2011 FC 899, 2011 FC 899

[2013] 1 F.C.R. 522 IMM-5834-10 2011 FC 899 Christopher Marco Vassey ( Applicant ) v. The Minister of Citizenship and Immigration ( Respondent ) Indexed as: Vassey v. Canada (Citizenship and Immigration) Federal Court, Scott J.—Toronto, May 4; Ottawa, July 18, 2011. Citizenship and Immigration — Status in Canada — Convention Refugees and Persons in Need of Protection — Judicial review of Immigration and Refugee Board decision finding that applicant not Convention refugee or person in need of protection — Applicant, U.S.

Army sergeant, deployed to Afghanistan — Receiving orders contrary to rules of armed conflict — Developing mental health problems — Objecting to participation in wars — Going absent without leave, claiming refugee protection in Canada — Submitting no opportunity to raise defence against desertion charges — Board interpreting United States v. Yolanda M.

Huet-Vaughn; finding no discriminatory use of prosecutorial discretion, no evidence of unauthorized command influence — Whether Board ignoring evidence, erring in analysis of state protection — Board failing to consider evidence, provide adequate reasons with respect to issue of applicable defences to charge of desertion — Hinzman v. Canada (Minister of Citizenship and Immigration), Minister of Employment and Immigration v.

Satiacum binding on Board — Open to applicant to present evidence that U.S. military justice system not available to him in seeking state protection — Board’s analysis of evidence concerning independence, impartiality of U.S. court-martial system unreasonable — Evidence corroborating submission that no defence for charge of desertion available — Huet-Vaughn prevailing law, similarly situated individuals not able to appeal to U.S.

Supreme Court, no avenue of state protection remaining — Charge of desertion strict liability offence, motive for desertion irrelevant — Therefore, applicant’s argument not able to present evidence of motive for desertion, illegality of conduct in Afghanistan going directly to issue of state protection — Also no evidence before Board to support finding that ability to raise defence of unauthorized command influence applying to exercise of prosecutorial discretion — Application allowed.

This was an application for judicial review of a decision by the Immigration and Refugee Board finding that the applicant was neither a Convention refugee nor a person in need of protection within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act . The applicant, a citizen of the United States, alleged that while on duty in Afghanistan as a U.S. Army sergeant, he was ordered to perform actions contrary to the rules of armed conflict. The applicant described growing mental health concerns during and after his deployment and stated that he became emotionally unstable.

He realized that he no longer agreed with the wars in Afghanistan and Iraq, but felt that he could not file for conscientious objector status because his objections were based on specific wars and not grounded in religious beliefs. The applicant then went absent without leave from the U.S. Army and claimed refugee protection in Canada. In assessing the applicant’s submission that there is no opportunity to raise a proper defence against desertion charges, the Board concluded that the United States Court of Appeals for the Armed Forces in United States v. Yolanda M.

Huet-Vaughn did not decide whether individuals could raise the question of whether they had been ordered to commit an unlawful act, and that the duty to disobey extends to acts that are manifestly beyond the legal power or discretion of the commander as to admit to no rational doubt of their unlawfulness. The Board also found, inter alia , that aggravating factors do not necessarily suggest that prosecutorial discretion has been used in a discriminatory manner; and that while the problem of unauthorized command influence is recognized, the evidence did not substantially impeach the U.S. military justice system.

At issue was whether the Board ignored or misinterpreted evidence or failed to provide adequate reasons for its treatment of the evidence, and whether the Board erred in its analysis of state protection. Held , the application should be allowed. The Board failed to consider the evidence before it and to provide adequate analysis and reasons for rejecting the evidence that conflicted with its conclusions, particularly with respect to the issue of applicable defences to the charge of desertion in U.S. court- martial proceedings. The Board is bound by the findings of the Federal Court of Appeal in Hinzman v.

Canada (Minister of Citizenship and Immigration) and Minister of Employment and Immigration v. Satiacum . It cannot interpret these cases as overturning the Supreme Court of Canada’s decision in Canada (Attorney General) v. Ward . It was therefore open to the applicant to present evidence of similarly situated individuals showing that the system of military justice in the United States was not a domestic avenue available to him in seeking state protection.

The Board’s lack of analysis of the evidence concerning the independence and impartiality of the U.S. court- martial system, as well as the lack of reasons for preferring contrary evidence to that of the applicant, was unreasonable since the documentary evidence ignored by the Board goes to one of the central issues of the applicant’s claim. The Board’s

interpretation of Huet- Vaughn was also unreasonable. The applicant’s submissions that there is no defence for the charge of desertion were corroborated with evidence before the Board. It was unreasonable for the Board to find that similarly situated individuals would be able to appeal their cases to the U.S. Supreme Court and therefore that avenues of state protection remain. Indeed, leave to the U.S. Supreme Court was denied in Huet-Vaughn , making this the prevailing law.

Further, the evidence of the witnesses herein in addition to the case of Huet- Vaughn demonstrated that the charge of desertion operates as a strict liability offence where motive for desertion is not relevant. The applicant’s argument that he 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 went directly to the issue of state protection. Finally, the Board ignored the evidence presented by the applicant about similarly situated individuals and prosecutorial discretion.

There was no evidence before the Board to support the finding that the ability to raise unauthorized command influence as a defence presumably applies to the exercise of prosecutorial

discretion. 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]. Geneva Conventions Act, R.S.C., 1985, c. G-3, Schedules I to IV. Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3(3)(d),(f), 72(1), 96, 97. Uniform Code of Military Justice, 10 U.S.C. §837 (2006). Army Regulation 27–10, 16 November 2005. CASES CITED followed: Hinzman v. Canada (Minister of Citizenship and Immigration), 2007 FCA 171, 282 D.L.R. (4th) 413, 61 Admin. L.R. (4th) 313, 63 Imm.L.R. (3d) 13; Minister of Employment and Immigration v. Satiacum (1989), 99 N.R. 171 (F.C.A.); Canada (Attorney General) v.

Ward, (SCC), [1993] 2 S.C.R. 689, (1993), 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85. considered: Colby v. Canada (Minister of Citizenship and Immigration), 2008 FC 805; United States v. Yolanda M. Huet-Vaughn, 43 M.J. 105(C.A.A.F. 1995); R. v. Généreux, (SCC), [1992] 1 S.C.R. 259, (1992), 88 D.L.R. (4th) 110, 70 C.C.C. (3d) 1; Key (Re), (I.R.B.); Canada (Minister of Citizenship and Immigration) v. Kadenko (sub nom. Kadenko v. Canada (SolicitorGeneral) (1996), (FCA), 143 D.L.R. (4th) 532, 124 F.T.R. 160, 206 N.R. 272 (F.C.A.)); Smith v.

Canada (Minister ofCitizenship and Immigration), 2009 FC 1194, [2011] 1 F.C.R. 36, 358 F.T.R. 189, 86 Imm. L.R. (3d) 114; Rivera v. Canada (Minister ofCitizenship and Immigration), 2009 FC 814, 351 F.T.R. 267. referred to: U.S. v. Lewis, 63 M.J. 405 (C.A.A.F. 2006); Lowell v. Canada (Minister of Citizenship and Immigration), 2009 FC 649; Dunsmuir v.New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, 329 N.B.R. (2d) 1, 291 D.L.R. (4th) 577; Miranda Ramos v. Canada (Citizenshipand Immigration), 2011 FC 298; Garcia Osorio v. Canada (Citizenship and Immigration), 2010 FC 907; James v.

Canada (Citizenshipand Immigration), 2010 FC 546; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, 304 D.L.R. (4th)1, 82 Admin. L.R. (4th) 1; Findlay v. The United Kingdom, [1997] ECHR 8, 24 EHRR 221; Cepeda-Gutierrez v. Canada (Minister ofCitizenship and Immigration), , 157 F.T.R. 35 (F.C.T.D.); Florea v. Canada (Minister of Employment andImmigration), [1993] F.C.J. No. 598 (C.A.) (QL); Gunes v. Canada (Minister of Citizenship and Immigration), 2008 FC 664; Begashawv. Canada (Minister of Citizenship and Immigration), 2009 FC 462, 82 Imm. L.R. (3d) 309.

AUTHORS CITED 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://www1.umn.edu/humanrts/instree/refugeehandbook.pdf>. United Nations Human Rights Committee. General Comment No. 32:

Article 14, Right to equality before courts and tribunals and to fairtrial. U.N. Doc. CCPR/C/GC/32 (23 august 2007). APPLICATION for judicial review of a decision by the Immigration and Refugee Board finding that the applicant was neither a refugeenor a person in need of protection within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act. Applicationallowed. APPEARANCES Alyssa Manning for applicant. Martin Anderson for respondent. SOLICITORS OF RECORD VanderVennen Lehrer, Toronto, for applicant. Deputy Attorney General of Canada for respondent.

The following are the reasons for judgment and judgment rendered in English by Scott J.: I. INTRODUCTION [1] This is an application for judicial review of a decision of a member of the Immigration and Refugee Board (the Board), pursuant

to subsection 72(1) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (the Act) by Christopher Marco Vassey (the applicant). The Board determined that the applicant was neither a Convention refugee nor a person in need of protection under sections 96 and 97 of the Act. The applicant requests that the decision be set aside and the claim remitted for redetermination by a different member of the Board. II. BACKGROUND [ 2 ] The applicant is an American citizen.

He was very involved in the Junior Reserve Officer Training Corps during high school and enlisted in the New Jersey Army National Guard after he turned 17, in September 2003. After completing basic training, the applicant became a recruiter assistant for the National Guard. Feeling disillusioned with the recruitment process in the National Guard, the applicant joined the U.S. Army in April 2006 and was sent to Fort Bragg, North Carolina. The applicant was assigned to an infantry unit to be deployed to Afghanistan in 2007.

During the lead up to the mission in Afghanistan, the applicant became concerned about the lack of organization and training of his unit as well as the capabilities of the commanders. [ 3 ] The applicant deployed to Afghanistan in January 2007, and was originally scheduled to end his tour in April 2009. After several months, the applicant learned that his service would be involuntarily extended until at least May 2010. Instead, the applicant chose to voluntarily re-enlist in the Army in April 2007 to secure himself a promotion and tuition funding upon completion.

On December 1, 2007, the applicant was promoted to sergeant. [ 4 ] While on duty in Afghanistan, the applicant alleges that he was ordered to perform actions contrary to the rules of armed conflict. These orders included raiding civilian homes and recognizance by fire where his unit pre-emptively fired on a location where they believed the enemy forces were located without taking any precautions to ensure that civilians were not harmed.

The applicant further stated that he was part of the supervision of the Afghan National Army which he learned were placing detainees in “hot boxes” under extreme conditions to obtain information. Finally, the applicant alleges that his unit strapped the dead bodies of Afghan insurgents to U.S. military vehicles and drove through villages in order to intimidate local populations. [ 5 ] The applicant described growing mental health concerns during and after his deployment to Afghanistan. Following his voluntary re-enlistment, the applicant began to feel depressed.

On leave for two weeks in July 2007, the applicant suffered from nightmares, insomnia and mood swings. He did not describe any of his mental health issues to a superior officer nor did he seek medical assistance.

After returning to the United States on April 8, 2008, the applicant stated that he could not spend time with others or be around children and that he was emotionally unstable and felt on edge. [ 6 ] During President Bush’s speech at “All American Week” in 2008, the applicant realized that in addition to no longer agreeing with the mission in Afghanistan, he did not agree with the war in Iraq, as it had nothing to do with the events of September 11, 2001.

The applicant began researching options to leave the Army and he determined that because he was a sergeant with four years left on his contract, he would face severe punishment for going absent without leave (AWOL). The applicant felt that he could not file for conscientious objector status because his objections were based on specific wars and not grounded in religious beliefs. [ 7 ] On July 7, 2008, the applicant collected his things from Fort Bragg and went AWOL from the U.S. Army.

He entered Canada on August 4, 2008, and claimed refugee protection the same day. [ 8 ] The refugee hearing was held on October 9, 2009. The Board’s negative decision was issued on August 27, 2010. III. THE DECISION UNDER REVIEW [ 9 ] The Board issued a lengthy decision, in which state protection was the determinative issue. [ 10 ] The Board reviewed the relevant jurisprudence on state protection, noting that there is a presumption of state protection which a refugee claimant can rebut with clear and convincing evidence of the state’s inability to protect.

The Board noted that the protection does not have to be effective but rather adequate and that there is a higher burden on the claimant when the state in question is a developed democracy such as the United States of America. [ 11 ] The Board spent several pages reviewing the case of Hinzman v. Canada (Minister of Citizenship and Immigration) , 2007 FCA 171 , 282 D.L.R. (4th) 413 ( Hinzman ) . The appellants, Mr. Hinzman and Mr. Hughey, members of the U.S. military, deserted because of their belief that the war in Iraq was illegal and immoral.

The Board found that Justice Sexton of the Federal Court of Appeal held that it was not possible to conclude that the appellants would not have been adequately protected in the United States because they did not access the legal protections available to them. [ 12 ] The Board also reviewed Mr. Justice Beaudry’s decision in Colby v.

Canada (Minister of Citizenship and Immigration) , 2008 FC 805 , in which he held that even where the facts raised by a refugee claimant might fall under paragraph 171 of the UNHCR [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 [Geneva, reedited January 1992] (the UNHCR handbook), the claimant must still establish that state protection is unavailable to him. A.

Ability to Raise the Defence of an Illegal Order [ 13 ] The Board then assessed the applicant’s submission that if the motive for desertion is deemed irrelevant and inadmissible in U.S. court-martial proceedings then there is no opportunity to raise a proper defence against desertion charges. [ 14 ] The Board summarized the affidavit evidence of several professors and U.S. military sergeants presented by the applicant. [ 15 ] The Board then considered the case of Captain M. Huet-Vaughn in United States v. Yolanda M.

Huet-Vaughn , 43 M.J. 105 (1995 C.A.A.F.) ( Huet-Vaughn ) of the United States Court of Appeals for the Armed Forces. The Board found that Huet-Vaughn does not show that the defence of an unlawful order only applies to extreme cases such as war crimes of grave breaches of the Geneva Conventions

[Geneva Conventions for the Protection of War Victims, signed at Geneva on August 12, 1949, being Schedules I to IV of the GenevaConventions Act, R.S.C., 1985, c. G-3].

Rather, the Board concluded that the United States Court of Appeals for the Armed Forces hasnot decided whether an individual could raise the question of whether he or she had been ordered to commit an unlawful act, and that theduty to disobey extends to acts that are manifestly beyond the legal power or discretion of the commander as to admit to no rational doubtof their unlawfulness. [16] The Board found that the avenues of appeal were not exhausted in the case of Huet-Vaughn and that since the issue of raising anunlawful order in defence of a desertion charge has not been appealed to the Supreme Court, the examples of individuals who were notable to raise the defence do not rebut the presumption of state protection. [17] The Board also found that there was not sufficient evidence to show that the applicant could not have requested a medicaldischarge for his psychiatric condition.

B. Differential Prosecutorial Discretion [18] The Board then assessed the applicant’s submission that there is no state protection or procedural protections against thedifferential, and therefore persecutory, application of prosecutorial discretion by his commanding officer on whether to initiate chargesand court-martial proceedings. [19] The Board reviewed the examples presented by the applicant of James Burmeister and Robin Long, where evidence of theseindividuals’ public comments against the war in Iraq was introduced at their courts-martial.

The applicant submitted that these statementswere used as aggravating factors and were ultimately the reason for pursuing prosecution as opposed to an administrative discharge fordesertion. The Board found that prosecutorial discretion benefits that justice system. If aggravating factors, including public commentsagainst a war, are presented in a proceeding, this does not necessarily suggest that prosecutorial discretion has been used in adiscriminatory manner. C. Independence and Impartiality of the U.S.

Military Justice System [20] The Board then assessed the applicant’s submission that the system of military justice in the United States violates basic humanrights by not being independent and impartial. [21] The Board spent several pages recounting the evidence presented from Donald G. Rehkopf, Jr., Professor Eugene Fidell,Marjorie Cohn and Kathleen M. Gilberd for the applicant and Professor Victor Hansen from the respondent. [22] The Board acknowledged that the applicant’s argument that the U.S. military justice system does not comply with therequirements of the Canadian Charter of Rights and Freedoms [being

Part I of the Constitution Act, 1982,

Schedule B, Canada Act1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] (the Charter) or the factors outlined by the Supreme Court in R v.Généreux, (SCC), [1992] 1 S.C.R. 259 (Généreux), where the Court considered the Canadian court-martial system.These factors included the lack of security of tenure, financial security and institutional independence. [23] The Board recounted that Professor Hansen, for the respondent, described the U.S. military justice system as having sufficientchecks and balances. He stated that the most important protection against Unauthorized Command Influence (UCI) is

Article 37 [§837]of the Uniform Code of Military Justice [10 U.S.C. §§801–946 (2006)] (UCMJ).

Article 37 precludes a commander from censuring,reprimanding or admonishing any military members, judge or counsel with respect to findings or sentences of the court. Subsection 37(a)prevents unauthorized influence on a member of the military court. The Board noted that Professor Hansen stated that the commanderacts on the advice of military lawyers before taking action and that there is a robust appellate system for preventing errors, such as UCIand other trial errors.

The system is further protected by the presiding judge advocate. [24] The Board found that both the respondent and applicant’s affiants agree that the military commander has a central role in the U.S.military justice system, including initiating investigations, determining what charges will be brought to what level of court-martial andselecting the panel of jurors and adjudicating the cases. [25] The Board noted that, generally, the applicant’s affiants stated that the U.S. military justice system does not conform to thefactors in Généreux, above.

Under the UMCJ, the judges are appointed at will and lack security of tenure, and institutional independenceis lacking as the judges are appointed by the Judge Advocate General. They stated that a discipline model operates where a commandercould choose to make an example of a soldier. Further,

Article 37 of the UMCJ aimed at correcting UCI is ineffective as complaints ofUCI continue and are rarely successful. Mr. Rehkopf stated that the system lacks fundamental aspects of due process and that the checksand balances are insufficient and UCI continues. [26] The Board member found, at paragraph 89 of his decision [Key (Re), (I.R.B.)], that: I accept the evidence in the affidavits of Donald G. Rehkopf, Jr., Professor Eugene Fidell, Professor Victor Hansen, Marjorie Cohn andKathleen M. Gilberd…. I accept the affidavits for the information provided in regard to the US military justice system.

Any conclusionsdrawn from this evidence is the sole responsibility of the Board. [27] The Board then stated that the test for determining whether state protection is available to a person in the claimant’s position isset out in Minister of Employment and Immigration v.

Satiacum (1989), 99 N.R. 171 (F.C.A.) (Satiacum) [at paragraph 26]: In all but the most extraordinary circumstances all the events leading up to a prosecution and all of the events of a trial in a free andindependent foreign judicial system must be taken to be merged into the judicial process and not open to review by a Canadian tribunal.Extraordinary circumstances would be those, for example, which tended to impeach the total system of prosecution, jury selection orjudging, not discrete indiscretions or illegalities by individual participants which, even if proved, are subject to correction by the processitself….

[ 28 ] The Board acknowledged that the U.S. military justice system has not changed as much as the Canadian and British systems over the past decades. [ 29 ] Concerning UCI, the Board found that in the evidence before it, there is disagreement as to the prevalence of UCI within the U.S. military justice system. The Board concluded that the appellate case U.S. v. Lewis , 63 M.J. 405 [C.A.A.F. 2006] shows that the problem of UCI is recognized and can be raised as a defence.

The Board stated [at paragraph 92] that “[t]his would presumably extend to the misuse of prosecutorial discretion.” [ 30 ] The Board concluded that on the balance of probabilities, the evidence does not substantially impeach the U.S. military justice system. D. Hazing [ 31 ] The Board then assessed the applicant’s submission that there was not adequate state protection against cruel and unusual “hazing” that he could face as discipline from his commanding officer or unit if he were returned to the Army. [ 32 ] The Board found that the case of Lowell v.

Canada (Minister of Citizenship and Immigration) , 2009 FC 649 ( Lowell ) demonstrates that there is a mechanism for appealing treatment of authorized non-judicial punishment under Army Regulation 27-10. The Board further found that the applicant could also use the tactic of going to the media if he experiences unauthorized hazing. The Board also noted that the Eighth Amendment of the U.S.

Constitution prohibits cruel and unusual punishment. [ 33 ] The Board concluded by finding that the applicant was not a Convention refugee or person in need of protection as he had not rebutted the presumption of state protection with clear and convincing evidence. It was therefore unnecessary to consider paragraph 171 of the UNHCR handbook and the claim was dismissed. IV. RELEVANT LEGISLATION [ 34 ] The relevant portions of the Act are appended to this decision. V. ISSUES AND STANDARD OF REVIEW [ 35 ] There are two principal issues in this application:

(1) Did the Board ignore or misinterpret evidence or fail to provide adequate reasons for its treatment of the evidence?

(2) Did the Board err in its analysis of state protection? [ 36 ] Where previous jurisprudence has determined the standard of review applicable to a particular issue before the court, the reviewing court may adopt that standard of review ( Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 ( Dunsmuir ), at paragraph 57 ). [ 37 ] The question of whether the Board failed to consider the evidence before it is a factual one that usually attracts deference and will be reviewed on the standard of reasonableness (see Dunsmuir , above; Miranda Ramos v.

Canada (Citizenship and Immigration) , 2011 FC 298 , at paragraph 6 ; Garcia Osorio v. Canada (Citizenship and Immigration) , 2010 FC 907 , at paragraph 19 ). [ 38 ] Assessments of the adequacy of state protection raise questions of mixed fact and law. As such, these issues are also reviewable against a standard of reasonableness (see Hinzman , above, at paragraph 38 ; James v.

Canada (Citizenship and Immigration) , 2010 FC 546 , at paragraph 16 ). [ 39 ] In reviewing the Board's decision using a standard of reasonableness, the Court is concerned with whether the Board has come to a conclusion that is transparent, justifiable, and intelligible and within the range of acceptable outcomes based on the evidence before it (see Dunsmuir , above, at paragraph 47 ; Canada (Citizenship and Immigration) v. Khosa , 2009 SCC 12 , [2009] 1 S.C.R. 339, at paragraph 59 ). VI.

PARTIES SUBMISSIONS Applicant’s Submissions [ 40 ] The applicant submits that his evidence and arguments are vastly different than those put forward in Hinzman , above, relied on by the Board. Unlike the applicant, the appellants in Hinzman put forward no information to rebut the presumption of state protection.

The applicant’s evidence in this regard included demonstrating that the U.S. court-martial system fails to meet international standards of fairness and that a soldier is unable to raise his motives for desertion as a defence against such charges. [ 41 ] The applicant argues that the Board mistreated the evidence on the fairness of the military justice system in the U.S. The Board stated that it accepted the evidence provided by the applicant in the affidavits of Donald G. Rehkopf, Jr., Professor Eugene Fidell, Marjorie Cohn and Kathleen M. Gilberd.

However, the Board did not provide any reasons for why, despite accepting the information in the expert affidavits, it nonetheless concluded the opposite from what was contained therein. [ 42 ] The applicant submits that the significance and probative value of evidence before the Board reasonably increases when it emanates from a more expert source and the responsibility of the decision maker to outline their reasons for dismissing the evidence that directly contradicts their conclusions also increases.

The Board erred by failing to properly consider this evidence. [ 43 ] The Board also did not analyse the evidence provided by these individuals demonstrating that the jury selection process, as well as the lack of tenure provided to military judges and appellate judges are inadequate.

[44] The applicant further contends that the Board misinterpreted and ignored evidence on the issue of available defences to thecharge of desertion. [45] The applicant submits that the Board misinterpreted the U.S. case law on this issue. The applicant submits that the case of Huet-Vaughn, above, stands for the proposition that the motive for why an individual soldier deserted the military is irrelevant andinadmissible on the question of whether the soldier is guilty of desertion. The applicant submits that an unlawful order defence is onlyapplicable to orders offences and not to the charge of desertion.

Further, the applicant submits that the Board erred in finding that theHuet-Vaughn decision does not limit the scope of the unlawful order defence to war crimes. There was ample evidence before the Boardby experts and members of the U.S. military on the application of the Huet-Vaughn case. The Board did not provide reasons for why itpreferred its own

interpretation of the law in the U.S. to that of military law professor and practitioners and military members. Thisrenders the Board’s reasons inadequate. [46] The applicant submits that this is important because he would not be able to raise the conduct that he was ordered to perform inAfghanistan at a court-martial for the charge of desertion. He argues that there is therefore no state protection for being prosecuted fordesertion despite the fact that he deserted because he was ordered to perform acts which would satisfy paragraph 171 of the UNCHRhandbook. A.

State Protection [47] The applicant submits that in addition to the mistreatment of evidence, the Board made several errors in its state protectionanalysis. [48] The applicant argues that if the Board did truly accept the evidence of the applicant’s four affiants named above that the U.S.military justice system is not an independent or impartial tribunal and is not in conformity with international standards or the Charter,then its conclusion must be that there exists adequate protection for the applicant nonetheless is an unreasonable conclusion. [49] Under paragraphs 3(3)(

d) and (

f) of the Act, decisions made under sections 96 and 97 of the Act must be consistent with theCharter and must comply with Canada’s obligations under international human rights instruments. The applicant submits thatinterpreting adequate state protection to be that which falls below standards set out in international human rights instruments and theCharter is unreasonable and contrary to the Act.

The applicant submits that this is also contrary to the UNHCR handbook which states, atparagraph 60: In such cases, due to the obvious difficulty involved in evaluating the laws of another country, national authorities may frequently haveto take decisions by using their own national legislation as a yardstick.

Moreover, recourse may usefully be had to the principles set outin the various international instruments relating to human rights, in particular the International Covenants on Human Rights, whichcontain binding commitments for the States parties and are instruments to which many States parties to the 1951 Convention haveacceded. [50] In addition, the applicant argues that the Board made conclusions about differential prosecution that were not based on theevidence before it. The Board concluded that “the ability to raise UCI as a defence presumably applies to the exercise of prosecutorialdiscretion”.

The applicant argues that there is no basis in the evidence for this conclusion and that in fact the evidence contradicts it. Thedecision on whether to initiate charges in the first place in the U.S. is completely within the purview of the Command and thereforewould not be considered “unlawful” and is not subject to review on the basis of UCI.

The Board’s conclusion was thereforeunreasonable. [51] The applicant further submits that the Board concluded that it is appropriate to punish certain soldiers over others for desertionwhere the prosecution feels there are aggravating factors such as speaking out about the war, because prosecutorial discretion benefitsthe justice system.

However, the applicant submits that if the “aggravating factor” motivating the prosecution is the individual’sexpression of his political beliefs, then the prosecutorial discretion has been exercised in a discriminatory and persecutory manneraccording to paragraph 169 of the UNHCR handbook. Aggravating factors cannot include an individual’s race, religion, sexualorientation, gender or political opinion. The Board erred by concluding otherwise.

Further, the Board did not provide any meaningfulanalysis on the evidence before it indicating that members of the U.S. military have been singled out for prosecution because of theirpolitical beliefs. Respondent’s Submissions [52] The respondent submits that the Federal Court of Appeal’s decision in Hinzman and the Supreme Court’s decision in Canada(Attorney General) v. Ward, (SCC), [1993] 2 S.C.R. 689, were binding on the Board.

That is, states are presumedcapable of protecting their own citizens and this presumption is only displaced with clear and convincing confirmation of the state’sinability to protect a claimant. This presumption is particularly strong with respect to a developed democracy like the United States. TheCourt of Appeal in Hinzman concluded that the U.S. is a fully functioning democracy with a robust judicial system, that providessignificant procedural protection to an individual who is the subject of a court-martial proceeding.

These include the presumption ofinnocence, assessment by an impartial adjudicator, the right to know the case against oneself and a high standard of proof to meet beforeconviction. Further, the Federal Court of Appeal held, in Satiacum, above, that a foreign legal system is presumed to be fair absentevidence that substantially impeaches its processes. Given this, the applicant was required to seek out and exhaust all avenues ofprotection before he could rebut the presumption of state protection. [53] The applicant made no attempt to seek recourse through any means other than refugee protection.

He did not complain to hissuperiors, choose not to re-enlist, seek re-assignment, seek treatment for mental health issues or seek a discharge on medical groundsbefore deserting. The respondent submits that the Hinzman, above, principle that where applicants have not adequately accessed the legalprotection available to them in their country, they cannot assert that their rights would not be adequately protected. [54] The respondent submits that the Board did not ignore evidence but rather undertook a detailed and meticulous examination of theevidence before it.

The respondent argues that the Board accepted the qualifications of each of the applicant and respondent’s affiants

and carefully detailed the evidence provided by all five individuals. The Board weighed the evidence and noted the disagreementbetween the affiants, but concluded that the self-correcting mechanisms in the military justice system meet the requirements for adequatestate protection. The conclusions of the affiants could not be substituted for the determination the Board itself was required to make. TheBoard also addressed U.S. jurisprudence that while UCI can be a concern with prosecution, there is redress for an accused to raise it as adefence.

The applicant is faulting the Board for preferring the evidence of Professor Hansen to that of the applicant’s. [55] The respondent submits that neither of the applicant’s main concerns substantially impeaches the U.S. military justice system;namely, the persistence of UCI and the possibility that prosecutorial discretion could be misused. The evidence provided by the affiantsdoes not indicate that even if the accused’s political opinion was considered an aggravating factor in the use of prosecutorial discretion,the accused could not appeal the decision.

Similarly, there was no evidence to suggest that persons alleging UCI are unable to exercisetheir appeal rights. [56] The respondent further submits that the Board [at paragraph 39] reasonably interpreted the case of Huet-Vaughn, above, toprovide that, where a soldier receives an order to commit a positive act that would be considered a war crime or other crime “somanifestly beyond the legal power of a commander” to order, the defence of “unlawful orders” is available.

The applicant did not putevidence before the Board that the conduct he observed would rise to the level contemplated in paragraph 171 [of the UNHCRhandbook], nor that he was ever ordered to perform such acts. The applicant also put no evidence before the Board about the duties hewould be assigned if redeployed and whether they would put him at risk of breaching the rules of armed conflict. [57] The respondent argues that the Board did not ignore evidence regarding the unlawful order defence. It fully appreciated theevidence given by Ms. Cohn and Mr.

Gespass and concluded that this evidence did not demonstrate that the defence of illegal ordercould not be advanced as a defence on a desertion charge, or that the applicant would not be able to advance it in the circumstances of hiscase. The respondent submits that pursuant to Colby v. Canada (Minister of Citizenship and Immigration), 2008 FC 805 [cited above],the applicant must first establish that the state would be unable or unwilling to protect him before the Board can consider whetherparticular facts would bring him within paragraph 171 of the UNHCR handbook.

The applicant did not do so. [58] The respondent further submits that the test for adequate state protection is not conformity with international or Charterstandards. The respondent submits that the Supreme Court in Généreux, above, did not determine the degree of judicial independencerequired by international law of any court-martial system. Further, the criteria in Généreux and the Findlay v.

The United Kingdom,[1997] ECHR 8, 24 EHRR 221 decision relied on by the applicant have not risen to the level of peremptory international legal norms.The American court-martial system meets the criteria of independence established by the UNHRC [United Nations Human RightsCommittee] General Comment No. 32:

Article 14, Right to equality before courts and tribunals and to fair trial. U.N. Doc.CCPR/C/GC/32 (23 August 2007): it is independent of the executive, judges enjoy protections guaranteeing security of tenure, and theexecutive is not able to control or direct the conduct of a court-martial.

Further, absent a demonstration that the standards highlighted inthe Généreux decision represent minimum international norms, they cannot be used to assess a sufficiency of the protection offered by aforeign legal system. [59] The respondent submits that on the basis of the evidence before it, the Board could reasonably find that the applicant would beadequately protected within the U.S. military justice system. The continued existence of UCI does not rise to this level. VII. ANALYSIS

(1) Did the Board ignore or misinterpret evidence or fail to provide adequate reasons for its treatment of the evidence? [60] Subject to a complete breakdown of the state apparatus, states are presumed to be able to protect their citizens. The applicantbears the onus to rebut this presumption on a balance of probabilities with clear and convincing evidence of the state’s inability toprotect.

This evidence can be either “testimony of similarly situated individuals let down by the state protection arrangement or theclaimant's testimony of past personal incidents in which state protection did not materialize” (Ward, above, at pages 724–725). [61] The evidentiary burden to rebut the presumption is higher when the state in question is a developed democracy. As the FederalCourt held in Canada (Minister of Citizenship and Immigration) v. Kadenko [sub nom. Kadenko v.

Canada (Solicitor General)] (1996), (FCA), 143 D.L.R. (4th) 532 (C.A.), at page 534: When the state in question is a democratic state, as in the case at bar, the claimant must do more than simply show that he or she went tosee some members of the police force and that his or her efforts were unsuccessful.

The burden of proof that rests on the claimant is, in away, directly proportional to the level of democracy in the state in question: the more democratic the state's institutions, the more theclaimant must have done to exhaust all the courses of action open to him or her… The Federal Court of Appeal has further considered this elevated burden with respect to the United States, noting in Hinzman, above, atparagraph 46, that: The United States is a democratic country with a system of checks and balances among its three branches of government, including anindependent judiciary and constitutional guarantees of due process.

The appellants therefore bear a heavy burden in attempting to rebutthe presumption that the United States is capable of protecting them and would be required to prove that they exhausted all the domesticavenues available to them without success before claiming refugee status in Canada.

In Minister of Employment and Immigration v.Satiacum (1989), 99 N.R. 171 at page 176 (F.C.A.) (Satiacum) this Court was called upon to consider a claim of insufficient stateprotection in the United States and commented on the difficult task facing a claimant attempting to establish a failure of state protectionin the United States: In the case of a nondemocratic State, contrary evidence might be readily forthcoming, but in relation to a democracy like the UnitedStates contrary evidence might have to go to the extent of substantially impeaching, for example, the jury selection process in therelevant part of the country, or the independence or fair-mindedness of the judiciary itself. [62] The Court agrees with the respondent that the findings of the Federal Court of Appeal in Hinzman and Satiacum, above, are

binding on this Court and were so on the Board, it cannot interpret these cases as overturning the Supreme Court’s decision in Ward,above.

The Supreme Court clearly stated in Ward that a refugee claimant can rebut the presumption of state protection with evidence ofsimilarly situated individuals let down by the arrangement of state protection. [63] It was therefore open to the applicant to present evidence of similarly situated individuals showing that the system of militaryjustice in the United States was not a domestic avenue available to him in seeking state protection due to the lack of independence,impartiality or the lack of defences to the charge of desertion.

But he also had to show on a balance of probabilities that all of theavenues that were open to him would have resulted in an unfair treatment because of the U.S. military system of justice. [64] The Board, in turn, was under a duty to consider all evidence before it. This duty did not require the Board to summarize all of theevidence in its decision so long as it properly addressed evidence which contradicted its conclusions (see Cepeda-Gutierrez v. Canada(Minister of Citizenship and Immigration), , 157 F.T.R. 35 (F.C.T.D.); Florea v. Canada (Minister of Employment andImmigration), [1993] F.C.J.

No. 598 (C.A.) (QL)). The duty to assess this evidence increased with the expert nature of the affiantsproviding it (see Gunes v. Canada (Minister of Citizenship and Immigration), 2008 FC 664; Begashaw v. Canada (Minister ofCitizenship and Immigration), 2009 FC 462, 82 Imm. L.R. (3d) 309). [65] The Board’s duty to explain itself increases directly with the relevance of the evidence provided. [66] The evidence presented by the applicant on the independence and impartiality of the court-martial system in the U.S. emanatedfrom several individuals arguably experts in U.S. military law. Mr.

Fidell is a Professor of Law at Yale University and the President ofthe National Institute of Military Justice since 1991. Mr. Rehkopf was a judge advocate in the U.S. Air Force since 1976 and has beenpracticing military law for 34 years. Ms. Cohn is a law professor and has published widely on disengagement from the military in theUnited States. [67] After summarizing the evidence for several pages, the Board’s analysis of the five affiant’s evidence was somewhat limited. Theonly conclusion drawn by the Board is that while UCI is a problem, it can be raised as a defence. This and the self-correcting mechanismof

Article 37 [of the UCMJ] demonstrate that state protection is available. The Board did not comment specifically on all the evidence ofthe affiants which directly stated that these self-correcting mechanisms were ineffective. The Board did not address the findings of theaffiants on the jury selection process, the lack of tenure provided to military judges and the inadequacy of appellate judges. Nor did itindicate why it preferred the evidence of Professor Hansen to that of the four other affiants.

But nonetheless it concluded, at paragraph93 of its decision, that: “Effectiveness in state protection is a consideration but I find that, on a balance of probabilities, the evidence doesnot substantially impeach the US military system.” Was this conclusion of the Board reasonable? [68] As Mr. Justice de Montigny held in Smith v. Canada (Minister of Citizenship and Immigration), 2009 FC 1194, [2011] 1 F.C.R.36, also commenting [at paragraph 52] on the Board’s assessment of Mr. Rehkopf: “it was not sufficient to summarize the evidencepresented by the applicant.

The Board member should have addressed that evidence and discussed it in his reasons”. Justice de Montignyfurther held, at paragraph 69, that: … I am of the view that his affidavit was not just a lay opinion which the board could reject without providing reasons for doing so. Mr.Rehkopf obviously had a long experience as a military lawyer and has acted as defense counsel, prosecutor and judge for many years. Itwas open to the Board, of course, to prefer other evidence to that provided by Mr. Rehkopf.

The Court finds the Board’s lack of analysis of the evidence before it concerning the independence and impartiality of the U.S. court-martial system, as well as the lack of reasons for preferring contrary evidence to that of the applicant to be unreasonable since thedocumentary evidence ignored by the Board in its reasons goes to one of the central issues of the applicant’s claim. [69] Concerning the U.S. Court of Appeals for the Armed Forces case Huet-Vaughn, the Court agrees with the applicant that theBoard’s

interpretation of the case was unreasonable. The U.S. Court of Appeals for the Armed Forces held that (at paragraphs 43 and45): To the extent that CPT Huet-Vaughn quit her unit because of moral or ethical reservations, her beliefs were irrelevant because they didnot 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 wasirrelevant. The so-called “Nuremberg defense” applies only to individual acts committed in wartime; it does not apply to theGovernment’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. [70] The Board concluded [at paragraphs 43–44] that this decision did not stand for the principle that “the defence of an unlawfulorder only applies to extreme cases such as war crimes or grave breaches of the Geneva Convention” and that the “United States Court ofAppeals for the Armed Forces has not decided whether an individual could raise the question of whether he or she had been ordered tocommit an unlawful act.” [71] However, the applicant’s submissions before the Board were that for the charge of desertion, not disobeying orders, there is nodefence.

This was corroborated with evidence before the Board from two experts and three members of the U.S. military. While theBoard summarized this evidence in the decision, it did not analyse it or provide reasons for rejecting it. Rather, the Board focused on theright of appeal within the court-martial system and found that similarly situated individuals would be able to appeal their cases to theU.S. Supreme Court, which they have not done, and therefore avenues of state protection remain. [72] The Court finds this to be an unreasonable conclusion. First, as the applicant noted in reply, leave to the U.S.

Supreme Court wasdenied in the case of Huet-Vaughn, making this the prevailing law. Further, the evidence of the professors, practitioner, 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. [ 73 ] 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. [ 74 ] 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. [ 75 ] 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. [ 76 ] As noted above, the Board was under a duty to consider the evidence before it and address that which conflicted with its conclusions.

It had to provide adequate analysis and reasons for rejecting such evidence. The failure to do so with respect to the issue of applicable defences to the charge of desertion in U.S. court-martial proceedings was unreasonable.

(2) Did the Board err in its analysis of state protection? [ 77 ] The applicant argued before Board that there is no state protection for the discriminatory application of prosecutorial discretion. The applicant presented evidence before the Board indicating that while the large part of deserters are administratively discharged, those who speak out publicly against the war in Iraq were selected to be court-martialled and prosecuted for desertion.

This Court recognized the disproportionate prosecution for desertion of those who have spoken out against the wars in Iraq and Afghanistan. [ 78 ] 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. [ 79 ] 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. [ 80 ] 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. [ 81 ] 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. [ 82 ] The Court finds that the Board’s failure to assess the evidence before it concerning the application of prosecutorial discretion on the grounds of political opinion was unreasonable. [ 83 ] Similarly, the Board speculated that “the ability to raise UCI as a defence presumably applies to the exercise of prosecutorial discretion”.

There was no evidence before the Board to support such a finding. [ 84 ] As t he Federal Court of Appeal held in Satiacum , above, the Board’s findings cannot be based upon evidence that is the “sheerest conjecture or the merest speculation”.

As such, the Court finds that Board’s analysis on the misuse of prosecutorial discretion in U.S. court-martial proceedings was unreasonable. [ 85 ] Given the analysis above concerning the Board’s mistreatment of the evidence about the availability of state protection and its unreasonable conclusions on the use of prosecutorial discretion, the Court concludes that it would be incorrect to allow this decision to stand. [ 86 ] The application for judicial review is allowed. JUDGMENT THIS COURT’S JUDGMENT is that: 1. The application for judicial review is allowed.

2. There is no question of general importance to certify. ANNEX Immigration and Refugee Protection Act, S.C. 2001, c. 27 3. … Application

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

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; … (

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 (

b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. Person in need of protection 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 Convention Against 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 or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. Person in need of protection

(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection. UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, HCR/IP/4/Eng/REV.1 60. 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. … 169. 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. 170. There are, however, also cases where the necessity to perform military service may be the sole ground for a claim to refugee status, i.e. when a person can show that the performance of military service would have required his participation in military action contrary to his genuine political, religious or moral convictions, or to valid reasons of conscience. 171.

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. United States Army. Uniform Code of Military Justice , 10 U.S.C. §§801–946 (2006) 37. Unlawfully Influencing Action of Court (

a) No authority convening a general, special, or

summary court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercises of its or his functions in the conduct of the proceedings. No person subject to this

chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts.

The foregoing provisions of the subsection shall not apply with respect to (1) general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial, or (2) to statements and instructions given in open court by the military judge, president of a special court-martial, or counsel. (

b) In the preparation of an effectiveness, fitness, or efficiency report on any other report or document used in whole or in part for the purpose of determining whether a member of the armed forces is qualified to be advanced, in grade, or in determining the assignment or transfer of a member of the armed forces or in determining whether a member of the armed forces should be retained on active duty, no person subject to this

chapter may, in preparing any such report (1) consider or evaluate the performance of duty of any such member, as counsel, represented any accused before a court-martial.