Date: 20090715
Docket: IMM-5011-08
Citation: 2009 FC 723
Ottawa, Ontario, July 15, 2009
PRESENT:
The Honourable Mr. Justice Lemieux
BETWEEN:
MICHEL CADET
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
Introduction and Facts
[1]
Michel
Cadet, a 40-year-old Haitian citizen, has applied for judicial review of a
decision by a member of the Refugee Protection Division (the panel), dated October 1, 2008,
which rejected his refugee protection claim on the ground that he was excluded
under the terms of paragraphs 1F(a) and 1F(c) of the Convention.
The panel limited its decision to the exclusion and therefore did not address
the question of whether Mr. Cadet had a well-founded fear of persecution by
his former SWAT unit or by the Chimères Lavalas, supporters of President Aristide.
[2]
Section
F of Article 1 of the Convention, which is set out in a Schedule to the Immigration
and Refugee Protection Act (IRPA), reads:
|
F. The provisions of this Convention shall not apply to
any person with respect to whom there are serious reasons for considering
that:
(a) he has committed a crime
against peace, a war crime, or a crime against humanity, as
defined in the international instruments drawn up to make provision in
respect of such crimes;
(b) he has committed a serious
non-political crime outside the country of refuge prior to his admission to
that country as a refugee;
(c) he has been guilty of acts
contrary to the purposes and principles of the United Nations.
|
|
F. Les dispositions de cette Convention ne seront pas
applicables aux personnes dont on aura des raisons sérieuses de penser
:
a) Qu’elles ont commis un crime contre la paix, un crime de
guerre ou un crime contre l’humanité, au sens des instruments
internationaux élaborés pour prévoir des dispositions relatives à ces crimes;
b) Qu’elles ont commis un crime grave de droit commun en dehors du pays
d’accueil avant d’y être admises comme réfugiés;
c) Qu’elles se sont rendues coupables d’agissements contraires aux
buts et aux principes des Nations Unies.
|
[3]
The
panel’s decision that the applicant is excluded is based on the following
facts:
(1) According to
his Personal Information Form (PIF), Mr. Cadet joined the Haitian National
Police (HNP) voluntarily in 1995 and left it in 2002. In 1996,
he joined the Groupe d’Intervention de la Police Nationale d’Haïti (the HNP
SWAT unit). On June 17, 2001, he was promoted to the
rank of Police Officer IV, and in August 2001, he became
one of the HNP SWAT unit’s six team leaders. The organization’s mission
is to engage in high‑risk activities, such as dealing with drug
trafficking and hostage-taking. According to Mr. Cadet, his team was specialized
in hostage situations.
(2) During the
night of October 28, 2002, the applicant was in charge of three other
SWAT unit officers and allegedly ordered them to barricade a roadway. They then
stopped and arrested four individuals who claimed to be working for President
Aristide. Two days later, they learned that the individuals had been released by
order of the President, who had been in power since February 2001.
Aristide was first elected President in February 1990, was exiled
for three years following the 1991 coup, and briefly returned to
power in 1994-95 before being replaced by René Préval in 1996.
(3) According to
Mr. Cadet, his problems stem from the October 28, 2002, incident:
(1) On November 2, 2002, the Central Zone police
superintendent to whom the team had allegedly handed over the arrested men was abducted;
and (2) the next day, the applicant and his team apparently saw armed men in
front of their barracks, including one of the four individuals they had
arrested. Since they had no means of standing up to the men, the team decided
to quit the SWAT unit and never returned to work. Mr. Cadet claims
that he hid and joined the resistance.
(4) On
November 6, 2002, officers from the SWAT unit allegedly came to his
home looking for him. Since he was not there, they wanted to know where he was
hiding.
(5) On August
15, 2004, after President Aristide had left, as the applicant was trying to
return to the capital in a Jeep, he was allegedly severely beaten and left for
dead by a group of Chimères Lavalas. Among them, he allegedly recognized one of
the individuals arrested on October 28, 2002. Thanks to some
people and to his parents, who happened to be passing by, he was saved.
(6) On August
28, 2004, the same group of Chimères, who had learned that the applicant
was still alive, allegedly went to his home in Cap Vert. Not finding him there,
they apparently battered and raped his sister. She then left the country for
the Dominican Republic. The applicant fled Haiti in early 2005 and ultimately
arrived in the United States in 2006. There, he claimed but was denied
asylum.
(7) Finally, on March
28, 2007, Mr. Cadet arrived in Canada and immediately claimed refugee protection.
Minister’s Intervention
[4]
On
September 27, 2007, a representative of the Minister of Public
Safety and Emergency Preparedness (the Minister), in accordance with paragraph
170(e) of the Immigration and Refugee Protection Act (IRPA),
filed a notice of intervention alleging that (1) the claimant “stated that he
worked as a police officer for the Haitian national police from 1995 to 2003;
the claimant also allegedly held the position of SWAT Team Leader on the
Haitian national police response team”; and (2) “there is significant
documentary evidence of human rights abuses committed by the Haitian national
police during the period in question.” The Minister submitted that “there are
serious reasons to believe that Michel Cadet may have committed acts
referred to in articles 1F(a) and 1F(c) of the Convention . . . .”
Counsel for the Minister was present at the hearing before the panel, cross‑examined
Mr. Cadet and made submissions.
[5]
The
Minister’s intervention is based on the following documentary evidence:
(1) U.S. Department
of State Country Reports on Human Rights Practices in Haiti, for the
years 1995 to 2003 (Exhibits M-2 to M-10).
(2) Human Rights Watch (HRW) reports
– 1997 (Exhibit M-13); HRW-1998 (Exhibit M‑14); HRW‑2003 (Exhibit M‑15);
HRW-2002 (Exhibit M‑16); HRW-2001 (Exhibit M‑17); HRW‑2000
(Exhibit M‑18).
(3) Amnesty International (AI) reports
for the years 1996 to 2003 (Exhibits M-19 to M-27). Other AI reports (Exhibits M‑28,
M-29 and M-30).
(4) Various
reports: Exhibits M-11, M-12, and M-31 to M-41.
Panel’s Decision
[6]
As
we shall see, Mr. Cadet’s credibility is at the core of the panel’s
decision. The panel began its analysis by writing:
Having heard this case and read the
submissions, the panel notes that the claimant did not deny that the
police forces in Haiti were guilty of crimes or acts referred to in articles
1(F)(a) and (c) of the Convention. However, he denied that he was directly or
indirectly involved in such acts by the police forces.
Accordingly, using the standard of proof
required, can the panel conclude from the evidence that the claimant is
guilty of acts referred to in articles 1(F)(a) and (c) of the Convention? [Emphasis
added.]
[7]
With
respect to the matter of credibility, the panel stated:
· “When
a claimant swears that facts are true, there is a presumption that they are
true unless there are valid reasons to doubt their truthfulness.”
· “An important
indicator of a witness’s credibility is the consistency of his or her account.”
· “In addition,
credibility and the probative value of testimony must be assessed according to
what is generally known of the conditions and laws in the claimant’s country of
origin, as well as the experiences of others in similar situations in that
country.”
[8]
According
to the panel, “some parts of the claimant’s testimony gave particular cause for
concern . . . ”.
[9]
In
support of this finding, the panel noted as follows:
(1) There was a
contradiction regarding when Mr. Cadet allegedly left the HNP (and the SWAT unit):
November 2002 or November 2003.
(2) His testimony
was not consistent with his PIF when he stated that he never took part in major
or high‑risk operations in his country after August 2001, whereas
he had written in his PIF that he took part in an operation in 2002. The panel
found that Mr. Cadet’s testimony that his SWAT team did not take part in
operations was implausible for the following reasons: (1) his testimony
implied that the SWAT unit, a highly specialized and costly police force, “was
totally useless in his country”; and (2) “how can the panel believe that for
the entire period that he was a member of this group, no hostage situations
occurred in Haiti, when the panel is aware of the situation in the country in
that regard? To ask the question is to answer it.”
(3) The panel did
not believe Mr. Cadet’s testimony that he was “entirely unaware of the
police actions in Haiti, because, as he said, they were not allowed to share
information with each other; later, however, he contradicted himself on that
point.” The panel added the following comment:
Nonetheless, it is very hard to believe
that a specialized unit such as the claimant’s would not be able or allowed to
share relevant information, if only to ensure their effectiveness and their
safety.
(4) Mr. Cadet appears
to have changed his testimony regarding police blunders in Haiti. He “began
by stating that he had never been told about them, but later amended his
account to say that he had only heard about them on the radio.” The panel
added:
At one point, he went so far
as to state not only that he had never witnessed arrests by the SWAT team
members but also that when people shot at them, they stopped all their
activities.
(5) The panel did
not believe Mr. Cadet when he said that certain members of the SWAT unit
were the agents of his persecution. It reasoned as follows:
Lastly, his entire testimony
was based on the fact that his unit comprised professionals and that they
fulfilled their duties correctly and with moderation. If that were the case,
how can one explain his fear of those same people in his country of origin? How
can one explain the fact that this same group of professionals apparently took
no steps to ensure the claimant’s protection in his country of origin? How can
one explain that, in response to a question, he replied that he did not resign
from his job because he needed the salary to survive, instead of justifying his
failure to resign by saying that he had no reason to do so?
Justifying keeping his job for economic
reasons would certainly have helped establish his credibility, but denying
everything in the manner in which the claimant did so undermines his
credibility to such an extent that it is impossible for the panel to give him
the benefit of the doubt.
Analysis
(a) Standard of Review
[10]
In
Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190 (Dunsmuir), the Supreme Court of Canada changed the analysis of the
applicable standard of review by eliminating the “patent unreasonableness”
standard. As a result, there are now only two standards of review: correctness
and reasonableness.
[11]
Dunsmuir also instructs us that it is
not always necessary to conduct an exhaustive analysis where, as here, the
existing case law has already satisfactorily determined the appropriate
standard of review.
[12]
In Harb
v. Canada (Minister of Citizenship and Immigration), 2003 FCA 39, Justice Décary
wrote as follows concerning the applicable standard of review:
14 In so far as these
are findings of fact they can only be reviewed if they are erroneous and made
in a perverse or capricious manner or without regard for the material before
the Refugee Division (this standard of review is laid down in
s. 18.1(4)(d) of the Federal Court Act, and is defined in
other jurisdictions by the phrase “patently unreasonable”). These findings,
in so far as they apply the law to the facts of the case, can only be reviewed
if they are unreasonable. In so far as they interpret the meaning of the
exclusion clause, the findings can be reviewed if they are erroneous. (On
the standard of review, see Shrestha v. The Minister of Citizenship and
Immigration, [2002] F.C.J. No. 1154, 2002 FCT 886, Lemieux J.
at paras. 10, 11 and 12.) [Emphasis added.]
(b) Certain Principles
(1) Standard of proof
[13]
Article 1F
of the Convention states that “The provisions of this Convention shall not
apply to any person with respect to whom there are serious reasons for
considering that: (a) He has committed . . . a
crime against humanity . . .”.
[14]
Decisions
by the Supreme Court of Canada and the Federal Court of Appeal have defined the
meaning of “serious reasons for considering.” I will quote paragraphs 114 and
115 of the decision of the Supreme Court of Canada in Mugesera v. Canada (Minister
of Citizenship and Immigration), [2005] 2 S.C.R. 100 (Mugesera) with respect to
the evidentiary standard:
114 The first issue
raised by s. 19(1)(j) of the Immigration Act is the meaning of
the evidentiary standard that there be “reasonable grounds to believe” that
a person has committed a crime against humanity. The FCA has found, and we
agree, that the “reasonable grounds to believe” standard requires something
more than mere suspicion, but less than the standard applicable in civil
matters of proof on the balance of probabilities: Sivakumar v. Canada
(Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.), at p.
445; Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2
F.C. 297 (C.A.), at para. 60. In essence, reasonable grounds will exist
where there is an objective basis for the belief which is based on compelling
and credible information: Sabour v. Canada (Minister of Citizenship
& Immigration) (2000), 9 Imm. L.R. (3d) 61 (F.C.T.D.).
115 In imposing this
standard in the Immigration Act in respect of war crimes and crimes
against humanity, Parliament has made clear that these most serious crimes
deserve extraordinary condemnation. As a result, no person will be admissible
to Canada if there are reasonable grounds to believe that he or she has committed
a crime against humanity, even if the crime is not made out on a higher
standard of proof. [Emphasis added.]
[15]
To
this I would add the remarks of Justice Robertson, then a member of the Federal
Court of Appeal, in Moreno
v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (Moreno):
25 In
my view, the standard of proof envisaged by the exclusion clause was intended
to serve an evidential function in circumstances where it is necessary to weigh
competing evidence. It must not be permitted to overstep its legislated
objective. In the present context, the standard of proof becomes relevant
only in respect of the following questions of fact.
26 It is a
question of fact whether the appellant or members of his platoon killed civilians.
The standard of proof to be applied is that embodied in the term
“serious reasons for considering”. Similarly, it is a question of fact
whether the appellant stood guard during the torture of a prisoner. As
that fact is admitted, the requisite standard of proof has been satisfied.
That standard, however, has no bearing on the following determinations.
27 It
is a question of law whether the act of killing civilians by military personnel
can be classified as a crime against humanity. It must be accepted that
such acts satisfy the legal criteria found within the Act and the Convention. It
is also a question of law whether the appellant's acts or omissions as a guard
constitute a crime against humanity. That determination can only be made by
reference to legal principles found in the existing jurisprudence dealing with
"complicity". Finally, it is a question of law whether membership
in a military organization, such as the Salvadoran army, constitutes sufficient
complicity to warrant application of the exclusion clause. [Emphasis added.]
(2) Burden of proof
[16]
It
is settled law that the burden of proof is on the Minister, since he is the one
who is alleging that Mr. Cadet is excluded.
(3) Mr. Cadet’s credibility: a question
of fact
[17]
The
panel’s finding that Mr. Cadet was not credible with respect to certain
important elements of his testimony is a finding of fact to which a reviewing
court must show great deference, since such a court is not entitled to revisit
the facts or weigh the evidence anew. Only where
the evidence viewed reasonably is incapable of supporting the panel’s findings
can the court intervene (see Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793
(CUPE), at paragraph 85). In Mugesera, above, the Supreme Court
of Canada set aside the decision of the Federal Court of Appeal, stating as
follows:
36 In
the case at bar, we find that the FCA exceeded the scope of its judicial review
function when it engaged in a broad-ranging review and reassessment of the
IAD’s findings of fact. It set aside those findings and made its own
evaluation of the evidence even though it had not been demonstrated that the
IAD had made a reviewable error on the applicable standard of reasonableness.
Based on its own improper findings of fact, it then made errors of law in
respect of legal issues which should have been decided on a standard of
correctness.
. . .
38 On
questions of fact, the reviewing court can intervene only if it considers that
the IAD “based its decision or order on an erroneous finding of fact that it
made in a perverse or capricious manner or without regard for the material
before it” (Federal Court Act, s. 18.1(4)(d)). The
IAD is entitled to base its decision on evidence adduced in the proceedings
which it considers credible and trustworthy in the circumstances: s.
69.4(3) of the Immigration Act. Its findings are entitled to
great deference by the reviewing court. Indeed, the FCA itself has
held that the standard of review as regards issues of credibility and relevance
of evidence is patent unreasonableness: Aguebor v. Minister of
Employment & Immigration (1993), 160 N.R. 315, at para. 4. [Emphasis
added.]
[18]
Another
clarification is worth making. It stems from the recent decision of the Supreme
Court of Canada in Canada
(Citizenship and Immigration) v. Khosa, 2009 SCC 12 (Khosa), where Justice Binnie,
on behalf of the majority, expressed the opinion that paragraph 18.1(4)(d)
of the Federal Courts Act, which applies to the judicial review of
decisions by federal boards, commissions or other tribunals, does not establish
a standard of review, but rather provides legislative guidance as to the
“degree of deference” to be shown to a board’s findings of fact. Justice Binnie
wrote:
46 More generally, it is clear from s.
18.1(4)(d) that Parliament intended administrative fact finding to
command a high degree of deference. This is quite consistent with Dunsmuir. It
provides legislative precision to the reasonableness standard of review
of factual issues in cases falling under the Federal Courts Act.
[19]
In Khosa,
Justice Binnie revisited and expanded on the discussion of the importance of
reasons, a discussion which Justice L'Heureux-Dubé had begun in Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R.
817 (Baker) and to which Justices Bastarache and LeBel had returned
in Dunsmuir.
[20]
Justice
Binnie addressed the importance of an administrative tribunal’s reasons in the
following terms:
63 The Dunsmuir
majority held:
A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law. [para. 47]
Dunsmuir thus reinforces in the context of
adjudicative tribunals the importance of reasons, which constitute the
primary form of accountability of the decision maker to the applicant, to the
public and to a reviewing court. Although the Dunsmuir majority
refers with approval to the proposition that an appropriate degree of deference
“requires of the courts ‘not submission but a respectful attention to the
reasons offered or which could be offered in support of a decision’”
(para. 48 (emphasis added)), I do not think the reference to reasons which
“could be offered” (but were not) should be taken as diluting the importance of
giving proper reasons for an administrative decision, as stated in Baker v.
Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para.
43. Baker itself was concerned with an application on
“humanitarian and compassionate grounds” for relief from a removal order. [Emphasis
added.]
[21]
Justice
Binnie continued his analysis as follows:
65 In terms of
transparent and intelligible reasons, the majority considered each of the Ribic
factors. It rightly observed that the factors are not exhaustive and that the
weight to be attributed to them will vary from case to case (para. 12). The
majority reviewed the evidence and decided that, in the circumstances of this
case, most of the factors did not militate strongly for or against relief.
Acknowledging the findings of the criminal courts on the seriousness of the
offence and possibility of rehabilitation (the first and second of the Ribic
factors), it found that the offence of which the respondent was convicted was
serious and that the prospects of rehabilitation were difficult to assess
(para. 23).
66 The weight
to be given to the respondent’s evidence of remorse and his prospects for rehabilitation
depended on an assessment of his evidence in light of all the circumstances of
the case. The IAD has a mandate different from that of the criminal courts.
Khosa did not testify at his criminal trial, but he did before the IAD. The
issue before the IAD was not the potential for rehabilitation for purposes of
sentencing, but rather whether the prospects for rehabilitation were such that,
alone or in combination with other factors, they warranted special relief from
a valid removal order. The IAD was required to reach its own conclusions based
on its own appreciation of the evidence. It did so.
[22]
I would conclude
my comments on this point by citing the remarks made by Justice Décary at
paragraph 4 of his reasons in Aguebor v. Canada (Minister of Employment
and Immigration (1993), 160 N.R. 315 (F.C.A.) (Aguebor):
4 There is
no longer any doubt that the Refugee Division, which is a specialized tribunal,
has complete jurisdiction to determine the plausibility of testimony: who is in
a better position than the Refugee Division to gauge the credibility of an
account and to draw the necessary inferences? As long as the inferences drawn
by the tribunal are not so unreasonable as to warrant our intervention, its
findings are not open to judicial review. In Giron, the Court merely
observed that in the area of plausibility, the unreasonableness of a decision
may be more palpable, and so more easily identifiable, since the account
appears on the face of the record. In our opinion, Giron in no way
reduces the burden that rests on an appellant, of showing that the inferences
drawn by the Refugee Division could not reasonably have been drawn. In this
case, the appellant has not discharged this burden. [Emphasis added.]
(4) The concept of complicity
[23]
The
Federal Court of Appeal has dealt several times with the interpretation to be
given to the words “committed a . . . crime against humanity,
as defined in the international instruments”. Its key decisions are (1) Ramirez v. Canada (Minister of
Employment and Immigration),
[1992] 2 F.C. 306 (Ramirez); (2) Moreno v. Canada (Minister of
Employment and Immigration), [1994] 1 F.C. 298 (Moreno); and (3) Sivakumar
v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (Sivakumar);
to which I would add Bazargan v. Canada (Minister of Citizenship
and Immigration) (1996), 205 N.R. 282 (Bazargan) and Harb, above.
[24]
Sivakumar involved an individual who
was a member of the Liberation Tigers of Tamil Eelam (LTTE) and held important
positions within the military organization: he became an LTTE military
commander. In the opinion of Justice Linden, the question was “who is
responsible for war crimes or crimes against humanity”, and he provided the
following summary of the conditions under which such responsibility attaches:
1. “It is clear that if someone
personally commits physical acts that amount to a war crime or a crime against
humanity, that person is responsible.”
2. A person can “commit” such a
crime as an accomplice, even though the person has not personally done the acts
amounting to the crime. To cite Justice MacGuigan in Ramirez, the
starting point for complicity in an international crime is “personal and
knowing participation”, a question of fact that must be answered on a
case-by-case basis, though certain general principles are accepted:
(a) “It is
evident that mere by-standers or on-lookers are not accomplices.”
(b) “However, a
person who aids in or encourages the commission of a crime, or a person who
willingly stands guard while it is being committed, is usually responsible.
Again, this will depend on the facts in each case.” Justice Linden cited Ramirez
as an example of a person who “had enlisted in the army voluntarily and had
witnessed the torture and killing of many prisoners” and thus, there existed in
that case “a shared common purpose and the knowledge that all the parties in
question may have of it.”
(c) “Those involved in planning or
conspiring to commit a crime, even though not personally present at the scene”,
are responsible as well.
(d) “Additionally, a commander may
be responsible for international crimes committed by those under his command,
but only if there is knowledge or reason to know about them.” The source of
this principle is section 6 of the Charter of the International Military
Tribunal (the London Charter) which states:
Leaders, organisers, instigators and
accomplices participating in the formulation or execution of a common plan or
conspiracy to commit any of the foregoing crimes are responsible for all acts
performed by any persons in execution of such plan. [Emphasis added.]
[25]
Justice
Linden then discussed “[a]nother type of complicity, particularly relevant to
this case”, namely “complicity through association” in which
“individuals may be rendered responsible for the acts of others because of
their close association with the principal actors.” He wrote as follows, at
page 440:
This is not a case merely of being “known
by the company one keeps.” Nor is it a case of mere membership in an
organization making one responsible for all the international crimes that
organization commits (see Ramirez, at page 317). Neither of these
by themselves is normally enough, unless the particular goal of the
organization is the commission of international crimes. It should be noted,
however, as MacGuigan J.A. observed: "someone who is an associate of the
principal offenders can never, in my view, be said to be a mere on-looker. Members
of a participating group may be rightly considered to be personal and knowing
participants, depending on the facts" (Ramirez, supra, at page
317). [Emphasis added.]
[26]
In
Sivakumar, Justice Linden further
explored the principle that “[t]he case for an individual's complicity in
international crimes committed by his or her organization is stronger if the
individual member in question holds a position of importance within the
organization.” He wrote:
Bearing in mind that each case must be
decided on its facts, the
closer one is to being a leader rather than an ordinary member, the more
likely it is that an inference will be drawn that one knew of the crime and
shared the organization's purpose in committing that crime. Thus, remaining
in an organization in a leadership position with knowledge that the
organization was responsible for crimes against humanity may constitute
complicity.
. . .
In such circumstances, an important
factor to consider is evidence that the individual protested against the
crime or tried to stop its commission or attempted to withdraw from the
organization. Mr. Justice Robertson noted this point in Moreno, supra,
when he stated [at page 324]:
[T]he closer a person is involved in the
decision-making process and the less he or she does to thwart the commission of
inhumane acts, the more likely criminal responsibility will attach.
[Emphasis added.]
[27]
He
summarized the concept of complicity by association in the following terms:
To sum up, association with a person or
organization responsible for international crimes may constitute complicity if
there is personal and knowing participation or toleration of the
crimes. Mere membership in a group responsible for international crimes,
unless it is an organization that has a "limited, brutal purpose", is
not enough (Ramirez, supra, at page 317). Moreover, the closer
one is to a position of leadership or command within an organization, the
easier it will be to draw an inference of awareness of the crimes and
participation in the plan to commit the crimes.
[28]
The
people in Ramirez, Moreno and Sivakumar were members of the organization that
had committed crimes against humanity. In Bazargan, Justice Décary,
writing for the Federal Court of Appeal, applied the concept of complicity to a
situation of a non-member who was associated with SAVAK. Mr. Bazargan
joined the Iranian National Police in 1960 and was a member until 1980.
He was responsible for liaison between the National Police and SAVAK.
[29]
With
respect to SAVAK, Justice Décary wrote as follows at paragraph 4 of his reasons:
4 The documentary
evidence shows that SAVAK was a brutal, violent instrument of repression
that terrorized all levels of Iranian society at the time. The Board also
mentioned the [translation] "notoriousness of SAVAK's human rights
violations" and the motions judge herself noted that "there is no
doubt that Savak is an organization that deprived other people of their rights
or restricted those rights, thereby violating the purposes and principles of
the United Nations". [Emphasis added.]
[30]
The
evidence in Bazargan showed that he had never been a member of SAVAK,
but was in charge of the network for exchanging classified information between
the police forces and SAVAK, and was appointed to that position because of his
knowledge of intelligence, espionage and counter-espionage. The evidence also
showed that in 1977, Mr. Barzagan, whom the Shah was about to make a
general, became the chief of the police forces of an Iranian province strategically
located on the Persian Gulf, and held that position until the fall of the monarchy
in 1979. In this capacity, he cooperated with the head of SAVAK for that
province. As Justice Décary wrote, the Convention Refugee Determination
Division determined that there “were serious reasons for considering that because
of his role as the liaison officer with SAVAK and the knowledge of SAVAK's
activities that, in its view, he could not have failed to have”,
Mr. Bazargan “was an accomplice to those activities.” However, “[t]he
motions judge expressed disagreement with the Board's decision: in her view,
complicity assumes membership in the organization, and the respondent was not a
member of SAVAK.”
[31]
In his
analysis of whether the Ramirez principles apply to a non-member,
Justice Décary cited Justice MacGuigan’s clarification from that case, namely
that it is
. . . undesirable to go
beyond the criterion of personal and knowing participation in persecutorial
acts in establishing a general principle. The rest should be decided in
relation to the particular facts.” [Emphasis added.]
And,
at paragraph 10, Justice Décary wrote:
It is true that among
"the particular facts" of the case with which MacGuigan J.A. went on
to deal in his reasons was the fact that Ramirez was actually an active
member of the organization that committed the atrocities (the Salvadoran army)
and the fact that he was very late in showing remorse, but those were facts
that helped determine whether the condition of personal and knowing
participation had been met; they were not additional conditions. Membership in
the organization will, of course, lessen the burden of proof resting on the Minister
because it will make it easier to find that there was "personal and
knowing participation". However, it is important not to turn what is
actually a mere factual presumption into a legal condition. [Emphasis added.]
[32]
At
paragraph 11 of his reasons, Justice Décary explained his understanding of the
concept of personal and knowing participation, and I quote:
11 In our view,
it goes without saying that “personal and knowing participation” can be
direct or indirect and does not require formal membership in the
organization that is ultimately engaged in the condemned activities. It is
not working within an organization that makes someone an accomplice to the
organization's activities, but knowingly contributing to those activities in
any way or making them possible, whether from within or from outside the
organization. At p. 318 F.C., 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. [Emphasis added.]
[33]
At
paragraph 12, he repeated, “That being said, everything becomes a question of
fact. The Minister does not have to prove the respondent’s guilt. He
merely has to show — and the burden of proof
resting on him is ‘less than the balance of probabilities’ — that there are serious reasons for
considering that the respondent is guilty.” He then quoted the decision of the
Convention Refugee Determination Division:
[translation]
Because of the training he received and the responsible positions he held, inter
alia between 1974 and 1978 and from 1978 until the fall of the Shah of
Iran, Mr. Bazargan could not have failed to be very well informed about the
kind of repressive measures used by SAVAK to punish any social and political
dissidence in the country. However, he collaborated with that organization for
many years as a senior police officer in the Iranian security forces.
Accordingly, given the notoriousness of SAVAK’s human rights violations, the
positions of authority the claimant held until 1980 and the knowledge he
necessarily had of the situation, we must conclude that in this case there are
serious grounds for considering that the claimant tolerated, encouraged or even
facilitated SAVAK’s acts and therefore became guilty of acts contrary to the
purposes and principles of the United Nations.
[34]
Justice
Décary concluded his reasons with the following remarks:
13 These
inferences and this conclusion are based on the evidence and are reasonable.
This Court has noted on many occasions that the Board is a specialized tribunal
that has complete jurisdiction to draw the inferences that can reasonably be
drawn. In the case at bar, the motions judge was all the more wrong to
intervene given that the Board's inferences were accompanied by devastating
observations on the credibility of that part of the respondent's testimony in
which he argued that he had no knowledge of SAVAK's activities. [Footnote
omitted.]
(c) Conclusions
[35]
For
the reasons set out below, it is my opinion that this Court is justified in
intervening in this case, and that this application for judicial review must
accordingly be allowed.
[36]
With
respect to paragraphs 1F(a) and 1F(c) of the Convention, which
was signed in Geneva on July 21, 1951, and under which a person is excluded
from refugee status where there are serious reasons to consider that he has committed
a crime against humanity, Canadian courts have identified certain fundamental
principles that I have listed, including the essential requirement of personal
and knowing participation, which ensures that mens rea is an essential
element of the crime.
[37]
Upon
reading the panel’s reasons, it is clear that the panel
(a) Relied primarily on the
applicant’s PIF for certain basic facts.
(b) Summarized the Minister’s
intervention to the effect that Mr. Cadet must be excluded because the
Minister “states that there are serious reasons for considering that the
claimant may have committed acts referred to in articles 1F(a)
and 1F(c) of the Convention” for the following reasons:
1. The claimant
“stated that he worked as a police officer for the Haitian National Police from
1995 to 2003; the claimant also allegedly held the position of SWAT team leader
on the Haitian National Police response team.”
2. There is
significant documentary evidence of human rights abuses committed by the
Haitian National Police during the period in question.
(c) Provided
the following analysis:
(1) “Having heard this case
and read the submissions, the panel notes that the claimant did not deny
that the police forces in Haiti were guilty . . . . However, he
denied that he was directly or indirectly involved in such acts by the police
forces.”
(2) Framed the question as
follows: “[C]an the panel conclude from the evidence that the claimant is
guilty of acts referred to in articles 1(F)(a) and (c) of the
Convention?”
(3) Referred to the
indicators of the credibility of a narrative, explained its concerns stemming
from contradictions and implausibilities, and found that the claimant lacks
credibility.
[38]
I
would note that the panel’s reasons made no mention and provided no analysis of
(a) the concept of complicity or complicity by association; and (b) the
documentary evidence adduced by the Minister as proof that the Haitian “police
forces” (without specifying which forces are involved) committed crimes against
humanity. Moreover, the panel’s reasons did not discuss the applicant’s
testimony concerning the Minister’s documentary evidence.
[39]
In
my view, several reasons warrant the Court’s intervention.
[40]
First,
the panel erred in law with regard to the burden of proof. I rely in this
regard on La Hoz
v. Canada (Minister of Citizenship and Immigration), 2005 FC 762 (La Hoz), a decision
of my colleague Justice Blanchard. The circumstances surrounding that case are
very similar to those before me. The claimant was excluded on the basis that he
took part in human rights violations committed by the Peruvian army, of which
he was a member. The panel found that he was not credible. There was no
evidence before the panel that the claimant had been directly involved in the
commission of a crime against humanity. In La Hoz, my colleague wrote as
follows at paragraph 21 of his reasons:
21 In my view, the Board’s
decision to exclude the male applicant from application of the Convention cannot
be upheld because it found he lacked credibility. The burden, however,
is on the Crown to establish that there are “serious reasons for
considering” that the male applicant committed acts described in section 1F. In
this case, the Board seems to have concluded that the male applicant should be
excluded because he did not provide convincing evidence that he did not commit
these acts. This burden is not on the male applicant. The Board’s reasoning
on this matter is erroneous and warrants the intervention of this Court, since
it erred in law. [Emphasis added.]
[41]
The
panel erred in law a second time when it failed to discuss in any way the
principles that lead to a person being responsible for crimes against humanity:
(1) Why is Mr. Cadet
responsible? Is he an accomplice? Complicit by association? We do not know;
(2) The panel did not decide
the issue of whether the HNP was an organization that had a limited and brutal
purpose; in my view, the panel was required to do so, given the principle that mere
membership in an organization which from time to time commits international
offences is not normally sufficient for exclusion, but that, where an
organization is principally directed to a limited, brutal purpose, such as a
secret police activity, mere membership in that organization may necessarily involve
personal and knowing participation in acts of persecution. It must be recalled
that Mr. Cadet did not deny that certain HNP officers might have been
responsible for crimes against humanity, but that he never admitted to
participating in such crimes. He always denied that the SWAT unit took part in
such crimes. Having examined all the documentary evidence published by the
U.S. Department of State, Human Rights Watch and Amnesty International, I noted
a few references to the SWAT unit but no accusations that the unit committed
crimes against humanity; and
(3) The panel established no
connection, in either the testimonial evidence or the documentary evidence,
between the applicant and an incident or operation where crimes against
humanity were allegedly committed. In other words, the panel did not mention
any evidence showing Mr. Cadet’s responsibility. It needed to do so. I
quote the words of my colleague Justice O’Reilly in Saftarov v. Canada (Minister of Citizenship
and Immigration),
2004 FC 1009, at paragraph 14:
14 Accusing someone
of crimes against humanity is a serious matter. Some evidence of
knowing participation in serious crimes is required. Alternatively, an
inference of involvement can be drawn from proof of membership in an
organization primarily dedicated to human rights abuses. However, neither is
present in this case. [Emphasis added.]
[42]
Just
as important, in another context, are the remarks made by Justice Binnie in Khosa,
above, at paragraph 63, on the importance of providing adequate reasons for an
administrative decision. In my opinion, the reasons given by the panel in
this case do not meet the Khosa requirements.
[43]
For
the purposes of complicity by association, the person’s rank within the
organization with which he is associated is an important factor. The panel
simply noted that the applicant was a SWAT team leader (there were six such
leaders) but did not analyse Mr. Cadet’s rank (Police Officer IV)
which, according to Mr. Cadet’s testimony, is that of an ordinary police
officer (Panel’s Record (PR), page 724) — a rank that is not
high, considering the levels in the hierarchy above Police Officer IV:
police inspector, senior inspector, divisional inspector, police
superintendent, senior police superintendent, divisional superintendent - HQ, inspector
general and finally HNP director general. Moreover, the panel made no reference
to Mr. Cadet’s testimony regarding the duty of a “team leader” to carry
out operations when the SWAT unit superintendent so orders: [translation] “He gives me the order to
carry out the operation.” (PR, page 725).
[44]
The
errors in law that I have identified are enough to set aside the panel’s
decision. However, I cannot disregard another aspect of the panel’s decision
that I find troubling: the panel’s finding that Mr. Cadet was not
credible. Such a finding is entitled to great deference under section 18.1(4)(d)
of the Federal Courts Act (see Khosa) and under the case law (see Dunsmuir).
However, as the Supreme Court of Canada held in CUPE, only where the evidence viewed
reasonably is incapable of supporting the panel’s findings can this Court
intervene. Moreover, in Aguebor, Justice Décary wrote that the
Court cannot intervene unless the inferences drawn by the panel are unreasonable.
[45]
In my
opinion, several of the panel’s findings are unreasonable, having regard to the
applicant’s testimony, which finds some support in documentary evidence that
the panel seems to have disregarded. The following are examples:
(1) At paragraph 35 of its
reasons, the panel finds that the applicant had no reason to fear certain
members of the SWAT unit. The applicant and the documentary evidence explain
why the applicant was justified in fearing them. The documentary evidence shows
that, in 2001 and 2002, President Aristide politicized the HNP. (See US Department
of State report for 2001: PR, page 305; US Department of State report for 2002:
PR, page 323; HRW report for 2002: PR, page 402; AI report for 2002: PR, page
445; and the applicant’s testimony: PR, pages 745, 769-772, and 796.)
(2) At paragraphs 31 to 34 of its
reasons, the panel discusses at length the applicant’s testimony and his
unawareness of “the police actions in Haiti” and the “mistakes of the police
forces in Haiti”, apparently forgetting its finding, at the very beginning of
its reasons, that the applicant did not deny that “the police forces in Haiti
were guilty of crimes against humanity”. In any event, a reasonable and full
reading of the transcript of his testimony shows that the panel misinterpreted
the evidence when it found that there were contradictions or implausibilities.
·
At pages
744-745 of the PR, the applicant testified, on cross-examination, that he had
never heard mention of police blunders in the SWAT team. Later on, he answered
that he heard on the radio that there were instances of overzealousness by some
members of the HNP because they were not as well trained as the SWAT unit
members. The cross-examination on this point resumes at PR, page 758;
in response to a question by counsel for the Minister, as to whether there were
mistakes, Mr. Cadet spontaneously answered, “I heard on the radio that
there were instances of overzealousness,” which, he later specified, meant that
a police officer might have shot at people without being ordered to do so (PR, page
758).
·
The
applicant never testified that if SWAT unit members were shot at, they would
stop all activities. On the contrary, he testified that if SWAT unit members
were shot at, they would [translation]
“put a stop to” that shooting (PR, pages 774 to 779).
[46]
The panel
either disregarded the evidence or did not take into account the applicant’s
explanations when it found, at paragraph 27, that the applicant testified
that he never participated in major or high-risk operations (PR, pages 815 to
818).
[47]
In my
opinion, the above-mentioned errors made by the panel in assessing the evidence
in support of its finding that the applicant was not credible are sufficient to
set aside that finding.
[48]
For all
these reasons, the decision of the panel must be set aside.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this application for judicial review is
allowed, the decision of the panel dated October 1, 2008, excluding
the applicant, is set aside, and the applicant’s refugee claim is referred back
for redetermination by a differently-constituted panel of the Refugee
Protection Division. No question was proposed for certification.
“François Lemieux”
__________________________
Judge
Certified
true translation
Brian
McCordick, Translator
Email this Content