Canada (Citizenship and Immigration) v. Rogan

Canada (Citizenship and Immigration) v. Rogan
Court (s) Database
Federal Court Decisions
Date
2011-08-18
Neutral citation
2011 FC 1007
File numbers
T-1769-07
Notes
Digest
Decision Content
Federal Court
Cour fédérale
Date: 20110818
Docket: T-1769-07
Citation: 2011 FC 1007
Vancouver, British Columbia, August 18, 2011
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Plaintiff
and
BRANKO ROGAN
Defendant
REASONS FOR JUDGMENT AND JUDGMENT
TABLE OF CONTENTS
PARA.
I. Introduction............................................................................................................... 1
II. Mr. Rogan’s Participation in the Hearing.................................................................... 9
III. The Nature of the Proceedings and the Law............................................................. 13
A. Procedural Rights.............................................................................................. 17
B. Substantive Rights.............................................................................................. 21
C. The Burden and Standard of Proof..................................................................... 24
D. What must be established in Order to find that there has been a False
Representation or Fraud or a Knowing Concealment of
Material Circumstances?.................................................................................... 30
IV. The Historical Context............................................................................................. 36
A. Dr. Nielsen’s Expertise...................................................................................... 37
B. The Conflict in Bosnia-Herzegovina.................................................................... 43
C. Events in Bileća................................................................................................. 63
D. Conclusion Regarding the Evidence of Dr. Nielsen.............................................. 66
V. The Eyewitness Testimony....................................................................................... 70
A. Branko Rogan................................................................................................... 72
B. Ramiz Pervan.................................................................................................... 86
C. Sabir Bajramovic............................................................................................... 93
D. Huso Hadzic.................................................................................................... 101
E. Kamel Hadzic.................................................................................................. 108
VI. The Arrests and Detention of the Eyewitnesses....................................................... 114
A. Ramiz Pervan’s Arrest and Detention............................................................... 115
B. Sabir Bajramovic’s Arrest and Detention.......................................................... 126
C. Huso Hadzic’s Arrest and Detention................................................................ 136
D. Kamel Hadzic’s Arrest and Detention.............................................................. 138
E. Findings with Respect to the Reason for the Detentions..................................... 141
VII. The Conditions in the Detention Facilities................................................................ 148
A. The Police Station Detention Facility................................................................ 149
B. The Student Dormitory Detention Facility......................................................... 161
C. Findings Regarding the Conditions of Detention................................................ 169
D. The Attacks on the Detention Facilities............................................................. 173
VIII. The Abuse of Prisoners in the Detention Facilities................................................... 176
IX. Mr. Rogan’s Actions at the Detention Facilities....................................................... 185
A. The Assault on Sreco Kljunak.......................................................................... 190
B. The Beating of Munib Ovcina........................................................................... 200
C. The Beating of Asim Catovic............................................................................ 210
X. Conclusion Regarding Mr. Rogan’s Involvement in the Mistreatment
and Physical Abuse of Prisoners............................................................................. 242
XI. The Law Governing Mr. Rogan’s Application for Permanent Residence.................. 247
XII. The Processing of Applications for Permanent Residence at the
Belgrade Office in 1994......................................................................................... 254
XIII. Mr. Rogan’s Application for Permanent Residence................................................. 289
A. Mr. Rogan’s Education.................................................................................. 294
B. Mr. Rogan’s Employment............................................................................... 303
(1) Did Mr. Rogan work at Metal or Kovnica between 1986 and 1992?..... 309
(2) Mr. Rogan’s Failure to Disclose his Work as a Reserve Police
Officer and Prison Guard in his Application for
Permanent Residence............................................................................ 327
C. Mr. Rogan’s Addresses................................................................................. 342
D. Mr. Rogan’s Membership or Association with Organizations........................... 354
E. The Crimes Against Humanity Question.......................................................... 363
(a) What is a Crime Against Humanity?............................................... 369
(b) The Standard of Proof................................................................... 378
(c) Did Mr. Rogan’s Actions Constitute a
Crime Against Humanity?............................................................... 383
i) Was There an Enumerated Proscribed Act?....................... 385
ii) Was the Act Committed as Part of a Widespread or
Systematic Attack against any Civilian Population or
Identifiable Group of Persons?........................................... 395
iii) Did Mr. Rogan know of the Attack and Know or
Take the Risk that his Acts Comprised a
Part of that Attack?........................................................... 399
(d) Conclusion with respect to the
Crimes Against Humanity Question................................................ 403
F. Did Mr. Rogan Act under Duress?................................................................. 406
XIV. Summary of Factual Findings................................................................................. 417
A. Findings Regarding Mr. Rogan’s Actions as a Prison Guard in Bileća................ 418
B. Findings Regarding Mr. Rogan’s Application for Permanent Residence............. 424
XV. Costs.................................................................................................................... 432
I. Introduction
[1] Branko Rogan came to Canada from war-torn Bosnia-Herzegovina in 1994. He became a Canadian citizen three years later. The Minister of Citizenship and Immigration comes before this Court seeking a declaration that Mr. Rogan obtained his Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances.
[2] In accordance with the provisions of the Citizenship Act, the revocation process was commenced by the service of a Notice in Respect of Revocation of Citizenship on Mr. Rogan. This Notice advised him of the Minister’s intent to make a report to the Governor in Council seeking the revocation of his citizenship on the grounds that it was obtained by false representation or fraud or by knowingly concealing material circumstances.
[3] In particular, the Notice asserts that Mr. Rogan failed to disclose his activities during the conflict in the former Yugoslavia to immigration officials responsible for selecting applicants to come to Canada. The activities identified in the Notice include:
(i) Mr. Rogan’s work in Bileća, Bosnia-Herzegovina, during 1992; and/or
(ii) Mr. Rogan’s position and duties as a reserve police officer and/or police officer and/or military member in Bosnia-Herzegovina during 1992; and/or
(iii) Mr. Rogan’s activities during service at Bileća detention camp in 1992; and/or
(iv) Mr. Rogan’s activities mistreating, assaulting and/or torturing detainees at Bileća detention camp in 1992; and/or
(v) Other activities in which Mr. Rogan was involved and which would have rendered him inadmissible to Canada at the time of his coming to Canada.
[4] After receipt of the Minister’s Notice Mr. Rogan exercised his statutory right to have this matter referred to the Federal Court. This was done through the issuance of a Statement of Claim by the Minister.
[5] While citizenship revocation proceedings are not uncommon in this Court, the majority of such proceedings involve matters such as undisclosed criminality or misrepresentations with respect to family circumstances. I am advised that this is the first citizenship revocation proceeding involving allegations of war crimes or crimes against humanity occurring in the post-World War Two era.
[6] For the reasons that follow, I find on a balance of probabilities that Mr. Rogan was employed as a reserve police officer and worked as a guard at detention facilities in Bileća, Bosnia-Herzegovina, in June and July of 1992. I am further satisfied that Muslim males were arrested and detained during this period, simply because they were Muslims, and that Mr. Rogan would have been aware of this fact.
[7] I also find that the conditions under which the prisoners were held in these facilities were inhumane, that prisoners were subjected to physical abuse, and that Mr. Rogan was aware of this.
[8] I have also concluded that Mr. Rogan participated, both directly and indirectly, in the mistreatment and torture of prisoners held at those facilities. Mr. Rogan knowingly concealed this information from Canadian immigration officials in the course of his application for permanent residence. As a consequence, I find that Mr. Rogan obtained his Canadian citizenship by false representation or fraud or by knowingly concealing material information.
II. Mr. Rogan’s Participation in the Hearing
[9] Mr. Rogan was represented by counsel during most of the pre-trial phase of this case. However, he delivered a Notice of Intent to Act in Person after the matter was set down for hearing. Although Mr. Rogan was encouraged to consult with Legal Aid in order to obtain legal assistance, he did not retain new counsel.
[10] Several trial management teleconferences were held in advance of the hearing. Mr. Rogan participated fully in each of these teleconferences, and stated that he would not be able to attend the hearing for financial reasons. He indicated, however, that he did want to come to Court to tell his story. Accordingly, a date was identified for Mr. Rogan’s appearance at the hearing, although he was encouraged to attend throughout the proceeding. Mr. Rogan appeared on the specified date, and had a full opportunity to provide the Court with whatever evidence he wished to adduce.
[11] Mr. Rogan was provided with documentary disclosure in advance of the hearing, and examined a Ministerial witness for discovery. I also directed that Mr. Rogan be provided with will-say statements for each of the witnesses to be called by the Minister in advance of the hearing, in an effort to provide him with as much information as possible about the allegations against him.
[12] Because Mr. Rogan was not present for the testimony of the Minister’s witnesses, I did not have the benefit of observing the witnesses under cross-examination. I have, however, examined the evidence of each witness very carefully in assessing their credibility. This is particularly so in the case of the four eyewitnesses, each of who testified to Mr. Rogan’s actions as a prison guard in Bileća in the summer of 1992.
III. The Nature of the Proceedings and the Law
[13] A reference by the Minister under section 18(1)(b) of the Citizenship Act, R.S., 1985, c. C‑29 (the “Citizenship Act, 1985”) is not an action in the conventional sense of the word. Rather, it is “essentially an investigative proceeding used to collect evidence of facts surrounding the acquisition of citizenship, so as to determine whether it was obtained by fraudulent means”: Canada (Minister of Citizenship and Immigration) v. Obodzinsky, 2002 FCA 518, [2002] F.C.J. No. 1800, at para. 15 [Obodzinsky, (FCA)].
[14] The task for the Court is to make factual findings as to whether Mr. Rogan obtained his Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances. Findings made by this Court under section 18(1)(b) of the Citizenship Act, 1985 are final, and cannot be appealed.
[15] Although these reasons follow a hearing at which a great deal of evidence was adduced, the Court’s factual findings are not determinative of any legal rights. That is, this decision does not have the effect of revoking Mr. Rogan’s Canadian citizenship: Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, [1997] S.C.J. No. 82, at para. 52, citing Canada (Secretary of State) v. Luitjens, [1992] F.C.J. No. 319, 142 N.R. 173 at 175 [Luitjens, (FCA)].
[16] These findings may, however, form the basis of a report by the Minister to the Governor in Council requesting the revocation of Mr. Rogan’s citizenship. The ultimate decision with respect to the revocation of citizenship rests with the Governor in Council, which is the sole authority empowered to revoke citizenship. A decision by the Governor in Council to revoke an individual’s citizenship may be judicially reviewed: Canada (Minister of Citizenship and Immigration) v. Furman, 2006 FC 993, [2006] F.C.J. No. 1248, at para. 15.
A. Procedural Rights
[17] Mr. Rogan’s procedural rights are governed by the citizenship legislation that was in effect on August 20, 2007 - the date upon which he was served with the section 18 Notice initiating the revocation proceedings. The relevant provisions are sections 10 and 18 of the Citizenship Act, 1985. The full text of these and other relevant legislative provisions are attached as an appendix to these reasons.
[18] Subsection 10(1) of the Citizenship Act, 1985 allows the Governor in Council to revoke the citizenship of an individual where the Governor in Council is satisfied, on the basis of a report from the Minister, that the person has obtained his or her citizenship by false representation or fraud or by knowingly concealing material circumstances.
[19] Subsection 10(2) of the Citizenship Act, 1985 addresses the situation where an individual does not misrepresent or conceal material information at the time that he obtains his Canadian citizenship, but has done so in the course of being admitted to Canada for permanent residence.
[20] Subsection 10(2) deems such an individual to have obtained his citizenship by false representation or fraud or by knowingly concealing material circumstances if he was “lawfully admitted to Canada for permanent residence by false representation or fraud or by knowingly concealing material circumstances”, and, because of that admission, subsequently obtained his citizenship.
B. Substantive Rights
[21] Mr. Rogan’s substantive rights are governed by the version of the Citizenship Act in effect when he obtained his Canadian citizenship on November 14, 1997: Canada (Minister of Citizenship and Immigration) v. Bogutin (1998), 144 F.T.R. 1, [1998] F.C.J. No. 211 at paras. 116, 119 and 121; Canada (Minister of Citizenship and Immigration) v. Skomatchuk, 2006 FC 994, [2006] F.C.J. No. 1249, at para. 16. The Citizenship Act, 1985 was the governing legislation at that time.
[22] Section 5(1) of the Citizenship Act, 1985 sets out the criteria that had to be satisfied in 1997 in order to be granted a certificate of citizenship. Amongst other things, Mr. Rogan had to satisfy the Minister that he had “been lawfully admitted to Canada for permanent residence”: paragraph 5(1)(c). Thus, the lawfulness of admission to Canada is a condition precedent to the acquisition of Canadian citizenship: Skomatchuk, above, at para. 17.
[23] Mr. Rogan’s substantive rights are also governed by the provisions of the Immigration Act, R.S.C. 1985, c. I-2 that were in force at the time that he applied for permanent residence in Canada in January of 1994, and when he entered Canada some three months later. The relevant legal principles governing his application are addressed further on in these reasons, in the section dealing with Mr. Rogan’s application for permanent residence.
C. The Burden and Standard of Proof
[24] Before turning to address the burden and standard of proof in a matter such as this, it is important to start by observing that a citizenship revocation hearing is not a criminal proceeding.
[25] Canadian citizenship is a valuable privilege (Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358, [1997] S.C.J. No. 26, at para. 72), and the stakes are undoubtedly high for Mr. Rogan. Nevertheless, it must be kept in mind that the Minister is trying to deprive Mr. Rogan of his citizenship through this proceeding, and not his liberty. Thus Mr. Rogan’s interests do not weigh as heavily in the balance as they would in a criminal proceeding: Tobiass, above, at para. 108.
[26] The burden is on the Minister to demonstrate that Mr. Rogan obtained his citizenship by false representation or fraud or by knowingly concealing material circumstances: Skomatchuk, above, at para. 21.
[27] An early citizenship revocation case suggested that the onus was on the Minister to establish grounds for revocation with a “high degree of probability”: Canada (Secretary of State) v. Luitjens (1991), 46 F.T.R. 267, [1991] F.C.J. No. 1041 at para. 11 (F.C.T.D.) [Luitjens (FCTD)]. However, subsequent jurisprudence has clearly established that the standard of proof is that of the balance of probabilities: Skomatchuk, above, at para. 23, citing Bogutin, above, at para. 110; Canada (Minister of Citizenship and Immigration) v. Obodzinsky, 2003 FC 1080, [2003] F.C.J. No. 1344 at para. 7 [Obodzinsky (FC)]; Canada (Minister of Citizenship and Immigration) v. Baumgartner, 2001 FCT 970, [2001] F.C.J. No. 1351 at para. 8; Canada (Minister of Citizenship and Immigration) v. Odynsky, 2001 FCT 138, [2001] F.C.J. No. 286 at para. 13; Canada (Minister of Citizenship and Immigration) v. Oberlander, (2000), 185 F.T.R. 41, [2000] F.C.J. No. 229 (F.C.T.D.) at para. 187 [Oberlander (F.C.T.D.)]; Canada (Minister of Citizenship and Immigration) v. Kisluk (1999), 169 F.T.R. 161, [1999] F.C.J. No. 824 (F.C.T.D.) at para. 5; and Canada (Minister of Citizenship and Immigration) v. Katriuk (1999), 156 F.T.R. 161, [1999] F.C.J. No. 90 at para. 38 (F.C.T.D.)).
[28] The balance of probabilities standard will be satisfied if the evidence establishes that it is more probable than not that something occurred. That is, I must be satisfied that an event or fact in dispute is not only possible, but probable: Skomatchuk, above, at para. 25; Obodzinsky (FC), above, at paras. 8-9.
[29] That said, because of the seriousness of the allegations that have been made and the significant negative consequences that revocation of citizenship may have for Mr. Rogan, the evidence must be scrutinized with great care: Canada (Minister of Citizenship and Immigration) v. Schneeberger, 2003 FC 970, [2004] 1 F.C.R.280, at para. 25; Canada (Minister of Citizenship and Immigration) v. Coomar (1998), 159 F.T.R. 37, [1998] F.C.J. No. 1679 at para. 10 (F.C.T.D.); Skomatchuk, above, at para. 24.
D. What must be established in Order to find that there has been a False Representation or Fraud or a Knowing Concealment of Material Circumstances?
[30] As was noted earlier, the question for the Court to determine in this reference is whether Mr. Rogan obtained his Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances.
[31] The Minister does not have to demonstrate that, had he been truthful during the immigration process, Mr. Rogan’s application for permanent residence would necessarily have been rejected. Rather, the Minister need only show that Mr. Rogan gained entry to Canada by knowingly concealing material circumstances which had the effect of foreclosing or averting further inquiries: Canada (Minister of Manpower and Immigration) v. Brooks, [1974] S.C.R. 850, [1973] S.C.J. No. 112, at 873; Odynsky, above, at para. 159; Canada (Minister of Citizenship and Immigration) v. Wysocki, 2003 FC 1172, 250 F.T.R. 174 at para. 16.
[32] In order to find that someone “knowingly conceal[ed] material circumstances” within the meaning of section 10 of the Citizenship Act, 1985, “the Court must find on evidence, and/or reasonable inference from the evidence, that the person concerned concealed circumstances material to the decision, whether he knew or did not know that they were material, with the intent of misleading the decision-maker”: Odynsky, above, at para. 159. See also Schneeberger, above, at para. 20.
[33] “A misrepresentation of a material fact includes an untruth, the withholding of truthful information, or a misleading answer which has the effect of foreclosing or averting further inquiries”: Schneeberger, at para. 22, citing Brooks. This is so even if the answer to those inquiries might not turn up any independent ground of deportation: Brooks, above, at 873.
[34] In assessing the materiality of the information concealed, regard must be had to the significance of the undisclosed information to the decision in question: Schneeberger, at para. 21. However, “more must be established than a technical transgression of the Act. Innocent misrepresentations are not to result in the revocation of citizenship”: Schneeberger, at para. 26, citing Canada (Minister of Multiculturalism and Citizenship) v. Minhas (1993), 66 F.T.R. 155, [1993] F.C.J. No. 712 (F.C.T.D.).
[35] That said, misrepresentations claimed to be “innocent” must be carefully examined, and willful blindness will not be condoned. If faced with a situation of doubt, an applicant should invariably err on the side of full disclosure: Canada (Minister of Citizenship and Immigration) v. Phan, 2003 FC 1194, 240 F.T.R. 239 at para. 33.
IV. The Historical Context
[36] In order to put the allegations involving Mr. Rogan into context, it is necessary to have some understanding of events surrounding the conflict occurring in the early 1990’s in the former Yugoslavia, and, in particular, what happened in Bosnia-Herzegovina.
A. Dr. Nielsen’s Expertise
[37] Historical evidence regarding the war in Bosnia-Herzegovina was provided to the Court by Doctor Christian Axboe Nielsen. Dr. Nielsen holds a Ph.D. in East Central European history with a specialty in the history of the Socialist Federal Republic of Yugoslavia (the “former Yugoslavia”) from Columbia University. He is currently employed as an Assistant Professor of Southeast European Studies and the Bosnian-Serbian-Croatian language (also known as Serbo-Croatian) at the Institute for History and Area Studies at the University of Aarhus in Denmark.
[38] In addition to his other qualifications, Dr. Nielsen has worked as a Research Officer in the Investigations Division of the Office of the Prosecutor at the International Criminal Tribunal for the Former Yugoslavia (“ICTY”). In that capacity, he was called upon to examine the conduct of the Bosnian-Serb police forces during the war in the Former Yugoslavia. Dr. Nielsen has testified as an expert witness with respect to the structure and role of the police and the Bosnian-Serb Ministry of Internal Affairs in proceedings before the ICTY.
[39] Dr. Nielsen has also worked as an Associate Analyst in the Investigations Division of the Office of the Prosecutor at the International Criminal Court in The Hague. In addition, he has published articles relating to ethnic cleansing in Croatia, Bosnia-Herzegovina and Kosovo in the Encyclopedia of Migration (Santa Barbara: ABC Clio, 2005).
[40] In the course of both the pre-trial conference and the trial management process, Mr. Rogan accepted Dr. Nielsen’s expertise with respect to the matters dealt with in his report, disputing only the authenticity of pay records referred to by Dr. Nielsen at footnote 33 of the report.
[41] Dr. Nielsen was qualified as an expert in relation to political, military and social developments in Bosnia-Herzegovina generally, and more specifically, in the municipality of Bileća, between the November, 1990 multi-party elections in the Socialist Republic of Bosnia-Herzegovina and the end of 1992.
[42] In particular, Dr. Nielsen’s expertise relates to the structure and function of police and reserve police organizations under the Ministry of Internal Affairs, including the role played by those bodies in the political and military developments during the relevant period. Dr. Nielsen was also qualified as an expert with respect to the Serbo-Croatian language.
B. The Conflict in Bosnia-Herzegovina
[43] The historical evidence provided by Dr. Nielsen was extensive and was invaluable in understanding the roots of the conflict in the former Yugoslavia, and the war in Bosnia-Herzegovina in particular. While I have been greatly assisted by this evidence, it is not necessary to review all of Dr. Nielsen’s evidence in detail. Rather, I will provide a brief overview of certain key events in order to address the issues relating to Mr. Rogan’s acquisition of Canadian citizenship.
[44] The events giving rise to this matter took place in Bileća, a small town in south-eastern Bosnia-Herzegovina, and, more precisely, in eastern Herzegovina. In 1991, the municipality of Bileća had a population of just over 13,000 people, approximately 80% of whom were of Serb ethnicity. Bosnian Muslims (now known as “Bosniaks”) made up nearly 15% of the population, and a very small number of residents were Croats.
[45] While Bileća was a predominantly Serb town, the same could not be said for Bosnia-Herzegovina as a whole, which Dr. Nielsen described as “an absolute patchwork of ethnicities”, including Serbs, Muslims and Croats.
[46] Dr. Nielsen explained that Bosnian Serbs, Muslims and Croats all share a common Southern Slavic ethnic origin, as well as a common language. The differences between the groups are religious in nature. Bosniaks are of the Muslim faith, whereas Bosnian Serbs are Eastern Orthodox Christians, and Bosnian Croats are Roman Catholic.
[47] The constitution of the Socialist Federal Republic of Yugoslavia recognized certain “nations”, which enjoyed the highest degree of constitutional protection afforded by the Socialist Federal Republic of Yugoslavia. Serbs, Croats and Muslims were each considered to be “nations”, and each had a strong group identity as a national group, in addition to a religious affiliation.
[48] Dr. Nielsen stated that after 45 years of living in an officially atheist communist state, the level of religious observance in all three groups had declined significantly compared to what it had been prior to the creation of socialist Yugoslavia. That said, with the rise in ethnic nationalism in the late 1980’s and early 1990’s, religious observance also began to increase.
[49] The two largest groups living in Eastern Herzegovina were the Bosnian Serbs and Bosnian Muslims. Prior to the 1990’s, these groups lived together in relative harmony. However, the legacy of World War II, which saw massacres of the civilian population perpetrated against both Bosnian Serbs and Bosnian Muslims, remained alive in the collective memory of the region's population. These memories, combined with an increasingly fractious political environment as Communism collapsed, contributed to a dramatic rise in ethnic tensions in the late 1980’s, and to general apprehension on all sides.
[50] According to Dr. Nielsen, November of 1990 was “a crucial tide mark in the history of Yugoslavia”. That month, the first multi-party elections since World War II were held in Bosnia-Herzegovina. These elections ended the Communists’ monopoly on power in Bosnia-Herzegovina, and in Yugoslavia generally.
[51] The coalition that defeated the Communists in the November, 1990 elections was made up of three nationalist parties: the Serbian Democratic Party (or “SDS”) - the Bosnian Serb party led by Radovan Karadžić; the Bosnian Muslim Party of Democratic Action (or “SDA”), led by Alija Izetbegović; and the Croatian Democratic Union (or “HDZ”).
[52] In June of 1991, Croatia and Slovenia declared their independence from Yugoslavia. The decision of Croatia to secede from Yugoslavia was severely contested, not only by the Yugoslav federal military forces (including the Yugoslav Army or “JNA”), but also by the sizable Serbian minority living in the Republic of Croatia. This led to a protracted military conflict in Croatia, which finally came to a conclusion in 1995.
[53] Dr. Nielsen explained that the outbreak of armed conflict on the territory of the Republic of Croatia inevitably had a spill-over effect into Bosnia-Herzegovina. As people in the former Yugoslavia were aligning along ethnic lines, Croats in Bosnia aligned with Croats in Croatia in supporting Croatian independence, while Serbs in Bosnia-Herzegovina supported Serbs in Croatia who wished to maintain a close relationship to the Yugoslav state. Bosnian Muslims found themselves increasingly stuck politically and militarily between the Croats and the Serbs, both of who were becoming radicalized by the war in Croatia.
[54] Things continued to escalate through the fall and winter of 1991 and into early 1992. The Serb attack on Dubrovnik in November of 1991 led to the area of eastern Herzegovina around Bileća becoming a military staging ground for JNA forces, local reserve police units, and irregular unofficial armed formations from Montenegro and Serbia. Military personnel would return to Bileća from the front radicalized by their wartime experiences. This had very negative consequences for the security situation in Bileća, and increased tensions in the community.
[55] By the time war broke out in Bosnia-Herzegovina in early April of 1992, Bosnian Muslims had voted for an independent state of Bosnia and Herzegovina, a prospect that was unacceptable to Bosnian Serbs. Bosnian Serbs had, in turn, unilaterally declared the creation of the “Republika Srpska” or Serb Republic, which came into being in January of 1992 with Radovan Karadžić as its first president. Bileća was located in this new entity.
[56] As tensions continued to escalate, Bosnian Serbs were arming their civilian population. A decision was made to augment the ranks of the police by activating the reserve police and putting these officers at the disposal of the military. Hundreds of Bosnian Serbs were called up - some to serve in the military, and others to serve with the reserve police forces. According to Dr. Nielsen, all of this led to a “fraying” of command and control structure of the police.
[57] On April 1, 1992, the Ministry of Internal Affairs of the Republika Srpska unilaterally proclaimed that it had sole police jurisdiction throughout the Serbian Republic of Bosnia and Herzegovina. This covered all of eastern Herzegovina including Bileća.
[58] In early April of 1992, Bosnian Serb paramilitary forces commenced the takeover of Bijeljina in north-western Bosnia-Herzegovina, an event that is generally regarded by international observers as the beginning of the war. In mid-April, the Minister of National Defence of the Serbian Republic of Bosnia and Herzegovina commenced a full mobilization. All military-aged males who were not already working in government jobs, in vital economic positions, or in the military, Territorial Defence or police forces were called up for reserve police or military service. The only way that male Bosnian Serbs of military age could have avoided mobilization would have been to flee illegally to other parts of the former Yugoslavia, or to go abroad.
[59] The JNA had become increasingly identified with the cause of the Bosnian Serbs, with the result that many Bosnian Muslims and Croats resisted responding to mobilization. In May of 1992, the JNA withdrew from Bosnia-Herzegovina altogether. At that point, the remnants of the JNA, along with members of the Territorial Defence force, formed the nucleus of the nascent Army of the Republika Srpska.
[60] At the same time, employees of the Republika Srpska’s Ministry of Internal Affairs were organized into war units. There was a complete militarization of the police structure, including the issuing of military ranks to many police commanders. The exigencies of the situation were such that little or no time or resources were available to provide training for members of the reserve police.
[61] After the Republika Srpska’s Ministry of Internal Affairs began to function on the territory controlled by Bosnian Serb forces, non-Serbs in the police were either summarily dismissed or forced to take loyalty oaths to Republika Srpska. However, Bosnian Muslim police employees in Bileća were not allowed to express their loyalty to the new Serbian republic, and all non-Serbs were forced out of the police, either by being explicitly dismissed, or through extended unpaid sick leaves. Once armed hostilities engulfed a municipality, the Bosnian Serb police often prioritized the detention and incarceration of their erstwhile Bosnian Muslim and Croat colleagues.
[62] According to Dr. Nielsen, after April of 1992, the police in the Republika Srpska were no longer operating as a police force primarily engaged in maintaining law and order. On the contrary, internal Ministry documents confirm that for most of 1992, the Bosnian Serb police (both regular and reserve forces) were a combat force that spent, by their own account, over 300,000 man-days in combat between April and December of 1992.
C. Events in Bileća
[63] According to Dr. Nielsen, with the advent of Serbian rule in Bileća in early 1992, the situation of the Bosnian Muslim population became very difficult. Muslims in Bileća were intimidated by Serbs, who increasingly carried weapons in public. At the same time, the police, together with the relevant military authorities, undertook to disarm the non-Serb civilian population. Checkpoints were erected in the municipality, and restrictions on the movement of Muslim residents were imposed. Many Muslims lost their jobs, and most were afraid to leave their homes because of safety concerns.
[64] Dr. Nielsen explained that a number of significant military operations during 1992 were conducted on the pretext of disarming the non-Serb civilian population. These efforts often evolved into mass arrests of all male Bosnian Muslims and Croats in a given area. These individuals would then be detained in camps, prisons, barracks or other, irregular, detention facilities. Many of these individuals were eventually expelled from the municipalities in question.
[65] Dr. Nielsen pointed to judgments of the ICTY which have determined that the campaign to disarm Bosnian Muslims in Bileća municipality began on June 10, 1992. It resulted in the mass coordinated arrest of large numbers of Muslim and Croat males by regular and reserve police forces.
D. Conclusion Regarding the Evidence of Dr. Nielsen
[66] It is clear from the evidence of Dr. Nielsen that in 1991 and 1992 there was an attack directed against the Muslim civilian population in Bosnia-Herzegovina generally, and in Bileća in particular, which was both widespread and systematic.
[67] The attack was widespread in that it consisted of massive, frequent and large scale actions carried out collectively with considerable seriousness and directed against a multiplicity of victims. The attack against the Bosnian Muslim civilian population occurred not only throughout the municipality of Bileća, but throughout the entire Republika Srpska.
[68] The attack manifested itself in Bileća through the significant increase in the number of armed Serb military, paramilitary and police units, and the arming of the Serb civilian population by Serb authorities. This created fear in the Bosnian Muslim civilian population, and threatened their safety. In addition to the loss of their employment, the Muslims of Bileća also faced restrictions on their travel, and the destruction or confiscation of their homes. The attack culminated in the unlawful arrest and detention of the Bosnian Muslim male population of Bileća by Serb authorities, and the eventual ethnic cleansing of the area of the Bosnian Muslim civilian population by Serb authorities.
[69] The attack against the Bosnian Muslim civilian population of Bileća was also systematic, in that it was organized and followed the pattern of attacks occurring throughout the Republika Srpska.
V. The Eyewitness Testimony
[70] It is Mr. Rogan’s involvement in the detention of Muslim prisoners in detention facilities in Bileća that the Minister says was knowingly concealed by Mr. Rogan in his application for permanent residence in Canada. As a consequence, before looking at the information provided by Mr. Rogan in connection with his immigration application, it is first necessary to examine the events occurring in Bileća in 1992, and the role played by Mr. Rogan in those events.
[71] Five witnesses provided first-hand evidence in this regard. These included Mr. Rogan himself, as well as four Bosnian Muslim men who were arrested and held in detention facilities in Bileća: Ramiz Pervan, Sabir Bajramovic, Huso Hadzic and Kamel Hadzic.
A. Branko Rogan
[72] Branko Rogan is a Bosnian Serb, who was approximately 30 years old in 1992. He was born and raised in Bileća, although there is a question as to where he spent the years leading up to the outbreak of the war in Bosnia-Herzegovina. This issue will be addressed later in these reasons.
[73] Mr. Rogan stated in his Statement of Defence that he “was not involved in guarding and transporting Bosniak detainees”. However, Mr. Rogan now admits that he was a reserve police officer in the early summer of 1992, and that he worked as a prison guard at two detention facilities in Bileća during that time. Mr. Rogan does, however, deny any direct or indirect role in the mistreatment or abuse of detainees in those facilities.
[74] Mr. Rogan explained that after the war began in Bosnia-Herzegovina, he received a call-up notice for military service. Mr. Rogan’s wife had just given birth to a child, and a second child had just had surgery. As a consequence, Mr. Rogan says that he obtained a medical note regarding his second child’s condition, and went to the Bileća city hall where he asked not to be sent to the battle front.
[75] Mr. Rogan testified that he was told to report to the police station in Bileća. When he did so, he was told that he would be working as a reserve policeman, guarding prisoners. Although Mr. Rogan was serving as a reserve police officer when carrying out his guard duties, he wore a JNA military uniform, he had the military rank of private or soldier and he was given a Kalashnikov to carry while on guard duty.
[76] Mr. Rogan says that sometime later, he was told that he could no longer work as a guard and would have to go to the front. At that point, Mr. Rogan fled Bileća, ultimately rejoining his family in Belgrade, Serbia. Mr. Rogan had taken his family to safety in Serbia in April or May of 1992.
[77] Mr. Rogan says that he began working as a prison guard on or around June 9, 1992. He stated on his examination for discovery th