his opinion, based on American, Canadian
and European law, that the situation that Ms. Smith would face due to her
sexual orientation is of the sort condemned by the international community as
contrary to basic rules of human conduct. I fail to see how these views stray
from the appropriate purview of expert opinion. Mr. Rehkopf stayed clear of expressing
an opinion on the ultimate question to be ruled on by the Member.
[77]
As for the views he
expressed with respect to the decisions of this Court and the Federal Court of
Appeal in Hinzman, they were not inappropriate either. It is true that
domestic law is not a subject about which a Canadian court will receive opinion
evidence: see R. v. Graat, [1982] 2 S.C.R. 819; Ugbazghi
v. Canada (Minister of Citizenship and
Immigration), 2008 FC
694, at para. 27. But that is not what Mr. Rehkopf did in his affidavit. He was
well aware of that danger, and he went out of his way to emphasize that he was
not attempting to provide legal advice concerning Canadian law (see footnote 11
of his affidavit). In fact, he purported to apply the requirements spelled out
in Hinzman with respect to state protection, and merely rejected the
view that the UCMJ, even though it is in theory a law of general application, is
always applied in a non-discriminatory fashion, first because the black-letter
law is one thing and the application thereof may be a quite different one, and
second because it only applies to persons having actual military status. These
are opinions as to facts that do not detract from the legal principles espoused
by this Court and the Court of Appeal in Hinzman and that he was
entitled to make on the basis of his experience and expertise in American
military law.
[78]
Having dismissed the
evidence presented by Mr. Rehkopf, the Board Member cited the decision of the
Federal Court of Appeal for the proposition that the UCMJ is a law of general
application that is applied in a non-discriminatory fashion, and also found
that there was no credible evidence that the applicant would not receive a fair
hearing upon her return to the United States. Considering the evidence that was
before him, I do not think that this was a finding that was reasonably open to
him.
[79]
The duty of the
Board was to determine whether the applicant would face persecution should she
be returned to her country. Paragraph 167 of the UNHCR Handbook states that
“[f]ear of prosecution and punishment for desertion or draft-evasion does not
in itself constitute well-founded fear of persecution under the definition”. But
paragraph 168 goes on to say:
The
person is clearly not a refugee if his only reason for desertion or
draft-evasion is his dislike of military service or fear of combat. He may,
however, be a refugee if his desertion or evasion of military service is
concomitant with other relevant motives for leaving or remaining outside his
country, or if he otherwise has reasons within the meaning of the definition,
to fear persecution.
[80]
One of the exceptions
outlined by the Handbook is found at paragraph 169 and refers to an applicant
who can establish some form of discriminatory mistreatment before, during or
even after military service. The Federal Court of Appeal implicitly referred to
that exception in Hinzman, at paragraph 31:
Finally,
the Board considered whether the punishment the appellants would face upon return
to the United States would amount to persecution. To
establish this claim, the Board indicated that the appellants would have to
show that the relevant provisions of the U.S. Uniform Code of Military Justice
(“UCMJ”) would be applied to them in a discriminatory fashion or would amount
to cruel or unusual treatment or punishment.
[81]
In that case, the
Court of Appeal eventually held that the UCMJ is a law of general application
applied in a non-discriminatory fashion. But that finding was made in a context
where there were many provisions and procedural safeguards designed to ensure
that conscientious objectors can claim exemptions from military service or
alternatives to combat, as is made clear at paragraph 47 of that decision.
[82]
The applicant’s claim
is not simply that she is a conscientious objector and that she will be
punished if she returns. At the heart of the applicant’s claim is that she is a
lesbian member of the U.S. Army, who was harassed and threatened at the same
base where a gay member of the Army was beaten to death, and who feels she
could not rely on her superiors to secure protection. She fears that she could
be punished for leaving an environment where her life is in danger.
[83]
The duty of the Board
Member was to determine whether she would suffer persecution as a result of the
relevant substantive law or of the process whereby the law would be applied to
her. It was not enough for the Board Member to state that he is “not in a
position to defend or criticize”. It is part and parcel of the assessment of a
refugee claim to determine whether a claimant has a well-founded fear of
persecution for reasons, inter alia, of her membership in a particular
social group, if he/ she is returned to his/her home country.
[84]
The applicant
provided evidence to the Board that the punishment she would be exposed to
under the court-martial process relates to a breach of a law that is in
conflict with a fundamental human right and therefore adversely differentiates
on a Convention ground in its application. In particular, the applicant is at
risk of being court-martialed for the following crimes: “Absent Without Leave”,
“Desertion”, “Desertion to avoid hazardous duty” and/or “Indecent Act” (for
engaging in homosexual behaviour) punishable under the UCMJ. Yet, there was
evidence before the Board Member that the Supreme Court of the United States has declared unconstitutional a state statute
making it a crime for two adults of the same sex to engage in consensual
“sodomy”. The UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation
and Gender Identity (Exhibit 35 of the applicant’s affidavit) also provides that
acts of physical, sexual and verbal abuse and discrimination against gays and
lesbians, when they go unpunished, may form the basis of a refugee claim. Similarly,
this Note adds that “[b]eing compelled to forsake or conceal one’s sexual
orientation and gender identity, where this is instigated or condoned by the
State, may amount to persecution” (at para. 12). This evidence could not simply
be ignored by the Board Member and had to be properly discussed and analyzed
before he could conclude that the UCMJ was a law of general application and
applied in a non-discriminatory fashion.
[85]
The Federal Court of
Appeal has also recognized that an applicant may qualify as a Convention
refugee even if it is ruled that a law is prima facie of general application. This
might be the case, for example, if the law is selectively applied, or if the
punishment or treatment provided for in a law of general application is out of
all proportion to the objective of the law: see Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C.
314, at paras. 16-17. The recent decision of this Court in Rivera v.
Canada (Minister of Citizenship and
Immigration), 2009 FC
814, provides a useful and vivid illustration of this principle. Accordingly,
the Board Member could not ignore the evidence suggesting unequal treatment for
homosexuals before court-martials, both in the exercise of the discretion to
prosecute and in the sentencing. Similarly, there was evidence both in the
documentation before the Board Member and in the affidavit submitted by Mr. Rehkopf
to the effect that military judges are not independent as they are part of the
chain of command and depend upon superior officers for promotions and
subsequent assignments, that convening authorities determine whether a member
of the military will be prosecuted and select potential jurors, and that there
is no uniform or consistent method by which sentences are imposed on military
personnel convicted of AWOL or desertion. While these assertions appear to
contradict the findings of the Board and of the Federal Court of Appeal in Hinzman,
it must be remembered that these findings of fact were made on the basis of the
evidence that was submitted by the parties in that case. In fact, the Court of
Appeal noted in Hinzman (at para. 49) that there was no evidence before
the Board to the effect that the military judges are not independent or that
the procedure by which the law would be applied to the applicant is
discriminatory. Furthermore, Hinzman was decided in the specific context
of a claim based on conscientious objection and not on sexual orientation. It
was therefore the duty of the Board Member to assess the fairness of the court
martial process in the light of the particular set of facts and of the evidence
that was before him.
[86]
Pausing there, it seems to be commonly assumed to be
inappropriate for this Court, or for that matter any other Canadian court or
administrative tribunal, to rule on the constitutionality of a foreign statute
or its compatibility with our own Charter of Rights and Freedoms. However,
there is authority for the proposition that a national court can indeed rule on
the constitutionality of a foreign statute, when proper evidence has been
adduced either supporting or attacking the validity of a statute, and when the
issue of constitutionality arises incidentally in the course of the litigation:
see Estonian Cargo and Passenger S.S. Line v. S.S. Elise
and Messrs. Laane and Baltser, [1948] Exch. C.R. 435, at 451; and more recently Hunt
v. T&C plc, [1993] 4 S.C.R. 289, at paras. 28-32. In the case
at bar, the issue of the constitutionality of the relevant provisions of the
UCMJ has not been argued by the parties. Moreover, the
resolution of that question is not necessary to the disposition of this case in
a judicial review context. I shall therefore refrain from making a ruling on
that question. That being said, even if restraint is called for when it
comes to the constitutionality of foreign legislation, the Board nevertheless
had a duty to determine whether the UCMJ was, even though it is prima
facie a law of general application, enforced in a non-discriminatory fashion in
the United States, both substantively and procedurally.
[87]
As a result of the
foregoing, I come to the conclusion that the Board Member erred in finding not
only that the applicant had failed to present clear and convincing proof of the
inability of the United States to protect her, but also that she had not met her
burden of establishing a serious possibility of persecution on a Convention
ground or that it is more likely than not that she would be tortured or face a
risk to her life or risk of cruel and unusual treatment or punishment upon
return to the United States. In view of the cumulative effect of the Board
Member's errors in the assessment of the evidence that was before him, his
conclusions are unreasonable.
[88]
The applicant has
proposed the following two questions for certification:
i.
Where an Applicant
requests the Board Member to evaluate evidence rebutting the presumption that
the judicial process or laws the Applicant would be subject to in her home
country are not laws of general application and therefore persecutory, does the
Board Member have an obligation to address it when making findings of state
protection?
ii.
Does the Board Member
have an obligation to provide an analysis supported by evidence that trained,
professional observations brought to the Board by an expert are not credible?
[89]
It is to be noted
that the applicant proposes these questions only in the event she is
unsuccessful in her judicial review. I agree with the respondent that this is a
highly unusual and inappropriate way of proceeding; if a question is truly a
question of general importance determinative of an appeal, its certification
should not hinge upon the success or failure of one of the parties.
[90]
That being said, the
rationale offered by the applicant in support of the certification of her two
proposed questions reads more like a further argument on the application for
judicial review than as a true justification for bringing these issues to the
Court of Appeal. As I have already canvassed in my reasons all the points
raised by the applicant in her submissions relating to these proposed
questions, no additional comments are called for. Suffice it to say that they
do not meet the criteria set out in Canada (Minister of Citizenship and
Immigration) v. Liyanagamage
(1994), 176 N.R. 4. As for the distinction between prosecution and persecution
and the issue whether a given law that is prima facie of general
application is in fact susceptible of discriminatory enforcement, the law has
already been expounded by the Federal Court of Appeal in a number of decisions
and need not be revisited in the context of the case at bar. What makes this
case somewhat unusual is not so much the legal principles at stake, but the
facts on which it turns. As such, the proposed questions are not of the kind
that transcends the interests of the immediate parties. For this reason, I
decline to certify them.
ORDER
This application for judicial
review is allowed. No question of general importance is certified.
"Yves
de Montigny"
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