Fuentes v. Canada (Minister of Citizenship and Immigration)

Fuentes v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2003-03-31
Neutral citation
2003 FCT 379
File numbers
IMM-1338-00
Notes
Reported Decision
Decision Content
Federal Court Reports Fuentes v. Canada (Minister of Citizenship and Immigration) (T.D.) [2003] 4 F.C. 249
Date: 20030331
Docket: IMM-1338-00
Citation: 2003 FCT 379
BETWEEN:
ROGELIO CUEVAS FUENTES
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.:
A. INTRODUCTION AND BACKGROUND
[1] Rogelio Cuevas Fuentes (the "applicant"), is a citizen of Mexico, who arrived in Canada in March of 1999, and immediately made a refugee claim alleging torture by the Mexican Army. He seeks to set aside the decision of Adjudicator Angela Martens, (the "Adjudicator") dated February 29, 2000, who found him covered by clause 19(1)(f)(iii)(B) of the Immigration Act (the "Act") which reads:
19. (1) No person shall be granted admission who is a member of any of the following classes. . .
f) persons who there are reasonable grounds to believe
(iii) are or were members of an organization that there are reasonable grounds to believe is or was engaged in
. . .
(A) acts of espionage or subversion against democratic government, institutions or processes, as they are understood in Canada, or
(B) terrorism,
except persons who have satisfied the Minister that their admission would not be detrimental to the national interest; [emphasis mine]
19. (1) Les personnes suivantes appartiennent à une catégorie non admissible_:
. . .
f) celles don't il y a des motifs raisonnables de croire qu'elles_:
. . .
(iii) soit sont ou ont été membres d'une organisation don't il y a des motifs raisonnables de croire qu'elle se livre ou s'est livrée_:
. . .
(A) soit à des actes d'espionnage ou de subversion contre des institutions démocratiques, au sens où cette expression s'entend au Canada,
(B) soit à des actes de terrorisme,
le présent alinéa ne visant toutefois pas les personnes qui convainquent le ministre que leur admission ne serait nullement préjudiciable à l'intérêt national;
[2] When she made her decision, the Adjudicator had the benefit of the Federal Court of Appeal's decision in Suresh v. Canada (Minister of Citizenship and Immigration, [2000] 2 F.C. 592, at that time under leave to appeal to the Supreme Court of Canada. The Act contains no definition of "terrorism" nor did the Federal Court of Appeal provide one taking the approach of identifying acts of terrorism. The Supreme Court of Canada innovated in providing such definition.
[3] As a result of the Adjudicator's decision, the applicant was inadmissible as an immigrant to Canada for permanent residence unless he satisfied the Minister that his admission would not be detrimental to the national interest. The second effect of that determination is to block under paragraph 46.01(e) of the Act his refugee claim if the Minister determines it would be contrary to the public interest to have his claim determined under the Act. There is no evidence before me that proceedings seeking either ministerial decisions have taken place.
[4] The Adjudicator's decision was made in the context of a section 20 Immigration Act report, originally referring to a membership in an organization engaged in activities under clause 19(1)(f)(iii)(A), which was not pursued and instead, without amending the report, he was put on notice under clause 19(1)(f)(iii)(B).
[5] After finding, based on his admission he came to Canada to reside, since he did not have an immigration visa as requested by subsection 9(1) of the Act, Adjudicator Martens made a conditional departure order pursuant to subsection 32.1(3) of the Act. She then went on to explore the issues surrounding his clause 19(1)(f)(iii)(B) inadmissibility and, after so finding, issued a second conditional deportation order against him.
[6] The Supreme Court of Canada rendered its decision in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] S.C.J. No. 3, on January 11, 2002, and set out the following non exhaustive definition of terrorism taken from the United Nations International Convention for the Suppression of the Financing of Terrorism (the "Convention"):
¶ ¶ 98 . . . that "terrorism" in s. 19 of the Act includes any "act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act". [emphasis mine]
[7] Also, three weeks before the Supreme Court of Canada's decision in Suresh, supra, Parliament enacted the Anti-terrorist Act, being c. 41, S.C. 2001, having had the previous year enacted the Crimes against Humanity and War Crimes Act, c. 24, S.C. 2000.
[8] The Anti-terrorist Act, enacted in response to the tragic events of September 11, 2001, contains a definition of "terrorist activity" in subsection 83.01(1) which reads as follows:
83.01 (1) The following definitions apply in this Part.
"terrorist activity" means
(a) an act or omission that is committed in or outside Canada and that, if committed in Canada, is one of the following offences:
(i) the offences referred to in subsection 7(2) that implement the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on December 16, 1970,
(ii) the offences referred to in subsection 7(2) that implement the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on September 23, 1971,
(iii) the offences referred to in subsection 7(3) that implement the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the United Nations on December 14, 1973,
(iv) the offences referred to in subsection 7(3.1) that implement the International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on December 17, 1979,
(v) the offences referred to in subsection 7(3.4) or (3.6) that implement the Convention on the Physical Protection of Nuclear Material, done at Vienna and New York on March 3, 1980,
(vi) the offences referred to in subsection 7(2) that implement the Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on February 24, 1988,
(vii) the offences referred to in subsection 7(2.1) that implement the Convention for the Suppression of Unlawful Acts against the safety of Maritime Navigation, done at Rome on March 10, 1988,
(viii) the offences referred to in subsection 7(2.1) or (2.2) that implement the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, done at Rome on March 10, 1988,
(ix) the offences referred to in subsection 7(3.72) that implement the International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on December 15, 1997, and
(x) the offences referred to in subsection 7(3.73) that implement the International Convention for the Suppression of the Financing of Terrorism, adopted by the General Assembly of the United Nations on December 9, 1999, or
(b) an act or omission, in or outside Canada,
(i) that is committed
(A) in whole or in part for a political, religious or ideological purpose, objective or cause, and
(B) in whole or in part with the intention of intimidating the public, or a segment of the public, with regard to its security, including its economic security, or compelling a person, a government or a domestic or an international organization to do or to refrain from doing any act, whether the public or the person, government or organization is inside or outside Canada, and
(iii) that intentionally
(A) causes death or serious bodily harm to a person by the use of violence,
(B) endangers a person's life,
(C) causes a serious risk to the health or safety of the public or any segment of the public,
(D) causes substantial property damage, whether to public or private property, if causing such damage is likely to result in the conduct or harm referred to in any of clauses (A) to (C), or
(E) causes serious interference with or serious disruption of an essential service, facility or system, whether public or private, other than as a result of advocacy, protest, dissent or stoppage of work that is not intended to result in the conduct or harm referred to in any of clauses (A) to (C),
and includes a conspiracy, attempt or threat to commit any such act or omission, or being an accessory after the fact or counselling in relation to any such act or omission, but, for greater certainty, does not include an act or omission that is committed during an armed conflict and that, at the time and in the place of its commission, is in accordance with customary international law or conventional international law applicable to the conflict, or the activities undertaken by military forces of a state in the exercise of their official duties, to the extent that those activities are governed by other rules of international law. [emphasis mine]
83.01 (1) Les définitions qui suivent s'appliquent à la présente partie.
« activité terroriste »
a) soit un acte - action ou omission, commise au Canada ou à l'étranger - qui, au Canada, constitue une des infractions suivantes:
(i) les infractions visées au paragraphe 7(2) et mettant en oeuvre la Convention pour la répression de la capture illicite d'aéronefs, signée à la Haye le 16 décembre 1970,
(ii) les infractions visées au paragraphe 7(2) et mettant en oeuvre la Convention pour la répression d'actes illicites dirigés contre la sécurité de l'aviation civile, signée à Montréal le 23 septembre 1971,
(iii) les infractions visées au paragraphe 7(3) et mettant en oeuvre la Convention sur la prévention et la répression des infractions contre les personnes jouissant d'une protection internationale, y compris les agents diplomatiques, adoptée par l'Assemblée générale des Nations Unies le 14 décembre 1973,
(iv) les infractions visées au paragraphe 7(3.1) et mettant en oeuvre la Convention internationale contre la prise d'otages, adoptée par l'Assemblée générale des Nations Unies le 17 décembre 1979,
(v) les infractions visées aux paragraphes 7(3.4) ou (3.6) et mettant en oeuvre la Convention sur la protection physique des matières nucléaires, conclue à New York et Vienne le 3 mars 1980,
(vi) les infractions visées au paragraphe 7(2) et mettant en oeuvre le Protocole pour la répression des actes illicites de violence dans les aéroports servant à l'aviation civile internationale, complémentaire à la Convention pour la répression d'actes illicites dirigés contre la sécurité de l'aviation civile, signé à Montréal le 24 février 1988,
(vii) les infractions visées au paragraphe 7(2.1) et mettant en oeuvre la Convention pour la répression d'actes illicites contre la sécurité de la navigation maritime, conclue à Rome le 10 mars 1988,
(viii)les infractions visées aux paragraphes 7(2.1) ou (2.2.) Et mettant en oeuvre le Protocole pour la répression d'actes illicites contre la sécurité des plates-formes fixes situées sur le plateau continental, conclu à Rome le 10 mars 1988,
(ix) les infractions visées au paragraphe 7(3.72) et mettant en oeuvre la Convention internationale pour la répression des attentats terroristes à l'explosif, adoptée par l'Assemblée générale des Nations Unies le 15 décembre 1997,
(x) les infractions visées au paragraphe 7(3.73) et mettant en oeuvre la Convention internationale pour la répression du financement du terrorisme, adoptée par l'Assemblée générale des Nations Unies le 9 décembre 1999;
b) soit un acte - action ou omission, commise au Canada ou à l'étranger:
(i) d'une part, commis à la fois:
(A) au nom - exclusivement ou non - d'un but, d'un objectif ou d'une cause de nature politique, religieuse ou idéologique,
(B) en vue - exclusivement ou non - d'intimider tout ou partie de la population quant à sa sécurité, entre autres sur le plan économique, ou de contraindre une personne, un gouvernement ou une organisation nationale ou internationale à accomplir un acte ou à s'en abstenir, que la personne, la population, le gouvernement ou l'organisation soit ou non au Canada,
(iii) d'autre part, qui intentionnellement, selon le cas,:
(A) cause des blessures graves à une personne ou la mort de celle-ci, par l'usage de la violence,
(B) met en danger la vie d'une personne,
(C) compromet gravement la santé ou la sécurité de tout ou partie de la population,
(D) cause des dommages matériels considérables, que les biens visés soient publics ou privés, dans des circonstances telles qu'il est probable que l'une des situations mentionnées aux divisions (A) à (C) en résultera,
(E) perturbe gravement ou paralyse des services, installations ou systèmes essentiels, publics ou privés, sauf dans le cadre de revendications, de protestations ou de manifestations d'un désaccord ou d'un arrêt de travail qui n'ont pas pour but de provoquer l'une des situations mentionnées aux divisions (A) à (C).
Sont visés par la présente définition, relativement à un tel acte, le complot, la tentative, la menace, la complicité après le fait et l'encouragement à la perpétration; il est entendu que sont exclus de la présente définition l'acte - action ou omission - commis au cours d'un conflit armé et conforme, au moment et au lieu de la perpétration, au droit international coutumier ou au droit international conventionnel applicable au conflit ainsi que les activités menées par les forces armées d'un État dans l'exercice de leurs fonctions officielles, dans la mesure où ces activités sont régies par d'autres règles de droit international.
[9] "Terrorist group" is defined in that Statute as follows:
"terrorist group" means
(a) an entity that has as one of its purposes or activities facilitating or carrying out any terrorist activity, or
(b) a listed entity,
and includes an association of such entities.
« groupe terroriste »
a) Soit une entité dont l'un des objets ou l'une des activités est de se livrer à des acivités terroristes ou de les faciliter;
b) soit une entité inscrite.
Est assimilé à un groupe terroriste un groupe ou une association formé de groupes terroristes au sens de la présente définition.
[10] The Anti-terrorist Act makes participation in a terrorist group or terrorist activities an indictable offence.
[11] The Crimes Against Humanity and War Crimes Act implements Canada's obligations under the Rome Statute of the International Criminal Court. It contains the following definition of "crime against humanity" and "war crime":
(3) The definitions in this subsection apply in this section.
4(3) "crime against humanity" « _crime contre l'humanité_ »
"crime against humanity" means murder, extermination, enslavement, deportation, imprisonment, torture, sexual violence, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group and that, at the time and in the place of its commission, constitutes a crime against humanity according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.
"war crime" means an act or omission committed during an armed conflict that, at the time and in the place of its commission, constitutes a war crime according to customary international law or conventional international law applicable to armed conflicts, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.
(3) Les définitions qui suivent s'appliquent au présent article.
4(3) « _crime contre l'humanité_ » "crime against humanity"
« _crime contre l'humanité_ » Meurtre, extermination, réduction en esclavage, déportation, emprisonnement, torture, violence sexuelle, persécution ou autre fait - acte ou omission - inhumain, d'une part, commis contre une population civile ou un groupe identifiable de personnes et, d'autre part, qui constitue, au moment et au lieu de la perpétration, un crime contre l'humanité selon le droit international coutumier ou le droit international conventionnel, ou en raison de son caractère criminel d'après les principes généraux de droit reconnus par l'ensemble des nations, qu'il constitue ou non une transgression du droit en vigueur à ce moment et dans ce lieu.
« _crime de guerre_ » Fait - acte ou omission - commis au cours d'un conflit armé et constituant, au moment et au lieu de la perpétration, un crime de guerre selon le droit international coutumier ou le droit international conventionnel applicables à ces conflits, qu'il constitue ou non une transgression du droit en vigueur à ce moment et dans ce lieu.
[12] It is to be noted that a crime against humanity is not tied to the existence of an armed conflict while a war crime is.
[13] The applicant admitted he had been, for about a year, a combatant and then a second sergeant in Ejercito Popular Revolucionario ("EPR") commonly known as the Peoples' Revolutionary Army. EPR has also been described as the military wing of a political party known as Partido Democratico del Pueblo Revolucionario ("PDPR").
[14] Having admitted past membership, the only issue before the Adjudicator was whether EPR was an organization that "there are reasonable grounds to believe is or was engaged in terrorism".
[15] Evidence of what EPR did when it carried on its operations came from two sources: (1) Mr. Fuentes, who was the only witness to testify (his testimony was very brief being examined only by the CPO. It covers only ten pages of transcript, page 463 to 473, of the certified tribunal record) before the Adjudicator and the notes of the applicant's joint interview with officers from CSIS and Citizenship and Immigration Canada ("CIC"); (2) documentary evidence presented by the Case Presenting Officer ("CPO") and by the applicant's counsel consisting of:
(i) a human rights information package prepared from among publicly available sources by the Research Directorate of the Immigration and Refugee Board (Exhibit 2); and
(ii) various reports by human rights organizations on Mexico.
B. THE ADJUDICATOR'S DECISION
[16] The Adjudicator did not make any adverse findings of credibility against the applicant.
[17] The Adjudicator embarked on her consideration whether there are reasonable grounds to believe the EPR is or was engaged in terrorism by stating:
I believe that I have to consider and decide in this regard whether there is credible and trustworthy evidence before this inquiry which establishes that there are reasonable grounds to believe that the EPR has committed acts or engaged in activities which are terrorist in nature, or which constitute terrorism. [emphasis mine]
[18] She observed there was no definition of terrorism in the Act, that it was generally acknowledged there was no standard or universally accepted definition of what constitutes terrorism and she knew of no decisions of higher courts "where a specific definition was attempted or which gave precise guidance as to what the boundaries of terrorist activities are".
[19] She referred to the Federal Court of Appeal's decision in Suresh, supra, and said the Court focussed on the activities of the LTTE and "specifically on violent actions perpetrated against civilian populations". She added:
In spite of this, however, I know of no law that would restrict an interpretation of terrorism to only actions against civilians. I believe that in this respect, it is the nature of the acts and activities that must be examined. [emphasis mine]
[20] The Adjudicator examined dictionary definitions and noted the Chambers 20th Century Dictionary defined "terrorism" as "[A]n organized system of intimidation" and the Concise Oxford Dictionary defined the word "terrorist" as a word referring to a person "who uses or favours violent and intimidating methods of coercing a government or community". She concluded on this point:
There are many dictionaries, and I believe there are many varying definitions of these terms containing many similarities and containing certain differences. I believe that, in general terms, a dictionary definition of terrorism is a limited one and defines terrorism as actions involving force and intimidation directed at governments or populations. I believe that definitions such as these are not conclusive or exhaustive of the matter. [emphasis mine]
[21] It was her view she had to focus on and consider the evidence "of the activities of this organization. ... What I have to decide is whether the evidence provides reasonable grounds to believe that this organization did certain things, and if that is accepted, then to consider whether such activities constitute terrorism". [emphasis mine]
[22] She then reviewed the evidence and commented on the documentary evidence presented by counsel for the applicant which "left me at some loss as to understand why these materials were presented". She said these documents contained "very little information about the actual activities of the EPR" and that there was "some such information of a very limited nature, in general terms, to indicate that the EPR was an armed dissident group, using uniforms and weapons and military organisation" [emphasis mine]. She stated these documents provided "no evidence to show that the human rights abuses extensively described were government policy" and that applicant's counsel "did not attempt to argue that justification was a factor". She noted the documents gave "considerable information about the activities of military and police in Mexico and about the extent to which these forces are seen by the general population as to be the same or similar".
[23] She drew upon the applicant's testimony. It was to the effect "that the EPR engaged in military activity with a political goal ... that the organisation engaged in armed attacks against army and police ... that persons were, on occasion, killed on both sides of the conflict." [emphasis mine] She noted his testimony EPR was illegal and they possessed weapons which were also illegal.
[24] She then reviewed the notes prepared by the immigration officer in the joint interview by officers of CSIS and CIC where the applicant indicated EPR:
... watched the comings and goings of the military, that they observed the movements of the military, that they did this to watch and wait for an opportunity to attack the military. He also testified about the types of weapons, and he also stated that certain threats were made against government or public officials. He said that this was not done directly, but was done in newspapers - through newspapers. [emphasis mine]
[25] The Adjudicator then turned to Exhibit 2, the human rights package introduced by the CPO, which she found gave the most information about the activities of the EPR and summarized it in the following terms:
This document states again that the EPR was or is a well armed group, that it carried out attacks against various targets, that it used violent tactics, more violent than certain other groups with similar aims or goals. The document states that the EPR carried out so-called hit-and-run strategy of armed attacks against police stations, military installations and government buildings. This report refers to casualties numbering 96 on one occasion, numbers of attacks, numbers of persons killed or injured, on one occasion referring to a week-long series of attacks against military and police targets during which at least six policemen were killed. [emphasis mine]
[26] The Adjudicator was also critical of Exhibit 2 which she said:
... is a document which certainly is deficient in many respects. Counsel, in his arguments, pointed out the limits - how limited the information is which is provided in it. I cannot disagree about that. Nevertheless, in its substance, I accept it as credible and trustworthy evidence within its limits, and limited though it may be, concerning the activities of this organisation. [emphasis mine]
[27] She concluded:
The totality of the evidence indicates that the EPR was, perhaps still is, an illegal armed guerrilla-type insurgent group attempting to achieve certain political and social aims which carried out surprise, hit-and-run armed attacks against various targets, military, police, and government targets. [emphasis mine]
[28] The Adjudicator did not accept the applicant's argument a civil war or a state of war existed and EPR's activities should be examined in that context, i.e. "that what was taking place were acts of war, that they were military confrontations". She did so for the following reason:
My conclusion is that the type of surprise armed attacks which have been described in the evidence at this Inquiry are not the same as simple military confrontations, and I believe that they can be considered terrorist activity and should be so described in the present case. [emphasis mine]
[29] Adjudicator Martens then reviewed some evidence which she found "indicate that the activities of the EPR were more extensive than the confrontations or the attacks just referred to".
[30] She mentioned again "media threats or threats in the newspapers against government officials".
[31] She noted evidence showed "attacks not only on military installations, but against the police forces" commenting "[N]o matter how much the police forces in Mexico may now be associated with the military, I don't believe that it should be concluded that they are one and the same force entirely in all respects. I don't think they can be considered soldiers on the field for all purposes".
[32] She noted there was reference to attacks on government buildings but cautioned:
The evidence being so lacking in information and detail, we don't know what more may have been involved. [emphasis mine]
[33] Finally, she turned again to Exhibit 2 for evidence the EPR carried out kidnappings to finance its operations. She indicated the applicant denied this was true and testified his superior officers had told him this was not true. She referred to his further testimony that he himself had not been involved in fundraising and he did not, in fact, know how funds were raised for this organisation. She concluded without more:
On the basis of Exhibit 2 and having considered Mr. Cuevas' [sic] testimony, I believe there are reasonable grounds to believe that there were kidnappings to raise funds for the organisation.
D. ANALYSIS
(1) The Supreme Court of Canada teaching in Suresh
[34] The Supreme Court of Canada's discussion of terrorism is contained in paragraphs 93 to 99 of its decision. The Court made it clear in paragraph 93 it did not seek to define terrorism exhaustively "a notoriously difficult endeavour" holding the term provided sufficient basis for adjudication and was not inherently ambiguous "even if the full meaning ... must be determined on an incremental basis" adopting the words of Justice Robertson who wrote the Federal Court of Appeal's reasons in the Suresh case.
[35] The Court at paragraph 94 acknowledged there was no authoritative definition of "terrorism", the Act did not define it and no single definition is accepted internationally. It noted the absence of an authoritative decision meant "that at least at the margins" the term is open "to politicized manipulation, conjecture and polemical interpretation". It quoted an author as viewing the term "terrorism" as somewhat "Humpty Dumpty - anything we choose it to be" and another author [at paragraph 95] stating "that one state considers terrorism, another may consider as a valid exercise of resistance".
[36] The Court turned to the Convention and noted it approached the problem of what terrorism is in two ways: a functional definition and a stipulative definition. The functional approach consists of defining terrorism by reference "to specific acts of violence words (e.g. 'highjacking, hostage-taking, and terrorist bombing')" spelled out in the Convention's annexed list of treaties which the Supreme Court said "[that] are commonly viewed as relating to terrorism acts". Those treaties are listed in paragraph 83.01(1)(a) of the Anti-terrorist Act which now makes Convention offences, offences under Canadian law.
[37] One of the annexed treaties is the International Convention for the Suppression of Terrorist Bombings adopted by the General Assembly of the United Nations on December 15, 1997. Its Article 2 reads:
1. Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility:
(a) with the intent to cause death or serious bodily injury; or
(b) with the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss.
[38] In that Convention, place of public use is defined to mean "those parts of any building, land, street, waterway or other location that are accessible or open to members of the public, whether continuously, periodically or occasionally, and encompasses any commercial, business, cultural, historical, educational, religious, governmental, entertainment, recreational or similar place that is so accessible or open to the public".
[39] Another annexed Treaty is the International Convention Against the Taking of Hostages adopted by the General Assembly on December 17, 1979, and in force on June 3, 1983. Its Article 1 reads:
Article 1 1. Any person who seizes or detains and threatens to kill, to injure or to continue to detain another person (hereinafter referred to as the "hostage") in order to compel a third party, namely, a State, an international intergovernmental organization, a natural or juridical person or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offence of taking of hostages ("hostage-taking") within the meaning of this Convention.
[40] The Supreme Court of Canada expressed, as previously noted, the stipulative definition of terrorism by reference to Article 2 of the Convention which defines terrorism as:
Any ... act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.
[41] The Court analysed the advantages and disadvantages of each approach noting the functional approach referencing specific acts of violence had received strong support but it expressed the view at paragraph 97:
While not unaware of the danger that the term « terrorism » may be manipulated we are not persuaded that it is necessary or advisable to altogether eschew a stipulative definition of the term in favour of a list that may change over time and may in the end necessitate distinguishing some (proscribed) acts from other (non prescribed) acts by relying on a term like « terrorism » ." [emphasis mine]
[42] The Court, per curiam, concluded at paragraph 98 as follows:
. . .that "terrorism" in s. 19 of the Act includes any "act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act". This definition catches the essence of what the world understands by "terrorism". Particular cases on the fringes of terrorist activity will inevitably provoke disagreement. Parliament is not prevented from adopting more detailed or different definitions of terrorism. [emphasis mine]
[43] In his reasons for the Federal Court of Appeal's decision, Justice Robertson in Suresh, supra, referred to Justice Teitelbaum's decision, (1997), 140 F.T.R. 88, upholding the reasonableness of a certificate issued by the Minister of Citizenship and Immigration that Mr. Suresh was a person described in three of the inadmissible classes found within section 19 of the Immigration Act. Justice Robertson extracted the following from Justice Teitelbaum's reasons:
I do not intend to list the incidents the LTTE is said to have committed. One need only refer to Appendix "B" where some 140 incidents are mentioned starting with the alleged LTTE's assassination of Alfred Duraippah, the pro-government mayor of Jaffna on July 27, 1975 to the incident on September 10, 1995 when the LTTE is alleged to have killed seven soldiers who, it is alleged, were part of a road clearing patrol.
Witnesses called by Suresh denied most of these incidents as being "terrorist" in nature as, it is alleged, the LTTE can be considered freedom fighters, and therefore have the "right" to shoot at soldiers or persons who do not support the LTTE and their aims.
With respect, I disagree. Even if it were so, the LTTE's assassination of the mayor of Jaffna on July 27, 1975 solely on the basis of his pro-government leaning is to me an act that one may consider "terrorist" in nature. The execution of a police constable on February 14, 1977 gives rise to a reasonable conclusion that a "terrorist act" has taken place. The shooting of a member of Parliament, who later died, is a "terrorist act". The blowing up of a civilian aircraft is a "terrorist act". Attacks on civilians are as I have said "terrorist acts" whether the attack is on a fishing village or on farms. The May 16, 1985 LTTE attack and massacre where 138 to 146 civilians at Anuradhapura in Sri Lanka were killed can be considered a "terrorist act".
[44] Justice Robertson then, at paragraph 39 of his reasons for judgment, quotes an extract from Justice McKeown's reasons for judgment as evidence which qualifies as evidence of terrorist acts committed by the LTTE. Justice McKeown, in his judgment at (1999), 50 Imm.L.R. (2d) 183, dismissed Mr. Suresh's application for judicial review challenging the Minister of Citizenship and Immigration's opinion under paragraph 53(1)(b) of the Immigration Act:
[39] McKeown J. in his reasons for judgment [at paragraphs 31-33, pages 198-199] also refers to evidence which qualifies as evidence of terrorist acts committed by the LTTE:
The applicant made submissions before the Minister and before Teitelbaum J. that the LTTE is a movement fighting for self-determination. However, the documentary evidence submitted by the applicant himself suggested otherwise. It referred to the LTTE being involved in the biggest bomb attack in Colombo in 1996, in which explosives were driven into the Central Bank, killing "some 100 persons" and injuring over 1,200.
In the U.S. Department of State "Sri Lanka Country Report on Human Rights Practices for 1996" (hereinafter "U.S.D.O.S. Report"), submitted by the applicant, there is reference to the LTTE killing 14 Sinhalese villagers in the Puttalam district and murdering 11 Sinhalese travellers in an ambush on a bus in the Ampara district. The materials submitted by the applicant also stated that the LTTE was "reported to have conducted executions of suspected government informers, and have engaged in massacres and retaliatory killings of Sinhalese and Muslim villagers, torture and mistreatment of prisoners, forced conscription of [page629] children, and kidnapping". The LTTE engages in intimidation by way of lamppost killings.
The LTTE denies the people under its authority the right to change their government. It does not tolerate freedom of expression. It does not respect academic freedom. Tamils who do not support the LTTE are subjected to human rights abuses.
[45] Justice Robertson concluded at paragraph 40 as follows:
[40] In short, there is sufficient and conclusive evidence that the LTTE engages in indiscriminate killing and torture of innocent civilians amounting to what are classified under international law as "crimes against humanity". I hasten to add that this was firmly established by this Court as early as 1994 in Sivakumar v. Canada (Minister of Employment and Immigration), (C.A.). [emphasis mine]
[46] The Supreme Court of Canada had no difficulty in finding the LTTE a terrorist organization because it had engaged in terrorist activities (see paragraph 109).
(2) What the evidence shows here
[47] I reviewed the transcript and the documentary evidence contained in the Tribunal's certified record. The applicant, in his memorandum, conveniently summarized that evidence in a manner which I believe accurately reflects that evidence. I quote from the applicant's memorandum:
7. After his arrival, the claimant was interviewed jointly by CSIS and Canada Immigration. The evidence concerning the applicant's activities on behalf of EPR come from that interview and from his examination by the CPO at the inquiry.
8. The applicant said that he had been a member of the PDPR (Por la republica democratic popular) and its armed wing, the EPR (Ejercito Popular Revolucionario) for a year before he was abducted and imprisoned by Mexican military intelligence and detained by them in Acapulco and Mexico City for one year, two months and 23 days. While in the EPR, he started as a combatant, and later was a second sergeant. During his captivity, he was beaten and tortured. While he was imprisoned he could hear other members being interrogated and tortured. He was released on August 27, 1998. After his release, he did not maintain his contacts with the group.
9. He said that the EPR was involved in military activities, but with a political goal. He described the objectives of the PDPR and EPR as being to take over the government and establish a democratic country.
10. He was asked if the PDPR ever made any threats against government representatives. He said not against anyone in particular and not directly; they would print things in the newspapers. He was asked was sort of military activities the EPR was involved in. He said it was to respond by self-defence to acts of repression and torture and disappearances perpetrated by the Mexican army. He said that in certain zones, when there was excessive repression, the party would send communiques to the media to put a stop to the repression to begin by trying to obtain goals by peaceful means. If the repression did not stop, then the organization would respond by armed attacks on the "companies" which he said meant the army and the police.
11. He said that the EPR would get orders from the PDPR, and that those would include military strategies: watching the comings and goings of the military. He said that there are different areas in small towns where aboriginal peoples were harassed by the military. The EPR, therefore, would watch and wait for an opportunity to attack the military zone so that they would stop bothering the people. He said that during his membership he knew of about 10 such attacks, but that there were other confrontations. Of the 10, he participated as a driver on two occasions. He said that he did not personally participate in those attacks. His task was to take his comrades to the zone where t