Judgments

[1994] 3 F.C. 514

A-443-93

Jose Adan Equizabal (Appellant)

v.

Minister of Employment and Immigration (Respondent)

Indexed as: Equizabal v. Canada (Minister of Employment and Immigration) (C.A.)

Court of Appeal, Heald, Stone and Décary JJ.A.—Vancouver, May 11; Ottawa, May 26, 1994.

Citizenship and Immigration — Status in Canada — Convention refugees — Crimes against humanity — Appellant deserted from Guatemalan army after participating in torture of civilians — S.C.C. decision in Finta applied re: definition of crimes against humanity and defence of obedience to orders of superior based on compulsion — Consequences of desertion — Failure to desert at earliest opportunity.

The appellant, a citizen of Guatemala, was forcibly recruited by the Guatemalan army and trained in the use of weapons and in techniques of torture. He took part in four military missions, the purpose of which was to interrogate and torture peasant farmers “to get the truth out of them.” On the first two, he actively participated in torture. When he told his superior that what was being done to the people was a sin and that he was not going on the next mission, he was beaten and forced to drink a mixture which made him sick. He took part in two other missions in which his company tortured and murdered civilians. He then deserted and came to Canada where he claimed refugee status. The penalty for desertion was 12 months in prison but the appellant said he knew of deserters who were caught and never heard from again.

The Refugee Division found that the appellant did not leave the army at the earliest possible date and that his presence at and participation in the incidents of torture clearly constituted complicity in the commission of crimes against humanity. It therefore determined that the appellant fell within Article 1F of the United Nations Convention Relating to the Status of Refugees and that he was thereby excluded from the definition of Convention refugee. His application for judicial review was dismissed but the Trial Judge certified two serious questions of general importance: 1. Did the Refugee Division err in law by finding that the exclusion clause, Article 1F, applied to the appellant? 2. If so, did the Refugee Division err in law in finding that the appellant would be subject to a law of general application in respect of sanctions for desertion from the army and therefore was not a Convention refugee?

Held, the first question should be answered in the negative and the second need not be answered.

The appellant could not rely on the defence of obedience to the orders of a superior based on compulsion. In the case of R. v. Finta, it was established that that defence was limited to “imminent, real, and inevitable” threats to the subordinate’s life. The Finta decision was distinguishable because it involved a prosecution under the Criminal Code requiring proof beyond a reasonable doubt whereas this appeal concerned a hearing under the Immigration Act in which the standard of proof was a “serious reason for considering” that the appellant had committed one of the offences enumerated in Article 1F. Nevertheless, Finta was relevant herein with respect to the nature of crimes against humanity and with respect to the defence of obedience to the orders of a superior based on compulsion. Based on the definition in Finta, it was clear that the appellant, who had committed acts of “barbarous cruelty,” was guilty of crimes against humanity. Since the orders in issue were manifestly unlawful and since there was no “imminent, real, and inevitable threat” to the appellant’s life, the defence of obedience to the orders of a superior was not available to him. Moreover, the appellant could have deserted sooner than he did. On one occasion, when given two days’ leave, he spent the time strolling around town with his fellow soldiers “looking at the young girls” rather than taking this opportunity for desertion.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Immigration Act, R.S.C., 1985, c. I-2, Sch. (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 34).

United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, art. 1F.

CASES JUDICIALLY CONSIDERED

APPLIED:

Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433; (1993), 163 N.R. 197 (C.A.); R. v. Finta, [1994] 1 S.C.R. 701; (1994), 165 N.R. 1 (as to the nature of crimes against humanity and as to the defence of obedience to the orders of a superior based on compulsion).

DISTINGUISHED:

R. v. Finta, [1994] 1 S.C.R. 701; (1994), 165 N.R. 1 (as to the burden of proof).

AUTHORS CITED

Bakker, Jeanne L. “The Defense of Obedience to Superior Orders: The Mens Rea Requirement” (1989), 17 Am. J. Crim. L. 55.

Green, Leslie Claude. “Superior Orders and Command Responsibility” (1989), 27 Can. Y.B. Int’l L. 167.

APPEAL brought pursuant to the certification of the following questions (92-A-7342, Joyal J., order dated 28/7/93, not yet reported): 1. Did the Refugee Division err in law by finding that the exclusion clause in Article 1F of the U.N. Convention on the Status of Refugees applied to the appellant? 2. If so, did the Refugee Division err in law in finding that the appellant would be subject to a law of general application in respect of sanctions for desertion from the army and therefore was not a Convention refugee? Question No. 1 was answered in the negative and question No. 2., therefore, did not need to be answered.

COUNSEL:

Larry A. Gold for the appellant.

Deirdre A. Rice for the respondent.

SOLICITORS:

Larry A. Gold, Vancouver, for the appellant.

Deputy Attorney General of Canada for the respondent.

The following are the reasons for judgment rendered in English by

Heald J.A.: The appellant is a 23-year-old citizen of Guatemala who entered Canada in 1991. The Convention Refugee Determination Division of the Immigration and Refugee Board determined that the appellant is not a Convention refugee and concluded further that he is a person who falls within Article 1F of the Convention and is, therefore, excluded from the definition of Convention refugee.[1] Their specific finding was that he committed crimes against humanity by torturing civilians.

The appellant sought and obtained leave to apply for judicial review of that decision. His application for judicial review was dismissed by Joyal J. [92-A-7342, order dated 28/7/93, not reported]. Mr. Justice Joyal decided, nevertheless, to certify a serious question of general importance which he stated as follows:

1.   Did the Refugee Division err in law by finding that the exclusion clause, Article 1F, applies to the appellant?

2.   If so, did the Refugee Division err in law in finding that the appellant would be subject to a law of general application in respect of sanctions for desertion from the army and therefore is not a Convention Refugee?

This appeal is brought pursuant to that certification.

THE FACTS

The appellant is a citizen of Guatemala with only six years of formal education. He worked with his father on the family farm which was located near the El Salvador border. On November 28, 1990, he and a friend were forcibly recruited by the Guatemalan military. He received military training in the use of weapons and in techniques of torture. He was assigned to a company of 60 men and ordered to go to the Guija area for four days in February of 1991. They were given two days leave and were then dispatched to interrogate and torture peasant farmers “to get the truth out of them.” The appellant fears the consequences of deserting the Guatemalan military. He testified that he deserted because he was required to commit atrocities against civilians. He described four military missions in which he was involved:

(a) The first incident occurred on February 6, 1991. The appellant went to a farm as part of a group of 15 soldiers. Their lieutenant questioned a lady at the farm concerning the guerillas. She denied any knowledge of guerillas whereupon the lieutenant ordered the appellant and two other soldiers to beat her and “to get the truth out of her.” The appellant said that he and two other soldiers beat her, her two children (aged 18 and 20 years) and her husband. They also tortured them by sticking their heads in water-filled containers and pricking their fingers and tongues with thorns. This incident occurred over a three-hour period.

(b) The second incident occurred on February 7, 1991. Once again the appellant and other soldiers were sent to another farm. Again torture and beatings occurred. He said that he did not do everything he did on the first occasion but admitted to beating a young man under orders to do so. The appellant also told the Refugee Division that, before the second incident, he had decided to never again become involved in such events.

(c) The appellant was ordered to go on a third mission on February 10, 1991. Before this mission, and probably on or about February 9, 1991, he told the lieutenant that what was being done to the people was not right and was a sin. The lieutenant told him that this was none of his business and that he “had to do it whether [he] wanted to or not.” The appellant then advised the lieutenant that he was not going on the next mission. Consequently, the lieutenant told two other soldiers that they could do whatever they wished with the appellant. The appellant was then punched, kicked and forced to drink a mixture of water, salt and oil. As a result of this treatment the appellant became ill.

On the third mission, the appellant was required to stand guard while people were being tortured by other soldiers. He could hear their screams. The army commander ordered the soldiers to burn their homes.

(d) The fourth mission involving the appellant took place on March 10, 1991. He was one of a group of nine soldiers that visited another farm. The appellant and three other soldiers were searching the house when they heard two shots. When he came out of the house he discovered that a woman and her 16-year old son had been shot and killed. The appellant felt he could no longer tolerate the situation. He believed that he would be killed if he disobeyed orders so he and another soldier deserted the Guatemalan military on March 16, 1991, whilst on short-term leave. They walked to the capital and eventually returned to their home village. They spent a few days in El Salvador, returning home at night. On May 7, 1991, the appellant’s friend was shot and killed by the military at his home. On May 8, 1991, the appellant fled to El Salvador. The appellant arrived at the Canadian border on June 8, 1991 and made his refugee claim on that date.

In training he was told that the penalty for desertion was 12 months in prison. However, he knows of three other deserters who were caught and never heard from again. He fears that he will be killed by the military for deserting and for the further reason that he possesses information relating to his lieutenant’s actions in torturing certain individuals which information he could relate to the surviving relatives of those persons.

THE DECISION OF THE REFUGEE DIVISION

After a comprehensive review of the evidence given by the appellant, the Division drew certain inferences from that evidence. (Appeal Book, at page 12):

In my opinion, the claimant did not leave the Guatemalan military at the earliest possible date. He testified that after the first mission involving torture he decided that he would not participate in such activity again. Yet, despite this resolve, he took part in three further incidents. He had received permission to leave the military camp on two earlier occasions but never sought to escape at those times. His explanation that he thought about leaving but did not know his way around the area is not credible. I do not find it credible that the claimant could not have escaped from the military much sooner than he did.

At page 14, the Division concluded:

… the claimant did not seek to escape from the military until after being involved in four missions where torture was either perpetrated by the claimant or by his colleagues with the claimant’s knowledge. He described in testimony the training he received in torture methods. He was aware after the first torture mission on 6 February 1991 that he did not want to participate in any further missions of that nature. The claimant did not desert the military until 16 March 1991. This delay leads me to conclude that the claimant continued to participate in atrocious acts against civilians even though he had an alternative course of action open to him.

I accept the fact that the claimant had no choice the first time he was ordered to torture civilians. I cannot accept that he did so again the following day and then accompanied and guarded his fellow soldiers on two further occasions of torture without even attempting to flee the situation.

And at pages 14-15:

The claimant had personal training in torture techniques and knowingly participated in the torture of civilians. The claimant was not a mere on-looker; he was a knowledgeable participant in the torture. His presence at this number of incidents and his participation therein clearly constitutes complicity.

For these reasons, the Refugee Division concluded that the applicant falls within Article 1F of the Convention and is thereby excluded from the definition of Convention refugee.

ANALYSIS

The appellant alleges twofold error on the part of the Refugee Division: firstly, the Refugee Division erred in excluding this appellant from the definition of Convention refugee pursuant to Article lF of the Schedule to the Immigration Act, and, secondly, the Refugee Division further erred in failing to conclude that since desertion from the military could result in imprisonment, such a circumstance constituted persecution rather than a prosecution for a violation of a law of general application.

The Exclusion Clause (Article 1F)

At the outset of his submissions, counsel for the appellant described the overall environment in Guatemala during the relevant period. Relying on the documentary evidence, he stressed the fact that, at all relevant times, Guatemala was a country where “violence itself has become a principle (sic) method of political expression” and “Indiscriminate violence and human rights abuses against those who oppose, or are suspected of opposing the regime, are viewed as responsible for the omnipresent terror in Guatemala.”[2] Witnesses to crimes are one of many groups that are singled out for human rights abuses, both physical and psychological.

Thereafter, counsel turned to the factual situation in this case. This appellant was forcibly recruited into the army in November of 1990. He was a witness to crimes committed by his commanding lieutenant. He was a farm boy, 20 years of age with a grade 6 education when the incidents described supra occurred. He knew of other soldiers who “escaped from the military.” Three such deserters were recaptured and then disappeared.[3]

In counsel’s view, this is clearly a case where the appellant is entitled to rely on the defence of obedience to the orders of a superior. He submitted that the facts at bar were “on all fours” with the facts in the Finta case.[4] He relies on the appellant’s testimony[5] that he wanted to desert but did not have the opportunity to do so. Counsel also relies on his evidence supra, concerning the three deserters who were recaptured but never heard from again. He refers to the judgment of Cory J. in Finta, supra, at page 837:

The defence of obedience to superior orders based on compulsion is limited to “imminent, real, and inevitable” threats to the subordinate’s life … the problem is to determine when threats become so imminent, real, and inevitable that they rise to the level of compulsion that disables a subordinate from forming a culpable state of mind.

He also refers to pages 837-838 where Mr. Justice Cory, in referring to an article by J. L. Bakker entitled “The Defense of Obedience to Superior Orders: The Mens Rea Requirement” (1989), 17 Am. J. Crim. L. 55, stated:

Bakker suggests that it is only when the soldier faces an imminent, real and inevitable threat to his or her life that the defence of compulsion may be used as a defence to the killing of innocent people. “Stern punishment” or demotion would not be sufficient. She states at p. 74:

Whether a subordinate’s belief in the existence of an imminent, real and inevitable threat to his life is justified should be a function of circumstances surrounding the subordinate faced with an illegal order. A number of circumstances may be considered including age, education, intelligence, general conditions in which subordinates find themselves, length of time spent in action, nature of the hostilities, the type of enemy confronted, and opposing methods of warfare.

Circumstances that go directly to the state of mind of the offender confronted with a moral choice include the announced penalty for disobeying orders, the probable penalty for disobedience, the typical subordinate’s reasonable beliefs about the penalty, the subordinate’s belief as to what the penalty is, and any alternatives available to the subordinate to escape execution of the penalty.

The element of moral choice was, I believe, added to the superior orders defence for those cases where, although it can readily be established that the orders were manifestly illegal and that the subordinate was aware of their illegality, nonetheless, due to circumstances such as compulsion, there was no choice for the accused but to comply with the orders. In those circumstances the accused would not have the requisite culpable intent.

I would add this to the comments of the text writers. The lower the rank of the recipient of an order the greater will be the sense of compulsion that will exist and the less will be the likelihood that the individual will experience any real moral choice. It cannot be forgotten that the whole concept of the military is to a certain extent coercive. Orders must be obeyed. The question of moral choice will arise far less in the case of a private accused of a war crime or a crime against humanity than in the case of a general or other high ranking officer.

The Finta case, supra, is distinguishable from the case at bar since it was a prosecution under the Criminal Code [R.S.C., 1985, c. C-46] requiring proof beyond a reasonable doubt whereas this appeal concerns a hearing under the Immigration Act where the standard of proof is defined as “serious reasons for considering that” the appellant has committed one of the offences enumerated in Article l F supra. Nevertheless, the Finta decision is relevant to the issues in this appeal because, firstly, this appeal requires a consideration of the nature of war crimes and crimes against humanity, and, secondly, the appellant’s principal defence for his actions is that of obedience to his superior’s orders based on compulsion. Both of these matters are discussed at length in Finta.

“A War Crime,” or “A Crime Against Humanity”

In dealing with the nature of crimes against humanity and war crimes, Mr. Justice Cory stated in the Finta case, at pages 817-818:

The trial judge … explained to the jury that one of the ways that the domestic offences of kidnapping, confinement, and robbery could achieve the level of a crime against humanity was if the acts could be considered to be inhumane.

In my view, this is an appropriate characterization which emphasizes that for example robbery, without the additional component of barbarous cruelty is not a crime against humanity. It cannot be inferred that someone who robs civilians of their valuables during a war has thereby committed a crime against humanity. To convict someone of an offence when it has not been established beyond a reasonable doubt that he or she was aware of conditions that would bring to his or her actions that requisite added dimension of cruelty and barbarism violates the principles of fundamental justice. The degree of moral turpitude that attaches to crimes against humanity and war crimes must exceed that of the domestic offences of manslaughter or robbery. It follows that the accused must be aware of the conditions which render his or her actions more blameworthy than the domestic offence. [Emphasis added.]

On this basis, it seems clear that a crime against humanity is not only a domestic offence but is rather an offence with “the additional component of barbarous cruelty.” On the uncontradicted evidence of the appellant himself, it is obvious that he was guilty of “barbarous cruelty.” I refer specifically to the first incident on February 6, 1991, and the second incident on February 7, 1991 when the appellant admitted to the torture and beating of helpless civilians. The jurisprudence of this Court makes it clear that where someone personally commits physical acts that amount to a crime against humanity, that person is responsible.[6] In the circumstances at bar, there is little doubt that the appellant, by his own admission, committed crimes against humanity as that expression is used in Article lF supra.

The Defence of Obedience to the Orders of a Superior Based on Compulsion

Applying the Finta criteria, the first matter for consideration is whether the orders in issue are “manifestly unlawful.” A manifestly unlawful order “must be one that offends the conscience of every reasonable, right-thinking person; it must be an order which is obviously and flagrantly wrong.”[7] In this respect, Mr. Justice Cory cites with approval a passage from Green “Superior Orders and Command Responsibility” ((1989), 27 Can. Y.B. Int’l L. 167, at page 169, note 8):

The identifying mark of a ‘manifestly unlawful’ order must wave like a black flag above the order given, as a warning saying: ‘forbidden’. It is not formal unlawfulness, hidden or half-hidden, not unlawfulness that is detectable only by legal experts, that is the important issue here, but an overt and salient violation of the law, a certain and obvious unlawfulness that stems from the order itself, the criminal character of the order itself or of the acts it demands to be committed, an unlawfulness that pierces and agitates the heart, if the eye be not blind nor the heart closed or corrupt. That is the degree of ‘manifest’ illegality required in order to annul the soldier’s duty to obey and render him criminally responsible for his actions.[8]

On the facts in this case, I have no difficulty in concluding that the orders here in issue were manifestly unlawful. I refer particularly to the incident on February 6, 1991, where the appellant and two other soldiers beat four persons and tortured them over a period of three hours. Similarly, the incident on February 7, 1991 was also manifestly unlawful since it involved the vicious beating of a young man by this appellant. Surely the concept of torturing “the truth out” of someone is manifestly unlawful, by any standard. Undoubtedly such activity possesses the necessary level of moral turpitude to describe crimes against humanity.

The next matter for consideration pursuant to the Finta criteria is whether, on these facts, the appellant faced an “imminent, real, and inevitable threat” to his life. “Stern punishment” or demotion would not be sufficient. The appellant’s evidence as summarized supra, sets out two reasons why, notwithstanding his understanding that the penalty for desertion was only 12 months in jail,[9] he would be killed by the military if he returned: firstly, because he knew of three other deserters who had been apprehended and never heard from again; and, secondly, he would be killed by his lieutenant because of his knowledge of relatives of persons whom the lieutenant had tortured personally.

With respect to the first reason, the Refugee Division dismissed it as pure speculation without any credible evidence to support it.[10] In my view, the Refugee Division was entitled to so conclude on this record. There is nothing on the record to support the appellant’s conclusion that the three captured deserters had “disappeared.” I agree that such a conclusion was sheer speculation on the part of the appellant.

In so far as the second reason is concerned, it is, likewise, not supported by the record. The record establishes that, before the third mission, and, probably on February 9, 1991, he advised his lieutenant that he would no longer participate in such torture. As a result he was not engaged in any further torture or shootings in either the third or fourth incidents. He was never forced to torture anyone again. His assignment on both of these occasions was to act as a guard. It is a necessary inference, in these circumstances, that the orders with respect to the third and fourth incidents came from his lieutenant. Since he appears to have performed these duties without any complaint on the part of his superiors, I am unable to conclude that he was facing an “imminent, real, and inevitable threat to his life” when he deserted on March 16, 1991.

Moreover, I share the concern of the Refugee Division concerning the credibility of the appellant’s claim that he could not have deserted sooner than he did. In referring to the four days in early February of 1991 that he spent in the Guija area, he stated that on two of these days, they were given “two days off to go around getting to know the town.”[11] On page 29 of the transcript, he was asked:

Q.   …. how did you feel about being taught to do these kinds of things, or instructed by the military that this is what they wanted you to do?

A.   Well, I felt … well, I didn’t feel right that we should go and do that to people. And that’s why, before we were sent to Guija, I wanted to desert from the army. But as I didn’t have the opportunity of escaping, that’s why I didn’t do it before.

On the basis of this evidence, in January of 1991 the appellant formed an intention to desert from the army before being sent to Guija. Yet, after he arrived in Guija, he had two days of leave when he and some of his fellow soldiers “strolled around” the town “looking at the young girls.”[12] In my view, these visits to Guija afforded the appellant an excellent opportunity to desert if he was so inclined. Accordingly the Refugee Division’s negative findings with respect to the appellant’s credibility on this point are amply supported by the evidence.

CONCLUSION

For the reasons advanced supra, I have concluded, firstly that the appellant committed a “crime against humanity” as that expression appears in Article l F(a) of the Schedule to the Immigration Act. I have also concluded that the defence of obedience to the orders of a superior has not been made out in the circumstances of this case.

Accordingly, the appeal should be dismissed and the question posed by Joyal J. in the order dated June 28, 1993 should be answered as follows:

Q. Did the Refugee Division err in law by finding that the exclusion clause, Article lF, applies to the applicant?

A. No.

Since question No. 1 has been answered in the negative, question No. 2 need not be answered.

Stone J.A.: I agree.

Décary J.A.: I concur.

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