Docket:
IMM-5834-10
Citation:
2011 FC 899
Ottawa, Ontario,
July 18, 2011
PRESENT: The
Honourable Mr. Justice Scott
BETWEEN:
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CHRISTOPHER MARCO VASSEY
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I.
INTRODUCTION
[1]
This
is an application for judicial review of a decision of a member of the
Immigration and Refugee Board (the Board), pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001 c 27 [the Act] by Christopher
Marco Vassey (the applicant). The Board determined that the applicant
was neither a Convention refugee nor a person in need of protection under
sections 96 and 97 of the Act. The applicant requests
that the decision be set aside and the claim remitted for re-determination by a
different member of the Board.
II.
BACKGROUND
[2]
The
applicant is an American citizen. He was very
involved in the Junior Reserve Officer Training Corps during high school and
enlisted in the New Jersey Army National Guard after he turned 17, in September
2003. After completing basic training, the applicant became a recruiter assistant
for the National Guard. Feeling disillusioned with the recruitment process in
the National Guard, the applicant joined the US Army in April 2006 and was sent
to Fort Bragg, North Carolina. The applicant was assigned to an infantry unit
to be deployed to Afghanistan in 2007. During the lead up to the mission in Afghanistan, the applicant became concerned about the lack of organization and training of
his unit as well as the capabilities of the commanders.
[3]
The
applicant deployed to Afghanistan in January 2007 and was originally scheduled
to end his tour in April 2009. After several months, the applicant learned that
his service would be involuntarily extended until at least May 2010. Instead,
the applicant chose to voluntarily re-enlist in the Army in April 2007 to
secure himself a promotion and tuition funding upon completion. On December 1, 2007,
the applicant was promoted to Sergeant.
[4]
While
on duty in Afghanistan, the applicant alleges that he was ordered to perform
actions contrary to the rules of armed conflict. These orders included raiding
civilian homes and recognizance by fire where his unit pre-emptively fired on a
location where they believed the enemy forces were located without taking any
precautions to ensure that civilians were not harmed. The applicant further
stated that he was part of the supervision of the Afghan National Army which he
learned were placing detainees in “hot boxes” under extreme conditions to
obtain information. Finally, the applicant alleges that his unit strapped the
dead bodies of Afghan insurgents to US military vehicles and drove through
villages in order to intimidate local populations.
[5]
The
applicant described growing mental health concerns during and after his
deployment to Afghanistan. Following his voluntary reenlistment, the applicant began
to feel depressed. On leave for two weeks in July 2007, the applicant suffered
from nightmares, insomnia and mood swings. He did not describe any of his
mental health issues to a superior officer nor did he seek medical assistance. After
returning to the United States on April 8, 2008, the applicant stated that he could
not spend time with others or be around children and that he was emotionally
unstable and felt on edge.
[6]
During
President Bush’s speech at “all American week” in 2008, the applicant realized
that in addition to no longer agreeing with the mission in Afghanistan, he did not agree with the war in Iraq, as it had nothing to do with the events of September
11, 2001. The applicant began researching options to leave the Army and he
determined that because he was a Sergeant with four years left on his contract,
he would face severe punishment for going absent without leave [AWOL]. The
applicant felt that he could not file for conscientious objector status because
his objections were based on specific wars and not grounded in religious
beliefs.
[7]
On
July 7, 2008, the applicant collected his things from Fort Bragg and went AWOL from the US Army. He entered Canada on August 4, 2008, and claimed refugee
protection the same day.
[8]
The
refugee hearing was held on October 9, 2009. The Board’s negative decision was
issued on August 27, 2010.
III.
THE
DECISION UNDER REVIEW
[9]
The
Board issued a lengthy decision, in which state protection was the
determinative issue.
[10]
The
Board reviewed the relevant jurisprudence on state protection, noting that
there is a presumption of state protection which a refugee claimant can rebut
with clear and convincing evidence of the state’s inability to protect. The
Board noted that the protection does not have to be effective but rather
adequate and that there is a higher burden on the claimant when the state in
question is a developed democracy such as the United States of America.
[11]
The
Board spent several pages reviewing the case of Hinzman
v Canada (Minister of Citizenship and Immigration), 2007 FCA 171 [Hinzman].
The appellants, Mr. Hinzman and Mr. Hughey, members of the US military, deserted because of their belief that the war in Iraq was illegal
and immoral. The Board found that Justice Sexton of the Federal Court of
Appeal held that it was not possible to conclude that the appellants would not
have been adequately protected in the United States because they did not access
the legal protections available to them.
[12]
The
Board also reviewed Mr. Justice Beaudry’s decision in Colby v Canada
(Minister of Citizenship & Immigration), 2008
FC 805 in which he held that even where the facts raised by a refugee claimant
might fall under paragraph 171 of the UNHCR Handbook on Procedures and
Criteria for Determining Refugee States (the UNHCR handbook), the claimant
must still establish that state protection is unavailable to him.
A. Ability to Raise the Defence of an Illegal Order
[13]
The Board then assessed the applicant’s
submission that if the motive for desertion is deemed irrelevant and
inadmissible in US court-martial proceedings then there is no opportunity to
raise a proper defence against desertion charges.
[14]
The Board summarized the affidavit evidence of several professors
and US military sergeants presented by the applicant.
[15]
The
Board then considered the case of Captain M Huet-Vaughn in United States v Yolanda
M Huet-Vaughn, 43 MJ 105, (1995 CAAF) of the United States Court of Appeals
for the Armed Forces [Huet-Vaughn]. The Board found that Huet-Vaughn
does not show that the defence of an unlawful order only applies to extreme
cases such as war crimes of grave breaches of the Geneva Conventions. Rather,
the Board concluded that the United States Court of Appeals for the Armed
Forces has not decided whether an individual could raise the question of
whether he or she had been ordered to commit an unlawful act and that the duty
to disobey extends to acts that are manifestly beyond the legal power or
discretion of the commander as to admit to no rational doubt of their
unlawfulness.
[16]
The
Board found that the avenues of appeal were not exhausted in the case of Huet-Vaughn
and that since the issue of raising an unlawful order in defence of a desertion
charge has not been appealed to the Supreme Court, the examples of individuals
who were not able to raise the defence do not rebut the presumption of state
protection.
[17]
The
Board also found that there was not sufficient evidence to show that the
applicant could not have requested a medical discharge for his psychiatric
condition.
B. Differential
Prosecutorial Discretion
[18]
The
Board then assessed the applicant’s submission that there is no state
protection or procedural protections against the differential, and therefore
persecutory, application of prosecutorial discretion by his commanding officer
on whether to initiate charges and court-martial proceedings.
[19]
The
Board reviewed the examples presented by the applicant of James Burmeister and
Robin Long, where evidence of these individuals’ public comments against the
war in Iraq was introduced at their courts-martial. The applicant submitted
that these statements were used as aggravating factors and were ultimately the
reason for pursuing prosecution as opposed to an administrative discharge for
desertion. The Board found that prosecutorial discretion benefits that justice
system. If aggravating factors, including public comments against a war, are
presented in a proceeding, this does not necessarily suggest that prosecutorial
discretion has been used in a discriminatory manner.
C. Independence and Impartiality of the US Military Justice System
[20]
The
Board then assessed the applicant’s submission that the system of military
justice in the United States violates basic human rights by not being
independent and impartial.
[21]
The
Board spent several pages recounting the evidence presented from Donald G.
Rehkopf, Jr., Professor Eugeen Fidell, Marjorie Cohn and Kathleen M. Gilberd
for the applicant and Professor Victor Hansen from the respondent.
[22]
The
Board acknowledged that the applicant’s argument that the US military justice
system does not comply with the requirements of the Canadian Charter
of Rights and Freedoms (the Charter) or the factors outlined by the
Supreme Court in R v Genereux, [1992] 1 S.C.R. 259 [Genereux], where
the Court considered the Canadian court-martial system. These factors included
the lack of security of tenure, financial security and institutional
independence.
[23]
The
Board recounted that Professor Hansen, for the respondent, described the US military justice system as having sufficient checks and balances. He stated that the
most important protection against Unauthorized Command Influence (UCI) is
article 37 of the Uniform Code of Military Justice [UCMJ]. Article
37 precludes a commander from censuring, reprimanding or admonishing any
military members, judge or counsel with respect to findings or sentences of the
court. Subsection 37(a) prevents unauthorized influence on a member of
the military court. The Board noted that Professor Hansen stated that the
commander acts on the advice of military lawyers before taking action and that
there is a robust appellate system for preventing errors, such as UCI and other
trial errors. The system is further protected by the presiding Judge Advocate.
[24]
The
Board found that both the respondent and applicant’s affiants agree that the
military commander has a central role in the US military justice system,
including initiating investigations, determining what charges will be brought
to what level of court-martial and selecting the panel of jurors and
adjudicating the cases.
[25]
The
Board noted that, generally, the applicant’s affiants stated that the US military justice system does not conform to the factors in Genereux above. Under
the UMCJ, the judges are appointed at will and lack security of tenure,
and institutional independence is lacking as the judges are appointed by the Judge
Advocate General. They stated that a discipline model operates where a
commander could choose to make an example of a soldier. Further, article 37 of
the UMCJ aimed at correcting UCI is ineffective as complaints of UCI
continue and are rarely successful. Mr. Rehkopf stated that the system lacks
fundamental aspects of due process and that the checks and balances are insufficient
and UCI continues.
[26]
The
Board Member found, at paragraph 89 of his decision, that:
I accept the evidence in the affidavits of Donald G.
Rehkopf, Jr., Professor Eugeen Fidell, Professor Victor Hansen, Marjorie Cohn
and Kathleen M. Gilberd…. I accept the affidavits for the information provided
in regard to the US military justice system. Any conclusions drawn from this
evidence is the sole responsibility of the Board…
[27]
The
Board then stated that the test for determining whether state protection is
available to a person in the claimant’s position is set out in the Canada (Minister of Employment & Immigration) v
Satiacum, 99 NR 171 [Satiacum]:
…In all but the most extraordinary
circumstances all the events leading up to a prosecution and all of the events
of a trial in a free and independent foreign judicial system must be taken to
be merged into the judicial process and not open to review by a Canadian
tribunal. Extraordinary circumstances would be those, for example, which tended
to impeach the total system of prosecution, jury selection or judging, not
discrete indiscretions or illegalities by individual participants which, even if
proved, are subject to correction by the process itself…
[28]
The
Board acknowledged that the US military justice system has not changed as much
as the Canadian and British systems over the past decades.
[29]
Concerning
UCI, the Board found that in the evidence before it, there is disagreement as
to the prevalence of UCI within the US military justice system. The Board
concluded that the appellate case United States v Justin M Lewis,
63 MJ 405 shows that the problem of UCI is recognized and can be raised as a defence.
The Board stated that “this would presumably extend to the misuse of
prosecutorial discretion”.
[30]
The
Board concluded that on the balance of probabilities, the evidence does not
substantially impeach the US military justice system.
D. Hazing
[31]
The
Board then assessed the applicant’s submission that there was not adequate
state protection against cruel and unusual “hazing” that he could face as
discipline from his commanding officer or unit if he were returned to the Army.
[32]
The
Board found that the case of Lowell v Canada (Minister of Citizenship & Immigration), 2009
FC 649 [Lowell] demonstrates that there is a mechanism for appealing
treatment of authorized non-judicial punishment under Army Regulation 27-10. The
Board further found that the applicant could also use the tactic of going to
the media if he experiences unauthorized hazing. The Board also noted that the
Eighth Amendment of the US Constitution prohibits cruel and unusual punishment.
[33]
The
Board concluded by finding that the applicant was not a Convention refugee or
person in need of protection as he had not rebutted the presumption of state
protection with clear and convincing evidence. It was therefore unnecessary to
consider article 171 of the UNHCR Handbook and the claim was dismissed.
IV.
RELEVANT
LEGISLATION
[34]
The
relevant portions of the Act are appended to this decision.
V.
ISSUES
AND STANDARD OF REVIEW
[35]
There
are two principal issues in this application:
1) Did
the Board ignore or misinterpret evidence or fail to provide adequate reasons
for its treatment of the evidence?
2) Did
the Board err in its analysis of state protection?
[36]
Where
previous jurisprudence has determined the standard of review applicable to a
particular issue before the court, the reviewing court may adopt that standard
of review (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at
paragraph 57 [Dunsmuir]).
[37]
The question of whether the Board failed to consider the evidence
before it is a factual one that usually attracts deference and will be reviewed
on the standard of reasonableness (see Dunsmuir above, Miranda Ramos
v Canada (Minister of Citizenship & Immigration), 2011 FC 298 at
paragraph 6; Osorio v Canada (Minister of Citizenship & Immigration),
2010 FC 907 at paragraph 19).
[38]
Assessments
of the adequacy of state protection raise questions
of mixed fact and law. As such, these issues are also reviewable against a
standard of reasonableness (see Hinzman above at paragraph 38; SSJ
v Canada (Minister of Citizenship & Immigration), 2010 FC 546 at
paragraph 16).
[39]
In
reviewing the Board's decision using a standard of reasonableness, the Court in
concerned with whether the Board has come to a conclusion that is transparent,
justifiable, and intelligible and within the range of acceptable outcomes based
on the evidence before it (see Dunsmuir above, at paragraph 47; Canada (Minister of Citizenship & Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at
paragraph 59).
VI.
PARTIES
SUBMISSIONS
Applicant’s
Submissions
[40]
The
applicant submits that his evidence and arguments are vastly different than
those put forward in Hinzman above, relied on by the Board. Unlike the
applicant, the appellants in Hinzman put forward no information to rebut
the presumption of state protection. The applicant’s evidence in this regard
included demonstrating that the US court-martial system fails to meet
international standards of fairness and that a soldier is unable to raise his
motives for desertion as a defence against such charges.
[41]
The
applicant argues that the Board mistreated the evidence on the fairness of the
military justice system in the US. The Board stated that it accepted the
evidence provided by the applicant in the affidavits of Donald G. Rehkopf, Jr.,
Professor Eugeen Fidell, Marjorie Cohn and Kathleen M. Gilberd. However, the
Board did not provide any reasons for why, despite accepting the information in
the expert affidavits, it nonetheless concluded the opposite from what was
contained therein.
[42]
The
applicant submits that the significance and probative value of evidence before
the Board reasonably increases when it emanates from a more expert source and
the responsibility of the decision maker to outline their reasons for
dismissing the evidence that directly contradicts their conclusions also
increases. The Board erred by failing to properly consider this evidence.
[43]
The
Board also did not analyze the evidence provided by these individuals
demonstrating that the jury selection process, as well as the lack of tenure
provided to military judges and appellate judges are inadequate.
[44]
The
applicant further contends that the Board misinterpreted and ignored evidence
on the issue of available defences to the charge of desertion.
[45]
The
applicant submits that the Board misinterpreted the US case law on this issue.
The applicant submits that the case of Huet-Vaughn above stands for the
proposition that the motive for why an individual soldier deserted the military
is irrelevant and inadmissible on the question of whether the soldier is guilty
of desertion. The applicant submits that an unlawful order defence is only
applicable to orders offences and not to the charge of desertion. Further, the
applicant submits that the Board erred in finding that the Huet-Vaughn
decision does not limit the scope of the unlawful order defence to war crimes. There
was ample evidence before the Board by experts and members of the US military on the application of the Huet-Vaughn case. The Board did not provide
reasons for why it preferred its own interpretation of the law in the US to that of military law professor and practitioners and military members. This renders the
Board’s reasons inadequate.
[46]
The
applicant submits that this is important because he would not be able to raise
the conduct that he was ordered to perform in Afghanistan at a court-martial
for the charge of desertion. He argues that there is therefore no state
protection for being prosecuted for desertion despite the fact that he deserted
because he was ordered to perform acts which would satisfy section 171 of the
UNCHR Handbook.
A. State
Protection
[47]
The
applicant submits that in addition to the mistreatment of evidence, the Board
made several errors in its state protection analysis.
[48]
The
applicant argues that if the Board did truly accept the evidence of the
applicant’s four affiants named above that the US military justice system is
not an independent or impartial tribunal and is not in conformity with
international standards or the Charter, then its conclusion must be that
there exists adequate protection for the applicant nonetheless is an unreasonable
conclusion.
[49]
Under
paragraphs 3(3)(d) and (f) of the Act, decisions made
under sections 96 and 97 of the Act must be consistent with the Charter
and must comply with Canada’s obligations under international human rights
instruments. The applicant submits that interpreting adequate state protection
to be that which falls below standards set out in international human rights
instruments and the Charter is unreasonable and contrary to the Act.
The applicant submits that this is also contrary to the UNHCR handbook which
states at paragraph 60:
In such cases, due to the obvious difficulty
involved in evaluating the laws of another country, national authorities may
frequently have to take decisions by using their own national legislation as a
yardstick. Moreover, recourse may usefully be had to the principles set out in
the various international instruments relating to human rights, in particular
the International Covenants on Human Rights, which contain binding commitments
for the States parties and are instruments to which many States parties to the
1951 Convention have acceded.
[50]
In
addition, the applicant argues that the Board made conclusions about
differential prosecution that were not based on the evidence before it. The
Board concluded that “the ability to raise UCI as a defence presumably applies
to the exercise of prosecutorial discretion.” The applicant argues that there
is no basis in the evidence for this conclusion and that in fact the evidence
contradicts it. The decision on whether to initiate charges in the first place
in the US is completely within the purview of the Command and therefore would
not be considered “unlawful” and is not subject to review on the basis of UCI.
The Board’s conclusion was therefore unreasonable.
[51]
The
applicant further submits that the Board concluded that it is appropriate to
punish certain soldiers over others for desertion where the prosecution feels
there are aggravating factors such as speaking out about the war, because
prosecutorial discretion benefits the justice system. However, the applicant
submits that if the “aggravating factor” motivating the prosecution is the
individual’s expression of his political beliefs, then the prosecutorial
discretion has been exercised in a discriminatory and persecutory manner
according to section 169 of the UNHCR Handbook. Aggravating factors
cannot include an individual’s race, religion, sexual orientation, gender or
political opinion. The Board erred by concluding otherwise. Further, the
Board did not provide any meaningful analysis on the evidence before it
indicating that members of the US military have been singled out for
prosecution because of their political beliefs.
Respondent’s
Submissions
[52]
The
respondent submits that the Federal Court of Appeal’s decision in Hinzman and
the Supreme Court’s decision in Canada (Attorney General) v Ward, [1993]
2 SCR 689 were binding on the Board. That is, states are presumed
capable of protecting their own citizens and this presumption is only displaced
with clear and convincing confirmation of the state’s inability to protect a
claimant. This presumption is particularly strong with respect to a developed
democracy like the United States. The Court of Appeal in Hinzman
concluded that the US is a fully functioning democracy with a robust judicial
system, that provides significant procedural protection to an individual who is
the subject of a court-martial proceeding. These include the presumption of
innocence, assessment by an impartial adjudicator the right to know the case
against oneself and a high standard of proof to meet before conviction. Further,
the Federal Court of Appeal held, in Satiacum above, that a foreign
legal system is presumed to be fair absent evidence that substantially
impeaches its processes. Given this, the applicant was required to seek out and
exhaust all avenues of protection before he could rebut the presumption of
state protection.
[53]
The
applicant made no attempt to seek recourse through any means other than refugee
protection. He did not complain to his superiors, choose not to re-enlist, seek
re-assignment, seek treatment for mental health issues or seek a discharge on
medical grounds before deserting. The respondent submits that the Hinzman
above principle that where applicants have not adequately accessed the legal
protection available to them in their country, they cannot assert that their
rights would not be adequately protected.
[54]
The
respondent submits that the Board did not ignore evidence but rather undertook
a detailed and meticulous examination of the evidence before it. The respondent
argues that the Board accepted the qualifications of each of the applicant and
respondent’s affiants and carefully detailed the evidence provided by all five
individuals. The Board weighed the evidence and noted the disagreement between
the affiants, but concluded that the self-correcting mechanisms in the military
justice system meet the requirements for adequate state protection. The
conclusions of the affiants could not be substituted for the determination the
Board itself was required to make. The Board also addressed US jurisprudence that while UCI can be a concern with prosecution, there is redress for an
accused to raise it as a defence. The applicant is faulting the Board for
preferring the evidence of Professor Hansen to that of the applicant’s.
[55]
The
respondent submits that neither of the applicant’s main concerns substantially
impeaches the US military justice system; namely, the persistence of UCI and
the possibility that prosecutorial discretion could be misused. The evidence
provided by the affiants does not indicate that even if the accused’s political
opinion was considered an aggravating factor in the use of prosecutorial
discretion, the accused could not appeal the decision. Similarly, there was no
evidence to suggest that persons alleging UCI are unable to exercise their
appeal rights.
[56]
The
respondent further submits that the Board reasonably interpreted the case of Huet-Vaughn
above to provide that, where a soldier receives an order to commit a
positive act that would be considered a war crime or other crime “so manifestly
beyond the legal power of a commander” to order, the defence of “unlawful
orders” is available. The applicant did not put evidence before the Board that
the conduct he observed would rise to the level contemplated in paragraph 171,
nor that he was ever ordered to perform such acts. The applicant also put no
evidence before the Board about the duties he would be assigned if re-deployed
and whether they would put him at risk of breaching the rules of armed
conflict.
[57]
The
respondent argues that the Board did not ignore evidence regarding the unlawful
order defence. It fully appreciated the evidence given by Ms. Cohn and Mr.
Gespass and concluded that this evidence did not demonstrate that the defence
of illegal order could not be advanced as a defence on a desertion charge, or
that the applicant would not be able to advance it in the circumstances of his
case. The respondent submits that pursuant to Colby v Canada (Minister of
Citizenship and Immigration), 2008 FC 805 the applicant must first
establish that the state would be unable or unwilling to protect him before the
Board can consider whether particular facts would bring him within paragraph
171 of the UNHCR handbook. The applicant did not do so.
[58]
The
respondent further submits that the test for adequate state protection is not
conformity with international or Charter standards. The respondent
submits that the Supreme Court in Genereux above, did not determine the
degree of judicial independence required by international law of any
court-martial system. Further, the criteria in Genereux and the Findlay v United Kingdom, [1997] ECHR 8, 24 EHRR 221 decision relied on by
the applicant have not risen to the level of peremptory international legal
norms. The American court-martial system meets the criteria of independence
established by the UNHCR General Comment No 32: it is independent of the
executive, judges enjoy protections guaranteeing security of tenure, and the
executive is not able to control or direct the conduct of a court-martial. Further,
absent a demonstration that the standards highlighted in the Genereux
decision represent minimum international norms, they cannot be used to assess a
sufficiency of the protection offered by a foreign legal system.
[59]
The
respondent submits that on the basis of the evidence before it, the Board could
reasonably find that the applicant would be adequately protected within the US military justice system. The continued existence of UCI does not rise to this level.
VII.
ANALYSIS
1)
Did the Board ignore or misinterpret evidence or fail to provide adequate
reasons for its treatment of the evidence?
[60]
Subject
to a complete breakdown of the state apparatus, states are presumed to be able
to protect their citizens. The applicant bears the onus to rebut this
presumption on a balance of probabilities with clear and convincing evidence of
the state’s inability to protect. This evidence can be either “testimony of
similarly situated individuals let down by the state protection arrangement or
the claimant's testimony of past personal incidents in which state protection
did not materialize” (Ward above at 724-725).
[61]
The
evidentiary burden to rebut the presumption is higher when the state in question
is a developed democracy. As the Federal Court held in Kadenko v Canada (Minister of Citizenship and Immigration) (1996),
143 DLR (4th) 532 (FCA) at paragraph 5:
When the state in question is a
democratic state, as in the case at bar, the claimant must do more than simply
show that he or she went to see some members of the police force and that his
or her efforts were unsuccessful. The burden of proof that rests on the
claimant is, in a way, directly proportional to the level of democracy in the
state in question: the more democratic the state's institutions, the more the
claimant must have done to exhaust all the courses of action open to him or her.
The
Federal Court of Appeal has further considered this elevated burden with
respect to the United States, noting in Hinzman above at paragraph 46, that:
The United States is a democratic country with a
system of checks and balances among its three branches of government, including
an independent judiciary and constitutional guarantees of due process. The
appellants therefore bear a heavy burden in attempting to rebut the presumption
that the United States is capable of protecting them and would be required to
prove that they exhausted all the domestic avenues available to them without
success before claiming refugee status in Canada. In Satiacum v. Canada (Minister of Employment & Immigration) (1989), 99 N.R. 171 (Fed. C.A.) at page 176 ("Satiacum") this Court was called upon to consider a claim of
insufficient state protection in the United States and commented on the
difficult task facing a claimant attempting to establish a failure of state
protection in the United States:
In the case of a non democratic
State, contrary evidence might be readily forthcoming, but in relation to a
democracy like the United States contrary evidence might have to go to the
extent of substantially impeaching, for example, the jury selection process in
the relevant part of the country, or the independence or fair-mindedness of the
judiciary itself.
[62]
The
Court agrees with the respondent that the findings of the Federal Court of
Appeal in Hinzman and Satiacum above are binding on this Court
and were so on the Board, it cannot interpret these cases as overturning the
Supreme Court’s decision in Ward above. The Supreme Court clearly stated
in Ward that a refugee claimant can rebut the presumption of state
protection with evidence of similarly situated individuals let down by the
arrangement of state protection.
[63]
It
was therefore open to the applicant to present evidence of similarly situated
individuals showing that the system of military justice in the United States was not a domestic avenue available to him in seeking state protection due to
the lack of independence, impartiality or the lack of defences to the charge of
desertion. But he also had to show on a balance of probabilities that
all of the avenues that were open to him would have resulted in an unfair
treatment because of the US military system of justice. [emphasis added]
[64]
The
Board, in turn, was under a duty to consider all evidence before it. This duty did not require
the Board to summarize all of the evidence in its decision so
long as it properly addressed evidence which contradicted its conclusions (see Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration)(1998), 157 FTR 35 (FCTD); Florea
v Canada (Minister of Employment and Immigration), [1993] FCJ No 598
(FCA)(QL)). The duty to assess this evidence increased with the expert nature
of the affiants providing it (see Gunes v Canada (Minister of Citizenship
and Immigration), 2008 FC 664; LYB v Canada (Minister of Citizenship and
Immigration), 2009 FC 462).
[65]
The
Board’s duty to explain itself increases directly with the relevance of the
evidence provided.
[66]
The
evidence presented by the applicant on the independence and impartiality of the
court-martial system in the US emanated from several individuals arguably
experts in US military law. Mr. Fidell is a Professor of law at Yale University and the President of the National Institute of Military Justice since 1991.
Mr. Rehkopf was a Judge Advocate in the US Air Force since 1976 and has been
practicing military law for 34 years. Ms. Cohn is a law professor and has
published widely on disengagement from the military in the United States.
[67]
After
summarizing the evidence on for several pages, the Board’s analysis of the five
affiant’s evidence was somewhat limited. The only conclusion drawn by the Board
is that while UCI is a problem, it can be raised as a defence. This and the
self-correcting mechanism of article 37 demonstrate that state protection is
available. The Board did not comment specifically on all the evidence of the
affiants which directly stated that these self-correcting mechanisms were
ineffective. The Board did not address the findings of the affiants on the jury
selection process, the lack of tenure provided to military judges and the
inadequacy of appellate judges. Nor did it indicate why it preferred the
evidence of Professor Hansen to that of the four other affiants. But
nonetheless it concluded, at paragraph 93 of its decision, that: ”Effectiveness
in state protection is a consideration but I find that, on a balance of
probabilities, the evidence does not substantially impeach the US military system.” Was this conclusion of the Board reasonable?
[68]
As
Mr. Justice de Montigny held in Smith v Canada (Minister of Citizenship and
Immigration), 2009 FC 1194, also commenting on the Board’s assessment of Mr. Rehkopf: “…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…”. Justice de Montigny further held at
paragraph 69 that:
…«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 Court finds
the Board’s lack of analysis of the evidence before it concerning the
independence and impartiality of the US court-martial system, as well as the
lack of reasons for preferring contrary evidence to that of the applicant to be
unreasonable since the documentary evidence ignored by the Board in its reasons
goes to the one of the central issues of applicant’s claim.
[69]
Concerning
the US Court of Appeals for the Armed Forces case Huet-Vaughn, the Court
agrees with the applicant that the Board’s interpretation of the case was
unreasonable. The US Court of Appeals for the Armed Forces held that:
43. To the extent that CPT Huet-Vaughn quit her
unit because of moral or ethical reservations, her beliefs were irrelevant
because they did not constitute a defence…
45. To the extent that CPT Huet-Vaughn's acts were
a refusal to obey an order that she perceived to be unlawful, the proffered
evidence was irrelevant. The so-called "Nuremberg defense" applies
only to individual acts committed in wartime; it does not apply to the Government's
decision to wage war. […] The duty to disobey an unlawful order applies only
to "a positive act that constitutes a crime" that is "so
manifestly beyond the legal power or discretion of the commander as to admit of
no rational doubt of their unlawfulness." […] CPT Huet-Vaughn tendered no
evidence that she was individually ordered to commit a "positive act"
that would be a war crime.
[70]
The
Board concluded that this decision did not stand for the principle that “the
defence of an unlawful order only applies to extreme cases such as war crimes
or grave breaches of the Geneva Convention” and that the “United States Court
of Appeals for the Armed Forces has not decided whether an individual could
raise the question of whether he or she had been ordered to commit an unlawful
act”.
[71]
However,
the applicant’s submissions before the Board were that for the charge of
desertion, not disobeying orders, there is no defence. This was corroborated
with evidence before the Board from two experts and three members of the US military. While the Board summarized this evidence in the decision, it did not analyze
it or provide reasons for rejecting it. Rather, the Board focused on the right
of appeal within the court-martial system and found that similarly situated
individuals would be able to appeal their cases to the US Supreme Court, which
they have not done, and therefore avenues of state protection remain.
[72]
The
Court finds this to be an unreasonable conclusion. First, as the applicant
noted in reply, leave to the US Supreme Court was denied in the case of Huet-Vaughn,
making this the prevailing law. Further, the evidence of the professors,
practitioner, and military members in addition to the case of Huet-Vaughn
demonstrate that the charge of desertion operates as a strict liability offence
where motive for desertion is not relevant.
[73]
The
UNHCR Handbook acknowledges that, as a general rule, prosecution of deserters
does not amount to persecution. However, paragraph 171 provides a caveat:
Not every conviction, genuine though it may be, will
constitute a sufficient reason for claiming refugee status after desertion or
draft-evasion. It is not enough for a person to be in disagreement with his
government regarding the political justification for a particular military action.
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.
[74]
While
the Board correctly noted that Justice Zinn held in Lowell above, that
the applicant must first show that state protection is unavailable before
raising the facts under paragraph 171 of the UNHCR handbook, the applicant’s
argument went directly to the issue of state protection.
[75]
Given
that the applicant would not be able to present evidence of his motive for
desertion nor of the illegality of the conduct that he was required to perform
in Afghanistan which could demonstrate a breach of the Geneva Conventions on
the rules of armed conflict, this goes directly to the availability of state
protection.
[76]
As
noted above, the Board was under a duty to consider the evidence before it and
address that which conflicted with its conclusions. It had to provide adequate
analysis and reasons for rejecting such evidence. The failure to do so with
respect to the issue of applicable defences to the charge of desertion in US
court-martial proceedings was unreasonable.
2)
Did the Board err in its analysis of state protection?
[77]
The
applicant argued before Board that there is no state protection for the
discriminatory application of prosecutorial discretion. The applicant presented
evidence before the Board indicating that while the large part of deserters are
administratively discharged, those who speak out publicly against the war in Iraq were selected to be court-martialled and prosecuted for desertion. This Court
recognized the disproportionate prosecution for desertion of those who have
spoken out against the wars in Iraq and Afghanistan.
[78]
For
example, in Rivera v Canada (Minister of Citizenship and Immigration), 2009
FC 814 Mr. Justice Russell reviewed a decision of the Board concerning the use
of prosecutorial discretion to target individuals more severely through the
court-martial process who have spoken out against the war. At paragraph 101,
Justice Russell concluded of the Board’s decision that:
…the whole
state protection analysis needs to be reconsidered in the light of the stated
risk, and supporting evidence, that the U.S. authorities will not neutrally
apply a law of general application, but will target the Principal Applicant for
prosecution and punishment solely because of her political opinion in a context
where other deserters, who have not spoken out against the war in Iraq, have
been dealt with by way of administrative discharge.
[79]
The
Board in the case at bar largely ignored the evidence presented by the
applicant about similarly situated individuals and prosecutorial discretion.
The Board concluded that using prosecutorial discretion is a benefit to the
justice system and is appropriate where there are aggravating factors.
[80]
Paragraph
169 of the UNCHR handbook indicates that:
A deserter or draft-evader may also be considered a
refugee if it can be shown that he would suffer disproportionately severe
punishment for the military offence on account of his race, religion,
nationality, membership of a particular social group or political opinion. The
same would apply if it can be shown that he has well-founded fear of
persecution on these grounds above and beyond the punishment for desertion.
[81]
As
such, the UNHCR handbook, as well as the jurisprudence above, hold that where
prosecutorial discretion is used to inflict a disproportionately severe
punishment on a deserter because of his or her political opinion, this may
amount to persecution.
[82]
The
Court finds that the Board’s failure to assess the evidence before it
concerning the application of prosecutorial discretion on the grounds of
political opinion was unreasonable.
[83]
Similarly,
the Board speculated that “the ability to raise UCI as a defence presumably
applies to the exercise of prosecutorial discretion.” There was no evidence
before the Board to support such a finding.
[84]
As
the Federal Court of Appeal held in Satiacum above, the
Board’s findings cannot be based upon evidence that is the "sheerest
conjecture or the merest speculation". As such, the
Court finds that Board’s analysis on the misuse of prosecutorial discretion in
US court-marital proceedings was unreasonable.
[85]
Given
the analysis above concerning the Board’s mistreatment of the evidence about
the availability of state protection and its unreasonable conclusions on the
use of prosecutorial discretion, the Court concludes that it would be incorrect
to allow this decision to stand.
[86]
The
application for judicial review is allowed.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The
application for judicial review is allowed.
2. There
is no question of general importance to certify.
« Andre F.J. Scott »
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