Ottawa, Ontario, December 23, 2005
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] Mr. Tilus came to Canada from Haiti to order to seek status as a refugee, or as a person otherwise in need of international protection. The Refugee Division of the Immigration and Refugee Board never determined whether or not he was at risk in Haiti. Rather, it held that he was precluded from consideration because there were serious reasons for considering that he had committed a crime against humanity, as defined in the Immigration and Refugee Protection Act (IRPA) and the United Nations Convention Relating to the Status of Refugees. This is a judicial review of that decision.
THE FACTS
[2] From April 2003 until January 2004, Mr. Tilus was on personal retainer to his cousin Romane J. Lestin, Police Commissioner at the airport of Port-au-Prince and Head of the specialized unit commonly known as SWAT ("Intervention de la police nationale de Haiti"). He served as his chauffeur. During the events leading up to President Aristide's flight from Haiti in February 2004, Mr. Tilus, who had attended a rally in his support, received threatening calls. Considering himself to be a target of persecution, he sought refuge in Canada.
[3] There is no evidence that Mr. Tilus was the principal actor in any crime. However, the Board considered Mr. Tilus to be guilty by association. It visited upon him crimes it had serious reason to consider that his boss, Mr. Lestin, had committed or crimes that Mr. Lestin's SWAT unit had committed. The crimes were described in various country condition reports.
[4] Mr. Tilus was neither a police officer, nor a government employee. However, as Mr. Lestin's personal chauffeur, he admitted he had attended various meetings. Among the items subject to discussion was the issue of what to do about "les gens de la rue". During the time he worked for Mr. Lestin, he came to Canada and to the United Statesonce on family matters and on vacation. Rather than take advantage of that safety in order to denounce Mr. Lestin and SWAT, and then to claim refugee status, he voluntarily returned to Haiti where he continued in the same job until he could see the writing on the wall as far as the Aristide regime was concerned.
THE ISSUES
[5] The issues are:
a. What is the standard of judicial review?
b. Was Mr. Tilus complicit in the affairs of Police Commissioner Lestin, and SWAT?
c. What is a crime against humanity?
d. Is there serious reason to believe that Police Commissioner Lestin, or SWAT, committed a crime against humanity in which Mr. Tilus was complicit?
ANALYSIS
a. What is the standard of judicial review?
[6] The Refugee Division found that Mr. Tilus was a person referred to under Subsections F(a) and (c) of Article 1 of the Refugee Convention. Section F is set out in the Schedule to IRPA. It provides:
| "F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that. (a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (...) (c) He has been guilty of acts contrary to the purposes and principles of the United Nations."
[Emphasis added] |
F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser : a) Qu'elles ont commis un crime contre la paix, un crime de guerre ou un rime contre l'humanité, au sens des instruments internationaux élaborés pour prévoir des dispositions relatives à ces crimes; (...) c) Qu'elles se sont rendues coupables d'agissements contraires aux buts et aux principes des Nations Unies. [non souligné dans l'original] |
[7] The expression "reasonable grounds to believe" was recently reviewed by the Supreme Court of Canada in Mugesera v. Canada (Minister of Citizenship and Immigration) 2005 SCC 40, [2005] S.C.J. No. 39 (QL), at paragraphs 114 and following. The Supreme Court agreed with the decisions of the Federal Court of Appeal in Sivakumar v. Canada (Minister of Employment and Immigration) (C.A.), [1994] 1 F.C. 433, [1993] F.C.J. No. 1145 (QL) and Chiau v. Canada (Minister of Citizenship and Immigration) (C.A.), [2001] 2 F.C. 297 that the "reasonable grounds to believe" standard requires more than mere suspicion, but less than the normal civil litigation standard of proof on the balance of probabilities. The Court said:
In essence, reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information: Sabour v. Canada(Minister of Citizenship & Immigration) (2000), 9 Imm. L.R. (3d) 61 (F.C.T.D.).
[8] However, as the Supreme Court went on to explain, this standard only applies to questions of fact. Whether those facts meet the requirements of a crime against humanity is a question of law to be reviewed on a correctness standard.
b. Was Mr. Tilus complicit in the affairs of Police Commissioner Lestin, and SWAT?
[9] Guilt by association has been analyzed a great deal over the years in this Court, and in the Federal Court of Appeal. The term "complicity" is used.
[10] For the reasons I am about to give, it is not necessary to analyze this concept in great depth. Suffice it to say that there must be some close association with the principal actors and a shared common purpose. Madam Justice Layden-Stevenson put it as follows in Zazai v. Canada(Minister of Citizenship and Immigration) (F.C.) 2004 FC 1356, [2005] 2 F.C.R. 78, at paragraph 27:
[27] Accomplices as well as principal actors may be found to have committed international crimes (although, for present purposes, I am not concerned with principal actors). The Court accepted the notion of complicity defined as a personal and knowing participation in Ramirez and complicity through association whereby individuals may be rendered responsible for the acts of others because of their close association with the principal actors in Sivakumar. Complicity rests on the existence of a shared common purpose and the knowledge that all of the parties may have of it: Ramirez; Moreno.
[11] The reference to Ramirez is to Ramirez v. Canada (Minister of Employment and Immigration (C.A.), [1992] 2 F.C. 306 and Moreno is to Morenov. Canada (Minister of Employment and Immigration) (C.A.),[1994] 1 F.C. 298 See also Bedoya v. Canada(Minister of Citizenship and Immigration) 2005 FC 1092, [2005] F.C.J. No. 1348 (QL).
[12] In Zazai, supra,Layden-Stevenson J. certified a question of general importance recently decided by the Court of Appeal, 2005 FCA 303, [2005] F.C.J. No. 1567 (QL). Létourneau J.A. speaking for the Court said:
[1] Upon dismissing the application for judicial review, Layden-Stevenson J. of the Federal Court (reviewing judge) certified the following question:
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Does the definition of "crime against humanity" found at subsection 6(3) of the Crimes Against Humanity and War Crimes Act include complicity therein? |
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The Answer is unequivocally "Yes".
[13] I rather doubt that the Board had serious reasons for considering that Mr. Tilus was complicit with Police Commissioner Lestin and SWAT. Since Mr. Tilus was with Mr. Lestin for a good part of every day and attended various meetings with him, the Board naturally found it difficult to believe Mr. Tilus when he said all they talked about was the weather. On the other hand, this skepticism may have arisen from an error made at the very outset, a patently unreasonable finding which goes to the very root of the determination that he lacked credibility.
[14] In the Board's reasons, it states that it was only at the hearing that Mr. Tilus said that he was Mr. Lestin's chauffeur. This is a clear error on the face of the record. In his initial Personal Information Form he mentioned in box 7 that he had worked for Mr. Lestin as a chauffeur and he began his answer to question 31 by saying "[translation] first of all, I want to mention that in Haiti I was the personal chauffeur of Mr. Romane J. Lestin, Principal Commissioner of the airport at Port-au-Prince and of SWAT, moreover he is my cousin."
c. What is a crime against humanity?
[15] Although the Board did not specifically choose amongst crimes against peace, war crimes, crimes against humanity and acts contrary to the purposes and principles of the United Nations, it is clear from the record that it was considering crimes against humanity. These are defined in the Crimes against Humanity and War Crimes Act, S.C. 2000, c. 24 as follows:
| "crime against humanity" means murder, extermination, enslavement, deportation, imprisonment, torture, sexual violence, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group and that, at the time and in the place of its commission, constitutes a crime against humanity according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission. |
« crime contre l'humanité » Meurtre, extermination, réduction en esclavage, déportation, emprisonnement, torture, violence sexuelle, persécution ou autre fait -- acte ou omission -- inhumain, d'une part, commis contre une population civile ou un groupe identifiable de personnes et, d'autre part, qui constitue, au moment et au lieu de la perpétration, un crime contre l'humanité selon le droit international coutumier ou le droit international conventionnel, ou en raison de son caractère criminel d'après les principes généraux de droit reconnus par l'ensemble des nations, qu'il constitue ou non une transgression du droit en vigueur à ce moment et dans ce lieu. |
[16] Crimes against humanity were considered by the Supreme Court in Mugesera, supra. The events concerning Mr. Mugesera developed against provisions of the Criminal Code, which have been repealed and redefined in the Crimes Against Humanity and War Crimes Act. The Court stated at paragraphs 118 and 119:
¶ 118 (...) Those sections define crimes against humanity in a manner which differs slightly from the definition in the sections of the Criminal Code relevant to this appeal. However, the differences are not material to the discussion that follows.
¶ 119 As we shall see, based on the provisions of the Criminal Code and the principles of international law, a criminal act rises to the level of a crime against humanity when four elements are made out:
1. An enumerated proscribed act was committed (this involves showing that the accused committed the criminal act and had the requisite guilty state of mind for the underlying act);
2. The act was committed as part of a widespread or systematic attack;
3. The attack was directed against any civilian population or any identifiable group of persons; and
4. The person committing the proscribed act knew of the attack and knew or took the risk that his or her act comprised a part of that attack.
d. Is there serious reason to believe that Police Commissioner Lestin, or SWAT, committed a crime against humanity in which Mr. Tilus was complicit?
[17] The crime which the Board may have had sufficient reason to consider Mr. Lestin had committed was international trafficking in drugs. By the time of the hearing, he had been arrested in the Dominican Republic and extradited to the United Stateswhere he was awaiting trial. The record suggests that the whistle was blown on him because he did not sufficiently divide the spoils with other corrupt police officers. This activity arose out of his role as police commander at the airport.
[18] This crime, as heinous as it is, is not a crime against humanity within the meaning of the Convention. (Pushpanathan v. Canada(Minister of Citizenship and Immigration, [1998] 1 SCR 982).
[19] We must now turn to SWAT. Since the evidence is clear that Mr. Tilus had no connection with SWAT, other than through Police Commissioner Lestin, in order to implicate him, it is not sufficient to point to acts of brutality on the part of the Haitian National Police. There must be more than a mere suspicion that Mr. Lestin of SWAT was involved. Furthermore, this involvement must be limited to the time when Mr. Tilus worked for him, from April 2003 until January 2004. As noted by Mr. Justice Hughes in Bedoya, supra, the crime the applicant was said to have committed in that case was that of complicity in crimes against humanity committed by a different unit of the Columbian army, and by the Palace Battalion at a time before he joined that battalion. Hughes J. said at paragraph 16:
¶ 16 It is to be noted that the only witness before the Board was Sanchez himself, no other witnesses gave evidence. The Minister put in evidence certain newspaper clippings and materials from sources such as U.S. Department of State reports. This sort of "evidence appears to be accepted routinely in matters of this kind but is not the best evidence as to what an individual may or may not have done. Cumulatively the evidence may or may not meet the "less than balance of probabilities" test, but its probity, on an individual basis such as that of Sanchez, is less than satisfactory. When applying facts individually to a person in Sanchez's position, weight must be given to direct evidence, and less weight to generalized, otherwise unsupported statements, even if from an apparently reliable source.
He held that the Board was incorrect in stating that the activity of the Columbia Army at large could be attributable to the applicant.
[20] As noted by the Court of Appeal is Sivakumar, supra, it is not enough to determine that a group committed crimes against humanity when all there is were vague statements about "atrocities" and "abhorrent" tactics committed by all parties to a civil strife.
[21] In this case, most of the events set out in the country conditions occurred before Mr. Tilus began to work for Mr. Lestin. The report most on point was a U.S. Department of State Country Report on Human Rights Practices for 2003. It indicated that the Haitian National Police had a number of specialized units including a crowd control unit (CIMO) and a crisis response unit (SWAT). Various incidents showing a lack of respect for human rights, disappearances, torture and other cruel inhuman or degrading treatment or punishment were reported. SWAT, much less Mr. Lestin, is not mentioned as the perpetrator of any of these atrocities, none of which involved the airport. Although Mr. Tilus admitted being present at meetings in which Mr. Lestin gave instructions about what to do about "les gens de la rue", these instructions pertained to his role as police commissioner at the airport. The country conditions do not give any anecdotal evidence about any crimes against humanity committed against "les gens de la rue" at the airport.
[22] Moreover, and in any event, there is no evidence that these crimes were part of a widespread or systematic attack in the sense of a massive frequent large scale action carried out collectively as required by Mugesera, paragraphs 153 and following.
[23] In conclusion, there is simply no evidence to support the holding that Mr. Tilus was complicit in crimes against humanity. The definition of a crime against humanity is a question of law. The panel did not identify any particular crime it had in mind, and failed to consider whether any specific act was committed as part of a widespread or systematic attack, or directed against any civilian population or any identifiable group of persons. The reported instances were of acts against disparate individuals. Consequently, judicial review must be granted.
[24] As suggested by Nadon J., as he then was, in Rai v. Canada (The Minister of Citizenship and Immigration) 2001 FCT 784, [2001] F.C.J. No. 1163, it would be preferable for the new panel to consider both exclusion and inclusion so as to avoid unnecessary delays. The first panel, unlike the panel in Sivakumar, supra, never determined whether Mr. Tilus would be at risk within the meaning of Sections 96 and 97 of IRPA were he to be returned to Haiti.
[25] There is no question of general importance to certify.
ORDER
Judicial review of the decision of the Refugee Protection Division, Immigration and Refugee Board, dated 24 May 2005, file number MA4-02083, is granted. The matter is referred back to a different panel of the Refugee Protection Division for redetermination.
"Sean Harrington"
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3426-05
STYLE OF CAUSE: Francky Tilus v. The Minister of Citizenship and Immigration
PLACE OF HEARING: MONTREAL, QUEBEC
DATE OF HEARING: NOVEMBER 23, 2005
AND ORDER: HARRINGTON J.
APPEARANCES:
| Kathleen Gaudreau |
FOR THE APPLICANT |
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| Mario Blanchard |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| Kathleen Gaudreau Barrister & Solicitor |
FOR THE APPLICANT |
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| John H. Sims, Q.C. Deputy Attorney General of Canada |
FOR THE RESPONDENT |