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Federal Court
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Cour fédérale
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Date: 20090608
Docket: IMM-5148-08
Citation: 2009
FC 594
Ottawa, Ontario, June 8, 2009
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
DALE GENE LANDRY
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Dale Gene
Landry, a member of the United States Air Force, refused to be deployed to Iraq. While in the midst of disciplinary
proceedings, he fled to Canada where he sought refugee
protection. He believed he would be ordered to commit illegal and immoral acts
against Iraqi civilians and would be persecuted, not merely prosecuted, for
failure to obey. Having now deserted because of his political beliefs and
public proclamation thereof, he also fears that if returned to the United States he would be treated more
harshly than other deserters.
[2]
The
Refugee Protection Division (RPD) of the Immigration and Refugee Board dismissed
his claim. It was of the view that he did not take all reasonable steps in the
circumstances to pursue available state protection, and that there was no
persuasive evidence he would be treated more harshly because he had spoken publicly
to the media about his opposition to the war in Iraq.
[3]
In this
judicial review of that decision, Mr. Landry submits that the Board made state
protection findings without regard to the evidence before it. It failed to
consider whether his claim fell within paragraph 171 of the United Nations
Handbook on Procedures and Criteria for Determining Refugee Status
(UNHCR). Although the Handbook provides that it is not enough for a person to
be in disagreement with his or her government regarding the political
justification of, or for, a particular military action, it goes on to say: “...Where,
however, the type of military action, with which an individual does not wish to
be associated, is condemned by the international community as contrary to basic
rules of human conduct, punishment for desertion or draft-evasion could, in the
light of all other requirements of the definition, in itself be regarded as
persecution.”
Furthermore, the Board applied the wrong test for determining whether a law of
general application,
i.e. the law which punishes desertion, was being applied in a persecutory
manner.
THE FACTS
[4]
In July
2003, just two days after his 18th birthday and fresh out of high
school, Mr. Landry joined the United States Air Force Reserve. He later enlisted
in the regular U.S Air Force. Subsequent events led him to oppose the
multinational military action in Iraq.
He considered that some of the tactics used by the U.S. Forces were contrary to
international law and were immoral. He pursued a number of avenues which could
have led to his early separation from the Armed Forces, or at least given him
the status of a conscientious objector. His efforts were unsuccessful.
[5]
When he
learned that his unit was going to be deployed to Iraq, he told his Commanding Officer he would
not go. This led to an administrative disciplinary hearing, which he hoped
would result in his discharge. However, following the hearing, but before
sentence, the Commanding Officer told his JAG lawyer that he would be punished
and then sent to Iraq anyway. He decided to absent himself
without official leave and came to Canada.
[6]
At the
beginning of the hearing before the RPD, the deciding member stated there were
two issues: credibility and state protection. The member did not consider it
necessary to rule on credibility because of his views of state protection. I nevertheless
infer that Mr. Landry was credible in that what he stated happened did happen and
that what he said he was told he was told. However, it does not follow that
there was any basis in fact for his fear that, if deployed in Iraq, he would be given illegal orders.
[7]
There were
a number of events leading up to Mr. Landry’s desertion. In March 2004, he left
on a mission said to be to Germany. While in the air they were
told they were going to Afghanistan on an extraction mission. They
removed six detainees and their captors from Afghanistan and then transferred them somewhere in
Europe. He assumes that the detainees were Afghani and were taken to Guantanamo, Cuba. Nevertheless he enlisted for active
duty several months later.
[8]
He then
came to disbelieve the declared reason for the invasion of Iraq, the presence
of weapons of mass destruction, and learned that the United Nations had not
sanctioned the presence of the multinational forces in Iraq.
[9]
Two defining
events were the Abu Ghraib prison scandal relating to the mistreatment of
detainees, and stories recounted to him by a good friend who had served in Iraq. As a member of a patrol unit, he would
be instructed to kick down doors of civilians in the middle of the night, and seize
and detain any male who appeared to be more than 14 or 15 years of age. His
friend then committed suicide.
[10]
Thereafter,
his Squadron Commander ordered him to consult the base psychiatrist, which he
did over a period of a few years. His understanding is that the psychiatrist,
or perhaps he was a psychologist, recommended that he be discharged as being
unfit for military service, but his view did not prevail.
[11]
He applied
for early separation under what was called the Force Shaping Program, as there
was an overabundance of personnel. This application was rejected, which he accepts
as his particular unit was short-staffed and because there was a demand for
those with his training as an air transport specialist.
[12]
He filed a
harassment charge which went nowhere.
[13]
He applied
for conscientious objector status but was turned down. He did not pursue the
matter beyond his own base, believing that he did not qualify as he was not a
pacifist opposed to all wars. In fact, at his RPD hearing he testified: “I am
not debating the legality of the war itself, I am debating the legality of this
particular action.”
[14]
There
would have been two aspects to his duties in Iraq. When not engaged as an aircrew member,
he would be required to join army and marine combat crews. In his mind there
was a great possibility that he, like his friend, would be called upon to kick
down doors of civilians, detain those who looked to be above the age of 14 or
15, handcuff and blindfold them, and then render them out of the country.
[15]
He
considered that such orders would be illegal, all contrary to various Geneva conventions. He also challenges
the legitimacy of the United States Patriot Act.
[16]
Upon
expressing his intent not to deploy to Iraq, he was charged with missing a military
movement and failure to follow a general order or regulation. There were a few
other charges as well, but he did not bring copy of the charge sheet with him
and does not recall what they were.
[17]
According
to his evidence, he had an option to either demand a trial by court-martial or
a hearing under Article 15 of the United States’ Uniform Code of Military Justice which is entitled Commanding
Officer’s Non-Judicial Punishment. If found guilty under the latter, the
commanding officer is entitled, in addition to or in lieu of admonition or
reprimand, to impose certain limited disciplinary punishments.
[18]
On the
advice of his JAG lawyer, he opted for Article 15 as even on a worse scenario
basis he would not be stained with a criminal record. If found guilty at a
court-martial, and he considered he would be found guilty, he assumed that at
the very least he would be dishonourably discharged, which would leave him with
a criminal record. In addition his punishment could be severe.
[19]
Having
opted for Article 15, he and his lawyer prepared and presented a written brief.
Essentially, it was a plea for clemency with the hope that he would be
discharged from the Air Force. This was on a Friday. On the Saturday, following
a discussion with the Commanding Officer, his lawyer told him that the Commander
was more than likely going to reduce him in rank, with a reduction to half pay
for three months, 30 days in “correctional custody” and then he would be sent
to join his unit in Iraq. He would not be discharged. Rather than await his
sentence, in July 2007 he left his base in Abilene, Texas and drove to Canada.
[20]
He now fears
persecution by the U.S. Military and also by huge segments of the American
population at large. He believes that in the United States even the most liberal of people who may
oppose the war dislike deserters. He has no doubt that if someone recognized him
on the street he would be assaulted and maybe even killed. The police would not
help him. “Even my own dad, you know, is pretty well… his words like pissed off
enough at me to come to blows…” He would be readily recognized because of
various speaking engagements, media interviews and his appearance in what is
called Resister Profiles. However, not a scintilla of evidence was
offered that he would not be afforded police protection.
THE RPD’S DECISION
[21]
Mr. Landry
submitted that because his claim fell within paragraph 171 of the UNHCR
Handbook, any punishment he would receive for desertion would, in and of
itself, amount to persecution. However, basing himself largely on the decisions
of Madam Justice Mactavish in first instance in Hinzman v. Canada (Minister
of Citizenship and Immigration), 2006 FC 420, [2007] 1 F.C.R. 561 and Hughey
v. Canada (Minister of Citizenship and Immigration), 2006 FC 421, 61 Admin
L.R. (4th) 159, and the decision of the Federal Court of Appeal in Hinzman
v. Canada (Minister of Citizenship and Immigration, Hughey v. Canada
(Minister of Citizenship and Immigration), 2007 FCA 171, 362 N.R. 1, the member
held that the legality of the military action was not in issue and that the
primordial issue was that of state protection.
[22]
The member
determined that he must address that issue first. Having concluded that Mr.
Landry had not rebutted the presumption of state protection with clear and
convincing evidence, he held it was not necessary to consider paragraph 171 of
the Handbook.
[23]
In a carefully
reasoned decision, he reviewed all the events preceding Mr. Landry’s desertion.
Mr. Landry had conceded that he had not pursued the avenues open to him to the
limit. As the member noted: “He did not allow the Article 15 application to
take its full course before he decided to leave the U.S.A. He still had legal avenues open to him,
including court-martial process and other legal steps up to and including certiorari
to the U.S. Supreme Court.”
[24]
With
respect to differential treatment, and affidavit evidence from similarly-placed
deserters, he pointed out that there was no evidence that they had not been
able to go through a legal process with proper safeguards and a neutral law of
general application. He found that there was no persuasive evidence that Mr.
Landry would be treated more harshly because he was publicly outspoken in his
opposition to the war in Iraq.
DISCUSSION
[25]
In my
opinion, the member was both correct in law and reasonable in his findings of
fact. Mr. Landry’s problem is that he has lost faith in America.
[26]
I do not
agree with the submission that the member had to assess the risk of persecution
on the scenario presented by Mr. Landry which was that he would receive illegal
orders to commit illegal acts upon Iraqi civilians. Hinzman got to the
Court of Appeal because Madam Justice Mactavish certified the following
question:
When dealing with a refugee claim
advanced by a mere foot soldier, is the question whether a given conflict may
be unlawful in international law relevant to the determination which must be
made by the Refugee Division under paragraph 171 of the UNHCR Handbook?
[27]
The Court
of Appeal found it unnecessary to answer that question. In speaking for the
Court, and basing himself upon the decision of the Supreme Court in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 153
N.R. 321, Mr. Justice Sexton said:
[42] 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 page 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. …
…
[62] In
conclusion, the appellants have failed to satisfy the fundamental requirements
in refugee law that claimants seek protection from their home state before
going abroad to obtain protection through the refugee system. Several protective
mechanisms are potentially available to the appellants in the United States. Because the appellants have not
adequately attempted to access these protections, however, it is impossible for
a Canadian court or tribunal to assess the availability of protection in the United States. Accordingly, the appellants’ claims for
refugee protection in Canada must fail.
[28]
Consequently,
the member was correct in not assessing what Mr. Landry might have been called
upon to do in Iraq. Such orders he might have
been given, and the repercussions of his refusal to obey, only became relevant
if it were found that the United
States was incapable
of protecting him.
[29]
The laws
of the United
States
pertaining to desertion are supposedly neutral and general in application. It
was not unreasonable for the member to hold that that presumption was not
ousted by affidavits from other deserters, or even indications that over time the
penalties have become harsher. In 2005, there were more than 4,000 desertions.
A handful of affidavits hardly forms the basis for a statistical analysis.
[30]
Although
judicial review was allowed in Key v. Canada (Minister of Citizenship and
Immigration),
2008 FC 838, 331 F.T.R. 137, that case is readily distinguishable. The Board
member in that case had put state protection aside, while Ward, reaffirmed
in this context by Hinzman, teaches us that state protection is the
prime consideration.
[31]
Another
decision of the Federal Court of Appeal directly on point is Ates v. Canada (Minister of Citizenship and
Immigration),
2005 FCA 322, 343 N.R. 234. Mr. Ates, a citizen of Turkey, was, unlike Mr. Landry, subject to
conscription. Turkish law did not allow for conscientious objectors. Madam
Justice Sharlow, speaking for the Court, answered the following certified
question in the negative:
In a country where military service is
compulsory, and there is no alternative thereto, do repeated prosecutions and
incarcerations of a conscientious objector for the offence of refusing to do
his military service, constitute persecution based on a Convention refugee
ground?
CERTIFIED QUESTION
[32]
Mr. Landry
proposes the following certified questions:
1.
What
sanctions, either official or unofficial, would constitute “punishment” and
therefore persecution in a claim for refugee protection falling under Article
171 of the UNHCR Handbook?
2.
When
assessing whether a claim for refugee protection is objectively well-founded
under section 171 of the UNHCR Handbook, is it permissible for the
decision-maker to address state protection without first identifying the risks
facing the claimant, from which he or she would require state protection?
[33]
I decline
to certify. As clearly stated by the Court of Appeal in Hinzman, above,
if there is adequate state protection, the UNHCR Handbook is irrelevant.
[34]
To revert
to Hinzman for a moment, following dismissal of his refugee claim, he sought
permission to apply from within Canada
for permanent resident status based on humanitarian and compassionate grounds.
Although his application was rejected, and the judicial review thereof
dismissed (2009 FC 415), on June 2, 2009, Mr. Justice Russell certified the
following question:
Can punishment under a law of
general application for desertion, when the desertion was motivated by a
sincere and deeply held moral, political and/or religious objection to a
particular war, amount to unusual, undeserved or disproportionate hardship in
the context of an application for permanent residence on humanitarian and
compassionate grounds?
However, it must be borne in mind that hardship considerations
in a humanitarian application are far less demanding than risk of persecution
considerations under ss. 96 and 97 of IRPA.
ORDER
THIS COURT ORDERS that:
1.
The
application for judicial review is dismissed.
2.
There is
no serious question of general importance to certify.
“Sean Harrington”
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