Date: 20091120
Docket: IMM-677-09
Citation: 2009 FC 1194
Ottawa, Ontario, November 20, 2009
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
BETHANY LANAE SMITH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant, Bethany Lanae Smith, is a 21-year old American citizen who claims refugee
protection pursuant to ss. 96 and 97(1) of the Immigration and Refugee Protection Act (“IRPA”).
She is a homosexual member of the U.S. Army, from which she has deserted. She alleges a fear of
persecution on the part of her colleagues and superiors because of her sexual orientation. She also
claims she would be personally facing a risk to her life or cruel and unusual treatment or
punishment if she were returned to the United States.
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[2] Her claim was rejected by the Refugee Protection Division of the Immigration and Refugee
Board (the “RPD”) in a decision dated February 2, 2009, on the ground that she had failed to seek
state protection which would have been adequate. Having thoroughly reviewed the applicant’s
record, as well as the oral and written submissions of both parties, I have come to the conclusion
that this application for judicial review ought to be allowed. Here are my reasons in support of that
conclusion.
BACKGROUND
[3] The applicant was born in Texas in 1988. At the age of 16, her father discovered her sexual
orientation and threw her out of his home. She then moved to Oklahoma to live with her mother.
[4] After completing her education, she held various jobs before deciding to join the Army to
make a better life for herself. She was promised by the recruitment officer that the Army would pay
for her college education and that she would have the opportunity to travel the world. She accepted
the offer.
[5] In September 2006, she passed the physical, medical and aptitude tests. When she met with
occupation personnel at the Military Entry Program Services, she made it clear that she did not want
to engage in combat. She enlisted for three years as a mechanic. Her contract stipulated that she had
no right to cancel it, although the Army could do so at any time. It also contained a waiver of the
“conscientious objector” status.
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[6] The applicant alleges that, since the recruitment process involved a considerable amount of
paperwork, she did not have an opportunity to read the contract itself. She also claims that when she
enquired about the meaning of the phrase “conscientious objector”, she was told that it was not
important and that she should simply fill out the forms. She also claims that she did not know about
the “Don’t Ask, Don’t Tell” policy towards homosexuals in the Army.
[7] In March 2007, she was sent to Fort Campbell in Kentucky and worked there as the only
female mechanic in the motor pool. She was harassed and insulted by other soldiers because she had
the appearance of a lesbian. The situation worsened when she was seen holding hands with another
woman in a public place. When her superiors became aware of this situation, they started treating
her harshly and giving her assignments that were incompatible with her medical condition. She also
received hundreds of handwritten notes that were posted on her dormitory door, containing threats
of beatings. In early June, she was particularly frightened by one note whereby she was threatened
to be murdered in her sleep.
[8] The applicant did not tell anyone about the notes, because she did not know whom she could
trust and whether she would be talking to authors of the notes. She did not confront her superiors
either, because they had treated her badly after rumours circulated about her sexual orientation. She
thought that they would not do anything to help her and she feared that higher ranking officers were
also behind those acts of harassment. She alleges that she destroyed all the notes.
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[9] During one of her medical examinations, she told the medical examiner about a soldier who
had grabbed her and thrown her to the ground. She did not disclose to the doctor that she was gay.
He brushed off the incident as simple horseplay on the part of companions-in-arms.
[10] The applicant feared that the death threat in the note she had received in early June could
become reality since, down the hall from her room, was the supplies room where the keys to all the
rooms were kept. She tried to obtain a discharge by frankly revealing to her superiors that she was a
lesbian. Her request was denied and the Sergeant ordered her not to speak to officers of higher rank
about it.
[11] There is no evidence that the applicant applied for conscientious objector status. This issue
appears to have been raised only at the time of her hearing before the Board, since nothing is
mentioned in that respect in her Personal Information Form (“PIF”).
[12] On September 9, 2007, fearing that her life was in danger, she fled from the base with
another soldier. After leaving the base, the applicant received an anonymous call, apparently from
her base, threatening to “kick a hole in her face” if she returned to Fort Campbell. Another soldier
from the base apparently sent her a text message saying that she deserved to be killed for deserting
the unit.
[13] The applicant entered Canada on September 11, 2007 and filed her refugee claim on
October 16, 2007.
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THE IMPUGNED DECISION
[14] The RPD did not question the applicant’s sexual orientation and found that she was a gay
person. The Board Member also recognized that harassment and violence against lesbian and gay
service members have been a source of concern. Reviewing the administrative and regulatory
prohibitions on military service by lesbian, gay and bisexual persons since World War I, the Board
Member then summarized briefly the compromise solution better known as the “Don’t Ask, Don’t
Tell, Don’t Pursue” policy that has been officially followed since 1993. That policy, to which was
added a directive explicitly banning harassment of lesbian and gay military personnel, was intended
to ease the ban on homosexuals in the military. It distinguished between “being gay” and “acting on
being gay”, allowing gay people to serve in the military provided that they did not engage in
homosexual conduct. As recognized by the Board Member himself, this policy has had mixed
results:
38. Some scholars have challenged the basis of the “Don’t Ask,
Don’t Tell, Don’t Pursue” policy, as not offering protection to gay or
lesbian military personnel from harassment or scrutiny. The success
of its translation into practices that curb such harassment has been
unclear and “[…] and reports since the adoption of the plan suggest
that sexual-orientation-base harassment continues to exist in the
military […] from derogatory terms against lesbian and gay persons
used in military training programs to incidents of severe violence,”
such as in the 1990 murder of Barry Winchell, a soldier who was
believed to be gay and who was beaten to death by a baseball bat
while he was asleep.
[It is worth noting that Private Winchell was murdered in 1999, not
in 1990, at Fort Campbell, the very base where the applicant was
posted]
[15] The Board Member ruled, on the basis of two decisions of this Court (Sadeghi-Pari, Fariba
v. Canada (Minister of Citizenship and Immigration), 2004 FC 282, and Dosmakova, Sofya v.
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Canada (Minister of Citizenship and Immigration), 2007 FC 1357) that a lesbian belongs to a
particular social group for the purposes of the phrase “Convention Refugee” and referred to a
guidance note prepared by the United Nations Refugee Agency (UNHCR) on sexual orientation and
gender identity. He noted, in particular, that “there is no duty to be “discreet” or to take certain steps
to avoid persecution, such as living a life of isolation, or refraining from having intimate
relationships” (para. 57). He then reviewed the documentary evidence provided by the applicant
about the situation of homosexuals in the U.S. Army.
[16] According to the RPD, there are two determinative issues in this case: first, whether the acts
of harassment and discrimination, even if not amounting to persecution individually, cumulatively
constitute persecution, and 2) whether the claimant has offered clear and convincing proof of the
state’s inability or unwillingness to protect her.
[17] As to her first claim, the applicant had to show that the U.S. Uniform Code of Military
Justice (“UCMJ”) would be applied to her in a discriminatory fashion or that the application thereof
would result in cruel and unusual treatment or punishment. For that purpose, she invoked the
affidavit of Donald G. Rehkopf Jr., an attorney who has 32 years of military law experience as a
prosecutor, defence counsel and acting Staff Judge Advocate. In essence, his testimony is to the
effect that the U.S. military judicial system is unfair to, and biased against homosexuals and soldiers
who go on Absence With Out Leave (“AWOL”). In his view, the court-martial process is stacked in
favour of the prosecution. On the basis of the information he received from the applicant’s counsel,
he opined that the applicant is in all probability facing a sentence of imprisonment of at least three
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years if deported to the U.S.; in that respect, he goes even much further than appellants’ counsel in
Hinzman v. Canada (Minister of Citizenship and Immigration), 2007 FCA 171 (as reported at
para. 40 of that decision), who had submitted that deserters face one to five years in prison. Citing
the American case law, Mr. Rehkopf is of the view that life imprisonment is a “practical and legal”
punishment for deserters in time of war.
[18] Mr. Rehkopf also asserted that the applicant cannot effectively defend herself against a
charge of desertion. If Ms. Smith were to plead mitigating circumstances (e.g. by arguing that her
desertion was due to scruples of conscience against war even though she had failed to obtain her
discharge as a conscientious objector), she could make a convincing case only by disclosing her true
reasons for leaving the Army. She would then find herself in deeper trouble, considering the climate
of prejudice against, the harassment and indeed the threats directed at military members who are
perceived as being non-heterosexual. Should she assert that her superiors ignored the threats made
against her, the military authorities will, in effect, punish her for revealing a very embarrassing truth
about the military. Moreover, she could face additional criminal charges for having had sexual
relations with a person of the same sex, in violation of Article 120 (”indecent act”) or Article 125
(“sodomy”) of the UCMJ.
[19] In short, Mr. Rehkopf believes that although the U.S. Army are able to protect the claimant,
they are not willing to do so because of their hostility and bias against lesbians and gays.
Considering the anti-gay/lesbian climate at Fort Campbell, finding fair and open-minded jurors on
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her court martial panel will be next to impossible, in his view, because anyone who showed
sympathy for her position would be challenged by the prosecution.
[20] The Board rejected Mr. Rehkopf's opinion and found it to be not credible. First, it
determined that it was based on a number of assumptions that were speculative at best. Moreover,
the Board Member noted that there is no evidence that a defence counsel has ever challenged the
“Don’t Ask, Don’t Tell” policy on the basis of a Supreme Court decision invalidating a Texas
statute making it a crime for two adults of the same sex to engage in consensual sodomy (Lawrence
v. Texas, 539 U.S. 538 (2003)). It is not clear what inference is to be drawn from this observation;
the Board Member may be suggesting that Articles 120 and 125 of the UCJM could well be
declared unconstitutional if challenged on behalf of the applicant.
[21] The Board Member also found that the Winchell murder was an isolated incident, and added
that he “suspected” the perpetrator(s) must have been sentenced to a lengthy term of imprisonment
and subjected to other severe penalties. As a result, he rejected Mr. Rehkopf’s opinion that there is
clear and convincing evidence of the state’s inability to protect the claimant.
[22] The Board also viewed the applicant’s situation as not distinguishable from that of Mr.
Hinzman, because both of them had formally claimed "conscientious objector" status and were
reluctant to engage in combat. In this respect, the Board did not accept as credible the applicant’s
evidence that she did not know what that phrase meant. On the contrary, the Member found that the
applicant voluntarily enlisted in the U.S. Army, and just like Mr. Hinzman developed an objection
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to the war in Iraq after having spent some time in the military. The Board Member determined that
there is no internationally recognized right to be a conscientious objector with respect to a specific
war (except in the specific cases provided for in paragraph 171 of the UNHCR Handbook). The fact
that the claimant may face prosecution upon return to the United States did not reveal a failure of
state protection or persecution on the basis of political opinion.
[23] The Board Member also rejected Mr. Rehkopf’s assessment of the court-martial process as
being biased, preferring to follow the Federal Court and the Federal Court of Appeal which have
both determined that the UCMJ as a law of general application, was not applied in a discriminatory
fashion.
[24] In concluding that prolix part of his reasons, the Board Member questioned the credibility
and expertise of Mr. Rehkopf. Referring to his statement that he has served as a prosecutor, defense
counsel and Acting Staff Judge Advocate and tried more than 225 cases, the Member challenged
Mr. Rehkopf’s honesty, and wondered how he could persist in prosecuting deserters if he was so
concerned about the inequities and unfairness of the military justice system.
[25] Commenting next on the disparities of sentences imposed by the Court Martial, the Board
Member noted that the requirement of uniformity has been abolished by the Court in 1959 (United
States v. Mamaluy, 27 C.M.R. 176 (1959)); it was recognized that consideration must given to the
individualized circumstances of the offenders. That being said, the Court of Criminal Appeals is
expected to ensure a minimal degree of uniformity in relation to sentencing, and Articles 85 and 86
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of the UCMJ set maximum punishment for desertion and AWOL in various circumstances. Such a
system allows deserters to be treated uniformly and to be spared any vindictiveness on the part of
the sentencing authority.
[26] The Board Member also noted that the applicant waited a little more than one month to file
her refugee claim. In his view, that delay was inconsistent with the situation of a refugee fleeing for
her life and with probable knowledge that Canada was a refuge for other members of the U.S.
military who had preceded her. While this was not held to be a determinative factor, it was
nevertheless taken into account as a factor relevant to the assessment of her subjective fear.
[27] Finally, the Board reiterated that an applicant is required to seek the protection of her or his
state where it might reasonably be forthcoming. In the case at bar, the applicant spoke to the First
Sergeant but did not make any attempts to seek help from higher authorities in her unit. The
Member dismissed her explanation that higher ranking officers were involved in the harassment that
she had suffered, characterizing this allegation as mere speculation. As for the argument that the
military criminal code discriminates against gays and lesbians and that the punishment would be the
result of an unfair process, it was also rejected on the basis of the Hinzman decision. The Board
Member refused to comment on the military court-martial system or on the “Don’s Ask, Don’t Tell”
policy, found that there was no credible evidence that the applicant would not receive a fair hearing
or would receive a more severe sentence because she is gay if she were to be prosecuted before a
court-martial, and relied on the evidence accepted in Hinzman that 94% of deserters have been dealt
with administratively and merely received a less-than honorary discharge from the military. Finally,
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the Board Member referred to newspapers articles according to which President Obama is about to
repeal the “Don’t Ask, Don’t Tell” policy and inferred that the “ammunition” currently used by
prosecutors in U.S. court-martials, in situations similar to that of the applicant, will then also be
“swept away”.
[28] In conclusion, the Board summed up its findings in the following paragraphs:
209. Having considered all of the evidences and the submissions of
the claimant’s counsel, I determine that the claimant has failed to
present “clear and convincing” proof of the inability of the United
States to protect her.
210. I also determine that the claimant has not satisfied her burden of
establishing a serious possibility of persecution on a Convention
ground or that it is more likely she would be tortured or face a risk to
her life or risk of cruel and unusual treatment or punishment upon
return to the United States.
211. A given episode of mistreatment may constitute discrimination
or harassment, yet not be serious enough to be regarded as
persecution. Indeed, a finding of discrimination rather than
persecution is within my jurisdiction. I find that the acts of
harassment and intimidation and written threats made against the
claimant do not constitute persecution in this particular case.
[29] As a result, the Board Member ruled that the applicant was not a “Convention” refugee
under section 96 of the IRPA or a “person in need of protection” within the meaning of section
97(1)(a) and (b) of the same Act.
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ISSUES
[30] Counsel for the applicant has raised a number of issues, which can be summarized as
follows:
a. Did the Board Member err in determining that state protection would be available
for the applicant? That question must be broken down into the following subquestions
:
i) Did the Board Member err in finding that the applicant did not seek state
protection?
ii) Did he make a speculative finding when he concluded that the murder of Private
Winchell was an isolated incident?
iii) Did he rely on extrinsic evidence taken from the decision of the Federal Court of
Appeal in Hinzman without giving the applicant an opportunity to respond?
b. Did the Board Member err in determining that the Uniform Code of Military Justice
as a law of general application, is not applied in a discriminatory fashion, that the
applicant would receive a fair hearing and that she would therefore be submitted to
prosecution and not to persecution? In coming to that conclusion, did the Board
Member err in not providing reasons as to why the expert evidence submitted on
behalf of the applicant was not credible?
ANALYSIS
[31] The RPD is an expert tribunal. As such, its findings of fact or of mixed fact and law are
reviewable according to a standard of reasonableness. The Board’s assessment of the adequacy of
state protection is a question of mixed fact and law which must accordingly be reviewed according
to a standard of reasonableness. The same is true of the question as to whether an individual faces
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persecution in his or her country of origin: Hinzman v. Canada (Minister of Citizenship and
Immigration), 2006 FC 420, at para. 199; 2007 FCA 171, at para. 38.
[32] On the other hand, the issues raised by the applicant that pertain to procedural fairness are
questions of law. Either the decision-maker has complied with the duty of fairness appropriate in the
particular circumstances, or has breached this duty: no deference is due when such an issue is raised.
See A.G. Canada v. Sketchley, 2005 FCA 404, paras. 52-53.
A) Did the Board Member err in determining that state protection would be available to the
applicant?
[33] The Federal Court of Appeal and the Supreme Court of Canada have made it clear that the
starting point in assessing the applicant’s claim consists in the examination of the adequacy of state
protection: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at p 722; Hinzman v. Canada
(Minister of Citizenship and Immigration), 2007 FCA 171, at para. 42. Where state protection is
found to be adequate, it is not necessary for the Board to go any further. As the Federal Court of
Appeal stated in Hinzman:
The appellants say they fear persecution if returned to the United
States. However, to successfully claim refugee status, they must also
establish that they have an objective basis for that fear: Ward at p.
723. In determining whether refugee claimants have an objective
basis for their fear of persecution, the first step in the analysis is to
assess whether they can be protected from the alleged persecution by
their home state. As the Supreme Court of Canada explained in Ward
at page 722, “[i]t is clear that the lynch-pin of the analysis is the
state’s inability to protect: it is a crucial element in determining
whether the claimant’s fear is well-founded.” [Emphasis in original.]
Where sufficient state protection is available, claimants will be
unable to establish that their fear of persecution is objectively wellfounded
and therefore will not be entitled to refugee status. It is only
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where state protection is not available that the court moves to the
second stage, wherein it considers whether the conduct alleged to be
persecutory can provide an objective basis for the fear of
persecution…
See also: Colby v. Canada (Minister of Citizenship and
Immigration), 2008 FC 805; Landry v. Canada (Minister of
Citizenship and Immigration), 2009 FC 594.
[34] The case law is also to the effect that refugee protection is meant to be a form of surrogate
protection to be invoked only in those situations where the refugee claimant has unsuccessfully
sought the protection of his home state. Absent a situation of complete breakdown of state
apparatus, it should be assumed that the state is capable of protecting a refugee claimant. To rebut
the presumption, an applicant must offer “clear and convincing confirmation of a state’s inability to
protect”: Ward, at pp. 724-725; Hinzman, at para. 44. If an applicant does not provide such clear
and convincing evidence, he cannot qualify as a Convention refugee or a person in need of
protection. In other words, proof must be adduced that all possible avenues of protection available
have been exhaustively sought before claiming refugee status. Speculation that state protection
would be inadequate is not sufficient.
[35] That being said, a refugee claimant has the obligation to seek out protection in his home
country only if that protection can be said to “reasonably have been forthcoming” (Ward, supra, at
p. 724). This is not meant to be an easy way out of the requirement that a refugee claimant approach
his home country for protection before seeking international refugee protection. As the Supreme
Court stated in Ward (at p. 724), “…the claimant will not meet the definition of “Convention
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refugee” where it is objectively unreasonable for the claimant not to have sought the protection of
his home authorities…”.
[36] Of course, the burden of the applicant is greater in this case as the country to which she is to
be returned is the United States, “a democratic country with a system of checks and balances among
its three branches of government”, and which “has adopted a comprehensive scheme to ensure those
who object to military service are dealt with fairly”: Hinzman, at paras. 46, 57.
[37] In the present case, the situation is quite distinguishable from the problems raised, before
this Court and the Court of Appeal, by a number of recent U.S. Army deserters, and most notably
Mr. Hinzman. The Board Member appeared, at times, to have focused on the applicant’s status as a
conscientious objector. Indeed, he wrote at para. 161 of his reasons:
It appears to me that the claimant’s situation is no different from
Hinzsman’s legal situation because both of them made a formal
claim of being a contentious [sic] objector and a reluctance to engage
in combat.
[38] To be fair, it is true that the applicant did mention in the narrative appended to her Personal
Information Form (PIF) that she did not know what the phrase “conscientious objector” meant, and
that it was not explained to her that one of the forms she was made to sign when she joined the army
was a waiver of her right to claim that right.
[39] But it is also equally clear when reading her narrative as a whole and the evidence submitted
to the Board that her situation was much different from that of Mr. Hinzman and that her claim was
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first and foremost predicated on her sexual orientation. Unlike Mr. Hinzman, she could be punished
not only on AWOL and desertion charges, but also for simply being gay. As already mentioned,
Article 125 of the Uniform Code of Military Justice still makes it an offense to have sexual relations
with a person of the same sex. This fundamental flaw in the Member’s reasoning, it seems to me,
permeates his entire approach to the case and certainly skewed, at least to some extent, his
perception of the nature of the applicant’s claim and predicament.
[40] Before weighing the various arguments made by counsel for the applicant, it is worth noting
that the Board did not make any adverse credibility findings with respect to the applicant. He found
that she was, indeed, a gay person, and there is no suggestion that she faked her sexual orientation to
be discharged from the Army. Nor did the Board Member make any unfavourable credibility
findings with respect to the harassment and threats that were directed at the applicant while a
Member of the United States Army.
[41] It is alleged that the first error made by the Board Member was in his determination that Ms
Smith did not seek state protection. The Board Member wrote:
She alleges she spoke to a sergeant asking permission from him to
speak to the First Sergeant to tell him about her being gay and
wanting to leave the army.
She did not make any attempts to seek the help of higher authorities
in her unit other than the sergeant.
A claimant is required to approach her or his state for protection in
situations which protection might reasonably be forthcoming. The
claimant must show that it was reasonable for her not to seek
protection. When asked why she did not seek protection from higher
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authorities at Fort Campbell, she replied: “]…] I considered it but did
not. I felt higher ranking officers were in on it”.
She gave no explanation as to why she thought the higher ranking
officers were involved. In fact, her evidence is that she tried to find
out who wrote the note threatening to kill her in her sleep by
comparing the signatures of fellow soldiers to other paperwork the
soldiers had signed, but was unable to ascertain with certainty who
wrote the note. It was speculation only on her part that higher
ranking officers were involved.
Reasons for Decision, at paras. 189-192.
[42] Contrary to the situation in Hinzman, where the appellants had not made an adequate
attempt to avail themselves of the protections afforded by the UCMJ, the applicant in this case
provided evidence that she did approach her superiors to try to obtain a discharge. According to the
evidence offered by the applicant, she went so far as to ask her superior for permission to speak to a
higher authority, but that was denied. She also testified that one superior scoffed at her and said they
would figure out the paperwork when she returned from her tour of duty in Afghanistan.
[43] The case law of this Court requires more than one attempt to obtain state protection. It is
often said that an applicant must usually follow up on his complaint, and seek assistance from
higher authorities if unsuccessful at the first stage. Yet, one must take into account the particular
environment that an applicant finds himself in. It is clear that in the Army reigns an atmosphere of
unconditional obedience to the hierarchy. The Board Member did not seem to be sensitive to this
special context.
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[44] Further, the applicant provided evidence that she was afraid that her superiors may have
been involved in the harassment and threats targeted at her. She had reasons to perceive her
superiors as being the potential authors or participants in the harassment and threats directed at her.
She stated in her PIF and in her testimony that she felt that she started receiving harsher treatment
from her superiors when they heard rumours that she was a lesbian. Moreover, one of her superiors
told her to “tone down her behaviour”, which the applicant believed was a reference to her sexual
orientation. Nonetheless, the Board Member found that the applicant’s belief to the effect that
higher ranking officers were involved was pure speculation. While such a finding is normally
entitled too much deference, it may nevertheless be questioned when the Board Member has not
considered all the evidence submitted by the applicant, especially when that evidence has remained
uncontradicted.
[45] What is more, the personal experience of the applicant seems to be consistent with the
documentary evidence indicating that superiors in the U.S. military are too often complacent and
sometimes even actively participate in the harassment and abuse directed at gays and lesbians in the
military. This evidence should also have been taken into account by the Board Member in assessing
whether the applicant adequately attempted to avail herself of the protection afforded by the state.
[46] This failure to give due consideration to that documentary evidence ties in with two other
errors allegedly made by the Board Member and which relate to the willingness of the state to afford
protection.
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[47] First, counsel for the applicant contended that the Board Member erred in speculating as to
the isolated nature of Private Barry Winchell murder, which took place in 1999. This murder was
clearly a watershed moment in the long struggle of gay, lesbian and bisexual persons to be fully
accepted in the U.S. Army. On July 5, 1999, Private Winchell was brutally beaten to death with a
baseball bat while sleeping outside his barracks room at Fort Campbell, Kentucky. Soldiers later
testified that Private Winchell had faced daily anti-gay harassment for more than four months prior
to his murder, on the basis of rumors that he was gay (“Conduct Unbecoming: Sixth Annual Report
on “Don’t Ask Don’t Tell, Don’t Pursue, Don’t Harass” by Servicemembers Legal Defence
Network, 2000; Exhibit “8” to the applicant’s affidavit).
[48] When evaluating the affidavit evidence of Mr. Rehkopf, the Board Member made the
following finding:
151. Mr. Rehkopf suggests further that because the US Army could
not protect Private First Class Barry Winchell, and a host of other
gay and lesbian service members who have been subjected to vicious
attacks and murder, that this is “clear and convincing” evidence of
the state’s inability to protect the claimant.
152. I do not accept his “opinion” as credible. The Winchell murder
was no doubt a brutal act but an isolated one. Although Mr. Rehkopf
makes no mention as to whether the perpetrator or perpetrators of
that act were charged and convicted of killing Winchell. I suspect
they must have been and were sentenced to lengthy periods in prison
and subjected to other severe penalties.
[49] This was clearly a speculative finding that was not open to the Board Member in the
absence of any evidence to support it. The Federal Court of Appeal held, in Canada (Minister of
Employment and Immigration) v. Satiacum, [1989] F.C.J. No. 505; 99 N.R. 171, that findings
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cannot be based upon evidence that is the “sheerest conjecture or the merest speculation”. The Court
delineated the difference between speculation and reasonable inference by stating:
The dividing line between conjecture and inference is often a very
difficult one to draw. A conjecture may be plausible but it is of no
legal value, for its essence is that it is a mere guess. An inference in
the legal sense, on the other hand, is a deduction from the evidence,
and if it is a reasonable deduction, it may have the validity of legal
proof. The attribution of an occurrence to a cause is, I take it, always
a matter of inference.
See also: Hassan Bedria Mahmoud v. Canada (Minister of
Citizenship and Immigration), [1996] F.C.J. No. 250; 61
A.C.W.S.(3d) 768, at para. 7; Bains v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1144, at para. 12.
[50] There was simply no evidence before the Board Member to support his finding that the
brutal murder of Private Winchell was an isolated incident, or that those who harass, threaten or
physically harm or kill gays and lesbians in the military are severely punished. Quite to the contrary,
the applicant submitted evidence that was to the opposite effect: namely, that the harassment and
violent attacks on gays and lesbians in the Army is systemic and commonplace in the American
military, and that immediate supervisors and unit commanders tolerate or are believed to tolerate
that behaviour to some extent.
[51] In a report commissioned by the Center for the Study for Sexual Minorities in the Military
(“The Practical and Conceptual Problems with Regulating Harassment in a Discriminatory
Institution”, U. of California, 2004; Exhibit 5 to the applicant’s affidavit), to which the Board
Member refers extensively in his reasons, it is indicated that the top of the chain of Command at
Fort Campbell did not issue a single statement condemning anti-gay conduct following Winchell’s
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murder, and even denied its existence. This senior ranking officer blamed the increase in gay
discharges on gays seeking a means to leave the Army, but was nevertheless promoted to Lieutenant
General, the second highest position in the Army. These specific findings are reported by the Board
Member at paragraphs 84 and 85 of his reasons.
[52] But it was not sufficient to summarize the evidence presented by the applicant. The Board
Member should have addressed that evidence and discussed it in his reasons, and could not content
himself with speculations that Private Winchell murder was just an isolated incident. This was all
the more important since the applicant had pointed out to the Board Member that she and Private
Winchell not only shared a perceived identity in sexual orientation, but that they were both based at
Fort Campbell. She also provided evidence that she received threats that she would be beaten with a
baseball bat in her sleep, just like Private Winchell. It was incumbent upon the Board Member, in
making his finding that Private Winchell’s murder was an isolated incident, to indicate why he did
not accept evidence to the opposite effect.
[53] This speculative finding of the Board Member is not innocuous. First of all, the evidence
offered by the applicant goes a long way to establishing her subjective fear of persecution as well as
the threat to her life. That evidence was also crucial to substantiate the objectiveness of her fear, and
the ability and willingness of the state to protect her. One must not loose sight of the fact that the
applicant could be returned to her unit and face the same threats that she had faced before pending
determination of the measures to be taken against her. Accordingly, I am of the view that the
Board’s failure to explain why this evidence was rejected was material to its decision. It is true that
Page: 22
the Board Member summarized at some length the evidence offered by the applicant, but he has by
no means considered it, let alone analyzed it and provided reasons for dismissing it.
[54] The Board Member made a second error when he relied on evidence not before him and
failed to give the applicant an opportunity to respond to that extrinsic evidence. Without even
mentioning his sources, the Board Member wrote:
While punishment for desertion can include imprisonment, the
evidence indicates that the majority of Army deserters in the United
States, for whatever reason, have not been prosecuted or courtmartialed
and that 94 percent of deserters have been dealt with
administratively and merely received a less-than honorary discharge
from the military.
[55] This evidence was clearly not before the Board Member, and appears to come directly from
the decision of the Federal Court of Appeal in Hinzman (at paras. 48 and 58). The respondent
submits that the Board could take notice of any generally recognized facts and any information or
opinion that is within its specialized knowledge. There are, however, a number of problems with
such a line of argument.
[56] First of all, I do not think this is the kind of facts the Board could take “judicial notice” of.
The test to determine whether a particular fact can be considered by a court without any proof has
been well summarized in the doctrine:
Judicial notice is the acceptance by a court, without the requirement
of proof, of any fact or matter that is so generally known and
accepted in the community that it cannot be reasonably questioned,
or any fact or matter that can readily be determined or verified by
resort to sources whose accuracy cannot reasonably be questioned.
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[…]
Judicial notice dispenses with the need for proof of facts that are
clearly uncontroversial or beyond reasonable dispute. Facts judicially
noticed are not proved by evidence under oath. Nor are they tested by
cross-examination. Therefore, the threshold for judicial notice is
strict: a court may properly take judicial notice of the facts that are
either: (1) so notorious or generally accepted as not to be the subject
of debate among reasonable persons; or (2) capable of immediate and
accurate demonstration by resort to readily accessible sources of
indisputable accuracy.
Paciocco & Stuesser, The Law of Evidence, 4th ed., Toronto, Irwin
Law, 2005, at p. 376.
[57] While rules of evidence must be relaxed before administrative tribunals, I do not believe that
this should be taken as license to accept in evidence controversial facts that have not been argued at
all, especially when these facts can be of material significance for the outcome of a case of such
vital importance for an applicant. The assertion that 94 percent of deserters have been dealt with
administratively is not “clearly uncontroversial or beyond reasonable dispute”. Nor is it a fact that
“is so generally known and accepted in the community” or can “readily be determined or verified”
by indisputable sources.
[58] Assuming that this kind of information could be considered within the specialized
knowledge of the Board, the applicant should have been advised that the Board intended to use that
knowledge and be given an opportunity to respond. Rule 18 of the Refugee Protection Division
Rules (S.O.R./2000-228) provides as follows:
Notice to the parties
18. Before using any
information or opinion that is
within its specialized
Avis aux parties
18. Avant d’utiliser un
renseignement ou une opinion
qui est du ressort de sa
Page: 24
knowledge, the Division must
notify the claimant or
protected person, and the
Minister if the Minister is
present at the hearing, and give
them a chance to
(a) make representations on
the reliability and use of the
information or opinion; and
(b) give evidence in support of
their representations.
spécialisation, la Section en
avise le demandeur d’asile ou
la personne protégée et le
ministre — si celui-ci est
présent à l’audience — et leur
donne la possibilité de :
a) faire des observations sur la
fiabilité et l’utilisation du
renseignement ou de l’opinion;
b) fournir des éléments de
preuve à l’appui de leurs
observations.
[59] Commenting on this Rule, this Court wrote in Isakova v. Canada (Minister of Citizenship
and Immigration), 2008 FC 149, at para. 16:
The purpose of Rule 18 is to enable a claimant to have notice of the
specialized knowledge and to give him or her the opportunity to
challenge its content and use in reaching a decision. Therefore, in
order for Rule 18 to be effective, the RPD member who declares
specialized knowledge must place on the record sufficient detail of
the knowledge so as to allow it to be tested. That is, the knowledge
must be quantifiable and verifiable.
See also: Habiboglu v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1664; Sadeghi-Pari v. Canada (Minister of
Citizenship and Immigration), 2004 FC 282; Panuk v. Canada
(Minister of Citizenship and Immigration), 2003 FC 1187.
[60] In the case at bar, the Board Member did not give notice to the applicant that he had
specialized knowledge with regards to the fact that 94 per cent of deserters are dealt with
administratively, and that he intended to rely on that information. He did not provide the source of
that information either, and the applicant was not afforded an opportunity to respond thereto.
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[61] In any event, I do not think that this particular information can be characterized as falling
within the specialized knowledge of the Board. The explanation, it seems to me, is more prosaic: the
Board Member simply "lifted" a finding made in a previous decision. This is clearly not acceptable,
as it is well established that a finding of fact must always based on the evidence submitted to the
decision-maker. As this Court has repeatedly stated, each case must be decided on its own facts.
Nowhere is this rule clearer than in matters pertaining to state protection. It has been held time and
again that it cannot be conclusively determined, on the basis of previous findings of state protection
(or lack thereof) pertaining to a particular case, that state protection exists or does not exist in a
particular country. The correct approach has been expressed as follows:
Second, it was not sufficient for the Board to simply "refer" to an
earlier decision of the Board for its state protection analysis. The
RPD may, as a matter of law, adopt another panel's analysis or
conclusion, but as I wrote in Olah v. Canada (Minister Citizenship
and Immigration), [2001] F.C.J. No. 623, at paragraph 25, a panel
cannot blithely incorporate findings of fact from other cases. In
Badul v. Canada (Minister of Citizenship and Immigration), [2003]
F.C.J. No. 440, at paragraph 25 my colleague Mr. Justice O'Reilly
wrote that reliance upon the findings of another panel must be
"limited, careful and justified". In Ali v. Canada (Minister
Citizenship and Immigration), [2004] F.C.J. No. 1755, I found that
the RPD could adopt the reasoning and findings of another case with
respect to similarly situated people in Pakistan where satisfied that
the facts and evidence regarding country conditions in the earlier
case were sufficiently close to the facts and evidence before the RPD
in the second case.
Shahzada v. Canada (Minister of Citizenship and Immigration) 2005
FC 1176, at para. 6. See also: Hassan v. Canada (Minister of
Citizenship and Immigration), 2005 FC 601, at paras. 6-7; Santiago
v. Canada (Minister of Citizenship and Immigration) 2008 FC 247;
Arellano v. Canada (Minister of Citizenship and Immigration), 2006
FC 1265.
Page: 26
[62] It is worth pointing out that in Hinzman, counsel for the appellant disputed the statistics
relating to punishment for deserters on the basis that they were compiled prior to the
commencement of the most recent U.S. military action in Iraq. The Court of Appeal nevertheless
accepted the evidence indicating that the vast majority of Army deserters had not been prosecuted or
court-martialed because the appellants could not point to any contrary evidence. The Court was also
of the view that there was reason to believe the statistics would not have changed materially
following the outbreak of the war, since it is in the best interests of the military to accommodate
those who object to combat as they may be ineffective at best and are likely to spread their beliefs
among their colleagues.
[63] In the present case, the applicant submitted documentary evidence revealing sentencing
disparities for those convicted of desertion and going AWOL (Exhibit 18 to the affidavit of the
applicant). As well, the applicant offered evidence that the military was not discharging those
identifying themselves as gay or lesbian at the same rates as in the past, including a chart showing
recent statistics indicating a significant decrease in discharges of gays and lesbians since 2001, as
well as documentary evidence explaining that such decrease was due to the need for more personnel
for the wars that the United States is engaged in. Not only does this evidence tend to refute the
finding in Hinzman, but it also addresses a different fact situation than that examined in that case.
[64] In the light of the evidence that was before him and that had not been offered in Hinzman,
and considering that the applicant was claiming refugee status not on the basis of her conscientious
objection to the war but on the ground of her sexual orientation, the Board Member could not
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merely base his decision on a finding made in another context. It was incumbent upon him, at the
very least, to provide reasons as to why he nevertheless adopted that finding and discounted the
evidence tending to invalidate it submitted by the applicant. I therefore find that the Board Member
came to an unreasonable conclusion since he followed blindly a finding taken from another decision
and grounded on a completely different evidentiary basis.
[65] In view of these two errors (speculating about the isolated nature of Private Winchell murder
and following a finding in Hinzman that 94 per cent of deserters are dealt with administratively),
the argument that speculation is not enough when claiming that state protection could not
reasonably have been forthcoming cannot defeat the applicant's claim. In Hinzman, it will be
remembered, the Court held that no evidence had been offered to establish that the appellants would
not be afforded the full protection of the law. In the case at bar, while the applicant had (according
to Hinzman) a heavy burden of proof with respect to the presumption that the United States is
capable of protecting her, she did provide evidence (both in her own affidavit and testimony and in
a plethora of documents) in support of her allegations.
[66] As a result, I am of the view that the Board Member erred in two respects in determining
whether the applicant had an objective basis for her fear of persecution. First, he did not take fully
into account the evidence pertaining to the situation of gays and lesbians in the U.S. Army in order
to determine whether the applicant made an adequate attempt to avail herself of the protection
afforded in her country. Second, the Board Member erred in weighing that evidence, and thus drew
two unwarranted conclusions therefrom. These two errors were material in the Board Member’s
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decision. Even assuming the applicant could have pursued further her request to be discharged, it
was still open to her to demonstrate that she could not be required to seek out state protection since
it was unlikely to be forthcoming. In failing to properly assess the evidence before him, the Board
Member precluded that line of reasoning.
B) Did the Board Member err in finding that the applicant would be submitted to
prosecution and not to persecution?
[67] Although not required to do so, in view of his ruling as to the adequacy of state protection,
the Board Member nonetheless did proceed to examine the applicant’s claim that the application of
the Uniform Code of Military Justice upon her return to the United States would result in
persecution. To establish this claim, the applicant had to show that the relevant provisions of the
UCMJ would be applied to her in a discriminatory fashion or would result in cruel and unusual
punishment or treatment.
[68] To support her allegations in this respect, the applicant relied principally on the affidavit of
Mr. Rehkopf, an attorney at law who had 32 years of military law experience both as prosecutor,
defence counsel and acting Staff Judge Advocate. Yet, after reviewing Mr. Rehkopf’s evidence
(with which he disagreed on a number of points), the Board Member questioned his credibility in
the following manner:
173. I find of interest that Mr. Rehkopf states in his affidavit that he
entered active duty in the Air Force in 1976 as a Judge Advocate;
“[…] that he served in active duty from 1976 to 1981 as an
Assistant Staff Judge Advocate […] and he has 32 years
“military law experience” as a prosecutor, defense counsel
and Acting Staff Judge Advocate. He has tried in excess of
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225 cases to a verdict. The majority of them being military
courts-martial […]”
174. He does not indicate how many times he acted as the
prosecutor in those 225 plus cases. If Mr. Rehkopf was so concerned
about the inequities of the military justice system in so far as it
relates to homosexuality in the armed forces, one wonders why, if he
acted as a prosecutor in such military claims, that he was able to
control his emotions or continue on with those prosecutions of
deserters (assuming that some of the members included issues of
homosexuality) in light of what he now says about the injustices and
Draconian sentences handed out by the Court-Martial judges in
situations in which the claimant now finds herself in.
[69] This unfavourable finding as to credibility is problematic in a number of ways. The
respondent is correct to point out that Mr. Rehkopf was not qualified as an expert by the Board, and
had no firsthand knowledge of the applicant or of her exact circumstances. That being said, I am of
the view that his affidavit was not just a lay opinion which the board could reject without providing
reasons for doing so. Mr. Rehkopf obviously had a long experience as a military lawyer and has
acted as defense counsel, prosecutor and judge for many years. It was open to the Board, of course,
to prefer other evidence to that provided by Mr. Rehkopf. The problem is that the Board Member
discounted his experience and expertise without providing reasons or referring to adverse evidence.
Indeed, there was no evidence whatsoever before the Board refuting the evidence of Mr. Rehkopf.
[70] The Board Member aptly noted that Mr. Rehkopf made some assumptions in his affidavit
which must be dismissed as speculative. This is a fair comment, although he offered only one single
example of such an assumption. It might have been helpful if he had specified those other
assumptions which he found unwarranted, as there is obviously a fine line between offering an
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opinion and making unsubstantiated assumptions. Moreover, the Board Member himself engaged in
speculation (when he stated that the murder of Private Winchell was an isolated act) to attack Mr.
Rehkopf’s credibility. Similarly, he seemed to assume that the “Don’t Ask, Don’t Tell” policy, if
challenged, would be declared unconstitutional. Not only is this assumption, at best, highly
questionable (the Board Member offers no legal analysis to support that view), but it is irrelevant to
determine how the applicant would be treated, in the meantime, if returned to the United States.
Finally, he quoted from a newspaper article published after the hearing, according to which
President Obama was expected to repeal the “Don’t Ask, Don’t Tell” policy, and inferred that this
would “sweep away” most if not all of the ammunition presently used by prosecutors in U.S. courtmartials
in situations similar to those the applicant finds herself in. Once again, this reference was
totally inappropriate as it was purely speculative and did not change the law as it stood at the time
the Board Member rendered his decision.
[71] The only reason provided by the Board Member to dismiss Mr. Rehkopf’s affidavit is the
apparent inconsistency between the position he now takes and the fact that he worked as a
prosecutor in cases of desertion. While this may validly raise questions as to the motives underlying
Mr. Rehkopf’s testimony, it is not sufficient, in and of itself, to undermine his opinions. In fact, one
could even argue that it makes his opinion all the more compelling, since he had the advantage of
seeing firsthand not only what the black-letter law is but how it operates in practice. Mr. Rehkopf
was never cross-examined on his affidavit, and so we will never know how he reconciled the views
expressed in his affidavit with his past work experiences. It may well be, for example, that he never
had to deal personally with prosecutions of deserters involving issues of homosexuality, contrary to
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the groundless assumption made by the Board Member. I am therefore of the view that this attack
on his credibility was totally inappropriate, and was based, at least in part, on pure speculation.
[72] Counsel for the respondent suggested that the opinion of Mr. Rehkopf was dismissed
because he did not exhibit the degree of impartiality and objectivity necessary to render his
testimony reliable, assuming instead the role of an advocate. Using the same example as the Board
(i.e. Mr. Rehkopf’s assumption that the applicant will not be paid for a considerable time because
her pay records will have been “lost” and that she would be treated worse than drug dealers),
counsel argues that Mr. Rehkopf’s affidavit is that of an advocate as it is replete with speculations
and conjectures.
[73] Having read carefully the affidavit of Mr. Rehkopf, I am not prepared to go that far. As
previously mentioned, it is the role of an expert to offer an opinion on the basis of inferences drawn
from the facts. Of course, the accuracy and reliability of the underlying facts on which the opinion is
based will be crucial in determining the weight to be given to expert evidence. In the case at bar, the
Board Member not only found the applicant’s story credible, but failed to refute the facts upon
which the opinion of Mr. Rehkopf was based by referring to adverse evidence. While some
comments made by Mr. Rehkopf could properly be given little weight as they verged on advocacy,
this was clearly not sufficient to justify the outright rejection of his affidavit altogether.
[74] There is another, perhaps more fundamental, problem with this argument. Nowhere in his
reasons did the Board Member offer such an explanation for rejecting Mr. Rehkopf’s evidence. It is
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trite law that on judicial review, it is the reasons provided by the Board that are to be reviewed;
there is no room for ex post facto rationalization of the decision offered by the party wishing to have
that decision upheld.
[75] The same can be said with respect to the further argument made by the respondent that Mr.
Rehkopf’s opinion constituted a pronouncement on the questions that were to be ruled on by the
Board, such as the availability of state protection and persecution versus prosecution. The Board
Member quite correctly remarked that it was for him, and not for Mr. Rehkopf’s, to draw the line
between prosecution and persecution in the application of the UCMJ. Similarly, it was open to him
to find that, as a law of general application, the UCMJ is applied in a non-discriminatory fashion
and to reject Mr. Rehkopf's opinion in that respect. But nowhere did he write that he dismissed the
affidavit in its entirety because Mr. Rehkopf expressed an opinion on the mode of application of
domestic law. Indeed, that would have been excessive.
[76] Mr. Rehkopf did not offer an opinion as to whether the applicant is a refugee under
Canadian law. He did not purport to state categorically that the applicant would be persecuted if she
were to return to the United States either. Quite to the contrary, he acknowledged that it is not an
easy task to draw the line between prosecution and persecution, and simply described the situation
that she would likely face when she returned (see pp. 20 and 21 of his affidavit, Exhibit 20 of the
applicant affidavit). He also offered his opinion, based on American, Canadian and European law,
that the situation that Ms. Smith would face due to her sexual orientation is of the sort condemned
by the international community as contrary to basic rules of human conduct. I fail to see how these
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views stray from the appropriate purview of expert opinion. Mr. Rehkopf stayed clear of expressing
an opinion on the ultimate question to be ruled on by the Member.
[77] As for the views he expressed with respect to the decisions of this Court and the Federal
Court of Appeal in Hinzman, they were not inappropriate either. It is true that domestic law is not a
subject about which a Canadian court will receive opinion evidence: see R. v. Graat, [1982] 2
S.C.R. 819; Ugbazghi v. Canada (Minister of Citizenship and Immigration), 2008 FC 694, at para.
27. But that is not what Mr. Rehkopf did in his affidavit. He was well aware of that danger, and he
went out of his way to emphasize that he was not attempting to provide legal advice concerning
Canadian law (see footnote 11 of his affidavit). In fact, he purported to apply the requirements
spelled out in Hinzman with respect to state protection, and merely rejected the view that the UCMJ,
even though it is in theory a law of general application, is always applied in a non-discriminatory
fashion, first because the black-letter law is one thing and the application thereof may be a quite
different one, and second because it only applies to persons having actual military status. These are
opinions as to facts that do not detract from the legal principles espoused by this Court and the
Court of Appeal in Hinzman and that he was entitled to make on the basis of his experience and
expertise in American military law.
[78] Having dismissed the evidence presented by Mr. Rehkopf, the Board Member cited the
decision of the Federal Court of Appeal for the proposition that the UCMJ is a law of general
application that is applied in a non-discriminatory fashion, and also found that there was no credible
evidence that the applicant would not receive a fair hearing upon her return to the United States.
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Considering the evidence that was before him, I do not think that this was a finding that was
reasonably open to him.
[79] The duty of the Board was to determine whether the applicant would face persecution
should she be returned to her country. Paragraph 167 of the UNHCR Handbook states that “[f]ear of
prosecution and punishment for desertion or draft-evasion does not in itself constitute well-founded
fear of persecution under the definition”. But paragraph 168 goes on to say:
The person is clearly not a refugee if his only reason for desertion or
draft-evasion is his dislike of military service or fear of combat. He
may, however, be a refugee if his desertion or evasion of military
service is concomitant with other relevant motives for leaving or
remaining outside his country, or if he otherwise has reasons within
the meaning of the definition, to fear persecution.
[80] One of the exceptions outlined by the Handbook is found at paragraph 169 and refers to an
applicant who can establish some form of discriminatory mistreatment before, during or even after
military service. The Federal Court of Appeal implicitly referred to that exception in Hinzman, at
paragraph 31:
Finally, the Board considered whether the punishment the appellants
would face upon return to the United States would amount to
persecution. To establish this claim, the Board indicated that the
appellants would have to show that the relevant provisions of the
U.S. Uniform Code of Military Justice (“UCMJ”) would be applied
to them in a discriminatory fashion or would amount to cruel or
unusual treatment or punishment.
[81] In that case, the Court of Appeal eventually held that the UCMJ is a law of general
application applied in a non-discriminatory fashion. But that finding was made in a context where
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there were many provisions and procedural safeguards designed to ensure that conscientious
objectors can claim exemptions from military service or alternatives to combat, as is made clear at
paragraph 47 of that decision.
[82] The applicant’s claim is not simply that she is a conscientious objector and that she will be
punished if she returns. At the heart of the applicant’s claim is that she is a lesbian member of the
U.S. Army, who was harassed and threatened at the same base where a gay member of the Army
was beaten to death, and who feels she could not rely on her superiors to secure protection. She
fears that she could be punished for leaving an environment where her life is in danger.
[83] The duty of the Board Member was to determine whether she would suffer persecution as a
result of the relevant substantive law or of the process whereby the law would be applied to her. It
was not enough for the Board Member to state that he is “not in a position to defend or criticize”. It
is part and parcel of the assessment of a refugee claim to determine whether a claimant has a wellfounded
fear of persecution for reasons, inter alia, of her membership in a particular social group, if
he/ she is returned to his/her home country.
[84] The applicant provided evidence to the Board that the punishment she would be exposed to
under the court-martial process relates to a breach of a law that is in conflict with a fundamental
human right and therefore adversely differentiates on a Convention ground in its application. In
particular, the applicant is at risk of being court-martialed for the following crimes: “Absent
Without Leave”, “Desertion”, “Desertion to avoid hazardous duty” and/or “Indecent Act” (for
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engaging in homosexual behaviour) punishable under the UCMJ. Yet, there was evidence before the
Board Member that the Supreme Court of the United States has declared unconstitutional a state
statute making it a crime for two adults of the same sex to engage in consensual “sodomy”. The
UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity
(Exhibit 35 of the applicant’s affidavit) also provides that acts of physical, sexual and verbal abuse
and discrimination against gays and lesbians, when they go unpunished, may form the basis of a
refugee claim. Similarly, this Note adds that “[b]eing compelled to forsake or conceal one’s sexual
orientation and gender identity, where this is instigated or condoned by the State, may amount to
persecution” (at para. 12). This evidence could not simply be ignored by the Board Member and had
to be properly discussed and analyzed before he could conclude that the UCMJ was a law of general
application and applied in a non-discriminatory fashion.
[85] The Federal Court of Appeal has also recognized that an applicant may qualify as a
Convention refugee even if it is ruled that a law is prima facie of general application. This might be
the case, for example, if the law is selectively applied, or if the punishment or treatment provided
for in a law of general application is out of all proportion to the objective of the law: see Cheung v.
Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314, at paras. 16-17. The recent
decision of this Court in Rivera v. Canada (Minister of Citizenship and Immigration), 2009 FC 814,
provides a useful and vivid illustration of this principle. Accordingly, the Board Member could not
ignore the evidence suggesting unequal treatment for homosexuals before court-martials, both in the
exercise of the discretion to prosecute and in the sentencing. Similarly, there was evidence both in
the documentation before the Board Member and in the affidavit submitted by Mr. Rehkopf to the
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effect that military judges are not independent as they are part of the chain of command and depend
upon superior officers for promotions and subsequent assignments, that convening authorities
determine whether a member of the military will be prosecuted and select potential jurors, and that
there is no uniform or consistent method by which sentences are imposed on military personnel
convicted of AWOL or desertion. While these assertions appear to contradict the findings of the
Board and of the Federal Court of Appeal in Hinzman, it must be remembered that these findings of
fact were made on the basis of the evidence that was submitted by the parties in that case. In fact,
the Court of Appeal noted in Hinzman (at para. 49) that there was no evidence before the Board to
the effect that the military judges are not independent or that the procedure by which the law would
be applied to the applicant is discriminatory. Furthermore, Hinzman was decided in the specific
context of a claim based on conscientious objection and not on sexual orientation. It was therefore
the duty of the Board Member to assess the fairness of the court martial process in the light of the
particular set of facts and of the evidence that was before him.
[86] Pausing there, it seems to be commonly assumed to be inappropriate for this Court, or for
that matter any other Canadian court or administrative tribunal, to rule on the constitutionality of a
foreign statute or its compatibility with our own Charter of Rights and Freedoms. However, there is
authority for the proposition that a national court can indeed rule on the constitutionality of a foreign
statute, when proper evidence has been adduced either supporting or attacking the validity of a
statute, and when the issue of constitutionality arises incidentally in the course of the litigation: see
Estonian Cargo and Passenger S.S. Line v. S.S. Elise and Messrs. Laane and Baltser, [1948] Exch.
C.R. 435, at 451; and more recently Hunt v. T&C plc, [1993] 4 S.C.R. 289, at paras. 28-32. In the
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case at bar, the issue of the constitutionality of the relevant provisions of the UCMJ has not been
argued by the parties. Moreover, the resolution of that question is not necessary to the disposition of
this case in a judicial review context. I shall therefore refrain from making a ruling on that question.
That being said, even if restraint is called for when it comes to the constitutionality of foreign
legislation, the Board nevertheless had a duty to determine whether the UCMJ was, even though it
is prima facie a law of general application, enforced in a non-discriminatory fashion in the United
States, both substantively and procedurally.
[87] As a result of the foregoing, I come to the conclusion that the Board Member erred in
finding not only that the applicant had failed to present clear and convincing proof of the inability of
the United States to protect her, but also that she had not met her burden of establishing a serious
possibility of persecution on a Convention ground or that it is more likely than not that she would be
tortured or face a risk to her life or risk of cruel and unusual treatment or punishment upon return to
the United States. In view of the cumulative effect of the Board Member's errors in the assessment
of the evidence that was before him, his conclusions are unreasonable.
[88] The applicant has proposed the following two questions for certification:
i. Where an Applicant requests the Board Member to evaluate
evidence rebutting the presumption that the judicial process or laws
the Applicant would be subject to in her home country are not laws
of general application and therefore persecutory, does the Board
Member have an obligation to address it when making findings of
state protection?
ii. Does the Board Member have an obligation to provide an
analysis supported by evidence that trained, professional
observations brought to the Board by an expert are not credible?
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[89] It is to be noted that the applicant proposes these questions only in the event she is
unsuccessful in her judicial review. I agree with the respondent that this is a highly unusual and
inappropriate way of proceeding; if a question is truly a question of general importance
determinative of an appeal, its certification should not hinge upon the success or failure of one of
the parties.
[90] That being said, the rationale offered by the applicant in support of the certification of her
two proposed questions reads more like a further argument on the application for judicial review
than as a true justification for bringing these issues to the Court of Appeal. As I have already
canvassed in my reasons all the points raised by the applicant in her submissions relating to these
proposed questions, no additional comments are called for. Suffice it to say that they do not meet
the criteria set out in Canada (Minister of Citizenship and Immigration) v. Liyanagamage (1994),
176 N.R. 4. As for the distinction between prosecution and persecution and the issue whether a
given law that is prima facie of general application is in fact susceptible of discriminatory
enforcement, the law has already been expounded by the Federal Court of Appeal in a number of
decisions and need not be revisited in the context of the case at bar. What makes this case somewhat
unusual is not so much the legal principles at stake, but the facts on which it turns. As such, the
proposed questions are not of the kind that transcends the interests of the immediate parties. For this
reason, I decline to certify them.
Page: 40
ORDER
This application for judicial review is allowed. No question of general importance is
certified.
"Yves de Montigny"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-677-09
STYLE OF CAUSE: BETHANY LANAE SMITH
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: September 8, 2009
REASONS FOR ORDER
AND ORDER: de Montigny J.
DATED: November 20, 2009
APPEARANCES:
Ms. Jamie Liew
FOR THE APPLICANT
Mr. Brian Harvey
FOR THE RESPONDENT
SOLICITORS OF RECORD:
GALLDIN LIEW
Barristers & Solicitors
Ottawa, Ontario
FOR THE APPLICANT
MR. JOHN H. SIMS, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario
FOR THE RESPONDENT