2023 FC, 2023 FC 1660

Date: 20231220 Docket: T-1862-17 Citation: 2023 FC 1660 Ottawa, Ontario, December 20, 2023 PRESENT: The Honourable Mr. Justice Bell BETWEEN: THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Plaintiffs and BOŽO JOZEPOVIĆ Defendant REASONS FOR JUDGMENT I. Context/Background [ 1 ] Bosnia and Herzegovina is a country located in the Balkan Peninsula in south-eastern Europe, which was once part of Yugoslavia. It borders on other former Yugoslav Republics of Croatia, Serbia and Montenegro and has a small 12-mile seacoast on the Adriatic Sea.

The part of Bosnia and Herzegovina, where the events, which are the subject of this court action, unfolded is largely mountainous and isolated. Immediately prior to the disintegration of the Yugoslav state in 1991/1992, the total population of Bosnia and Herzegovina was approximately 4.4 million, of which approximately 43.7% were Bosniaks (Muslim), 31.3% were Serbian (Orthodox) and 17.3% were Croat (Catholic).

Unlike the other former Yugolav states, no one ethnic group constituted a majority in Bosnia and Herzegovina. [ 2 ] I pause here to note that the evidence before me is that inside the eventual state of Bosnia and Herzegovina there were many Bosniaks who were allied with Croats, particularly at the beginning of what would become a civil war inside Bosnia and Herzegovina. Similarly, as hostilities developed, there were other alliances created. This was not surprising, given the integration of the three major ethnic groups.

It is also important to note that each of the ethnic groups in the future Bosnia and Herzegovina could rely upon a well- trained military populace given the Yugoslav Army’s long-standing policy of " “all-people’s defense” " . That is, all able-bodied male citizens of the age of majority were expected to undergo military training and be at the ready in the case of any attack upon the then Yugoslavia. In addition, a more basic training had already begun in high school, which included both men and women.

Non-active duty men in the former Yugoslavia were organized into Territorial Defense Units, built on a local basis for use in wartime emergencies. This provided the post-Yugoslav nations with a ready reservoir of experienced military men and women, assigned to local units. [ 3 ] On January 15, 1992, the European Union recognized the independence of Croatia and Slovenia in their pre-civil war borders.

It is noteworthy that Croatia had fought a bloody civil war, which, in large measure, pitted Croatians (Catholics) against Serbians (Orthodox), the latter of whom were supported, in large measure, by the Yugoslav state. As Yugoslavia was now a shrinking state, the Croatians (Catholics) and the Bosniaks (Muslims) were united in their desire not to be part of a larger Serbian (Orthodox) controlled state, which would include Bosnia and Herzegovina. A referendum for Bosnian and Herzegovinian independence was held on February 29 and March 1, 1992. Of the total votes cast, 99.44 % favoured independence.

Approximately 1/3 of the electorate did not vote. It is widely assumed that those who did not vote were of Serbian (Orthodox) ethnicity, who are said to have boycotted the referendum. The European Union recognized the independence of Bosnia and Herzegovina on April 7, 1992. Prior to the declaration of independence, widespread fighting occurred throughout the territory of what would become the Bosnia and Herzegovina nation, as Serb forces (largely Orthodox) battled Bosniak (largely Muslim) and Croat (largely Catholic) forces.

Following the independence votes in Croatia, Slovenia and Bosnia and Herzegovina, the successor state of what was once Yugoslavia, became the State Union of Serbia and Montenegro (referred to herein as Serbia). With the creation of the state of Bosnia and Herzegovina, the stage was then set for civil war inside that country. Serbia would continue its efforts to exert control inside Bosnia and Herzegovina through the ethnic Serbian population and Croatia would seek to exert control through the ethnic Croatian population.

There is little doubt that certain groups in both Croatia and Serbia had designs on expanding their respective boundaries to include parts of what had recently become Bosnia and Herzegovina. Others, particularly some leaders of Croatian ethnicity inside Bosnia and Herzegovina, were less inclined to dismantle the Bosnian state. [ 4 ] From this point onward in these reasons, I will refer to the differing warring factions inside Bosnia-Herzegovina by their actual titles. The Bosnian-Herzegovinian Army would be known as the ABiH (the Army of the Republic of Bosnia and Herzegovina).

The ABiH was considered the national military. It was composed largely of Muslims, although there were some people of Croatian (Catholic) ethnicity within their ranks. The ethnic Croatians inside Bosnia-Herzegovina, organized the Croatian Defence Council (the Hvatsko vijeće obrane or HVO) to combat the Serbs (Orthodox). Importantly, the HVO was not only an army. HVO was in effect a government structure, with a President and other civic officials, which operated parallel with Bosnian and Herzegvonian authorities in governing many municipalities in Bosnia and Herzegovina, particularly those having Croat majorities.

While the parties refer largely to the HVO as an army, it is clear the " “army” " was only part of the governing organism of the larger Croatian Defence Council, which, in many cases, was allied with the Bosnian and Herzegovinian state. This is in part reflected in the fact that, after the war ended, both HVO personnel and ABiH personnel are entitled to veterans’ benefits from the state of Bosnia and Herzegovina. There were some Bosniaks (Muslims) in the HVO, particularly at the start of the conflict in Bosnia and Herzegovina, as both Bosniaks and Croatians (Catholics) fought a common enemy, the Serbs.

The ethnic Serbs in Bosnia-Herzegovina fought under the name VRS ( Vojska Republike Srpske ). [ 5 ] In the spring of 1992, the civil war inside Bosnia-Herzegovina began in earnest. That war pitted the HVO (largely Croatians) and the

ABiH (largely Bosniaks) against the VRS (Serbs). Immediately after the recognition of Bosnian-Herzegovinian independence, the VRS set up in Bosnia and Herzegovina and the removal of the non-Serb population began. A pattern emerged of terror, detention, killing and expulsion leading to the creation of 2.6 million refugees or displaced persons – well over one-half the population of Bosnia-Herzegovina – within the first three months of fighting.

The early months of the war greatly favoured the VRS (Serbs), who were supported by the military from the former Yugoslav state. [ 6 ] By October of 1992, the front lines of the civil war had largely settled into place. The VRS had gained significant territory; the HVO had lost territory in the north and defended certain lands further to the south and west, in what has been described as the Republic of Herceg-Bosna, a potential Croatian mini-state inside the state of Bosnia-Herzegovina.

Fighting continued in and around Sarajevo, Goražde, Srebrenica, Žepa and Bihać. [ 7 ] Importantly, by October of 1992 the relationship between the HVO and the ABiH, while they remained allies, was becoming increasingly strained, as the HVO eyed control of Herceg-Bosna in the south and west and, by some, even the potential annexation of Herceg-Bosna by Croatia. [ 8 ] According to Dr. William B. Tomljanovich, an historian declared an expert witness at the trial of this matter, the spark which ignited the conflict between the HVO and the ABiH was the peace talks.

He is of the opinion that the Vance-Owen Peace Plan , A. Izetbegovic, R. Karadzic, M. Boban, C.R. Vance, D. Owen, January 30, 1993 [Vance-Owen Peace Plan] was negotiated " “with very little coercion from the outside, so it was imperative that at least one party sign on to the proposal” " . Dr. Tomljanovich contends that, as a result, the smallest warring party, the HVO, was given very generous treatment in the proposed map of the " “Vance Owen cantonal borders which was issued at the end of 1992” " . At paragraph 112 of his opinion, Dr.

Tomljanovich provides the following perspective: " Determined not to let such an opportunity slip by the HVO seized this moment to “implement” their own version of the still unsigned plan and claim their territory. On 15 January 2003, HVO President Jadranko Prlic signed an ultimatum ordering troops from the HVO and the ABiH to either leave the provinces which were not “theirs” and for remaining Bosnian authorities to subordinate themselves to the HVO in proposed provinces 3, 8 and 10. The Department of Defense was to enforce this order in five days.

The Croats (meaning officials of the state of Croatia) must have had serious concerns regarding the reception of the ultimatum in Central Bosnia, as they sent the Assistant Minister of Defense of Croatia, (and later commander of the HVO), Slobodan Praljak to the Lasva Valley at this time. This ultimatum was rejected by the Sarajevo authorities. This led to localized conflicts between the HVO and ABiH. Fighting had already begun in Gornji Vakuf from 12 January 1993 to 20 January 1993, and moved to Busovaca on 23/24 January.

By the end of the month, the HVO had backed down from the ultimatum and a shaky peace was temporarily restored in February " . [ 9 ] The events which are the subject of this court action occurred in the village of Poljani in the municipality of Kakanj. Kakanj municipality is majority Muslim. Kakanj was spared any serious fighting in the winter and spring of 1993. One of the reasons, according to Dr. Tomljanovich, that fighting did not come to Kakanj municipality early on in the struggles between the HVO and the ABiH was because it was foreseen to be part of Province 9 in the Vance-Owen Peace Plan.

Province 9 was not to be part of HVO controlled territory. Also, in Kakanj municipality it was evident from the beginning of the civil war that parallel institutions had been set up by the HVO and Bosnia-Herzegovina. While friction existed at times between the two, they, in large measure, resolved any issues without resort to violence. Dr. Tomljanovich, at paragraphs 159, 160, 168 and 169 of his report describes the situation in Kakanj in January and February of 1993 as follows: The fighting which enveloped the Lašva Valley next door did not yet spread to Kakanj and Vareš.

This is most likely due to the fact that as those two municipalities were foreseen to become a part of Province 9 in the Vance Owen Peace Plan, they did not fall under the purview of the ultimatum which only included Croat-dominated Provinces 10 and 8. The ultimatum did state that HVO forces in Province 9 were to subordinate themselves to the ABiH, although there is no indication they formally did so. … Although the January fighting did not spread to Kakanj, it did indirectly have an effect on the municipality.

After the fighting in Gornji Vakuf a truce was reached between HVO Zone Commander Blaškić and ABiH Deputy Zone Commander Džemo Merdan. Part of this plan was to reduce tensions where fighting had been worst by removing the 305 th ABiH Brigade … from their position in Gornji Vakuf and relocating them to Kakanj. According to HVO commander Marić, this led to more tension between the HVO and ABiH.

In any event it added to the already large advantage in manpower the ABiH enjoyed in the municipality. … From April 16 onwards, Kakanj saw an all-out war being conducted in the next-door municipalities of Zenica and Busovača. Again, the war did not spread there, but a number of incidents did follow in Kakanj. … [On] 19 April, the ABiH attacked the kindergarten in Kakanj which was then the headquarters of the Kakanj HVO Presidency and the HVO military police.

However, according to Marić, “with great efforts a broader conflict was prevented”… On 21 April 1993, Croatian sources reported that HVO premises in Kakanj had come under attack the previous day by the ABiH and were demolished. One soldier from each side was killed and negotiations followed amidst fire. … Despite these smaller conflicts, all-out war was delayed in Kakanj for nearly two months. This isn’t entirely unusual as fighting was delayed elsewhere along the lines as locals failed to take

part in the war. … [ 10 ] The war finally came to Kakanj on or about June 4, 1993 when the ABiH launched its attack. Recall, Kakanj was and remained

predominantly Muslim. The local Croatian population, by that point, was to be found largely on the eastern side of the municipality in majority Croat villages. Immediately before the attack on Croat installations in Kakanj, the ABiH had the following units in Kakanj: the 309 th Mountain Brigade was headquartered in the elementary school in the center of Kakanj; part of the 305 th brigade which had been defeated in Jajce; the Lašva Detachment which was a part of the 7 th Muslim Brigade as well as the Black Swans which was a Special Purpose Unit of the 1 st Corps ABiH of Sarajevo.

Also present in Kakanj, fighting alongside the ABiH troops were the Mujahidin with members from various Islamic states in the Middle East, including Iran. These ABiH units and the Mujahidin were opposed by the Kotromanic Brigade of the HVO. Also present in Kakanj municipality were international troops. The French United Nations Protection Forces (UNPROFOR) was stationed at the power plant. [ 11 ] The events, which occurred from June 9 to June 13, 1993 in Poljani and Kraljeva Sutjeska, predominantly Croat villages lying on the most eastern part of Kakanj municipality, are at the heart of the dispute before me.

While much more about what occurred in and around Poljani during the relevant times will be discussed in more detail, suffice it to say at this point, that the majority of Muslim civilians then present in the village of Poljani and Kraljeva Sutjeska were arrested and detained at the local school. While the HVO released women, children and the elderly prior to the able-bodied male population, all were subjected to imprisonment and some were subjected to intimidation. All appear to have received adequate food and water.

I conclude all had access to toilet facilities although those who testified declined to use them out of fear. Two males were assaulted on their last day of detention, while being forced to perform work for their captors. None of the captives lost their lives. None suffered serious physical injuries.

All were eventually released, on June 13, 1993. [ 12 ] The plaintiffs contend the defendant was an active participant in the mistreatment of the Muslim civilian population, that he misled Canadian immigration authorities about his involvement in the HVO, and that he obtained his citizenship through misrepresentation or fraud or by concealing material circumstances, with respect to a fact described in

section 35 of the Immigration and Refugee Protection Act , SC 2001, c 27 [ IRPA ] (sometimes referred to as " “ s. 35 facts”), " pursuant to

section 10.1(1) of the Citizenship Act , RSC 1985, c C- 29 [2017 Citizenship Act ] . II. Positions of the Parties [ 13 ] The plaintiffs seek a declaration revoking the defendant’s Canadian citizenship and a declaration that he is inadmissible to Canada. The requests are made pursuant to subsection 10.1(1) and 10.5(1) of the Citizenship Act , RSC 1985, c C-29 as they appeared on December 2017 [2017 Citizenship Act ] , that was in force on December 4, 2017, the date of filing and service of the Statement of Claim. The declarations sought read as follows: a declaration pursuant to

section 10.1(1) of the Citizenship Act, R.S.C. 1985, c. C-29 , that the defendant obtained Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances, with respect to a fact described in

section 35 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [the “first declaration”] and a declaration that the defendant is inadmissible to Canada on grounds of violating human or international rights for committing

an act outside Canada that constitutes a crime against humanity or a war crime, pursuant to sections 10.5(1) of the Citizenship Act, R.S.C. 1985, c. C-29 and 35(1)(

a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ; [the “second declaration”] [ 14 ] On March 9, 2023, this Court, on consent of the parties, granted the plaintiffs’ motion to amend the Statement of Claim to add the words " “unlawful confinement” " to subparagraph 114(

a) of the Statement of Claim. The amended paragraph now reads as follows: 114. The defendant therefore also directly participated in, and/or voluntarily made a significant and knowing contribution to, the following war crimes:

a) wilful killing of protected persons; unlawful confinement ; inhuman treatment; and committing outrages upon personal dignity, in particular humiliating and degrading treatment (which are applicable in an international armed conflict), or [ 15 ] With respect to the first declaration, the plaintiffs say that they need only show that the defendant misrepresented a material fact by concealing his membership in the HVO.

In their opinion, if they prove on a balance of probabilities that the defendant concealed his membership in the HVO, he foreclosed further inquiry into whether or not he had committed or was complicit in war crimes and/or crimes against humanity. [ 16 ] With respect to the first declaration, the defendant contends the plaintiffs bear the onus of establishing all three elements required under

section 10.1(1) of the 2017 Citizenship Act , on a balance of probabilities, namely: 1 . They must prove a false representation or fraud or intentional concealment; 2 . They must prove the false representation or fraud was material to the issue of a fact set out in s. 35 of the IRPA ; and, 3 . They must prove the alleged fact in s. 35 of the IRPA . [ 17 ] If a

section 35 fact cannot be proven on a balance of probabilities, then the defendant contends there is no fraud, misrepresentation or concealing of a material fact, and therefore no basis for revocation of his citizenship. III. Witnesses called and my assessment of their credibility

[ 18 ] The plaintiffs called eight witnesses during the five-week trial of this matter. Ms. Donna Marie Capper, a retired Foreign Service Officer, testified about her experiences in processing applications for entry into Canada, arising from the conflict in Bosnia and Herzegovina. Ms. Capper did not process the defendant’s application for permanent residency. She did, however, review his landing documents upon arrival in Canada. Until preparing to testify for the trial, she had not seen the defendant’s permanent resident applications. She had never interviewed the defendant.

While she knew the identity of the person who conducted the interview, Jacques Jodoin, she had no access to his notes or memoranda. She had access to the forms completed by the defendant. She testified that, given the responses made by the defendant on the forms, she would have asked further questions. In particular, the defendant had failed to mention " “military service” " during the Bosnian conflict, stating rather that he had served in " “civil defence” " during the war years.

Given that the defendant was male and of military service age during the war years, she says she would have asked questions about potential military service. She does not know whether such follow-up questions were asked by the interviewer, Mr. Jodoin. [ 19 ] In

summary, I found Ms. Capper to be truthful. She tried to be helpful to the Court. However, her evidence was of little value other than to establish that the defendant appears to have denied any military service during the war years. This observation, however, must be qualified by his admission that he was involved in " “civil defence” " . The concept of civil " defence " is clearly not foreign to those males from the former Yugoslavia where this notion of " “all-people’s defense” " constituted part of their civic duty.

The name HVO is an English acronym for the Croatian Defence Council (emphasis is mine), which further explains why one might describe oneself as being involved in civil defence. Furthermore, as noted earlier, HVO had many organs, including, political, administrative, civic, and defence. While Ms.

Capper gave examples of what the expression " “civil defence” " might mean to her, there is no evidence of what it meant to the interviewer or the defendant interviewee. [ 20 ] In the Immigrant Visa and Record of Landing, completed in November, 1997, the defendant correctly states his name, Božo Jozepović; his birthdate, 05 June 1966; his place of birth, Kakanj; his country of birth, Bosnie-Hercegovine; and, the fact he is a citizen of Bosnie-Hercegovine. Upon entry, he provided a copy of his Bosnian-Herzegovinian passport and stated that he was of Croat ethnicity.

He states in that document that his intended work in Canada is as a chauffeur. Each part of that document appears to have been completed correctly. I find there to be no misleading information in his Immigrant Visa and Record of Landing. [ 21 ] In his application for Permanent Residence in Canada, completed in February 1997, the defendant properly sets out his name, birthdate, and last country of permanent residence; namely, Bosnia and Hercegovina. He indicates his place of birth to be Kakanj in Bosnia and Herzegovina.

He sets out his address from 1983 to June of 1993 as being in Poljani, in the hamlet of Kraljeva Sutjeska Kakanj. From June of 1993 to the then present he provides an address in Croatia. The form specifically requests information about where he lived since his 18 th birthday. He answers BH (Bosnia and Herzegovina) and Croatia. In a second application for permanent residence completed in June of 1997, he stated that he lived in Poljani, without any mention of Kraljeva Sutjeska, from 1983 to June of 1993.

I find that discrepancy to be of no moment, as both hamlets are in Kakanj municipality and near (within several kilometres) of one another. There is no evidence contradicting the statement that he lived in both of those locations since his 18 th birthday. However, on that same form, Citizenship and Immigration Canada requests applicants for permanent residence provide their work history for the past 10 years. The defendant reported having worked with " “Rudnik Kakanj” " from 1982 to June, 1993. He reported that his occupation was " “Repairing Machines” " . This information appears, at best, to be incomplete.

As will be evident in the remainder of these reasons, I accept that he was engaged by the HVO. There is no evidence he was a " “volunteer” " . Presuming the defendant worked for " “Rudnik Kakanj” " when not busy with HVO duties, one would still have expected him to declare his service at the HVO. [ 22 ] As will be seen, Sedika Topalović, testified that the defendant visited her home when he was not on guard duty. She described him as working four days on and four days off. I do not dispute that he may have worked for Rudnik Kakanj on his days off from HVO duties.

While one witness, Ibro Husic, testified that the defendant did not attend work after joining the HVO, there is no evidence Mr. Husic knew the defendant’s

schedule or what arrangements the defendant may have made with any employer while also engaged by the HVO. [ 23 ] In his Application for Permanent Residence in Canada, the defendant was also required to describe the circumstances under which he became a refugee. He accurately states that in June of 1993, " “hostilities between Croats and Muslims started in Kakanj” " . He also says that on June 13, 1993 that he went to work " “near Kakanj” " .

He says that on that date, the Muslim Army " “started shelling all Croatian villages around the town and entering the villages as all the rest of Croats (sic) who were either living in those villages or working there. I started retrieving (sic) towards Vareš and I could not (sic) Kakanj any more” " . [ 24 ] Finally, the Application for Permanent Residence in Canada required the defendant to answer several questions about his militia, army or defence unit service. The first title on the first page of that document reads: THIS MUST BE COMPLETED BY ALL MEN BETWEEN THE AGES OF 18 AND 65 YEARS 1 .

DID YOU SERVE IN ANY MILITIA OR ARMY OR DEFENCE UNIT SINCE 1991? IF YES, COMPLETE ALL OF HE QUESTIONS/IF NO, SEE OTHER SIDE: [ 25 ] Unlike the remaining portions of the first page of that part of the questionnaire, there are no lines demonstrating where to place the answer. If one’s response is " “yes” " then that appears to be understood, by answering questions 2 to 13. If one’s response is " “no” " , then that appears to be understood by completing the form on the reverse side of the paper.

The reverse side of the paper, complete with answers in space provided for that purpose, reads as follows: TO BE COMPLETED BY ALL MEN BETWEEN THE AGES OF 18 AND 65 YEARS WHO CLAIM THEY DID NOT SERVE IN ANY MILITARY, MILITIA OR DEFENCE UNIT SINCE 1991. YOU CLAIM THAT YOU DID NOT SERVE IN ANY MILITARY, MILITIA OR DEFENCE UNIT SINCE 1991 THEREFORE PLEASE ANSWER THE FOLLOWING QUESTIONS: 1. WHY DID YOU NOT HAVE TO SERVE MILITARILY DURING THE WAR?

I was driver in civil defence 2. IF YOU DID CIVIL DEFENCE/COMMUNITY DUTIES PLEASE DESCRIBE WHAT YOU DID, WHERE AND WHEN: I was driver for humanity help 3. IF YOU RETURN TO YOUR HOME COUMMUNITY, WHERE YOU LIVED BEFORE THE WAR WHICH BEGAN IN 1991/1992, WOULD THERE BE ANY CHARGES AGAINST YOU BECAUSE YOU DID NOT SERVE IN ANY MILITARY: I can non (sic) return because I am Croatian and my house is destroyed . 4. DID YOU REFUSE TO SERVE MILITARILY DURING THE WAR WHICH BEGAN IN 1991/1992, AND IF SO WERE YOU PENALIZED FOR THIS: No, I do not refuse to serve militarily. I was not asked becose (sic) I was in civil defence.

PLEASE SIGN THE DECLARATION ON THE OTHER SIDE OF THIS PAGE. [ 26 ] That declaration, which the defendant signed reads as follows: I (YOUR FULL NAME) Božo Jozepović DECLARE THAT ALL OF THE ABOVE STATEMENT ARE TRUE, COMPLETE, AND CORRECT AND I MAKE THIS STATEMENT KNOWING THAT IT IS THE SAME AS APPEARING IN A COURT OF LAW. Božo Jozepović 13/06/97 [ 27 ] By going directly from Question 1 on the first page to the reverse side of the page, all applicants were able to avoid such questions as whether they ever witnessed ill treatment of prisoners or civilians.

Why such a question was not included on the reverse side, whether one was part of an army or not, escapes me. [ 28 ] In the application for permanent residence completed by the defendant in June of 1997, he responded " “not at all” " to the question about his proficiency at speaking, reading and writing in English or French. In his application completed in February of 1997 he responded " “with difficulty” " to each of those categories in English and " “not at all” " to those categories in the French language. [ 29 ] The second witness to testify was Dr.

William Tomljanovich, an expert witness on the history of the conflict in Bosnia and Herzegovina from 1991 to 1995. I have used much of Dr. Tomljanovich’s report to outline the facts set out above. I found Dr. Tomljanovich testified in a straightforward manner, was trying his best to assist the court and appeared to be very knowledgeable about the subject matter. That said, I find much of his opinion evidence-related to matters for which first-hand direct (non-opinion) evidence should have been available.

The Croatian, Slovenian and Bosnian and Herzegovinian wars of independence are very recent historical phenomena. Witnesses familiar with many of the events for which Dr. Tomljanovich could only provide an opinion, should have been available with minimal investigative effort. I am somewhat surprised that the plaintiffs would rely almost exclusively upon opinion evidence in relation to such matters as the organization of the ABiH, the HVO and the VRS when non-opinion evidence was no doubt readily available. Dr.

Tomljanovich provided his opinion about many battles, negotiations, and events surrounding the conflict, about which first-hand direct witnesses should also have been readily available. Those witnesses could have been subjected to cross- examination in order for the court to have a first person account of events as they unfolded. [ 30 ] Dr. Tomljanovich’s report is lengthy and highly detailed. His background is exclusively in the investigation and prosecution of alleged human rights’ abusers. He has never worked for the defense, nor has he ever written a report favourable to an accused person.

He brings to his work a prosecutorial bias, which is evident in the manner in which he testified. [ 31 ] In addition to his prosecutorial bias, Dr. Tomljanovich’s report demonstrates a bias in favour of the ABiH. For example, at paragraph 165, he describes how ABiH and HVO commanders met on April 21, 1993 for purposes of exchanging lists of attacks, which the other had perpetrated. However, his descriptions of the attacks are largely, although not exclusively, related to HVO attacks on ABiH. Also, when speaking about HVO attacks on ABiH populations he, on occasion, uses the word " “massacre” " .

When speaking about similar actions by the ABiH he uses the word " “killings” " . He refers to the ABiH as having detained or arrested HVO members. However, when the HVO arrested ABiH members, Dr. Tomljanavich says they were " “abducted” " . I consider the use of the word " “massacre” " to be more inflammatory that the use of the word " “killing” " . Similarly, the word " “abduction” " or " “abducted” " , is more inflammatory than the word " “arrested” " . [ 32 ] At paragraph 44 of his report under the title " “The Creation of the Armies in Bosnia and Herzegovina and the Outbreak of War” " Dr.

Tomljanovich referred to the long-standing policy of " “all-people’s defense” " and explains how this concept blurred the traditional boundaries between soldiers and civilians. His report, at paragraph 95 reports how the term HVO was " “thrown around in a very confusing fashion and could refer to the armed forces as well as municipal governments” " . This observation provided the introduction, to yet another organ of the HVO; namely, the central cabinet consisting of a president, vice-presidents, and six department heads. [ 33 ] Given all of the above, I find Dr.

Tomljanovich’s opinion evidence useful to establish historical perspective, geographical locations and military organization. Because I find his evidence biased in favour of the plaintiffs, I have made a conscious attempt not to let that bias influence my assessment of the case against this low level, member of the HVO, who claimed to be a driver for " “civil defence” " . Dr.

Tomljanovich’s knowledge of what Presidents, Generals and other would-be leaders in the post-Yugoslav world might or might not have thought, about which he testified at length has very little influence on the knowledge I am prepared to attribute to the defendant.

[ 34 ] The third witness to testify was Mr. Ibro Husic. He is a Bosnian Muslim who was detained from June 9 to June 13, 1993 at the elementary school in Poljani, a village in the municipality of Kakanj. Mr. Husic’s testimony was helpful in demonstrating how he was detained and taken to the school. It is also helpful in demonstrating the good relations between the Croatians (Catholics) and the Bosniaks (Muslims) in the village of Poljani until the events of June, 1993. He testified that he grew up in Poljani and currently resides there.

He testified that he knew the defendant his whole life and that they worked in the local mine together. He testified that the defendant, a Croat, was the best man at the wedding of Smajo Topalović, a Muslim. He testified that prior to the events of June 1993 Croats and Muslims in their community got along well. Mr. Husic’s testimony as to relations before the war was as follows: Q. Now, I’m going to ask you if you could explain for us or describe for us what life was like between the Croat and the Muslim population before the war started. A. The life before the war was 10 out of 10. It was a good life.

Nobody looked at others through the angle of nationality, ethnicity. We worked together. We visited each other’s (sic). And it went like that until the beginning of the conflicts. Q. When did things – when did you notice that things began to change, that the relations between the Croats and Muslims began to change in Poljani? A. It was not only in Poljani, throughout the municipality of Kakanj things started to change when the so-called HVO started to be established. They joined their army, they joined our army, and I could se that it will not lead us anywhere good.

And in the end I proved right because the conflict started, the conflict broke out. But before that we were together and we even tied together our flags, I mean, HVO and army. [ 35 ] Mr. Husic acknowledged that early in the war he joined the ABiH and that ABiH soldiers would see HVO soldiers and that there was no exchange between them. I interpret his reference to " “no exchange” " as meaning that in the early stages of the troubles in the former Yugoslavia there was no exchange of gunfire or hostilities between the two groups.

The ABiH was the official army of Bosnia and Herzegovina, it was engaged to protect the Bosniak or Muslim population, and presumably, all populations in the country. That said, the HVO clearly evolved into the principal protector of the Croat or Catholic population. Regardless, they were both protecting groups from the VRS (Serbs) and, at least at the early stages, both armies had members of the other ethnic group within their ranks. [ 36 ] Mr. Husic described that in the village of Poljani, there were about 315 households, 300 of which were Croatian and 15 of which were Muslim. Mr.

Husic testified that the HVO, shortly after its formation, set up a barracks in the former elementary school in Poljani. I note here that while Kakanj municipality is a large municipality composed of many villages and hamlets, the main village of Kakanj also bears the name of Kakanj and is approximately 13 kilometres from Poljani. The defendant lived in the hamlet of Kovačići, while Mr. Husic lived in the hamlet of Sepercp. Both hamlets would be considered part of the village of Poljani. [ 37 ] Mr.

Husic described how, on June 8, 1993, he moved his elderly parents, his wife and their two children to Kakanj, fearing that war would come to his community. He, however, was told he would need a permit from the Commander before he could leave, he being male and of military age. He never did receive such a permit. He blames the defendant for this failure, stating that he asked the defendant to speak to the Commander. Mr. Husic says the defendant feigned asking the Commander and then advised him (Mr. Husic) that the Commander had refused. I find the blame he places on the defendant conjecture.

I accept his evidence that his spouse and children were able to leave on June 8. I also accept his evidence regarding the good relations among Bosniaks and Croats, where he and the defendant lived, and the fact that HVO and ABiH tied their flags together early on in the newly created Bosnia and Herzegovina. [ 38 ] On June 9, 1993, Mr. Husic began his journey out of Polanji. He was accompanied by Smajo Topalović and Alija Topalović, both Muslim males, the former being the gentleman for whom the defendant was the best man.

After traveling through several villages and being stopped at HVO checkpoints, the three men, Mr. Husic, Smajo Topalović and Alija Topalović were eventually arrested, blindfolded and returned to Poljani, where they were placed in the elementary school basement. [ 39 ] Mr. Husic testified that essentially the whole Muslim population of the village of Polanji was to be found in the basement. That included, according to him, women, children, the elderly and able-bodied men.

His contention that the whole of the population was in the basement is obviously incorrect given his earlier testimony that he had moved his family out of the village on June 8. When asked to identify the children in the basement, he could name only two, they being a young boy Mirza Topalović and a young female Zuhra Topalović (now Sabanović). While Ms. Sabanović testified to being 15 at the time of her detention, Mr. Husic said she could not have been more than ten. The women and children were allowed to leave to get bedding and warm clothing. However, in doing so, they were accompanied by HVO soldiers.

He described the basement as being cold and damp, with only a light into the entryway. He said there were toilets in the basement but they had no doors on them. The entry into the basement constituted a doorframe without the door installed. He says a door from a classroom leaned against the frame. He described that at one point someone threw rags on fire into the basement. The rags were quickly extinguished, by the guards and removed. It is unclear whether the rags were thrown into the basement by soldiers or civilians. [ 40 ] At the end of the first day of captivity, according to Mr.

Husic, the elderly, the women and the children were allowed to leave. However, he testified that 17 able-bodied men were required to remain. Alija Topalović, whose testimony is discussed later in these reasons, testified there were ten to twenty people remaining in the basement after the women, children and elderly had left. According to Mr. Husic, four women returned to the basement on the last day of captivity, they being: Kadira Mehak, Sedika Topalović, Bahirja Topalović and Zuhra Topalović. Zuhra Topalović (now Sabanović) testified she did not return to the basement. I reject Mr.

Husic’s evidence as to the precise number of people who were detained. Given the time that has passed and his errors regarding Ms. Sabanović’s age as well as his mistake about her having returned to the school basement, I prefer the testimony of Mr. Alija Topalović that ten to twenty males remained after the women, children and the elderly were permitted to leave. [ 41 ] Mr. Husic said the guards brought food every second day and that they were held there until the 13 th of June. Mr. Husic described seeing the defendant in the basement on four occasions, one of which he was wearing a " “sock” " on his head. Mr.

Alija Topalović, testified that the defendant came to the door of the basement on only one occasion. Mr. Topalović was present in the basement the whole time Mr. Husic was present. I reject Mr. Husic’s testimony about the number of times the defendant entered the basement. I also reject

his testimony that on one occasion the defendant entered wearing a " “sock” " over his head. The one time the defendant entered, according to Mr. Topalović, he was not wearing anything on his head. [ 42 ] In general, I found Mr. Husic’s testimony to be exaggerated. He often attributed motives to his captors for which there was no evidence. He often stated what he presumed they would do, without any basis for such statements. He often resorted to hearsay evidence despite several suggestions by the Court and counsel to avoid the same.

He demonstrated animosity toward the defendant, on one occasion calling him a " “war criminal” " . To the extent his evidence differs from that of Alija Topalović, I accept Mr. Topalović’s. I conclude that following the release of women, children and the elderly after the first day of captivity, ten to twenty people remained in custody. I reject Mr. Husic’s precision of 17 men and four (4) women, which included Zuhra Sabanović (née Topalović). I accept that some women were returned to custody but do not accept that Zuhra Sabanović (née Topalović) was one of them. AS noted earlier, I reject Mr.

Husic’s evidence the defendant entered the basement on four occasions. I also reject Mr. Husic’s testimony he saw the defendant in the basement with a " “sock” " on his head. I reach this latter conclusion, not only for reasons stated above; but also because of the vastly differing descriptions given of the defendant by Mr. Husic during an interview with the Royal Canadian Mounted Police [RCMP] in 2008 and that given at trial. [ 43 ] Before concluding my analysis of Mr.

Husic’s testimony, I note that he testified to having been called upon to serve with the ABiH and having gone absent without leave on several occasions. On each occasion, he served time in prison and was then released. He says he eventually convinced Bosnian and Hercegovinian authorities to exempt him from military service because his brother was also serving. He testified to having a bus pass available to military personnel for purposes of moving about the territory. He says he destroyed it while under arrest on June 9, 1993.

He also testified that on June 9, 1993 during his travels from Poljani, that if he believed the Mujahidin had been in the area, he would have joined them. [ 44 ] The fourth witness, Ms. Sedika Topalović, is a Muslim female who was also detained in the school in Poljani. Sedika (I use the first name, not out of any disrespect, but only to distinguish her from another witness, Hasija Topalović) is the mother of Smajo Topalović and clearly considers herself somewhat of a friend to the defendant. After plaintiff’s counsel asked Sedika what life was like before the war, she responded as follows: It was beautiful.

We were all having a good life and we were visiting each other. We would visit the crowds for Christmas, and crowds would come to visit us during Eid. We were friends and we were a close community. Q. And you said Eid. Is that a Muslim religious holiday? A. Yes. After Ramadan when you finish fasting, the Eid comes. And then two months after, there is another Eid where you slaughter an animal, and then, you give the meat to the poor. Q. Friends? Yourself? A. Yes. Yes, we did. We had coffees together. Our women used to work together. We visited each other. Yes. Q. Your children.

Did your children have any co-ed friends? A. Yes. The children would call Smajo and Samir and all the other children to play with marbles and to play other games and they never fought. They would also call our girls to play, but we did not allow the girls to go there and play with them because they were girls. Q. At some point I guess that changes, right? Can you tell us about how that changes? A. When the war broke out, everything changed. And then again, still we get along with the former neighbours when we see them. … Q.

So can you – when we go back to when things were bad during the war, can you just give some examples of how things changed? A. The military came from other villages into the school and the neighbours in our village said that we are going to – we are not going to participate in this war. But once they came, they captured us and they had us in the school basement for seven days. … Q. Okay. Now, I’m going to ask you – earlier you mentioned Smajo’s best man, I think. A. Boshko (ph.) was his best man, wedding best man. And Boshko and his wife they were good friends.

And they too and their wives would hang out together, go to the parties together. Smajo’s wife and Bozho’s wife and them too. And their house was close to the river at the end of the village. Kovacici is the name of that settlement. Q. Your referred to two different names, Bozho and Boshko. Does that – do those names refer to the same person? A. It’s the same person but he had two names. I mean, one name and a nickname. Someone would call him Bozho, or Bozyca, and his father was also called Bosho. He also had brothers and I don’t recall their names. Q. Okay.

A. It was 30 years ago. I mean, you forget so much. Q. Now do you remember if this person, Bozho, had any other nicknames or any other names, sorry? De he have any other names that you knew of, or any nickname? A. No, but Bozyca and Bozho. … Q. Okay. Then so you said that this was Smajo’s best man? A. Yes. They were so close. Bozyca would come four days in a row in our house and Smajo would say to his wife, “Bring out the brandy and bring out the food”. And he would sit there and sit and eat and drink with us. And Bozyca said, “Smajo, where are your tr[e]nches?” And Smajo said, “There are not trenches of ours.

I was only with my mother” Ibro (Husic) and Alia (Topalovic) and Smajo jumped from the cherry tree and fled. And they saw that the Croatian army were digging the trenches. Q. Thank you for that. A. They put it in the school during the night and one from Shepad came and picked the eyes of this guy. I was so shocked. Q. Thank you. I’m going to take you back now to this person Bozho. Did your son Smajo -- did Smajo have other best men besides Bozho? A. Only Bozho. Only Bozho, no one else. I mean he had other friends but the only best man was Bozho. What would you do with ten best men? That’s right. … Q.

Do you know where Bozho worked? A. Haljinjici with Smayo in the pit. Haljinjici. They all worked in the mine, both young and old. Only those who went abroad to Germany – otherwise everyone who stayed in Poljani, they worked in the mine pit. And there was a bus taking them to the workplace. … Q. So I guess that’s my question then next question to you, Ms. Topalovic, is which army’s uniform did you see him wearing? … A. Croatian Army. It’s not Muslim army for sure. I mean, there were no Serbs there, only Croat army. Q. What was Bozho’s ethnicity? A. He was Croat. Croat.

There were only Croats in Poljani except us. … Q. Now, so these times when Bozho came over, did he ever come over after the military was in the school? A. Yes, every morning he would come when it was his shift. Se he would be four days in school and four days at home. So every morning when it was school he would come to our house for a coffee, for some breakfast. And Medina was the name of Smajo’s wife. He would tell her – offer him some meat. We had a cow and also a litre of brandy. And then after 12:00 he would go to the school and this repeated every morning. Sometimes he too would bring brandy.

He was the one drinking. Smajo did not drink alcohol. Q. When he came over on these occasions, how was he dressed? A. Military, when going on guard duty. He bought a small camouflage suit for our grandson, my grandson Damir, and his son as well. Q. So you said – you mean, he brought a camouflage uniform for your grandson? A. Yes. Later on everyone was wearing it, and still they wear it today such type of clothes. … Q. Do you recall what was happening in and around your village in early June, 1993. A. Nothing. We fled. We did not know anything after school. We fled. Two or three houses were torched. They took

everything. We were not in our houses. … [ 45 ] I need not quote any more from Sedika’s testimony. It is clear that her memory has faded over time as it relates to the exact chronology of the events. While I find that the chronology is not entirely accurate, I have no hesitation in concluding that the defendant is the person who visited her regularly up until the war came to Poljani; that is, until June 9, 1993.

I have no hesitation in concluding that the defendant fired a round into the ground on June 9, 1993 to cause her and those accompanying her to turn from their intended journey to Kakanj and return to Poljani where she and others were placed in the school basement. A few other witnesses testified to a different number of rounds fired from the defendant; the exact number of rounds fired by the defendant is irrelevant, as the fact that there was gunfire is sufficient to prove that they were indeed returned to the school basement by force.

I accept her evidence that when she, and the others, were stopped by the defendant, he searched her and found 2,000 German marks, which he returned to her and advised her to keep. He also found coffee and two rocks in her bag, which he threw to the ground. I also accept that the defendant instructed her not to look into a truck into which she saw two males being placed, along with other males who were already in the vehicle. I accept her evidence that the defendant did not order the two males into the truck and that she distinguishes the defendant from the " “soldiers” " who made that order.

She stated: " “The others were sitting in the van already, and they forced two others in the van, the soldiers, not Božo or the other one, the soldiers who were there around” " . I accept her evidence that she saw men bloodied and beaten inside the van. I do not accept her evidence that one " “Shepad” " had carried out any assault. She did not testify that she was present when people were injured. When speaking about " “Shepad” " she appears to be referring to something she had heard from someone else.

I accept her evidence the defendant did not force anyone into the van. [ 46 ] I accept Sedika’s evidence that, while in captivity, she wet herself rather than attempt to go to one of the toilets. I accept her evidence that the men in the basement urinated in the sink, and the women turned their heads to give them privacy. I accept her evidence that the guard, Lambi, assured her and others detained, that they would not be harmed. I accept her evidence that although some soldiers threatened the detainees with violence or death, that other soldiers attended and assured them they would not be killed.

I accept her evidence that she did not see the defendant in the basement of the school. However, given that she was not in the basement at all times, having been provided the opportunity to go to her home to get blankets and having been released at one point, I do not find this evidence contradicts that of Mr. Alija Topalović, who said that the defendant came to the door of the basement on one occasion. I also accept Sedika’s evidence that when the women were allowed to get blankets on the first night at the school, that one of the women also made meat pies.

Meat pies, bread and water were delivered to the male captors on two occasions. This was in addition to the food supplied by the HVO, which, according to Mr. Husic, was delivered by the HVO soldiers every second day. [ 47 ] According to Sedika, the length of detention varied from seven days to 20 days. I reject that testimony. I am satisfied the detention for the able-bodies males was from June 9 to June 13, 1993, namely a minimum four days or a maximum of five days depending upon how one counts the days.

The period of detention for the females who were returned to the basement, which clearly included Sedika, is unclear. Mr. Husic says it was the last day of captivity and Sedika says it was for three or four days. For my purposes, I need not decide that issue. [ 48 ] I accept Sedika’s evidence that her son, Smajo was attacked by one " “Skaelo” " on the last day of detention while Smajo was stacking boxes of ammunition for his captors.

I also accept her evidence that the HVO soldiers permitted a medical doctor to attend to Smajo’s wounds. [ 49 ] Finally, I note that Sedika described the defendant as a " “nice” " man. He was her son, Smajo’s best man at his wedding. She closed her testimony with the following exchange with the Court: JUSTICE BELL: Thank you Ms. Topalovic, that concludes your testimony. We thank you for coming. We thank you for sharing what you saw and experienced during that time period. And we wish you all the best. Thank you. MS. TOPALOVIC: Thank you too. Again, I’m sorry for Bozo and for you taking his citizenship.

He was not that bad because there were other people who were worse than him. [ 50 ] Mr. Alija Topalović, a Bosnian Muslim male from Poljani also testified. He accompanied Mr. Husic as they tried to escape to ABiH controlled territory on June 9, 1993. His description of their arrest and initial detention does not differ in any material respects from that offered by Mr. Husic. [ 51 ] Like Mr. Husic and Sedika, Mr. Topalović testified that in Poljani there were about 300 households, of which 16 were Muslim. He described the village of Poljani as " “one of the most beautiful villages in Kakanj” " prior to the war.

He said they lived " “very nicely” " . He described the chapel, the Muslim religious school and the fact that Catholics and Muslims attended one another’s weddings and were often best men for one another. He described Poljani as a community in which " “we were looking after each other” " . [ 52 ] In speaking about the HVO, Mr. Topalović described that it was predominantly Croat, but there were also some " “Bosnians who were members of the HVO” " . In response to questioning by plaintiffs’ counsel, Mr. Topalović testified that they [the HVO] started to organize themselves " “immediately during the war” " .

In the early days of the conflict in Bosnia and Herzegovina, he described the relationship between Muslims and Croats in Poljani as follows: We were together with them. We organized – joined (sic) guards (I understood him to say “joint” guards) and they had groups in Poljani and were also involved in the guards at their check points in Poljani. I think it was in 1991 when they started organizing themselves. But that was – everything was planned within the Army of Bosnia and Herzegovina.

We were together because there was one aggressor who attacked both Croats and Muslims, and they were the Serbs. [ 53 ] In response to plaintiffs’ counsel’s question, " “Did you join one of these armies yourself?” " Mr. Topalović responded: " “We had village guards … We had some guns and we were holding guards together with the Croats, who were better armed. So we had a checkpoint at the entrance to Poljani.” "

[ 54 ] When questioned about the barracks in Poljani, Mr. Topalović stated that all the neighbours, but for the elderly and the younger ones joined the HVO barracks in Poljani. In response to plaintiffs’ counsel’s question about whether he recalled any " “incidents with the HVO in the month or two leading up to the events of June 1993?” " , Mr. Topalović responded: There was a village Krasici with a few houses of Bosnian Muslims. That’s a village on the boundary between Vares and Kakanj.

And that was the village from which they expelled Bosnia (sic) first before the outbreak of the conflict between the Bosnians and Croats. And then there were situations when they did not allow us to go to the shop to buy flour or so, or move around. They had checkpoints. And they told us that we should surrender our hunting guns. And we had to move to the neighbouring village with the majority Muslim population. And then we would come back to our village just to do some farming, because we didn’t have anything else to eat.

But we had our houses in Poljani and we did come on several occasions there. [ 55 ] I note this last excerpt is consistent with Mr. Husic’s testimony about having taken his family to a neighbouring hamlet on June 8, 1993, and returning, by himself, to Poljani, to cut hay and generally maintain his property. [ 56 ] Based upon Mr. Topalović’s testimony, I conclude he awakened on June 9, 1993 to the sound of shooting in the neighbouring village of Lucici. In his words, he realized the situation was not " “good” " . He and his family started to walk toward Lucici, which is his mother’s birth village.

Authorities told them they should return to Poljani, which they did. After some discussion at the family table, the women left and passed through a checkpoint. He remained with his father, who was shaving. That would be the last time he saw his father alive. He then believed that the HVO was about to deploy to attack. During shooting and shouting, he ran through a field and arrived at a wood. Mr. Topalović saw Mr. Husic and Smajo Topalović. The three then decided to walk together. Mr.

Topalović’s story of their capture, detention, delivery to the HVO military police and eventual detention at the school is very similar to Mr. Husic’s version of events. [ 57 ] He described how women, children and the elderly were released on the second day of captivity. Some of the women returned with food for the men. He also testified that a Croat woman brought them food. He testified that ten to twenty men remained. In this regard, as already noted, I accept his evidence over the precision offered by Mr. Husic. [ 58 ] Just as Mr. Husic described the UNPROFOR presence in the area, so did Mr. Topalović.

However, Mr. Topalović testified that " “UNPROFOR realized that the civilians were detained in the basement. They could see them from this car” " . He described holding his now-deceased younger brother, Mirzo up to the window so he could see other children playing, as well as the UNPROFOR vehicle. I note here that Mirzo did not die as a result of the conflict in Bosnia-Herzegovina. In re-direct, Mr. Topalović said the UNPROFOR troops did not see them. Later in these reasons, I observe that Zuhra Sabanović (née Topalović) testified that the UNPROFOR members saw them in the basement.

I accept her evidence in this regard. I also accept Mr. Topalović’s direct evidence that UNPROFOR officers were aware that people were detained in the basement. I reject Mr. Topalović’s re-direct evidence that UNPROFOR soldiers did not see them. [ 59 ] Mr. Topalović testified that the defendant only came down to the basement on one occasion. I have already indicated I accept that evidence over that offered by Mr. Husic.

During the one time that the defendant entered the basement, he said " “Allah Akbar” " meaning " “God is great” " and he said to Smajo " “We are not your wedding witness or our best man anymore.” " Mr. Topalović also testified that the defendant cursed Smajo’s mother. Given the close relationship between the defendant and Sedika, I can only conclude that Mr. Topalović must have been mistaken about whom the defendant was cursing. Mr. Topalović described feeling miserable about the defendant’s conduct because he had only recently been having coffee and " “hanging around” " with him. [ 60 ] Mr.

Topalović also testified that on the last day of captivity he and two others, one of whom was Smajo Topalović, were required to unload ammunition and that they suffered physical abuse in the process. Smajo was hit on the back of the neck with a knife. He also testified that some soldiers called for the killing of the civilians and the rape of the women. There is no evidence the defendant was among those calling for the killing of civilians and rape.

There is no evidence the defendant participated in the assault of those unloading the ammunition boxes; nor, was there any evidence he was aware prisoners were required to do work. [ 61 ] Mr. Topalović credits his survival and the survival of the other detainees, to their guard, a Croat neighbour, Susnja Lambi. He said: But we had a very good guard. He didn’t allow them to enter the basement. He said, “You can enter the basement only over my dead body”. And that’s how we survived. [ 62 ] Mr.

Topalović described threats and intimidation from some HVO soldiers, while others assured them they would all " “leave this place alive” " . [ 63 ] Hasija Topalović is the mother of Alija, Mirza and Zuhra Sabanović (née Topalović). Hasija (again, I mean no disrespect by calling her by her first name. I only wish to distinguish her from Sedika Topalović) described life in Poljani before the war. Her description is much the same as the previous witnesses.

When asked about when things changed in Poljani between the Croats and the Muslims she replied " “in a matter of 10 days…” " She also described the events of June 9, 1993. She recounted how her husband was shaving that morning. She talked about it being a nice summer day and that many people were gathered around the school. Importantly, she described many people foreign to her, Croats, passing by her house on the way to Vareš. When asked whether any of her neighbours were there, her reply was " “I did not see our people there. Those that I saw were foreign to us” " . I note here that Dr.

Tomljanovich reports that as many as 24,000 Croats were displaced in Kakanj in early June, 1993, and 12,000 to 15,000 were making their way to Croat majority, Vareš, from Muslim majority Kakanj. I also note that Poljani was one of a number of villages on the route that those Croats would have to take to get to Vareš. [ 64 ] Hasija described how she was leaving Poljani with Sedika, two (2) other women and two (2) of her children, 9 year-old Mirza and 15 year-old Zuhra. She described hearing three (3) shots to make them stop. This compares to the one shot described by Sedika.

For my purposes it makes no difference whether one shot was fired or three. The fact remains that HVO personnel prevented them from passing, turned them around and led them by force to the school basement. I am satisfied Hasija knew the defendant through her relationship with

Sedika. She also knew that the defendant had been the best man at Smajo’s wedding. [ 65 ] As with Sedika, I find Hasija’s recollection of the chronology of events to be weak. That said, I am satisfied that she was apprehended by, among others, the defendant, that the defendant fired at least one round of ammunition during their apprehension, that she was taken to the school basement along with her children and on the way she saw two men placed into a van. She also described how she held Mirza up to the window, hoping that UNPROFOR peacekeepers would see him.

She also described how a man who had eaten cherries with her husband the day before placed a covering over the windows, which would prevent people from seeing inside, or those inside from looking out. She says food was available but she did not eat. She also described how, on the very first day, for personal sanitary reasons she had to return to her home to get a change of clothes. During this visit to her home she was accompanied by an HVO officer and later returned to the school. When she returned to her home, Croats, foreign to her, were in her home.

She also described having been released at one point during which time she took food, prepared by others, and water, back to the school for the men who remained there. [ 66 ] She testified about her fears for her son Mirza and her daughter, Zuhra. In particular, she feared her daughter would be raped. On occasion, she heard people say to bring the daughter out. She pled with them not to do so. Her version of the last day in captivity is consistent with the others who testified.

She described how Smajo and two others were ordered to help load ammunition, how Smajo was injured by a knife (it is unclear whether it was the blade or the handle, but that is immaterial). She also described how one man Cokara, came to the basement. Although she accused him of planning to kill them all, he assured her she would be " “going home soon” " . [ 67 ] At the close of her testimony, the following exchange occurred between Hasija and the Court: JUSTICE BELL: … At one point before you were taken to the school, I understood you to say you saw a large number of people walking by your house.

Was I mistaken or was I correct in understanding that? THE WITNESS: Yes, people, were moving – children, women, uphill, downhill. And then the women from our village gathered around and left and then Boska [the defendant] caught us and he fired. And he brought us to Prihode and there were women dancing there and they were yelling and shouting and saying this – this woman was saying “Why don’t you kill them all like cattle.” JUSTICE BELL: Now --- THE WITNESS: I don’t remember her name. I forgot.

JUSTICE BELL: So then you saw those all (sic) people moving about that you just described – I’m talking about before Boska took you before you left your house. The people you saw moving along the road, we[re] those Bosniak people or Croat people, or both? THE WITNESS: Not too many Bosniaks. What – we were in the school, kept in the school. These were Croats who came from Kakanj, from Kraljeva Sutjeska. JUSTICE BELL: Thank you, Madam. Anything arising from that, Mr. Poulton? MR. POULTON: No. JUSTICE BELL: Anything arising from that, Mr. Gaudet? MR.

GAUDET: Perhaps one question, you Honour, that arises from that, if I may. So when you were describing the people who you found in your house, now, were they Croats or Muslims? THE WITNESS: Croats. Croats. They broke the door and they fixed it later. There were lots of people there – women, children – and they asked me what I was doing there and I didn’t want to remain silent. I said, “This is my house. Here, you have the cow. It will give birth soon.” And then I took some clothes and I left the house. [ 68 ] Hasija does not recall seeing the defendant in the basement on any occasion.

The only soldier she spoke about being in the basement was " “Cokara” " . She did not testify that the defendant was present when people suggested her daughter be taken outside, nor did she testify he was present when Smajo, and others, were forced to load ammunition. She did not testify that he made any threats to kill her or others. Her only involvement with the defendant was when he apprehended her as she was leaving Poljani, and forced her and the others, to return to Poljani, where they were placed in the school basement.

During her return to the school she testified that the defendant placed two people into a van and put a stocking over his head. I reject her testimony that the defendant forced anyone into the van. In this regard, I accept the testimony of Sedika. I also reject her testimony that the defendant put a " “sock” " over his head. I am concerned that her evidence in that regard is contaminated by discussions she may have had with her son, Alija Topalović or Mr. Husic, both of whom spoke about people with " “socks” " over their head during their escape from Poljani on June 9.

In cross-examination she acknowledged she had had discussions with other witnesses about those events over the ensuing months and years. Those conversations may be confusing the witness. [ 69 ] Zuhra Sabanović (née Topalović) is the daughter of Hasija. She was accompanying her mother en route to Kakanj on June 9, 1993, when she, along with her younger brother, Mirza, and two other Muslim women, were apprehended, by the defendant, and one other person. She was a young lady of 15 at the time.

She describes that day of June 9, 1993 as starting with shells flying overhead: On that day, my mother and I were in our yard when we saw shells or some – or whatever it was, flying over. We went immediately to see my late father and told him that we should leave. However, he told us that we should leave and save ourselves. However, he didn’t want to come along, and he started shaving. My mother grabbed me by the hand, and my small brother, Mirza. So we set off first in the direction of Lucici.

[ 70 ] She, her brother and her mother never did arrive at Lucici. Having been warned by neighbours that there was fighting in the area of Lucici, they set off in the direction of Kraljeva Sutjeska, another village in Kakanj municipality, about three kilometers from Poljani. While en route to Kraljeva Sutjeska, they were stopped by the defendant and, according to Ms. Sabanović, one other male. This contrasts with Hasija’s testimony who said there were three males. Regardless, I accept the evidence that the defendant was one of the persons who stopped this group of women and children. I also accept Ms.

Sabanović’s testimony that the defendant was traveling in a yellow Stojadin car, which was a private civilian vehicle. I accept her evidence that a young man by the name of Kupus was the operator of the civilian vehicle, I accept that she could identify him and the vehicle because she had, on occasion, been in the car when Kupus drove her and her friends to their village from school. [ 71 ] Ms. Sabanović testified that on the way back to Poljani, they saw a van stopped along the side of the road. She said: There were some neighbours, civilians, standing there, mostly women, and there was a huge celebration there.

And I remember well, Ms. Pavanica (ph), she was dancing and signing and she was saying “kill the Balijas” and she was so overjoyed that they caught us. And there was a van standing there and they were happy about what they had seen. My father was in that van. The asked us – told us to bow our heads. However, I raised my head and looked at my father. He was holding his arms above his head. He was bloody. And my mother tried to look at him. I don’t know if she did see him. They hit her with a rifle because we were directed not to look aside. [ 72 ] Ms.

Sabanović testified that the defendant placed two other males in the van and remained at the van, while other soldiers accompanied her group to the school basement. She stated that the defendant did not accompany them to the school, nor did he place them in the basement. She did not testify that the defendant was wearing a " “sock” " or balaclava over his head. I reject her evidence that she saw the defendant place anyone in the van. As I indicated before, I accept Sedika’s evidence in this regard. I fear Ms.

Sabanović’s testimony is tainted by discussions she had with her mother, the fact her father was killed and the fact that she showed animosity toward the defendant during trial, as discussed below. [ 73 ] Ms. Sabanović testified that the defendant hit her mother with his rifle, when they were at the van because she looked up. I reject that testimony. Her mother testified. Her mother made no mention of being struck by the defendant with a rifle. Her mother was specifically asked if anyone pushed her on the road to the school. Her answer was spontaneous – Pero Coric " “would push us against our back” " .

Another factor, which motivates me in disbelieving Ms. Sabonavic on this point and the reference to him hiding his face with a " “sock” " is the animosity shown by her toward the defendant. She called him by the nickname " “Kujica” " , which according to her is a " “person who often changes his mind and does very bad things. He did all the bad things a person can do. So that’s an ugly nickname.” " Later in her testimony, she said of the defendant: " “The majority of the villagers from Poljani knew him because he always made major problems, and his nickname tells you everything about him” " .

She also accused him of murdering her father by cutting him up. There is no evidence the defendant was involved in or had knowledge of any murders. [ 74 ] Ms. Sabanović stated that the defendant and others used derogatory names toward them such as cursing their " “Balijas mother” " , Turkinje and Balinke. I reject this testimony as it relates to the defendant. Her mother, Hasija, had every opportunity to describe such insults and credited none to the defendant. I accept that passersby yelled such words at them – sadly mostly women, according to Hasija. I also accept Ms.

Sabanović’s testimony that some women expressed glee they were captured and, sadly, expressed the view they should be killed. [ 75 ] When asked if she saw the defendant fire his weapon, Ms. Sabanović initially said " “Yes, they were shooting at us” " . She immediately caught herself, and said " “Actually, they were shooting in the air, but they were telling us that we should stop” " . I reject the evidence anyone was shooting at her. I reject Ms.

Sabanović’s testimony that soldiers forced her mother by pushing guns to her back except to the extent that her mother credited such conduct to Pero Coric. [ 76 ] She also testified that once inside the basement: … anyone could see us there, even UNPROFOR units passed by. They could see us, but they didn’t’ do anything to try and rescue us. [ 77 ] Recall that Ms. Sabanović’s brother, Alija Topalović, initially testified that UNPROFOR units saw them inside the school and then changed his testimony on re-direct. Given Ms. Sabanović’s testimony on this point, Mr.

Topalović’s testimony, the small size of the community in Poljani, the fact the HVO in Poljani was located in the school and the very public manner in which people were taken to the school, I conclude UNPROFOR officers knew there were people detained in the school basement. Having made that conclusion, I cannot conclude UNPROFOR did nothing about it. I have no evidence of discussions that may have taken place between HVO leadership and UNPROFOR regarding the prisoners, including why they were detained, who should be released or when they should be released. [ 78 ] While Ms.

Sabanović was in the basement, one of the guards, Marinko, a friend of her late father, assured her safety and advised her that nobody would " “lay a finger” " on her. He apparently informed her that some soldiers wanted him to take her out. He assured her and her mother that would not happen. Ms. Sabanović testified she assumed the soldiers wanted to rape her. She testified to soldiers walking by the windows threatening them, intimidating them and making racial slurs about their mothers. I accept that testimony.

She did not identify any of those soldiers walking by the window and making threats and slurs, as being the defendant. [ 79 ] Ms. Sabanović testified about her release the following day, June 10, 1993, and visits with her mother to their home to feed cattle. Like her mother, she testified that Croats were occupying their home during those visits. Following her release, she was escorted by HVO soldiers, to a home where she stayed with her mother other than her visits to her own home and occasions when she tried to escape.

Her efforts to escape were unsuccessful because of fighting in the area between the ABiH and the HVO. While staying at that home, Marinko visited her to advise that she, her brother Mirzo and others staying there, should remain at that place and that no one would harm her. She testified that Marinko asked the women staying at the home to wash the blood off a uniform. She presumed the uniform to that of her late father. Contrary to the evidence of Mr. Husic, Ms. Sabanović testified that she did not return to the school basement.

[ 80 ] Ms. Sabanović concluded her direct testimony by describing the psychological challenges she has faced since the events of June 1993. She described having had two miscarriages, suffering from insomnia and other health issues, all of which she attributes to her experiences from June 9, 1993 to June 13, 1993. The plaintiffs did not call any expert witnesses regarding the cause of the various physical and psychological issues experienced by Ms. Sabanović.

That said, I accept that she suffered psychological trauma as a result of her arrest and detention in June, 1993. [ 81 ] The final witness to testify for the plaintiffs was Mirza Terzo, Assistant Minister to the Minister of the Bosnian and Herzegovinian Federation for Veterans Affairs. The Assistant Minister has been the Acting Minister since the death of the Minister in 2020. Minister Terzo and the Prime Minister of Bosnia-Herzegovina are in charge of the Ministry.

The Ministry is responsible for caring for war veterans and their families, as well as civilians who provided services to those who were in the war or, whose family members were killed during the war. The veterans include members of the Army of Bosnia and Herzegovina (ABiH), the Croatian Defence Council (HVO) and the Ministry of Interior of the Republic of Bosnia and Herzegovina who served in the war from 1992 to 1996.

Not surprisingly, there is no indication members of the VRS are entitled to veterans’ benefits. [ 82 ] Minister Terzo’s evidence was very helpful in placing before this Court the service record of the defendant during the war years. Former HVO members, including the defendant, are entitled to the same benefits from the Federation of Bosnia and Herzegovina as are the members of the ABiH.

The records admitted through Minister Terzo and Ivo Kalfic, the Senior Official for the Question of Military Records in the Group for Conscription Records Affairs in Kakanj were useful in identifying the defendant as a member of the HVO and one who is entitled to veterans’ benefits. They do, however, contain some apparent inaccuracies or demonstrate a lack of information. For example, the translation of the " “Military Card (VOB-3)” " document indicates that the defendant’s profession is a " “locksmith” " but two pages later in the same document it indicates that he was a " “Rifleman” " .

In the documents held for the Croatian Republic of Herzeg-Bosnia by the Ministry of Defence for Bosnia and Herzegovina, differing dates of service are given for the defendant. One suggests he served from June 08, 1992 to June 10, 1994 while the other suggests he served from September 19, 1991 to August 28, 1993. Another suggests he began service on April 19, 1992. In a document dated June 14, 1996, the defendant is identified as a PARTICIPANT OF ORGANIZED RESISTANCE registered in the Defence Office of Kakanj from December 21, 1991 to April 7, 1992.

It is signed by the President of the Croatian Defence council Pavo Šljivić and the Head of Defence Office Anto Duvnjak. In another document dated August 11, 1994 the defendant’s name appears on the " “OPERATING SHEET FOR THE MILITARY RESERVE OF THE CROATIAN DEFENCE COUNCIL” " [Emphasis is mine].

There are two dates of enlistment for the defendant on that document, October 20, 1993 and October 18, 1993. [ 83 ] I note that in all of the documents admitted through Minister Terzo and Ivo Kalfic, none assign a rank to the defendant although he is identified variously as a " “gunner” " , " “machine gunner” " or " “rifleman” " . In the operating sheet for the military reserve, which was updated on June 8, 1993, people are defined by their duty and their rank. The defendant’s duty is identified as " “Machine Gunner” " ; however, he is not assigned any rank.

Six people on the list, whose names appear before his, have their rank identified as " “Lance Corporal” " , " “Private” " , " “Lance Corporal” " , " “Lance Corporal” " , " “Corporal” " and " “Private” " , respectively. It appears that on the very day before hostilities started in Polanji the defendant did not even hold the rank of " “private” " . I interpret that to mean he held no rank. I question whether that makes the defendant more akin to a civilian than a soldier, given his reserve status. Recall the evidence of Dr.

Tomljanovich, referred to at paragraph 32 of these reasons, regarding the blurring of the boundaries between soldiers and civilians. [ 84 ] I consider it important to comment upon those who did not testify. The plaintiffs are entitled to conduct their case as they choose. That said, the Court is surprised that Jacques Jodoin, the immigration officer who interviewed the defendant was not called to testify. The plaintiffs informed the court he could not be located. This case has been ongoing since 2008 when the RCMP investigated allegations against the defendant.

RCMP officers attended in Bosnia-Herzegovina and interviewed, among others, the witnesses who testified at the trial of this matter and 21 other potential witnesses. Mr. Jodoin is a former public servant. I find it incredulous that he could not be located, or, presuming he is now deceased, that someone could not have so informed the Court. In Canada (Citizenship and Immigration) v Rogan , 2011 FC 1007 [ Rogan ], Brian Casey and Michel Dupuis were key witnesses necessary to establish the

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