Date: 20080704
Docket: IMM-5923-06
Citation: 2008 FC 838
Ottawa, Ontario, July 4,
2008
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
JOSHUA ADAM KEY, BRANDI RENEE
KEY,
ANNA CHARLENE KEY, PHILIP JAMES KEY,
ZACKARY DANIEL KEY, ADAM KENT KEY
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review brought by Joshua Adam Key, his wife Brandi
Renee Key, and their four children from a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board) rendered at Toronto on October
20, 2006. The Applicants are all citizens of the United States and their
claims to protection arise from Mr. Key’s desertion from the United States
Army.
a.
Background
[2]
Mr.
Key enlisted in the United States Army in 2002 and in April, 2003, he entered Iraq via Kuwait as a private
in the 43rd Combat Engineer Company. Pte. Key and his Company were assigned to
security duties in Iraq. This included the responsibility for
conducting night-time raids of private Iraqi homes in search of weapons. Pte. Key’s
role in this was to blow open the doors with explosives and then to assist in
both securing the premises and detaining the adult male occupants. Mr. Key
alleged that during these searches he witnessed several instances of
unjustified abuse, unwarranted detention, humiliation and looting by fellow
soldiers, much of which he said was ignored by his superior officers. On other
occasions while in Iraq, he witnessed or heard about the application of
unwarranted physical abuse including lethal force against apparently innocent
civilians.
[3]
In
November, 2003, Mr. Key returned to the United States on a 2-week
furlough. He was then suffering from debilitating nightmares. Instead of
reporting back to his unit, Pte. Key anonymously sought legal advice from a Judge
Advocate General (JAG) representative who apparently told him to return to duty
in Iraq or face
imprisonment. Pte. Key elected to desert and he and his family relocated to Philadelphia. On March 8,
2005, the family came to Canada and they initiated their claims for refugee
protection three days later.
The Board
Decision
[4]
The
Board had no concerns about Mr. Key’s credibility. It observed that he
testified “in an honest and direct manner” and that he was “earnest,” “sincere,”
“open,” and “spontaneous.” In the result, the Board accepted his allegations
as truthful.
[5]
The
Board found that Mr. Key was not a conscientious objector in the usual
sense of being opposed to war generally and that his objections to the conflict
in Iraq were not
politically or religiously motivated. Rather, what Mr. Key objected to
were the systematic violations of human rights that resulted from the conduct
of the United States Army in Iraq and the requirement that he participate. The
Board summarized Mr. Key’s evidence concerning these events and compared his
experiences to the observations of the International Committee of the Red Cross
(ICRC) detailed in its report from 2003. It is apparent that the Board found Mr.
Key’s experiences to be consistent with the ICRC findings, as can be seen from
the following passages from its decision:
Mr. Key performed at least seventy raids
on the homes of Iraqi citizens ostensibly looking for weapons. None of them
was pleasant. In the blackness of night, doors blown in, homes ransacked,
personal effects looted, residents violently roused from their beds and forced
outdoors by heavily armed and uniformed soldiers hollering in a foreign
language, Muslim women shamed by their exposed bodies, boys too tall for their
age, and men cuffed and hauled away for interrogation in their nightclothes,
regardless of weather conditions, never, at least as far as Mr. Key could
ascertain, to return. Should there have been a belligerent that needed
flushing out, Mr. Key had white phosphorous grenades at the ready, part of the
standard issue for this type of job. Mr. Key indicated that the searches were
largely ineffectual as his unit seldom found weapons or contraband, although
they probably did work to the extent that any insurgents would soon learn to
hide their guns and bomb-making paraphernalia outside their homes.
The International Committee of the Red
Cross (ICRC) confirms that this type of military operation followed a
“fairly consistent pattern.” In its Report of the ICRC on the Treatment by
the Coalition Forces of Prisoners of War and Other Protected Persons by the
Geneva Conventions in Iraq During Arrest, Internment and Interrogation,
covering the period between March and November 2003, the ICRC reported:
Arresting authorities entered
houses usually after dark, breaking down doors, waking up residents roughly,
yelling orders, forcing family members into one room under military guard while
searching the rest of the house and further breaking doors, cabinets and other
property. They arrested suspects, tying their hands in the back with
flexi-cuffs, hooding them, and taking them away. Sometimes they arrested all
adult males present in the house, including elderly, handicapped or sick
people. Treatment also included pushing people around, insulting, taking aim
with rifles, punching and kicking and striking with rifles. Individuals were
often led away in whatever they happened to be wearing at the time of the arrest
– sometimes in pyjamas or underwear – and were denied the opportunity to gather
a few essential belongings, such as clothing, hygiene items medicine or
eyeglasses. Those who surrendered with a suitcase often had their belongings
confiscated. In many cases personal belongings were seized during the arrest,
with no receipt being issued.
While some of those who were arrested may
have been involved in armed resistance to the US-led occupation of Iraq, it is apparent that most were not.
Indeed, the ICRC reports that between 70% and 90% of those arrested had been
arrested by mistake. In any event, though, it is the activities of the troops
in carrying out the raids and not the guilt or innocence of a particular person
arrested that is germane to
this analysis. In other words, the issue
is not whether the raids were justified based on the results yielded but
whether the methodology employed in those raids crossed the line.
[Footnotes omitted]
[6]
The
Board considered Mr. Key’s description of these events and seems to have felt
that some of the behaviour contravened international law intended to protect
civilians, albeit not rising to the level of war crimes or crimes against
humanity. The Board’s views of this are set out in the following passages from
its decision:
In my view, the manner in which the
military routinely invaded the homes of Iraqi citizens and the conduct of the
soldiers may have been violations of articles 27, 31, 32 and 33 of the Fourth
Geneva Convention. In so raiding the homes, the military showed little
understanding that the residents were protected persons under the Convention.
The wanton destruction of property, the intimidation of the entire family
including children, the absence of any cultural sensitivity, the disrespect for
human dignity and physical integrity, the pillaging and the violence could well
be breaches of the Geneva Conventions.
It could be argued that the home
invasions were undertaken without any regard to the principle of
proportionality. A score of young men brandishing weapons and armed with white
phosphorous grenades descending on a sleeping family in the middle of the
night, blowing up the front door is arguably disproportionate to the military
objective of recovering contraband and bringing in men for questioning. One
might conclude, the impact on the civilians far outweighs the advantages gained
by the military in using this excessive methodology. Like the laws of war,
occupation law is an ongoing application of the principals of necessity and
proportionality. It is an exercise in finding an appropriate balance.
However, even if one were to assume that
the raids under discussion were in breach of Geneva Conventions, I
remain mindful that not all breaches of the Geneva Conventions are war
crimes. As noted earlier, to reach the level of a war crime in the context of
the Geneva Conventions, there must be a grave breach of the
Conventions.
In my view, the home invasions in which Mr. Key
participated, despite a disturbing level of brutality, did not reach to the
level of a war crime. The invasions, in my opinion, do not reflect the heinous
conduct anticipated by the definition of war crimes which according to the Rome
Statute includes such misdeeds as murder, deportation to slave labour and
taking civilian hostages. I am enured to this view given the recommendations
or lack of same made by the ICRC in the aforementioned report with respect to
home invasions. There was no suggestion that the invasions should be stopped,
be less frequent or more targeted or that there be prosecutions of the
transgressors; rather, it was recommended that the individuals involved receive
adequate training enabling them to operate in a proper manner without resorting
to brutality or using excessive force. The ICRC also reminded the military of
its obligations to notify families of all prisoners of war or those arrested by
the military of their place of detention. I would have expected a much
stronger set of recommendations from the ICRC had it considered the military
action to be war crimes.
Nor do I consider the home invasions to
be crimes against humanity. In my view, they simply do not rise to the level
of mistreatment as anticipated by the International Military Tribunal
Charter or the Rome Statute. Mr. Waldman points out that the
Federal Court has held that the following types of conduct will constitute war
crimes or crimes against humanity: participation in systematic acts of torture;
participation on a tribunal which systematically sentenced people to death in
violation of principals of justice; murdering innocent civilians who were held
in prison; participation in a secret police force engaged in systematic
extrajudicial killings and torture; and, participation in a program that
enforced sterilization of women.
[…]
I find that Mr. Key would not have been
excludable from Convention refugee protection on the basis of his participation
in the war in Iraq or upon his return to duty in Iraq if he was to serve there again and
therefore cannot avail himself of paragraph 171 of the UNHCR Handbook.
[Footnotes omitted]
[7]
What
is clear from the above passages is that the Board was of the view that unless
the events Mr. Key described were sufficiently egregious as to constitute
war crimes or crimes against humanity, they could not, for the purpose of
obtaining refugee protection, justify his desertion from the United States Army.
[8]
The
Board concluded by finding, on a balance of probabilities, that if Mr. Key were
to return to the United States he would be arrested, court martialled and
sentenced to at least a year of imprisonment.
[9]
The
Board also found that some of the events described by Mr. Key that arguably did
constitute war crimes (for example, the use of unjustified lethal force against
civilians, the physical abuse of detainees, etc.) were isolated events or were
otherwise based upon speculation.
[10]
The
issue of state protection was effectively taken off the table by the Board at
the commencement of the hearing on the basis that “the alleged agent of
persecution in this case is the state itself.” In the result, very little
evidence was adduced concerning this issue beyond the testimony of Mr. Key that
he had consulted a JAG representative and was advised that he had “two choices,
either get back on the plane and go to Iraq or go to
prison.”
II. Issues
[11]
(a) Did
the Board err in law by holding that refugee status for a military deserter
could only be conferred where there was an expectation of involvement in war
crimes, crimes against humanity or crimes against peace?
(b) Did
the Board err in its application of the principles of state protection and, if
so, would the denial of refugee status to the Applicants be inevitable in the
face of the state protection reasons given by the Federal Court of Appeal in Hinzman
v. Canada (M.C.I.), 2007 FCA 171, 282 D.L.R. (4th) 413 (referred
to hereafter as Hinzman (C.A.))?
III. Analysis
[12]
The
first issue raised on this application is an issue of law. So, too, is the
question of whether the Board erred in its application of state protection
principles. These are matters which must be assessed on a standard of
correctness: see Hinzman v. Canada (M.C.I.), 2006 FC 420, 266 D.L.R. (4th)
582 at para. 113 (referred to hereafter as Hinzman). The
question of whether the outcome of this application would necessarily be the
same having regard to the principles of state protection does not attract a
standard of review analysis. That is a question for the Court to resolve
independently by determining whether the claim was hopeless or the outcome was
inevitable notwithstanding any errors made by the Board.
[13]
For
the sake of argument, I am prepared to accept the Board’s conclusion that the
conduct of the United States Army in Iraq as described by
Mr. Key would not meet the definition of a war crime or a crime against
humanity.
Nevertheless, the Board’s observations that some of that conduct reflected “a
disturbing level of brutality” and that many of these reported indignities
would represent violations of the Geneva Convention prohibition against humiliating
and degrading treatment cannot be seriously challenged.
[14]
The
Board concluded that refugee protection could only be extended to Mr. Key
if he had been or would be expected to be complicit in the commission of war
crimes, crimes against peace or crimes against humanity. Put another way, the
Board indicated that refugee status can only be conferred where a soldier’s
past combat experiences or the expectations for further combat service would
constitute excludable conduct under the Convention Relating To The Status Of
Refugees, 189 U.N.T.S. 150, Can. T.S. 1969 No. 6 (entered into force
April 22, 1954.) In my view, the Board erred in its interpretation of Article
171 of the UNHCR Handbook
by concluding that refugee protection for military deserters and evaders is
only available where the conduct objected to amounts to a war crime, a crime
against peace or a crime against humanity.
[15]
The
relevance of the UNHCR Handbook was considered by the Supreme Court of Canada
in Chan v. Canada (M.E.I.), [1995] 3 S.C.R. 593, 128 D.L.R. (4th)
213 at para. 46 where it was accepted as a “highly relevant authority”: also see
Hinzman above at para. 116. Accordingly, I consider that reference and
the legal authorities which have considered and applied it, to be determinative
of the first issue raised on this application.
[16]
Article
171 of the UNHCR Handbook states:
Not every conviction, genuine thought 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.
[17]
The
Board’s narrow interpretation of Article 171 of the UNHCR Handbook seems to me
to rest upon a misreading of both Justice Anne Mactavish’s decision in Hinzman
above, and the earlier Court of Appeal decision in Zolfagharkhani v. Canada
(Minister of Employment and Immigration), [1993] 3 F.C. 540, 155 N.R.
311.
[18]
The
decision of Justice Mactavish in Hinzman thoroughly canvasses the
developing law in this area and it is, therefore, unnecessary for me to repeat
that analysis here. The material facts, though, in the Hinzman case and
the legal issues they raised were different from those which arise in the case
at bar. Although Mr. Hinzman had objected to the conduct of the American
armed forces in Iraq, the Board held that the events he described
were isolated and were not the
consequence of deliberate combat policy or
official indifference. This finding was upheld by Justice Mactavish and later
described by the Court of Appeal in the following way:
…According to the Board, the appellants
failed to adduce sufficient evidence to show that if deployed to Iraq they would personally have been required
to engage in conduct condemned by the international community as contrary to
basic rules of human conduct.
Mr. Hinzman also challenged the legality
of the conflict in Iraq and argued that refugee protection was
available where the conflict itself was illegal. This, he said, was sufficient
to trigger Article 171 of the UNHCR Handbook which extends protection beyond circumstances
of “on the ground” misconduct.
[19]
It
is apparent to me that the Board in Hinzman did not have before it the
kind of evidence that was presented by Mr. Key and, therefore, neither the
Board nor Justice Mactavish were required in that case to determine the precise
limits of protection afforded by Article 171 of the UNHCR Handbook. I do not
consider Justice Mactavish’s remarks to be determinative of the issue presented
by this case – that is, whether refugee protection is available for persons
like Mr. Key who would be expected to participate in widespread and arguably
officially sanctioned breaches of humanitarian law which do not constitute war
crimes or crimes against humanity.
[20]
I
recognize that there is a compelling policy rationale for affording refugee
protection to persons faced with the choice of either being punished for
refusing to serve or being placed at risk of participating (or being complicit)
in the commission of war crimes or crimes against humanity: see Tagaga v.
INS 228 F.3d 1030 (9th Cir. 2000) at para. 14. Where the
requirements of military service would put a person at risk of being excluded
from refugee protection, the law must provide a meaningful anticipatory
option. The idea that a refugee claimant in such circumstances ought to be
returned to his home country to face such a dilemma is repugnant and inimical
to the furtherance of humanitarian law. It does not follow from this, however,
that widespread violations of international law carried out by a military force
but not rising to the level of war crimes or crimes against humanity can never
support a refugee claim by a conscientious objector. The caselaw I have
reviewed does not support the idea that refugee protection is only available
where the particulars of one’s objection to military service would, if carried
out, exclude a claim by that person to protection.
[21]
The
language of Article 171 of the UNHCR Handbook is not the language either of
direct participation or even complicity; rather, it speaks to unwanted association
with objectionable military action. While that provision also incorporates the
notion of international condemnation, the response of the international
community to the legitimacy of a particular conflict or to the means by which
it is being prosecuted has generally been seen as a relevant but not a determinative
consideration: see Krotov v. Secretary of State for the Home Department,
[2004] EWCA Civ 69. Nevertheless, in some cases it will suffice: see Al-Maisri
v. Canada (Minister of
Employment and Immigration), [1995] F.C.J. No. 642, 55 A.C.W.S. (3d) 375 at
para. 6. That this is so is not surprising: there are many reasons for
countries to be reticent to criticize the decisions or conduct of an ally or a
significant trading partner even where the impugned actions would, in some
other political context, draw widespread international condemnation. Article
171 of the UNHCR Handbook speaks of the need for international condemnation for
“the type of military action” which the individual finds objectionable. Thus,
even where the response of the international community is muted with respect to
objectionable military conduct, the grant of refugee protection may still be
available where it is shown that the impugned conduct is, in an objective sense
and viewed in isolation from its political context, contrary to the basic rules
or norms of human conduct.
[22]
The
Federal Court of Appeal decision in Zolfagharkhani, above, has
been widely recognized as authoritative in this area of the law. The decision
was applied with approval by the House of Lords in Sepet et al v. Secretary
of State for the Home Department [2003] 3 All E.R. 304 and it is
cited in the von Sternberg text, The Grounds of Refugee Protection in the Context
of International Human Rights and Humanitarian Law (Martinus Nijhoff, The
Hague, 2002) for the following propositions:
The original position of the Court of Appeal
has undergone significant modification in the case law. Modern Canadian law
has adopted an approach similar to that of the Ninth Circuit in the area of
conscientious objection. In Zolfagharkhani v. M.E.I., the Court of
Appeal granted the applicant refugee status finding that his conscientious
opposition to the use of chemical weapons in Iran’s internal war against the Kurds was
reasonable. The holding of Zolfagharkhani is considerably broader than
any of the United
States decisions
discussed above and it adopts the correct standard for adjudicating such claims.
[…]
The view that the intent of the law
provides the critical consideration in “conscientious objector” cases seems incomplete.
The claimant in Zolfagharkhani had adopted a position in which he had
refused to violate fundamental international humanitarian norms relating to the
protection of human rights in armed conflict as set forth in a critical
treaty. His relationship to the law must be seen then as one of comparative
privilege. His right not to violate such peremptory norms is not qualified;
the claimant is not, in other words, obligated to demonstrate that application
of the law would entail, as to him, a disproportionately severe punishment. Rather,
the privilege obtaining with respect to a claimant’s fundamental right not to
violate the dignity of others is absolute. Any harm of a serious nature
occasioned as the result of the claimant’s having made this choice is
persecution.
[Footnotes omitted]
[23]
It
appears to me that Zolfagharkhani, above, did not turn on whether the
claimant would be required to commit war crimes or crimes against humanity in
order to obtain refugee protection. Indeed, it is at least implicit from that
decision that no such finding was required to support a protection claim. While
the Court of Appeal observed that the expectation that Mr. Zolfagharkhani’s work
as a medic might implicate him in the commission of a war crime in the context
of combat involving chemical weapons, it did not make such a finding the sine
qua non of a successful claim to protection. Rather, the Court was
fundamentally concerned with the moral weight to be assigned to the obligation
to provide any form of material assistance to a regime that was conducting a revulsive
military campaign. The Court held that where a reasonable person “would not be
able to wash his hands of guilt” the claim to refugee protection will be made
out.
[24]
To
the same effect is the decision of the Federal Court of Appeal in Al-Maisri,
above. In that decision the Court cited with approval a passage from James
C. Hathaway’s text, The Law of Refugee Status (Toronto: Butterworths, 1991)
which recognized that refugee protection is available where the impugned
military activity violates basic international standards, including the
violation of basic human rights and breaches of the Geneva Convention standards
for the conduct of war. The Court concluded by saying that official military
action that is contrary to the basic rules of human conduct will support a
refugee claim by a person unwilling to participate for that reason. It is also
interesting that the Court held that essentially any form of punishment that
might have been meted out by the Yemeni authorities for desertion would amount
to persecution and thus support a claim to protection.
[25]
In
Sepet, above, the House of Lords was not directly concerned with claims
to refugee protection where the compulsory military service would or might have
required the claimants to commit war crimes or to otherwise violate
international law. The sole evidentiary basis for those unsuccessful claims to
asylum was a stated political opposition to the military policies of the
Turkish government in relation to the Kurdish minority. The decisions there
under review also included explicit factual findings that the claimants would
not be required to engage in military action contrary to the basic rules of
human conduct (see the decision of Lord Hoffman at para. 26). It was thus unnecessary
for the Court to determine the exact scope of the relevant articles of the
UNHCR Handbook in relation to oppressive or unlawful military conduct. Lord
Bingham did, however, take note of the Joint Position Paper of the Council of
the European Union which recognized that such claims could be allowed if the
conditions under which military duties are performed constitute persecution and
also if the performance of military duties would fall within the
exclusion clauses of the Refugee Convention. Lord Hoffman similarly observed
in an obiter remark that a claim to refugee protection might be founded
upon a risk of punishment for desertion that was discriminatory or where the
conditions of military service were persecutory or would otherwise require the
claimant to “commit war crimes or the like,” (see para. 52.) It seems fairly
obvious that these judgments did not purport to restrict refugee claims for
desertion or draft evasion to situations involving the likely commission of war
crimes or crimes against humanity.
[26]
Similarly,
in Krotov, above, the Court dealt with the interpretation of Article 171
of the UNHCR Handbook in the following pertinent passage at paras. 29 and 30:
In considering the rival submissions of
the parties, I should say at once that, whereas Mr Wilken has made much before
us of the differing nuances of expression employed in paragraph 171 of the
Handbook and the recent jurisprudence as indicative of an undesirable vagueness
surrounding the concept of a claim for asylum on the grounds of fear of
persecution for refusal to participate in a repugnant war, I do not regard
those differences as irreconcilable in respect of the test to be applied to the
nature of the war or conflict to which objection is taken. In Sepet and Bulbul,
Laws LJ simply adopted the wording of paragraph 171 (absent the reference to
condemnation by the international community), namely military action involving
acts "contrary to basic rules of human conduct". Lord Bingham on the
other hand referred to "atrocities or gross human rights abuses".
However, I do not doubt that both had in mind in this context conduct
universally condemned by the international community, in the sense of crimes
recognised by international law or at least gross and widespread violations of
human rights. The Tribunal in B v SSHD propounded a test based upon
paragraph 171 and an expansion of the words of Laws LJ as follows:
"Where the military service to which
he is called involves acts, with which he may be associated, which are contrary
to basic rules of human conduct as defined by international law."
In this respect, there is a core of
humanitarian norms generally accepted between nations as necessary and
applicable to protect individuals in war or armed conflict and, in particular,
civilians, the wounded and prisoners of war. They prohibit actions such as
genocide, the deliberate killing and targeting of the civilian population,
rape, torture, the execution and ill-treatment of prisoners and the taking of
civilian hostages.
[Emphasis added]
The Court then went on to identify the
international law sources that could be invoked in support of a refugee claim.
Included in that review were several articles of the four Geneva Conventions of
August 12, 1949 which explicitly require humane treatment of civilians and which
prohibit “outrages upon personal dignity, in particular humiliating and
degrading treatment” and “unlawful confinement”. The Court completed its
analysis with the following conclusion at para. 37:
In my view, the crimes listed above, if
committed on a systemic basis as an aspect of deliberate policy, or as a result
of official indifference to the widespread actions of a brutal military,
qualify as acts contrary to the basic rules of human conduct in respect of
which punishment for a refusal to participate will constitute persecution
within the ambit of the 1951 Convention.
[27]
Even
the legal authorities from the United States do not seem to adopt
such a restrictive standard. In Tagaga, above, refugee status was
accorded to the claimant who was simply unwilling to participate in race-based
arrests and detentions. This was based on a standard defined by participation
in acts “contrary to basic rules of human conduct” and not by one restricted to
war crimes or crimes against humanity.
[28]
To
the same effect is the decision of the United States Federal Courts of Appeal
in M.A. A26851062 v. U.S. Immigration & Naturalization Service, 858
F.2d 210 (4th Cir. 1988), where the following standard was applied:
44 Similarly, we do not think that
M.A. must wait for international bodies such as the United Nations to
condemn officially the atrocities committed by a nation's military in order to be eligible for
political asylum. Paragraph 171 of the Handbook shelters those individuals who
do not wish to be associated with military action "condemned by the
international community as contrary to basic rules of human conduct...."
These basic rules are well documented and readily available to guide the Board
in discerning what types of actions are considered unacceptable by the world
community. The Geneva Conventions of August 12,
1949 represent the international consensus regarding minimum standards of
conduct during wartime.
They include the following, as to all of which M.A. has presented evidence to
show their contravention by the Salvadoran military: the obligation to treat
humanely persons taking no active part in hostilities, and the prohibition
of certain acts, including violence to life and person, specifically murder of
all kinds, mutilation, cruel treatment, and torture; and the passing of
sentences and the carrying out of executions without previous judgment
pronounced by a regularly constituted court. See Art. 3, Geneva Conventions of
August 12, 1949, reprinted in United States Treaties and Other International
Agreements Vol. 6, part 3 (1955).
45 We hold that M.A. has made out a
prima facie case that he merits refugee status and thus consideration for
political asylum on the basis of his sincere refusal to participate in the
actions of the Salvadoran Armed Forces, and the likelihood that he will be
punished for his refusal to serve. We think that M.A. has presented the
evidence to show "an objective situation" from which it can be
inferred that "persecution is a reasonable possibility." Stevic, 467 U.S. at 424-425, 104 S.Ct. at 2498.
[Footnotes omitted] [Emphasis added]
[29]
It
is clear from the above passages that officially condoned military misconduct
falling well short of a war crime may support a claim to refugee protection.
Indeed, the authorities indicate that military action which systematically
degrades, abuses or humiliates either combatants or non-combatants is capable
of supporting a refugee claim where that is the proven reason for refusing to
serve. I have, therefore, concluded that the Board erred by imposing a too
restrictive legal standard upon Mr. Key.
[30]
I
would add that the Board’s assertion that Mr. Key’s past combat participation
would not be sufficient to support his claim to asylum unless it constituted
excludable conduct cannot be correct. This would give rise to an unacceptable ‘Catch-22’
situation where the factual threshold for obtaining protection would
necessarily exclude a claimant from that protection.
[31]
That,
however, does not end the matter because the Court has made it very clear in Hinzman
(C.A.), above, that soldiers facing punishment in the United States for
desertion must, as a rule, pursue the available options for state protection at
home before seeking protection in Canada. In light of this recent
decision, there is no question that the Board erred by adopting the “state as
persecutor” principle as the basis for finding that state protection was not
available to Mr. Key.
[32]
In
the Hinzman case considerable evidence was developed around the issue of
the likely punishment that would be meted out by the United States
authorities. The Court of Appeal was critical of the Board’s assessment of
that evidence and found that much of it had been overlooked. The Court was
also of the view that the Mr. Hinzman had not adduced sufficient evidence to
excuse his failure to pursue protection at home. In the absence of reasonable
efforts to seek alternatives to combat duty or prosecution, the Court held, on
the record before it, that it was not possible to assess how he would have
fared. The circumstances of this case are very different from those which were
considered in Hinzman and Hinzman (C.A.), above,
most notably because, unlike Mr. Hinzman, Mr. Key was not required to address
the state protection issue. I do not believe, therefore, that the state
protection findings of the Court in Hinzman (C.A.), above, are
determinative of the outcome of this case.
[33]
There
is not much doubt that Mr. Key would now likely face some form of
punishment for desertion if he returned to the United States and, indeed,
the Board found that he would, in all probability, be court martialled and
sentenced to a year of imprisonment.
[34]
Unlike
many cases where state protection is invoked as the basis for denying refugee
status, here the ‘die may have been cast’ by Mr. Key’s decision to enter Canada before
exhausting his protection options at home. Having completed a tour of duty in
Iraq and in the face of his medical status it may have been the case that
something other than the dubious choice presented to him by the JAG officer
would have been available. Whether an administrative process leading to a
dishonourable discharge is now the likely outcome for Mr. Key should he
return is perhaps a matter for speculation on this record. Such an outcome may
well be unfair to Mr. Key but it would not constitute persecution. I do
not, however, agree with counsel for the Respondent that Mr. Key’s claim
is bound to fail on the issue of state protection. The Board removed that
issue from consideration and, in the result, very little evidence was put
forward on the point. I do not think it fair or appropriate that
Mr. Key’s claim should fail at this point on the basis of the subsequent
development of the law of state protection in Hinzman (C.A.), above, and
where, because of the Board’s stipulation, Mr. Key did not have the
opportunity to present a meaningful case on that issue. If there is clear and
convincing evidence presented that Mr. Key faced a serious risk of prosecution
and incarceration notwithstanding the possible availability of less onerous,
non-persecutory treatment, he is entitled to make that case and to have that
risk fully assessed. The significance of a failure to exhaust the options for
domestic protection is not, after all, assessed in a vacuum. Such protections
must be actually available and not illusory. It is also not a complete answer
to the problem presented in cases like this to point to the presence of due
process guarantees (although that is an aspect of the analysis).
[35]
While
the Hinzman (C.A.) decision has certainly set the bar very high for
deserters from the United States military seeking refuge in Canada, the Court
of Appeal acknowledged in that case the point made in Ward v. Canada
(A.G.), [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1 that one’s failure to fully
pursue state protection opportunities will not always be fatal to a refugee
claim. Clear and convincing evidence about similarly situated individuals who
unsuccessfully sought to be excused from combat duty or who were prosecuted and
imprisoned for a refusal to serve, may be sufficient to rebut the presumption
of state protection in the United States. I would add that
because Pte. Key would have been deployed back to Iraq within 2
weeks of his arrival in the United States, the opportunity to
pursue a release or re-assignment may not have been realistic. Because the
outcome of this case cannot be considered to be a foregone conclusion,
Mr. Key should be given the opportunity to address fully the issue of
state protection in a rehearing before the Board.
[36]
In
the result, this application for judicial review is allowed with the matter to
be remitted to a differently constituted panel of the Board for reconsideration
on the merits.
[37]
As
indicated at the time of the hearing, I will allow the Respondent 10 days to
propose a certified question. In the event of a question being posed, I will
allow the Applicants 7 days to respond.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is allowed with the
matter to be remitted to a differently constituted panel of the Board for
reconsideration on the merits.
“ R. L. Barnes ”
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