Date: 20110118
Docket: IMM-2116-10
Citation: 2011 FC 55
Toronto, Ontario, January 18, 2011
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
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SARDUL SINGH WARAINCH
DALBIR KAUR WARAINCH and SUKHWINDER
KAUR WARAINCH
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Applicants
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and
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THE MINISTER OF CITIZENSHIP &
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of the First Secretary
(Immigration) of the Canadian High Commission in India dated 9
March, 2010 refusing the application of the Principal Applicant to enter Canada as a
permanent resident. The Secretary determined that the Principal Applicant had
committed crimes against humanity and thus was inadmissible under the provisions
of sections 35(1)(a) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27, IRPA). For the reasons that follow, I am dismissing this
application.
[2]
The
Principal Applicant is an adult male citizen of India. At the
relevant time he was a member of the Punjabi Police Force (PPF). His Counsel
admits that the evidence demonstrates that, during his tenure with the PPF,
that Force engaged in acts of violence against civilians, including
interrogations accompanied by beatings, and that the Principal Applicant
himself admitted to using such methods “but only once or twice”. It is also
admitted that the Principal Applicant was engaged in delivering civilians to
premises which he knew were being used by the PPF for that purpose.
[3]
Given
such admissions, it is also admitted that, based upon the record as it
presently stands, a person such as the First Secretary could reasonably
conclude that the Principal Applicant is inadmissible into Canada by reason of
having committed serious crimes. The issue in the present case is whether the
Principal Applicant is inadmissible for having committed a crime against
humanity as provided for in section 35(1)(a) of the IRPA.
35. (1) A permanent resident or a
foreign national is inadmissible on grounds of violating human or international
rights for
(a) committing an act outside Canada that constitutes an
offence referred to in sections 4 to 7 of the Crimes Against Humanity and War
Crimes Act;
[4]
The
distinction is important in that, if the Principal Applicant is found to be
inadmissible only for a serious crime, a right to appeal to the Immigration
Appeal Division exists under section 64(1) of the IRPA, whereas if it has been
determined that the Principal Applicant committed a crime against humanity, no
right to appeal exists.
[5]
In
the present case, the Principal Applicant was interviewed by the First
Secretary, who made more or less verbatim notes of the questions asked and
answers given, as well as the conclusions arrived at by the First Secretary as
a result. All of this is recorded in the so-called CAIPS notes, which are part
of the record and form part of the reasons for the First Secretary’s decision.
Those notes include the following entries:
There is no doubt in my mind that
applicant of his own admission was complicit and took part in the commission of
human rights abuses includign (sic) acts of arbitrary arrests and torture-like
methods of interrogation. he admittedusing (sic) it a few times and being well
aware of themethods (sic) being used in the inerrogations (sic)centres where he
would turn over people he ahd (sic)arrested. He also knew a out the summary
executions, rapes, disappearances and other gross human righhts (sic) violations
and neither denounce nor condemn them. He only expressed dismay that some
people actually engaged in them to obtain faster promotions! He also admitted
that both he and other who used forceful interrogation methods and techniques
were consciously breaking Indian laws.
Procedural fairness letter re A35 will be
sent to give PA opportunity to respond to charges.
. . .
Pa/s answer to my procedural fairness
letter is to say that he respects and uphel (sic) human rights and did not do
anything wrong during his career wit the Punjabi Police Force.However (sic) the
fact remains that during hisinterview(sic) he admits using only once or twice.
I am spectical (sic) that in 40 years he only used such methods once or
twice111) beatings and other forceful interrogation techniques on suspects.
Ithink (sic) he probably used it mroe (sic) often and perhaps on a regular
basis as this was the prevalent culture in the PPF at the time.Thre’s (sic) no
questions that he delivered suspects to be submitted to torture and mistreated
(prisoners himself. he admitted that those who committed such acts vioplated
(sic) Indian law and that included himself although he tried to disculpate
(sic) himself by saying eh was acting under orders from his superiors.Thus
(sic) I am satisfied that he is inadmissible under A 35 (1) m (a) of IRPA.
[6]
As
a result, the First Secretary sent a letter dated 8 March 2010 to the Principal
Applicant refusing his application for a visa to enter Canada as a
permanent resident. This letter, which is the decision at issue, stated inter
alia:
This letter concerns your application for
admission to Canada.
After careful and thorough consideration
of all aspects of your application and the supporting information provided, I
have determined that you do not meet the requirements for a permanent resident
visa.
Your application is refused because there
is reason to believe that you are a member of the inadmissible class of persons
described in paragraph 35(1)(a) of the Immigration and Refugee Protection Act,
namely:
35.(1)(a) committing an act outside
Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes
Against Humanity and War Crimes Act.
. . .
Specifically, from 1963 until 2001 you
have been employed as a police officer with the Punjabi Police Force. Your
initial rank was Sepoy Constable and you retired with the rank of Assistant
Commander in June 2001.
During your interview, you admitted that
you used such methods as beating suspects on the soles, pulling their hair,
depriving them of sleep and keeping them standing up for hours. You also
admitted to taking part in summary arrests and also carrying out orders from
your superiors that you knew were illegal. You also admitted having full
knowledge about the use of torture and other human violations and even
condoning them. You also admitted that all those who used such forceful or
third degree interrogation methods and techniques were consciously breaking
Indian laws.
You did not express any regrets nor
remorse for your actions and those of others who served with you in the Punjabi
Police Force nor did you dissociated yourself from the organisation for which
you worked for 38 years. In fact the only dissatisfaction that you expressed
about the use of such methods was that they were used by some to get faster
promotions.
Given the above, there are reasonable
grounds to believe that you are a member of the inadmissible class of persons
described in subsection 35(1)(a) of the Immigration and Refugee Protection Act.
ISSUE
[7]
The
issue is whether the First Secretary applied the correct legal test in coming
to the conclusion that the Principal Applicant committed crimes against
humanity.
ANALYSIS
[8]
It
is admitted that the Principal Applicant, at least on one or two occasions,
committed acts of violence against civilians. It is further admitted that he
delivered persons, largely civilians, to others who committed such acts. He did
not endeavour to disassociate himself from the PPF or those conducting such
activities.
[9]
In
order to constitute a crime against humanity, the Supreme Court of Canada in Mugusera
v. Canada (Minister of
Citizenship and Immigration), [2005] 2 S.C.R. 100 enumerated four
elements that must be established. Joint reasons were written, which said at
paragraph 119:
119 As we
shall see, based on the provisions of the Criminal Code and the principles of
international law, a criminal act rises to the level of a crime against
humanity when four elements are made out:
1. An enumerated proscribed act was
committed (this involves showing that the accused committed the criminal act
and had the requisite guilty state of mind for the underlying act);
2. The act was committed as part of a
widespread or systematic attack;
3. The attack was directed against any
civilian population or any identifiable group of persons; and
4. The person committing the proscribed
act knew of the attack and knew or took the risk that his or her act comprised
a part of that attack.
[10]
Of
particular concern in the present case is whether the attacks were either
widespread or systematic. These concepts were described by the Supreme Court at
paragraphs 154 to 156 of Mugusera:
154 A
widespread attack "may be defined as massive, frequent, large
scale action, carried out collectively with considerable seriousness and directed
against a multiplicity of victims" -- it need not be carried out pursuant
to a specific strategy, policy or plan: Akayesu, Trial
Chamber, at para. 580; and Prosecutor v. Kayishema, Case No. ICTR-95-1-T (Trial Chamber II), 21 May 1999, at
para. 123. It may consist of a number of acts or of one act of great magnitude:
Mettraux, at p. 260.
155 A
systematic attack is one that is "thoroughly organised and
follow[s] a regular pattern on the basis of a common policy involving
substantial public or private resources" and is "carried out pursuant
to a ... policy or plan", although the policy need not be an official
state policy and the number of victims affected is not determinative: Akayesu, Trial Chamber, at para. 580; and Kayishema, at para. 123. As noted by the ICTY's Trial Chamber in Kunarac, at para. 429: "The adjective 'systematic'
signifies the organised nature of the acts of violence and the improbability of
their random occurrence. Patterns of crimes -- that is the non-accidental
repetition of similar criminal conduct on a regular basis -- are a common
expression of such systematic occurrence."
156 An
attack need be only widespread or systematic to come within the scope of s. 7(3.76), not
both: Tadic, Trial Chamber, at para. 648; Kayishema, at para. 123. The widespread or systematic nature of the
attack will ultimately be determined by examining the means, methods, resources
and results of the attack upon a civilian population: Kunarac, at para. 430. Only the attack needs to be widespread or systematic,
not the act of the accused. The IAD, relying on Sivakumar,
appears to have confused these notions, and to the extent that it did, it erred
in law. Even a single act may constitute a crime against humanity as long as
the attack it forms a part of is widespread or systematic and is directed
against a [page160] civilian population: Prosecutor v. Mrksic,
Radic and Sljivancanin, 108 ILR 53
(ICTY, Trial Chamber I 1996), at para. 30.
[11]
In
the present case, the concern is whether the First Secretary directed his mind
to whether the attacks which were committed by the Principal Applicant
personally or by others in the PPF to whom he delivered persons or of which he
had knowledge, were either “widespread” or “systematic” as defined by the
Supreme Court of Canada.
[12]
I
have no doubt, particularly in reading the CAIPS notes set out earlier in these
reasons, that the First Secretary addressed his mind not only to the acts of
violence; but also to the scale of the acts carried out by the PPF, the
multiplicity of victims, that the PPF carried out such attacks as part of a
policy, the “persistent culture” , and that they were not simply random or
accidental. In other words, the acts were both widespread and systematic, even
though they needed only to be one or the other to constitute a crime against
humanity.
[13]
The
next question is whether the reasons, including the CAIPS notes, make it
sufficiently clear that the First Secretary directed his mind to the issue as
to whether the attacks were widespread or systematic. The letter of 8 March
2010 does not. However, I find that the CAIPS notes make it sufficiently clear
that the mind of the First Secretary was appropriately directed to the issues.
One is not required to hold such a person to a standard of clarity and legal analysis
that would impress even the most critical reader. It is enough that it be
sufficiently clear that the relevant issues were addressed. Here, it is
sufficiently clear.
[14]
Given
that the First Secretary’s mind was directed to the appropriate issues, the
determinations made on the evidence I find to be reasonable and correct and
should not be set aside. Accordingly, the application will be dismissed. No
party requested a certified question.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1.
The
application is dismissed;
2.
No
question is to be certified; and
3.
No
Order as to costs.
“Roger T.
Hughes”
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