2013 FC 115, 2013 FC 115

IMM-5069-12 2013 FC 115 Jules Guiniling Tindungan ( Applicant ) v. The Minister of Citizenship and Immigration ( Respondent ) Indexed as: Tindungan v. Canada (Citizenship and Immigration) Federal Court, Russell J.—Toronto, January 8; Ottawa, February 1, 2013.

Citizenship and Immigration — Status in Canada — Convention Refugees and Persons in Need of Protection — Judicial review of Immigration and Refugee Board, Refugee Protection Division (RPD) decision refusing applicants’ claim for protection as Convention refugee or person in need of protection under Immigration and Refugee Protection Act (IRPA), ss. 96 , 97 — Applicant, United States citizen, morally objecting to actions of U.S. military while deployed in Afghanistan — Going absent without leave from unit, claiming refugee protection in Canada — Applicant speaking publicly about opposition to U.S. military, fearing persecution if returned to U.S. — RPD finding, inter alia, applicant not rebutting presumption of state protection, not showing reasonable possibility of persecution or risk to life or cruel, unusual treatment, U.S. military actions not coming within United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (UNHCR Handbook), paragraphs 169, 170 — Whether RPD erring by finding that U.S. judicial system could provide adequate protection; by ignoring evidence on state protection; when interpreting UNHCR Handbook, foreign law; by making unreasonable conclusions — RPD rejecting Canadian, international standards as guide to assess fairness of U.S. military justice system — According to RPD, failure to comply with such standards not rendering state protection inadequate — Decision lacking justification, transparency, intelligibility — Error to conclude that system not meeting basic fairness standards nevertheless providing adequate state protection — Decisions made under IRPA having to comply with Canadian Charter of Rights and Freedoms , international human rights instruments —

Interpretation of “adequate” state protection not complying with such instruments when “adequate” falling below standards — UNHCR Handbook clear that national legislation, international instruments may be used in determining whether prosecution amounting to persecution — RPD’s conclusions on differential punishment unreasonable — RPD not addressing how applicant protected from misuse of prosecutorial discretion — Cogent evidence before RPD contradicting finding that public statements against war not leading to heavier sentences for desertion — RPD assessing incidents experienced by applicant as isolated, not condoned by U.S., not systemic, despite contrary evidence — Evidence showing U.S. military practices falling under UNHCR Handbook — RPD misunderstanding law regarding defences available against desertion charge in U.S. military — RPD concluding applicant failing to rebut presumption of adequate state protection despite fact applicant not able to put forward defence under UNHCR Handbook, paragraph 171 — Vassey v.

Canada (Citizenship and Immigration) teaching this state of law going directly to availability of state protection — Application allowed. This was an application for judicial review of a decision by the Refugee Protection Division (RPD) of the Immigration and Refugee Board refusing the applicant’s claim for protection as a Convention refugee or a person in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). The applicant, a citizen of the United States, was a member of the U.S. Army.

While deployed in Afghanistan, the applicant developed moral objections to the actions, practices and procedures undertaken by the U.S. military. He witnessed and participated in things such as the torture of detainees, violent house raids on civilian homes, and indiscriminate and routine firing into populated civilian areas. After completing his tour, he learned that his unit would soon be redeploying and that the same tactics would be used. After unsuccessfully attempting to be reassigned from infantry duty through official channels, he went absent without leave from his unit.

He then came to Canada and claimed refugee protection. The applicant spoke publicly on news outlets about his opinions on the U.S. military, stating that he was politically and morally opposed to the actions of the U.S. military, and feared he would be persecuted by his unit if returned to the U.S.

The RPD found, inter alia , that the applicant had not rebutted the presumption of state protection, or had not shown that there was a reasonable possibility he would be persecuted or that, on a balance of probabilities, there would be a risk to his life, or cruel and unusual treatment or punishment or torture if he returned to the U.S.

As an alternative to its adequate state protection finding, the RPD found that the military actions the applicant objected to do not come within paragraphs 169 and 171 of the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (UNHCR Handbook).

At issue was whether the RPD erred by finding that the U.S. judicial system could provide adequate protection; by ignoring evidence that directly contradicted its findings regarding state protection; when interpreting both paragraph 171 of the UNHCR Handbook and foreign law related to raising a defence in the U.S. court-martial system; and by making unreasonable conclusions without regard to, and not supported by, the evidence. Held , the application should be allowed.

The RPD rejected Canadian and international standards as a guide to what is adequate when it comes to the fairness of a justice system, but did not make it clear what standards it used to assess the fairness and adequacy of the U.S. military justice system. The RPD’s position was that failure to comply with such standards does not render state protection inadequate.

The decision lacked justification, transparency and intelligibility because it is not possible to ascertain what the RPD meant by fairness in the U.S. system or why that fairness equates with adequacy when it obviously falls short of Canadian and international standards. It is an error in law to conclude that a system which fails to meet basic fairness standards that are internationally recognized to be fundamental to any tribunal system can, nevertheless, provide adequate state protection.

The legislature has expressly indicated that decisions made under the IRPA must be consistent with the Canadian Charter of Rights and Freedoms and must comply with Canada’s obligations under international human

rights instruments, as set out under paragraph 3(3)(

f) of the IRPA. An

interpretation of “adequate” state protection, wherein “adequate” ispermitted to fall below standards set out in international human rights instruments, is not an

interpretation that would comply with theseinstruments. The UNHCR Handbook itself makes it clear that in determining whether prosecution amounts to persecution, “nationalauthorities may frequently have to take decisions by using their own national legislation as a yardstick” and that “recourse may usefullybe had to the principles set out in the various international instruments relating to human rights.” In the present case, the RPDdisregarded these guidelines and principles. The RPD’s conclusions on differential punishment were unreasonable.

The RPD did not address how the applicant would be protectedagainst the misuse of prosecutorial discretion, or how a criminal justice system can be adequate if there is no review of prosecutorialdiscretion. In this regard, the RPD has not learned the lessons of Vassey v. Canada (Citizenship and Immigration). There was cogentevidence before the RPD directly contradicting the RPD’s findings that public statements against the war did not lead to heaviersentences for desertion.

As to the applicant’s claim that the military actions he objected to came within paragraphs 169 and 171 of the UNHCR Handbook, theRPD assessed the applicant’s personal experiences as isolated incidents that were not condoned by the United States and were notsystemic, or a matter of policy, while completely ignoring the objective documentary evidence that confirmed that the opposite was true.The RPD ignored documentary evidence describing routine practices by the U.S.

Army in Iraq and Afghanistan that fall under paragraph171 of the UNHCR Handbook, and which suggest that the U.S. has not complied with its international obligations in this regard. TheRPD also misunderstood the law regarding the defences available against a desertion charge in the U.S. military. The RPD agreed withthe applicant that he would not be able to put forward a defence under paragraph 171 of the UNHCR Handbook against a charge ofdesertion.

As Vassey teaches, this state of the law of the U.S. “goes directly to the availability of state protection.” Yet the RPDconcluded that the applicant failed to rebut the presumption of adequate state protection. The RPD rejected the applicant’s position thathe would only be able to submit a defence if he had been ordered to commit a crime or a war crime, and not to conduct one that fallsbelow this threshold, but comes within paragraph 171 of the UNHCR Handbook. Given the teaching in Vassey, this finding, and the stateprotection analysis based upon it, was unreasonable.

The RPD agreed with the facts that the applicant put forward, but opted to ignorewhat the Court had to say on the issue in Vassey. STATUTES AND REGULATIONS CITED Canadian Charter of Rights and Freedoms, being

Part I of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)[R.S.C., 1985, Appendix II, No. 44]. Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3, 72(1), 96, 97. Uniform Code of Military Justice, 10 U.S.C. § 837 (2006). TREATIES AND OTHER INSTRUMENTS CITED Convention for the Protection of Human Rights and Fundamental Freedoms, November 4, 1950, 213 U.N.T.S. 221. Geneva Convention relative to the Treatment of Prisoners of War, August 12, 1949, being

Schedule III of the Geneva Conventions Act,R.S.C., 1985, c. G-3. International Covenant on Civil and Political Rights, December 16, 1966, [1976] Can. T.S. No. 47. Universal Declaration of Human Rights, GA Res. 217 A (III), UN Doc. A/810, at p. 71 (1948). CASES CITED followed: R. v. Généreux, (SCC), [1992] 1 S.C.R. 259, (1992), 88 D.L.R. (4th) 110. applied: Vassey v. Canada (Citizenship and Immigration), 2011 FC 899, [2013] 1 F.C.R. 522; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008]1 S.C.R. 190; Flores Carillo v. Canada (Minister of Citizenship and Immigration), 2008 FCA 94, [2008] 4 F.C.R. 636; Smith v.

AlliancePipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160. considered: Hinzman v. Canada (Minister of Citizenship and Immigration), 2007 FCA 171, 282 D.L.R. (4th) 413, affg 2006 FC 420, [2007] 1 F.C.R.561; Minister of Employment and Immigration v. Satiacum (1989), 99 N.R. 171 (F.C.A.); Rivera v. Canada (Citizenship andImmigration), 2009 FC 814, 351 F.T.R. 267; Krotov v. Secretary of State for the Home Department, [2004] EWCA Civ 69; Chaves v.Canada (Minister of Citizenship and Immigration), 2005 FC 193, 45 Imm. L.R. (3d) 58; Key v.

Canada (Minister of Citizenship andImmigration), 2008 FC 838, [2009] 2 F.C.R. 625; Zolfagharkhani v. Canada (Minister of Employment and Immigration), (FCA), [1993] 3 F.C. 540 (C.A.); Findlay v. The United Kingdom, [1997] ECHR 8, 24 EHRR 221; Canada (Attorney General) v.Ward, (SCC), [1993] 2 S.C.R. 689; Trépanier v. R., 2008 CMAC 3, 232 C.C.C. (3d) 498; Landry v. Canada(Citizenship and Immigration), 2009 FC 594, 345 F.T.R. 275; Lowell v. Canada (Minister of Citizenship and Immigration), 2009 FC649. referred to: Popov v. Canada (Minister of Employment and Immigration) (1994), 75 F.T.R. 90 (F.C.T.D.); Lozada v.

Canada (Minister of

Citizenship and Immigration), 2008 FC 397; Canada (Minister of Citizenship and Immigration) v. Saini, 2001 FCA 311, [2002] 1 F.C.200; Sow v. Canada (Citizenship and Immigration), 2011 FC 1313, 400 F.T.R. 91; Alhayek v. Canada (Citizenship and Immigration),2012 FC 1126, 418 F.T.R. 144; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Ozdemir v. Canada(Minister of Citizenship and Immigration), 2001 FCA 331, 282 N.R. 394; United States v. Yolanda M. Huet-Vaughn, 43 M.J. 105 (1995C.A.A.F.); de Guzman v.

Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2006] 3 F.C.R. 655; Okoloubu v. Canada(Minister of Citizenship and Immigration), 2008 FCA 326, [2009] 3 F.C.R. 294; Usta v. Canada (Minister of Citizenship andImmigration), 2004 FC 1525; Tuck v. Canada (Minister of Citizenship and Immigration), 2005 FC 138; Walcott v. Canada (Citizenshipand Immigration), 2011 FC 415, 98 Imm. L.R. (3d) 216; Canada v. Schmidt, (SCC), [1987] 1 S.C.R. 500.

AUTHORS CITED Report of the International Committee of the Red Cross (ICRC) on the Treatment by the Coalition Forces of Prisoners of War and OtherProtected Persons by the Geneva Conventions in Iraq During Arrest, Internment and Interrogation, February 2004. United Nations. High Commissioner for Refugees. Handbook on Procedures and Criteria for Determining Refugee Status under the1951 Convention and the 1967 Protocol relating to the Status of Refugees, Geneva, reedited, January 1992, online:<http://www.unhcr.org/3d58e13b4.html>.

APPLICATION for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board () refusing the applicant’s claim for protection as a Convention refugee or a person in need of protection under sections 96and 97 of the Immigration and Refugee Protection Act. Application allowed. APPEARANCES Alyssa Manning for applicant. Nur-Muhammed-Ally and Ndija Anderson for respondent. SOLICITORS OF RECORD Alyssa Manning, Refugee Law Office, Toronto, for applicant. Deputy Attorney General of Canada for respondent.

The following are the reasons for judgment and judgment rendered in English by Russell J.: INTRODUCTION [1] This is an application under subsection 72(1) of the Immigration and Refugee Protection Act, S.C.​ 2001, c. 27 (Act) for judicialreview of the decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board, dated 18 April 2012 [X (Re),] (decision), which refused the applicant’s application to be deemed a Convention refugee or a person in need ofprotection under sections 96 and 97 of the Act. BACKGROUND [2] The applicant is a 25-year-old citizen of the United States.

He is from Rialto, California and is a member of the United StatesArmy. He served a 15-month deployment in Afghanistan with the 82nd Airborne Unit between 2007 and 2008. [3] The applicant left his unit in the U.S. Army in 2008 after completing his full deployment tour in Afghanistan. He left the unitafter attempting to be released from his duties through official channels. [4] While in Afghanistan, the applicant developed moral objections to the actions, practices and procedures undertaken by the U.S.military.

He witnessed and participated in things such as the torturing of detainees, violent house raids on civilian homes, indiscriminateand routine firing into populated civilian areas without taking any precautions to minimize civilian casualties, and the strapping of thebodies of dead insurgents to the front of U.S. military vehicles so as to parade them around towns and villages and intimidate the localcivilian populations. [5] The applicant came to believe that these acts were illegal and in violation of the Geneva Convention [Geneva Conventionrelative to the Treatment of Prisoners of War, August 12, 1949, being

Schedule III of the Geneva Conventions Act, R.S.C., 1985, c. G-3].After completing his tour and returning to the United States, he learned that his unit would soon be redeploying and that the same tacticswould be used. The applicant felt such actions were morally wrong and against international law, and after unsuccessfully attempting tohave himself reassigned from infantry duty through official channels, he went absent without leave from his unit. [6] The applicant came to Canada and claimed refugee protection. His hearings were held in June and December 2010.

The RPDmade its decision on 18 April 2012 and notified the applicant of the outcome on 10 May 2012. DECISION UNDER REVIEW [7] The RPD denied the applicant’s claim because there is not a serious possibility that he would be persecuted if returned to theUnited States, and because adequate state protection exists there. Review of the Applicant’s Claim

[ 8 ] The applicant joined the U.S. Army on 4 August 2005. At that time, he did not know about the tactics used on the ground by the Army, and joined due to the financial situation of his family. He completed airborne training, and then went into the Ranger Indoctrination Program (RIP) to become part of the Rangers, which is an elite group within the Army. Once he entered RIP, he refused to take

part in the harsh hazing rituals and so dropped out after two or three days. [ 9 ] After leaving the RIP, he was assigned to his unit, the 82nd Airborne, 4th Brigade Combat Team, 4th Squadron, 73rd Cavalry Regiment at Fort Bragg. He was deployed to Afghanistan in January 2007 and ended his deployment in April 2008. While there, he served at 9 different military bases. [ 10 ] The applicant’s first position in Afghanistan was as an Indirect Fire Infantryman.

He was involved in many firefights; two soldiers in his unit were killed and many were wounded, including himself. [ 11 ] He was then transferred to a unit involved in active combat operations.

Some of the incidents detailed by the applicant as part of his unit’s operations included: • Joint house raid missions with the Afghan National Army (ANA) that involved zip-tying the occupants, holding them at gunpoint, and destroying most of the contents of the house; • The placement of detainees in shipping compartments known as “hot boxes” and leaving them there for indeterminate periods in extreme temperature conditions; • The bombarding of large areas of land where there was no enemy with mortars, destroying villages, crops and property—the applicant knew of at least one occasion where innocent civilians were killed; • The placement of exposed bodies on the back of a trailer, which was then driven through towns to show the locals what happened to fighters; • The employment of a technique known as “bracketing”, where mortars would be fired around a target until eventually it was hit—the applicant learned that an innocent mother and child were killed using this technique; • The refusal of a medic who had been called to treat enemy combatants to provide medical care, stating that he was going to let them die —the applicant said that based on what he heard from another platoon, they all did die; • The harassment and embarrassment of detainees, such as forcing a man to urinate outside and not allowing him to pray. [ 12 ] The applicant also described extreme “hazing” that he was made to endure while in the Army.

This included “smoking sessions” where he had to low crawl in gravel rocks scratching his face and elbows, perform flutter kicks, push-ups, run on the spot, and other physical exercises. [ 13 ] At one point, the applicant suffered a foot injury and had a makeshift cast on his foot. During this time there was a rocket attack, and his sergeant ordered him to run around and check that everyone was accounted for because the sergeant had failed to check the radios and did not want to expose his mistake.

The applicant was forced to expose himself to the rocket attack. [ 14 ] Once back in the U.S., the applicant went to see a medic because he was depressed and having trouble going out, seeing people and sleeping. The medic discouraged him from pursuing any mental health treatment because the stigma would negatively impact his career. [ 15 ] The applicant tried various routes of removing himself from what was going on in Afghanistan. He said that he considered making a claim for conscientious objector status, but he knew that he would not qualify because he did not object to all fighting.

He tried to apply for a non-combatant position, but learned he would have to be promoted to sergeant in order to become a civil affairs officer. He passed the exam with perfect marks but did not have enough promotion points when he returned from his deployment to be eligible. [ 16 ] The applicant then tried to obtain a transfer, but it was refused because of his specific job placement and experience. He told his captain that he wanted to leave the Army to become a teacher, but the captain made fun of him and wanted him to remain in the unit.

The applicant stated that he had no legitimate options that would allow him to get out of the infantry and avoid another deployment. At this point, he decided to desert the military. [ 17 ] The applicant left his post at Fort Bragg on 15 May 2008 and boarded a plane to Los Angeles. The applicant said that during his time in the Army a roommate went AWOL [absent without leave], but then came back within 30 days. He was stripped of all rank and forced to do very difficult physical, pointless tasks such as piling heavy rocks or repeatedly cleaning things that were already clean.

He was also ridiculed by his superiors. The applicant came across the War Resisters Support Campaign on the internet and they helped him come to Canada. He arrived in Canada on 16 June 2008 and claimed refugee protection the same day. [ 18 ] Since then, the applicant has spoken publicly on a number of news outlets about his opinions on the U.S. military. He states that it is plainly on record that he is someone who is politically and morally opposed to the actions of the U.S. military, and he fears he will be persecuted by his unit if returned to the U.S.

State Protection [ 19 ] The RPD considered whether there is a serious possibility that the applicant would be persecuted if he returned to the U.S. or whether, on a balance of probabilities, he would be subjected personally to a risk to his life or to a risk of cruel and unusual treatment if he returned to the U.S. [ 20 ] The applicant alleged he would suffer “persecution” for desertion if he returns to the U.S. He said he will be targeted for

differential prosecution because he has spoken out against the wars in Iraq and Afghanistan. He also says that he comes withinparagraphs 169 and 171 of the [United Nations High Commissioner for Refugees] Handbook on Procedures and Criteria forDetermining Refugee Status [under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, Geneva, reedited,January 1992] (UNHCR Handbook), but that he would be unable to raise these sections in a court martial proceeding. [21] The RPD found that there is adequate state protection in the U.S.

Alternatively, it found that the military actions the applicantobjected to do not come within paragraphs 169 and 171 of the UNHCR Handbook. [22] The RPD cited much jurisprudence in assessing the issue of state protection. It reiterated that the applicant had an onus toapproach the state for protection, and that he bore the burden of proving, on a balance of probabilities, that state protection in the U.S. isnot adequate.

It stated that an important consideration is whether a legislative and procedural framework for protection exists, andwhether the state is able and willing to implement that framework. [23] The United States is a democracy, thus the RPD found a strong presumption of state protection. Refugee claims of U.S. militarydeserters have been considered by the RPD and it has been found that the U.S. is a developed democracy and there is adequate stateprotection.

If returned to the U.S., claimants are prosecuted for military desertion under a neutral law of general application, and theyhave available to them a variety of legal safeguards and remedies. Any sentences a claimant may receive for desertion would not bepersecutory, nor would punishment be disproportionately severe or amount to cruel and unusual punishment. Other problems thatclaimants may face in the U.S. as a result of their desertion would amount to discrimination and not persecution. Past RPD decisions tothis effect have been upheld by the Federal Court of Appeal in Hinzman v.

Canada (Minister of Citizenship and Immigration), 2007 FCA171, 282 D.L.R. (4th) 413 (Hinzman). [24] Christopher Marco Vassey, who served in the same unit as the applicant and was in Afghanistan for some of the same period oftime, also claimed refugee status. His refugee claim was judicially reviewed in Vassey v. Canada (Citizenship and Immigration), 2011FC 899, [2013] 1 F.C.R. 522 (Vassey). The RPD considered this decision in analysing the applicant’s claim. (

i) The U.S. Court Martial System [25] The applicant submitted that, based on the requirements set out by the Supreme Court of Canada in R. v. Généreux, (SCC), [1992] 1 S.C.R. 259 (Généreux), the U.S. military justice system does not meet the requirements for an independent andimpartial tribunal. As a result of Généreux, changes were made to the Canadian military justice system.

The RPD stated that acomparison to other countries is one aspect of the issue, but the relevant test is whether state protection in the U.S. is adequate. [26] The expert opinions provided by the applicant generally agreed that in the U.S. the military commander has a central role in themilitary justice system. The commander often initiates investigations, determines the charges, determines the level of court martial,adjudicates the case and selects the jurors who will hear the case.

The experts, amongst other matters, examine how the U.S. militaryjustice systems compares to the essential conditions of judicial independence set out in Généreux. They conclude that the U.S. systemdoes not meet most of the conditions, and that there are problems in providing a fair trial for an accused. [27] In his affidavit, Professor Hansen acknowledges different checks and balances within the system to prevent unfairness towardsan accused. He states that the most important protection is

Article 37 [§837] of the Uniform Code of Military Justice [10 U.S.C. §§801–946 (2006)], which precludes any commander from censuring, reprimanding or admonishing any military member, military judge, orcounsel with respect to the findings or sentence of a court or with respect to the function of the court. It also proscribes the exercise ofunauthorized influence.

In addition, military appellate courts have willingly entertained allegations of Unlawful Command Influence(UCI) in the appellate review process. [28] Professor Hansen also says that commanders exercise their functions with full and candid advice of military lawyers, and thoughnot required to follow that advice, a commander disregards it at his peril. The commander selects the members of a court martial, but anaccused at his sole discretion may elect to have his case decided by a military judge rather than a military panel.

There is also anappellate system that serves as a significant check against the potential for UCI. There is the ability to appeal a case up to the Court ofAppeals of the Armed Forces—which is made up of civilian judges—as well as the right to petition the Supreme Court for review of adecision of the Court of Appeals of the Armed Forces. [29] The affidavit of Professor Fidell states that the U.S. system does not satisfy the security of tenure criterion set forth in Généreux,nor does it satisfy the criterion of institutional independence.

He states that the member selection process is not independent, but is afunction of command. He says that despite the safeguards in place, complaints of UCI continue but that challenges on this basis are rarelysuccessful. He concludes that, “If the statutory and regulatory protections were effective, UCI would not be the hardy perennial it is inthe garden of American military justice”. [30] Donald G. Rehkopf, Jr. provided an affidavit calling into question Professor Hansen’s qualifications as an experiencedpractitioner in the U.S. military justice system.

He says that while Professor Hansen may be an academic instructor, this is “not the sameexperience as actually defending clients charged with desertion”. He says that the system lacks rudimentary fairness if a commanderchooses to make an example of a soldier. The system is biased in favour of “discipline”, and commanders are allowed to evaluate theimpact of conduct on their organization. This is a significant problem in the case of deserters. [31] Based on his 34 years of experience with the military justice system, Mr. Rehkopf vehemently disagrees with the opinion ofProfessor Hansen.

He says that the core of the problem is that it is not always about justice, but about the desires and objectives of themilitary commander, which no military lawyer can overrule. He claims that the safeguards provided look good on paper, but there are nodisciplinary sanctions instituted against a person responsible for a UCI.

There are also problems with the commander choosing themembers of the military who will hear the case, and the Court of Criminal Appeal is primarily staffed by military judges. [32] The declarations of Marjorie Cohn and Kathleen Gilberd, who are authors of U.S. military law, state that military courts andappellate courts have an obligation to uphold the discipline and good order of their parent organization, so that matters of guilt andinnocence, or severity and leniency, are thus weighed not only by considerations of law and justice, but also by their effect on the

military’s smooth functioning, its discipline, morale and its mission. They state that this dual responsibility of military attorneys, judges and panel members affects the fairness of criminal cases, and that they have seen numerous cases where the needs of the service were afforded greater weight than the rights of the accused. They go on to discuss other problems, such as the role of the contravening authority and problems of UCI. They also do not believe that the institutional safeguards to prevent UCI are effective. [ 33 ] The RPD points out that in Minister of Employment and Immigration v.

Satiacum (1989), 99 N.R. 171 ( Satiacum ) , the Federal Court of Appeal stated that [at paragraph 19]: In the absence of exceptional circumstances established by the claimant, it seems to me that in a Convention refugee hearing, as in an extradition hearing, Canadian tribunals have to assume a fair and independent judicial process in the foreign country.

In the case of a non-democratic State, contrary evidence might be readily forthcoming, but in relation to a democracy like the United States contrary evidence might have to go to the extent of substantially impeaching, for example, the jury selection process in the relevant part of the country, or the independence or fair-mindedness of the judiciary itself…. [ 34 ] The applicant submitted that all the experts, except Professor Hansen, used Canadian and International Law as their measuring stick for what constitutes a fair system.

Professor Hansen states that the changes to the Canadian military justice system after the Supreme Court’s decision in Généreux may have failed to take into account the doctrine of command responsibility, which holds that a commander may be criminally liable for failing to prevent war crimes committed by those under his or her command. [ 35 ] Professor Hansen says that the U.S. military courts have chosen not to change their system in the same manner that the Canadian and British systems have been changed based on decisions out of their respected courts.

The test is not whether another country’s system conforms to that of Canada, but whether the protection afforded by the system is adequate. [ 36 ] The RPD stated that it preferred Professor Hansen’s opinion to the others. He does not believe that the U.S. system must change just because changes have occurred in other countries, and he finds that based on the factors he considered, the U.S. system is still fair.

There are different models for criminal justice systems, and just because a particular system does not conform to the Canadian or international model does not mean it is not fair. [ 37 ] The RPD concluded that the U.S. military justice system would provide adequate protection to the applicant. (ii) Risk of Differential Prosecution [ 38 ] The applicant submitted that he would be at risk of targeted prosecution because he has been outspoken about his political opinions on the U.S. military. He pointed to the decision in Rivera v.

Canada (Citizenship and Immigration) , 2009 FC 814 , 351 F.T.R. 267 ( Rivera ), at paragraph 101 : In addition, the whole state protection analysis needs to be reconsidered in the light of the stated risk, and supporting evidence, that the U.S. authorities will not neutrally apply a law of general application, but will target the Principal Applicant for prosecution and punishment solely because of her political opinion in a context where other deserters, who have not spoken out against the war in Iraq, have been dealt with by way of administrative discharge. [ 39 ] The RPD stated that the Supreme Court of Canada has recognized discretion as an integral part of any justice system, and found that though there may not be a formal mechanism in the U.S. for review of discretion, this does not lead to a conclusion that, on a balance of probabilities, there is inadequate state protection in the United States. (iii) Paragraph 171 of the UNHCR Handbook [ 40 ] The applicant said that he would be unable to argue in an American military proceeding that he refused to continue to serve because he did not want to take

part in conduct falling under paragraph 171 of the UNHCR Handbook. Further, motive is irrelevant in a charge of desertion, and the defence of unlawful order only applies to conduct that would be considered a crime or war crime. [ 41 ] In her affidavit, Professor Marjorie Cohn says that those charged with desertion are routinely disallowed from raising the defence of the illegality of the orders they received while on duty. Attorney Bridget Wilson agrees with this statement, as does David Gespass.

The applicant also referred to the cases involving Sergeant Camilo Mejia and Sergeant Kevin Benderman who were prevented from raising these types of defences. Applicant’s counsel also submitted that the above mentioned individuals were similarly situated. [ 42 ] Professor Hansen also agreed that motive is an irrelevant consideration in a desertion case. He says that the “reasons for these limitations are obvious. No functioning military can allow its soldiers to pick and choose the conflicts that they agree with or they would choose to support”.

He also says that this is not something unique to the U.S. military. [ 43 ] The RPD pointed out that, in Canada, the offence of desertion sets out the intention as being the physical act of being absent. As in the U.S., defences would be available as to the physical act of being absent. [ 44 ] Paragraph 171 of the UNHCR Handbook states: Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft- evasion.

It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution. [ 45 ] In the United Kingdom, the case of Krotov v.

Secretary of State for the Home Department , [2004] EWCA Civ 69, set out a three- part test in assessing a matter to which paragraph 171 may apply. This decision was cited with approval in Hinzman . The RPD stated the test as follows [at paragraph 137]:

(

a) that the level and nature of the conflict, and the attitude of the relevant governmental authority towards it, has reached a position where combatants are or may be required on a sufficiently widespread basis to act in breach of the basic rules of human conduct generally recognised by the international community, (

b) that they will be punished for refusing to do so and (

c) that disapproval of such methods and fear of such punishment is the genuine reason motivating the refusal of an asylum seeker to serve in the relevant conflict, then it should find that a Convention ground has been established. [ 46 ] The RPD said that the U.S. has dealt with serious violations of international humanitarian law, and individuals have been prosecuted because of it. It also stated that cases such as Hinzman and Popov v.

Canada (Minister of Employment and Immigration) (1994), 75 F.T.R. 90 (F.C.T.D.), at paragraph 10 , establish that isolated incidents that violate international humanitarian law are an unfortunate, inevitable result of war.

The RPD found that there was no evidence that the incidences put forward by the applicant were systemic or condoned by the U.S., and thus did not come within paragraph 171. [ 47 ] The RPD found that the applicant had failed to establish that the U.S. required or allowed its combatants to engage in widespread violation of humanitarian law, or that the U.S. would not allow him to raise a defence that the matter fell within paragraph 171. [ 48 ] The applicant also submitted that a misuse of prosecutorial discretion may bring this matter under paragraph 169 of the UNHCR Handbook, which says: A deserter or draft-evader may also be considered a refugee if it can be shown that he would suffer disproportionately severe punishment for the military offence on account of his race, religion, nationality, membership of a particular social group or political opinion.

The same would apply if it can be shown that he has well-founded fear of persecution on these grounds above and beyond the punishment for desertion. [ 49 ] The applicant submitted case law such as Rivera , above, in which U.S. prosecutions of deserters have targeted certain individuals for expressing their political opinions. The applicant also put forward an example of one deserter who had done an interview with the CBC [Canadian Broadcasting Corporation] and who had been given a longer sentence than another deserter charged with the same serious criminal offences.

The applicant pointed out that he only had to show a serious possibility of differential prosecution or persecution to come within paragraph 169. [ 50 ] The RPD noted many examples of sentences handed out, and found that there was no persuasive evidence that any of the individuals concerned publicly voiced objections to the war. It also stated that the standard of proof applicable to the demonstration of the facts underlying the applicant’s claim is a balance of probabilities.

It found that any differential sentences were not disproportionately severe so as to find, on a balance of probabilities, differential prosecution or punishment. It also found that any sentence the applicant may receive would not be so disproportionately severe as to bring his claim within paragraph 169. [ 51 ] The RPD further found that any consequences the applicant may suffer as a result of a criminal conviction may amount to discrimination, but not persecution.

It also stated that if the applicant suffers “hazing” upon his return, he will have a course of action, as cruel and unusual punishment is specifically prohibited by the U.S. Constitution. If he were to suffer hazing, the RPD found that he had not demonstrated the state protection would not reasonably be available to him. This position has been confirmed by the Federal Court. Conclusion [ 52 ] The RPD found that the U.S. is a strong democracy and there are avenues of appeal open to the applicant.

It found that the applicant has not rebutted the presumption of state protection, or has not shown that there is a reasonable possibility he will be persecuted or that, on a balance of probabilities, he will be at risk to his life or a risk of cruel and unusual treatment or punishment or torture if he returns to the U.S. Therefore, the RPD rejected the applicant’s claim. ISSUES [ 53 ] The applicant raises the following issues in this proceeding: a.

Did the RPD err by finding that a judicial system which fails to meet basic internationally recognized fairness and due process requirements can nonetheless provide adequate protection? b. In regards to state protection, did the RPD err by ignoring evidence that directly contradicted its findings? c. Did the RPD err in law when interpreting both paragraph 171 of the UNHCR Handbook and foreign law related to raising a defence in the U.S. court-martial system? d. As regards differential punishment, did the RPD make unreasonable conclusions without regard to, and not supported by, the evidence?

STANDARD OF REVIEW [ 54 ] The Supreme Court of Canada in Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190, held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is well settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis. [ 55 ] The first two issues involve state protection. In Flores Carillo v.

Canada (Minister of Citizenship and Immigration) , 2008 FCA 94 , [2008] 4 F.C.R. 636, the Federal Court of Appeal held, at paragraph 36, that the standard of review on a state protection finding is

reasonableness. Justice Leonard Mandamin followed this approach in Lozada v. Canada (Minister of Citizenship and Immigration) , 2008 FC 397 , at paragraph 17 . Further, in Chaves v. Canada (Minister of Citizenship and Immigration) , 2005 FC 193 , 45 Imm. L.R. (3d) 58, Justice Danièle Tremblay-Lamer held, at paragraph 11, that the standard of review on a state protection finding is reasonableness. Reasonableness is the standard applicable to the first two issues. [ 56 ] The

interpretation of foreign law is a matter of fact ( Canada (Minister of Citizenship and Immigration) v. Saini , 2001 FCA 311 , [2002] 1 F.C. 200, at paragraph 26 ). In Vassey , above, Justice André Scott reviewed the RPD’s analysis of whether the applicant would be able to raise the defence of an illegal order on the standard of reasonableness. [ 57 ] The

interpretation of statutory provisions outside of the tribunal’s home statute is reviewable on a standard of correctness ( Dunsmuir , above). In Key v. Canada (Minister of Citizenship and Immigration) , 2008 FC 838 , [2009] 2 F.C.R. 625, Justice Robert Barnes found that the RPD’s

interpretation of paragraph 171 of the UNHCR Handbook was reviewable on a correctness standard. Based on the principles set out in Dunsmuir , the

interpretation of the applicable paragraphs of the UNHCR Handbook is reviewable on a correctness standard, but the application of those paragraphs to the facts of the applicant’s claim is reviewable on a reasonableness standard. [ 58 ] The issue of differential punishment relates to whether the applicant would suffer persecution upon returning to the U.S. The issue of the RPD’s

interpretation of “persecution” is a question of mixed fact and law that involves a tribunal interpreting its enabling statute (see Sow v. Canada (Citizenship and Immigration) , 2011 FC 1313 , 400 F.T.R. 91, at paragraphs 17–21 ). The Supreme Court of Canada stated in Smith v. Alliance Pipeline Ltd. , 2011 SCC 7 , [2011] 1 S.C.R. 160, at paragraphs 26–34 , that such a question is to be reviewed on a reasonableness standard. Further, the RPD’s persecution analysis goes to the

interpretation of evidence. Therefore, the fourth issue is reviewable on a reasonableness standard ( Alhayek v.

Canada (Citizenship and Immigration) , 2012 FC 1126 , 418 F.T.R. 144, at paragraph 49 ). [ 59 ] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir , above, at paragraph 47 ; and Canada (Citizenship and Immigration) v. Khosa , 2009 SCC 12 , [2009] 1 S.C.R. 339, at paragraph 59 .

Put another way, the Court should intervene only if the decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.” STATUTORY PROVISIONS [ 60 ] The following provisions of the Act are applicable in this case: 3. … Application

(3) This Act is to be construed and applied in a manner that (

a) furthers the domestic and international interests of Canada; (

b) promotes accountability and transparency by enhancing public awareness of immigration and refugee programs; (

c) facilitates cooperation between the Government of Canada, provincial governments, foreign states, international organizations and non-governmental organizations; (

d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms , including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada; (

e) supports the commitment of the Government of Canada to enhance the vitality of the English and French linguistic minority communities in Canada; and (

f) complies with international human rights instruments to which Canada is signatory. Convention refugee 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (

a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or …

Person inNeed ofProtection 97.

(1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or,if they do not have a country of nationality, their country of former habitual residence, would subject them personally (

a) to a danger, believed on substantial grounds to exist, of torture within the meaning of

Article 1 of the ConventionAgainst Torture; or (

b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (

i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in orfrom that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted internationalstandards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. [61] Paragraphs 169 and 171 of the UNHCR Handbook state as follows: A deserter or draft-evader may also be considered a refugee if it can be shown that he would suffer disproportionately severe punishmentfor the military offence on account of his race, religion, nationality, membership of a particular social group or political opinion.

Thesame would apply if it can be shown that he has well-founded fear of persecution on these grounds above and beyond the punishment fordesertion. … Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft-evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particularmilitary action.

Where, however, the type of military action, with which an individual does not wish to be associated, is condemned bythe international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light ofall other requirements of the definition, in itself be regarded as persecution. ARGUMENTS The Applicant [62] The applicant points out that the circumstances of the present application are very similar to those in Vassey, above.

In bothcases, the decision maker is the same, both applicants were members of the same unit in the 82nd Airborne Division, and similarevidence was presented by counsel in support of both claims for refugee protection. This Court granted Mr. Vassey’s application forjudicial review, and the applicant submits that many of the same errors were committed by the RPD in his case. [63] The applicant says that, as in Vassey, the RPD spent a considerable amount of time summarizing portions of the evidence thatwas before it.

Also, as in Vassey, the RPD’s analysis falls short of being reasonable, and ignores evidence which directly contradicts itsconclusions. Paragraph 171 of the UNHCR Handbook [64] The applicant submits that if a soldier will be punished for refusing to associate with breaches of the rules of armed conflict, thenhe is entitled to refugee protection according to paragraph 171 of the UNHCR Handbook (Zolfagharkhani v.

Canada (Minister ofEmployment and Immigration), (FCA), [1993] 3 F.C. 540 (C.A.), at page 555). [65] The applicant put forward considerable evidence detailing condemned actions routinely committed by the U.S. military,including reports from credible sources and his testimony as to the personal experiences of himself and others. The RPD found that theU.S. did not require or allow its combatants to engage in widespread violations of humanitarian law, yet in coming to this conclusion itdid not reference any of the hundreds of pages of documentary evidence indicating otherwise.

The applicant put forward significantevidence from credible third-party sources and absent any reference to this evidence in the reasons, the applicant submits that thedecision cannot stand as reasonable. [66] For example, the RPD’s finding that there were no routine breaches of the Geneva Convention directly contradicts the evidencepertaining to violent civilian house raids. The applicant also provided detailed testimony about these types of raids in his oral testimony.Similar evidence was before the Court in Key, above, where it was said at paragraph 5: The Board found that Mr.

Key was not a conscientious objector in the usual sense of being opposed to war generally and that hisobjections to the conflict in Iraq were not politically or religiously motivated. Rather, what Mr. Key objected to were the systematicviolations of human rights that resulted from the conduct of the United States Army in Iraq and the requirement that he participate. TheBoard summarized Mr. Key’s evidence concerning these events and compared his experiences to the observations of the InternationalCommittee of the Red Cross (ICRC) detailed in its report from 2003. It is apparent that the Board found Mr.

Key’s experiences to beconsistent with the ICRC findings, as can be seen from the following passages from its decision [at paragraphs 34–36]: Mr. Key performed at least seventy raids on the homes of Iraqi citizens ostensibly looking for weapons. None of them was pleasant.

Inthe blackness of night, doors blown in, homes ransacked, personal effects looted, residents violently roused from their beds and forcedoutdoors by heavily armed and uniformed soldiers hollering in a foreign language, Muslim women shamed by their exposed bodies, boystoo tall for their age, and men cuffed and hauled away for interrogation in their nightclothes, regardless of weather conditions, never, at

least as far as Mr. Key could ascertain, to return. Should there have been a belligerent that needed flushing out, Mr. Key had white phosphorous grenades at the ready, part of the standard issue for this type of job. Mr. Key indicated that the searches were largely ineffectual as his unit seldom found weapons or contraband, although they probably did work to the extent that any insurgents would soon learn to hide their guns and bomb-making paraphernalia outside their homes. [Footnote omitted.] [ 67 ] The applicant described being involved in similar types of raids in his Personal Information Form.

He testified at his hearing that violent civilian house raids were routine practice for his unit in Afghanistan. He also provided photographic evidence of the “hot boxes” wherein detainees were placed indefinitely, hooded and cuffed, to await further interrogation. [ 68 ] Also before the RPD, and referenced by the Court in Key , was a report titled Report of the International Committee of the Red Cross (ICRC) on the Treatment by the Coalition Forces of Prisoners of War and Other Protected Persons by the Geneva Conventions in Iraq During Arrest, Internment and Interrogation [February 2004].

This report condemns the practice of violent house raids utilized by the U.S. army. It describes the raids as tending to follow a pattern, and that pattern involved extreme abuse, violence and humiliation of civilians. The report specifically finds that the U.S. has not complied with international obligations associated with arrest and detention of combatants and non-combatants during conflict. Also before the RPD were letters from Amnesty International outlining how the practice of violent civilian raids has been persistently used by the U.S. forces.

These actions involve breaches of the Geneva Convention and therefore amount to conduct falling under paragraph 171 of the UNHCR Handbook ( Key ). [ 69 ] The evidence that was before the RPD directly contradicts its finding that the U.S. has not, either as a matter of deliberate policy or official indifference, required or allowed its combatants to engage in widespread actions in violation of humanitarian law.

The applicant submits that absent any reference by the RPD to the multiple pieces of documentary evidence discussing this routine practice utilized by the U.S. military, it can be reasonably inferred that the RPD ignored this evidence ( Ozdemir v. Canada (Minister of Citizenship and Immigration) , 2001 FCA 331 , 282 N.R. 394 ( Ozdemir )). [ 70 ] The applicant states that the evidence pertaining to civilian house raids is only one example of routine military practices utilized by the U.S. military that breach the Geneva Convention.

Other evidence that was before the RPD includes evidence of the practice of “recon by fire”, routinely engaged in by the U.S. military without precautions being taken to reduce civilian casualties, the torture of detainees, and knowingly turning detainees over for torture. The applicant submits that there was evidence before the RPD that such practices were not isolated incidents, and the failure of the RPD to reference any of this evidence renders its finding on this point unreasonable ( Ozdemir , above).

State protection, defences and paragraph 171 of the UNHCR Handbook [ 71 ] The applicant submits that the RPD misunderstood the law on raising a defence against charges of desertion within the U.S. military, an error also committed by the same member’s error in Vassey .

The Court in Vassey said that it was an error for the RPD to find that the defence of “unlawful orders” in the U.S. is not limited to refusal to perform a war crime; the applicable case law in the United States clearly instructs that the defence of unlawful orders is limited to situations wherein a soldier is directly ordered to commit a positive act that constitutes a war crime ( United States v. Yolanda M. Huet-Vaughn , 43 M.J. 105 (1995 C.A.A.F.) ( Huet-Vaughn )). [ 72 ] The Court held at paragraphs 69, 70 and 75 of Vassey : Concerning the U.S.

Court of Appeals for the Armed Forces case Huet-Vaughn , the Court agrees with the applicant that the Board’s

interpretation of the case was unreasonable. The U.S. Court of Appeals for the Armed Forces held that (at paragraphs 43 and 45): To the extent that CPT Huet-Vaughn quit her unit because of moral or ethical reservations, her beliefs were irrelevant because they did not constitute a defence… … To the extent that CPT Huet-Vaughn’s acts were a refusal to obey an order that she perceived to be unlawful, the proffered evidence was irrelevant. The so-called “Nuremberg defense” applies only to individual acts committed in wartime; it does not apply to the Government’s decision to wage war.

The duty to disobey an unlawful order applies only to “a positive act that constitutes a crime” that is “so manifestly beyond the legal power or discretion of the commander as to admit of no rational doubt of their unlawfulness.” CPT Huet- Vaughn tendered no evidence that she was individually ordered to commit a “positive act” that would be a war crime.

The Board concluded [at paragraphs 43–44] that this decision did not stand for the principle that “the defence of an unlawful order only applies to extreme cases such as war crimes or grave breaches of the Geneva Convention” and that the “United States Court of Appeals for the Armed Forces has not decided whether an individual could raise the question of whether he or she had been ordered to commit an unlawful act.” … Given that the applicant would not be able to present evidence of his motive for desertion nor of the illegality of the conduct that he was required to perform in Afghanistan which could demonstrate a breach of the Geneva Conventions on the rules of armed conflict, this goes directly to the availability of state protection. [ 73 ] The applicant submits that although the defence of unlawful orders under U.S. law applies only to positive acts to commit a war crime, conduct falling well below a war crime may substantiate a claim for refugee protection under paragraph 171 of the UNHCR Handbook.

As the Court stated, at paragraphs 29 and 30 of Key : It is clear from the above passages that officially condoned military misconduct falling well short of a war crime may support a claim to refugee protection. Indeed, the authorities indicate that military action which systematically degrades, abuses or humiliates either combatants or non-combatants is capable of supporting a refugee claim where that is the proven reason for refusing to serve. I have, therefore, concluded that the Board erred by imposing a too restrictive legal standard upon Mr. Key.

I would add that the Board’s assertion that Mr. Key’s past combat participation would not be sufficient to support his claim to asylum unless it constituted excludable conduct cannot be correct.

This would give rise to an unacceptable “Catch-22” situation where the factual threshold for obtaining protection would necessarily exclude a claimant from that protection. [Emphasis in original.] [ 74 ] Despite the above jurisprudence of the Federal Court, the RPD stated, at paragraph 147 of the decision that it could not find, on a balance of probabilities, that the applicant would not be able to raise the defence of unlawful order or that the matter fell within paragraph 171.

The applicant submits that the RPD made the same error as in Vassey ; it misunderstood the definition of conduct falling under paragraph 171 of the UNHCR Handbook, in direct contradiction to this Court’s instructions in Key . The applicant further submits that regardless of whether the RPD misunderstood paragraph 171, or the limits of the defence of unlawful orders in the U.S., it is clear that it misapprehended the relevant law applicable to its findings.

State protection, defences, and “absences offences” vs. “orders offences” [ 75 ] The applicant submits that the RPD failed to appreciate the important distinction between “absence offences” and “orders offences” when addressing state protection under paragraph 171 of the UNHCR Handbook. [ 76 ] The Court stated, at paragraphs 71–75 of Vassey : However, the applicant’s submissions before the Board were that for the charge of desertion, not disobeying orders, there is no defence. This was corroborated with evidence before the Board from two experts and three members of the U.S. military.

While the Board summarized this evidence in the decision, it did not analyse it or provide reasons for rejecting it. Rather, the Board focused on the right of appeal within the court-martial system and found that similarly situated individuals would be able to appeal their cases to the U.S. Supreme Court, which they have not done, and therefore avenues of state protection remain. The Court finds this to be an unreasonable conclusion. First, as the applicant noted in reply, leave to the U.S. Supreme Court was denied in the case of Huet-Vaughn , making this the prevailing law.

Further, the evidence of the professors, practionner, and military members in addition to the case of Huet-Vaughn demonstrate that the charge of desertion operates as a strict liability offence where motive for desertion is not relevant. The UNHCR Handbook acknowledges that, as a general rule, prosecution of deserters does not amount to persecution. However, paragraph 171 provides a caveat: Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft- evasion.

It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution.

While the Board correctly noted that Justice Zinn held in Lowell , above, that the applicant must first show that state protection is unavailable before raising the facts under paragraph 171 of the UNHCR handbook, the applicant’s argument went directly to the issue of state protection.

Given that the applicant would not be able to present evidence of his motive for desertion nor of the illegality of the conduct that he was required to perform in Afghanistan which could demonstrate a breach of the Geneva Conventions on the rules of armed conflict, this goes directly to the availability of state protection. [ 77 ] The applicant explained in his submissions that soldiers in the U.S. military are unable to put forward evidence as to their reasons for deserting, regardless of what those reasons might be.

He also put forward the Huet-Vaughn case, as well as other case law showing how the law is applied. [ 78 ] The RPD considered the applicant’s submissions that he would be unable to put forward a defence, at paragraphs 115–133 of the decision.

Considerable time is spent summarizing the evidence, and at paragraphs 130–133, the RPD seems to agree with the applicant’s statement that he would not be able to put forward these defences. [ 79 ] Paragraph 171 of the UNHCR Handbook instructs that any punishment for desertion amounts to persecution, whatever that punishment may be, when that desertion is motivated by a refusal to be associated with actions falling under paragraph 171.

Given that the RPD accepts that the applicant would not be able to raise a defence against desertion charges based on a refusal to serve in actions falling under paragraph 171, the applicant submits that the RPD erred by concluding that the applicant had failed to rebut the presumption of state protection on this point. The U.S. court-martial system fails international standards [ 80 ] The applicant submits that the U.S. court-martial is not an independent and impartial tribunal, both structurally and in practice ( Généreux , above).

The applicant argued before the RPD that adequate state protection would not be reasonably forthcoming in a justice system that does not conform to basic internationally recognized fairness requirements. In the decision, the RPD does not find that the U.S. court-martial system meets these standards, but says that a system which fails to meet these basic standards is nonetheless “adequate”. [ 81 ] The applicant submits that the RPD applied the wrong legal test for what constitutes “adequate” protection.

He says that it is an error to conclude that a system which fails to meet basic fairness standards internationally recognized to be fundamental to any tribunal system can nonetheless provide “adequate” protection. The applicant submits that the RPD’s

interpretation of “adequate” is out of step with applicable jurisprudence, the UNHCR Handbook, and the Act . [ 82 ]

Section 3 of the Act provides that it is to be construed and applied in a manner that complies with international human rights

instruments to which Canada is a signatory ( de Guzman v. Canada (Minister of Citizenship and Immigration) , 2005 FCA 436 , [2006] 3 F.C.R. 655; Okoloubu v. Canada (Minister of Citizenship and Immigration) , 2008 FCA 326 , [2009] 3 F.C.R. 294). The applicant submits the RPD’s conclusion that a system that fails to meet these standards is nonetheless adequate does not comply with paragraph 3(3) (

f) of the Act. [ 83 ] The applicant further submits that the language of

section 97 also conflicts with an

interpretation of “adequate” state protection that would accept judicial systems that do not meet international standards for an independent and impartial tribunal system.

Section 97 indicates that cruel and unusual punishment cannot include punishment that is inherent or incidental to lawful sanctions, so long as the sanctions are imposed according to accepted international standards. Presumably, then, a tribunal system that fails to be in accordance with the Charter [ Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]], the International Covenant on Civil and Political Rights [December 16, 1966, [1976] Can. T.S. No. 47 (ICCPR)], the European Convention on Human Rights [ Convention for the Protection of Human Rights and Fundamental Freedoms , November 4, 1950, 213 U.N.T.S. 221], and the Universal Declaration of Human Rights [GA Res. 217 A (III), UN Doc. A/810, at p. 71 (1948)] must be inadequate. [ 84 ] In Hinzman v.

Canada (Minister of Citizenship and Immigration) , 2006 FC 420 , [2007] 1 F.C.R. 561, Justice Anne Mactavish of the Federal Court said, at paragraph 218: Finally, in considering the applicants’ argument that American law is under-inclusive, in that it denies members of the military the right to assert genuine conscientious objections to specific military actions, regard must be had to paragraph 60 of the Handbook.

Paragraph 60 provides that in assessing whether punishment meted out under the law of another nation is persecutory, the domestic legislation of the country being asked to grant protection may be used as a “yardstick” in evaluating the claim. [ 85 ] The relevant paragraphs of the UNHCR Handbook state as follows (paragraphs 59 and 60): In order to determine whether prosecution amounts to persecution, it will also be necessary to refer to the laws of the country concerned, for it is possible for a law not to be in conformity with accepted human rights standards.

More often, however, it may not be the law but its application that is discriminatory. Prosecution for an offence against “public order”, e.g. for distribution of pamphlets, could for example be a vehicle for the persecution of the individual on the grounds of the political content of the publication. In such cases, due to the obvious difficulty involved in evaluating the laws of another country, national authorities may frequently have to take decisions by using their own national legislation as a yardstick.

Moreover, recourse may usefully be had to the principles set out in the various international instruments relating to human rights, in particular the International Covenants on Human Rights, which contain binding commitments for the States parties and are instruments to which many States parties to the 1951 Convention have acceded. [ 86 ] Based on the above, the applicant submits the UNHCR has clearly instructed that Canada may use principles outlined in international instruments such as the ICCPR, as well as have reference to its own military justice system, when measuring what constitutes “adequate” state protection.

This has also been outlined in decisions such as Généreux , and confirmed by experts such as Professor Fidell. As such, the applicant submits the RPD’s finding that the U.S. military justice system is able to provide “adequate” protection is not reasonable. [ 87 ] It addition, the applicant submits it was unreasonable for the RPD to prefer the opinion of Professor Hansen, given the content of that opinion. Professor Hansen’s view was essentially that the Supreme Court of Canada and the international community are misguided about what constitutes fairness.

The applicant submits that while the RPD member may be entitled to adopt this as his own personal view, an administrative tribunal in Canada is bound by the Supreme Court of Canada’s

interpretation of what constitutes fairness. [ 88 ] The RPD finds, at paragraph 108 of the decision, that just because a justice system is based on the inquisitorial model does not mean it is inadequate. The applicant points out that aspects of Canadian law still incorporate the inquisitorial model, and that a tribunal operating under this system may still be independent and impartial.

This highlights how the RPD misconstrued the applicant’s arguments on this point; the problem is not that the U.S. system and the Canadian system are not the same, it is that the U.S. system is not fair. [ 89 ] The Supreme Court of Canada provided a baseline in Généreux for measuring fairness in an independent and impartial court- martial system. The problem is the fact that the U.S. system fails to comply with basic fairness standards set forth in domestic and international law.

For example, in the U.S. a commanding officer still possesses considerable power over the entire process; in Canada and the U.K., however, amendments have been made to separate the military judicial system from the executive so as to ensure that military tribunals are independent and impartial. [ 90 ] Further, Canada’s old court-martial system that was under scrutiny in the Généreux decision is very similar to the system that exists in the U.S. today. It included an appellate system and JAG [Judge Advocate General] officers.

Nevertheless, the Supreme Court of Canada found that it violated all three requirements of an independent and impartial tribunal, and that the executive maintained an unacceptable level of influence over the whole process. The European Court of Human Rights also made similar findings regarding the U.K. court-martial system, which at the time largely mirrored that which exists in the United States today ( Findlay v. The United Kingdom , [1997] ECHR 8, 24 EHRR 221). [ 91 ] There was significant evidence on this issue put before the RPD.

Professor Fidell is a professor in military law at Yale University, President of the National Institute of Military Justice in the United States, and a member of the “Meeting of Experts” convened in Geneva by the U.N. High Commissioner for Human Rights regarding the U.N. draft principles governing the administration of justice through military tribunals.

His ultimate conclusion, after considering a variety of factors, is that “it is doubtful that the United States military justice system can be sustained if it were tested against contemporary Canadian or international norms”. [ 92 ] The RPD found that it preferred the opinion of Professor Hansen. Professor Hansen did not contest that the U.S. systems fails to meet international standards for an independent tribunal, but in his opinion this does not make the system fundamentally unfair.

The applicant points out that there is no indication of how Professor Hansen is measuring fairness, other than his own personal opinion.

Professor Hansen’s

article suggests that he thinks it is “fair” to sacrifice the individual rights of soldiers, because competing interests such as deployability, control and discipline require it. In this sense, Professor Hansen simply disagrees with the direction the Supreme Court of Canada and the international community has taken with regard to basic fairness standards in a tribunal system. [ 93 ] The RPD rejects the evidence of Professor Fidell and Mr.

Rehkopf, who do not just rely on their personal opinion of what is fair, but who apply the Supreme Court of Canada’s directions on fairness when assessing the U.S. court-martial system. Given that Supreme Court of Canada decisions are binding on the RPD, as well as considering the role played by the standards set in the international community in the context of decision making under sections 96 and 97 of the Act , the applicant submits it was unreasonable for the RPD to favour the opinion of Professor Hansen.

It was also unreasonable for it to reject the instruction of the Supreme Court of Canada in Généreux and the standards set out in international instruments. Differential punishment [ 94 ] The applicant asserted that he would be disproportionately punished in the U.S. because of his publicly expressed opinions against the wars in Iraq and Afghanistan.

Paragraph 169 of the UNHCR Handbook says that punishment for desertion may result in persecution, if that punishment is differential. [ 95 ] In Hinzman , above, the Federal Court of Appeal found that the vast majority of deserters from the U.S. military are not formally prosecuted. The applicant put forward evidence demonstrating that the few deserters who are prosecuted include those who are on public record as opponents of the U.S. war efforts.

He also put forward evidence that these soldiers’ public opinions were the reasons why they were chosen to be prosecuted rather than administratively discharged. [ 96 ] In Rivera , above, the Court said at paragraphs 88 and 99: In their PRRA application the Applicants introduced evidence and argument of a change of position by the U.S. military authorities; a cracking down on deserters who have spoken out publicly against the war in Iraq.

Their point was that the state, or at least the military arm of the state, has now targeted for special treatment those who have gone AWOL and who have publicly expressed their opposition to the war in Iraq.

This differential treatment involves a decision by the authorities to subject such people to court martial proceedings, rather than administrative discharge, and to punish them more harshly in order to make an example of them that will discourage others from taking similar action…. … … The Principal Applicant provided ample evidence of the targeting of similarly situated individuals, but this evidence is never addressed from this perspective.

In addition, there was also evidence before the Officer of prosecutors seeking harsher treatment, and judges imposing harsher sentences, for deserters who have spoken out against the war. This again raises the issue of the exercise of prosecutorial and judicial discretion in a way that discriminates against those soldiers who have expressed public opposition to the war in Iraq.

In turn, this calls into question the procedural and state protection safeguards available to targeted individuals who are prosecuted (instead of receiving an administrative discharge) and who are punished harshly for their political opinions…. [ 97 ] The applicant states that in finding that adequate state protection exists the RPD did not point to mechanisms within the system that protect against the discriminatory exercise of prosecutorial discretion.

Instead, the RPD suggests that differential prosecution is a necessary and beneficial part of any criminal justice system. [ 98 ] The findings above include the same errors that were made in Vassey —the RPD acknowledges that there is no corrective mechanism in the U.S. system for monitoring discretion, yet dismisses this risk factor by finding that discretion benefits the justice system.

Even if this is true, prosecutorial discretion must nonetheless be exercised in an unbiased, lawful fashion. [ 99 ] In Vassey , the Court said at paragraphs 77–81: … This Court recognized the disproportionate prosecution for desertion of those who have spoken out against the wars in Iraq and Afghanistan. For example, in Rivera v. Canada (Minister of Citizenship and Immigration) , 2009 FC 814 , 351 F.T.R. 267, Mr. Justice Russell reviewed a decision of the Board concerning the use of prosecutorial discretion to target individuals more severely through the court- martial process who have spoken out against the war.

At paragraph 101, Justice Russell concluded of the Board’s decision that: …the whole state protection analysis needs to be reconsidered in the light of the stated risk, and supporting evidence, that the U.S. authorities will not neutrally apply a law of general application, but will target the Principal Applicant for prosecution and punishment solely because of her political opinion in a context where other deserters, who have not spoken out against the war in Iraq, have been dealt with by way of administrative discharge.

The Board in the case at bar largely ignored the evidence presented by the applicant about similarly situated individuals and prosecutorial discretion. The Board concluded that using prosecutorial discretion is a benefit to the justice system and is appropriate where there are aggravating factors.

Paragraph 169 of the UNCHR handbook indicates that: A deserter or draft-evader may also be considered a refugee if it can be shown that he would suffer disproportionately severe punishment for the military offence on account of his race, religion, nationality, membership of a particular social group or political opinion. The same would apply if it can be shown that he has well-founded fear of persecution on these grounds above and beyond the punishment for desertion. As such, the UNHCR handbook, as well as the jurisprudence above, hold that where prosecutorial discretion is used to inflict a

disproportionately severe punishment on a deserter because of his or her political opinion, this may amount to persecution. [100] The applicant submits that it is unreasonable to find that state protection against the risk of differential prosecution exists basedsolely on the fact that discretion is part of a criminal justice system. He further submits that a fulsome state protection analysis requiresthe RPD to look at how the system would protect an individual when prosecutorial discretion is exercised inappropriately.

Evidence of risk of differential punishment [101] The applicant submits that the RPD’s findings on the issue of differential prosecution were unreasonable. The RPD based itsconclusion that the applicant did not face a risk of differential prosecution on a brief comparison of sentences received by those who didspeak out against the war and those who did not. The RPD then lists a number of individuals—namely Tony Anderson, AbdullahWilliam Webster and Ryan Jackson—who received higher sentences, a

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