November 20, 2007
Last week, the Supreme Court of Canada ("SCC") released judgments in 31 applications for leave to appeal, denying leave in each case (see for example, Brandon David Hughey v Minister of Citizenship and Immigration, Jeremy Hinzman (AKA Jeremy Dean Hinzman), Nga Thi Nguyen and Liam Liem Nguyen Hinzman (AKA Liam Liem Nguye Hinzman) v Minister of Citizenship and Immigration, and Kit Mei Ann Chu v Minister of Citizenship and Immigration).
Making the most noise in the media are two cases involving U.S. army deserters who were appealing the denial of their claims as Convention Refugees. Jeremy Hinzman and Brandon Hughey were both privates in the U.S. army who fled to Canada upon learning that their units were being deployed to Iraq in 2004. They both opposed the war, declaring it to be immoral and illegal, and claimed that there was “a well-founded fear of persecution” if they were to return to the U.S. The Immigration and Refugee Board disagreed. Both the Federal Court and the Federal Court of Appeal upheld this decision. In being denied leave to appeal by the SCC, the two claimants have exhausted all of their legal options in Canada and can be deported back to the U.S., where they may face court martial proceedings and the possibility of serving jail time.
Their plight is reminiscent of American draft dodgers who found refuge in Canada during the Vietnam War. However, one significant difference is that the two claimants in this case were not drafted into the army against their will but presumably joined the army of their own free choice. While I was personally against the American war in Iraq, I find myself without much sympathy for these two men. They made the conscious choice to join the U.S. army understanding the commitment which that choice entailed and they should have been aware of America's history of engaging in similar military actions in the past.
The denial of their refugee claims should not be about whether one agrees or disagrees with America's policy in Iraq. The Canadian public's displeasure with the Iraq war should not mean that these two men should be given favourable treatment in the determination of their refugee claim. Such refugee status should be reserved for those who are truly fleeing situations where their personal beliefs lead to persecution, not for those who decide to backtrack from commitments made through their own personal choices.
However, it does appear that this case has taken on a more political dimension and it is through political, rather than legal, avenues that the deserters and their supporters have now turned in hopes that they may be allowed to stay in Canada.
3 Comments
Indeed, I have to agree that these men don't fit the definition of refugees, as much as we may or may not sympathize with their situations.
If there is an avenue for their remaining in Canada, it must be through an allowance made in the regulations relating to the permanent resident immigration scheme, which seems rather unlikely, or through ministerial dispensation on humanitarian and compassionate grounds, which again seems rather unlikely.
Followup: according to the news, counsel for Messrs. Hinzmen and Hughey will indeed seek a ministerial dispensation.
I wish to make a few comments on the following statement:
"They made the conscious choice to join the U.S. army understanding the commitment which that choice entailed and they should have been aware of America's history of engaging in similar military actions in the past."
First, I agree that one of the most important facts in Hinzman is that the Applicants voluntarily enlisted in the US Army. This immediately distinguishes it from Canadian refugee law jurisprudence wherein conscripted soldiers may make a valid claim of persecution on account of the claimant's conscription into a national military organization where "he would probably be forced to participate in violent acts of persecution against non-combatant civilians, which is contrary to recognized basic international principle of human rights." (See: Zolfagharkhani v. Canada, [1993] 3 F.C. 540 at http://www.canlii.org/en/ca/fca/doc/1993/1993canlii2971/1993canlii2971.html)
Although the circumstances surrounding the desertions of the claimants in the Hinzman decision may rightfully engender the response that "refugee status should be reserved for those who are truly fleeing situations where their personal beliefs lead to persecution, not for those who decide to backtrack from commitments made through their own personal choices", I believe that this is too broad a proposition in light of the Supreme Court's decision in Ward v. Canada, [1993] 2 S.C.R. 689).
Mr. Ward was a voluntary member of the Irish National Liberation Army (INLA), "a para‑military terrorist group dedicated to the political union of Ulster and the Irish Republic." He refused to comply with orders to execute hostages under his supervision and this refusal, coupled with his subsequent abandonment of the INLA cause and release of the hostages, provided the context in which he successfully argued that he had a well-founded fear of persecution on the basis of his political opinion. This is a seminal Supreme Court of Canada decision on refugee law, penned by Mr. Justice Laforest.
Ward suggests that even where a person makes a "conscious choice" to join an organization that is involved in, or may be involved in, the commission of human rights violations, that person can also make a "conscious choice" to leave that organization, backtrack on his initial commitments, and successfully claim refugee protection in Canada on the basis of "political opinion" provided there is a well-founded fear of persecution and no exclusion.
Jeremy Hinzman joined the US Army in 2000, prior to the US military invasions of Afghanistan and Iraq, prior to the altered legal landscape rolling out of September 11th. Although the factual record in Hinzman may not have been the best for a 'test case' on US Army desertion refugee claimants, I do not think that the possibility of such a case should be dismissed on the basis that the claimant "should have been aware of America's history of engaging in similar military actions in the past."
I think it would be reasonable for someone enlisting in the US Army in 2000 to presume that they would not be put into a situation where they might breach international and human rights law or, if they were put in such a position, this was not something they agreed to in 2000, at the time of enlistment.
Hinzman, at the Federal Court of Appeal, largely turned on whether the claimants exhausted all their legal options in the US. From the evidence it appeared that had they exhausted their legal options in the US they would have been afforded full procedural protections and would likely not face any imprisonment (although this was technically a possibility). As the Court stated at para. 46:
"The United States is a democratic country with a system of checks and balances among its three branches of government, including an independent judiciary and constitutional guarantees of due process. The appellants therefore bear a heavy burden in attempting to rebut the presumption that the United States is capable of protecting them and would be required to prove that they exhausted all the domestic avenues available to them without success before claiming refugee status in Canada"
In refugee matters the Federal Court of Canada has not refrained from making pronouncements on the validity of law of general application in foreign countries where such laws having the effect of deny core human rights (See: Chan v. Canada, [1995] 3 S.C.R. 593 at para 65). The court in Hinzman, quite properly perhaps, refused to comment on the legality of the war of Iraq as they had already determined that the US justice system provided "sufficient state protection".
However, what seems problematic with this deposition is that the threat of punishment (or the punishment itself of one to five years in prison) for desertion causally arises, in the facts of this case, out of the political opinions regarding the alleged illegality of the war in Iraq. I would have preferred if the court had contemplated whether the mere threat of punishment could amount to "persecution" where a voluntary member of the armed forces, who joined the armed forces when there was not an active war, was prosecuted on account of their unwillingness to participate in an ensuing war that is alleged to have violated international law and human rights.
Even if the same result was reached, which I believe is likely and probably right, I would have preferred the court to examine the validity of the political opinions held by the deserters. Moreover, it seems to me that this would be more consistent with the approach taken in Ward.