A-686-90
Saul Vicente Ramirez (Appellant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: RAMIREZ Y. CANADA (MINISTER OFEMPLOYMENT
AND IMMIGRATION) (CA.)
Court of Appeal, Stone, MacGuigan and Linden
JJ.A.—Toronto, January 30; Ottawa, February 7,
1992.
Immigration — Refugee status — Exclusion from refugee
status for having committed war crime or crime against
humanity — Standard for exclusion: "serious reason for con
sidering" claimant committed such crime — Extent to which
accomplices in atrocities should be subject to exclusion —
Necessity for mens rea — Criterion of personal and knowing
participation in persecutorial acts, rest to be decided in rela
tion to facts of particular case — Where claimant active part of
military forces habitually committing atrocities and fully aware
thereof, cannot succeed in disengaging himself merely by
ensuring never himself inflicted pain or pulled trigger.
International law — Interpretation of United Nations Con
vention Relating to the Status of Refugees (Schedule to Canada
Immigration Act), Art. 1(F) providing for exclusion from refu
gee status "where there are serious reasons for considering"
refugee claimant has committed war crime or crime against
humanity — Not to be interpreted by reference only to Crimi
nal Code section based on common law, but one of world's
legal systems — Following World War /I atrocities, Convention
signatories wishing broad power to exclude refugees if guilty
of war crimes — Complicity — Necessity for mens rea — Cri
terion of personal and knowing participation in persecutorial
acts, rest to be determined in relation to facts of particular
case.
Before the Refugee Division, the appellant had established
that he had a well-founded fear of persecution by reason of his
political opinion. It nevertheless excluded him from protection
because it found that there were serious reasons for consider
ing that, while serving with the Salvadoran armed forces, he
had committed a war crime or a crime against humanity within
the meaning of the United Nations Convention Relating to the
Status of Refugees.
The appellant has never been formally charged with a crime,
and it was his own evidence which the Refugee Division used
against him to exclude him. This was an appeal from the Refu
gee Division's decision.
Held, the appeal should be dismissed.
The words "serious reasons for considering" must be taken
to establish a lower standard of proof than the balance of
probabilities. This was consistent with the fact that in the after
math of World War II atrocities, the signatory states to the
1951 Convention intended to preserve for themselves a wide
power of exclusion from refugee status where perpetrators of
war crimes were concerned. The parties agreed that the burden
of establishing "serious reasons for considering" rested on the
Government.
The most controversial legal issue herein had to do with the
extent to which accomplices ("one who knowingly, voluntarily
and with common intent unites with the principal offender in
the commission of a crime"—Black's Law Dictionary), as well
as principal actors, in international crimes should be subject to
exclusion, since the Refugee Division held in part that the
appellant was guilty "in aiding and abetting in the commission
of such crimes".
The "liability" of accomplices was not to be determined
exclusively by reference to the "parties to an offence" section
of the Criminal Code. Code section 21 was based on the com
mon law approach to aiding and abetting and an international
convention ought not to be considered in light of but one of the
world's legal systems. Mens rea in the sense of personal and
knowing participation was required.
Mere membership in an organization which from time to
time committed international offences was not normally suffi
cient for exclusion from refugee status. However, where an
organization is principally directed to a limited, brutal purpose,
such as a secret police activity, mere membership may by
necessity involve personal and knowing participation in per-
secutorial acts. Nor was mere presence at the scene of an
offence enough to qualify as personal and knowing participa
tion, though presence coupled with additional facts could well
lead to a conclusion of such involvement. The Federal Court
decision in Naredo v. Canada (Minister of Employment &
Immigration) (where, in the case of members of a torture squad
who did not themselves apply force to any of the detainees, the
Trial Division refused extraordinary remedies on the ground
that the applicants had aided and abetted the commission of the
crimes) was correctly decided on its particular facts, but cannot
establish a general rule that those who look on are always as
guilty as those who act. It is undesirable to go beyond the crite
rion of personal and knowing participation in persecutorial acts
in establishing a general principle. The rest should be decided
in relation to the particular facts.
The finding of the Refugee Division, relating to the appel
lant's participation as a principal actor, could not be upheld,
since there was no evidence to sustain it. Since it was unclear
what legal test was applied by the Refugee Division in its find-
ing that the appellant was an accomplice, it erred in law and its
decision would have to be set aside and the matter remitted to
it for redetermination unless, on the basis of the correct
approach, no properly instructed tribunal could have come to a
different conclusion.
In view of the fact that the appellant was an active part of
the Salvadoran military forces for whom the torture and killing
of captives had become a way of life, and since he was fully
aware of what was happening, he could not succeed in disen
gaging himself merely by ensuring that he was never the one to
inflict the pain or pull the trigger. His presence at a very large
number of incidents of persecution, coupled with his sharing in
the common purpose of the military forces, clearly constitutes
complicity. There was no need to define at what point complic
ity may be said to have been established, because this case was
not near the borderline. No properly instructed tribunal could
fail to come to the conclusion that the appellant had been per
sonally and knowingly involved in persecutorial acts.
The defence of duress could not justify his complicity
because the harm to which he would have exposed himself by
some form of dissent or non-participation was clearly less than
the harm inflicted on the victims.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Criminal Code, R.S.C., 1985, c. C-46, s. 21.
Immigration Act, R.S.C., 1985, c. I-2, ss. 2(1), 19 (as am.
by R.S.C., 1985 (3rd Supp.), c. 30, s. 3), 27(1)(g),(h),
46.01(1)(d)(i) (as enacted by R.S.C., 1985 (4th Supp.),
c. 28, s. 14), 82.3 (as enacted idem, s. 19).
London Charter of the International Military Tribunal,
annexed to the Agreement for the Prosecution and Pun
ishment of the Major War Criminals of the European
Axis (London Charter of the International Military Tri
bunal), 8 August, 1945, 82 U.N.T.S. 279, Art. 6.
United Nations Convention Relating to the Status of Refu
gees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1 (F).
CASES JUDICIALLY CONSIDERED
APPLIED:
Grewal v. Minister of Employment and Immigration
Canada, A-972-82, Pratte J.A., judgment dated 23/2/83,
F.C.A., not reported; Schaaf v. Minister of Employment
and Immigration, [1984] 2 F.C. 334; [1984] 3 W.W.R. 1;
(1984), 52 N.R. 54 (C.A.); Laipenieks v. LN.S., 750 F. 2d
1427 (9th Cir. 1985).
NOT FOLLOWED:
Naredo v. Canada (Minister of Employment & Immigra
tion) (1990), 11 Imm. L.R. (2d) 92 (F.C.T.D.).
REFERRED TO:
Fedorenko v. United States, 449 U.S. 490 (S.C. 1981);
Fernando Alfonso Naredo (Arduengo) & Neives del Car-
men San Martin Salazar Arduengo v. Minister of Employ
ment and Immigration (1980), CLIC 27.13 (I.A.B.).
AUTHORS CITED
Black's Law Dictionary, 5th ed., St Paul, Minn.: West
Publishing Co., 1979, "accomplice".
Goodwin-Gill, Guy S. The Refugee in International Law,
Oxford: Clarendon Press, 1983.
Grahl-Madsen, A. The Status of Refugees in International
Law, vol. 1, Leyden: A. W. Sijthoff, 1966.
Hathaway, James C. The Law of Refugee Status, Toronto:
Butterworths, 1991.
Jowitt's Dictionary of English Law, 2nd ed. by John
Burke, London: Sweet & Maxwell Ltd., 1977, "accom-
plice".
Linden, Allen M. Canadian Tort Law, 4th ed. Toronto:
Butterworths, 1988.
Office of the United Nations High Commissioner for Ref
ugees, Handbook on Procedures and Criteria for
Determining Refugee Status under the 1951 Convention
and the 1967 Protocol relating to the States of Refu
gees, Geneva, September 1979.
Williams, Glanville. Criminal Law: The General Part,
2nd ed., London: Stevens & Sons Ltd., 1961.
COUNSEL:
Michael F. Loebach for appellant.
Donald A. Macintosh for respondent.
SOLICITORS:
Brown, Beattie, O'Donovan, London, Ontario,
for appellant.
Deputy Attorney General of Canada for respon
dent.
The following are the reasons for judgment ren
dered in English by
MACGUIGAN J.A.: This is an appeal under section
82.3 [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s.
19] of the Immigration Act, R.S.C., 1985, c. I-2 (the
"Act"), of a decision of the Convention Refugee
Determination Division of the Immigration and Refu
gee Board ("Refugee Division"), dated March 14,
1990, in which the Refugee Division determined that
the appellant was not a Convention refugee.
This case is unusual in that the Refugee Division
found that the claimant had established that he had a
well-founded fear of persecution by reason of his
political opinion, but nevertheless excluded him from
protection by virtue of section F of Article 1 of the
United Nations Convention Relating to the Status of
Refugees (the "Convention"). The definition of "Con-
vention refugee" in subsection 2(1) [as am. idem, s.
1 ] of the Act states that it
2. (1)...
"Convention refugee" ...
... does not include any person to whom the Convention
does not apply pursuant to section E or F of Article I
thereof, which sections are set out in the schedule to this
Act;
The relevant part of section F of Article 1 of the Con
vention, as set out in the Schedule to the Act is as
follows:
F. The provisions of this Convention shall not apply to any
person with respect to whom there are serious reasons for con
sidering 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;
In the case at bar the crime in question is either a war
crime or a crime against humanity. It is certainly not
a crime against peace, and would normally be
included in crimes against humanity.' However,
since we are, on the facts under consideration, con
cerned with crimes committed in the course of what
is either a civil war or a civil insurrection, and noth
ing hangs on whether one category or the other is the
more relevant, I have chosen to employ the term
"international crimes" to refer indifferently to both
classes of crime.
I Professor James C. Hathaway, The Law of Refugee Status,
1991, at p. 217, includes "genocide, slavery, torture, and apar
theid" as crimes within this category. Guy S. Goodwin-Gill,
The Refugee in International Law, 1983, at pp. 59 - 60, writes
that "The notion of crimes against humanity inspired directly
the 1948 Genocide Convention, Article 11 of which defines the
crime under international law".
Applying this provision to the activities of the
appellant, the Refugee Division concluded as follows
(Appeal Book II, at page 402):
The claimant is not a major war criminal. We do not have
the benefit of times, places and description of activities. We do
not have witnesses. However we do have the claimant's own
testimony which we believe meets the "serious reasons for
considering" standard of proof which is set out in section F.
As a result, the Refugee Division determines that although
the claimant has demonstrated that he has a well-founded fear
,of persecution on the basis of his political opinion, his activi
ties, while serving with Salvadoran armed forces, fall clearly
within the confines of the exclusion clause, section F(a) of
Article I of the Convention.
I
There is a dearth of authority with respect to the
interpretation of the Convention. The introductory
clause contains the ambiguous phrase "serious rea
sons for considering" referred to by the Refugee
Division. On this A. Grahl-Madsen, The Status of
Refugees in International Law, 1966, at pages 289-
290, has this to say:
The words `serious reasons for considering' make it clear that
it is not a condition for the application of Article I F (b) that
the person concerned has been convicted or formally charged
or indicted of a crime. The person's own confession, the testi
monies of other persons, or other trustworthy information may
suffice. On the other hand the wording of the paragraph sug
gests that a person may be allowed to refute the accusations
levelled against him, even if he has been convicted by a final
judgment. If a person is able to establish his innocence, there is
clearly no reason why he should be denied status as refugee.
In the case at bar, the appellant has never been for
mally charged with a crime, and it was his own evi
dence which the Refugee Division used against him
to exclude him, an approach in conformity with the
Convention.
The words "serious reasons for considering" also, I
believe, must be taken, as was contended by the
respondent, to establish a lower standard of proof
than the balance of probabilities. The respondent
indeed argued that "serious reasons for considering"
should have the same meaning as the phrase `reason-
able grounds to believe," which is used again and
again in section 19 of the Act with respect to inad-
missible classes of persons. The most closely related
class is that described in paragraph 19(1)(j) [as
enacted by R.S.C., 1985 (3rd Supp.), c. 30, s. 3],
which applies generally to all immigration claimants:
19. (1) 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 outsidc Canada that consti
tuted a war crime or a crime against humanity ....
The same result is provided for by paragraphs
27(1)(g) and (h) for persons who are already perma
nent residents, and by subparagraph 46.01(1)(d)(i) [as
enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14] for
persons who claim to be Convention refugees: both
of these latter provisions merely refer to persons
described in paragraph 19(1)(j), and so incorporate
the notion of "reasonable grounds to believe."
While I see no great difference between the
phrases "serious reasons for considering" and "rea-
sonable grounds to believe," I find no necessity
exactly to equate the one with the other, although I
believe both require less than the balance of
probabilities. "Serious reasons for considering" is the
Convention phrase and is intelligible on its own.
Nevertheless, the comparison with paragraph 19(1)(j)
shows that Parliament was prepared to contemplate a
standard lower than the usual civil standard in this
kind of case. Moreover, it also leads me to think that
it would be extremely awkward to place one standard
at the ordinary civil level, and another, for what is
essentially the same thing, at a lower. level.
Therefore, although the appellant relied on several
international authorities which emphasize that the
interpretation of the exclusion clause must be restric
tive, 2 it would nevertheless appear that, in the after
2 The Handbook on Procedures, and Criteria for Determi
ning Refugee Status, Office of the United Nations High Com
missioner for Refugees, 1979, par. 149, at p. 35, states: "Consi-
dering the serious consequences of exclusion for the person
concerned, however, the interpretation of these exclusion clau-
(Continued on next page)
math of Second World War atrocities, the signatory
states to this 1951 Convention intended to preserve
for themselves a wide power of exclusion from refu
gee status where perpetrators of international crimes
are concerned.
The U.N.H.C.R. Handbook, supra, at page 35,
states:
147. The pre-war international instruments that defined various
categories of refugees contained no provisions for the exclu
sion of criminals. It was immediately after the Second World
War that for the first time special provisions were drawn up to
exclude from the large group of then assisted refugees certain
persons who were deemed unworthy of international protec
tion.
148. At the time when the Convention was drafted, the mem
ory of the trials of major war criminals was still very much
alive, and there was agreement on the part of States that war
criminals should not be protected. There was also a desire on
the part of States to deny admission to their territories of
criminals who would present a danger to security and public
order.
149. The competence to decide whether any of these exclusion
clauses are applicable is incumbent upon the Contracting State
in whose territory the applicant seeks recognition of his refu
gee status.
Hathaway, supra, at pages 215-216, provides more
vivid detail as to the intention of the drafters:
While the drafters of the Convention were unanimously of
the view that war criminals should not be entitled to claim ref
ugee status, there was disagreement on two points. First, the
United States argued that countries should be allowed to treat
war criminals as refugees, although they should not be com
pelled to do so. Most representatives, however, were strongly
of the view that discretion of this kind could undermine the
integrity of refugee status.
The compromise which emerged consisted of the mandatory
exclusion of an undefined category of persons who had com
mitted "a crime against peace ...." This satisfied the majority
of delegates who wanted a strong stand against the sheltering
of war criminals; the United States was content that the defini
tion was sufficiently vague to allow for the injection of domes
tic discretion .... [Footnotes omitted.]
(Continued from previous page)
ses must be restrictive." Goodwin-Gill, supra, at p. 62, writes:
"A person with a well-founded fear of very severe persecution,
such as would endanger life or freedom, should only be exclu
ded for the most serious reasons."
I do not view a less-than-civil-law onus, however, as
amounting to "domestic discretion," because I
believe it is in accord with the international standard,
and assigns roughly equal weight to the terms "seri-
ous" and "considering" within that standard.
There was no issue between the parties as to which
party bore the onus. Both agreed that the burden of
establishing serious reasons for considering that
international offences had been committed rested on
the party asserting the existence of such reasons, i.e.,
the respondent. Aside from avoiding the proving of a
negation by a claimant, this also squares with the
onus under paragraph 19(1)(j) of the Act, according
to which it is the Government that must establish that
it has reasonable grounds for excluding claimants.
For all of these reasons, the Canadian approach
requires that the burden of proof be on the Govern
ment, as well as being on a basis of less than the bal
ance of probabilities.
In the case at bar the most controversial legal issue
has to do with the extent to which accomplices, 3 as
well as principal actors, in international crimes
should be subject to exclusion, since the Refugee
Division held in part that the appellant was guilty "in
3 I am using the word more in its American than in its
English sense as "one who knowingly, voluntarily and with
common intent unites with the principal offender in the com
mission of a crime" (Black's Law Dictionary, 5th ed., 1979).
The English sense appears to include principals as well as
accessories: Jowitt's Dictionary of English Law, 2nd ed., 1977.
Glanville Williams, Criminal Law: The General Part, 2nd ed.,
1961, at pp. 346-353 writes:
In felonies there are four degrees of participation. A felon
may be principal in the first degree, principal in the second
degree, accessory before the fact, or accessory after the fact.
Participants of any degree (that is, including the principal in
the first degree) are termed, accomplices ....
A principal in the second degree ... may be defined as one
who (not being a principal in the first degree) "aids and abets"
at the time of the commission of the crime.... [T]he term
"abettor" makes a convenient synonym for principal in the
second degree.
aiding and abetting in the commission of such
crimes" (Appeal Book, at page 401), and it is on this
finding that, as will become apparent, the respon
dent's case must rest.
The Convention provision refers to "the interna
tional instruments drawn up to make provisions in
respect of such crimes." One of these instruments is
the London Charter of the International Military Tri
bunal, Article 6 of which provides in part (repro-
duced by Grahl-Madsen, at page 274):
Leaders, organisers, instigators and accomplices participat
ing in the formulation or execution of a common plan or con
spiracy to commit any of the foregoing crimes are responsible
for all acts performed by any persons in execution of such
plan.
I believe this evidence is decisive of the inclusion of
accomplices as well as principal actors, but leaves to
be answered the very large question as to the extent
of participation required for inclusion as an "accom-
plice".
It was common ground to both parties during argu
ment that it is not open to this Court to interpret the
"liability" of accomplices under this Convention
exclusively in the light of section 21 of the Canadian
Criminal Code [R.S.C., 1985, c. C-46], which deals
with parties to an offence, since that provision stems
from the traditional common law approach to "aid-
ing" and "abetting." 4 An international convention
cannot be read in the light of only one of the world's
legal systems.
Hathaway, supra, at page 218, refers to a "mens
rea requirement," implying a "knowing" state of
mind. He states (at page 220):
The last question to be addressed is the degree of involve
ment required to justify criminal liability. While mere presence
at the scene of a crime may not be actionable, (Fedorenko v.
United States, 449 U.S. 490 (U.S.S.C. 1981)) exclusion is war
ranted "when the evidence establishes that the individual in
question personally ordered, incited, assisted or otherwise par
ticipated in the persecution ...." (Laipenieks v. I N.S., 750 F.
2d 1427, at 1431 (U.S.C.A. 9th Cir. 1985)).
4 Admittedly, the respondent appeared to come to this con
clusion primarily by reason of the difference between the bur
dens of proof in the Criminal Code and here.
The two U.S. deportation decisions cited by
Hathaway, although interpreting related domestic
legislation, are helpful with respect to the appropriate
degree of participation. Thus, in Laipenieks the Ninth
Circuit Court of Appeals reviewed the U.S. law as
follows (at page 1431):
Fedorenka stated that the proper analysis under the statute was
whether the acts of the individual amounted to assisting in the
persecution of civilians:
[A]n individual who did no more than cut the hair of female
inmates before they were executed cannot be found to have
assisted in the persecution of civilians. On the other hand,
there can be no question that a guard who was issued a uni
form and armed with a rifle and a pistol, who was paid a
stipend and was regularly allowed to leave the concentration
camp to visit a nearby village and who admitted to shooting
at escaping inmates on orders from the commandant of the
camp, fits within the statutory language about persons who
assisted in the persecution of civilians. Other cases may pre
sent more difficult line-drawing problems but we need
decide only this case.
In Osidach, 513 F.Supp. at 70, the court read the above lan
guage as requiring that in order to establish "participation" or
"assistance", the act of participation must involve "some per
sonal activity involving persecution".
This interpretation is mandated first by the plain language of
Section 1251(a)(19). The statutory provision clearly states that
deportability is established when the "alien" has been found to
have ordered, incited, assisted or otherwise participated in per-
secutorial acts. Mere acquiescence or membership in an organ
ization is insufficient to trigger the deportability provision of
Section 1251(a)(19).
Second, the intent of the legislation demonstrates that active
personal involvement in persecutorial acts needs to be demon
strated before deportability may be established.
I am not unmindful of the dangers of reading an
international convention in the light of the interpreta
tion of domestic American law by American courts,
and I do not propose to do so. Nevertheless, the
American case law represents a helpful starting point
as to the meaning of the word "committed" in the
Convention. From the premise that a mens rea inter
pretation is required, I find that the standard of "some
personal activity involving persecution," understood
as implying a mental element or knowledge, is a use-
ful specification of mens rea in this context. Clearly
no one can "commit" international crimes without
personal and knowing participation.
What degree of complicity, then, is required to be
an accomplice or abettor? A first conclusion I come
to is that mere membership in an organization which
from time to time commits international offences is
not normally sufficient for exclusion from refugee
status. Indeed, this is in accord with the intention of
the signatory states, as is apparent from the post-war
International Military Tribunal already referred to.
Grahl-Madsen, supra, at page 277, states:
It is important to note that the International Military Tribu
nal excluded from the collective responsibility `persons who
had no knowledge of the criminal purposes or acts of the
organization and those who were drafted by the State for mem
bership, unless they were personally implicated in the commis
sion of acts declared criminal by Article 6 of the Charter as
members of the organization. Membership alone is not enough
to come within the scope of these declarations' [International
Military Tribunal, i. 256].
It seems apparent, however, that where an organiza
tion is principally directed to a limited, brutal pur
pose, such as a secret police activity, mere member
ship may by necessity involve personal and knowing
participation in persecutorial acts.
Similarly, mere presence at the scene of an offence
is not enough to qualify as personal and knowing par
ticipation (nor would it amount to liability under sec
tion 21 of the Canadian Criminal Code), though,
again, presence coupled with additional facts may
well lead to a conclusion of such involvement. In my
view, mere on-looking, such as occurs at public
executions, where the on-lookers are simply by
standers with no intrinsic connection with the perse
cuting group, can never amount to personal involve
ment, however humanly repugnant it might be. How
ever, someone who is an associate of the principal
offenders can never, in my view, be said to be a mere
on-looker. Members of a participating group may he
rightly considered to be personal and knowing par
ticipants, depending on the facts.
At bottom, complicity rests in such cases, I
believe, on the existence of a shared common pur
pose and the knowledge that all of the parties in ques
tion may have of it. Such a principle reflects domes
tic law (e.g., subsection 21(2) of the Criminal Code),
and I believe is the best interpretation of international
law.
The one Canadian authority in this area, Naredo v.
Canada (Minister of Employment & Immigration)
(1990), 11 Imm. L.R. (2d) 92 (F.C.T.D.), 5 did not
deal with the Convention as such. In that case Mul-
doon J. refused certiorari, prohibition, and manda-
mus to a husband and wife who had been members of
the intelligence service of the Chilean police and who
were facing an order of deportation from Canada.
The evidence showed that the applicants belonged to
a team of four persons which tortured prisoners, fre
quently to death, but that they did not themselves
apply force to any of the detainees, merely acting as
guards or as witnesses to the statements extracted
from them. On these facts the Court refused the
extraordinary remedies requested, on the ground that
the applicants had aided or abetted the crimes com
mitted.
In my view, Naredo was correctly decided on its
facts, but it relied in good part on the definition of
parties to an offence contained in section 21 of the
Canadian Criminal Code, an approach which is not
sufficient in the case at bar where what has to be
interpreted is an international document of essentially
a non-criminal character.
Moreover, in my opinion the Court there cast its
net too broadly in stating (at page 112):
Just watching is equally culpable with just torturing. All
humans in distress just naturally look for help to other humans,
5 Hathaway cites the Immigration Appeal Board version of
this case, 80-9159, CLIC Notes 27.13, November 20, 1980, per
D. Davey, immediately following his citation of the U.S. cases
Fedorenko and Laipenieks. There are in fact Immigration
Appeal Board decisions affirming either side of this issue.
a truth which has been accorded judicial notice. In 1921, in the
U.S. case of Wagner v. International Railroad, 133 N.E. 147,
19 A.L.R. 1 (N.Y.), the late Mr. Justice Cardozo, albeit in a
different context, expressed that which might be a consistent
human verity:
"Danger invites rescue. The cry of distress is the summons
to relief. The law does not ignore these reactions of the mind
in tracing conduct to its consequences .... The risk of res
cue, if only it be not wanton is born of the occasion."
Thus, it is so perverse and reprehensible just to watch the tor
ture of a fellow human, no matter with what posture or expres
sion, be it glee or just indifference, without making any gesture
to rescue the victim, that the watchers are just as immorally
criminal as the wielders of the electrodes, pliers, cigarette butts
or instruments of suffocation. To be purposely inflicted with
agonizing pain in the presence of other humans who will not
come to one's help, is to be doubly tortured, for it creates utter
despair. The "mere" watcher is just as culpable a torturer as the
actual physical torturer. 6
No doubt in the circumstances of that case, where
four members of a police force who had freely cho
sen their occupation, were isolated in a room with a
victim with no other purpose than collectively to
apply torture to the victim, guards, witnesses and
watchers were all equally guilty of personal and
knowing involvement in persecutorial acts. But, as I
see it, that is a determination that can be made only
in a particular factual context, and cannot establish a
general rule that those who look on are always as
guilty as those who act. In fact, in my view there is
no liability on those who watch unless they can them
selves be said to be knowing participants.
One must be particularly careful not to condemn
automatically everyone engaged in conflict under
conditions of war. Probably most combatants in most
wars in human history have seen acts performed by
their own side which they would normally find repre
hensible but which they felt utterly powerless to stop,
at least without serious risk to themselves. While the
6 To the contrary is the fact that the duty to rescue is not
generally recognized in our law, and only in specialized cir
cumstances is such a duty found to exist: see A. M. Linden,
Canadian Tort Law, 4th ed., 1988, at pp. 263ff.
law may require a choice on the part of those ordered
actually to perform international crimes, it does not
demand the immediate benevolent intervention, at
their own risk, of all those present at the site. Usually,
law does not function at the level of heroism.
In my view, it is undesirable to go beyond the cri
terion of personal and knowing participation in per-
secutorial acts in establishing a general principle. The
rest should be decided in relation to the particular
facts.
II
In the case at bar the Refugee Division found the
appellant to be for the most part credible, with one
significant exception (Appeal Book II, at page 398):
With the exception of his testimony concerning his partici
pating in the torture and killing of civilians, the panel found
the claimant's testimony to be credible and trustworthy.
This reservation as to his credibility in respect of the
torture and killing of civilians is subsequently
explained as follows (Appeal Book II, at page 400):
By his own admission, the claimant participated in what the
panel would term "atrocities" against the civilian population.
That such atrocities by the military against non-combatants
occur is well documented throughout the exhibits filed in evi
dence in this matter. Previously in these reasons we have out
lined the evolution of his testimony. The first admission he
made, although lacking in detail, appears to hit right at the
heart of the matter. The panel does not believe that his state
ment is simple machismo.
The Refugee Division refers to this admission as
the "first admission he made," which can refer only
to the statement they set out several pages earlier
(Appeal Book II, at page 397):
Throughout his testimony, the claimant described his per
sonal participation in combat. In the first instance, claimant
stated the following:
Q: Okay now, tell us about your term of service.
A: Once I got there they started training me as a soldier. In
the beginning I liked this. It was attractive to me. It sort
of matured me from another lesson to man and I also
knew that the army needed young people, people like
me, but all young people ... because otherwise they
would lack soldiers, they would have no soldiers and
who was going to fight for the fatherland (sic).
Then I started doing more and more training and progress
ing in the military ranks. That is how I was doing my service
for almost two years. I fought, I did a lot of things that maybe
people would think are bad things. I had to kill and the time
went on, but these things went on too.
Q: Are you talking about ordinary combat?
A: Yes, I'm talking about ordinary combat. I'm also talking
about getting people unarmed, torturing them and killing
them.
On a second occasion, the claimant described .... [Empha-
sis added.]
The key phrase in this passage, the word which led
the Refugee Division to disbelieve his subsequent
denials of not being a principal actor in torture
scenes, was obviously "I did a lot of things that
maybe people would think are bad things". [Empha-
sis added.]
With the advantage of a better translation of the
original Spanish, we now know that what the appel
lant actually said in this passage was not "I did," but
"I saw."
The appellant introduced an affidavit to this effect
by one Rafael Lopez Moreno (Appeal Book, App. I),
a permanent resident of Canada fluent in both the
English and Spanish languages, with the original
Spanish text and his translation of it attached as
exhibits. The respondent accepted that the tape from
which the Spanish text was taken and the Spanish
itself were before the Refugee Division, so that no
question arises of this Court's considering the case on
any different basis than did the Refugee Division.
The respondent also acknowledged that "I saw" and
not "I did" is the correct interpretation. Thus the Ref
ugee Division, through no fault of its own, has been
deprived of the entire basis for its finding that the
appellant was himself a principal in the commission
of international crimes.
The respondent did attempt to argue that several
other passages, including the latter part of the pas
sage quoted immediately above, could lead to the
same conclusion. However, not only did the Refugee
Division not rely on any other admission, but, given
the initial "I saw," none of the other passages can
reasonably be given a contrary interpretation. On
every occasion on which he was asked directly about
his participation, the appellant answered squarely, as
below (Appeal Book I, at pages 158-160):
Q: Did you ever receive and follow such orders?
A: No, because one knows what is coming up and one tries
to get away from the place where the action is going on.
Q: Did you commit what you would, even if you felt you
weren't responsible for it, did you commit what you
would consider to be an abusive act on someone else's
orders?
A: No, I wouldn't.
Q: No, I wouldn't. My question was, did he. Not would he,
but did he.
INTERPRETER: Oh, your question was did he?
Q: Did he.
INTERPRETER: Oh, okay.
A: No, I never did that.
The first finding of the Refugee Division, relating
to the appellant's participation as a principal actor,
cannot therefore be upheld, since there is no evidence
that could sustain it.
Hence it is necessary to proceed to their second
finding, relating to his participation as an accomplice
(Appeal Book II, at pages 400-402):
The first admission he made, although lacking in detail,
appears to hit right at the heart of the matter. The panel does
not believe that his statement is simple machismo. But even
this [sic] were to be the case, he has admitted, as well, being
present and serving as a guard, while these activities took
place.
Even if the claimant were involved only in aiding and abet
ting in the commission of such crimes, as was his second
assertion, in the panel's opinion, he would be no less guilty.
The claimant defended his actions by stating:
I don't feel responsible because I did not issue the orders. I
only follow what it was order to me as any ordinary soldier.
(sic)
The panel recognizes that the claimant joined the Salvadoran
army at a impressionable age and that he was motivated to do
so by vengeance arising from the murder of one sister and the
rape of another. The panel also acknowledges that the claimant
was ordered by his superiors to participate in brutal actions
against non-combatants whom they believed were aiding the
guerrillas. This defense, however, is not acceptable.
There does appear to be some remorse on the claimant's part
for his conduct; according to the claimant, this remorse was
first manifested when he lay badly wounded in a military hos
pital. That this kind of physical trauma could induce a change
of heart is not questioned. However, although this change of
heart and the claimant's religious beliefs may have had some
bearing on his decision to desert the army, the panel is more
inclined to believe that it was his physical inability to function
as a combat soldier and the resulting curtailment of his poten
tial for career development in the military which carried more
weight in the making of this decision.
The claimant is not a major war criminal. We do not have
the benefit of times, places and description of activities. We do
not have witnesses. However we do have the claimant's own
testimony which we believe meets the "serious reasons for
considering" standard of proof which is set out in section F.
As a result, the Refugee Division determines that although
the claimant has demonstrated that he has a well-founded fear
of persecution on the basis of his political opinion, his activi
ties, while serving with Salvadoran armed forces, fall clearly
within the confines of the exclusion clause, section F(a) of
Article I of the Convention.
From this passage it is unclear what legal test was
applied by the Refugee Division in determining that
the appellant was an accomplice. It has recourse to
the common-law phrase "aiding and abetting," which
is a term of art in that tradition, and therefore an
insufficient approach by itself to the interpretation of
the international Convention. But the reference is so
general and the standard actually applied so elusive,
that I believe it must be said that the Refugee Divi
sion has erred in law, and its decision must be set
aside and the matter remitted to it for redetermination
unless, on the basis of the correct approach, no prop-
erly instructed tribunal could have come to a different
conclusion.?
The Refugee Division rested its finding on the
appellant's "being present and serving as a guard." It
would also have been open to it on the evidence to
find that his activities in rounding up suspected guer
illas constituted personal involvement in the commis
sion of the offences against them which followed, but
the Refugee Division must have accepted his expla
nation, that on the two occasions on which he admit
ted that his role in rounding up had led to mistreat
ment he had thought the prisoners were to be handed
over to the Red Cross (Appeal Book I, at pages 103-
104).
With respect to the appellant's serving as a guard, I
find it impossible to say that no properly instructed
tribunal could fail to draw a conclusion as to personal
participation. The appellant testified (Appeal Book I,
at page 97):
We would just take watch, we'd make watch in the area or then
we would just witness what was going on, but we never did the
actual killing.
The words "in the area" may merely imply a "mak-
ing" or "taking watch" in the usual military sense of
serving as a guard for the encampment, without any
particular reference to what was happening to the
prisoners. The Refugee Division interpreted it as in
the sense of guarding the prisoners or protecting the
malefactors. Given the ambiguity, I cannot see this as
the only interpretation possible for a properly
instructed tribunal.
What remains is, therefore, the appellant's admit
ted presence at many instances of torture and killings
committed by other soldiers, under orders from their
common superiors. In speaking in a summary way of
his experiences the appellant testified as to what he
saw (Appeal Book I, at page 20):
7 This standard has from time to time been applied by this
Court: see, e.g., Grewal v. Minister of Employment and Immi
gration Canada, decided February 23, 1983 (A-972-82), per
Pratte J.A. It is clear from the majority in Schaaf v. Minister of
Employment and Immigration, [1984] 2 F.C. 334 (C.A.) that
not every error of law will vitiate an administrative decision.
Yes, I'm talking about ordinary combat. I'm also talking about
getting people unarmed, torturing them and then killing them.
Initially motivated by revenge for the murder of one
sister and her husband by the guerrillas, and the rape
of another (Appeal Book I, at pages 20-27), the
appellant enlisted voluntarily in the Salvadoran Army
for two years as of February 1, 1985, and was such, an
effective soldier that he was promoted to corporal
and then to sub-sergeant. During this period he was
involved in between 130 and 160 instances of combat
(Appeal Book I, at page 31). Two months before his
term was up he was wounded in an ambush in foot,
leg, and head. During his recuperation he signed up
for two more years of service so that his hospitaliza
tion and convalescence would be paid for and his sal
ary would continue (Appeal Book I, at pages 35-38).
At that time he testified that his conscience was
bothering him because of what he had been part of
(Appeal Book I, at pages 35-36):
Q: Were there other reasons for you to renew your contract?
A: No, there were no other reasons. I didn't want to stay in
the army any longer because of the things that were
going on there. I only wanted to get better from my inju
ries and then just to ask for, ask them to dismiss me and
just get away from it all.
Q: What things are you talking about that, things you were
seeing, as a result of things you were seeing you wanted
to get a discharge. What things are you talking about?
A: Torture people, kill people. Sometimes in combat the
enemy would just spend all his ammunition and then we
would capture them alive and there are some soldiers
who are very, have a very strong character or they are
very hard people, tough people and they just tortured
these prisoners and finally they would kill them. The
prisoners would be, before being killed, they would say
the names of other people and then the soldiers would go
to the houses where these people are and they would
round them up.
Q: Okay, but go ahead please.
A: They would bring these people unarmed and they would
torture them and then they would kill them.
Q: You didn't think this was justifiable?
A: Yes, I thought that it wasn't correct at all because as me
as much as anybody else, we all have a right to life.
To similar effect he stated (Appeal Book I, at page
37):
Q: Well, just a minute. I think I'm getting off on a track
here. My question here is, you obviously, you renewed,
you said you renewed, but it seems you didn't really
want to and so I'm talking about your, your mental
frame at the end of your first term of service.
A: I thought that the things that I saw were not the correct
things. So, I wanted to start a new life. I wanted to
change my lifestyle. I wanted to have a future, at least to
have a home and to do my own life because I didn't have
any trade at that point and I didn't know how to go on
with a civilian life. At that point I knew that I was
wounded and I could no longer progress in the ranks and
that is why I thought that maybe it would be better for
me just to leave the army.
I find it clear from these and other passages in the
appellant's testimony, as well as from the documen
tary evidence, that the torture and killing of captives
had become a military way of life in El Salvador. It is
to the appellant's credit that his conscience was
greatly troubled by this, so much so that during his
second term of enlistment, after three times unsuc
cessfully requesting a discharge (Appeal Book I, at
page 41), he eventually deserted in November, 1987
(Appeal Book I, at page 47), in considerable part at
least because of his bad conscience. I have also to
say, however, that I think it is not to his credit that he
continued to participate in military operations leading
to such results over such a lengthy period of time. He
was an active part of the military forces committing
such atrocities, he was fully aware of what was hap
pening, and he could not succeed in disengaging
himself merely by ensuring that he was never the one
to inflict the pain or pull the trigger.
On a standard of "serious reasons for considering
that ... he has committed a crime against peace, a
war crime, or a crime against humanity," I cannot see
the appellant's case as even a borderline one. He was
aware of a very large number of interrogations car
ried out by the military, on what may have been as
much as a twice-weekly basis (following some 130-
160 military engagements) during his 20 months of
active service. He could never be classed as a simple
on-looker, but was on all occasions a participating
and knowing member of a military force, one of
whose common objectives was the torture of prison
ers to extract information. This was one of the things
his army did, regularly and repeatedly, as he admit
ted. He was a part of the operation, even if he person
ally was in no sense a "cheering section." In other
words, his presence at this number of incidents of
persecution, coupled with his sharing in the common
purpose of the military forces, clearly constitutes
complicity. We need not define, for purposes of this
case, the moment at which complicity may be said to
have been established, because this case is not to my
mind near the borderline. The appellant was no inno
cent bystander: he was an integral, albeit reluctant,
part of the military enterprise that produced those ter
rible moments of collectively deliberate inhumanity.
To convict the appellant of criminal liability for his
actions would, of course, require an entirely different
level of proof, but on the basis of the lower-than-
civil-law standard established by the nations of the
world, and by Canadian law for the admission of ref
ugees, where there is a question of international
crimes, I have no doubt that no properly instructed
tribunal could fail to come to the conclusion that the
appellant had been personally and knowingly
involved in persecutorial acts.
The appellant did not argue the defence of superior
orders, and his arguments as to duress and remorse
are insufficient for exoneration. 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 majeure. Essentially, this exception rec
ognizes the absence of intent where an individual is motivated
to perpetrate the act in question only in order to avoid grave
and imminent peril. The danger must be such that "a reasona
ble man would apprehend that he was in such imminent physi
cal 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 seek
ing 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 dis
sent or non-participation was clearly less than the
harm actually inflicted on the victims. The appellant
himself testified as follows as to the punishment for
desertion (Appeal Book I, at page 49):
A: Well, the punishment is starting with very, very hard
training exercises and then after that they will throw you
in jail for five to ten years.
This is admittedly harsh enough punishment, but
much less than the torture and death facing the vic
tims of the military forces to which he adhered.
As for the remorse he no doubt now genuinely
feels, it cannot undo his persistent and participatory
presence.
The appeal must therefore be dismissed.
STONE J.A.: I agree.
LINDEN J.A.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.