Date: 20130320
Docket: . . .
Citation: 2013 FC 293
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa,
Ontario, March 20, 2013
PRESENT:
CHIEF JUSTICE CRAMPTON
BETWEEN:
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“MR. MJS”
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Applicant
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and
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DEPARTMENT OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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PUBLIC REASONS FOR JUDGMENT AND JUDGMENT
(Confidential reasons for judgment and judgment
issued on February 13, 2013)
[1]
The
applicant, Mr. MJS, is a citizen [of an African country] and [a member of his
country’s ethnic minority]. He submits that he fears being imprisoned, tortured
or killed should he be forced to return [to his country].
[2]
The
Refugee Protection Division [the Panel] found that Mr. MJS was excluded
from refugee protection under section 98 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the Act], and Article 1F(a) of the
United Nations Convention Relating to the Status of Refugees, T.S. 1969 No. 6,
Art. 1F.
[3]
Mr. MJS
submits that the Panel made three errors in its decision, as follows:
i.
The
Panel applied the wrong test to determine whether he was complicit in crimes
against humanity and in war crimes committed by [a rebel group [the Group]] [in
his country] between 1998 and 2005;
ii. The Panel failed to
establish or identify a link between him and the specific crimes committed by
[the Group];
iii. The Panel’s analysis of
the evidence and the complicity criteria from the case law was not reasonable.
[4]
I
disagree. For the following reasons, this application for judicial review will
be dismissed.
I. FACTUAL BACKGROUND
[5]
Mr. MJS
alleges that in September 1998, [a government agency] [the Agency] ([his
country’s] secret service) tasked a group of young people [of the same ethnic
group as that of the government] to join [the Group] in order to spy on it for
the [. . .] government in power at the time. Mr. MJS joined [the
Group] at the beginning of 1999, but submits that, from the beginning, he was
in fact a double agent who worked for [the Agency] until November 2003,
that is, until the ceasefire agreement.
[6]
In
November 2001, after he completed his [. . .] studies, Mr. MJS
was appointed to [an important position]. Following the 2005 elections, [the
Group] formed a government, and Mr. MJS resigned from his duties
[. . .] as he believed that he had been promised a better position by
the president of the Party, Mr. [. . .]. After Mr.
[. . .] informed him that he had to be patient for such a position,
Mr. MJS criticized the government and the President, [Mr. . . .].
[7]
On
the same day, Mr. MJS was arrested. He was charged with insulting his country’s
president. He was detained for several weeks, during which he claims to have
been beaten and threatened with death.
[8]
In
January 2006, Mr. MJS started working as a volunteer for a
non-governmental human rights organization.
[9]
In
January 2007, Mr. MJS resumed his duties as a [. . .]. Shortly
afterwards, he refused a request from the Minister of Justice of
[. . .].
[10]
In
May 2007, Mr. MJS was again arrested, detained and tortured after
writing a letter to the country’s president in which he denounced certain human
rights violations. A few weeks later, the charges were withdrawn, and
Mr. MJS was released.
[11]
In
December 2007, when he was intending to go to [. . .] to monitor
the elections, Mr. MJS was told that he was not authorized to leave the
country. Shortly afterwards, having found out that he was going to be arrested,
he fled his country [for another African country]. In January 2008,
[members of his family] were killed. [His relatives] who survived fled to [a
third African country].
[12]
Mr. MJS
arrived in Canada in February 2008 and applied for refugee protection a
few days later.
II. BURDEN AND
STANDARD OF PROOF
[13]
The onus of proving that Mr. MJS should be excluded
from protection under the Act rests on the Minister. The Minister must
establish that there are “serious reasons for considering”, within the meaning
of section 33 of the Act, that Mr. MJS has “committed” a crime
leading to his exclusion. This standard of proof applies solely to questions of
facts and requires something more than mere suspicion, but less than proof on a
balance of probabilities (Sivakumar v Canada (Minister of Employment and
Immigration), [1994] 1 FC 433, at para 18 [Sivakumar]; Mugesera
v Canada (Minister of Citizenship and Immigration), 2005 SCC 40, at
paras 114-116 [Mugesera]; Oberlander v Canada (Attorney General),
2009 FCA 330, at para 20 [Oberlander]). The Minister’s belief must
essentially have an objective basis supported by compelling and credible
information (Mugesera, above, at para 117).
III. STANDARD OF REVIEW
[14]
The
first two issues raised by Mr. MJS concern the test for complicity. These
are questions of law. In my opinion, each of these questions is of “central
importance to the legal system . . . and outside the . . .
specialized area of expertise [of the Panel]” (Dunsmuir v New Brunswick,
2008 SCC 9, at para 55 [Dunsmuir]; Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12, at para 44; Alberta (Information
and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, at
para 46, [2011] 3 S.C.R. 654 [Alberta Teachers]; Canada
(Citizenship and Immigration) v Ekanza Ezokola, 2011 FCA 224, at
para 39 [Ezokola]; Thomas v Canada (Citizenship and Immigration),
2007 FC 838, at paras 14-15). The applicable standard is therefore correctness.
[15]
The appropriate
standard for reviewing the assessment of the evidence and the complicity
factors established in the case law is reasonableness since this is a question
of mixed fact and law (Dunsmuir, above, at para 51; Chowdhury v
Canada (Minister of Citizenship and Immigration), 2006 FC 139, at para 13; Rathinasigngam
v Canada (Minister of Citizenship and Immigration), 2006 FC 988, at
para 41).
IV. ANALYSIS
(a) Did
the Panel apply the wrong test to determine the complicity of Mr. MJS?
[16]
Mr. MJS
submits that the complicity test chosen by the Panel is not consistent with the
test established in the case law. In short, he argues that the Panel erred when
it determined that he was complicit in the crimes against humanity and the war
crimes committed by a [military] faction [of the Group] to which he had never
belonged, without establishing the degree of his personal and knowing
participation in these atrocities.
[17]
I
disagree.
[18]
The
legal principles that apply when analysing complicity are well-established in
the case law. These principles were summarized at paragraph 18 of the
decision in Kathiripillai v Canada (Minister of Citizenship and Immigration),
2011 FC 1172 [Kathiripillai]:
i. It is possible to “commit” a crime against humanity as an “accomplice,”
or through complicity, even though one has not personally engaged in the acts
amounting to the crime (Ramirez v Canada (Minister of Employment and
Immigration), [1992] 2 FC 306, at 314-317 (CA); Sivakumar v Canada
(Minister of Employment and Immigration), [1994] 1 FC 433, at 438 (CA); Canada
(Minister of Citizenship and Immigration) v Ezokola, 2011 FCA 224, at para
50).
ii. Mere membership in an organization which is not directed to a
limited and brutal purpose, but which from time to time commits international
offences, is not normally a sufficient basis upon which to find that a person
was complicit in such crimes (Ramirez, above, at 317; Sivakumar,
above, at 440; Ezokola, above, at para 52).
iii. Similarly, mere presence at the scene of a crime, and acts or
omissions amounting to passive acquiescence, are not a sufficient basis upon
which to find that someone has been complicit in the commission of a crime
against humanity. A person is not required to incur a risk of similar treatment
by intervening to stop such a crime (Ramirez, above, at 317; Sivakumar,
above, at 441; Ezokola, above, at para 53; Moreno v Canada (Minister
of Employment and Immigration), [1994] 1 FC 298, at 322 (CA)).
iv. To be complicit in a crime against humanity committed by others, a
person must be shown to have either had “personal and knowing participation” in
the crime or to have tolerated the crimes (Ramirez, above, at 316-317; Sivakumar,
above, at 438, 442; Ezokola, above, at paras 52-58).
v. Personal participation in a crime does not require physical
participation or presence at the scene of the crime, and may be established by
demonstrating the existence of a shared common purpose (Ezokola, above,
at para 53; Moreno, above, at 323; Sivakumar, above, at 438-439).
vi. A shared common purpose can be established in various ways,
including by demonstrating that a person (i) is a member of an organization
that committed the crime, (ii) had knowledge of the commission of the crime,
(iii) provided active support to the organization, and (iv) neither took steps
to prevent the crime from occurring (if that was within the person’s power) nor
left the group at the earliest opportunity, having regard to that person’s own
safety (Penate v Canada (Minister of Employment and Immigration), [1994]
2 FC 79, at para 6).
vii. Presence coupled with being an associate of the primary offenders
may be sufficient to constitute complicity, depending upon the particular facts
in question (Ramirez, above, at 317).
viii. It is not the fact of working for an organization that makes an
individual an accomplice to the acts committed by that organization, but rather
the fact of encouraging or knowingly contributing to its illegal activities in
any manner whatsoever, whether from within the organization or from the
outside (Ezokola, above, at para 55; Bazargan v Canada (Minister of
Citizenship and Immigration) (1996), 67 ACWS (3d) 132,
at para 11 (CA); Sivakumar, above, at 438).
ix. A person who aids in or encourages the commission of a crime, or a
person who willingly stands guard while it is being committed, will usually be
found to have been complicit in the crime (Sivakumar, above, at 438).
x. The closer one is to being a leader, as opposed to being an ordinary
member, of an organization that has committed a crime against humanity, the
more likely it is that an inference will be drawn that one knew of the crime
and shared the organization’s purpose in committing that crime (Sivakumar,
above, at 440).
xi. Likewise, the closer a person is to being involved in the
decision-making process and the less he or she does to prevent the commission
of a crime against humanity, the more likely criminal responsibility will
attach (Moreno, above, at 324; Ezokola, above, at para 53).
[19]
In addition to the foregoing, the case law has
identified the following other factors to be considered when assessing whether
a person was complicit in the commission of a crime against humanity:
i. The nature of the organization;
ii. The
method of recruitment;
iii. The
length of time in the organization;
iv. Opportunity
to leave the organization; and
v. Knowledge
of the organization’s atrocities.
(See Kathiripillai, above, at para 19; Ardila v Canada (Minister of Citizenship and Immigration), 2005 FC 1518, at para 11; Blanco v Canada (Minister of
Citizenship and Immigration), 2006 FC 623, at paras 16-21; Ali v Canada
(Solicitor General), 2005 FC 1306, at para 10; Rutayisire v Canada
(Minister of Citizenship and Immigration), 2010 FC 1168, at para 11).
[20]
In
the case at bar, the Panel clearly recognized, at paragraph 39 of its
decision, that “[s]imple association to [the
Group] was not enough, a more detailed examination of the
claimant’s connection to these crimes is required”. The Panel also quoted an excerpt
from Bazargan v Canada (Minister of Citizenship and Immigration), [1996]
F.C.J. no 1209 (QL) [Bazargan], at paragraph 11, in which the
Federal Court of Appeal reiterated, among other things, that “personal and
knowing participation” can be direct or indirect and that “[a]t bottom,
complicity rests . . . on the existence of a shared common purpose and the
knowledge that all of the parties in question may have of it” (see also Harb
v Canada (Minister of Citizenship and Immigration), 2003 FCA 39, at
para 18 [Harb]).
[21]
The
Panel then took into account the fact that “no evidence was presented to
demonstrate that the claimant had any direct involvement in human rights abuses”.
However, it also noted that “[i]t is not working within an organization that makes
someone an accomplice to the organization's activities, but knowingly
contributing to those activities in any way or making them possible . . .”.
[22]
The
Panel also reiterated that Mr. MJS acknowledged in his testimony that he knew
of the human rights violations committed by [the Group]. Earlier in its
decision, the Panel found that “the
documentary evidence clearly demonstrates that [the Group] committed crimes against humanity as well as war crimes in the period
1998 to 2005”, by, for example, using child soldiers, perpetrating unlawful killings,
committing widespread rape and indiscriminate attacks on civilians, and
massacring [ethnic minority] civilians. The transcript of the hearing held
before the Panel on September 6, 2011, which is in the Certified Panel
Record [CPR], confirms, for example, at pages 1212-1214 and 1227-1228, that Mr.
MJS, both at the time and later, explicitly acknowledged [the Group’s]
involvement in these crimes.
[23]
Simply
because the Panel stated that some of these crimes had also been committed by
[another group] does not detract from the Panel’s conclusion regarding [the
Group’s] involvement in these crimes.
[24]
After
concluding that Mr. MJS’s recruitment efforts for [the Group] in the
country’s capital “performed a valuable
and visible contribution to [the Group]”, and after considering the other
factors listed in paragraph 19, above, the Panel found that Mr. MJS
had been complicit in the crimes committed by [the Group].
[25]
In
my opinion, the Panel’s treatment and application of the complicity test was
entirely consistent with the case law principles set out in paragraphs 18
and 19, above. As explained in subparagraph 18(v), “personal and knowing
participation” can be established by demonstrating the existence of a shared
common purpose. In turn, as stated in subparagraph 18(vi), a shared common
purpose can be established in various ways, among other things by assessing
certain factors. In its analysis, the Panel discussed these factors, and it was
on the basis of this analysis that it arrived at its conclusion regarding
Mr. MJS’s complicity in the crimes committed by [the Group].
[26]
It
would have been preferable for the Panel to have stated more explicitly that
Mr. MJS shared [the Group’s] purpose. However, the Panel’s discussion of
Mr. MJS’s recruitment efforts demonstrates that the Panel was of the opinion
that Mr. MJS shared this purpose.
[27]
I
note, moreover, that the evidence confirms that Mr. MJS was an advocate
for this organization and that he even explained to individuals he attempted to
recruit that the crimes committed by [the Group] could be tolerated in the
context of the civil war (CPR, at p 1236). The Panel was therefore not
obliged to enter into a more thorough discussion of the relationship between
[the Group’s] political faction, to which Mr. MJS belonged, and its
military faction, which committed the atrocities described above. Having said
that, I note that Mr. MJS admitted that those with political power in [the
Group] ultimately controlled the fighters (CPR, at p 1219). He also admitted
that he knew about the widespread attacks [the Group] was preparing to carry
out and about how it funded these activities (CPR, at pp 1263-1264) (Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62, at para 15, [2011] 3 S.C.R. 708 [Newfoundland Nurses]).
(b) Was the
Panel obliged to establish or identify a link between Mr. MJS and the
specific crimes committed by [the Group]?
[28]
Mr. MJS
submits that the Panel erred in failing, first, to specify the crimes he is
suspected of having been complicit in and, second, to establish a link between
him and these crimes. He also states that, at paragraph 41 of its
decision, the Panel concluded that it was unnecessary to specify the crimes he is
accused of being complicit in.
[29]
I
disagree.
[30]
First,
regarding Mr. MJS’s last assertion, the Panel did not say that it was
unnecessary to specify the crimes in question. It simply noted that Mr. MJS
acknowledged that he knew about the crimes referred to above, which had been committed
by [the Group]. Earlier in its decision, the Panel found that these crimes
involved using child soldiers, perpetrating unlawful killings, committing widespread
rape and indiscriminate attacks on civilians, and massacring [ethnic minority] civilians.
[31]
Mr.
MJS submits that since the Panel recognized that [the Group] was not a limited
brutal purpose organization, it was impossible for it to conclude that
Mr. MJS had been complicit in all the crimes committed by this group.
[32]
In
my opinion, given the particular facts of this case, it was entirely acceptable
for the Panel to draw this conclusion after (i) emphasizing that Mr. MJS
had testified that he knew of the crimes; (ii) determining that he was making a
viable and highly useful contribution to [the Group]; and (iii) taking into
account the complicity factors set out at paragraph 19, above. As
mentioned above, Mr. MJS also acknowledged that he had attempted to
convince other [members of his ethnic group] that the crimes committed by [the
Group] could be tolerated, that he had defended the movement’s use of armed
struggle and that he had taught these individuals about the movement’s objectives
and the valid grounds for its existence (CPR, at p 1236).
[33]
Regarding
the link between him and the crimes he is accused of, Mr. MJS also alleges
that the Panel erred since it failed to establish this link, even though, he
added [translation] “this [was] one
of the major anomalies this Court noted in the Panel’s first decision in this
matter”.
[34]
In
that decision of this Court, my colleague Justice Noël allowed Mr. MJS’s
application for judicial review of an initial decision of the Panel, on several
grounds. Among other things, he found that the Panel should have analyzed Mr.
MJS’s degree of participation in the crimes in question in greater depth (JMS
v Canada (Minister of Citizenship and Immigration), 2011 FC 208, at para 18
[JMS]).
[35]
In
the matter at bar, the Panel did perform a more in-depth analysis than in the
first decision. In short, the Panel found that Mr. JMS’s recruitment
efforts for [the Group] in the country’s capital “performed a valuable and visible contribution to [the
Group]”. This
represents a significant link between Mr. MJS and the committed crimes,
one that was never addressed in the Panel’s first decision, which Justice Noël
set aside.
[36]
In
light of this analysis, it was not unreasonable for the Panel to reach the
conclusion that Mr. MJS was complicit in the crimes committed by [the
Group] that were identified by the Panel (Sumaida v Canada (Minister of
Citizenship and Immigration), [2000] 3 FC 66, at para 31; Harb,
above, at para 11; Justino v Canada (Minister of Citizenship and
Immigration), 2006 FC 1138, at para 19 [Justino]; Teganya v
Canada (Minister of Citizenship and Immigration), 2006 FC 590, at
para 24; Islam v Canada (Citizenship and Immigration), 2010 FC 71,
at para 39).
[37]
The
decisions in Baqri v Canada (Minister of Citizenship and Immigration),
[2002] 2 FC 85 [Baqri], Sivakumar, and Cardenas v Canada
(Minister of Employment and Immigration) (1994), 74 FTR 214 (FCA) [Cardenas],
can be distinguished on this point. In short, in Baqri, the panel did
not provide any analysis or explanation from which to understand that the
violent acts of the organization in question rose to the level of crimes
against humanity (Baqri, above, at para 37). This is why this Court
found that the Panel’s decision did not identify the crimes referred to in
section 98 of the Act and in which the applicant was complicit. In contrast, in
the matter at bar, the Panel identified not only the atrocities committed by
[the Group], but also specified which were crimes against humanity and which were
crimes of war.
[38]
Similarly,
in Sivakumar, above, at paragraphs 31-32, the Federal Court of
Appeal found that the Panel’s reasons were deficient, among other things
because the Panel had not found that the other crimes committed by the
organization in question were crimes against humanity.
[39]
In Cardenas,
above, this Court determined that the inference of advance knowledge of the
activities of the military faction of the organization in question might have
been reasonable if the clear distinction between the military and political
factions of this organization had not existed. The Court further noted that the
Panel should have endeavoured to carefully detail the criminal acts which it
considered the claimant to have committed, rather than to refer only in general
terms to shootings and bombings carried out by the military faction of the organization
(Cardenas, above, at paras 17 and 21-22). In contrast, in the case at
bar, Mr. MJS acknowledged that he knew about the atrocities committed by
[the Group’s] military faction (see, for example, CPR, at pp 1212-1215, 1228
and 1236), and the Panel clearly and precisely identified the crimes referred
to in section 98 of the Act and in which it found Mr. MJS to have
been complicit.
(c) Is
the Panel’s analysis of the evidence and the complicity factors reasonable?
[40]
Mr. MJS
submits that the Panel’s analysis was unreasonable in respect to the following
complicity factors:
i.
The
manner in which he was recruited;
ii. His position in [the
Group];
iii. His knowledge of the
atrocities committed by [the Group];
iv. His opportunity to leave
[the Group]; and
v. The length of time he
spent with [the Group].
[41]
In
my opinion, the Panel’s analysis of each of these five factors, as well as its
overall analysis of the complicity factors, is not unreasonable.
(i) Method of
recruitment
[42]
Mr.
MJS states that nothing in the evidence indicates that he joined [the Group]
voluntarily. He alleges that he became a member under duress.
[43]
I
disagree.
[44]
The
Panel recognized that Mr. MJS initially participated in [the Group’s]
activities because he was pressured to do so by [the Agency], which intended to
destroy [the Group]. The Panel found, however, that, relatively quickly,
Mr. MJS became a willing recruit while continuing to portray himself to
[the Agency] as a double agent acting at their behest.
[45]
On
this note, the Panel notes earlier in its decision that Mr. MJS himself
decided to become an “effective” or true member of [the Group] in 1999 without
cutting his ties with [the Agency]. This is precisely what Mr. MJS wrote in his
amended Personal Information Form [PIF], which he sent to the Chairperson of
the Immigration and Refugee Board in August 2008. In his testimony before
the Panel, Mr. MJS clarified this point, as follows:
[translation]
And they promised us certain advantages, so I told myself
that I had to exploit the situation and that teaching wasn’t such a bad thing. I
had to do it. I had to: if [the Group] became a political force, I had to have
that position.
I’ll say it again. I went beyond what [the Agency] told me
to do. For sure. At one point, I went beyond what [the Agency] told me to do, for
sure, to profit from these advantages. (CPR, at p 1239)
[46]
In
light of this evidence, the Panel’s conclusion regarding this issue is entirely
reasonable.
(ii) Position in the
organization
[47]
Mr. MJS
says that he undertook recruitment efforts for [the Group] in order to
reconcile [the Group] with the [. . .] minority to which he belongs. He
submits that, in this context, the Panel did not explain how his activities
made a valuable and visible contribution to [the Group] and its commission of
atrocities against [persons belonging to the ethnic minority], especially as
the twenty (20) to thirty (30) [members of that ethnic minority] he recruited
were going to help [the Group] gain [support from members of the same ethnic
group as Mr. MJS] after the peace agreement, rather than perpetrate
atrocities against their own people.
[48]
Mr. MJS
further submits that, given that he was working for [the Group] secretly, it
was absurd on the part of the Panel to conclude that his recruitment efforts
gave him a certain visibility within the organization.
[49]
I
disagree.
[50]
In
paragraph 33 of its decision, the Panel explains that the recruitment of
[intellectuals of Mr. MJS’s ethnic group] was important to [the Group] since it
wanted to show [this minority of the population] that [the Group] was not
simply an [ethnic majority] organization. Recruiting [members of the ethnic
minority] therefore provided [the Group] with a way of legitimizing the
organization in the eyes of [the ethnic minority]. The Panel also noted that
Mr. MJS was responsible for recruiting [members of his own ethnic group]
in the country’s capital, which provided him with high level of visibility
within the organization.
[51]
As
the respondent notes in his supplementary memorandum of argument, Mr. MJS
himself explained, in the following excerpt from his testimony, the importance
of his efforts to recruit [members of his ethnic group] for [the Group]:
[translation]
Well, I’ll refer you again to my additional Personal
Information Form. The main reason, during the negotiations, the [members of my
ethnic group] criticized [the Group] for being mono-ethnic, for having no other
vision but to fight [the ethnic minority].
So that, that had political weight because, during the
negotiations, the aim was to under-, undermine [the Group’s] credibility, and
in order for [the Group] to regain its credibility, its movement had to show
that no, our go-, our goal is not to fight the [ethnic minority], our goal is
to fight injustice.
You can see this because our movement even had members from
[the ethnic minority]. So that was, that was the main reason why [the Group] had
members belonging to the [ethnic minority]. (CPR, at p 1226)
[52]
In
light of this evidence and the Panel’s explanations, I consider reasonable the
Panel’s finding regarding the important role played by Mr. MJS in [the
Group]. Contrary to Mr. MJS’s arguments, the Panel was not obliged to
determine whether he held a leadership position in [the Group], or whether he
was in the higher ranks of that organization in order to find him complicit in
the atrocities committed by [the Group] (Ishaku v Canada (Citizenship and
Immigration), 2011 FC 44, at para 62; Justino, above, at
para 10).
[53]
Incidentally,
I note that the Panel’s observations regarding the role of [members of the
ethnic minority] in [the Group] respond to Justice Noël’s comments on this
matter with regard to the Panel’s first decision, which he set aside (JMS,
above, at para 21). These observations, together with the possibility that
[members of the ethnic minority], such as Mr. MJS, hold important
positions in [the Group], are properly supported by the testimony of
Mr. MJS himself (see, for example, CPR, at pp 1243-1245).
[54]
Even
though the Panel did not mention Mr. MJS’s testimony about the importance
of [intellectuals from his ethnic group] in [the Group] in its decision, the
Supreme Court of Canada clarified after Justice Noël issued his decision, that
when determining whether the decision of a panel is reasonable, the reviewing
court may consider the evidence in the CPR (Newfoundland Nurses, above,
at para 15). The Supreme Court also explained that reasons are adequate
when they “allow the reviewing court to understand why the tribunal made its
decision and permit it to determine whether the conclusion is within the range
of acceptable outcomes” (Newfoundland Nurses, above, at para 16). In
lights of the Panel’s observations and the evidence on the record, I find that
the Panel’s decision regarding this issue was not unreasonable.
[55]
After
finding that Mr. MJS played an important role in [the Group], and that he
held a position of trust in this organization, the Panel mentioned two other
factors that strengthened this conclusion, namely (i) Mr. MJS’s senior level
contacts in the government led by [the Group] after 2003; and (ii) his
expectation of a senior government position once this government was formed.
[56]
Mr.
MJS admits that he had hoped to secure a senior position in the government [the
Group] formed after 2003. But he submits that this does not mean that he held
an important position in [the Group] before 2003. He adds that the fact that he
was granted an audience with [the Group]’s president after the elections does
not imply that he held an important position within this organization: he used
his [. . .] business card, which had nothing to do with the
organization, to request and obtain this audience.
[57]
In
my opinion, given all of the circumstances, the Panel’s observations on these
two points were not unreasonable. In any event, these comments were made after
the Panel had drawn its conclusion about the importance of Mr. MJS’s role in [the
Group], and were made simply to reinforce this conclusion.
(iii) Knowledge of atrocities
[58]
Regarding
his knowledge of the atrocities, Mr. MJS submits that the Panel was
obliged to establish a shared common purpose between him and those who
committed the atrocities, failing which the mens rea requirement is not
satisfied.
[59]
As
stated in subparagraph 18(iv), above, when determining whether a person
was complicit in a crime against humanity committed by others, the key issue is
whether the person had “personal and knowing participation” in the crimes or
whether he or she tolerated them (my emphasis) (Ramirez v Canada (Minister
of Employment and Immigration), [1992] 2 FC 306 (CA), at pp 316-317; Sivakumar,
above, at pp 438 and 442; Ezokola, above, at paras 52-58).
[60]
Personal
participation in a crime can be established by demonstrating the existence of a
shared common purpose (Ezokola, above, at para 53; Moreno v Canada
(Minister of Employment and Immigration), [1994] 1 FC 298 (CA), at
p 323; Sivakumar, above, at pp 438-439).
[61]
In
turn, a shared common purpose can be established in
various ways, including by demonstrating that a person (i) is a member of an
organization that committed the crime, (ii) had knowledge of the commission of
the crime, (iii) provided active support to the organization, and (iv) neither
took steps to prevent the crime from occurring (if that was within the person’s
power) nor left the group at the earliest opportunity, having regard to that
person’s own safety (Penate v Canada (Minister of Employment and
Immigration), [1994] 2 FC 79, at para 6).
[62]
As
mentioned earlier, Mr. MJS testified that he became an “effective” member
of [the Group] voluntarily. As the Panel noted at paragraphs 27, 30 and 34
of its decision, Mr. MJS also testified that he knew of the atrocities
committed by [the Group]. These observations are properly substantiated in the
CPR. In his PIF, for example, he admitted that he
[translation]
. . . defended [the Group]’s use of armed
struggle by teaching the public about the movement’s goals and the valid
grounds for its existence, by recruiting new members and by collecting
membership fees.
[63]
Mr. MJS
also responded yes to the following questions in his PIF:
Have you ever . . . [u]sed, planned or advocated
the use of armed struggle or violence to reach political, religious or
ideological objectives?
Have you ever . . . [b]een associated with a
group that used, uses, advocated or advocates the use of armed struggle or
violence to reach political, religious or social objectives?
[64]
In
his testimony, Mr. MJS admitted that knew not only of the crimes committed
by [the Group] (see, for example, CPR, at pp 1212-1215), but also of the
preparations for these crimes (CPR, at pp 1192 and 1263).
[65]
Regarding
his support of [the Group], he admitted that he defended the goals of this organization
and that he explained to [fellow members of his ethnic group] whom he was
attempting to recruit that the crimes committed by [the Group] could be
tolerated (CPR, at p 1236).
[66]
Mr. MJS
also recognizes that the atrocities referred to in the Panel’s decision are
crimes against humanity (CPR, at pp 1212 and 1228).
[67]
Mr. MJS
suggests that he could not have had a shared common purpose with [the Group]
with regard to the atrocities committed by this organization since he mobilized
the international community against these atrocities, condemned the atrocities
after [the Group]’s rise to power and refused many favours offered to him by [the
Group]. Yet there is very little evidence on the record showing that
Mr. MJS made such denunciations during the period he was found to be
complicit in the war crimes and crimes against humanity committed by [the
Group], that is, between 1999 and 2003. According to his PIF and his own
testimony, he made these denunciations after 2005. I recognize that
Mr. MJS said in his PIF that he acted as a reference for the organization
Human Rights Watch from 2001 to 2003. However, it was reasonable for the Panel
not to explicitly discuss this fact in its decision (Newfoundland Nurses,
above, at para 16; Construction Labour Relations v Driver Iron Inc,
2012 SCC 65, at para 3 [Driver Iron]), given that he did not expand
on his role as a reference person.
[68]
Mr. MJS
also states that the evidence on the record demonstrates that he continued to
work with the country’s secret service to stop the atrocities committed by [the
Group]. In my opinion, it was not unreasonable for the Panel to determine
implicitly that, even if this was Mr. MJS’s ultimate goal, there were
serious grounds to believe that Mr. MJS was nonetheless complicit in the
atrocities, in light of all the complicity factors the Panel considered in its
decision. The Panel was therefore not obliged to explicitly address this item (Newfoundland
Nurses, above, at para 16; Driver Iron, above).
(iv) Opportunity
to leave the organization
[69]
With
regard to the opportunity to leave [the Group], Mr. MJS submits that there
was no way for him to withdraw from the organization without putting his life
and the lives of his family in danger. In support of this position, he points
out that when he became a member of [the Group], he had to complete a four-page
form of personal information that could be used to find him and to take
reprisals against him and his family. He also notes that he stated in his PIF
that he had no way of withdrawing from [the Group] without putting his life and
the lives of his family in danger and that he was made to understand that he
would be killed if he tried to leave the organization. He adds that his many
efforts to leave the organization were in vain because of how dangerous this
was. He also notes that he wrote in his supplementary PIF that most of the
members who refused to continue working for [the Group] were kidnapped at their
homes, tortured or even killed.
[70]
In
its decision, the Panel recognized that, generally speaking, dissociating
himself from [the Group] or [the Agency] could result in Mr. MJS and the
members of his family being harmed. However, the Panel found that after he was
appointed [to a certain position], when he could have legitimately left the
organization, Mr. MJS secretly remained a member of [the Group]. The Panel
further noted that no documentary evidence was presented to establish that
other people who had attempted to leave [the Group] or [the Agency] had been
threatened or harmed. In light of the evidence, the Panel found that
Mr. MJS did not clearly show that he could not leave [the Group], and that
he could have made an effort to leave at any time.
[71]
In
my opinion, the Panel’s decision on this point was not unreasonable. In fact,
it is entirely consistent with the evidence showing that Mr. MJS became a
member of [the Group] voluntarily and that he hoped to gain an important
position once this organization was in power, after the elections. Mr. MJS
had to demonstrate that there was imminent physical peril at any time during
the period he was a voluntary member of [the Group] (Oberlander, above,
at para 25). For the reasons set out above, it was not unreasonable for
the Panel to conclude that Mr. MJS had not met this burden.
(v) Length of time in the
organization
[72]
Regarding
the time he spent in [the Group], Mr. MJS submits that the Panel erred
when it said that Mr. MJS remained in the organization until he left the
country in 2008.
[73]
In
my view, this error is a minor one. I am satisfied that it has no effect on the
Panel’s finding regarding Mr. MJS’s complicity in the atrocities committed
by [the Group] from 1999, when Mr. MJS became an “effective” and willing
member of the organization, to 2003, [. . .]. Indeed, the Panel correctly
identified this period as being from 1999 to 2003 in paragraphs 9 and 27
of its decision.
Conclusion concerning the Panel’s
analysis of the evidence and the complicity factors
[74]
For the
reasons set out above, the Panel’s analysis of the complicity factors, both
individually and as a whole, has a reasonable basis (Alberta Teachers,
above, at para 53; Halifax (Regional Municipality) v Nova Scotia (Human
Rights Commission), 2012 SCC 10, at para 45, [2012] 1 S.C.R. 364 [Halifax]).
In every instance, and overall, this analysis has a rational basis (Halifax,
above, at paras 47-48).
[75]
In
my opinion, the Panel’s conclusion that Mr. MJS was complicit in the
atrocities committed by [the Group] is within “a range of possible, acceptable
outcomes which are defensible in respect of the facts and the law” and was
sufficiently justified, transparent and intelligible (Dunsmuir, above,
at para 47).
[76]
Given the particular facts of this case, nothing hinges on the fact that
the Panel did not state its conclusion regarding the fact that there are “serious
reasons for considering”, within the meaning of section 33 of the Act,
that Mr. MJS was complicit in the atrocities committed by [the Group]. It was therefore possible for the Panel to state its conclusion on
the basis of the complicity factors, which, in the case at bar, reasonably
suggest that Mr. MJS was complicit in the crimes committed by [the Group].
V. CONCLUSION
[77]
For
the foregoing reasons, the Panel
i.
did
not apply the wrong test to determine whether he was complicit in crimes
against humanity and in war crimes committed by [the Group] between 1999 and
2003;
ii. was not obliged to establish
or identify a link between Mr. MJS and the specific crimes committed by [the
Group];
iii. did not make an
unreasonable analysis of any of the complicity criteria in the case law and did
not reach an unreasonable conclusion regarding Mr. MJS’s complicity in the
crimes referred to in section 98 of the Act.
[78]
This
application for judicial review is therefore dismissed.
JUDGMENT
THE COURT ORDERS AND
ADJUDGES that this application for judicial review is dismissed.
“Paul
S. Crampton”
Certified true
translation
Johanna Kratz,
Translator
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