Date: 20050627
Docket: IMM-1188-04
Citation: 2005 FC 907
Toronto, Ontario, June 27th, 2005
Present: The Honourable Mr. Justice Campbell
BETWEEN:
JOSE D. MALAGA ARICA
Applicant
and
THE SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] By a decision of August 14, 2003, the Ontario Regional War Crimes and Public Security Unit (the "Tribunal") found the Applicant to be a member of an inadmissible class of persons pursuant to s.35(1)(a) of the Immigration and Refugee Protection Act ("the IRPA") which reads as follows:
| Human or international rights violations
35. (1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for
(a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act;
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Atteinte aux droits humains ou internationaux
35. (1) Emportent interdiction de territoire pour atteinte aux droits humains ou internationaux les faits suivants :
a) commettre, hors du Canada, une des infractions visées aux articles 4 à 7 de la Loi sur les crimes contre l'humanité et les crimes de guerre;
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[2] This decision, which is under review in the present Application, is the last step in a long sequence of accountability that the Applicant has had to face for his actions as a member of the Peruvian military from 1987 to 1989. For the reasons which follow, I can find no error in law in the Tribunal's decision to find him inadmissible for permanent residence in Canada.
[3] The history of the Applicant's attempt to be landed in Canada has involved careful scrutiny in a number of applications. The Applicant arrived in Canada with his family in 1990 and claimed refugee protection on the basis of his fear of the Peruvian terrorist organization, the Shining Path, as well as the Peruvian military. However, in 1991, the Convention Refugee Determination Division ("CRDD"), by a finding under Article 1F(a) of the United Nations Convention Relating to the Status of Refugees ("the Convention"), excluded the Applicant from refugee protection on the basis of a finding of complicity in crimes against humanity. Article 1F(a) of the Convention reads as follows:
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.
[4] The CRDD's decision was upheld by the Federal Court of Appeal (Arica v. Canada (M.E.I.), [1995] F.C.J. 670 (F.C.A.)), with leave to appeal being dismissed with costs by the Supreme Court of Canada ((1995), 198 N.R. 239 (S.C.C.)). The Applicant applied for landing from within Canada, which was approved on May 29, 1996. However, on May 23, 1997, his permanent residence application was rejected. This rejection order was the subject of a judicial review in which, by order of June 23, 1998, Justice Gibson ordered the matter be referred back for redetermination, but only on the question of whether the Applicant is inadmissible to become a permanent resident. As previously mentioned, on August 14, 2003, the Tribunal found the Applicant inadmissible under s.35(1)(a) of the IRPA. This last step is the subject matter of the present Application.
A. The Tribunal's decision
[5] To reach a conclusion under s.35(1)(a), the Tribunal was required to correctly apply the definition of "crime against humanity". This term is defined in s.4(3) of the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, which provides:
| "crime against humanity"
"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.
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« crime contre l'humanité »
« 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. |
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[6] In reaching its decision pursuant to s.35(1)(a), the Tribunal relied on the CRDD's Article 1F(a) findings of fact, which included the Applicant's statements found in his Personal Information Form supporting his refugee claim as follows:
1. I have been a member of the Peruvian army for 13 years.__I am a helicopter mechanic and gunner.__My government uses the army to fight political dissent. I have been assigned duties I do not want to do.
2. In November, 1987 I was part of a helicopter crew that transported 10 civilians from one base to another for "interrogation".__I was then part of the crew that returned only 4 survivors, the rest having been killed by the "interrogation".
3. In December, 1987 I was part of a helicopter crew involved in the murder of 2 civilians.__They were shot in my helicopter in my presence by army personnel on suspicion of being terrorists and then their bodies were weighted down with rocks and pushed out of the aircraft into a river.
4. In December, 1987 I was part of a helicopter crew which attacked a village of civilians with rocket and machine gun fire.__I was ordered to fire my machine gun into the village.__The victims of the attack included women and children.__I know there were not [sic] terrorists in the village as our helicopter was not fired upon either before, during or after the attack.
5. In June, 1988 I was similarly involved in the same type of incident as related in paragraph 4 only at a different village.
6. During 1987, 1988 and into 1989, from time to time I was assigned duty to transport civilians suspected of being terrorists.__I personnaly [sic] was part of a crew that brought these people to my base.__The people I brought to the base, as well as others brought there by other helicopter crews, were tortured.__I know this because I could hear the screaming and I sometimes saw the injuries inflicted on the victims.
7. In the later part of 1987 I casually mentioned to a civilian acquaintance that I had sympathy for the innocent civilians caught in the fighting between the government and its political opponents.
8. On December 8, 1987 while sitting in a rural restaurant, to which I had been invited by my acquaintance, I was seized at gun point by 4 men and "asked" to join the terrorists because of my expressed sympathies. I was given time to consider.
9. Over the following months I was approached several times for an answer.
10. On March 14, 1988 my son was kidnapped, and returned several hours later.__On 4 Aug. 88 I received the message that worse would follow if I did not answer favourably.
11. Between February 1989 and August 1989 I was assigned to take training courses in Lima and was able to avoid contact from "terrorists".
12. On September 10, 1989, after returning to regular duty I was grabbed on the street while travelling by two "terrorists".__I was told I had been given enough time to decide to help the opposition and that I was now marked for death.
13. I was frantic with fear.__This had happened to others and some were killed.__I could not report this pressure to my superiors.__I could not tell them of my sympathies.__Anyway, when this is reported nothing is done.__In addition, ordinary soldiers like me are not allowed to carry arms even for self protection.
14. I was compelled to constantly vary my private travel and living arrangements.
15. In March 1990 I was sent to Italy to train on new helicopters Peru had purchased.__After training I came to Canada to avoid using the new equipment to kill civilians and to avoid the neglect by my superiors for my safety.
(Tribunal Record, pp. 512-513)
[7] The relevant portion of the Tribunal's decision is quoted here in its entirety. The decision has three parts; in each part the Tribunal first stated the facts relied upon, and then stated the conclusion reached. For ease of reference each part is numbered; the emphasis on the conclusions reached is in the original:
Specifically, there are reasonable grounds to believe that, between 1987 and 1989, while a member of the Peruvian army, you were complicit in the following war crimes or crimes against humanity:
[Part 1] Torture or inhuman treatment, including biological experiments:
The transport of civilians for interrogation, on numerous occasions, with the knowledge that those persons would be tortured or killed by the Peruvian intelligence apparatus.
In regards to the transport of prisoners, it has been deemed by the court that the surrender of persons to organizations involved in the commission of crimes against humanity with the knowledge that the people handed over would come to harm amounts to complicity in said crime.
[Part 2] Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities:
On five occasions, being part of a helicopter crew which attacked a village of civilians with rocket and machine gun fire, being ordered to fire into the village, with the knowledge that no terrorists were present in the village. The victims of the attack included women and children.
In the second case, your presence at the events, coupled with your association to the principle offenders amounts to personal and knowing participation in the acts committed. In addition, your membership in the Peruvian army and the benefits obtained thereof attests to a shared common purpose in the process of determining complicity.
[Part 3] During your CRDD hearing you were given opportunity to elaborate on the above instances. It has been noted that during the helicopter attacks on the villages you stated that you possessed a secret: that you fired your weapon, but aimed away from where you thought persons might be hiding. You stated that the professional machine gunner, stationed 2 to 3 feet away from your post, did not notice this. You also stated that you were forced to fire out of duress because of your superior's orders - the punishment for not firing being possible imprisonment for a term of 25 years or life. This punishment was not stated at any time during the events, but was known to you from your time in the military.
In late 1987 you mentioned to a civilian acquaintance that you had sympathy for the innocent people caught up in the fighting. In this instance, you were referring to a woman who had been raped and the transport of 10 persons to an interrogation facility and the subsequent return of only 4 persons. When asked if you considered retiring from the army, you stated that you had a minor idea and felt that you should not be there, but, because you were going to Lima, enjoyed mechanics and your work, you changed your mind.
In December 1987 you were approached by the Shining Path and were asked, at gunpoint, to join their cause. You were released, being given time to consider. In March 1988, your son was kidnapped and returned several hours later. In August 1988 you received a message that worse would follow if you did not answer favourably.
On September 10th 1989, you were assaulted by the terrorists and were told that you had enough time to consider and that you were now marked for death.
In March 1990, you were sent to Italy on training, made your way to Canada and claimed refugee status.
In terms of your disassociation for the army, a period of over two years passed from when you first expressed distaste for the army's activities until you left the military. It was not remorse for actions committed or viewed that caused your departure, but instead a threat to your life and family from the Shining Path terrorist organization. There is no evidence that you attempted to leave the military at the earliest possible opportunity nor were any complaints registered with your superiors.
In regards to the possibility of duress: no direct threat was made against you in regards to the above situations. As the victims in these situations were tortured and/or killed, there is no indication that the possible punishment to you could be greater than the harm caused by these actions. Any duress does not exonerate you from complicity in the acts described.
(Application Record, pp. 8-9)
A. The issues for determination
[8] It is agreed that: even though the CRDD made a finding of exclusion under s.1F(a), the Tribunal was, nevertheless, required to make a separate finding under s.35(1)(a); and in making the finding under s.35(1)(a), the Tribunal did not err in the application of the test for complicity as found in Ramirez v. Canada (M.E.I.), [1992] F.C.J. 109, at paragraphs 18 and 23:
18. At bottom, complicity rests in such cases, I believe, on the existence of a shared common purpose and the knowledge of all of the parties in question may have of it
[...]
23. In my view, it is undesirable to go beyond the criterion of personal and knowing participation in persecutorial acts in establishing a general principle.
It is also agreed that, for issues of law, the standard is correctness.
[9] However, there are two issues outstanding for determination.
1. What is the relationship between s.33 and s.35(1)(a) of the IRPA?
[10] Section 33 reads:
| Rules of interpretation 33. The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur. |
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Interprétation 33. Les faits -- actes ou omissions -- mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base de motifs raisonnables de croire qu'ils sont survenus, surviennent ou peuvent survenir. |
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As quoted above, s.35(1)(a) reads:
| Human or international rights violations
35. (1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for
(a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act;
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Atteinte aux droits humains ou internationaux
35. (1) Emportent interdiction de territoire pour atteinte aux droits humains ou internationaux les faits suivants :
a) commettre, hors du Canada, une des infractions visées aux articles 4 à 7 de la Loi sur les crimes contre l'humanité et les crimes de guerre; |
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[11] Essentially, the Applicant argues that the standard of proof applicable to a finding of fact is distinct from the standard of proof to meet the legal test for inadmissibility under s.35(1)(a). The Applicant argues that once the facts are found on reasonable grounds under s.33, they are applied to the inadmissibility test under s.35(1), and the standard of proof for this legal test is a balance of probabilities. The Applicant's full argument is as follows:
I submit that IRPA section 33 sets our a standard for a decision-maker to make findings of fact only. Once those underlying facts are established, the decision-maker must then go on to make the determination required by IRPA section 35: whether the person concerned has "committed" one of the crimes mentioned in that section.
The predecessor to IRPA paragraph 35(1)(a) (Immigration Act paragraph 19(1)(j)) spoke of the determination in the following terms:
19(1) Inadmissible persons - No person shall be granted admission who is a member of any of the following classes:
...
(j) persons who there are reasonable grounds to believe have committed an act or omission outside Canada that constituted a war crime or a crime against humanity with the meaning of subsection 7(3.76) of the Criminal Code and that, if it had been committed in Canada, would have constituted an offence against the laws of Canada in force at the time of the act or omission.
In contrast, IRPA paragraph 35(1)(a) makes no mention of a standard, speaking only of a determination that the person is inadmissible for "committing" such crimes.
I therefore submit that, in the absence of explicit direction as to the standard of proof to be applied, the normal civil standard - balance of probabilities - would be the standard to be applied. Any deviation from that standard would have to be set out explicitly, as it was in the predecessor section.
Absent an explicit enunciation of the standard to be applied. I submit that the determination at issue here (whether the Applicant is inadmissible for having committed crimes against humanity) can only involve two separate determinations to be made on two separate standards, as follows:
1) a determination of facts, including both the acts committed by the Applicant and the mental element required for "commission" of the offence (including "complicity" in the offence): the decision-maker is required to find both these types of facts by applying the "reasonable grounds to believe" standard, according to IRPA, s.33.
2) the application of the law on crimes against humanity: the standard to be applied in all questions of law is correctness. That is, do the facts that the decision-maker has reasonable grounds to believe exist (including both physical and mental elements) meet the test of what constitutes committing a crime against humanity?
Therefore, I submit, the decision now under review is irredeemably flawed, as it purports to apply to the whole question that standard of proof of "reasonable grounds to believe" that the Applicant is inadmissible, and has not stated clearly as a preliminary matter what facts have been found to underlie the finding of inadmissibility and on what standard those facts have been found.
(Applicant's Further Argument of March 21, 2005, paras. 4-9)
[12] The Respondent argues that the finding under s.35(1)(a) is a finding of law, and as such, the Applicant's "standard of proof" on the basis of a balance of probabilities argument does not apply; in reaching the finding of law, all that was required of the Tribunal was to find whether the facts found establish that the Applicant had committed a crime against humanity. That is, at the moment of decision under s.35(1)(a), it is not a question of proof as to whether the crime has been committed on a balance of probabilities, but, as a question of law, whether the Applicant can be named as having committed the crime. In support of this argument, the Respondent cites the Federal Court of Appeal decision in Moreno v. Canada (M.E.I.), [1993] F.C.J. 912:
23. A finding of fact has been described as a determination that a
phenomenon has happened, is, or will be happening independent of or
anterior to any determination as to its legal effects; see L. L. Jaffe,
Judicial Control of Administrative Action, Boston: Little, Brown and
Company, 1965, at page 548. A question of law has been defined in many
ways; see, for example, P. J. Fitzgerald, Salmond on Jurisprudence, 12th
ed., London: Sweet & Maxwell, 1966, at page 10. Perhaps Professor Wade
best describes the basis on which questions of law are readily
distinguishable:
Questions of law must be distinguished from questions of fact, but this
has been one of the situations where the rules have taken different
forms under judicial manipulation.
. . .
The simpler and more logical doctrine has been recognised in many
judgments. This is that matters of fact are the primary facts of the
particular case which have to be established before the law can be
applied, the facts which are observed by the witnesses and proved by
testimony, to which should be added any facts of common knowledge of
which the court will take notice without proof. Whether these facts,
once established, satisfy some legal definition or requirement must be a
question of law, for the question then is how to interpret and apply the
law to those established facts. [See: Wade, Administrative Law, 6th ed.
(Oxford: Clarendon Press, 1988), at pp. 938-939.]
[...]
25. In my view, the standard of proof envisaged by the exclusion
clause was intended to serve an evidential function in circumstances
where it is necessary to weigh competing evidence. It must not be
permitted to overstep its legislated objective. In the present context,
the standard of proof becomes relevant only in respect of the following
questions of fact.
26. It is a question of fact whether the appellant or members of
his platoon killed civilians. The standard of proof to be applied is
that embodied in the term "serious reasons for considering". Similarly,
it is a question of fact whether the appellant stood guard during the
torture of a prisoner. As that fact is admitted, the requisite standard
of proof has been satisfied. That standard, however, has no bearing on
the following determinations.
27. It is a question of law whether the act of killing civilians
by military personnel can be classified as a crime against humanity. It
must be accepted that such acts satisfy the legal criteria found within
the Act and the Convention. [...] It is also a question of
law whether the appellant's acts or omissions as a guard constitute a
crime against humanity. That determination can only be made by reference
to legal principles found in the existing jurisprudence dealing with
"complicity". Finally, it is a question of law whether membership in a
military organization, such as the Salvadoran army, constitutes
sufficient complicity to warrant application of the exclusion clause.
[Emphasis added]
[13] I accept Moreno as compelling authority which is determinative of the issue under analysis. As a result, after considering the careful and complete arguments supplied by Counsel for both the Applicant and Respondent, I find the Respondent is correct in the interpretation argued, and, therefore, dismiss the Applicant's argument on this issue.
2. Is the Tribunal correct in its findings that the Applicant was complicit in the commission of a crime against humanity?
[14] It is agreed that the evidence on the record does not support the factual finding made in Part 1 of the decision; the Applicant did not transport civilians on "numerous occasions" with knowledge that those persons would be tortured or killed by the Peruvian intelligence apparatus. As a result, I find that the consequent finding of law is not supported by the evidence, and, is, therefore, not correct.
[15] However, there is no dispute that the factual finding made in Part 2 is supported by evidence on the record. The Respondent argues that this factual finding, and the findings of law reached on this evidence, are enough to support the decision that the Applicant is inadmissible.
[16] In Part 2 of the decision, the Tribunal makes the finding that "intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities" is a crime against humanity established by the following facts:
On five occasions, being part of a helicopter crew which attacked a village of civilians with rocket and machine gun fire, being ordered to fire into the village, with the knowledge that no terrorists were present in the village. The victims of the attack included women and children.
I find the Tribunal is correct in reaching this conclusion. Indeed, the Court of Appeal has already made this determination in its decision rendered on the Applicant's appeal of the CRDD's exclusion decision under Article 1F(a) of the Convention; in that decision, Justice Robertson found as follows:
12. The question of what acts constitute crimes against humanity is one of law for which the Board is obligated to have regard to the various international instruments. That is made clear in Article 1F(a). It is not a question of whether the Board is able to take judicial notice of such documents pursuant to subsections 68(4) and (5) of the Act. In my view, Article 1F(a) was all the authority the Board needed in order to inform itself of the definition of a "crime against humanity" and for the appellant to be so informed. As to the scope or meaning of those instruments, there is no legal impediment to counsel arguing before the Board that the alleged conduct is not considered a crime against humanity. In the present case, there can be no doubt that the torture and killing of innocent civilians, in non-combat situations, are acts which qualify as crimes against humanity; see Gonzalez v. M.E.I. (1994), 24 Imm.L.R. (2d) 229 per Létourneau J.A. at 241. In short, nothing substantive turns on the international conventions referred to by the Board.
[Emphasis added]
[17] With respect to the Applicant's culpability in the crime committed, the Tribunal framed its decision as a question of complicity. In this respect, the Tribunal found as follows:
In the second case, your presence at the events, coupled with your association to the principle offenders amounts to personal and knowing participation in the acts committed. In addition, your membership in the Peruvian army and the benefits obtained thereof attests to a shared common purpose in the process of determining complicity.
[18] However, it is important to note that the CRDD made precise findings of fact with respect to the nature of the Applicant's participation in the conduct which constitutes the crime against humanity. In particular, it made a critical finding of negative credibility with respect to one important aspect of the Applicant's evidence. The CRDD found as follows:
In the Personal Information Form of the claimant at page 7, subsection 4, I quote once again:
4. In December, 1987 I was part of a helicopter crew which attacked a village of civilians with rocket and machine gun fire. I was ordered to fire my machine gun into the village. The victims of the attack included women and children. I know there were not terrorists in the village as our helicopter was not fired upon either before, during or after the attack.
5. In June, 1988 I was similarly involved in the same type of incident as related in paragraph 4 only at a different village.
The panel is charged with the responsibility of ascertaining the credibility of the claimant. As previously stated, the claimant indicated from his written testimony that he had shot into villages where there were unarmed civilians. Under oral testimony, the claimant indicated that he had a "secret". When questioned as to what this secret was, he testified that when he had been ordered to shoot into villages he fired elsewhere. This was his way of protecting himself in that he fired upon command but did not fire to injure any of the civilians. This is in direct contradictions [sic] of written testimony which the claimant had provided in his Personal Information Form.
During another part of his oral testimony, the claimant indicated that he had been on the ground with the landed helicopter crew and witnessed the stripping of civilian bodies of their jewelery [sic] and gold teeth. This was not part of his written testimony. He had testified in oral testimony that his helicopter touched the ground very briefly for two minutes on each of these occasions to disembark troops onto the ground. This was another contradiction in his testimony. When questioned by a member of the panel and having been shown a photograph of the helicopter which the claimant was a member of the crew, he indicated that his position during the attacks was at the left rear window of the helicopter within two or three feet of the professional gunner who was stationed at the door with the larger calibre machine-gun. The panel is not convinced that his testimony is credible in this regard. It does not believe that the claimant fired away from populated areas in order to avoid hitting innocent civilians. There was ample documentary evidence presented by counsel for the claimant to substantiate such attacks on villages and it is not credible that he would risk detection by his superiors for failing to follow orders.
[...]
Though documentary evidence indicates that the government of Peru is fighting against armed insurgency on the part of the Shining Path guerrilla group, it is a well-documented fact that the maintenance of law is being used as an excuse for the annihilation of large groups of people. Though the Peruvian government may see this as exercising their functions at the maintenance of law, it is well documented by Amnesty International and other organizations that human rights are being violated. The claimant in his testimony clearly indicated that he participated in such acts. Though he denies having shot directly into villages, we find that he participated in crimes against humanity.
[...]
The claimant was acting in an official capacity as a member of the Peruvian armed forces when these attacks took place on the villages. By his own admission there was no return gunfire at any of these instances and the forces of which he was a part continued to attack both with rocket fire and machine-gun fire the inhabitants of these hamlets.
[Emphasis added]
(CRDD Decision, pp. 23-25)
It is important to note that in the in Arica, supra, at paragraph 3, Justice Robertson found no reviewable error in the negative credibility finding. I agree with Counsel for the Respondent's argument that the CRDD found that the Applicant actively participated in the crime by firing his weapon at civilians from the helicopter.
[19] The operation of s.15(b) of the Immigration and Refugee Protection Regulations, Can. Reg. 2002-227, is important with respect to the Tribunal's determination of the Applicant's participation in the crime:
| 15. For the purpose of determining whether a foreign national or permanent resident is inadmissible under paragraph 35(1)(a) of the Act, if any of the following decisions or the following determination has been rendered, the findings of fact set out in that decision or determination shall be considered as conclusive findings of fact: [...]
(b) a determination by the Board, based on findings that the foreign national or permanent resident has committed a war crime or a crime against humanity, that the foreign national or permanent resident is a person referred to in section F of Article 1 of the Refugee Convention; or
[...]
[Emphasis added] |
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15. Les décisions ci-après ont, quant aux faits, force de chose jugée pour le constat de l'interdiction de territoire d'un étranger ou d'un résident permanent au titre de l'alinéa 35(1)a) de la Loi:
[...]
b) toute décision de la Commission, fondée sur les conclusions que l'intéressé a commis un crime de guerre ou un crime contre l'humanité, qu'il est visé par la section F de l'article premier de la Convention sur les réfugiés;
[...]
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[20] Thus, I agree with the Respondent's argument that, by operation of s.15(b) of the Regulations, the Tribunal was required to make its decision on the basis of the CRDD's finding of fact with respect to the Applicant's participation in the crime; that is, he was an active participant. Nevertheless, before the Tribunal, the Applicant argued that he was not culpable because he was not complicit in the commission of the crime because he did not have the required intent to commit the crime.
[21] With respect to Part 2 of the decision, the Applicant argued before the Tribunal, and again argued in the present Application, that he did not possess the necessary mental element to establish complicity, which is a fact which must be established by more than a person's "mere membership" in an organization, unless the organization is one dedicated to a "limited, brutal purpose", which is not being argued by the Respondent. In addition, the Applicant argues that there is no evidence of his shared common purpose in the acts committed, and, as the lowest ranking soldier in the activities alleged, he bears less responsibility than those in leadership positions.
[22] It appears from the Tribunal's decision that the Applicant's arguments were not accepted. Indeed, judged against the facts found by the CRDD as quoted above, I agree with this result. The facts found by the CRDD clearly provided the Tribunal with the basis to find that the Applicant's culpability is established by personal and knowing participation in the crime. In my opinion, the Tribunal correctly applied the test for complicity in Ramirez to the Applicant's conduct, and was also correct in finding that the Applicant was complicit in the commission of the crime.
3. Does the Applicant have a defence?
[23] With respect to the Applicant's permanent residence status, the primary issue for determination by the Tribunal was whether the Applicant committed an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act. As found in Part 2 of its decision, the Tribunal was correct in finding that the Applicant was complicit in the commission of such an act. Nevertheless, in its decision, the Tribunal gave some attention in Part 3 to the question of whether the Applicant could rely on the "defence" of duress. The Tribunal found that the Applicant was not acting under duress. The question is, did the Tribunal correctly apply the law in reaching the conclusion that the defence is not available?
[24] The law relating to duress is found in Ramirez at paragraph 40:
On duress, Hathaway, supra, at page 218, states, summarizing the draft Code of Offences Against the Peace and Security of Mankind, in process by the International Law Commission since 1947:
Second, it is possible to invoke [as a defence] coercion, state of necessity, or force majeur. Essentially, this exception recognizes the absence of intent where an individual is motivated to perpetuate the act in question only in order to avoid grave and imminent peril. The danger must be such that "a reasonable man would apprehend that he was in such imminent physical peril as to deprive him of freedom to choose the right and refrain from the wrong". Moreover, the predicament must not be of the making or consistent with the will of the person seeking to invoke the exception. Most important, the harm inflicted must not be in excess of that which would otherwise have been directed at the person alleging coercion. [Footnotes omitted.]
If I were to accept this as the state of international law, as the appellant urged, I could find that the duress under which the appellant found himself might be sufficient to justify participation in lesser offences, but I would have to conclude that the harm to which he would have exposed himself by some form of dissent or non-participation was clearly less than the harm actually inflicted on the victims. [...]
[25] The Tribunal's finding is as follows:
In regards to the possibility of duress: no direct threat was made against you in regards to the above situations. As the victims in these situations were tortured and/or killed, there is no indication that the possible punishment to you could be greater than the harm caused by these actions. Any duress does not exonerate you from complicity in the acts described.
I find no error in the Tribunal's application of the law in Part 3 of the decision.
[26] As an ancillary defence argument, the Applicant raises the issue that he was acting on superior orders. I find that this argument is irrelevant to the Tribunal's decision since it only has importance when a person is charged with a crime against humanity, which is not what the Tribunal was asked to decide; the only question for decision was with respect to the Applicant's permanent residence status.
[27] With respect to the reasons provided, Counsel for the Applicant proposes the following certified question:
DURESS: In an admissibility determination, is an Applicant's well-founded fear of being persecuted for not following orders sufficient "duress" such as to vitiate that Applicant's intent to commit, as a matter of law, a crime against humanity?
(Proposed Certified Question and Argument, June 10, 2005)
[28] Counsel for the Respondent objects to the certification of the question proposed by Counsel for the Applicant, and on the basis of the authority of Liyanagamage v. Canada (Minster of Citizenship and Immigration) (1994), 176 N.R.4, argues that the question does not transcend the interest of the parties to the present Application, does not contemplate issues of broad significance or general application, and is not dispositive of the present Application. As I agree with the substance of Counsel for the Respondent's submissions contained in the Respondent's Response to Applicant's Certified Question, June 21, 2005, I find there is no question to certify.
ORDER
As I find no reviewable error in the decision under review, this Application is dismissed.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-1188-04
STYLE OF CAUSE: JOSE D. MALAGA ARICA
Applicant
and
THE SOLICITOR GENERAL OF CANADA
Respondent
DATE OF HEARING: APRIL 20, 2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: JUNE 27, 2005
APPEARANCES BY:
Patricia Wells FOR THE APPLICANT
Bridget O'Leary FOR THE RESPONDENT
Matina Karvellas
SOLICITORS OF RECORD:
Patricia Wells
Barrister & Solicitor.
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT