Judgments

[1994] 1 F.C. 298

A-746-91

Jose Rodolfo Moreno and Edith Francisca Parada Sanchez (Appellants)

v.

The Minister of Employment and Immigration (Respondent)

Indexed as: Moreno v. Canada (Minister of Employment and Immigration) (C.A.)

Court of Appeal, Mahoney, Robertson and McDonald JJ.A.—Toronto, June 4; Ottawa, September 2; Vancouver, September 14, 1993.

Citizenship and Immigration — Status in Canada — Convention refugees — Appeal from rejection of refugee claims based on exclusion clause in United Nations Convention — Board having “serious reasons for considering” male appellant, forcibly recruited into Salvadoran army at sixteen, committed crimes against humanity during military service — Degree of complicity, standard of proof at issue — Acts or omissions amounting to passive acquiescence not sufficient basis for invoking exclusion clause — Requisite element of mens rea lacking — Board also erred in dealing with female appellant’s claim by failing to determine whether male appellant Convention refugee but for crimes against humanity.

This was an appeal from the rejection by the Immigration and Refugee Board of the appellants’ refugee claims based on the application of the exclusion clause contained in the United Nations Convention Relating to the Status of Refugees. In early 1988, while serving in the Salvadoran army, into which he had been forcibly recruited at age sixteen, the appellant was ordered on one occasion to guard a prisoner who had been taken for questioning; he observed acts of torture during the interrogation but did not intervene because he thought he would be killed if he did. Soon after, he deserted the army and fled El Salvador. In applying the exclusion clause, the Board found that there were “serious reasons for considering” that the appellant had committed crimes against humanity during the four months he served in the Salvadoran army. According to the Board, the evidence was overwhelming that the appellant was actively engaged in the killing of civilians and in military activities not permissible by international law. The Court had to deal with the following issues: whether the Board erred in law 1) by failing to adopt a narrow construction of the exclusion clause; 2) by failing to apply the proper standard of proof; 3) by making erroneous findings of fact and credibility; 4) by determining that the male appellant’s acts or omissions amounted to a crime against humanity; 5) by failing to determine the male appellant’s eligibility under the inclusion clause and 6) by applying the exclusion clause to the refugee claim of the female appellant.

Held, the appeal should be allowed.

1) All of the leading commentators and the UNHCR Handbook are in favour of a narrow construction of the exclusion clause in view of the possible persecution awaiting persons who might otherwise be declared Convention refugees. The application of the exclusion clause should be approached by reference to Federal Court case law and to the clear intent of the signatories to the Convention. Where there is an unresolved ambiguity or issue, the construction most agreeable to justice and reason must prevail.

2) The applicability of the exclusion clause does not depend on whether a claimant has been charged or convicted of the acts set out in the Convention. The Minister’s burden is merely to meet the standard of proof embraced by the term “serious reasons for considering”. The “less-than-civil-law” standard, referred to by this Court in Ramirez v. Canada (Minister of Employment and Immigration), is one 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); that standard is consistent with the intent of the signatories to the Convention who were adamant that international protection be unavailable to war criminals. The requisite standard of proof comes into legal play only when the tribunal is called on to make determinations which can be classified as questions of fact. The “less-than-civil-law” standard is irrelevant when the issue being addressed is essentially a question of law. For instance, it is a question of fact whether the appellant or members of his platoon killed civilians, or whether the appellant stood guard during the torture of a prisoner. But whether the act of killing civilians by military personnel can be classified as a crime against humanity is a question of law which must be decided in accordance with legal principles rather than by reference to a standard of proof.

3) Where the credibility of the claimant is in issue, the Board is under an obligation to give reasons, in clear and unmistakable terms, in support of its finding. In the instant case, the credibility of the appellant was not doubted except for three instances where the Board found inconsistencies or contradictions. Evidence concerning the appellant’s well-founded fear of persecution with respect to the inconsistencies identified by the Board was inconclusive. There was no other evidence than the personal information form (PIF) to substantiate the Board’s determination that the appellant was involved, either directly or indirectly, in the killing of civilians. Little or no weight could be given to the PIF in regard to the appellant’s participation in what could otherwise be clearly recognized as acts amounting to crimes against humanity. The PIF standing by itself did not meet the “serious reasons for considering” standard. All of the appellant’s evidence was internally consistent. His testimony did not, by any stretch of the imagination, render it “pellucidly clear” that either himself or his platoon was involved in the killing of civilians during the twenty-day period. Nor could it be said that the evidence was “overwhelming”.

4) Mere membership in an organization involved in international offences is not sufficient basis on which to invoke the exclusion clause. Therefore, the appellant’s membership in a military organization responsible for inhumane acts against members of the civilian population was not, in and of itself, sufficient justification for invoking the exclusion clause. In other words, the appellant could not be found “guilty by association”. The question whether the appellant’s participation as a guard in the torture of a prisoner was a sufficient basis to deem him an “accomplice” and therefore subject to the application of the exclusion clause is premised upon the understanding that an “accomplice” is as culpable as the “principal”. The appellant’s acts or omissions would not be sufficient to attract criminal liability as a matter of law. He did not possess any prior knowledge of the acts of torture to be perpetrated. Nor could it be said that he rendered any direct assistance or encouraged his superior officers in the commission of an international crime. Acts or omissions amounting to passive acquiescence are not a sufficient basis for invoking the exclusion clause. Personal involvement in persecutorial acts must be established. A person forcibly conscripted into the military, and who on one occasion witnessed the torture of a prisoner while on assigned guard duty, cannot be considered at law to have committed a crime against humanity. There was no evidence supporting the existence of a shared common purpose as between “principal” and “accomplice”. The evidence did establish that the appellant disassociated himself from the actual perpetrators by deserting the army within a relatively short period after his forceable enlistment. His presence at the scene of the crime was tantamount to an act of passive acquiescence. The requisite element of mens rea was lacking. There was no legal basis on which to rest the application of the exclusion clause.

5) There are three reasons why the Board should have made a determination with respect to the appellant’s refugee claim notwithstanding its decision to apply the exclusion clause. First, as a practical matter, it is extremely difficult to separate the grounds on which a claimant bases his or her refugee claim from the circumstances which might give rise to the application of the exclusion clause. Second, in the event that the Board erred with respect to the application of the exclusion clause but also ruled on the application of the inclusion clause, it may be unnecessary to refer the matter back to the Board. Third, it may well be that, in cases of spousal and dependent refugee claims, the Board will be legally obligated to rule on the refugee claim irrespective of the applicability of the exclusion clause.

6) The Board erred in law in concluding that, as the female appellant’s claim was made dependent on that of her husband, it too should fail as a result of the application of the exclusion clause. Had the Board determined that the male appellant would have been declared a Convention refugee but for the exclusion clause and had it been correct in so determining, there would have been no legal justification for denying the female appellant’s claim. The issue of whether there are “serious reasons for considering” that a claimant has committed crimes against humanity has no bearing on the refugee claim of a spouse and dependants who have neither directly nor indirectly participated in such crimes. The Board erred in law by failing to determine whether, for the purpose of evaluating the female appellant’s dependant refugee claim, the male appellant would have been declared a Convention refugee.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 11(d).

Criminal Code, R.S.C. 1970, c. C-34.

Immigration Act, R.S.C. 1970, c. I-2, s. 5(l).

Immigration Act, R.S.C., 1985, c. I-2, s. 2(1) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1).

United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1 (F).

CASES JUDICIALLY CONSIDERED

FOLLOWED:

Dunlop and Sylvester v. The Queen, [1979] 2 S.C.R. 881; (1979), 27 N.R. 153; R. v. Vaillancourt, [1987] 2 S.C.R. 636; (1987), 68 Nfld & P.E.I.R. 281; 47 D.L.R. (4th) 399; 209 A.P.R. 281; 39 C.C.C. (3d) 118; 60 C.R. (3d) 289; 32 C.R.R. 18; 81 N.R. 115; 10 Q.A.C. 161.

APPLIED:

Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306; (1992), 89 D.L.R. (4th) 173; 135 N.R. 390 (C.A.) (as to degree of complicity and standard of proof); McMullen v. I.N.S., 788 F.2d 591 (9th Cir. 1986).

DISTINGUISHED:

Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306; (1992), 89 D.L.R. (4th) 173; 135 N.R. 390 (C.A.) (as to facts relevant to the appellant’s refugee claim).

CONSIDERED:

Attorney General of Canada v. Jolly, [1975] F.C. 216; (1975), 54 D.L.R. (3d) 277; 7 N.R. 271 (C.A.).

REFERRED TO:

Canada (Minister of Employment and Immigration) v. Mehmet, [1992] 2 F.C. 598 (C.A.); Re K. (Y.P.), [1991] C.R.D.D. No. 672 (Q.L.) (also referred to as Sivakumar v. M.E.I.); Fedorenko v. United States, 449 U.S. 490 (1981); Ababio v. Canada (Minister of Employment & Immigration) (1988), 5 Imm. L.R. (2d) 174; 90 N.R. 28 (F.C.A.); Rahman v. Canada (Minister of Employment & Immigration) (1989), 8 Imm. L.R. (2d) 170 (F.C.A.); Armson v. Canada (Minister of Employment & Immigration) (1989), 9 Imm. L.R. (2d) 150; 101 N.R. 372 (F.C.A.); Sebaratnam v. Canada (Minister of Employment & Immigration) (1991), 13 Imm. L.R. (2d) 264; 131 N.R. 158 (F.C.A.); Hilo v. Canada (Minister of Employment& Immigration) (1991), 15 Imm. L.R. (2d) 199; 130 N.R. 236 (F.C.A.); Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; (1993), 103 D.L.R. (4th) 1; 153 N.R. 321; Musial v. Minister of Employment and Immigration, [1982] 1 F.C. 290; (1981), 38 N.R. 55 (C.A.); Padilla v. Canada (Minister of Employment & Immigration) (1991), 13 Imm. L.R. (2d) 1 (F.C.A.); Zolfagharkhani v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 540 (C.A.); Laipenieks v. I.N.S., 750 F. 2d 1427 (9th Cir. 1985); Naredo and Arduengo v. Minister of Employment and Immigration (1990), 37 F.T.R. 161; 11 Imm. L.R. (2d) 92 (F.C.T.D.); Cruz v. Canada (Minister of Employment& Immigration) (1989), 10 Imm. L.R. (2d) 47 (I.A.B.); Unnamed v. M.E.I., T89-00198, decision dated 11/7/89, I.R.B. (Ref. Div.), not reported; Astudillo v. Minister of Employment and Immigration (1979), 31 N.R. 121 (F.C.A.); Djama v. Canada (Minister of Employment and Immigration), A-738-90, Marceau J.A., judgment dated 5/6/92, F.C.A., not yet reported; Gonzalez v. Canada (Minister of Employment & Immigration) (1991), 14 Imm. L.R. (2d) 51; 129 N.R. 396 (F.C.A.); Velose, 79-1017, decision dated 24/8/79, I.A.B., not reported; Caballero v. Canada (Minister of Employment and Immigration), A -266 -91, Marceau, Desjardins and Létourneau JJ.A., judgment dated 13/5/93, F.C.A., not yet reported; Giraud v. Canada (Minister of Employment and Immigration), A -1080 -82, decision dated 10/11/82, F.C.A., no reasons rendered.

AUTHORS CITED

Bassiouni, M. Cherif. Crimes Against Humanity in International Criminal Law. Dordrecht: Martinus Nijhoff, 1992.

Goodwin-Gill, Guy S. The Refugee in International Law. Oxford: Clarendon Press, 1983.

Hathaway, James C. The Law of Refugee Status. Toronto: Butterworths, 1991.

Jaffe, Louis L. Judicial Control of Administrative Action. Boston: Little, Brown and Co., 1965.

Salmond on Jurisprudence, 12th ed. by P.J. Fitzgerald. London: Sweet& Maxwell, 1966.

United Nations High Commissioner for Refugees Legal Project in Canada, Paper 5.

United Nations. Office of the United Nations High Commissioner for Refugees. Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. Geneva, January 1988.

Wade, H.W.R. Administrative Law, 6th ed. Oxford: Clarendon Press, 1988.

Waldman, Lorne. Immigration Law and Practice. Toronto: Butterworths, 1992.

APPEAL from a decision of the Immigration and Refugee Board ([1991] C.R.D.D. No. 783 (Q.L.)) rejecting the appellants’ refugee claims because of the applicability of the exclusion clause contained in the United Nations Convention Relating to the Status of Refugees. Appeal allowed.

COUNSEL:

Barbara L. Jackman for appellants.

Claire A. Le Riche for respondent.

SOLICITORS:

Hoppe, Jackman, Toronto, for appellants.

Deputy Attorney General of Canada for respondent.

The following are the reasons for judgment rendered in English by

Robertson J.A.: This appeal is from a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the “Board”) [[1991] C.R.D.D. No. 783 (Q.L.)] rejecting the refugee claims of the appellants, citizens of El Salvador, because of the applicability of the exclusion clause appended to the definition of “Convention refugee”. That definition is set out in subsection 2(1) of the Immigration Act, R.S.C., 1985, c. I-2, as amended R.S.C., 1985 (4th Supp.), c. 28, s. 1, (the “Act”) and reads as follows:

2. …

“Convention refugee” means any person who

(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,

(i) is outside the country of the person’s nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or

(ii) not having a country of nationality, is outside the country of the person’s former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and

(b) has not ceased to be a Convention refugee by virtue of subsection (2),

but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act; [Emphasis added.]

The relevant part of section F of Article 1 of the Convention [United Nations Convention Relating to the Status of Refugees, July 28, 1951 [1969] Can. T.S. No. 6] 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; [Emphasis added.]

The application of the exclusion clause was premised on the Board’s finding that there were “serious reasons for considering” that Mr. Moreno (the “appellant”) had committed crimes against humanity during the four months he served in the Salvadoran army. The degree of complicity and the standard of proof which would justify the exclusion of those who might otherwise be declared Convention refugees are matters of fundamental significance to this appeal.

FACTS

In early January, 1988, the appellant, having just completed grade nine, was forcibly recruited into the Salvadoran army. He was sixteen years old. The appellant spent three of his four months of service immersed in the army’s training program. Throughout this training period he was regularly assigned to general guard duty. On one such occasion, he was required to stand watch outside of a prisoner’s cell—a cell to which the appellant had not been given a key. Near the end of his watch, two armed lieutenants arrived and began to interrogate the prisoner. The prisoner’s failure to provide suitable responses to questions posed by his interrogators resulted in acts of torture. The prisoner’s fingertips were sliced, portions of his ears were removed and his cheek slashed. The appellant witnessed these acts but rendered no assistance. The appellant testified that he believed he would have been killed had he done so. He learned from other recruits that the prisoner had been taken away later that night and killed.

Following the expiration of the three-month training period, the appellant went home on a two-day leave of absence. Upon his return to military service, he participated in five armed confrontations with guerrilla forces over a twenty-day period. It is common ground that, as part of their military training, recruits pledge their willingness to kill all guerrillas, as well as civilians believed to be guerrilla supporters. The appellant testified that a failure to respond accordingly would have resulted in his death.

Immediately following the military campaign against guerrilla forces, the appellant was granted a three-day leave. He returned home to find that money which he had requested from his siblings in the United States had arrived. On the next day, May 5, 1988, the appellant deserted the army and together with his pregnant wife fled El Salvador. He was then seventeen years old.

The appellant challenges the remaining findings relevant to this appeal. The Board found two inconsistencies in the appellant’s testimony concerning the timing of his decision to desert the army and his reasons for doing so. The Board also concluded that during the confrontations with guerrilla forces the appellant, either alone or in concert with members of his platoon, participated in the killing of civilians. These matters are dealt with below.

THE BOARD’S DECISION

The Board condemned the appellant’s failure to assist the prisoner in the following terms (Appeal Book, at page 242):

He showed no mercy to those whose misfortune it was to be captured. He stood in silence and witnessed the horrors of torture being administered to prisoners who were shot after their interrogation had ended.

This determination, together with the finding that the appellant had either killed or participated in the killing of civilians, led the Board to conclude that the appellant is a person to whom the definition of Convention refugee does not apply (Appeal Book, at page 240):

Although the claimant attempted to deny his participation in atrocities against civilians, it is pellucidly clear from his testimony … that he was actively engaged in the killing of civilians …

And at page 242:

The evidence is overwhelming that the claimant participated in military activities not permissible by international law.

The Board made no express finding as to whether the appellant would have been declared a Convention refugee were it not for the application of the exclusion clause. It did conclude, however, that it was unnecessary for it to balance the nature of the crimes against humanity committed by the appellant against the fate that awaited him and his spouse if returned to El Salvador. Its reasoning on this point is succinct (Appeal Book, at page 241):

There is no discretionary power conferred on the Refugee Division to weigh the nature of the offence under consideration with the fate of the claimant, however grave, should he return to his country.

With respect to the refugee claim of the appellant’s spouse, Ms. Sanchez (the “female appellant”), the Board noted that she had not advanced any grounds of persecution independent of those advanced by her spouse. Accordingly, it reasoned that the exclusion clause also applied to her refugee claim. As the arguments underscoring her appeal did not mirror those of her spouse, they will be considered separately.

ISSUES

Thirteen issues were raised in written submissions. Virtually all were thoroughly canvassed by counsel during the two-day hearing. The following, in my view, represent those salient to the disposition of this appeal.

(A)       Did the Board err in law by failing to adopt a narrow construction of the exclusion clause?

The thrust of the appellant’s argument is that the Board, and this Court, should construe narrowly the exclusion clause in view of the possible persecution awaiting persons who might otherwise be declared Convention refugees. I recognize that this view is echoed by all of the leading commentators and reinforced in the UNHCR Handbook; see Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, January 1988) paragraph 149, page 35; G. S. Goodwin-Gill, The Refugee in International Law, Oxford: Clarendon Press, 1983, pages 61-62 (referred to in Canada (Minister of Employment and Immigration) v. Mehmet, [1992] 2 F.C. 598 (C.A.), per Marceau J.A., at pages 607-608); Lorne Waldman, Immigration Law and Practice, Toronto: Butterworths, 1992, at page 8.108; James C. Hathaway, The Law of Refugee Status, Toronto: Butterworths, 1991, pages 214-217; see also UNHCR Legal Project in Canada, Paper 5, paragraph 16, page 4.

As persuasive as the commentaries may be, I am bound to approach the application of the exclusion clause, first, by reference to the existing jurisprudence of this Court and, second, by reference to the clear intent of the signatories to the Convention. Where, however, there is an unresolved ambiguity or issue, the construction most agreeable to justice and reason must prevail.

(B)       Did the Board err in law by failing to apply the proper standard of proof?

The appellants argue that the Board erred by “failing to apply a standard of proof appropriate to the gravity of the consequences of the allegations of criminal conduct.” In effect, the appellants have extended an indirect invitation to revisit a decision of this Court which they believe establishes a standard of proof antagonistic to the interests of refugee claimants confronted with the possible application of the exclusion clause. Our task is to set out that standard, determine the extent to which it is relevant to the appeal at hand and apply it accordingly.

It is universally accepted that the applicability of the exclusion clause does not depend on whether a claimant has been charged or convicted of the acts set out in the Convention. The Minister’s burden is merely to meet the standard of proof embraced by the term “serious reasons for considering”. In Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.), this Court canvassed this aspect of refugee law and concluded that the standard was one 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”). Writing on behalf of the Court, MacGuigan J.A. reasoned (at pages 311-314):

The words “serious reasons for considering” also, I believe, must be taken, as was contended by the respondent, to establish a lower standard of proof than the balance of probabilities. The respondent indeed argued that “serious reasons for considering” should have the same meaning as the phrase “reasonable grounds to believe,” which is used again and again in section 19 of the Act with respect to inadmissible classes of persons. The most closely related class is that described in paragraph 19(1)(j) [as enacted by R.S.C., 1985 (3rd Supp.), c. 30, s. 3], which applies generally to all immigration claimants:

19. (1) No person shall be granted admission who is a member of any of the following classes:

…

(j) persons who there are reasonable grounds to believe have committed an act or omission outside Canada that constituted a war crime or a crime against humanity….

The same result is provided for by paragraphs 27(1)(g) and (h) for persons who are already permanent residents, and by subparagraph 46.01(1)(d)(i) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14] for persons who claim to be Convention refugees: both of these latter provisions merely refer to persons described in paragraph 19(1)(j), and so incorporate the notion of “reasonable grounds to believe.”

While I see no great difference between the phrases “serious reasons for considering” and “reasonable grounds to believe,” I find no necessity exactly to equate the one with the other, although I believe both require less than the balance of probabilities. “Serious reasons for considering” is the Convention phrase and is intelligible on its own. Nevertheless, the comparison with paragraph 19(1)(j) shows that Parliament was prepared to contemplate a standard lower than the usual civil standard in this kind of case. Moreover, it also leads me to think that it would be extremely awkward to place one standard at the ordinary civil level, and another, for what is essentially the same thing, at a lower level.

Therefore, although the appellant relied on several international authorities which emphasize that the interpretation of the exclusion clause must be restrictive, it would nevertheless appear that, in the aftermath of Second World War atrocities, the signatory states of this 1951 Convention intended to preserve for themselves a wide power of exclusion from refugee status where perpetrators of international crimes are concerned.

…

For all of these reasons, the Canadian approach requires that the burden of proof be on the Government, as well as being on a basis of less than the balance of probabilities.

The “less-than-civil-law” standard referred to in Ramirez is consistent with the intent of the signatories to the Convention who were adamant that international protection be unavailable to war criminals; see generally Hathaway, supra, at pages 214-217. However, it may well be that in strict legal theory the exclusion clause should be construed as erecting a threshold test to be met by the Minister rather than prescribing a standard of proof per se. This view was advanced in Attorney General of Canada v. Jolly, [1975] F.C. 216 (C.A.), an earlier decision of this Court, which considered an analogous provision of the Immigration Act then in force.

In Jolly, the respondent sought judicial review of a deportation order issued by the Immigration Appeal Board pursuant to paragraph 5(l) of the Immigration Act, R.S.C. 1970, c. I-2. That provision denied admission to persons who were members of organizations which the Minister had “reasonable grounds for believing” were “subversive”.[1] The Board imposed upon the Minister the burden of proving that the Black Panther Party was a subversive organization. On appeal, this Court rejected the inference that paragraph 5(l) was intended to impose a standard of proof. At page 228, Thurlow J. [as he then was] concluded:

With respect, this, in my opinion, is misdirection. Subsection 5(l) does not prescribe a standard of proof but a test to be applied for determining admissibility of an alien to Canada, and the question to be decided was whether there were reasonable grounds for believing, etc., and not the fact itself of advocating subversion by force, etc. No doubt one way of showing that there are no reasonable grounds for believing a fact is to show that the fact itself does not exist. [Emphasis added.]

The Court’s analysis in Jolly is also instrumental in setting out the relationship between a standard of proof per se and the threshold test imposed by the Act. The legal discussion was induced by the Minister’s argument that the Board answered the wrong question. He argued that the Act only required “reasonable grounds for believing” that the Black Panther Party was a subversive organization. At pages 225-226, Thurlow J. stated:

This brings me to the appellant’s second submission, that the Board erred in answering the wrong question and not determining the question that is posed by subsection 5(l). It appears to me to be implicit in a finding that an organization in fact advocated subversion by force, etc., as the Special Inquiry Officer found, that there must be reasonable grounds for believing that it was such an organization. Conversely, a finding that, on the evidence before the Board, on balance of probabilities the Black Panther Party was not an organization that at the material times advocated subversion by force, etc., in my opinion, implies that on balance there are not reasonable grounds for believing the Party to have been such an organization. But where the fact to be ascertained on the evidence is whether there are reasonable grounds for such a belief, rather than the existence of the fact itself, it seems to me that to require proof of the fact itself and proceed to determine whether it has been established is to demand proof of a different fact from that required to be ascertained. It seems to me that the use by the statute of the expression “reasonable grounds for believing” implies that the fact itself need not be established and that evidence which falls short of proving the subversive character of the organization will be sufficient if it is enough to show reasonable grounds for believing that the organization is one that advocates subversion by force, etc. In a close case the failure to observe this distinction and to resolve the precise question dictated by the statutory wording can account for a difference in the result of an inquiry or an appeal.

Unfortunately, Mr. Justice Thurlow’s perceptive analysis loses much of its relevance when placed in the context of refugee claims involving the application of the exclusion clause. Rarely has the Board been required to balance the claimant’s evidence against that of the Minister as was required in Jolly. Typically, evidence of crimes against humanity comes from the oral and written testimony of the claimant.[2] Hence, the primary role of the Minister’s representative has been to conduct intensive adversarial cross-examinations of refugee claimants. It is only in this artificial sense that ministerial “evidence” is balanced against that of the claimant. For this reason, nothing possibly turns on whether the term “serious reasons for considering” is described as a “standard of proof” or a “threshold test”.

Strictly speaking, we are not concerned with establishing the innocence or guilt of the appellant. In this respect, Ramirez and Jolly are supportive of one another; both are ad idem that proof of a fact on a balance of probabilities is not required. However, not all exclusion clause issues can be resolved by reference to the “less-than-civil-law” standard.

In my opinion, the requisite standard of proof comes into legal play only when the tribunal is called on to make determinations which can be classified as questions of fact. The “less-than-civil-law” standard is irrelevant when the issue being addressed is essentially a question of law. For purposes of application of the exclusion clause, it is sufficient if I outline briefly the basis on which I distinguish the two and my reasons for doing so.

A finding of fact has been described as a determination that a phenomenon has happened, is, or will be happening independent of or anterior to any determination as to its legal effects; see L. L. Jaffe, Judicial Control of Administrative Action, Boston: Little, Brown and Company, 1965, at page 548. A question of law has been defined in many ways; see, for example, P. J. Fitzgerald, Salmond on Jurisprudence, 12th ed., London: Sweet & Maxwell, 1966, at page 10. Perhaps Professor Wade best describes the basis on which questions of law are readily distinguishable:

Questions of law must be distinguished from questions of fact, but this has been one of the situations where the rules have taken different forms under judicial manipulation.

…

The simpler and more logical doctrine has been recognised in many judgments. This is that matters of fact are the primary facts of the particular case which have to be established before the law can be applied, the facts which are observed by the witnesses and proved by testimony , to which should be added any facts of common knowledge of which the court will take notice without proof. Whether these facts, once established, satisfy some legal definition or requirement must be a question of law, for the question then is how to interpret and apply the law to those established facts. [See: Wade, Administrative Law, 6th ed. (Oxford: Clarendon Press, 1988), at pp. 938-939.]

Support for the proposition that the standard of proof outlined in Ramirez and Jolly is only relevant to questions of fact, as described by Professor Wade, may be found in McMullen v. I.N.S., 788 F.2d 591 (9th Cir. 1986). There, the issue for determination was whether there were “serious reasons for considering” that McMullen, a former member of the terrorist organization, Provisional Irish Republican Army (PIRA), had committed serious non-political crimes which rendered him subject to deportation. The Court stated (at page 599):

McMullen argues that there is no specific evidence linking him to any civilian-targeted terrorism by the PIRA, but only to arms shipments and the bombing of military installations, actions which he asserts are political crimes. We need not determine whether these admittedly violent acts are “political offenses,” because we find that the BIA’s conclusion that there were “serious reasons” to believe McMullen had participated in the unprotected, nonpolitical acts of violence aimed at civilians is supported by substantial evidence.

The BIA need not find as a matter of fact that McMullen was directly involved in the unprotected acts, either beyond a reasonable doubt or by a preponderance of the evidence. Rather, the statute requires the BIA to find only “serious reasons for considering that [he] has committed” such acts…. Article 1(F) of the Convention has identical language. This language requires only probable cause. Once the conduct is determined to be a serious non-political crime, the Convention requires only a finding of probable cause to believe the alien has committed the crime in order to find “serious reasons.” [Emphasis added.]

In my view, the standard of proof envisaged by the exclusion clause was intended to serve an evidential function in circumstances where it is necessary to weigh competing evidence. It must not be permitted to overstep its legislated objective. In the present context, the standard of proof becomes relevant only in respect of the following questions of fact.

It is a question of fact whether the appellant or members of his platoon killed civilians. The standard of proof to be applied is that embodied in the term “serious reasons for considering”. Similarly, it is a question of fact whether the appellant stood guard during the torture of a prisoner. As that fact is admitted, the requisite standard of proof has been satisfied. That standard, however, has no bearing on the following determinations.

It is a question of law whether the act of killing civilians by military personnel can be classified as a crime against humanity. It must be accepted that such acts satisfy the legal criteria found within the Act and the Convention.[3] It is also a question of law whether the appellant’s acts or omissions as a guard constitute a crime against humanity. That determination can only be made by reference to legal principles found in the existing jurisprudence dealing with “complicity”. Finally, it is a question of law whether membership in a military organization, such as the Salvadoran army, constitutes sufficient complicity to warrant application of the exclusion clause.

It seems clear that questions of law do not lend themselves to adjudication by reference to legal concepts embedded in probability theory. Yet there are other reasons for immunizing questions of law from the application of a standard of proof. It is true that the “less-than-civil-law” standard established in Ramirez reinforces the view that it was the intent of the Convention signatories to exclude persons undeserving of protection. But it is difficult to credit the intention of establishing a threshold standard of proof which virtually guarantees exclusion once the Minister demonstrates that there are “serious reasons for considering” that a claimant’s acts or omissions could be classified as a crime against humanity.

In my opinion, that is a question of law which must be decided in accordance with legal principles rather than by reference to a standard of proof. (Those legal principles will be applied to a series of facts established pursuant to the “less-than-civil-law” standard of proof, “serious reasons for considering”.) To hold otherwise would be tantamount to an egregious rewriting of the exclusion clause and may well lead to unfortunate and unjust refugee determinations. For example, prisoners of war who assisted the enemy in its persecution of other prisoners could be denied protection under international law should the “less-than-civil-law” standard be applied to what is essentially a question of law. The paradigmatic situation would involve the plight of “kapos” (Jewish prisoners) who supervised other prisoners at the Treblinka concentration camp; see Fedorenko v. United States, 449 U.S. 490 (1981), at pages 534-535. I take it that in such cases the “less-than-civil-law” standard contemplated in Ramirez would be deemed inapplicable as would the exclusion clause itself.

(C)       Did the tribunal err by making erroneous findings of fact and credibility?

Counsel for the appellants argued “that the Board erred in law by failing to make specific findings of credibility and to give adequate reasons in support thereof.” This Court has repeatedly held that if the credibility of the claimant is in issue, the Board is under an obligation to give reasons, in clear and unmistakable terms, in support of its finding; see Ababio v. Canada (Minister of Employment & Immigration) (1988), 5 Imm. L.R. (2d) 174 (F.C.A.); Rahman v. Canada (Minister of Employment & Immigration) (1989), 8 Imm. L.R. (2d) 170 (F.C.A.); Armson v. Canada (Minister of Employment & Immigration) (1989), 9 Imm. L.R. (2d) 150 (F.C.A.); Sebaratnam v. Canada (Minister of Employment & Immigration) (1991), 13 Imm. L.R. (2d) 264 (F.C.A.) and Hilo v. Canada (Minister of Employment & Immigration) (1991), 15 Imm. L.R. (2d) 199 (F.C.A.). In the instant case, the Board did not rule on the claimants’ credibility per se. It did, however, make reference to three instances where it found inconsistencies or contradictions.[4] In all other respects the credibility of the appellant was not doubted.

As noted earlier, two of the credibility determinations were based on perceived inconsistencies involving the date on which the appellant first decided to desert the army and his reasons for doing so. The relevant portions of the Board’s decision are (Appeal Book, at pages 239 and 242 respectively):

In answer to counsel for the Minister, the claimant said he had decided to desert the army on May 5, 1988. He admitted saying to the Canadian Immigration Official who interviewed him on March 6, 1990 that he had left the army to see his first child born.

…

Although [the claimant] stated that while on his first pass he had decided to desert the army, he also testified that it was on May 5, 1988 when he left El Salvador that he intended to desert the army. We believe the latter testimony.

Whether or not the record supports the perceived inconsistencies identified by the Board is, in my opinion, an issue which we need not address. It was agreed at the outset of this appeal that this Court would not be asked to make a refugee determination. While the appellant’s reasons for forsaking the military, and the timing of that decision, are critical to his refugee claim, they are not relevant to the determination regarding the applicability of the exclusion clause.[5] In any event, evidence concerning the appellant’s well-founded fear of persecution with respect to the inconsistencies identified by the Board is inconclusive. From the appeal record, it is apparent that both parties and the Board were preoccupied with the application of the exclusion clause and the reasons underlying the appellants’ decision to come to Canada rather than residing in the United States.

The appellant’s credibility was also doubted in respect of his testimony in which he denied participating in the killing of civilians. This finding illuminates the uneasy relationship between determinations of credibility and the requisite standard of proof. This problem is particularly acute since, as noted earlier, the Board is in the equivocal position of relying upon the appellant’s testimony for evidence supporting both inclusion and exclusion.

The immediate question is whether the following finding by the Board is supported by the evidence to the extent that there are “serious reasons for considering” that the appellant in fact participated in such acts (Appeal Book, at page 240):

Although the claimant attempted to deny his participation in atrocities against civilians, it is pellucidly clear from his testimony without reference to the above quotation in his PIF, that he was actively engaged in the killing of civilians who were captured or was acting in concert with his comrades who were doing so. [Emphasis added.]

The quotation in the personal information form (PIF) referred to by the Board as found in its reasons reads (Appeal Book, at pages 239-240):

During the operation we took villages that used to be occupied by guerillas. All those who remained, including old men and young children, were suspected of being guerillas and many were killed for this reason alone. We received orders to kill everyone.

Notwithstanding the Board’s assertion that it ignored the evidence presented in the PIF, it is on the basis of the above statement, and that statement alone, that the Board must have taken the position that the appellant was involved, either directly or indirectly, in the killing of civilians. In my view, and as will be explained below, there is simply no other evidence to substantiate that determination. First, I shall deal with the significance of the PIF.

The PIF represents an English translation of a narrative drafted by counsel after an interview conducted in Spanish. The imprecision which often accompanies the translation of oral testimony dictates that caution should be exercised when drawing negative inferences of any sort. In the instant case, the above statement is but a portion of a single paragraph of the appellant’s PIF which attempts to chronicle the details of the appellant’s military service and the moral precepts of the Salvadoran army all within the space of a folio. The full paragraph reads as follows (Appeal Book, at page 116):

In January 1988, before I was able to get enough money together to leave El Salvador I was forcibly recruited by the Salvadoran Army. I received three months of training and then obtained a 2-day pass. My wife and my parents were still trying to gather the money to enable us to leave. When I returned to the army I saw actual combat against the guerrillas. The operation lasted approximately twenty days and there were about five confrontations with the guerrillas. During the operation we took villages that used to be occupied by guerrillas. All those who remained, including old men and young children, were suspected of being guerrillas and many were killed for this reason alone. We received orders to kill everyone. My friends often spoke about their assignments which included taking suspected guerrillas from their homes for questioning. On one occasion I was ordered to guard a man who had been taken for questioning. I watched while he was tortured.

Simply stated, little or no weight can be given to the PIF in regard to the appellant’s participation in what can otherwise be clearly recognized as acts amounting to crimes against humanity. At the very least, any perceived ambiguity cries out for clarification. In my view, the PIF standing by itself does not meet the “serious reasons for considering” standard. Hence, we are left with any oral testimony which could have reasonably led the Board to conclude, or reinforced the Board’s belief, that there are “serious reasons for considering” that the appellant participated in crimes against humanity.

Unlike the Board, we have the advantage of reviewing the entire transcript of the proceedings, the relevant portions of which are set out below (Appeal Book, Vol. l, page 38):

counsel    Now did you encounter civilians during any of those five confrontations?

claimant   No.

counsel    No?

claimant   Civilians or guerrilla civilians but dead.

counsel  But in terms of the confrontation itself whom you were fighting, you’re talking about armed men or are they …

claimant   Yes.

counsel  Now during those confrontations were you aware whether any civilians were killed as a result of the confrontation?

claimant   I wasn’t present in any one of them.

counsel    In any one of what?

claimant   Of the civilian dead.

counsel    Did you ever knowingly shoot a civilian during those encounters?

claimant   No. Never.

counsel  Now you mentioned that you saw dead civilians. Could you tell us, was this on the occasion of the confrontations or other occasions when you were on the mountain?

claimant  In that occasion it was not, it had not been done by my group but by the other groups.

On cross-examination by the Minister’s representative, the claimant testified (Appeal Book, Vol. l, page 58):

claimant  Yes we received instructions or orders from Majors that we were to kill anyone. Because if they go with the guerrillas they are guerrillas themselves.

min. rep.    And so did you kill these old men and children?

claimant  The platoon in which I was did not do it. Another platoon had done it. Another one I was in.

maraj        Why did you not state that in your Personal Information Form?

claimant   I didn’t kill anybody.

min. rep.  That you say you know of. You said you fired your gun and you don’t know whose bullet killed whom.

claimant   I shot my gun I admit it. But I never killed any civilian guerrilla.

The foregoing excerpts constitute the entire testimony directly relevant to this particular issue.[6] All of the appellant’s evidence is internally consistent. In my opinion, the testimony does not, by any stretch of the imagination, render it “pellucidly clear” that either the appellant or his platoon was involved in the killing of civilians during the twenty-day period. Nor can it be confidently said, as the Board did, that the evidence was “overwhelming”.

Leaving aside the credibility issue[7] and tracking the language of the Act, the evidence falls significantly short of establishing that there are “serious reasons for considering” that the appellant or members of his platoon participated in the killing of civilians. Had the appellant been a long-term member of a military unit well known for its inhumane treatment of civilians, then it might have been open to the Board to reach the conclusion that it did. But in the given circumstances, the most that can be said is that the appellant was a member of a military regime engaged in the commission of crimes against humanity. In these circumstances, the culpability of the appellant can arise only by association.

Such an error is sufficient reason for setting aside the Board’s decision and remitting the matter back for redetermination. In this instance, however, the panel rehearing the claim would be left with the task of determining whether the appellant’s acts and omissions surrounding the guarding of a prisoner, together with his membership in a group whose code of conduct embraces the killing of civilians, is sufficient justification for invoking the exclusion clause. Though the Board did not comment on the matter of “membership”, it did find that the appellant’s complicity in the torture of a prisoner constituted a crime against humanity. Accordingly, the remaining issues must be addressed.

(D)       Did the Board err in law by determining that the male appellant’s acts or omissions amounted to a crime against humanity?

The success of this appeal now hinges on the resolution of two questions. First, is the appellant’s membership in a military organization responsible for inhumane acts against members of the civilian population, in and of itself, sufficient justification for invoking the exclusion clause? In other words, is the appellant “guilty by association”? The second question is more particularized. Is the appellant’s participation as a guard in the torture of a prisoner a sufficient basis to deem him an “accomplice” and therefore subject to the application of the exclusion clause? The question is premised upon the understanding that an “accomplice” is as culpable as the “principal”—the one who pulls the trigger. The alternative is to classify the appellant an “innocent by-stander”. I shall deal with the questions in the order posed.

1)         Guilt By Association

It is well settled that mere membership in an organization involved in international offences is not sufficient basis on which to invoke the exclusion clause; see Ramirez, at page 317, and Laipenieks v. I.N.S., 750 F. 2d 1427 (9th Cir. 1985), at page 1431. An exception to this general rule arises where the organization is one whose very existence is premised on achieving political or social ends by any means deemed necessary. Membership in a secret police force may be deemed sufficient grounds for invoking the exclusion clause; see Naredo and Arduengo v. Minister of Employment and Immigration (1990), 37 F.T.R. 161 (F.C.T.D.), but see Ramirez at pages 318 et seq. Membership in a military organization involved in armed conflict with guerrilla forces comes within the ambit of the general rule and not the exception.

2)         Accomplice v. Innocent By-stander

In addressing the second question (participation as a guard), it is helpful to outline the basic principles which inform the criminal law of Canada. While I do not suggest that the task of the Board is to arrive at a conclusion which is fully supported by the application of criminal law principles, direction may be taken from the words of Mr. Justice Dickson (as he then was) writing for a majority of the Court in Dunlop and Sylvester v. The Queen, [1979] 2 S.C.R. 881, in which he considered the offence of aiding and abetting (at pages 891 and 896):

Mere presence at the scene of a crime is not sufficient to ground culpability. Something more is needed: encouragement of the principal offender; an act which facilitates the commission of the offence, such as keeping watch on enticing the victim away, or an act which tends to prevent or hinder interference with accomplishment of the criminal act, such as preventing the intended victim from escaping or being ready to assist the prime culprit.

…

… I have great difficulty in finding any evidence of anything more than mere presence and passive acquiescence. Presence at the commission of an offence can be evidence of aiding and abetting if accompanied by other factors, such as prior knowledge of the principal offender’s intention to commit the offence or attendance for the purpose of encouragement. There was no evidence that while the crime was being committed either of the accused rendered aid, assistance, or encouragement to the rape…. There was no evidence of any positive act or omission to facilitate the unlawful purpose.

While mere presence at the scene of a crime (torture) is not sufficient to invoke the exclusion clause, the act of keeping watch with a view to preventing the intended victim from escaping may well attract criminal liability. In the instant case, however, the appellant could not have assisted in the prisoner’s escape because he was never in possession of a key to the cell. In any event, a determination of the appellant’s complicity should not hinge on possession of a key. In a similar vein, it remains to be determined whether the appellant should have attempted to prevent his superior officers from continuing with their acts of torture, as was inferred by the Board. The incisive reasoning of MacGuigan J.A. in Ramirez disposes readily of this argument (at pages 319-320):

One must be particularly careful not to condemn automatically everyone engaged in conflict under conditions of war. Probably most combatants in most wars in human history have seen acts performed by their own side which they would normally find reprehensible but which they felt utterly powerless to stop, at least without serious risk to themselves. While the law may require a choice on the part of those ordered actually to perform international crimes, it does not demand the immediate benevolent intervention, at their own risk, of all those present at the site. Usually, law does not function at the level of heroism.

Applying the criteria set out by Mr. Justice Dickson in Dunlop and Sylvester v. The Queen to the facts of the present appeal, I am driven to the conclusion that the appellant’s acts or omissions would not be sufficient to attract criminal liability as a matter of law. The appellant did not possess any prior knowledge of the acts of torture to be perpetrated. Nor can it be said that the appellant rendered any direct assistance or encouraged his superior officers in the commission of an international crime. My opinion is fortified by the Supreme Court’s decision to strike down the constructive murder provisions of the Criminal Code [R.S.C. 1970, c. C-34] in R. v. Vaillancourt, [1987] 2 S.C.R. 636, for Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] violation of section 7 (life, liberty and security of the person) and 11(d) (presumption of innocence).

The complicity of the appellant cannot be decided on the basis of criminal law provisions alone. As was stated in Ramirez (at page 315), “[a]n international convention cannot be read in the light of only one of the world’s legal systems.” I turn now to principles of refugee law which, not surprisingly, overlap those of criminal law.

It is settled law that acts or omissions amounting to passive acquiescence are not a sufficient basis for invoking the exclusion clause. Personal involvement in persecutorial acts must be established. In this regard the reasoning in Ramirez is both binding and compelling (at page 318):

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.

At page 320, MacGuigan J.A. concluded:

In my view, it is undesirable to go beyond the criterion of personal and knowing participation in persecutorial acts in establishing a general principle. The rest should be decided in relation to the particular facts.

Applying the above reasoning, we must determine whether the appellant’s conduct satisfies the criterion of “personal and knowing participation in persecutorial acts”. Equally important, however, is the fact that complicity rests on the existence of a shared common purpose as between “principal” and “accomplice”. In other words, mens rea remains an essential element of the crime. In my opinion, a person forcibly conscripted into the military, and who on one occasion witnessed the torture of a prisoner while on assigned guard duty, cannot be considered at law to have committed a crime against humanity.

On a superficial level, it could be maintained that the appellant knowingly assisted or otherwise participated in a persecutorial act. What is absent from that analysis is any evidence supporting the existence of a shared common purpose. However, the evidence does establish that the appellant disassociated himself from the actual perpetrators by deserting the army within a relatively short period after his forcible enlistment. In the circumstances, the appellant’s presence at the scene of a crime is tantamount to an act of passive acquiescence. Accordingly, there is no legal basis on which to rest the application of the exclusion clause.

In reaching this conclusion, I am influenced by one commentator’s view that the closer a person is involved in the decision-making process and the less he or she does to thwart the commission of inhumane acts, the more likely criminal responsibility will attach; see M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law, Dordrecht: Martinus Nijhoff Publishers, 1992, at page 343. Of course, the further one is distanced from the decision makers, assuming that one is not a “principal”, then it is less likely that the required degree of complicity necessary to attract criminal sanctions, or the application of the exclusion clause, will be met. I take it for granted that 16-year-old foot soldiers will not be accorded the same legal treatment as those who command the war.

In reaching the conclusion that the acts of the appellant fail to meet the threshold established in Ramirez, I do not find it necessary to resort to the absolute defences often raised to absolve a claimant of culpability (e.g. duress). In my view, the requisite element of mens rea is simply lacking. As MacGuigan J.A. stated [at page 320], once the criterion of personal and knowing participation is accepted, “[t]he rest should be decided in relation to the particular facts.” The facts in Ramirez are materially different from those relevant to the appellant’s refugee claim.

Mr. Ramirez was seventeen when he enlisted in the Salvadoran army. Unlike the appellant, he enlisted voluntarily for a period of two years and then re-enlisted for a further term. He deserted the army after 33 months of service, during which time he had been promoted through the ranks to sergeant. Moreover, he had participated in excess of 100 engagements and witnessed the torture and killing of as many prisoners (a fact described by the Court as a military way of life in El Salvador). In evaluating the applicability of the exclusion clause, MacGuigan J.A. held (at pages 326-327):

On a standard of “serious reasons for considering that … he has committed a crime against peace, a war crime, or a crime against humanity,” I cannot see the appellant’s case as even a borderline one. He was aware of a very large number of interrogations carried out by the military, on what may have been as much as a twice-weekly basis (following some 130-160 military engagements) during his 20 months of active service. He could never be classed as a simple on-looker, but was on all occasions a participating and knowing member of a military force, one of whose common objectives was the torture of prisoners to extract information. This was one of the things his army did, regularly and repeatedly, as he admitted. He was a part of the operation, even if he personally was in no sense a “cheering section.” In other words, his presence at this number of incidents of persecution, coupled with his sharing in the common purpose of the military forces, clearly constitutes complicity. We need not define, for purposes of this case, the moment at which complicity may be said to have been established, because this case is not to my mind near the borderline. The appellant was no innocent by-stander: he was an integral, albeit reluctant, part of the military enterprise that produced those terrible moments of collectively deliberate inhumanity.

To convict the appellant of criminal liability for his actions would, of course, require an entirely different level of proof, but on the basis of the lower-than-civil-law standard established by the nations of the world, and by Canadian law for the admission of refugees, where there is a question of international crimes, I have no doubt that no properly instructed tribunal could fail to come to the conclusion that the appellant had been personally and knowingly involved in persecutorial acts.

In Ramirez the Court was satisfied “beyond a reasonable doubt” that the claimant had been personally and knowingly involved in persecutorial acts. The fact that Mr. Ramirez underwent an ideological conversion and then fled both the army and his country were not acts which by themselves could absolve him of complicity in crimes against humanity. In my view, what distinguishes the present case from Ramirez is the duration of the appellant’s military service, his military rank and the passive role which he played in what clearly was a crime committed by ranking officers.

(E)       Did the Board err in law by failing to determine the male appellant’s eligibility under the inclusion clause?

Having concluded that the appellant’s conduct does not provide a legal basis on which to invoke the exclusion clause, it is unnecessary for this Court to address this fundamental question. Nor is it necessary to decide a corollary issue; whether the Board has the discretion to weigh the nature of the crimes against humanity with the fate awaiting a claimant who would have been declared a Convention refugee were it not for the application of the exclusion clause. One way of restating that question is as follows: Did the Board err by failing to weigh evidence favouring the application of the exclusion clause against that favouring inclusion? These questions will have to be addressed another day; see Ramirez, supra, but see Canada (Minister of Employment and Immigration) v. Mehmet, [1992] 2 F.C. 598 (C.A.), per Marceau J.A., at pages 607-608.

I think it helpful to point out that it would have been preferable had the Board made a determination with respect to the appellant’s refugee claim notwithstanding its decision to apply the exclusion clause. There are three reasons for this view.

First, as a practical matter it is extremely difficult to separate the grounds on which a claimant bases his or her refugee claim from the circumstances which might give rise to the application of the exclusion clause. In most cases, the claimant gives some evidence of complicity in crimes against humanity and then claims to have a well-established fear of persecution after deserting a military regime or police force which remains impervious to international conventions governing human rights; see Velose, Immigration Appeal Board 79-1017, August 24, 1979; Giraud v. Canada (Minister of Employment and Immigration), 1982 (F.C.A.), No. A-1080-82; Cruz v. Canada (Minister of Employment & Immigration) (1989), 10 Imm. L.R. (2d) 47 (I.A.B.), Unnamed v. M.E.I., Convention Refugee Determination Division T89-00198, July 11, 1989; Naredo and Arduengo v. Minister of Employment and Immigration (1990), 37 F.T.R. 161 (F.C.T.D.) and Canada (Minister of Employment and Immigration) v. Mehmet, supra; note that prior to January 1, 1989, the exclusion clause was not in force.

Second, in the event that the Board errs with respect to the application of the exclusion clause but has also ruled on the application of the inclusion clause, it may be unnecessary to refer the matter back to the Board. The same holds true if the Board rules on the inclusion clause, reaches a negative determination and dismisses the claim without turning to the exclusion criteria. Considerations of time and expense are always persuasive when establishing practical guidelines. I note that some panels of the Board have already recognized the benefits of making alternative rulings; see Ramirez, supra, and Caballero v. Canada (Minister of Employment and Immigration), A-266-91, Marceau, Desjardins and Létourneau JJ.A., judgment dated 13/5/93, F.C.A., not yet reported.

Finally, aside from any practical considerations, it may well be that in certain cases the Board will be legally obligated to rule on the refugee claim irrespective of the applicability of the exclusion clause. That possibility arises in the context of spousal and dependent refugee claims and is discussed below.

(F)       Did the Board err in law by applying the exclusion clause to the refugee claim of the female appellant?

The foregoing question must be addressed if only to dispel the misunderstanding that because the male appellant’s claim hinges on the application of the exclusion clause, so too does that of the female appellant and the appellants’ two children. As noted earlier, the Board concluded that as the female appellant’s claim was made dependent on that of her husband, it too should fail as a result of the application of the exclusion clause. On reflection, it should be apparent that the Board is in error.

The Board wrongly assumes that the refugee claim of Ms. Sanchez is conditioned on the application of the exclusion clause when in truth it is conditioned on whether Mr. Moreno will be exposed to persecution if returned to El Salvador. The rationale underlying spousal or dependant refugee claims is simple. If there is a likelihood that the principal claimant will be exposed to persecution, then it is as likely that those who are dependent on that claimant will also be persecuted on the basis of that relationship; see Astudillo v. Minister of Employment and Immigration (1979), 31 N.R. 121 (F.C.A.), per Heald J., at page 123; Djama v. Canada (Minister of Employment and Immigration), A-738-90, Marceau J.A., judgment dated 5/6/92, F.C.A., not yet reported; and Gonzalez v. Canada (Minister of Employment and Immigration) (1991), 14 Imm. L.R. (2d) 51 (F.C.A.). The likelihood of the female appellant suffering persecution is not extinguished simply because the exclusion clause renders the male appellant ineligible for consideration.

For argument’s sake, assume that the Board had determined that the male appellant would have been declared a Convention refugee were it not for the applicability of the exclusion clause. Assume further that the Board did not err in this determination. What possible legal justification exists for denying the female appellant’s claim? There is none. The issue of whether there are “serious reasons for considering” that a claimant has committed crimes against humanity has no bearing on the refugee claim of a spouse and dependants who have neither directly nor indirectly participated in such crimes. The exclusion clause cannot serve as a means of effectively promoting retributive justice at the expense of innocent family members.

I should like to point out that the issue as outlined above is distinct from that pursued by the respondent and argued on appeal. Counsel framed the issue as follows:

Did the Refugee Division err in not considering the female Appellant’s claim for Convention refugee status independently of her husband’s claim?

It is true that Ms. Sanchez did not make an independent claim to refugee status in the sense that she did not advance grounds for fearing persecution which differed from those of her husband. For example, she could have alleged possible persecution on the ground that she is married to a person who is accused or guilty of crimes against humanity. Whether or not the failure to raise independent grounds of persecution and to adduce proper evidence of such at the time of the hearing would preclude her from raising the matter on appeal is an issue which we need not resolve; see Caballero, supra. Thus, the fact that Ms. Sanchez did not advance independent grounds is of no consequence in the present circumstances.

It follows that the Board erred in law by failing to determine whether, for the purpose of evaluating the female appellant’s dependant refugee claim, the male appellant would have been declared a Convention refugee.

CONCLUSION

In my opinion, the Board erred when it denied the female appellant’s claim without first determining whether her husband met the inclusion criteria set out in the Act. This error, together with the Board’s erroneous finding that there are “serious reasons for considering” that the male appellant committed crimes against humanity are sufficient grounds on which to allow the appeal.

I would allow the appeal, set aside the decision of the Board dated April 22, 1991, and remit the matter to a differently constituted panel for consideration on the basis that section F of Article 1 of the Convention has no application to the refugee claim of each of the appellants.

Mahoney J.A.: I agree.

McDonald J.A.: I agree.

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