MC3-00542

RAD File / Dossier de la SAR : MC3-00542 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Date of decision June 14, 2024 Date de la décision Panel Daphnée Ouellet Tribunal Counsel for the person who is the subject of the appeal Angelica Pantiru Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Mikael Bélanger Karan Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I dismiss this appeal for the reasons that follow. [2] The Appellant, XXXX XXXX XXXX, is a citizen of Mexico, hailing from the State of Veracruz. There, he worked as a XXXX XXXX for the Secretariat of Public Security (Secretaría de Seguridad Pública - SSP) from late 2014 until his departure in early 2019. * Impugned Refugee Protection Division Decision [3] The Refugee Protection Division (RPD) found that the Appellant was excluded pursuant to s. 98 of the Immigration and Refugee Protection Act (IRPA) and Article 1F(a) of the Convention.1 It considered that the Minister had met its burden of showing that there were serious reasons for considering that the Appellant was complicit in proscribed acts, including unlawful arrests, torture and enforced disappearances amounting to crimes against humanity, by way of his voluntary, significant, and knowing contribution to the SSP in Veracruz. [4] In coming to this conclusion, the RPD reasoned that there was no requirement for crimes against humanity to be committed pursuant to or in furtherance of a State or organizational policy to commit such attack in Canadian law. * Intervention from the Minister via the Canadian Border Services Agency [5] The Minister, represented by the Canadian Border Services Agency (CBSA), intervened before the RPD and led the questioning with regard to the Appellant's excludability under Article 1F(a). It also intervened in this appeal with additional submissions from the CBSA.2 In summary, it agrees with the RPD's conclusion as to the Appellant's exclusion under Article 1F(a) of the Convention and it is also argued by the Minister that no requirement exists for the proscribed acts to be committed pursuant to or in furtherance of a State or organizational policy to commit such attack in Canadian law. The Minister asks that the Refugee Appeal Division (RAD) dismiss the appeal and confirm the Appellant's exclusion. * Grounds for Appeal [6] The RPD's exclusion findings are contested.3 It is argued that the RPD incorrectly concluded that the Appellant was complicit in committing crimes against humanity because it failed to analyse the essential elements on which this could be based pursuant to the Rome Statute, the Crimes Against Humanity and War Crimes Act (CAHWCA)4, and following the Court's jurisprudence in Verbanov5, setting out the requirement that crimes against humanity be committed pursuant to or in furtherance of a State or organizational policy. [7] The Appellant submits that some corrupt SSP officers and politicians colluded with the cartels, but that it was not committed pursuant to or in furtherance of a State or organizational policy. [8] The Appellant also argues that the funding and assistance by the United States to Mexican authorities since 2006, in the context of the war against drugs, shows that the policy was not aimed at the systemic violation of human rights, but rather aimed at the eradication of organized and cartel crime, and drug trafficking. According to the Appellant, concluding otherwise would be absurd because the United States cannot be held to support the systemic violation of human rights. * Determinative Issue [9] The determinative issue in this appeal relates to the exclusion under Article 1F(a) of the Convention. I will explain below why the RPD erred in its legal analysis, especially as it relates to the requirement for a State or organizational policy when assessing the Appellant's complicity in crimes against humanity. Nevertheless, I find that the RPD's overall conclusion was correct and that the Appellant is excluded. I will give my reasons below. BACKGROUND AND CHRONOLOGY OF EVENTS [10] The Appellant hails from Xalapa, Veracruz, where he completed his XXXX XXXX XXXX XXXX and then worked as a XXXX. In 2014, the Appellant saw an online recruitment posting for XXXX XXXX and decided to apply. [11] He was first sent for XXXX training until XXXX 2014, and then worked as a XXXX XXXX for the Secretariat of Public Security (Secretaría de Seguridad Pública - SSP). He was posted to the XXXX XXXX XXXX XXXX XXXX XXXX for Veracruz (XXXX XXXX XXXX XXXX XXXX XXXX De Veracruz) from XXXX 2015 until XXXX2019. He was stationed in the XXXX XXXX (XXXX XXXX XXXX), with field missions to XXXX and XXXX, Veracruz.6 [12] During his training in 2014, the Appellant heard about other XXXX XXXX being corrupt, being involved with organized crimes, the use of arbitrary detention and torture of detainees, as well as the disappearance of various individuals, including journalists.7 Some trainees chose to leave without facing consequences, but the Appellant chose to remain.8 He also heard of detainees being taken to the nearby zoo housing wild animals, including crocodiles, lions and jaguars, but he believes that the animals were no longer there during his time in training.9 Country reports on the situation in Veracruz during this period document rumours from the family members of disappeared persons who believed their relatives had been fed to these animals.10 11 12 [13] The Appellant fled Mexico after he faced problems for XXXX XXXX XXXX XXXX XXXX XXXX XXXX, and that he received threatening phone calls. He was advised by his superior to quit his job to avoid harm, and he fled to Canada in XXXX 2019. ANALYSIS [14] My role is to look at all the evidence and decide if the RPD made the correct decision. I conducted an independent review of the evidence, including the audio-recording of the RPD hearing. I therefore reviewed the decision by applying the correctness standard as I find that the RPD had no meaningful advantage.13 [15] On my own assessment, I find that the RPD erred in its legal analysis, as it relates to the requirement for a State or organizational policy when assessing the Appellant's complicity in crimes against humanity (see below - 1). Nevertheless, I find that the RPD did come to the correct conclusion regarding the Appellant's exclusion pursuant to Article 1F(a) of the Convention, and I will explain why (see below - 2). 1- The RPD Incorrectly Applied the Legal Test for Exclusion for Crimes against Humanity [16] The Appellant is challenging the RPD's assessment of his excludability, and more specifically the conclusion that a State or organizational policy is not part of the definition for crimes against humanity in Canadian law. On my own review, I agree with the Appellant that the policy requirement was a necessary element of the crime to be established in this case. I will explain. a) The legal framework for assessing exclusion for crimes against humanity [17] The RPD applied the framework set out by the Supreme Court of Canada in Mugesera14, and found that there was no requirement for the proscribed acts to be committed pursuant to or in furtherance of a State or organizational policy to commit such attack in Canadian law. [18] The RPD considered the Appellant's argument that the Rome Statute now imposes this requirement, as discussed in the decision of the Federal Court in Verbanov15, but determined that the Rome Statute was not a complete codification of international law and that it governs the International Criminal Court, a body which is complementary to national jurisdictions. It thus concluded that the test set out in Mugesera was still the applicable one in Canadian jurisdictions. [19] In my view, the RPD was not entirely wrong in stating that the test set out in Mugesera is still good law, especially regarding proscribed acts perpetrated before the signature of the Rome Statute. Recent case-law does confirm this.16 [20] What the RPD failed to consider or correctly understand here, however, is that there is an additional criterion - that has been incorporated into Canadian law through the CAHWCA and case-law - for acts that occurred after July 17, 1998.17 [21] This was particularly relevant, in the present case, given that the Appellant joined and was part of the SSP between 2014 and 2019. All potentially excludable acts - to which he might be found complicit - took place after the incorporation of the Rome Statute, through the CAHWCA, into Canadian law. [22] There is, in fact, a legal presumption included to the effect that the Rome Statute is an expression of customary international law featured in the CAHWCA which applies to situations that arose after the adoption of the Rome Statute. Indeed, section 6 (4) of the CAHWCA titled "Interpretation - customary international law", indicates that: For greater certainty, crimes described in articles 6 and 7 and paragraph 2 of article 8 of the Rome Statute are, as of July 17, 1998, crimes according to customary international law, and may be crimes according to customary international law before that date. This does not limit or prejudice in any way the application of existing or developing rules of international law. [emphasis added]18 [23] In Verbanov, Justice Grammond relied on this, and also referred to paragraph 223 of the Tadic19 Appeals Judgement of the International Criminal Tribunal for the former Yugoslavia (ICTY) to affirm that the definition of international crimes featured in the Rome Statute further supports the presumption articulated in section 6(4) of the CAHWCA that articles 6 to 8 of the Rome Statute are part of customary international law starting on July 17, 1998.20 [24] It seems to me that Canadian law is clear concerning acts that took place after that date. [25] The Minister argues in its intervention before the RAD that there has been no subsequent decision by the Federal Court, following Verbanov, other than the one cited by the Appellant, in the case of Jean-Baptiste21, where this issue was addressed in obiter. [26] I respectfully must disagree with the Minister here. First, the Minister's intervention does not address the above-mentioned presumption set out at section 6 (4) of the CAHWCA for acts committed after July 17, 1998, which is part of Canadian law. This was the very basis of the Court's decision in Verbanov, as mentioned. [27] Second, there are subsequent cases, both from this Board22 and the Federal Court23 which recognized the approach in Verbanov and the necessity to distinguish between acts perpetrated before and after July 17, 1998. What was reiterated in a recent decision, however, is that the policy requirement does not necessarily entail a formal written policy: the Verbanov decision does not stand for the proposition that the government's constitution or a formal written policy specifically endorsing human rights abuses must exist before a finding of crimes against humanity can be made. In fact, Justice Grammond said quite the opposite, concluding that "this judgment should not be understood as shielding police officers from the accountability warranted by the commission of heinous crimes. Whether the torture of detainees is conducted pursuant to a State or organizational policy is an issue that must be decided on a case-by-case basis, according to the evidence."24 [28] This issue is particularly relevant to the present case, and I will return to it later, when examining whether the policy requirement is met, based on the evidence. [29] In its intervention, the Minister also seems to rely on recent Federal Court decisions in Wijenayake25 and Oworu26 to argue that an "official policy" was not deemed a requirement to establish complicity in crimes against humanity in those cases. It seems to me that these scenarios touched rather upon the previously-mentioned issue of determining whether the policy in question must be a formal or written policy - which the Verbanov case had already answered in the negative - while putting the emphasis on proving the existence of such a policy on a case-by-case basis [cf. above at para. 27.]. [30] In fact, in the excerpt cited above from the Oworu case, Justice Ahmed found the RAD's conclusion to be reasonable that the proscribed acts had been committed by police as a routine practice and in a widespread and systematic manner with impunity, indicating tacit endorsement of these practices.27 [31] Meanwhile, Wijenayake made no reference to Verbanov or the policy requirement, and the facts took place during the Sri Lankan civil war in a wide period spanning from 1992 until 2016; therefore, covering both periods before and after the Rome Statute came into force. In Wijenayake also, there appeared to be no debate regarding the existence of a policy to use torture by police and authorities more generally, as demonstrated in the country evidence cited by the Court.28 [32] In the latter case also, Justice Go found that the Board had conducted its analysis through the relevant legal framework and referenced both the CAHWCA and the Supreme Court of Canada's decision in Mugesera.29 Certainly, the Court did not state or imply at any point that the presumption set out at section 6 (4) of CAHWCA would be inapplicable to acts committed after July 17, 1998. [33] Further, in the two above-cited cases referenced by the Minister, the issue before the Federal Court was whether the person in question had been sufficiently complicit in proscribed acts, rather than any dispute regarding their qualification as international crimes. [34] For all these reasons, the Minister's argument that the Rome Statute requirement of the existence of a state or organizational policy does not apply in Canadian law has failed to convince me. [35] In my view, a government or state policy tacitly endorsing such actions, when committed in a widespread and systematic manner, could - in some cases - meet the requirement of the Rome Statute and, therefore, Canadian law, for the reasons which I have set out. I find that this is the case here, and I will examine it further below. [36] Finally, the Minister also relies on a citation from the Supreme Court of Canada in Ezokola30, to argue that a strict interpretation of crimes against humanity would be against the object and purpose of the Convention.31 This is not my reading of those paragraphs, which explicitly weigh the necessary balance to be struck between not creating safe havens for perpetrators of international crimes and promoting the humanitarian aim of the Refugee Convention.32 The Court, in fact, referred to paragraph 2 of the United Nations High Commissioner for Refugees (UNHCR) Guidelines on International Protection on the Application of the Exclusion Clauses, which explicitly makes the case for a restrictive interpretation of the exclusion clauses. 33 [37] It seems to me that balancing these objectives is what the Court also had in mind in Verbanov when assessing the evolution of international criminal law, whether customary or conventional, as applied in the Canadian context.34 [38] I find that the definition of crimes against humanity contained in the Rome Statute, via the Schedule contained in CAHWCA, was therefore appropriate to apply to the present case. As stated in Verbanov, this Board had found that international criminal law, and in particular the Rome Statute of the International Criminal Court (ICC) which the CAHWCA seeks to implement, has evolved since the backdrop against which Mugesera was decided, and that the existence of a State (or organizational) policy was a mandatory element of the concept of "widespread or systematic attack" in order to qualify certain acts as crimes against humanity.35 b) The existence of a state or organizational policy in the present case [39] As mentioned, the definition of "crime against humanity" in the Rome Statute, and particularly the definition of an "attack directed against any civilian population" as set out at Article 7(2)(a) includes the requirement that the attack be "pursuant to or in furtherance of a State or organizational policy to commit such attack".36 [40] Canadian case-law has already recognized that civilian detainees are part of an identifiable group (ie. a civilian population) for the purpose of crimes against humanity.37 [41] Moreover, when examining the meaning of "State or organizational policy" found at 7(2)(a) of the Rome Statute, the Federal Court in Verbanov stated as follows38: The meaning of policy was further defined through the following provision of the Elements of Crimes, a set of guidelines adopted by the Assembly of State Parties pursuant to article 9 of the Rome Statute: 3. [...] It is understood that "policy to commit such attack" requires that the State or organization actively promotes or encourage such an attack against a civilian population. [Footnote] A policy which has a civilian population as the object of the attack would be implemented by State or organizational action. Such a policy may, in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack. The existence of such a policy cannot be inferred solely from the absence of governmental or organizational action. [42] However, as previously mentioned, there is no requirement that this policy be written or formal; it simply must be proven by the evidence on a case-by-case basis.39 [43] In the present case, the Minister had disclosed relevant and incriminating country evidence on this issue40, prior to the start of the RPD hearing, and the Appellant had multiple opportunities to be questioned on, and respond to, this information throughout the hearing. [44] This evidence - which the RPD also cited in its reasons - contains clear descriptions of the use of torture as a common place, widespread and systematic practice by police and other security forces throughout the country, starting well before the Appellant joined the SSP.41 It also shows an increase in these practices in the context of the war on drugs, after 2006.42 [45] Further, the RPD relied on the country evidence when finding that the State of Veracruz had the highest number of reported cases of torture and that the SSP as well as the Veracruz Civil Force - to which the applicant belonged - were directly implicated in at least hundreds of cases of enforced disappearances during the period of 2013-2018.43 [46] Moreover, the RPD cited country evidence regarding the fact that the former governor of the State of Veracruz between 2010 and 2016, Javier Duarte de Ochoa, had established a policy by the Minister of Public Safety of unlawful arrests, torture and enforced disappearances of persons believed to be linked to criminal groups.44 45 [47] The Appellant's argument, on appeal, appears to be that former governor Duarte (as other former governors of Veracruz) was merely a corrupt official that colluded with criminal organizations for his own personal gain.46 It is argued that this was not part of a policy. This argument does not appear to be based on actual expert evidence but rather counsel's own interpretation of the situation in Mexico given that there is no reference or citation to support this.47 [48] It seems to me that the above-cited country evidence, and other evidence on the record, rather establishes the existence of such a policy given the numerous actors involved and the widespread nature of these practices that were systematically endorsed and/or covered up with officials acting at all levels of government - including police forces, prosecutors, and the judiciary. [49] Similarly to the facts in Owuru, proscribed acts have been committed by police as a routine practice and in a widespread and systematic manner with impunity, indicating - at the very least - tacit endorsement of these practices.48 [50] For example, the country evidence on record reported that: "From the beginning of 2007 through the end of 2015, the CNDH received 9,401 complaints of torture and ill-treatment".49 Data on torture and ill-treatment in Mexico understate the incidence of these crimes because law enforcement agencies and judicial institutions that generate the data are often the same agencies accused of perpetrating or tolerating torture and ill-treatment. This leaves the victims reluctant to report crimes, and leaves the perpetrators well positioned to stymie any investigation. In 2012, the UN Committee Against Torture expressed concern about the "allegations of complicity between public prosecutors and police investigators" as well as about "the reports that public prosecutors and, on occasion, judges themselves disregard defendants' claims that they have been tortured or classify the acts in question as constituting less serious offences." Similarly, the report of UN Special Rapporteur Juan Méndez on his April-May 2014 visit to Mexico identified the misclassification of torture as a structural flaw that fosters impunity.50 [51] The Appellant does not appear to specifically challenge this country evidence, but rather relies on a different tab of the National Documentation Package (NDP) for Mexico, showing that military personnel have been reported to perpetrate various crimes against the civilian population, in the context of the war on drugs.51 [52] However, on my own review of this document, I note that it clearly states: "According to Mexico's 2019 National Survey on Victimization and Perceptions of Insecurity, the country's police forces continue to have lower levels of citizen trust and are viewed as more corrupt than Mexico's armed forces. Less than 60 percent of those surveyed trusted Mexico's state or municipal police forces, while more than 64 percent viewed them as corrupt. Mexican police forces also have a long history of perpetrating human rights violations. The use of torture among police forces is widespread, and police have participated in several documented cases of extrajudicial killings, arbitrary detentions, and forced disappearances."52 [53] But also: "Forces at all levels are riddled with corruption, and citizens widely view police as ineffective in enforcing the law or even believe they enable crime."53 [54] Therefore, the arguments raised by the Appellant regarding the country evidence are not persuasive given that both the Mexican military and police forces could be committing abuses simultaneously. One does not exclude the other, and the evidence rather points to this. [55] I find that the evidence does establish a policy that was, at the very least, tacitly endorsed and carried out by diverse government actors on a wide scale, and at all levels - as set out by the above-cited excerpts. [56] The evidence relied upon by the RPD clearly sets out, for example, that: "Veracruz's state apparatus has been tailored to create, protect and conceal criminal interests".54 This is not the result of individual corrupt officials, but rather an issue that exists at a systemic level, and that has been implemented gradually and purposefully. [57] It also seems to me, as the Minister points out in their intervention before the RAD, that the Appellant's own testimony regarding the fact that he was specifically instructed by his superiors from the outset not to speak out against acts does establish a policy to cover up severe abuses -including the use of ill-treatment and torture of detainees and enforced disappearances by police - and that this was widely known, endorsed, and covered up at all levels.55 This is significant in the evaluation of the Appellant's complicity in these acts, as I will examine below, given this repeated confirmation that he was instructed to remain silent on such abuses from the start, and chose to continue supporting an organization with a criminal purpose, despite knowing this.56 [58] Finally, the Appellant appears to argue that Mexican authorities could not be perpetrating crimes against humanity because some of these policies were put in place and/or financed with the assistance of the United States in the context of the so-called war against drugs since 2006. As mentioned already, the country evidence sets out that some of these practices pre-date the 2006 war against drugs, but also, that the situation has greatly worsened since. In my view, this is not a persuasive argument from a legal standpoint given the compelling country evidence on the record. [59] On my own independent analysis of all the evidence, and for the reasons I have set out above, I find that the evidence does establish that a policy existed in which members of the SSP and security forces carried out acts of torture, ill-treatment, enforced disappearances, arbitrary arrests and detention on a widespread and systematic basis, against members of the civilian population - in particular civilian detainees - in Veracruz. There was also a policy silence imposed on members of the security forces, which the Appellant testified to, that actively encouraged the continuation and amplification of abuses on a widespread and systematic basis. 2- The Appellant is Excluded from Refugee Status [60] As the Minister correctly highlighted in their RAD intervention57, there has been no challenge to the RPD's conclusion regarding the fact that there were serious reasons for considering that he was complicit to numerous crimes committed by the SSP against the civilian population in Veracruz, and I have not identified any errors by the RPD on this point. [61] The RPD provided its reasons for finding that the Appellant had made a knowing, voluntary and significant contribution to crimes against humanity, as defined by international instruments.58 I agree with the RPD. [62] To summarize, the Appellant confirmed his direct involvement in the XXXX XXXX XXXX XXXX XXXX XXXX for several years on the basis of anonymous and/or unchecked information. I find that this was a significant contribution to the acts committed against these persons, during or following their arrest. [63] The Appellant further confirmed that he had knowledge of the fact that torture and enforced disappearances were used against these civilians in a widespread and systematic manner, and that a policy of silence against these abuses was enforced. [64] He also confirmed that he could have left the SSP after being aware of these crimes, and that some of his colleagues did, which led the RPD to conclude that his contribution was voluntary in nature. I agree. [65] These findings are uncontested on appeal, and I adopt them as my own. CONCLUSION [66] Overall, the RPD was correct in finding that the Appellant is excluded from refugee protection due to serious reasons for considering that he was complicit in crimes against humanity perpetrated by Mexican authorities, including the SSP and other security forces in Veracruz. DECISION [67] For the above reasons, I dismiss the appeal and confirm the decision of the RPD that the Appellant is excluded from protection by the combined effect of Article 1F of the Convention and s. 98 of IRPA. (signed) Daphnée Ouellet Daphnée Ouellet June 14, 2024 Date 1 Convention relating to the Status of Refugees, Geneva, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137 and Protocol relating to the Status of Refugees, New York, 31 January 1967, United Nations, Treaty Series, vol. 606, p. 267; accession of Canada to both on 4 June 1969 [Convention]. 2 Minister's Intervention Record, Memorandum of Intervention, at pp. 4-12. 3 Appellant's Record, Appellant's Memorandum, at pp. 4-16. 4 Crimes Against Humanity and War Crimes Act (CAHWCA), SC 2000, c 24. 5 Canada (Public Safety and Emergency Preparedness) v. Verbanov, 2021 FC 507 (CanLII). 6 Transcript of August 3, 2022, RPD Hearing, at pp. 32-33. 7 Ibid., at pp. 12-23. 8 Ibid., at p. 83. 9 Ibid. at pp. 53, 54, 59, 60. 10 Ibid. at p. 60. 11 RPD Record, M-20, The Intercept, May 20, 2018, Code Name Jaguar: How a Top Police Official Carried Out a Reign of Terror in Mexico, available online at: https://theintercept.com/2018/05/20/code-name-jaguar-how-a-top-police-official-carried-out-a-reign-of-terror-in-mexico/ 12 RPD Record, M-19, Business Insider, June 11, 2018, A former Mexican governor has been accused of involvement in forced disappearances, and it points to a sinister problem with Mexico's police. Available online at: https://www.businessinsider.com/javier-duarte-former-veracruz-mexico-governor-accused-disappearances-2018-6 13 Huruglica v. Canada (Citizenship and Immigration, 2016 FCA 93, [2016] 4 FCR 157; Rozas Del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, [2019] 2 FCR 597. 14 Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 SCR 100. 15 Canada (Public Safety and Emergency Preparedness) v. Verbanov, 2021 FC 507 (CanLII). 16 Gupa v. Canada (Citizenship and Immigration), 2023 FC 157 (CanLII). 17 Ibid., at paras. 49-52. 18 Crimes Against Humanity and War Crimes Act (CAHWCA), SC 2000, c 24. 19 Prosecutor v. Dusko Tadic (Appeal Judgement), Case No. IT-94-1-A, ICTY, 15 July 1999. 20 Canada (Public Safety and Emergency Preparedness) v. Verbanov, 2021 FC 507 (CanLII), paras. 23-26. 21 Jean-Baptiste v. Canada (Citizenship and Immigration), 2021 FC 1362 (CanLII), at paras. 33-37. 22 See for example: Qazizada v. Canada (Public Safety and Emergency Preparedness), 2021 CanLII 88344 (CA IRB), at para. 13; Ahuday v Canada (Public Safety and Emergency Preparedness), 2024 CanLII 18564 (CA IRB), at para. 6; Massroua v. Canada (Citizenship and Immigration), 2024 CanLII 37033 (CA IRB), at para. 131: "The period under review, December 2014 to May 2015, falls after the coming into force of the Rome Statute and the CAHWCA, which incorporates the Rome Statute, therefore the latter is applicable. The Rome Statute adopted as a necessary ingredient of crimes against humanity that the organization in question have a policy of committing the proscribed act(s)." 23 Akinpelu v. Canada (Public Safety and Emergency Preparedness), 2024 FC 400 (CanLII), at paras. 41-43; Wardak v. Canada (Citizenship and Immigration), 2023 FC 422 (CanLII), at paras. 62-63; Gupa v. Canada (Citizenship and Immigration), 2023 FC 157 (CanLII), at para. 49. 24 Akinpelu v. Canada (Public Safety and Emergency Preparedness), 2024 FC 400 (CanLII), at para. 43, citing: Canada (Public Safety and Emergency Preparedness) v. Verbanov, 2021 FC 507 (CanLII), at para. 76 [emphasis added] 25 Wijenayake v. Canada (Citizenship and Immigration), 2022 FC 1224 (CanLII). 26 Oworu v. Canada (Citizenship and Immigration), 2022 FC 1035 (CanLII). 27 Ibid., at para. 38: "While crimes are not committed by the NPF and the SARS pursuant to official policy, it is nonetheless established to be a routine practice, and the evidence does not support a conclusion that these acts are only carried by rogue actors. If that were the case, one would expect it to be a relatively uncommon occurrence with meaningful efforts to identify, punish and prevent such behaviour; conversely, the evidence establishes that while mechanisms exist for the investigation of police misconduct, practically speaking they are highly ineffective such that the police continue to carry out these activities in a widespread and systematic manner with impunity." 28 Wijenayake v. Canada (Citizenship and Immigration), 2022 FC 1224 (CanLII), at para. 23: "torture is the most common method of criminal investigation, and that it is unapologetically used by Police Officers and endorsed by Senior Officers. There are no real repercussions for Officers who engage in torture, and "[t]he consequences of all of the above are in inordinate escalation in acts of torture, their level of barbarity and concomitant brutality." 29 Ibid., at para. 19. 30 Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40 (CanLII), [2013] 2 SCR 678, at paras. 32-38. 31 Minister's Intervention Record, Memorandum of Intervention, p. 12, at para. 37. 32 Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40 (CanLII), [2013] 2 SCR 678, at para. 35. 33 UN High Commissioner for Refugees (UNHCR), Guidelines on International Protection No. 5: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, HCR/GIP/03/05, 4 September 2003, https://www.refworld.org/policy/legalguidance/unhcr/2003/en/14733, at para. 2: The rationale for the exclusion clauses, which should be borne in mind when considering their application, is that certain acts are so grave as to render their perpetrators undeserving of international protection as refugees. Their primary purpose is to deprive those guilty of heinous acts, and serious common crimes, of international refugee protection and to ensure that such persons do not abuse the institution of asylum in order to avoid being held legally accountable for their acts. The exclusion clauses must be applied "scrupulously" to protect the integrity of the institution of asylum, as is recognised by UNHCR's Executive Committee in Conclusion No. 82 (XLVIII), 1997. At the same time, given the possible serious consequences of exclusion, it is important to apply them with great caution and only after a full assessment of the individual circumstances of the case. The exclusion clauses should, therefore, always be interpreted in a restrictive manner. [emphasis added]. 34 Canada (Public Safety and Emergency Preparedness) v. Verbanov, 2021 FC 507 (CanLII), at para. 49. 35 Ibid., at paras. 40-41. 36 Rome Statute of the ICC, Articles 7(1), 7(2)(a), Schedule to the CAHWCA 37 Canada (Public Safety and Emergency Preparedness) v. Verbanov, 2021 FC 507 (CanLII), at para. 60; citing: Khachatryan v. Canada (Citizenship and Immigration), 2020 FC 167; Sarwary v. Canada (Citizenship and Immigration), 2018 FC 437; Vaezzadeh v. Canada (Citizenship and Immigration), 2017 FC 845; Hadhiri; Talpur v. Canada (Citizenship and Immigration), 2016 FC 822. 38 Canada (Public Safety and Emergency Preparedness) v. Verbanov, 2021 FC 507 (CanLII), at para. 20. 39 Akinpelu v. Canada (Public Safety and Emergency Preparedness), 2024 FC 400 (CanLII), at para. 43, citing: Canada (Public Safety and Emergency Preparedness) v. Verbanov, 2021 FC 507 (CanLII), at para. 76. 40 In particular see: RPD Record, M-2, Open Society Foundations (OSF), Undeniable Atrocities: Confronting Crimes against Humanity in Mexico, 27 June 2016, also available online at: https://www.refworld.org/reference/countryrep/osi/2016/en/111338; M-11, International Crisis Group (ICG), Veracruz: Fixing Mexico's State of Terror, Latin America Report N°61, 28 February 2017, also available online at: https://www.refworld.org/reference/countryrep/icg/2017/en/115888; Business Insider, A former Mexican governor has been accused of involvement in forced disappearances, and it points to a sinister problem with Mexico's police, June 11, 2018. Available online at: https://www.businessinsider.com/javier-duarte-former-veracruz-mexico-governor-accused-disappearances-2018-6; 41 RPD Record, RPD Reasons, at para. 12: "In 2003, the Committee Against Torture reported that torture in Mexico "was not exceptional or occasional...to the contrary, the police commonly use torture and resort to it systematically as another method of criminal investigation." 42 Ibid., "Reports of torture and other ill-treatment increased as violence spiralled in Mexico after 2006, as a result of the government's "war on drugs". Even if recent reports of a decline by the CNDH [National Human Rights." Commission] are correct, torture and ill-treatment remains widespread - 600 per cent higher in 2013 compared to 2003." 43 RPD Record, RPD Reasons, at paras. 13-14. 44 Ibid., at para. 15. 45 RPD Record, M-19, Business Insider, A former Mexican governor has been accused of involvement in forced disappearances, and it points to a sinister problem with Mexico's police, June 11, 2018. Available online at: https://www.businessinsider.com/javier-duarte-former-veracruz-mexico-governor-accused-disappearances-2018-6 46 Appellant's Record, Appellant's Memorandum, at paras. 31-33. 47 Ibid. 48 Oworu v. Canada (Citizenship and Immigration), 2022 FC 1035 (CanLII), at para. 38. 49 RPD Record, M-2, Open Society Foundations (OSF), Undeniable Atrocities: Confronting Crimes against Humanity in Mexico, 27 June 2016, https://www.refworld.org/reference/countryrep/osi/2016/en/111338, at p. 46. 50 Ibid. 51 Appellant's Record, Appellant's Memorandum, at paras. 34-43. 52 RPD Record, Exhibit 3, National Documentation Package, Mexico, 29 April 2022, tab 10.4: Police reform and security strategies in Mexico in the context of the war on drugs and U.S. support for these efforts. Washington Office on Latin America. Maureen Meyer. July 2020, at p. 2 [emphasis added]. 53 Ibid. [emphasis added]. 54 RPD Record, M-11, International Crisis Group (ICG), Veracruz: Fixing Mexico's State of Terror, Latin America Report N°61, 28 February 2017, also available online at: https://www.refworld.org/reference/countryrep/icg/2017/en/115888, at p. 1 [emphasis added]. 55 Transcript of August 3, 2022, RPD Hearing, at pp. 20, 57, 70, 78, 83. 56 Ibid. 57 Minister's Intervention Record, Memorandum of Intervention, p. 4, at para. 4. 58 RPD Record, RPD Reasons, at paras. 28-65. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : MC3-00542 RAD.25.02 (August 20, 2021) Disponible en français 2 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 (August 20, 2021) Disponible en français