Docket: IMM-2277-13
Citation:
2014 FC 377
Ottawa, Ontario, April 23,
2014
PRESENT: The
Honourable Madam Justice Simpson
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BETWEEN:
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GOVIND SINGH
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This application for judicial review concerns a
decision made by the Immigration and Refugee Board [the Board] dated
March 6, 2013 [the Decision] in which it excluded Govind Singh [the
Principal Applicant] for espionage under sub-paragraph 34(1)(a)(f) of the Immigration
Refugee Protection Act, S.C. 2001, c. 27. Section 34 has been amended but
at the relevant time it provided as follows:
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 34. (1) A
permanent resident or a foreign national is inadmissible on security grounds
for
(a) engaging in an act of espionage
or an act of subversion against a democratic government, institution or
process as they are understood in Canada;
[…]
(f) being a member of an
organization that there are reasonable grounds to believe engages, has
engaged or will engage in acts referred to in paragraph (a), (b)
or (c).
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34. (1) Emportent
interdiction de territoire pour raison de sécurité les faits suivants :
a) être
l’auteur d’actes d’espionnage ou se livrer à la subversion contre toute
institution démocratique, au sens où cette expression s’entend au Canada;
[…]
f) être membre
d’une organisation dont il y a des motifs raisonnables de croire qu’elle est,
a été ou sera l’auteur d’un acte visé aux alinéas a), b) ou
c).
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I.
The Issues
[2]
The application of this section gives rise to two issues:
1. Was
the Board correct when it concluded that in the period from December 1998 to
July 1999 [the Relevant Time], Pakistan had a democratic government as that
term is understood in Canada?
2. Was
it reasonable of the Board to rely on the Applicant’s Personal Information Form
[PIF] in which he admitted engaging in espionage?
II.
The Decision
[3]
The Board said the following about democracy in Pakistan during the Relevant Period:
[41] At the time in question, Pakistan was an Islamic Republic with a democratic political system. Formal democracy had
returned to Pakistan in 1988 with the lifting of martial law. Prior to
Mr. Singh’s posting to Islamabad, the last elections held in Pakistan had occurred in February 1997. Outside observers declared the elections to be free
and fair. An elected civilian government under Prime Minister Nawaz Sharif came
to power with two-thirds of the Parliamentary majority. (A popularly elected
Parliament selects the Prime Minister by majority.)
[42] The Various levels of government included
a National Assembly, a Senate and provincial assemblies. There was also
independent judiciary, Pakistan had a Constitution that provided for a number
of freedoms. Pakistan faced ongoing concerns in areas such as political
corruption, human rights abuses, limits on religious freedom and restrictions
on one’s right to exercise his political freedom.
[43] Nevertheless, the Constitution provided
for an independent judiciary, and although it suffered from a lack of
resources, it was able to exercise its independence. The civil judicial system
provided for an open trial, the presumption of innocence, cross-examination,
appeals and bail. The Constitution also provided for freedom of the press,
academic freedom, freedom of assembly, freedom of movement and freedom of
religion, all of which were respected in practice. [my emphasis]
[44] Internal security rested primarily with
the police. Human rights abuses often took the form of police abuse, arbitrary
arrest and detention and extrajudicial killings. The government, a target of
corruption allegations itself, was criticized for doing little to curb abuse.
Although the Constitution and the Penal Code forbad the use of torture and
inhuman treatment, police accused of such conduct were rarely effectively
prosecuted or punished.
[45] Nevertheless, human rights groups were
free to operate without government restrictions. Human rights organizations and
NGOs were active in bringing to light cases of abuse by authorities.
[46] […] I accept that for a government to be
considered truly democratic, it must allow the electorate freedom of choice and
to respect that choice in order to be considered reflective of the will of the
people. I also agree that respect for the rule of law is a necessary component
of a democratic government. Democratic governments cannot be aove the law. In
keeping with this requirement, an independent judiciary is also a necessary
component. With such basic democratic standards in place, other freedoms that
we have come to expect, such as freedom of religion, of the press, of
association, etc. will eventually flow.
[4]
The Board then concluded as follows:
[47] When a democratically-elected government
does not absolutely and unequivocally attain these ideals, it does not mean
necessarily that it falls short of being considered a democratic government as
it is understood in Canada. Such was the case with Pakistan.
[48] Although Pakistan had its problems, and
there was a great deal of room for improvement, and although President Sharif’s
government did not survive past October 1999, it does not negate the fact that,
until then, the government in Pakistan had been democratically elected. I am
satisfied that, overall and at the time in question, the government of Pakistan
constituted a democratic government as it is understood in Canada.
[5]
In my view the Decision shows that the Board initially
undertook the correct analysis. It considered the fact that Prime Minister Sharif
was elected to lead a majority government in a vote which the International
Community described as “free and fair”. The Board
also noted that Pakistan’s constitution provides for the basic freedoms
Canadians associate with democracy.
[6]
Further, the Board did not limit its inquiry to the
election and the Constitution. It correctly noted that there were problems with
the implementation of democratic principles in Pakistan. Nonetheless, it
concluded that Pakistan had a democracy in the Relevant Period as that term is
understood in Canada.
A.
Issue I
[7]
In my view, the Decision is not correct because
the Board placed too much emphasis on the elections and the Constitution and
failed to give appropriate weight to the anti-democratic events which were
serious, ongoing and not being addressed or corrected by the government. The
problems included the following:
- Minority voting rights, and minority
access to important positions in government were restricted. The U.S.
Department of State report for Pakistan, dated February 23, 2000 [the DOS
Report] says at page 40 with reference to the year 1999:
[…]
The Government distinguishes between Muslims
and non-Muslims with regard to political rights. In national and local
elections, Muslims cast their votes for Muslim candidates by geographic
locality, while non-Muslims can cast their votes only for at-large non-Muslim
candidates. Legal provisions for minority reserved seats do not extend to the
Senate and the Federal Cabinet, which currently are composed entirely of
Muslims. Furthermore, according to the Constitution, the President and the
Prime Minister must be Muslim. The Prime Minister, federal ministers, and
minsters of state, as well as elected members of the Senate and National
Assembly (including non-Muslims) must take a religious oath to “strive to preserve the Islamic ideology,
which is the basis for the creation of Pakistan”
(see Section 3).
And at page
45, it states:
Because of this system, local parliamentary
representatives have little incentive to promote their minority constituents’
interests.
- The rule of law was not observed by the
government or the police. The DOS Report noted that:
[…]
Significant numbers of women were subjected to
violence, abuse, rape, trafficking, and other forms of degradation by their
spouses and members of society at large. The Government failed to take action
in a high profile “honor killing” case and such killings continued throughout the country.
[…]
In several high-profile arrests of Sharif
Government critics, the police or intelligence services entered homes and
arrested individuals without warrants or due process and held them for periods
of days or weeks. In May, Intelligence Bureau officials arrested opposition
leader and journalist Hussain Haqqani without a warrant and held him
incommunicado until May 7 without filing charges (see Section 1.c.). On May 8,
approximately 30 policemen broke into Friday Times editor Najam Sethi’s home,
beat him, tied up his wife, destroyed property, and took Sethi away without a
warrant. According to press reports, Sethi was interrogated by the intelligence
services as a suspected “espionage
agent.” Sethi was held incommunicado for several
days and denied access to an attorney (see Section 2.a).
[…]
Police committed extrajudicial killings. The
extrajudicial killing of criminal suspects, often in the form of deaths in
police custody or staged encounters in which police shoot and kill the
suspects, is common…The Human Rights Commission of Pakistan [HRCP] estimates
that there were 161 extrajudicial killings in the first 4 months of the year.
- The prohibitions against slavery were not
enforced by the government. The DOS Report says:
[…]
The Constitution and the law prohibits forced
labor, including forced labor by children; however, the Government does not
enforce these prohibitions effectively.
[…]
Illegal bonded labor is widespread. It is
common in the brick, glass, and fishing industries and is found among
agricultural and construction workers in rural areas. A recent study by local
unions suggests that over 200,000 families work in debt slavery in the brick
kiln industry. There is no evidence that bonded labor is used in the production
of export items such as sporting goods and surgical equipment. However, bonded
labor reportedly is used in the production of carpets for export under the
peshgi system, by which a worker is advanced money and raw materials for a
carpet he promises to complete. Conservative estimates put the number of bonded
workers at several million.
- The DOS Report also indicates that the
military had considerable influence over executive decision-making.
- Finally, the Government prohibited
Ahmadis from holding conferences or gatherings. They are regarded as a
non-Muslim minority under the Constitution. Under Pakistan’s criminal law they are banned from calling themselves Muslims and are frequently
sentenced to three-year prison terms for violations.
[8]
In Qu v Canada (Minister of Citizenship and
Immigration), 2001 FCA 399 at paragraph 44, the Federal Court of Appeal
quoted the following passage from the Supreme Court of Canada’s decision in Reference
re Secession of Quebec, [1998] 2 S.C.R. 217:
Democracy is not simply concerned with the
process of government. On the contrary, as suggested in Switzman v. Elbling,
supra, at p. 306, democracy is fundamentally connected to substantive
goals, most importantly, the promotion of self-government. Democracy
accommodates cultural and group identities: Reference re Provincial
Electoral Boundaries, at democratic process. In considering the scope and
purpose of the Charter, the Court in R. v. Oakes, 1986 CanLII 46
(SCC), [1986] 1 S.C.R. 103, articulated some of the values inherent in the
notion of democracy (at p. 136):
The Court must be guided by the values
and principles essential to a free and democratic society which I believe to
embody, to name but a few, respect for the inherent dignity of the human person,
commitment to social justice and equality, accommodation of a wide variety of
beliefs, respect of cultural and group identity, and faith in social and
political institutions which enhance the participation of individuals and
groups in society.
[9]
In view of the facts and the law described
above, it is my conclusion that the Board was incorrect when it concluded that Canadians
would recognize as democratic a government that tolerated honour killings,
slavery, extra judicial killings by police and discrimination against religious
minorities.
B.
Issue II
[10]
In view of the conclusion above, it is not
necessary to decide whether the Applicant was, in fact, engaged in espionage.
Conclusion
[11]
The application will be allowed.
Certification
[12]
No question was posed for certifcation
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