Date: 20050419
Docket: IMM-8674-04
Citation: 2005 FC 524
Ottawa, Ontario, April 19, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE MACTAVISH
BETWEEN:
NIXON VALÈRE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Nixon Valère's refugee claim was rejected because the Refugee Protection Division of the Immigration and Refugee Board found that there were serious reasons to believe that he was complicit in crimes against humanity perpetrated by the Haitian National Police ("HNP").
[2] Mr. Valère seeks to have the decision set aside, asserting that the Board erred in finding him to be excluded from the definition of Convention refugee, as the evidence before the Board did not support such a finding.
Background
[3] From 1996 to 1999, Mr. Valère was a member of the HNP. Throughout his time with the HNP, Mr. Valère was a Level II officer, which was a junior rank within the force.
[4] Mr. Valère testified that he was aware of corruption within the HNP. He says that he came into conflict with his superiors when he made it clear that he wanted no part of any wrongdoing. He was also aware that some of his colleagues were responsible for human rights abuses, but denies that he ever committed any such offenses himself. He also denies being present when others committed crimes against humanity.
[5] Mr. Valère was not alone in opposing corruption within the HNP. He testified that two of his police colleagues shared his values, and also stood up against corruption within the force. These two colleagues were killed - one in 1997, and the other in 1999. Both deaths were attributed to drug traffickers, and both remained unsolved. Mr. Valère believes that his colleagues were killed because they refused to be corrupted.
[6] Mr. Valère purchased his ticket for Canada the day after the 1999 killing of his colleague. He asserts that he was told by a journalist friend that he too had been targeted for elimination.
The Board's Decision
[7] The Refugee Protection Division did not deal with the merits of Mr. Valère's refugee claim, since it found that he was ineligible to make a claim by virtue of Article 1F(a) of the United Nations Convention Relating to the Status of Refugees and section 98 of the Immigration and Refugee Protection Act.
[8] In coming to the conclusion that Mr. Valère was excluded from the refugee definition, the Board found that human rightsviolations by members of the HNP had been continuous and regular. The Board further found that Mr. Valère was aware that the HNP committed human rights abuses before he joined the force, but that he had nevertheless joined voluntarily, staying with the force for three years.
[9] The Board found Mr. Valère's claim that he joined the HNP to fight corruption to be implausible. It was also skeptical of his claim that he had limited knowledge of what was going on within the force, and found that he attempted to downplay his knowledge of the abuses perpetrated by the HNP in his testimony.
[10] Finally, the Board looked to the fact that Mr. Valère had remained with the HNP for three years, without disassociating himself from the force. According to the Board, given that Mr. Valère was aware of the acts perpetrated by members of the HNP, his continued association with the force meant that he shared the common purpose of perpetuating abuses, and was thus complicit in crimes against humanity.
Issue
[11] The only issue on this application is whether the Board erred in its conclusion that Mr. Valère was excluded from the definition of refugee due to his complicity in crimes against humanity pursuant to Article 1F(a) of theConvention and section 98 of the Immigration and Refugee Protection Act.
Standard of Review
[12] Because there was no evidence before the Board that Mr. Valère himself committed a crime against humanity, the Board had to examine the circumstances of the case, and to determine if these circumstances supported an inference of complicity. This a question of mixed fact and law, and is reviewable against a standard of reasonableness: Harb v. Canada (Minister of Citizenship and Immigration)(2003), 302 N.R. 178, at para. 14.
The Law Relating to Complicity
[13] In determining whether the Board erred in concluding that Mr. Valère was excluded from the definition of refugee due to his complicity in crimes against humanity, it is necessary to first understand the law as it relates to the notion of complicity.
[14] 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".
[15] Section 98 of the Immigration and Refugee Protection Act incorporates Article 1F(a) of the Convention into domestic law.
[16] The burden of establishing that an individual has been directly or indirectly involved in crimes against humanity is on the respondent: Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (F.C.A.), at para. 10.
[17] 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 FCA 125, at para. 25.
[18] That is, the Minister merely has to show that there are serious reasons for considering that the claimant is guilty: Ramirez, at para. 5, Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (F.C.A.) at para. 16.
[19] 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.
[20] 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.
[21] 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 FC 1356, 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.
[22] 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 para. 50. Mens rea is an essential element of the crime: Moreno, at para. 51.
[23] 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 para. 53. See also Sivakumar, at paras. 9 and 10.
[24] 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: Sivakumarat para. 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, para. 22 and Moreno, at para. 47.
Analysis
[25] With this understanding of the relevant principles, I turn now to consider whether the Board erred in its application of the law to the facts of this case.
[26] The Board found that human rights violations by members of the HNP had been continuous and regular. It did not, however, find that the HNP was established for a limited brutal purpose, and indeed the documentary evidence before the Board demonstrates that there are honest officers within the force, as well as those who are corrupt. The country condition information further demonstrates that significant efforts have been made to deal with abuses carried out by members of the HNP.
[27] Further, Mr. Valère was a low-level officer with the HNP throughout the three years that he spent on the force. There was no suggestion that he was involved in the decision-making process within the HNP.
[28] As a result, Mr. Valère could not have been found to have been complicit in crimes against humanity merely by virtue of his membership in the HNP.
[29] The question, then, is the extent of Mr. Valère's own involvement in crimes against humanity. In this regard, the Board doubted Mr. Valère's claim that he had never witnessed any abuses carried out by his fellow officers. In the Board's view, Mr. Valère must have known what was going on. According to the respondent, awareness of the crimes of others, even on the part of a junior officer, was enough to make Mr. Valère complicit in the crimes of his fellow officers. This was especially so, the respondent says, when one took into account the fact that Mr. Valère voluntarily spent three years with the HNP.
[30] I do not agree.
[31] Whatever doubts the Board might have had about certain aspects of Mr. Valère's story, at the end of the day, the burden was on the Minister to establish that he came within the exclusion.
[32] There was no evidence before the Board that Mr. Valère himself ever committed a crime against humanity, nor was there any evidence that he ever did anything to assist others in the commission of such offenses. Even if he was aware of crimes committed by others, I am not satisfied, in the circumstances of this case, that this demonstrates that he shared a common purpose with the perpetrators of the crimes.
[33] Further, even though the Board appears to have rejected Mr. Valère's claim that he fought against corruption within the HNP, it was not entitled to find, based solely upon his low-ranking membership in the force, that he was party to crimes against humanity: Saftarov v. Minister of Employment and Immigration, [2004] F.C.J. No. 1246, at para. 13.
[34] As the Federal Court of Appeal stated in Moreno, 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.
[35] There was no evidence that Mr. Valère was a knowing participant in crimes against humanity. As Justice O'Reilly stated in Saftarov:
Accusing someone of crimes against humanity is a serious matter. Some evidence of knowing participation in serious crimes is required. Alternatively, an inference of involvement can be drawn from proof of membership in an organization primarily dedicated to human rights abuses. However, neither is present in this case.
Conclusion
[36] For these reasons, the application for judicial review is allowed.
Certification
[37] Neither party has suggested a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is allowed, and the matter is remitted to a differently constituted panel for redetermination.
2. No serious question of general importance is certified.
"Anne Mactavish"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-8674-04
STYLE OF CAUSE: NIXON VALÈRE
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: APRIL 14, 2005
REASONS FOR ORDER
AND ORDER: MACTAVISH, J.
DATED: APRIL 19, 2005
APPEARANCES:
MR. MICHAEL BOSSINFOR THE APPLICANT
MS. MARIE CROWLEYFOR THE RESPONDENT
SOLICITORS OF RECORD:
MR. MICHAEL BOSSIN FOR THE APPLICANT
OTTAWA, ONTARIO
JOHN H. SIMS, Q.C FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
OTTAWA, ONTARIO