MB9-02447

RAD File No. / No de dossier de la SAR : MB9-02447 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Person who is the subject of the appeal

XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision August 3, 2020 Date de la décision Panel Me Miriam McLeod Tribunal Counsel for the person who is the subject of the appeal Me Sabine Venturelli Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre

REASONS FOR DECISION

OVERVIEW [1] XXXX XXXX XXXX XXXX (the appellant) is a citizen of Haiti who alleges that he was threatened and assaulted by criminals. The appellant alleges that these criminals are angry at him because he arrested them in the past as part of his duties as a member of the Police nationale d'Haïti (PNH) [Haitian national police force]. The appellant alleges that he joined the PNH in 1995 and was officially dismissed in XXXX 2014. [2] The Refugee Protection Division (RPD) concluded that the appellant was excluded from refugee protection under Article 1F(a) on the grounds that there are serious reasons for considering that he was complicit in a crime against humanity by transporting detained people to be tortured for approximately one year while working for the PNH in XXXX and XXXX XXXX XXXX. [3] On appeal, the appellant is alleging that the RPD erred in concluding that he would not face a risk of persecution should he return to Haiti without analyzing the risks alleged, that it unfairly used the appellant's testimony against him, that it did not consider all of the evidence submitted or his plausible and reasonable explanations, and that it erred in its analysis of the conditions set out in Mugesera. [4] The Refugee Appeal Division (RAD) notes that the determinative issue in this appeal is whether the RPD erred in its analysis of the factors in Mugesera and Ezokola in determining whether there are serious reasons for considering that the appellant was complicit in a crime against humanity when he worked for the PNH. The RAD dismisses the appeal.

ANALYSIS [5] The RAD must conduct a thorough, in-depth, complete and independent assessment of the evidence submitted, based on the appellant's arguments on appeal.1 In this case, the RPD listened to the recording of the hearing and applied the correctness standard.

DETERMINATIVE ISSUE [6] The RAD considers that the determinative issue is whether the RPD erred in its analysis of the appellant's exclusion when it applied the conditions in Mugesera and the factors in Ezokola in determining whether the appellant was complicit in a crime against humanity when he worked for the PNH.

INITIAL CONCERNS Exclusion first [7] The RAD notes that the issue of exclusion must be settled before addressing the issue of whether the appellant has established that he would face a serious possibility of persecution in Haiti or whether he has established, on a balance of probabilities, that he would be subjected to a danger of torture, a risk to his life or a risk of cruel and unusual treatment or punishment should he return to Haiti. The appellant asserts that the RPD erred because it was hasty in its analysis of the evidence in order to conclude that Article 1F(a) applied to the appellant, as well as in drawing its conclusion that he would face no risk of persecution should he return to Haiti.2 However, the RAD considers that exclusion is an issue that must be settled first because of the wording of section 98 of the Immigration and Refugee Protection Act (IRPA), which states that, if a person is excluded, they are not a Convention refugee or a person in need of protection. Consequently, the RAD notes that the RPD did not err in analyzing the issue of exclusion first and that it did not evaluate the risks to the appellant in Haiti, as a result of its conclusion that the appellant was excluded under Article 1F(a) and section 98 of the IRPA. However, if the RAD were to conclude that the RPD's conclusion with regard to the appellant's exclusion was made in error, then the

risks to the appellant in Haiti could be analyzed. Implication of the fact that the Minister did not intervene [8] The appellant submits that the fact that the Minister did not intervene in the appellant's refugee protection claim after notification by the RPD of a possible exclusion implies that there were no grounds for exclusion.3 The RAD does not agree. The RAD considers that the RPD has the jurisdiction to evaluate the application of the exclusion clause even if the Minister decides not to intervene. The Federal Court has set out the principle that the RPD even has an obligation to examine possible grounds for exclusion: The Board has the important responsibility of ensuring that Canada meets its obligations under the Convention by not providing shelter to people to whom there are serious reasons for considering that they have committed war crimes or crimes against humanity, serious non-political crimes or are guilty of acts contrary to the purposes and principles of the United Nations.4 Use of the appellant's testimony [9] The RAD notes that the RPD did not ambush the appellant. In his appeal memorandum, the appellant argues that the RPD erred because it [translation] "erroneously and perversely used the appellant's testimony against him by presuming several elements, including his knowing contribution to crimes." The RAD finds that the RPD notified the Minister of a

possible exclusion and that the notice was communicated to the appellant. Further to the Minister's response that he would not intervene, the RPD did not proceed with the hearing on the first scheduled date, in order to send another notice to the Minister indicating that the appellant had provided information that he had worked for XXXX XXXX, a man who (among other things) helped overthrow President Aristide's government and who, as commissioner of the XXXX police station in 2004, was suspected of being involved in the summary execution of dozens of criminals.5 The appellant received this notice as well. The appellant submits on appeal that he had no connection to XXXX XXXX, that when he was a police officer at the XXXX police station headed by XXXX XXXX XXXX from 1996 to 1997, he had no dealings with him, and that he no longer worked for the PNH at the time of the attack on the XXXX police station in XXXX 2016, which involved XXXX XXXX.6 The RAD notes that even though the RPD's initial grounds for believing there was a possible exclusion were, ultimately, not the grounds used to conclude that the appellant must be excluded, the fact remains that the appellant knew that exclusion was a determinative issue for the RPD because of his work as a police officer with the PNH. Although the Minister did not intervene in the end, the RAD notes that the appellant was represented by a

lawyer for the preparation of his claim, as well as for the hearing before the RPD, and that his lawyer raised no objections to the RPD's questions, and the RAD sees no error in the questions the RPD asked during the hearing. The RAD notes that it was clear to the appellant that exclusion was a determinative issue, and the RPD did not err in using the appellant's testimony in its analysis of the possibility of exclusion.

APPLICABLE CASE LAW Criteria in Mugesera [10] In Mugesera, a criminal act is considered to be a crime against humanity if the following four conditions are met: 1) An enumerated proscribed act was committed (this involves showing that the accused committed the criminal act and had the requisite guilty state of mind for the underlying act).

2) The act was committed as part of a widespread or systematic attack.

3) The attack was directed against any civilian population or any identifiable group of persons.

4) The person committing the proscribed act knew of the attack and knew or took the risk that his or her act comprised a part of that attack.7 Criteria in Ezokola [11] Evidence of direct participation in the perpetration of a crime against humanity is not required to conclude that exclusion applies. Anyone can be denied refugee protection under Article 1F(a) by reason of complicity in the perpetration of international crimes if there is a link between the individual and the crimes or the criminal purpose of the group. In Ezokola, the Supreme Court of Canada ruled that such a link is established when there are serious reasons for considering that an individual has voluntarily made a significant and knowing contribution to crimes or to the criminal purpose of the group that is believed to have committed them.8 The question of whether a person's conduct satisfies the criteria of complicity is based on a detailed, contextual assessment of the facts. In Ezokola, the Supreme Court of Canada set out the following non-exhaustive list of factors that can be useful in establishing the three components needed for applying the criterion of complicity: i) The size and nature of the organization; ii) The part of the organization with which the refugee claimant was most directly concerned; iii) The refugee claimant's duties and activities within the organization; iv) The refugee claimant's

position or rank in the organization; v) The length of time the refugee claimant was in the organization, particularly after acquiring knowledge of the group's crime or criminal purpose; and vi) The method by which the refugee claimant was recruited and the refugee claimant's opportunity to leave the organization.9 [12] When analyzing complicity, the focus must always remain on the individual's contribution to the crimes or to the criminal purpose of the group, and any viable defences, including duress, should be taken into account. In Ezokola, the Supreme Court reiterates that mere association or passive acquiescence are not sufficient to establish complicity.10 Application of the case law to the facts The conditions in Mugesera [13] The appellant argues that the RPD erred in concluding that a crime against humanity had been committed in a [translation] "systematic or generalized way" and asserts that the criteria in Mugesera have not been met. The RAD does not agree. First, the RAD notes that torture is defined in the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24 in Article 7(2), as: [T]he intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions. A

proscribed act [14] The appellant testified that while he worked at the XXXX XXXX XXXXand XXXX police stations between 1996 and 1997, [translation] "strong measures" were used when a detained person "did not want to tell the truth" or when the police officer wanted to "extract key information from the person."11 The appellant testified that strong measures were used in [translation] "almost all of the police stations."12 The appellant also testified that, although he did not participate in interrogations, he had arrested people and taken them to the people who conducted the interrogations and had personally noted that, after their interrogation, those detainees bore injuries that they did not have when they arrived with him at the police station. He stated that he had noticed injuries that appeared after interrogation on detainees whom he had arrested and taken to the police station three times between 1996 and 1997-twice while he was assigned to the XXXX XXXX XXXX police station and once while he was assigned to the XXXX police station-and that [translation] "it certainly happened more times, but what I observed personally with my own eyes were those times."13 He declared that it certainly happened more times because [translation] "I also hear... people talk about what happens, so that is why I say that it happens more often."14 The RPD therefore did not err in concluding that

torture was practised by the PNH during the relevant period. Therefore, the first condition in Mugesera has been met. Generalized or systematic attack [15] The appellant does not explain in what way the RPD erred in concluding that the torture practised was part of a generalized attack.15 Firstly, the RAD agrees with the RPD that torture is covered by the definition of an attack as defined in Mugesera because it can be considered as "a course of conduct involving the commission of acts of violence".16 Secondly, with regard to the generalized nature of the attack, the RAD notes that according to the appellant's testimony, torture was practised by the PNH in most of the police stations in Haiti; he had witnessed injuries to detainees whom he himself had arrested and brought to two different police stations on three occasions; he had seen the effects on other detainees; he had heard other police officers say that they had noticed the same thing; and he was certain that it had happened many times.17 The RAD agrees with the RPD that the appellant's testimony was clear and convincing to the effect that torture was practised by the PNH during that period of time, between XXXX 1996 and XXXX 1997, and that it was a common and widespread practice in almost every police station in Haiti. The RAD therefore agrees with the RPD that the torture practised by the PNH constituted a generalized

attack, at least during that period, between XXXX 1996 and XXXX 1997. The RAD therefore considers that the second condition in Mugesera-that the attack be "generalized or systematic"18-has been met. Directed against a civilian population or an identifiable group of persons [16] The RAD also agrees with the RPD that the torture practised by the PNH as described by the appellant was directed against an identifiable population of civilians that is relatively significant-the members of the Haitian civilian population who were detained in its cells. Once again, the appellant testified that torture was frequently practised on detainees during interrogations, in most of the police stations in Haiti. The RAD concludes that the third condition in Mugesera has therefore been met. Knowledge of the person committing the act [17] The RAD considers that the appellant's testimony establishes that torture was practised in most police stations in Haiti, and that police officers discussed between themselves the injuries that detainees bore after their interrogations. Consequently, the RAD considers that the RPD did not err in concluding that the PNH knew of the torture being practised in its police stations and that it was committing this attack. Therefore, the RAD considers that the fourth condition in Mugesera has been met. [18] The RAD therefore concludes that the RPD did not err in

concluding that the PNH committed acts of torture, which is a crime against humanity under the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, at least between January 1996 and March 1997. Commission of a crime against humanity by complicity? Criteria in Ezokola [19] The appellant testified that he was assigned to an intervention squad in XXXX XXXX XXXX from XXXXtoXXXX XXXX 1996, and that he was subsequently assigned to the XXXX police station, first at a [translation] "fixed point" between XXXXand XXXX 1996, and then an assignment to an intervention squad at the same police station from XXXX 1996 to XXXX 1997. He testified that, as part of his work between XXXX 1996 and XXXX 1997, he arrested people and brought them into custody at the police stations where he worked, and that the people he arrested were detained and questioned by the investigations unit before being brought before a justice of the peace.19 The evidence does not show that the appellant personally committed acts of torture against detainees. However, it must be determined whether the appellant voluntarily made a significant and knowing contribution to the crime or to the criminal purpose of the group that is believed to have committed such crimes. [20] The appellant argues that the RPD erred because the PNH is a national police force with a vocation to protect the population and that,

consequently, it does not solely have a limited and brutal purpose, even though some excesses may have been committed by some of its members.20 However, the RAD notes that in its decision, the RPD does not state that the PNH is an organization with a [translation] "limited and brutal purpose", and the RAD notes that no police organization would be categorized in such a way, given that the reason for the existence of any police organization is the protection of the population it serves. However, as explained in Ezokola, if an organization is motivated by a limited and brutal purpose, the link between the contribution and the criminal purpose will be easier to establish, whereas if the organization is multifaceted or heterogeneous, the link between the contribution and the criminal purpose will be more tenuous.21 In this case, the PNH is a large organization and its nature, as an organization mandated to protect the population, is such that the link between the appellant's contribution and the criminal purpose is more tenuous. The RAD also notes that during the relevant period from XXXX 1996 to XXXX 1997, the appellant had a level two rank while he was assigned to the intervention squads at the XXXX XXXX XXXXand XXXX police stations, which is a factor in his favour since he was fairly low in the hierarchy. The RAD is therefore of the opinion that the RPD did not err in concluding

that these two factors weigh in the appellant's favour. [21] However, the RAD agrees with the RPD that more factors weigh in favour of exclusion. First, the appellant testified that, as an officer in the intervention squads in XXXX XXXX XXXX and XXXX, one of his duties on these squads was to arrest people and take them to the police stations in police custody.22 He testified that, once at the police station, the people who had been arrested had to be [translation] "heard" by the investigation department and that during these interrogations conducted by the investigation department, "strong measures" were used.23 Although this did not occur in every case, the appellant testified that he had personally observed the effects of this practice on detainees that he had brought to the police station at least three times in two different towns (twice in XXXX XXXX XXXXand once in XXXX) during the relevant period; that he was [translation] "certain" that strong measures were used more often than what he had seen with his own eyes; that people had talked about the injuries detainees bore after they had been [translation] "heard" by the investigations departments; and that almost all of the police stations in Haiti tortured detainees. On appeal, the appellant submits that his duties as a member of the PNH did not lead him to behave in a reprehensible manner and that he had committed no

abuses.24 The RAD agrees that the simple fact of working for the PNH is not sufficient to invoke the exclusion clause, but the RAD notes that the appellant testified that he had arrested people and taken them into police custody at the police station where they would be questioned by the investigation department and that he had seen the injuries of those who had been questioned by that department and heard people talk of the strong measures it used. The Federal Court has ruled that "An individual can be complicit without being present at the crime and without physically contributing to the crime if the individual made at least a significant contribution to the group's crime or criminal purpose."25 [22] Second, the appellant testified that he started working for the PNH in XXXX 1996, and, according to his testimony, he became aware of the torture of detainees in his first year in the organization and continued to work for it for more than XXXX years after learning of this practice, until XXXX 2013, when he fled Haiti. On appeal, the appellant submits that his knowledge of the atrocities committed was very limited,26 but the RAD notes that even though he did not know the details of the violence committed by his colleagues and/or superiors, he knew that violence was being used against the detainees and did nothing. The RAD is aware that following his assignment to the XXXX police

station, the appellant became an investigator with the Direction centrale de la police judiciaire (DCPJ) [judicial police headquarters] from XXXX 1997 to 2006, and in 2006, he became an investigator with the general inspectorate of the national police force, within the human rights commission, until XXXX 2013. Despite the fact that following the relevant period, he distanced himself from the duties he had exercised when he brought the people he arrested to the police station to be [translation] "heard" by the investigations department, where they were often tortured, the fact remains that he became aware that this practice existed while he was carrying out those duties and he continued to bring people to the police station during the relevant period, and he continued to work within the PNH for almost XXXX years after that. [23] Third, during the relevant period, the appellant was assigned to two police stations where he brought the people he arrested, and he personally saw the injuries inflicted on detainees after the interrogations conducted by the investigations departments and heard people talking about the strong measures used during interrogations. The RAD is therefore of the opinion that the appellant was in direct contact with the victims and with the members of the PNH who practised torture during the relevant period. [24] Fourth, the appellant attended the École

nationale de police [national police academy] and then joined the PNH; he was not the subject of any kind of forced recruitment or conscription. He therefore joined the PNH voluntarily. Furthermore, when the RPD asked why the appellant had not left his job with the PNH, he explained that he did not have a way to leave. He explained that he had gone to the École nationale de police because he did not have a university degree and due to a lack of financial means, and he did not leave the PNH because it is difficult to find a job in Haiti and most jobs in Haiti are politicized.27 He later added that the criminals knew he was a police officer and he had already received threats, so quitting would make his situation even worse.28 However, the RAD notes that the appellant alleged that he had received threats from criminals during his career because of his interventions with them as a police officer, and the appellant did not explain how it would have worsened his situation. Therefore, the RAD does not consider this explanation sufficient. Moreover, the RAD agrees with the RPD that in 1996, when the appellant was at the start of his career as a police officer, he had already requested a transfer from XXXX XXXX XXXXtoXXXX XXXX because of threats and an attack, which had made it necessary for him to move to a different town. He could have changed careers at that time, but chose to

remain with the PNH. The RAD therefore considers that the appellant did not remain with the PNH due to constraints, threats or another risk to his life. [25] The RAD therefore concludes that there are serious reasons for considering that the appellant voluntarily made a significant and knowing contribution to crimes against humanity (torture) committed by the PNH against the civilians detained in its cells. The appellant's contribution was voluntary because he freely chose to work for the PNH even after becoming aware that torture was practised on civilians detained in its cells during interrogations by the police force's investigations departments, at least during the relevant period from XXXX 1996 to XXXX 1997, in most police stations in the country. In addition, he did not leave his job after becoming aware of this practice for moral or ideological reasons-he was successful in a competition to become an investigator for the PNH in XXXX 1997 and only left the PNH in XXXX 2013 due to risks to his life that had no connection to the practice of torture in the PNH police stations. The appellant's contribution was knowing because, during the relevant period from XXXX 1996 to XXXX 1997, the appellant saw the injuries inflicted on people he had arrested and brought to the XXXX XXXX XXXXandXXXX XXXX police stations with his own eyes. He also knew that people were aware of and talked

about this practice of the torture of detainees by the investigations departments in most police stations in the country, and he testified that he was certain that torture was practised more often than what he had witnessed. Contrary to the appellant's argument on appeal, the RAD does not consider that the RPD presumed that his contribution to these crimes was knowing.29 In fact, the RPD listened to the appellant's testimony and drew that conclusion while taking the Ezokola factors into account in examining the appellant's role in the crime. In the RAD's opinion, it is clear from the appellant's testimony that he was aware of this practice and that he continued to bring detainees to the police stations. Lastly, the appellant's contribution was significant because he arrested people and brought them to the police station in police custody, knowing that when they were subsequently questioned, they were often tortured by the investigations department. Therefore, his contribution was essentially to deliver the people he arrested for torture, at least during the relevant period, with the knowledge of what happened afterwards, which the RAD finds is sufficient to be considered a significant contribution. [26] For all these reasons, the RAD concludes that the RPD did not err in concluding that there were serious reasons for considering that the appellant committed a crime against humanity through complicity and that, consequently, the exclusion clause in Article 1F(a) of the Convention applies in this case.

CONCLUSION [27] I dismiss the appeal and confirm the RPD's determination that the appellant, as a person referred to in Article 1F(a) of the Convention, is excluded under section 98 of the IRPA and that he is neither a Convention refugee nor a person in need of protection. (signed) Miriam McLeod Me Miriam McLeod August 3, 2020 Date IRB translation Original language: French 1 Minister of Citizenship and Immigration v. Huruglica, 2016 FCA 93. 2 P-2, appellant's record, appeal memorandum, page 26 at paragraph 2.1, page 29 at paragraph 2.19, and page 31 at paragraph 2.32. 3 P-2, appellant's record, appeal memorandum, page 29 at paragraph 2.21. 4 Canada (Citizenship and Immigration) v. Nwobi, 2014 FC 520. 5 SPR-1, Refugee Protection Division (RPD) record, pages 106-111. 6 P-2, appellant's record, appeal memorandum, page 31 at paragraphs 2.28-2.30. 7 Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, paragraph 119. 8 Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, paragraph 29. 9 Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, paragraph 91. 10 Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, paragraph 100. 11 Recording of RPD hearing at 2:18:59-2:19:54 (June 28, 2018). 12 Recording of RPD hearing at 2:11:05 (June 28, 2018). 13 Recording of RPD hearing at 2:21:06-2:21:33 (June 28, 2018). 14 Recording of RPD hearing at

2:22:01-2:23:00 (June 28, 2018). 15 P-2, appellant's record, appeal memorandum, page 30 at paragraph 2.23. 16 Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, paragraph 153. 17 Recording of RPD hearing at 2:10:06-2:16:55, 2:18:59-2:22:58 (June 28, 2018). 18 Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, paragraph 156. 19 Recording of RPD hearing at 2:06:54-2:07:53 (June 28, 2018). 20 P-2, appellant's record, appeal memorandum, page 30 at paragraph 2.24. 21 Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, paragraph 94. 22 Recording of RPD hearing at 2:06:54 (June 28, 2018). 23 Recording of RPD hearing at 2:11:34-2:16:56 (June 28, 2018). 24 P-2, appellant's record, appeal memorandum, page 30 at paragraph 2.25. 25 Mata Mazima v. Canada (Citizenship and Immigration), 2016 FC 531 at paragraph 44. 26 P-2, appellant's record, appeal memorandum, pages 30-31 at paragraph 2.27. 27 Recording of RPD hearing at 2:29:35-2:33:59 (June 28, 2018). 28 Ibid. 29 P-2, appellant's record, appeal memorandum, page 26 at paragraphs 2.2 and 2.5. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-02447 RAD.25.02 (January 14, 2020) Disponible en français 8 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January 14, 2020) Disponible en français