Date: 20071015
Docket: IMM-4383-06
Citation: 2007
FC 1050
Ottawa, Ontario, October 15, 2007
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
RODOLFO
GUERRERO PACIFICADOR
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Rodolfo
Pacificador is a fugitive from the Philippines,
who is wanted to stand trial for his role in the 1986 murder of a major
political figure and rival. For two decades, he has been subject to extensive
immigration and extradition proceedings in Canada.
[2]
In July
2006, the Immigration and Refugee Board’s Refugee Protection Division (the
Board) decided Mr. Pacificador was neither a Convention refugee nor a person in
need of protection. It was the second time the Board held a hearing into Mr.
Pacificador’s refugee status, because this Court had quashed the Board’s first
refugee decision on judicial review. Indeed, this Court also quashed a
conditional deportation order from the Board in an earlier application for
judicial review. This is therefore Mr. Pacificador’s third application for
judicial review in this Court.
[3]
Mr.
Pacificador argues that the Board erred by narrowly construing the comparator
group to assess his risk of prosecution. He also submits the Board applied the
wrong standard of proof, and did not properly address the possible risk of
arbitrary detention and torture at the hands of Philippine authorities.
[4]
The
Minister submits Mr. Pacificador’s attacks are disguised challenges to the
Board’s weighing of the evidence. The panel properly focused on the recent
trial decision from the Philippines, it is argued, acquitting
some of Mr. Pacificador’s co-accused and convicting others. As a result, the
Board’s assessment was logical and reasoned, and should not be disturbed.
[5]
For the
reasons that follow, I would allow this application.
FACTS
[6]
The
applicant comes from a family that has been prominent in Antique provincial
politics and Philippine national politics for many years. He and his father,
Arturo Pacificator, were political allies of Ferdinand E. Marcos. Commencing in
1971, his father held various elected offices culminating in 1984 with his
appointment as Minister of State for Public Works and Highways, and majority
floor leader of President Marcos’ party in the national parliament. As for the
applicant, he worked in his father’s constituency office and developed his own
political support in Antique. Both father and son supported President Marcos in
the presidential election that took place on February 7, 1986.
[7]
A few days
after the election, Mr. Evelio Javier was shot dead while monitoring
vote-counting in the plaza of San Jose, in Antique. Mr. Javier was a national
politician and a member of one of the families supporting Corazon C. Aquino,
thus a rival of the Pacificador family. Five others were wounded by a group of
men who were heavily armed and disguised in balaclavas. This incident took
place during a tense period, as President Marcos was being accused of having manipulated
the election. Later that year, Corazon C. Aquino was declared President.
[8]
Shortly
thereafter, both the applicant and his father fled the Philippines, as they were suspected of the killing. The
applicant transited through Thailand, Hong Kong,
Singapore and the US before arriving in Canada on September 29, 1987. He
claimed refugee status at the port of entry in Niagara Falls.
[9]
Witnesses
identified two known associates of the applicant’s family as being among the
assassins, but no witness saw the applicant at the scene of the killing. In the
following months and years, however, some witnesses alleged that the
Pacificadors were involved in ordering the murder, supplying masks for the
killers, and giving the killers aid and clothing after the killing. As a
result, the applicant, his father and five others were charged with offences
arising out of the February 11, 1986 assassination (murder, frustrated murder
of one bystander and attempted murder of four others). The prosecution filed
amended informations over several years naming other suspects, eventually
bringing the total number of people charged to 21.
[10]
The
Minister, through the former Refugee Status Advisory Committee, found Mr.
Pacificador was not a Convention refugee on October 1, 1988. The applicant
appealed to the Immigration Appeal Board. When the new immigration legislation
was enacted in January 1989, Mr. Pacificador’s case became part of the refugee
backlog program. In 1991, a “credible basis tribunal” constituted pursuant to
the legislation in force at that time found in a split decision that there was
a credible basis for his claim. As a result, his claim was referred to the Convention
Refugee Determination Division (the CRDD) for a full hearing; contrary to the
legislation, however, the claim did not proceed to hearing until 1999.
[11]
In the
meantime, the Philippine Supreme Court issued a Temporary Restraining Order
(TRO) on September 22, 1989, ordering the presiding judge to “cease and desist
from further acting” in this case. The Court was apparently responding to the
prosecution’s claim that the presiding judge was biased in favour of one of the
accused. The Court upheld the TRO three years later, in September. The
prosecution took the position that the TRO effectively prevented any further
proceedings against the accused. Despite numerous petitions to have the TRO set
aside, the Supreme Court of the Philippines
did not respond and so the case for all intent and purposes ground to a halt
for ten years. As will be explained below, it is only as a result of pressure
from the Ontario Courts to rectify what they considered unconscionable
pre-trial delay and detention that the Supreme Court of the Philippines finally lifted the TRO in the
summer of 1999.
[12]
On
November 12, 1990, Canada and the Philippines
signed an extradition treaty. It appears that the negotiations leading to that
treaty were largely motivated by the Philippines’
desire to secure the applicant’s return so that he could face murder charges.
[13]
On
November 12, 1991, Mr. Pacificador was arrested on a Warrant of Apprehension
under the old Extradition Act, R.S.C. 1985, c. E-23. He was committed
for extradition in October, 1992. His application for habeas corpus was
dismissed on February 5, 1993, and the Ontario Court of Appeal dismissed his
appeal on July 29, 1993. Leave to appeal was dismissed by the Supreme Court of
Canada on April 28, 1994.
[14]
The
Minister of Justice then ordered that Mr. Pacificador be surrendered for
extradition to the Philippines in October 1996. The Minister
acknowledged “weaknesses and inconsistencies” in the evidence against the
applicant, but rejected his submission that the prosecution against him was
politically motivated and that the Philippines’
extradition request was made for the purpose of punishing him for his political
beliefs. The Minister nevertheless sought and obtained two assurances from the Philippines to ostensibly preserve Mr.
Pacificador’s section 7 rights under the Canadian Charter of Rights and
Freedoms (the Charter). First, he obtained an assurance that the
death penalty would not be imposed or carried out on the applicant, and second,
that the Philippines would exert its best efforts
to ensure that the applicant’s trial would be completed within one year from
the date of his surrender.
[15]
On
November 1, 1996, the applicant applied for habeas corpus, certiorari,
prohibition and relief under section 24 of the Charter to quash the
warrant of surrender or, in the alternative, to stay or prohibit his surrender
pending the determination of his refugee claim. In support of his application,
the applicant sought to introduce several affidavits providing evidence on the
treatment of co-accused and witnesses and on the TRO issued by the Supreme
Court of the Philippines. This evidence was not
contradicted by the respondent, who did not cross-examine the affiants or lead
evidence to challenge their evidence.
[16]
The
application judge refused to admit all but two of the affidavits, but granted
an adjournment to give the applicant an opportunity to request that the
Minister of Justice, then Anne McLellan, reconsider former Minister Rock’s
decision in light of the new evidence. On March 19, 1998, Minister McLellan
declined to reconsider the surrender decision.
[17]
On May 19,
1998, Mr. Pacificador’s application to quash or stay the warrant of surrender
came before the applications judge again, who eventually released three sets of
reasons. Justice Dambrot found, in reasons dated January 18, 1999 ([1999] O.J.
No. 35 (QL)), that it would violate section 7 of the Charter to
surrender a fugitive to a state were he would not receive a trial or bail
hearing within a reasonable amount of time. He held, at para. 53:
I do not pretend to have a full
appreciation of the rationale for, or the significance of the procedural
goings-on in this case in the courts of the Philippines. I have no view of the legal correctness
of the current state of affairs, but what is uncontradicted in the record
before me is this: all proceedings arising out of the Javier killing are
subject to a restraining order. As a result, the trial of two of the accused,
which was in the defence stage, has been halted for several years. Two other
accused have been unable to have bail hearings for several years for the same
reason. All of these accused remain in custody in the interim. On the face of
it, the applicant will find himself in the same position if he is returned to
the Philippines. It requires little analysis
to come to the conclusion that to surrender a fugitive to a requesting state
where he will be unable to have a bail hearing or a trial in the foreseeable
future would deprive the fugitive of his right to liberty and security of the
person in a manner that does not conform to the principles of fundamental
justice, contrary to s. 7 of the Charter.
[18]
Justice
Dambrot did not doubt the good faith of the Philippine government in giving its
assurance, but was of the view that it could not give an assurance that the
court would lift its restraint order and permit the bail hearing and trial of
Mr. Pacificador, should he be surrendered, to proceed expeditiously, since the
government does not control the judiciary. The applications judge also noted
that a similar undertaking in respect of the applicant’s father, who had
surrendered in 1995, had been ineffective. However, Justice Dambrot withheld
his final determination to allow the Minister an opportunity to supplement the
record. The Minister took that opportunity and requested further information
form the Philippines. In a diplomatic note dated
March 2, 1999, the embassy of the Philippines
stated that the TRO did not apply to the applicant and that the Philippines’ Constitution guaranteed
accused persons the right to a speedy trial. The Solicitor General of the Philippines also filed a motion in the
Supreme Court of that country to lift the TRO. In his second set of reasons dated
May 31, 1999, Justice Dambrot found that the foregoing material filed by the
Minister did not alter his conclusion that the applicant’s surrender would
violate his section 7 rights. Once again, he reserved his decision and gave the
Minister another opportunity to file additional material.
[19]
Finally,
in the summer of 1999, the Supreme Court of the Philippines lifted the TRO without explanation. The
trials and bail hearings of the accused resumed on September 27, 1999. The
prosecutor was also instructed to conclude the proceedings as quickly as
possible. As a result of this new evidence, Justice Dambrot felt his concerns
had been addressed and dismissed Mr. Pacificador’s application to quash the
warrant on October 19, 1999.
[20]
On August
1, 2002, the Ontario Court of Appeal set aside Mr. Justice Dambrot’s decision:
(2002), 60 O.R. (3d) 685 (permission to appeal denied: [2002] S.C.C.A. No.
390). The Court found the criminal procedures applied in the Javier murder
trial were sufficiently shocking that extraditing Mr. Pacificador would violate
section 7 of the Charter. The Court was particularly disturbed by the
fact that the Supreme Court of the Philippines
repeatedly failed to respond to requests to lift the TRO by the applicant’s
co-accused, who were in detention. The Court noted that the very institution to
which the applicant would have to look for protection from delay and political
manipulation was the cause of the unconscionable delay and failed to explain
the reason for the order and its continuation for more than a decade. The Court
also found unpersuasive the assurance that the delay and pre-trial detention of
the applicant’s co-accused would not be inflicted on the applicant as well. Mr.
Justice Sharpe, for a unanimous Court, wrote:
[52] …The Supreme Court lifted the order
only after the Solicitor General’s motion suggesting that Ontario courts would compare the
appellant’s situation with that of his co-accused and only after the
applications judge held that he would set aside the appellant’s surrender if the
Temporary Restraining Order were not lifted. I find it significant that the
only arguments to catch the court’s attention for over ten years were the
submission that nothing else would procure the appellant’s surrender and the
indication from a Canadian judge that the appellant’s surrender order would
soon be set aside.
[21]
In
parallel with these extradition proceedings, the refugee proceedings were also
running their course. In 1997, the Minister issued a Direction for Inquiry and
a report alleging Mr. Pacificador had committed foreign acts of criminality and
was therefore a person described under section 19(1)(c.1)(ii) of the old Immigration
Act. An immigration inquiry was eventually convened before the Immigration
and Refugee Board, Adjudication Division, on this allegation. The inquiry
resulted in a finding that the description of Mr. Pacificador in the report was
accurate and a conditional deportation order was issued in December 1999. Pursuant
to that decision, the deportation order would come into effect only if the
applicant’s refugee claim was finally determined against him.
[22]
Mr.
Pacificador successfully applied for judicial review of the Board’s order. Justice
O’Keefe found the order gave rise to a reasonable apprehension of bias, and set
it aside: Pacificador v. Canada (Minister of Citizenship and
Immigration),
2001 FCT 426. However, instead of proceeding with the rehearing, the Minister
withdrew the section 19(1)(c.1) proceedings against Mr. Pacificador.
[23]
In
February 2000, Mr. Pacificador’s refugee hearing opened before the then CRDD. In
a decision dated July 19, 2002, the Board found Mr. Pacificador was not
excluded from claiming refugee status under article 1F(B) of the Convention relating
to the Status of Refugees. It decided the Minister had not discharged his
onus of showing that there were reasonable grounds to believe Mr. Pacificador
had committed a serious non-political crime in the Philippines, mainly because
the prosecution’s case in the Philippines was “badly tainted by corruption and
interference, and that it is an inconsistent implausible shambles”.
[24]
Having
said that, the Board nevertheless found Mr. Pacificador was not a Convention
refugee because he did not have a well-founded fear of persecution. It based
this conclusion on the fact that Mr. Pacificador, being a man of wealth and
prestige, would be able to avoid beating, torture, harsh prison conditions,
unfair conviction and death that are prevalent in the Philippine judicial
system. The Board also based its conclusion on the fact that Mr. Pacificador’s
father had not been tortured, mistreated, detained arbitrarily and/or held incommunicado
while awaiting trial for the same crime. It is worth stressing that the Board
made its decision without the benefit of the Ontario Court of Appeal’s
decision, which was released two weeks later.
[25]
On
December 12, 2003, Justice Heneghan quashed the Board’s decision rejecting Mr.
Pacificador’s refugee claim (Pacificador v. Canada (Minister of Citizenship and
Immigration),
2003 FC 1462). She found that it was “perverse” to conclude that the applicant would
not have an objectively well-founded fear of persecution because he appeared to
be a person who could use a corrupt judicial system to his benefit. She also
found that the Board erred by limiting the comparison of the applicant to only
one other similarly situated person, that is, his father; in her view, the
Board should have looked at the group of persons who were prosecuted for
political motives and whose prosecution appeared to be tainted by corruption to
determine if the applicant had an objective basis for his fear. Justice
Heneghan wrote:
[78] The Board found that the
prosecution of the Applicant was highly tainted by corruption and that such
corruption was due to his political and family affiliation, a ground for
claiming Convention refugee status. The fact that the Applicant’s father was
not abused or tortured is not determinative, in my opinion, of the Applicant’s
claim for Convention refugee status. I conclude that the Board erred in its
conclusion concerning the objective basis of the Applicant’s claim. That error
is sufficient to allow this application for judicial review.
[26]
Subsequent
to the decision of Madam Justice Heneghan, but before the new hearing of Mr.
Pacificador’s refugee claim, the Regional Trial Court of the Sixth Judicial
Region, Branch 12 in San
Jose, Antique,
acquitted Arturo Pacificador and three of his co-accused of all charges
relating to Mr. Javier’s murder. The Court also found seven of the accused
guilty of all charges. One was found guilty of being an accomplice to the
murder and acquitted on the other charges. The cases against Rodolfo
Pacificador, another suspect and various accused not yet properly identified or
arrested were archived to be re-instated upon their arrest.
THE IMPUGNED DECISION
[27]
The panel
held a pre-hearing conference and decided to contact the Minister to see if he
intended to make submissions with respect to the exclusion issue, in light of
the verdict reached by the Philippines
Court. The Board
also decided that it did not need to revisit the issue of nexus, which had been
established at Mr. Pacificador’s first hearing. However, since the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA) had come
into effect after that hearing, the panel would hear section 97 issues for the
first time.
[28]
The Board
declined to revisit the issue of exclusion, which had been addressed by the
first panel who heard Mr. Pacificador’s case. The Board endorsed the earlier
panel’s finding that the prosecution’s case was “badly tainted by corruption
and interference, and that it [was] an inconsistent, implausible shambles”. The
Board noted that the Minister did not appeal that decision. As he indicated
that he did not intend to participate in the re-hearing of Mr. Pacificador’s
claim, the Board took it as an indication the Minister had no new evidence
which might affect the earlier panel’s decision.
[29]
As for
inclusion, the panel made it clear from the outset it considered the verdicts
in the Javier murder trial “the most significant new evidence” since Mr.
Pacificador’s first hearing, although it also considered Justice Heneghan’s
decision and that of the Ontario Court of Appeal.
[30]
In light
of the well-known rivalry between the Javier and Pacificador families, the Board
found it logical that Arturo and Rodolfo Pacificador were both immediately
considered suspects in the Javier murder. There was nothing inherently
persecutorial about it. The Board also acknowledged documentary evidence
showing that the judiciary in the Philippines
is not free and independent. However, the fact that Arturo Pacificador and
others were ultimately acquitted of all charges made it very difficult to argue
that the applicant’s trial would be politically motivated and unfair. As the
Board wrote (A.R., pp. 23-124):
Had his father been found guilty despite
his protestations of innocence, the claimant could point to the result as
confirmation of his fears. Given the outcome of the trial, the panel does not
accept that the Court was corrupted or politically influenced. In fact, once
the trial got underway, either there was no attempt to apply political pressure
to the court or the court rose above any attempted political manipulation. The
court found that the prosecution simply had not discharged their burden with
evidence sufficient to support a conviction of Arturo Pacificador and others
beyond a reasonable doubt. In the cases of those accused found guilty, the
prosecution was able to prove guilt beyond a reasonable doubt. The panel has to
assume, reading the decision of Judge Castrojas and without persuasive evidence
to the contrary, that once the trials were underway, they were fair and not
politically influenced. There is no other rational way to explain the
acquittals.
[31]
The Board
also rejected the applicant’s theory that his father had been acquitted to
mislead the Canadian government into returning him to the Philippines as “speculation”, and found
that Mr. Pacificador’s claims that the prosecution against him was politically
motivated was hardly credible in light of the adverse reactions to the verdicts
from the very people who are allegedly behind the persecution..
[32]
With
respect to fair trial, the Board also found that the Philippine trial was
conducted in accordance with the rules of natural justice. The accused had
access to counsel, the presumption of innocence applied, and the accused had
the right to know the case against them and to refute it. More than 50
witnesses testified. The prosecution had the burden of proof. The Court also
relied on the rule against hearsay and looked to case law for legal principles.
[33]
The Board
rejected Mr. Pacificador’s argument that the Philippine court acquitted his
father so that Canada would deport him. It found it
“strained credulity” to accept that a corrupt judiciary would release Arturo Pacificador,
whose reputation was far more notorious than his son’s, on the hope that Canada would perceive this as a sign
of a fair trial and return his son. It rejected Mr. Pacificador’s claim that
Philippine rivals see him as a larger threat than his father, because he is the
“heir apparent” to his family’s legacy.
[34]
Once the
TRO was finally lifted in 1999, it took approximately five years for the trial
to conclude and Judge Castrojas to release his decision. Given the complexity
of the case and the number of accused, this was not unreasonable. The Board
felt obliged to note that Mr. Pacificador himself had spent more than six years
in a Canadian prison, awaiting the outcome of his extradition case.
[35]
Finally,
the panel considered Arturo Pacificador’s acquittal as a sign that his son
would receive a fair trial on his return. The Board wrote (A.R., p. 30):
While hastening to repeat that it is not
within this panel’s jurisdiction to make a finding concerning the claimant’s
criminal guilt, the panel does agree with the various tribunals and courts that
have exhaustively examined the claimant’s situation and arrived at a consensus
that the evidence against him is a “shambles” and a “contradictory mess”. The
panel goes one step further and finds that in light of the decision of Judge
Castrojas, the Court in the Philippines made a similar finding in
relation to the claimant’s father and others in acquitting them because the
prosecution evidence did not prove their guilt beyond a reasonable doubt. This
provides support for the position that if the case against the claimant is
indeed a “shambles” and a “contradictory mess”, he too will get a fair trial,
and if the prosecution cannot prove his guilt beyond a reasonable doubt, he
will be acquitted.
[36]
The Board
then considered the lengthy pre-trial detention as the key issue in its
decision. It focused on the fact that the accused had been held in jail for an
inordinately long time, without their trials proceeding and for some without
opportunity for bail hearings. There was also evidence that some accused had
been mistreated and/or tortured.
[37]
The Board
looked at whether the trial verdicts, as new evidence, established Mr.
Pacificador would be at risk under section 97 of the IRPA. It accepted that
the accused had been detained for too long in the Philippines, such that their pre-trial detention breached
their right to trial within a reasonable time and their right not to be held
indefinitely in custody without bail. The Board found the TRO was the cause of
the unacceptable delay, and clearly created a situation of persecution in terms
of detention during the delay of the trials and bail hearings. But once the
trial finally began, in 1999, the timeline was not inordinate.
[38]
That was
relevant because there was not a serious possibility or reasonable chance that
a TRO would be imposed again if Mr. Pacificador was returned home. Further, he
would not be tried with as many co-accused, which would also speed up his
trial. Finally, Philippine officials knew that delay in this case was a
critical factor in the Ontario Court of Appeal’s decision. They would want to
avoid further delays to minimize similar outcomes in future extradition cases. As
the Board wrote (A.R., pp. 35-36):
The claimant maintains that once he is
returned there will be no reason for the Philippine government to be concerned
about what Canada thinks. The panel disagrees. The
two countries have signed an extradition treaty. There may be other cases in
the future where the Philippines will seek extradition of their citizens from Canada and other countries with whom
they have extradition treaties. Any repetition of the sort of unexplained delay
and prolonged pre-trial detention suffered by the co-accused in the Javier
murder case might well damage, beyond repair, any future hopes of extradition
in other cases.
[39]
As for the
conditions of detention, the Board referred to documentary evidence of torture
and mistreatment in Philippine prisons, but also noted that some of the
accused, and in particular the applicant’s father, were rather well treated for
a significant portion of their detention. On that basis, the panel was not
prepared to extrapolate from the general country condition that there is a
serious possibility Mr. Pacificador would be tortured and mistreated.
[40]
Finally,
the Board rejected Mr. Pacificador’s claim that he could be extra-judicially executed,
finding no persuasive evidence that anyone involved as a suspect in the Javier
murder had been extra-judicially executed. Mr. Pacificador gave evidence that
his father was still living in the Philippines
since his acquittal, and no attempt had been made on his life. Further, Judge
Castrojas made it clear that no one convicted in relation to the Javier murder
should face the death penalty, as the Philippines
had abolished it in 1987 with retroactive effect.
ISSUES
[41]
This
application for judicial review raises three issues, which can be stated as
follows:
a.
Did the
Board err in defining the comparator group?
b.
Did the
Board err in the way it assessed the risk of arbitrary and lengthy detention,
and the risk of torture?
c.
Did the
Board apply the wrong standard of proof?
ANALYSIS
[42]
Before
embarking upon an analysis of the aforementioned issues, it is necessary to
determine the applicable standard of review. Since the standard can be
different for each of the issues raised by the applicant, it is appropriate to
deal with them separately.
[43]
In
analyzing whether the applicant has a well-founded fear of persecution or faces
risk in the Philippines, the Board limited the
comparison of the applicant to the applicant’s father and the other accused in
the Javier murder trial. According to Mr. Pacificador, this definition of the
proper comparator group is a legal issue, to be determined on a correctness
standard.
[44]
Counsel
for the applicant relied for that proposition on the decision of the Federal
Court of Appeal in Salibian v. Canada (Minister of Employment and Immigration)
(C.A.), [1990] 3 F.C. 250 [Salibian]. Having
read that decision, I do not think this is an accurate interpretation of what
the Court said. Writing for a unanimous Court, Justice Décary said (at pp.
257-258):
In short, the Division concluded that for
the plaintiff to be eligible for refugee status he had to be personally a
target of reprehensible acts directed against him in particular. The Division
further concluded, despite evidence that the plaintiff was a victim of these
acts in his capacity not as a Lebanese citizen but as an Armenian and Christian
Lebanese citizen, that the plaintiff was “a victim in the same way as all other
Lebanese citizens are”. This in my opinion is an error of law, in the first
case, and an erroneous conclusion of fact in the second, drawn without taking
into account the factual evidence available to the Division. This error of fact
is especially significant in the context of the error of law.
[45]
In the
present case, the applicant is not arguing that the Board erred in setting out
the proper test to determine if he had an objective basis for his fear of
persecution, but rather that it improperly limited the comparison of the
applicant to the applicant’s father and the other accused of the murder. This
is not a legal issue. Nor is it a pure question of fact, it seems to me. The
Board was not asked to decide, as in Salibian, the basis upon
which Mr. Pacificador had been treated, as a matter of fact, but rather what
comparable group is the best predictor of his likely treatment if ever he is
returned to the Philippines.
[46]
When
Justice Heneghan addressed the issue of a proper comparator group, in the
judicial review of the first Board’s decision, she did not discuss the standard
of review. She did, however, characterize the nature of the question in the
following way, after having quoted from Salibian at length:
[76] In my opinion, this decision
supports a finding that the Board erred in the manner in which it concluded
that the Applicant did not face a serious possibility of persecution in the Philippines. The Board erred by limiting
the comparison of the Applicant to only one other similarly situated person,
that is, his father. The fault was not in looking for a comparator, as in Salibian,
supra, but in defining the comparator group too narrowly.
[47]
Mr.
Pacificador is making the same argument here that he made before. He does not
argue that the Board erred in comparing his situation to that of others in
assessing his objective fear, but that the Board was wrong in defining the
comparator group as his father and co-accused. This, in my view, is clearly a
question of mixed fact and law, reviewable on a standard of reasonableness. Accordingly,
this Court will intervene only if the Board’s decision is not supported by
reasons that can stand up to a somewhat probing examination. See: Canada
(Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at paragraph 56. A
decision may satisfy the standard of review if supported by a tenable
explanation, even if the explanation is not one that the reviewing court finds
compelling. See: Law Society of New
Brunswick v. Ryan, [2003] 1 S.C.R. 247 at paragraph 55.
[48]
As to the
Board’s findings that the applicant will not face persecution as a result of
torture or arbitrary and lengthy detention, these are clearly issues of fact
with which this Court should only interfere if they are patently unreasonable. Finally,
the applicant’s claim that the Board applied the wrong standard of proof raises
an issue of law, to be assessed on a standard of correctness.
a) Did the Board err in
defining the comparator group?
[49]
Mr.
Pacificador claims the Board made the same error it made in its first decision
from 2002, by limiting its comparison of the applicant to his father and the
other accused in the Javier murder trial in assessing whether he had a
reasonable fear of persecution. According to Mr. Pacificador, this error runs
through the Board’s analysis as to whether he could expect a fair trial,
whether he will face persecution through arbitrary trial delays, and whether he
will be subject to torture. Mr. Pacificador argued there is no analysis in the
Board’s lengthy reasons of whether others similarly situated to him, namely,
persons in the Philippines who are prosecuted for political motives and whose
prosecution appears to be tainted by corruption, can expect a fair trial. He
submitted the Board wrongly considered his father’s verdict determinative of
his own claim, instead of approaching the outcome of the trial of his father as
being merely an example of what might happen to him.
[50]
As already
indicated (supra, para. 25), Madam Justice Heneghan agreed with that
submission and allowed Mr. Pacificador’s previous application for judicial
review.
[51]
Mr.
Pacificador now claims the Board erred again, by narrowing its comparison
solely to his father and the other accused in the Javier murder. Indeed, the
Board makes no mystery of the fact that the decision of the Regional Trial
Court in the Philippines, acquitting Arturo Pacificador and several others, is
“the most significant new evidence since the original hearing of this claim and
the decisions of the Court of Appeal and Federal Court in Canada” (A.R., p. 22
). Central to the Board’s reasoning was its conclusion that the Philippine
verdicts were a conclusive sign that those accused in the Javier murder
received fair trials. That being the case, there was no need to look at the
situations of people subject to politically corrupt prosecutions in general,
since the prosecution of the applicant’s co-accused (and particularly the
prosecution of his father) was far more relevant to the applicant’s likely fate
were he to be returned to the Philippines.
[52]
It may
well be that once the trial got started, the time required to bring it to a
conclusion was not inherently persecutory. Similarly, there is no evidence that
the trial, once it got underway, was politically manipulated or that the
accused did not benefit from due process. The Court’s final verdict was
lengthy, detailed, and quite clearly went through the evidence to explain the
rationale behind its decision. Having read the 113-page decision, I agree with
the Board that it seems the accused were treated fairly and in conformity with
their fundamental rights.
[53]
But is
that sufficient to conclude: that there is not a reasonable chance or serious
possibility that the applicant’s trial will be unduly delayed; that there is no
reasonable chance or serious possibility that he will be mistreated or
arbitrarily detained in facilities so inhumane as to be inherently persecutory;
and, that there is no reasonable chance or serious possibility his trial will
not be manipulated and will be conducted without due regard to the rules of
procedural fairness? I do not think so.
[54]
The Board
concedes, on numerous occasions, that the Philippines does not have a free and independent
judicial system (A.R., p. 23) and that the judicial system is corrupt (p. 19). Also,
the Board does not disagree with the first panel’s findings, according to which
the Philippines “does not, in reality, offer
defendants a free and independent judicial system because the system suffers
from corruption” (A.R., p. 406), that there have been problems not only with
the fairness of prosecution of the Javier case, but also “disturbing problems
with the actual trial of the Javier case” (A.R., p. 406), and that
country documentation reports “a number of serious concerns about torture,
police brutality, and deplorable prison conditions in the Philippines” (A.R.,
p. 408). Are all of these disturbing findings cured by the acquittal of the
applicant’s father and some of his co-accused?
[55]
While I am
not necessarily prepared to speculate as to the reasons why Arturo Pacificador
and a few other accused were found not guilty (and I would be loathe to impute
Machiavellian motives to the Court in reaching its decision), I fail to
understand how, in and of itself, it is sufficient to conclude that there is
not a reasonable chance or serious possibility that the applicant will not be
persecuted were he to be returned. Just as the lifting of the TRO did not
convince the Ontario Court of Appeal that the applicant would get a speedy trial,
I find that the acquittal of the applicant’s father and the fact he was not
tortured is no guarantee that the applicant himself will benefit from the same
treatment. As the Ontario Court of Appeal indicated, it is only as a result of
clear indication from a Canadian judge that the applicant’s surrender order
would be set aside that the TRO was eventually lifted. And since no reason has
ever been given for that order, its continuation or its lifting, what is to
preclude the possibility that a similar order could be made again? And what are
the assurances, against the appalling background of corruption, ineffectiveness
and unfairness that seems to prevail in the Philippines judicial system, that another judge may
not raise above an attempted political manipulation?
[56]
The Board
suggested that there is no serious possibility or reasonable chance that the
circumstances that led to the imposition of the TRO in 1989 will recur should
the claimant return to face trial. The Board based this assumption on the fact
that sixteen years have passed since the TRO was imposed, six years since it
was lifted, and that “[e]motions in the Philippines around the issue of the
murder are not running as high now as they were then” (A.R., p. 35). The Board
also noted that the Pacificadors have not been in a position of power for
twenty years and that Rudolfo Pacificador does not represent such a threat to
the established political order in Antique province that he would be a special
target of opponents of the Pacificador family any more (A.R., p. 29).
[57]
While this
may well be true, there are countervailing factors that were not taken into
consideration by the Board. First of all, it appears that the applicant has
been painted as the mastermind of the Javier murder, and Judge Castrojas stated
in his decision that Rudolfo Pacificador “ran the affairs, so to speak” (A.R.,
p. 318). He is also much younger than his father, and as such more of a threat
to the rival families now in power.
[58]
Indeed,
the Philippine President herself gave a speech in February, 2002, on the 16th
death anniversary of the late Governor Evelio B. Javier at which she described
Mr. Javier as “one of our country’s most courageous and inspiring political
leaders” and Mr. Pacificador as the “mastermind” of the crime, and one of the
perpetrators who “continue to elude the final consequences of their terrible
act”. The speech was disseminated on a Philippine government web site. During
the course of the speech, the President apparently stated that she raised the
extradition of Mr. Pacificador in a recent official visit to Canada and asked
the Prime Minister why the “mastermind” had not yet been extradited to the Philippines. Given the continued
animosity to the Pacificadors at the highest political levels, the adverse
reactions to the acquittal of Arturo Pacificador, and the increased pressure to
mete out punishment of some form to the Pacificador family after the acquittal
of the applicant’s father, it is far from clear that the applicant is similarly
situated to his father. Yet, none of this was discussed by the Board.
[59]
Even if I
were prepared to accept that the decision of the Regional Trial court in the Philippines and the treatment received by
the accused in that trial were the most crucial factor in assessing the applicant’s
well-founded fear of persecution, I would still come to the conclusion that the
Board’s decision was unreasonable. Despite the Board’s claims that it looked at
all of the accused to determine how Mr. Pacificador would be treated on his
return, a close reading of the decision reveals that too much emphasis was
placed on his father’s situation, as opposed to that of the group of accused as
a whole. In other words, aside from whether the group of accused in the Javier
trial could be the relevant comparator group in assessing Mr. Pacificador’s
fear, the Board did not even get to that stage since it relied much too heavily
on Arturo Pacificador. Had it properly taken into consideration the treatment
received by all the accused, instead of honing in quite narrowly on the
applicant’s father, its decision might well have been different.
[60]
The
following paragraph of the Board’s decision provides a good illustration of the
pre-eminence given to the applicant’s father in its reasoning:
The panel has taken note of the fact that
his father, whose situation among the accused would be the most similar to that
of the claimant, namely possible “mastermind”, returned voluntarily to the
Philippines in March 1995 to face the charges against him, was not tortured,
was not subjected to cruel and unusual treatment or punishment, lived in a
cottage on the prison grounds, was allowed out of prison for medical attention
and to attend church in his hometown and was permitted to run for political
office (unsuccessfully) three times (1995, 2001, and 2004) while detained. Since
his acquittal, he has chosen to remain in the Philippines despite the fact that, according to the
claimant’s testimony, he is free to leave the Philippines at any time. There was no persuasive
evidence before the panel that anything untoward has happened to his father
since his release from jail in the Philippines
in October 2004.
(A.R., pp. 29-30)
[61]
Had the
Board written this passage as part of a broader section looking at how all the
accused were treated, I would not find it suspect. However, with respect to
certain issues, I believe the Board unfairly gave Arturo Pacificador’s
situation more weight than those of the other accused. This error dos not run
throughout the Board’s decision; for example, the Board did look at how all the
accused were treated in pre-trial detention. But I am particularly concerned
with the Board’s comparative analysis in its section on torture.
[62]
The Board
practically skated over evidence that some of the accused in the Javier murder
had been tortured, writing (A.R., p. 37):
[T]here is evidence of at least three
accused being mistreated or tortured and that those incidents occurred almost
twenty years ago, except for one incident which was almost ten years ago. While
the panel deplores any mistreatment or torture of prisoners, it is not willing
to extrapolate from this evidence that the claimant faces torture and
mistreatment if he should return to the Philippines.
[63]
Thereafter,
however, the Board engaged in a lengthy review of Arturo Pacificador’s
favourable treatment as a prisoner, citing an article describing his living
conditions. The Board did not disregard evidence that other accused had been
tortured simply because of the passage of time, but because there was evidence
that Arturo Pacificador had not been tortured or mistreated. It felt that
evidence about his father would more effectively predict whether Mr.
Pacificador himself had a well-founded fear of persecution in the Philippines. At least with respect to its
analysis of the risk of torture, the Board considered the situation of Arturo
Pacificador determinative. This part of the Board’s decision most explicitly
undermines the argument that it truly considered all those accused of the
Javier murder as a single group or entity.
[64]
Even if I
were prepared to accept that the Board was not obliged to follow Justice
Heneghan’s reasons to the letter, and compare Mr. Pacificador’s situation to
“persons in the Philippines who are prosecuted for political motives and whose
prosecution appears to be tainted by corruption” (Pacificador v. Canada
(Minister of Citizenship and Immigration), supra, at para. 77), that
would not excuse the Board from at least looking at what happened to all the
accused in the Javier murder.
[65]
The Board
should therefore have provided a more detailed explanation why documentary
evidence and specific evidence of torture in the Javier murder prosecution was
less persuasive than evidence about how Arturo Pacificador was singled out for
preferential treatment in prison. Indeed, the analysis of the Board contrasts
starkly with the conclusions of the Ontario Court of Appeal on the same issue:
[15] With respect to the affidavit
evidence on the treatment of co-accused and witnesses, two affiants described
being subjected to electric shock while in custody. Vegafria swore that
Congressman Javier pointed a cocked pistol at him while visiting him in jail
and that a jail guard pleaded with him not to shoot. Four witnesses stated that
they were bribed or threatened to swear false statements against the
Pacificadors. Two affiants provided evidence that Congressman Javier had paid
or offered to pay witnesses. A chief of police swore that he had been in the
appellant’s company elsewhere at the time of the killing, and that the
prosecutor was uninterested in verifying the appellant’s whereabouts at that
time. He also swore that Congressman Javier had tried to bribe him to give
inculpatory evidence against the appellant.
[…]
[53] …The appellant makes serious
allegations of political manipulation and fabrication of evidence, as well as
allegations of appalling treatment to his co-accused during the lengthy period
of pre-trial detention. No evidence has been led to dispute those allegations. At
the very least, they establish a significant risk that the appellant will not
be fairly treated upon his surrender…
[66]
In light
of all this, I find that the Board made a reviewable error in defining the
proper comparator group for the purpose of assessing the objective basis of Mr.
Pacificador’s fear of persecution. While purporting to pay attention to the
decisions of the Ontario Court of Appeal and of this Court, the Board
effectively decided to zero in on the fate of Rudolfo Pacificador’s father as
the best predictor of what would happen to him upon his return to the Philippines. In doing so, the Board
ignored the admonitions of Justice Heneghan, who stated in no uncertain terms:
[78] The Board found that the
prosecution of the Applicant was highly tainted by corruption and that such
corruption was due to his political and family affiliation, a ground for
claiming Convention refugee status. The fact that the Applicant’s father was
not abused or tortured is not determinative, in my opinion, of the Applicant’s
claim for Convention refugee status. I conclude that the Board erred in its
conclusion concerning the objective basis of the Applicant’s claim. That error
is sufficient to allow this application for judicial review.
[…]
[83] Further, the Ontario Court of
Appeal’s decision is now part of a body of jurisprudence. I expect that on the
redetermination of this matter, the newly constituted Board will consider it
carefully. The lower court decision was tendered as evidence before the Board,
therefore the Ontario Court of Appeal’s decision, overturning this decision,
must form part of the record before the newly constituted Board who will rehear
this matter. The Board does not decide in a vacuum. While the Ontario Court of
Appeal decision will not be binding on the Board, it is relevant and important
evidence that places the Applicant’s situation in context.
[67]
I do not
dispute that the decision of the Regional Trial court in the Philippines is an important factor to
take into consideration in evaluating the objective basis of Mr. Pacificador’s
fear of persecution. But just as the facts that the TRO has been lifted and
that the applicant’s father has not been tortured cannot be determinative of
the applicant’s claim for refugee status, neither does the acquittal of Arturo
Pacificador. For the reasons already set out, the Board had to reach beyond the
fate of Arturo Pacificador and look at the very least into the treatment
received by his co-accused to assess whether there is a reasonable chance or
serious possibility that the applicant will be persecuted upon his return to
the Philippines. It was unreasonable for the Board to close its eyes to the
numerous shortcomings of the Philippine judicial system and to the serious
violations of the fundamental rights of the other accused that have marred
their trial for the Javier murder, only to assume that the applicant will
benefit from the same favourable treatment as his father. The fact that a
single judge “got it right” in a specific instance is no guarantee, in and of
itself, that the system will produce the same result in the future.
b) Did the Board err in the way it
assessed the risk of arbitrary and lengthy detention, and the risk of torture?
[68]
Even
limiting consideration to that of the fate of the applicant’s father, it is
significant that the Board found that the applicant’s father experienced past
persecution in the Philippines. The Board found that lengthy
trial delays that affected the various accused in the Javier murder prosecution
amounted to persecution. Once the TRO was lifted, however, the trial procedures
have unfolded in a reasonable and procedurally fair manner, and the Board found
it was “logical to assume” that Philippine officials do not wish to risk other
foreign courts reacting like the Ontario Court of Appeal because of
unreasonable delay in pre-trial detention.
[69]
It may
well be that the TRO was not necessarily relevant to assessing Mr.
Pacificador’s fear of lengthy detention, not only because it was lifted, but
also because it was a particular measure taken in this case many years ago. The
fact remains, however, that Philippine judicial and prosecutorial authorities
never explained why the restraining order came into being or why it was
eventually lifted. This lack of transparency casts some doubt as to the
possible repetition of that scenario in the future.
[70]
But more
importantly, the Board never came to grip with the uncontradicted country
documentation according to which “[d]ue to the slow judicial process, lengthy
pre-trial detention remained a problem”, and the “judicial system was unable to
ensure expeditious trials for detained persons” (U.S. Department of State,
Country Reports on Human Rights Practices - 2003, February 25, 2004; A.R., pp.
422 and 424). After all, there are other ways to delay a trial than by imposing
a TRO. This is not to say that every person who is subject to the criminal
justice system in the Philippines should be granted refugee status because of
the undue delays in processing cases; but considering the particular context
into which the trial of the applicant would take place, the Board should at
least have broadened its inquiry instead of speculating that the Philippine
Supreme Court would not impose another TRO.
[71]
As for the
risk of torture, I have already touched upon this in the previous section. The
Board acknowledged in its reasons that, “on occasion, mistreatment and torture
do occur in Philippine police stations and jails, and that police and guards
act with a certain degree of impunity in some cases” (A.R., p. 36). The Board
also noted the evidence according to which “several of the accused in the
Javier murder trial were mistreated and that jail conditions for a number of
the accused were harsh and substandard” (A.R., p. 37). This, coupled with the
length of the accuseds’ pre-trial detention, led the Ontario Court of Appeal to
the conclusion that their treatment had been “appalling”, and that the criminal
procedures of the Philippines have been interpreted and applied in that
prosecution in a manner that shocks the conscience.
[72]
Had the
Board not been blinded by the acquittal of Mr. Arturo Pacificador and the fact
he was not mistreated, it might well have reached the same result. After all,
if the surrender of the applicant would violate his section 7 right not to be
denied life, liberty and security of the person except in accordance with the
principles of fundamental justice, how was it possible to find that the same
applicant did not have a well-founded fear of persecution or that there was no
reasonable chance or serious possibility of a lengthy pre-trial detention or
torture? Unless the Board could point to a change in the country conditions or
to other similar trials that were conducted in conformity with the rules of
natural justice, the conclusion seems inescapable that Arturo Pacificador’s
acquittal and fair treatment were more the exception than the rule.
d) Did the Board apply the
wrong standard of proof?
[73]
The
applicant submitted that in assessing whether his fear of persecution had an
objective basis, the Board erred in formulating the standard of proof. In
support of that claim, counsel quoted a few passages where the Board asked
itself whether the claimant “would” or “will” be persecuted.
[74]
It is well
established that the standard of proof a refugee claimant must satisfy to show
an objective basis for a fear of persecution is a serious possibility or
reasonable chance of persecution in the future. The facts grounding the claim,
however, must be established on a balance of probabilities. In other words, one
must distinguish between what happened in the past, to be established on the
civil standard of the balance of probabilities, and what will happen in the
future, to be determined on the basis of the reasonable chance yardstick.
[75]
The Board
set out the correct test in a number of places. For example, it stated:
The panel has to decide, based on all the
evidence, whether the claimant has established that he has a well-founded fear
of persecution for a Convention reason. The test is whether there is a
“reasonable chance” or “serious” possibility, as opposed to a “mere”
possibility, that he would be persecuted if he returned to the Philippines.
(A.R., p. 32)
[76]
The
question raised by counsel for the applicant, then, is whether or not this
“boilerplate” statement was outweighed by the way in which the Board actually
evaluated Mr. Pacificador’s claims. Thus, the Court has been asked to decide
whether the Board actually applied the correct standard of proof in practice,
looking at the decision as a whole. Mr. Pacificador submits the Board strayed
from the appropriate test, and in so doing improperly raised the standard of
proof. The Minister, in turn, claims the Board’s use of words like “would” were
made in the context of deciding whether or not Mr. Pacificador met the standard
of proof. They were not statements of the standard itself, but rather
assessments of fact well within the Board’s jurisdiction. After reading the
Board’s decision as a whole, I agree with the Minister.
[77]
Among the
examples of the incorrect formulation or application of the standard of proof
quoted by the applicant are the following passages:
However, in the very prosecution
concerning the claimant’s co-accused, the fact that Arturo Pacificador and
others were ultimately acquitted of all charges makes it very difficult for the
claimant to continue to maintain that if he faces trial in the Philippines it will be politically
motivated and without due process. (A.R., p. 23)
The question, in this case, then becomes
whether the claimant would suffer a similar fate if he were to be
detained pending trial in the Philippines. Would the claimant
suffer persecution, as have other accused, by being subjected to an
unacceptable delay, while in detention, in having his trial started and
concluded? (A.R., p. 34)
There is no persuasive evidence that the
accused in the Javier murder have been subjected to torture or to any sort of
systematic or ongoing mistreatment such that the panel should believe that
there is a serious possibility or reasonable chance that this is the inevitable
fate of the claimant. (A.R., p. 38)
(Emphasis added)
[78]
While I am
concerned about the Board’s use of the words “will”, “would” and “inevitable”,
I think the Court must look at these excerpts in the context of the Board’s
total analysis. Throughout its reasons, it repeatedly addressed whether or not
Mr. Pacificador’s claim met the standard of a “reasonable chance” or “serious
possibility”. As Justice Phelan noted in Mutangadura v. Canada (Minister of Citizenship and
Immigration),
2007 FC 298:
[9]…One
cannot become fixated on these words or engage in matters of semantics without
considering the whole of the decision and the context within which those words
appear. (See Sivagurunathan v. Canada (Minister of Citizenship and
Immigration), 2005 FC
432)
[10]
As I read these words, they refer to whether the Applicant has met the legal
criterion under s. 96, not a definition of the legal test to be applied under
that provision. This view is reinforced by the fact that the Board refers to
the legal test under s. 96 later in the judgment.
[79]
In this case,
the Board did not simply state the proper test once, as a formality. It
repeatedly addressed whether or not there was a “reasonable chance” or
“serious” possibility that Mr. Pacificador would be subject to the risks he
alleged in his application. I agree with the Minister that the alleged examples
of the tribunal’s misstatements of the standard of proof as suggested by the
applicant do not purport to be, nor are they, statements of the legal test or
definition to be met under section 96 of the IRPA, but merely relate to
findings of fact as to whether the applicant met the legal criterion under section
96. In other cases, the wording used by the Board is not meant to be a
statement of the legal test, but is rather best understood as a response to
allegations made by the applicant. As a result, I would dismiss this ground of
review.
[80]
For all of
these reasons, I am therefore of the view that this application for judicial
review should be granted. The Board erred in assessing whether the applicant
has a well-founded fear of persecution by limiting the comparison of the
applicant to that of his father and, to some extent, that of the other accused
in the Javier murder trial. The Board also made a reviewable error in finding
that the applicant does not face risk due to a lengthy and arbitrary detention,
and that there is not a serious possibility or reasonable chance he will be
tortured or mistreated.
[81]
The
applicant sought a specific direction from this Court, asking that the matter
be sent back to the Board for redetermination on the basis that the applicant
has a well-founded fear of persecution in his country of nationality for
reasons of his political opinion, or that he is a person in need of protection.
While I sympathize with the applicant and recognize that his refugee claim has
been pending and unresolved for some 20 years through no fault of his own, I
have not been convinced that it would be appropriate in the circumstances of
this case to direct the Board to come to a specific conclusion. I would simply
reiterate that a newly constituted Board shall pay close attention to these
reasons and to the decisions of the Ontario Court of Appeal and of Madam
Justice Heneghan from this Court. I refrain from speculating as to what the
result might be once the inquiry into the objective basis of the applicant’s
fear has been broadened to take into account a proper comparator group.
[82]
Neither
party suggested the certification of a serious question in this proceeding and
none will be certified.
ORDER
THIS COURT ORDERS that the application for judicial
review is allowed, the Board decision is set aside and the matter is referred
back to a different panel of the Board for redetermination.
"Yves
de Montigny"
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