Say v. Canada (Minister of Citizenship and Immigration)

  • Author: Federal Court of Canada, Trial Division
  • Document source:
  • Date:
    16 May 1997

B E T W E E N:





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All three applicants are citizens of Cambodia whose claims for refugee status on the ground of their political opinion were refused by the Convention Refugee Determination Tribunal ("the Tribunal"). The applicant Chea Say ("the applicant") is the husband of the applicant Vouch Lang Song ("the second applicant"). The applicant Hok Seng Song ("the third applicant") is the sister of the second applicant and the sister-in-law of the applicant. The Tribunal's decision of July 4, 1996 followed hearings on February 13, 1995, May 5, 1995, March 8, 1996 and March 19, 1996.

The Tribunal concluded that the applicant was not a credible and trustworthy witness. Because his claim was the basis of the claims of the second and the third applicants, the Tribunal concluded that there was no objective basis on which to find a well-founded fear of persecution with respect to all three. In addition, the panel determined that there are serious reasons for considering that the applicant has committed a crime against humanity within the meaning of article 1F(a) of the United Nations Convention relating to the Status of Refugees which provides::

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;

Between 1982 and 1993, the applicant was a member of the Cambodian police service which he joined to avoid military conscription. He always served in the training unit of the police force. In 1985, after three years as a constable, he was appointed vice-president of the training unit. After receiving promotions in rank in 1990 and 1992, he became a major and president of the training unit in 1993, shortly before arriving in Canada. It was in 1986 that he acquired information which led him to conclude that the government of the State of Cambodia was, in his words, ruthless and corrupt.

Counsel for the applicants challenges in particular the following factual analysis of the Tribunal which led to its finding that the applicant was not a credible witness:

The claimant was asked if he suffered any consequences from speaking to the officers wherein he openly criticized the corruption and human rights abuses of the police department in January 1993. He said he only received a secret warning. He was never officially reprimanded nor disciplined. In fact, he was promoted to major in June 1993. It is not plausible, given the nature and tone of his alleged speech to 90 police officers from all over Cambodia, that he was not officially reprimanded or disciplined. The panel, accordingly, does not believe that the claimant gave that speech as alleged.
The claimant stated that in April 1992 (sic), he disobeyed orders to go to various cities and give speeches on behalf of the CPP. He suffered no consequences. Also, in June 1992 (sic), he disobeyed orders to destroy certain documents. In spite of the two above noted disobediences, he still remained a member of the CPP. In fact, he was promoted to major in June 1993. In the view of the panel, this is not plausible. Accordingly, the panel does not believe that the evidence about these two events are credible.

It is acknowledged that the Tribunal's references to 1992 in the second above-quoted paragraph should read 1993. I do not accept the applicants' submissions that this error biased the Tribunal's assessment of these facts.

The Tribunal found, contrary to the applicant's assertions, that he did not: (a) deliver a speech criticizing police abuses in January 1993; (b) disobey orders to deliver speeches on behalf of the Cambodian People's Party in the spring of 1993; and (c) agree to destroy documents that might have been embarrassing to the previous government shortly after the election. The Tribunal concluded that the applicant's promotion to the rank of major and the position of president of the training unit in June 1993 was inconsistent with these alleged three incidents and that he was not to be believed in this regard. There are other minor inconsistencies in the evidence of the applicant and a number of occasions when he was directed to respond to the questions clearly.

The claims of the second and third applicants were detrimentally affected by the Tribunal's finding concerning the applicant's credibility. In addition, the Tribunal concluded that the second applicant, who testified briefly, had failed to establish a subjective basis for her fear of persecution should she return to Cambodia.

I am satisfied, after having read the transcript, that it was open to the Tribunal to conclude as it did. Its findings were expressed in generally clear and unmistakable terms. Neither my review of the transcript nor the submissions made on behalf of the applicant allow me to conclude that the Tribunal's findings of credibility were in any manner perverse or capricious.

Similarly, I have found no reviewable error in the Tribunal's analysis from which it determined that there are serious reasons for considering that the applicant committed a crime against humanity within the meaning of article 1F(a). The applicant's testimony in this regard is self-incriminating. In the mid-1980's, the applicant was responsible to teach police officers the substance of new legislation concerning crimes against the state. As vice-president of the training unit, the applicant would attend meetings of senior officials of the Ministry of National Security. As early as 1986, the applicant learned during these meetings that the persons responsible for the implementation of this law, officers whom he or his subordinates had trained, would identify, arrest, question, torture and execute political opponents of the government. The training unit he led was responsible for the teaching of several hundred officers concerning this legislation. The applicant was aware that 85% of the persons arrested would be punished without trial. Despite this knowledge, the applicant continued his career in the police force and as a member of the Ministry of National Security.

The Tribunal properly considered the applicant's decision to join and remain in the police force, his role and rank in the organization, his knowledge of the atrocities committed by other members of the Ministry of National Security and his opportunity to disassociate himself from the police force. The Tribunal summarized its conclusions as follows:

The claimant, if he did not agree with the contents of instruction, never told his superiors. He never told his superiors that he was against the human rights abuses committed by some of his students nor did he refuse promotions when the promotion came along. He testified that he was promoted because there were not any complaints about his work.
He may have had a change of heart when UNTAC arrived in Cambodia in March 1992 when he learned about human rights but it does not exonerate his role in the police force, part of national security for over ten years.
He may not have been there when these human rights abuses were committed by his former students, however, based on the six factors identifying complicity noted above, the panel believes that he can be considered an accomplice with a shared common purpose of the national security of the government of Cambodia.

The conclusions are consistent with the principles Mr. Justice MacGuigan set out in Ramirez v. Canada, [1992] 2 F.C. 306 (F.C.A.) at 318, concerning the degree of complicity:

In my view, mere on-looking, such as occurs at public executions, where the on-lookers are simply by-standers with no intrinsic connection with the persecuting group, can never amount to personal involvement, however, humanly repugnant it might be. However, someone who is an associate of the principal offenders can never, in my view, be said to be a mere on-looker. Members of a participating group may be rightly considered to be personal and knowing participants, depending on the facts.
At bottom, complicity rests in such cases, I believe, on the existence of a shared common purpose and the knowledge that all of the parties in question may have of it.

Each case is decided on its own facts. The applicant relies heavily on Aden v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 625 (F.C.T.D.), where a senior administrative Somali official in the Barre regime was said to be "remote from the scene of persecutorial acts and ... from the councils of war where decisions resulting in persecutorial acts were taken." In Penate v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 79 (F.C.T.D.), a member of the Salvadorian army who taught counter-insurgency training and participated in combat missions against guerillas without personally injuring anyone with his own hands, was found to come within the scope of Article 1F(a).

The present case may well fall between Aden and Penate. In any event, I am satisfied that in reaching its conclusions concerning complicity and shared common purpose, even if another panel might have decided otherwise, the Tribunal committed no reviewable error of law or of fact.

For these reasons, this application for judicial review will be dismissed.

Neither counsel suggested a question for certification.

"Allan Lutfy"


Ottawa, Ontario

May 16, 1997


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