Canada (Minister of Citizenship and Immigration) v. Muto

Between
The Minister of Citizenship and Immigration, applicant,
and
Antonio-Nesland Muto, respondent

[2002] F.C.J. No. 318
2002 FCT 256
Docket No IMM-518-01

Federal Court of Canada - Trial Division
Montréal, Quebec
Tremblay-Lamer J.

Heard: February 19, 2002.
Judgment: March 6, 2002.
(14 paras.)

       Aliens and immigration — Admission, refugees — Disqualifications, crimes against humanity — Appeals or judicial review, grounds.

       Application by the Minister for judicial review of a decision of the Immigration and Refugee Board that Muto was a refugee. Muto was a citizen of Angola who was a member of the FLEC, an armed movement fighting for the independence of the Cabinda enclave.  He handled the transportation of goods and services, including weapons.  The board found that Muto was not excluded because there was no serious reason for considering that he had committed a crime against peace, a war crime, or a crime against humanity.  The Minister appealed, arguing that the board erred in failing to make a finding whether the acts committed by the FLEC were comparable to crimes against humanity.

       HELD:  Application allowed.  The standard of proof comprised in the expression "serious reasons for considering" was less than proof on the balance of probabilities.  The characterization of the acts committed by FLEC was essential in determining the degree of participation of Muto in those acts. The board erred in law by not ruling on that issue, and the matter was returned for redetermination by a newly- constituted panel.

Statutes, Regulations and Rules Cited:

Immigration Act, R.S.C. 1985, c. I-2, s. 2(1).

United Nations Convention Relating to the Status of Refugees, Articles 1E, 1F, 1F(a).

Counsel:

Michel Pépin, for the applicant.
Debra Shapiro, for the respondent.

REASONS FOR ORDER AND ORDER

1      TREMBLAY-LAMER J.:—  This is an application for judicial review of a decision of the Immigration and Refugee Board (the panel) in which the panel concluded that the applicant is a refugee within the meaning of the United Nations Convention Relating to the Status of Refugees (the Convention) under subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the Act).

2      The respondent, Antonio-Nesland Muto, is a citizen of Angola. He arrived in Canada on August 29, 1998 and claimed refugee status that same day.

3      In 1992, the respondent had voluntarily joined the ranks of the Frente de Libertaçao do Enclave de Cabinda (FLEC). The FLEC is an armed movement fighting for the independence of the Cabinda enclave. In 1993, following the murder of his parents, the respondent decided to  become further involved and to put all of his resources, including his trucks, at the disposal of the FLEC.

4      Between 1992 and June 1997, the respondent, while based in Zaire, now the Democratic Republic of the Congo (DRC), was attached to the FLEC's transportation department. He handled the transportation of goods and services and is said to have transported weapons for the army and the people.

5      Board member Auguste Choquette concluded that the respondent did not fall within the ambit of the exclusion cause defined in paragraph 1F(a) of the Convention on the ground that there was no serious reason for considering that the claimant had committed a crime against peace, a war crime, or a crime against humanity.

6      The definition of "Convention refugee" in subsection 2(1) of the Act excludes persons who fall within the ambit of sections E or F of Article 1 of the Convention.

7      In the instant case the applicant [sic]  was excluded [sic] pursuant to paragraph 1F(a) of the Convention. Paragraph 1F(a) reads as follows:

F.                The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:                                                                                                   

(a)                   he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; [...]       

* * *

F.                Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser:                                                                                                   

a)                      Qu'elles ont commis un crime contre la paix, un crime de guerre ou un crime contre l'humanité, au sens des instruments internationaux élaborés pour prévoir des dispositions relatives à ces crimes; [...]      

8      The standard of proof comprised in the expression "serious reasons for considering" is one that is well below that required under either the criminal law ("beyond a reasonable doubt") or the civil law ("on a balance of probabilities or preponderance of evidence") (Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.)).

9      As Mr. Justice Linden said in Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.), this standard requires something more than suspicion or conjecture, but something less than proof on a balance of probabilities. However, I note that in view of the serious consequences for the parties, exclusion clauses should be construed restrictively (Moreno, supra).

10      In R. v. Finta, [1994] 1 S.C.R. 701, at p. 814, Cory J. defined the motion of crime against humanity as follows:

         What distinguishes a crime against humanity from any other criminal offence under the Canadian Criminal Code is that the cruel and terrible actions which are essential elements of the offence were undertaken in pursuance of a policy of discrimination or persecution of an identifiable group or race.                                      

11      More recently, in Sumaida v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 66, at p. 73, the Court of Appeal reiterated the definition adopted by the Charter of the International Military Tribunal (Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis) [82 U.N.T.S. 279] which reads:

         Crimes against humanity: namely, murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal whether or not in violation of the domestic law of the country where perpetrated.                                                                                        

12      The applicant submits, first, that Board member Choquette failed to rule on the issue of whether the acts committed by the FLEC-R are comparable to crimes against humanity.

13      In fact, Board member Choquette states that he has no reason to think that the claimant committed a crime against humanity, without ruling in relation to the FLEC-R. Yet this characterization is essential to determining subsequently the degree of participation or complicity of an individual in the actions committed by an organization. He erred in law, therefore, in not ruling on this issue. The standard of review for errors of law is correctness, and Board member Choquette's error is reviewable by this Court. Since it is decisive, it is unnecessary to decide whether Board member Choquette erred as to the definition and application of the concept of complicity.

14      For these reasons, the application for judicial review is allowed. The matter is returned for redetermination by a newly constituted panel.

Certified true translation :  Suzanne M. Gauthier, LL.L., Trad. a.