Toronto, Ontario, June 14, 2006
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
DIONISIA PATRICIA CORNEJO BERRIOS
JOEL ROMARIO MARINASCORNEJO
RODOLFO MARIO MARINAS CORNEJO
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The applicants are a family of Peruvian citizens, whose claims for refugee protection were rejected by the Refugee Protection Division of the Immigration and Refugee Board, which found that there were serious reasons for believing that Mr. Marinas was complicit in crimes against humanity perpetrated by the Peruvian Navy.
[2] As the Minister quite properly conceded, this application must be allowed insofar as it relates to the members of Mr. Marinas' family. This is because the Board clearly erred in applying its exclusion finding regarding Mr. Marinas to the remaining family members, and in failing to consider their inclusion claims.
[3] For the reasons that follow, I am also satisfied that the Board erred in its analysis of the exclusion issue, and that, as a result, the decision must also be set aside as it relates to Mr. Marinas himself.
I. Background
[4] Mr. Marinas served in the Peruvian Navy. In June of 1986, the Navy was called in to help quell a riot at the Isla Fronton prison. The rioting prisoners were primarily members of the Shining Path movement.
[5] It is uncontroverted that some 97 prisoners were killed during the raid. It is also conceded that Peruvian Forces personnel were involved in the summary execution of prisoners, and that an effort was made to cover up the events at the prison. To this end, a prison building was blown up by the Navy, and prisoners trapped in the rubble were left to die.
[6] The Inter-American Court of Human Rights subsequently found that the actions of the Peruvian Forces at the Isla Fronton prison amounted to crimes against humanity, and no issue is taken by Mr. Marinas with respect to this finding. What is in issue in this proceeding is whether Mr. Marinas' own actions were such as to make him complicit in those crimes.
II. The Board's Decision
[7] The Board found that the Peruvian Armed Forces were not dedicated to a limited, brutal purpose, such that mere membership in the organization would provide a sufficient foundation for a finding of complicity.
[8] Nevertheless, the Board went on to find that Mr. Marinas' level of involvement in the events at the Isla Fronton prison was such as to make him complicit in those horrific events.
[9] In coming to this conclusion, the Board considered whether Mr. Marinas personally and knowingly participated in those events, and whether he shared a common purpose with the other participants. In concluding that he did, the Board stated that Mr. Marinas had testified to having "ferret[ed] out prisoners and deliver[ed] them to their ultimate execution". The Board also found that Mr. Marinas had assisted by collecting the belongings of the dead prisoners and placing them near the prisoners' bodies prior to the entire area being blown up, in order to conceal what had gone on. The Board also noted that Mr. Marinas acknowledged being aware of the fact that prisoners were left to die in the rubble of the prison.
[10] While noting that Mr. Marinas denied having any hand in the terrible events at Isla Fronton prison, quoting the decision of the Federal Court of Appeal in Harb v. Canada (Minister of Citizenship and Immigration) (2003), 302 N.R. 178, the Board observed that a simple denial, even if credible:
...cannot suffice to negate the presence of a common purpose. A plaintiff's actions can be more revealing than his testimony and the circumstances may be such that it can be inferred that a person shares the objectives of those with whom he is collaborating. (at ¶ 27)
[11] The Board thus concluded that Mr. Marinas was complicit in the atrocities that took place at the Isla Fronton prison, as it was probable that he had contributed, directly and indirectly, remotely and immediately, to these events, while being aware of the activities of the Peruvian Navy.
III. Issues
[12] The principle issue in this application is whether the Board erred in its conclusion that Mr. Marinas is excluded from the definition of refugee due to his complicity in crimes against humanity pursuant to Article 1F(a) of the Convention and section 98 of the Immigration and Refugee Protection Act.
[13] Mr. Marinas also submits that the Board failed to properly discharge its mandate by releasing what appears to be a draft set of reasons.
IV. Standard of Review
[14] Because there was no evidence before the Board that Mr. Marinas himself committed a crime against humanity, the Board had to examine the facts and circumstances of the case, in order to determine if these facts and circumstances supported an inference of complicity. This is a question of mixed fact and law, and is reviewable against a standard of reasonableness: Harb,
at ¶ 14.
V. The Law Relating to Complicity
[15] In determining whether the Board erred in concluding that Mr. Marinas was excluded from the definition of refugee due to his complicity in crimes against humanity, it is first necessary to have an understanding of the law as it relates to the notion of complicity.
[16] Article 1F(a) of the United Nations Convention Relating to the Status of Refugees excludes from the scope of the Convention "any person with respect to whom there are serious reasons for considering that 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 to such crimes".
[17] Section 98 of the Immigration and Refugee Protection Act incorporates Article 1F(a) of the Convention into Canadian domestic law.
[18] The burden of establishing that an individual has been directly or indirectly involved in crimes against humanity is on the Minister: Ramirez v. Canada(Minister of Employment and Immigration), [1992] 2 F.C. 306 (F.C.A.), at ¶ 10.
[19] The standard of proof is more than a mere suspicion, but less than the civil standard of a balance of probabilities: Lai v. Minister of Citizenship and Immigration, [2005] F.C.J. No. 584, 2005 FCA 125, at ¶ 25.
[20] That is, the Minister merely has to show that there are serious reasons for considering that the claimant is guilty: Ramirez, at ¶ 5, Morenov. Canada(Minister of Employment and Immigration), [1994] 1 F.C. 298 (F.C.A.) at ¶ 16.
[21] The determination of whether someone has been complicit in crimes against humanity is essentially a factual question that needs to be examined on a case by case basis. There is, however, a considerable body of jurisprudence emanating from the Federal Court of Appeal which establishes certain general principles to be followed in making such a determination. These cases include the Ramirez, Moreno and Harb decisions previously cited, as well as Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 and Bazargan v. Canada (Minister of Citizenship and Immigration) (1996), 205 N.R. 282.
[22] It is clear from this jurisprudence that one need not be the actual perpetrator of the crimes against humanity in question in order to fall within the exclusion. In certain circumstances, individuals may be held responsible for the actions of others.
[23] The principles to be extracted from the Federal Court of Appeal jurisprudence insofar as the level of participation required to establish complicity were synthesized by Justice Layden-Stevenson in Zazai v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1649, 2004 FC 1356, aff'd [2005] F.C.J. No. 1567, where she stated that:
|
|
[27] Accomplices as well as principal actors may be found to have committed international crimes... 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. |
|
|
|
[28] Madam Justice Reed in Penate v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 79 (T.D.) synthesized the trilogy principles at pages 84 and 85: |
|
|
|
The Ramirez, Moreno, and Sivakumar cases all deal with the degree or type of participation which will constitute complicity. Those cases have established that mere membership in an organization which from time to time commits international offences is not normally sufficient to bring one into the category of an accomplice. At the same time, if the organization is principally directed to a limited, brutal purpose, such as a secret police activity, mere membership may indeed meet the requirements of personal and knowing participation. The cases also establish that mere presence at the scene of an offence, for example, as a bystander with no intrinsic connection with the persecuting group will not amount to personal involvement. Physical presence together with other factors may however qualify as a personal and knowing participation. |
|
|
|
As I understand the jurisprudence, it is that a person who is a member of the persecuting group and who has knowledge that activities are being committed by the group and who neither takes steps to prevent them from occurring (if he has the power to do so) nor disengages himself from the group at the earliest opportunity (consistent with safety for himself) but who lends his active support to the group will be considered to be an accomplice. A shared common purpose will be considered to exist. I note that the situation envisaged by this jurisprudence is not one in which isolated incidents of international offences have occurred but where the commission of such offences is a continuous and regular part of the operation. |
|
[24] It should further be noted that passive acquiescence is not sufficient to establish a basis for exclusion. Personal involvement in the persecutorial acts must be established in order to demonstrate complicity: Moreno, at ¶ 50. Mens rea is an essential element of the crime: Moreno,
at ¶ 51.
[25] The rank of the individual within the organization in question is also relevant. As the Federal Court of Appeal noted in Moreno, the closer one is to the decision-making process and the less he or she does to thwart the commission of inhumane acts, the more likely criminal responsibility will attach. Conversely, the further one is distanced from the decision-makers, the less likely it is that the required degree of complicity necessary to attract the application of the exclusion clause will be met: see ¶ 53. See also Sivakumar, at ¶ 9 and 10.
[26] Finally, an important factor to consider is whether the individual attempted to stop the crimes from being carried out, protested against their commission or attempted to withdraw from the organization: Sivakumar at ¶ 10. In this context, the law does not require that people place themselves in grave peril in order to extricate themselves from the organization in question. Neither, however, can they be "amoral robots": Ramirez, ¶ 22 and Moreno, at ¶ 47.
VI. Analysis
[27] With this understanding of the applicable legal principles, I turn now to consider the issues raised by this case.
[28] Mr. Marinas submits that the reasons rendered by the Board were clearly incomplete, and thus lead to the inescapable inference that, through inadvertence, a draft version of the Board's decision must have been released.
[29] I am not prepared to make any such finding. First of all, it would be unfair for me to do so, as this argument was not advanced by Mr. Marinas is his memorandum of fact and law, and, as a result, the Minister has had no chance to investigate this allegation.
[30] Moreover, while it is true that the Board failed to properly address the claims of Mr. Marinas' family in its decision, it does not necessarily follow that what we have is a draft set of reasons. Adjudicators do make mistakes in their analyses. The reasons appear to have been dated and signed by the Board Member, and must be taken as the Member's reasons.
[31] This leaves the question of the Board's complicity finding. In my view the Board made several errors in coming to its conclusion that Mr. Marinas was complicit in the terrible events at the Isla Fronton prison.
[32] The first of these relates to the Board's finding that Mr. Marinas himself was directly involved in "ferreting out prisoners and delivering them to their ultimate execution". This was the first reason cited by the Board for finding that Mr. Marinas was a willing participant in the events at the prison.
[33] If true, this level of participation could well have supported a finding that Mr. Marinas was himself guilty of a crime against humanity, rather than merely being complicit in one. Nevertheless, the Board used this "evidence" as a foundation for a finding of willing participation. The difficulty with this is that there was no evidence before the Board that this ever occurred.
[34] Given the prominent role that this finding played in the Board reasoning, this error alone could have provided a sufficient basis as to justify the Board's decision being set aside. It was not, however, the only error committed by the Board.
[35] There was evidence before the Board that could have led to an inference that Mr. Marinas did not share a common purpose with the perpetrators of the atrocities. That is, Mr. Marinas prepared a written report after the fact in which he expressed his disapproval of what had happened at the prison. This report evidently led to Mr. Marinas having been disciplined by his superiors. There is, however, no consideration in the Board's reasons as to what, if any, weight should be attributed to this.
[36] Similarly, there is no consideration in the Board's reasons as to the significance of the fact that Mr. Marinas attempted to disassociate himself from the actions of his colleagues after the prison riot by transferring to a different unit within the Peruvian Navy.
[37] There was evidence before the Board with respect to Mr. Marinas' involvement in the events at the prison that will have to be carefully examined in order to determine whether it properly supports a finding of complicity. However, the combined effect of the various errors made by the Board in its analysis render it unsafe to allow the Board's decision to stand. As a result, the decision will be set aside as it relates to both Mr. Marinas and his family.
VII. Conclusion
[38] For these reasons, the application for judicial review is allowed.
VIII. Certification
[39] Neither party has suggested a question for certification, and none arises here.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. This application for judicial review is allowed, and the matter is remitted to a differently constituted panel for re-determination; and
2. No serious question of general importance is certified.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7772-05
STYLE OF CAUSE: PUGLIO RODOLFO MARINAS RUEDA ET AL v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 13, 2006
REASONS FOR JUDGMENT
AND JUDGMENT BY: Mactavish J.
APPEARANCES BY:
Mr. Jack Davis FOR THE APPLICANTS
Ms. Bridget A. O'Leary FOR THE RESPONDENT
SOLICITORS OF RECORD:
Davis & Grice
Barristers and Solicitors
Toronto, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT