Lebedev v. Canada (Citizenship and Immigration)

Lebedev v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2007-07-09
Neutral citation
2007 FC 728
File numbers
IMM-2208-06
Notes
Reported Decision
Decision Content
Date: 20070709
Docket: IMM-2208-06
Citation: 2007 FC 728
Ottawa, Ontario, July 9th 2007
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
VADIM LEBEDEV
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Vadim Lebedev fled the army and his native Russia because he did not want to serve as a soldier in Chechnya. He claims he does not believe in violence, and that he will be forced to engage in international crimes if he resumes his military service. When his refugee claim failed, he applied for a Pre-Removal Risk Assessment (PRRA), arguing that he feared detention, torture and death at the hands of the Russian army. Terri-Lynn Steffler, a PRRA officer, rejected his application on March 29, 2006. Mr. Lebedev has applied for judicial review of that decision.
[2] I am allowing his application, and quashing the PRRA officer’s decision, for two reasons. First, the officer’s analysis about whether the war in Chechnya had been internationally condemned was flawed. These errors undermine her decision under s. 96 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA). Second, the officer’s risk assessment under s. 97 of the IRPA contains fatal errors of fact and law. In addition, I have dedicated a good portion of my reasons to the issue of conscientious objection. This issue has been the subject of confusion and inconsistent treatment over the years. Thus, while it raises largely hypothetical questions in the context of Mr. Lebedev’s case, in my view those questions are important enough to warrant the Court’s attention.
FACTS
[3] Mr. Lebedev was born May 21, 1976. In June 1994, he received a mobilisation order to which he responded. In his PRRA application, he said he had requested alternative service because he did not believe in violence. Nevertheless, he was sent to the regular army. Once in the army, he says he was subjected to extreme hazing, which included abuse, beatings, starvation, and sexual assaults.
[4] When he found out that he was being sent to Chechnya in December 1994, he managed to tell his mother. She tried to stop his deployment, even bribing some military official, to no avail. When he received his relocation order, his mother managed to bring him home under the pretext of taking him out for a short farewell visit.
[5] Mr. Lebedev returned to the army in January 1995, relying on the military’s promise that it would not send him to Chechnya. He says that promise was broken, and he was instead jailed for eleven days. While in jail, he received new orders to go to Chechnya. He managed to escape – again – as he was escorted to do prison work. He stayed at his aunt’s house, fearing he would be found and redrafted if he went home.
[6] He then moved to Argentina with his mother, apparently because it was the only country for which they could arrange travel visas. In June 1997, his mother left for Canada, where she was eventually granted citizenship. Mr. Lebedev, on the other hand, decided to stay in Argentina because he was already working and dating a Russian girl. When he had first arrived in Argentina he claimed refugee status. However, his claim was automatically withdrawn once he was able to secure a work visa there.
[7] Eventually, Mr. Lebedev’s work visa in Argentina expired. So did his Russian passport. Once this happened, he applied for permanent residence at the Canadian embassy in Buenos Aires, under the humanitarian and compassionate category (H&C). That application was turned down in June 2003.
[8] Having learned he could not restore his refugee claim or reapply for refugee status in Argentina, Mr. Lebedev fled to Canada. He arrived here in June 2004 using a fake Swiss passport.
THE BOARD’S DECISION
[9] The Immigration and Refugee Board’s Refugee Protection Division (the Board) dismissed Mr. Lebedev’s refugee claim in a decision dated June 10, 2005. It concluded Mr. Lebedev was afraid of prosecution, not persecution, and found no evidence he had tried to arrange for alternative service.
[10] The Board emphasized its concerns with Mr. Lebedev’s credibility. For example, he testified that he enlisted in the army voluntarily, which the Board found inconsistent with the story of a man who did not want to serve in Chechnya. It also found it implausible that Mr. Lebedev would have enrolled in the army when he could have received an education deferment. There was inconsistent evidence about his alleged escape from the Russian prison in January 1995, and no proof of his residence between February 1995 and June 1997.
[11] Finally, the Board found it implausible that Mr. Lebedev’s mother would have returned her son to the army on the mere promise that he would not be sent to Chechnya. She had already tried to bribe officials to somehow exempt Mr. Lebedev from serving in Chechnya, and that agreement had not been honoured. The Board found it unreasonable that she would trust a similar promise again.
THE IMPUGNED DECISION (PRRA)
[12] The PRRA officer refused to consider documentary evidence that predated Mr. Lebedev’s Board hearing. However, she did accept a Russian arrest warrant issued July 17, 2004, showing Mr. Lebedev would be detained upon his return to Russia. She also noted the Board’s negative conclusions about Mr. Lebedev’s credibility and trustworthiness, and wrote that the PRRA was not meant to be a rehearing of his original refugee claim.
[13] The PRRA officer relied on James Hathaway’s book The Law of Refugee Status (Markham: Butterworths, 1991) [Hathaway], and its discussion about whether a claimant can successfully claim refugee status by objecting to military service. She also turned to the United Nations Handbook on Procedures and Criteria for Determining Refugee Status (the UNHCR Handbook) for the general rules on military service objection. At page 179 of his book, Hathaway cites paragraph 168 of the UNHCR Handbook and writes:
Persons who claim refugee status on the basis of a refusal to perform military service are neither refugees per se nor excluded from protection. In general terms:
A 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.
[14] Thus, an applicant generally cannot claim refugee status under the United Nations Convention Relating to the Status of Refugees (the Convention) – and accordingly, under s. 96 of the IRPA, just because he does not want to serve in his country’s army. According to Hathaway, however, there are three exceptions to the general rule above. First, military evasion might have a nexus to a Convention ground if conscription for a legitimate and lawful purpose is conducted in a discriminatory way, or if the punishment for desertion is biased in relation to a Convention ground. Second, evasion might lead to Convention refugee status if it reflects an implied political opinion that the military service is fundamentally illegitimate under international law. Hathaway describes this as “military action intended to violate basic human rights, ventures in breach of the Geneva Convention standards for the conduct of war, and non-defensive incursions into foreign territory” (Hathaway, above, at pages 180-181). The third and final exception applies to those with “principled objections” to military service, more widely known as “conscientious objectors”.
[15] The PRRA officer agreed with the Board’s conclusion that Russia’s compulsory military service and penalties for desertion were laws of general application. Looking at Hathaway’s first exception, she also maintained the Board’s finding that the law was not applied in a discriminatory way.
[16] Turning to the second of Hathaway’s exceptions, the PRRA officer acknowledged reports of human rights violations by the Russian army. She concluded, however, that these were isolated incidents that did not amount to large-scale and systematic violations. She wrote, at page 4 of her decision:
The applicant vaguely suggests that at least part of his motivation for avoiding military service was because the conflict in Chechnya violates international standards. He makes reference in his submissions that he would be forced into being part of crimes against humanity. While I acknowledge that there are credible reports that some members of the state’s forces have committed human rights violations in the course of this conflict, I find the applicant’s evidence insufficient to establish that it is the Russian military’s intention to engage in planned and systemic human rights abuses or that the international community has deemed the military action in Chechnya contrary to the basic rules of human conduct. [Hathaway; UNHCR Handbook]. I am not persuaded that the circumstances of the case at hand meet the second scenario.
[17] Finally, the PRRA officer found Mr. Lebedev was not a conscientious objector – and thus did not fit within Hathaway’s third exception. She wrote, at page 5 of her decision:
Conscientious objector status is distinguishable from being a mere draft evader or deserter. What differentiates one from the other is whether the refusal is based on deep seated scruples and/or sincerely held opinions. After carefully considering all the evidence I am not persuaded that the applicant is a conscientious objector. He demonstrated a willingness to be part of the Russian military anywhere but in Chechnya. I find there is insufficient evidence that this decision was based on deeply held scruples or core beliefs and instead was based on his reluctance to endure the conditions present in the Chechnya area.
[18] Because he did not fit within any of the three exceptions, the officer rejected Mr. Lebedev’s claims based on s. 96 of the IRPA. She then analyzed whether he was at risk under s. 97. Mr. Lebedev argued the detention conditions in Russia would put him in danger. He submitted evidence showing prison conditions were extremely harsh and even life threatening, especially in pre-trial detention facilities known as investigation isolation facilities.
[19] The PRRA officer acknowledged the shortcomings of penal facilities, and accepted that Mr. Lebedev would face court action upon his return. But she was also of the view that he might be subject to lesser penalties, finding the Russian judge had only authorized a prison sentence because it was required to secure Mr. Lebedev’s extradition. She wrote, at pages 6-7 of her decision, that “pursuant to article 460 of the Russian Code of Criminal Procedure the Russian Federation may request extradition in relation to a person only upon selection of a measure of restriction in the form of custodial placement.” She noted that defendants are presumed innocent in Russia, and are provided with legal rights consistent with the Universal Declaration of Human Rights. She also described Mr. Lebedev in the following way, at page 7 of her decision:
The applicant has demonstrated that he is a sophisticated individual by his travels and resourcefulness in securing identification documents; he is not unaccustomed to criminal proceedings or detention facilities; he is a reasonably well educated, mature, and healthy 30 year old man. When his personal circumstances are weighed against an undetermined sentence that could be imposed in a range of facilities offering a variety of conditions I find there is insufficient evidence to lead me to believe that the applicant will likely face a risk of cruel and unusual treatment or punishment, a risk to life, or torture.
[20] Mr. Lebedev had also argued that once he satisfied his prison sentence, he would be forced to complete his military service where he would be at risk of physical abuse, mistreatment and possibly torture by members of the army. While the PRRA officer accepted that hazing is a major problem in the Russian army, she did not believe Mr. Lebedev had established he would personally be at risk of such practices. She concluded there was no objective basis to believe he would be subject to the risks outlined in s. 97, writing at page 8 of her reasons:
Given his age (over conscription age), the reduced operations in Chechnya, and the number of new conscripts that come of age annually, I find on the balance of probabilities that the applicant will not likely be required to serve and therefore is unlikely to experience cruel and unusual treatment, punishment, a risk to life, or torture.
ISSUES
[21] Counsel for Mr. Lebedev raised a host of issues, both legal and factual, in his written submissions, but subsumed them under two arguments at the hearing:
1) Did the PRRA officer err in finding Mr. Lebedev was not a Convention refugee? More particularly, did the officer misinterpret the scope and frequency of human rights violations in Chechnya, and mistakenly fail to conclude the conflict breaches international standards?
2) Did the PRRA officer err in finding that Mr. Lebedev will not be personally subjected to a risk to life or of cruel and unusual treatment or punishment? In other words, did she err in finding he was unlikely to suffer mistreatment in prison because of his resourcefulness, and that he will not likely be required to serve the remainder of his term in the military?
Of course, the appropriate standard of review will have to be canvassed for each of these issues.
ANALYSIS
A) Did the PRRA officer err in finding Mr. Lebedev was not a Convention refugee?
[22] In the last 10 or 15 years, both in Canada and other western countries, there has been a growing body of jurisprudence on military service evasion as a ground for refugee protection. While there are still contentious issues, which I will discuss shortly, a consensus is also emerging that if freedom of conscience and opinion is to be taken seriously, it must inform the way we deal with refugee claimants who have fled their countries of origin because they object to military service.
[23] Most recently, Justice Anne Mactavish canvassed these issues in Hinzman v. Canada (Minister of Citizenship and Immigration), 2006 FC 420, aff’d 2007 FCA 171. She aptly summarized the applicable principles after dealing with the relevant Canadian and foreign case law most comprehensively, as well as the leading textbooks on the subject. As will become evident throughout these reasons, I am much indebted to her analysis and I share most of her views.
[24] Having said this, the Federal Court of Appeal recently declined to answer the certified question in Hinzman, above. It affirmed Justice Mactavish’s decision on the narrow basis that the applicant had not made enough of an attempt to access potential protective mechanisms in the U.S. As a result, there is still no definitive pronouncement on how to properly interpret paragraph 171 of the UNHCR Handbook - and particularly, whether the unlawfulness of a given conflict is relevant to the refugee claim of an ordinary foot soldier.
[25] Before proceeding any further, it is important to go back to the basics. Section 96 of the IRPA states that a Convention refugee must have a “well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion.” It is not at all clear from reading s. 96 of the IRPA - and for that matter, the definition of “Convention Refugee” at s. 2(1) of the former Immigration Act, what a “well-founded fear of persecution” means. But the Supreme Court of Canada stated, in Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593 [Chan] at paragraph 70, that “[t]he essential question is whether the persecution alleged by the claimant threatens his or her basic human rights in a fundamental way”. A decision-maker must therefore consider whether forced military service per se, without any possibility for alternative service, constitutes a denial of a core human right. Of course, the punishment for the individual who evades compulsory military service will have to be severe enough to amount to persecution. Moreover, the persecution must be based on one of the five enumerated grounds in s. 96 of the IRPA, and state protection must be unavailable.
[26] Generally speaking, punishment for violating a law of general application amounts to prosecution, not persecution. In Musial v. Minister of Employment and Immigration, [1982] 1 F.C. 290 [Musial], the Federal Court of Appeal held that a claimant’s reasons for refusing military service were irrelevant. Fear of prosecution and punishment for one’s offence, even if based on political beliefs, could not transform the punishment for draft evasion into persecution.
[27] As we shall see, the Federal Court of Appeal later distinguished and qualified its reasons in Musial, above, in a number of ways. It is now accepted that compulsory military service may, in some circumstances, support a claim of persecution under s. 96 of the IRPA. Indeed, the UNHCR Handbook explicitly provides for that possibility. First, paragraph 167 of the Handbook says 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.” Paragraph 168 then says:
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.
[28] While not binding on this Court, the UNHCR Handbook is a useful starting point in trying to interpret the Convention. As Justice Gérard La Forest stated in Chan, above, at paragraph 46, it “must be treated as a highly relevant authority in considering refugee admission practices.” Paragraphs 167-174 of the UNHCR Handbook are reproduced in the Appendix to these reasons, under the heading “Deserters and persons avoiding military service.”
[29] If a refugee claimant wants to rebut the presumption that compulsory military service is a law of general application (and that punishment for evasion is merely prosecution), he must fit himself within one of Hathaway’s three exceptions, which are also reflected in the UNHCR Handbook. Paragraph 169 of that Handbook outlines the least contentious exception, letting applicants claim persecution where they can establish some form of discriminatory mistreatment before, during or even after compulsory military service. It says:
A deserter or draft-evader may also be considered a refugee if it can be shown that he would suffer disproportionately severe punishment for the military offence on account of his race, religion, nationality, membership of a particular social group or political opinion. The same would apply if it could be shown that he has a well-founded fear of persecution on these grounds above and beyond the punishment for desertion.
[30] Mr. Lebedev does not claim that he was or would be treated in a discriminatory way in the army, nor that his prosecution or punishment for desertion would be biased in relation to one of the five enumerated grounds in. 96 of the IRPA. As the PRRA officer indicated, the Board found insufficient evidence of discrimination, and Mr. Lebedev did not submit compelling new evidence to the contrary. Accordingly, there is no point dwelling on this first exception.
[31] The next exception relates to conscientious objectors. Paragraph 170 of the UNHCR Handbook introduces the exception, while paragraphs 172-174 flesh out the general provision in further detail. This exception has been the subject of much debate. Because the concept does not lend itself to easily identifiable parameters, this may at least partially explain why refugee claims by self-proclaimed conscientious objectors are often rejected outright.
[32] Relying on Hathaway, above, and Guy Goodwin-Gill’s The Refugee in International Law (Oxford: Clarendon Press, 1996) [Goodwin-Gill], the PRRA officer was apparently prepared to accept that conscientious objectors can be considered Convention refugees. She nevertheless found, on the evidence before her, that Mr. Lebedev was not opposed to war for principled reasons. Rather, he simply did not want to face the harsh conditions on the battleground in Chechnya. As such, she found he was a “mere draft evader” and not a conscientious objector.
[33] Mr. Lebedev, of course, challenges this finding. He claims that when he was conscripted, there was no way to formally request alternative service. He says he made an oral request, and tried to make his views as a conscientious objector known, to no effect. Yet in oral submissions, counsel for Mr. Lebedev somewhat recanted from that position and stated his client was not claiming to be a conscientious objector. Rather, he objected to serving in a war that was internationally condemned and contrary to principles of international humanitarian law. This relates to the third exception, found at paragraph 171 of the UNHCR Handbook.
[34] It is well established that the appropriate standard of review for a PRRA officer’s decision, when considered as a whole, is reasonableness: see Figurado v. Canada (Solicitor General), 2005 FC 347. That being said, the standard may shift depending on the nature of the questions raised in a particular case. After going through a pragmatic and functional analysis, Justice Richard Mosley wrote in Kim v. Canada (Minister of Citizenship and Immigration), 2005 FC 437 at paragraph 9, that “the appropriate standard of review for questions of fact should generally be patent unreasonableness, for questions of mixed law and fact, reasonableness simpliciter, and for questions of law, correctness.”
[35] Whether a conscientious objector can claim to be persecuted because of the punishment for his conduct is clearly a question of law, as is defining what it means to be a conscientious objector. Both questions should thus be reviewed on the correctness standard. On the other hand, the officer’s conclusion that Mr. Lebedev’s conduct was not based on deep-seated scruples was essentially a finding of fact, reviewable against a standard of patent unreasonableness.
Conscientious Objection Versus Objecting to a Particular War
[36] In Hinzman, above, Justice Mactavish had to decide whether there was an internationally recognized right to conscientious objection. After an exhaustive analysis, she found there was not. Furthermore, she found there was no recognized right of “partial” conscientious objection, which refers to an applicant who objects to a particular war. A “total” conscientious objector opposes war in general. Consequently, Justice Mactavish rejected the argument that Mr. Hinzman could legitimately object to the war in Iraq and be considered a conscientious objector.
[37] For the most part, I agree with my colleague’s analysis in Hinzman, above. Accordingly, I also agree with the PRRA officer’s conclusion that Mr. Lebedev’s refusal to serve in Chechnya was not an act of conscientious objection. However, even if it was, Mr. Lebedev would not be entitled to refugee status solely because of his genuine beliefs. Establishing oneself as a conscientious objector is not enough to be found a Convention refugee. This is what the Federal Court of Appeal found in Ates v. Canada (Minister of Citizenship and Immigration), 2005 FCA 322 [Ates]. In a short oral decision, the Court held that a sincere conscientious objector from Turkey was not a Convention refugee, though he had been repeatedly charged and imprisoned for avoiding compulsory military service.
[38] Having said that, I would venture to make the following comments. First of all, Ates, above, does not seem to sit well with the Federal Court of Appeal’s previous decisions, most particularly Zolfagharkhani v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 540. In that case, an Iranian citizen was found to be a conscientious objector even though he had no principled objection to military service per se. Indeed, he had served more than two years as a gunner in a tank crew during the war between Iran and Iraq. Further, he was not even opposed to the particular conflict between the two countries. His opposition was extremely specific – he objected to the Iranian military’s plans to fight the Kurds with chemical weapons.
[39] In Zolfagharkhani, above, the Federal Court of Appeal took another look at its earlier reasons in Musial, above, and tried to clarify their true meaning. The Board deciding Mr. Zolfagharkhani’s application had relied on Musial, above, to conclude that where a government enforces an ordinary law of general application, it is merely engaging in prosecution – not persecution. The Court took issue with this conclusion. According to Justice Mark MacGuigan, the Court in Musial, above, was merely establishing that “a claimant’s political motivation cannot alone govern any decision as to refugee status” (Zolfagharkhani, above, at paragraph 15).
[40] He then went on to characterize Mr. Zolfagharkhani’s case in the following way:
[24] In the view I take of the case, no issue is raised as to conscientious objection in relation to war in general, since the appellant had no objection to serving in an active capacity in the Iranian military in the Iran/Iraq War. Moreover, I have already accepted the Board’s finding that the appellant had no conscientious objection to military service against the Kurds.
[25] The issue as to conscientious objection relates solely to participation in chemical warfare. This was the specific objective which the Board did not find “to be either reasonable or valid”, essentially for the reason that, as a paramedic, he would not be fighting with chemical weapons but merely acting in a humanitarian capacity.
[41] The Court’s decision in Zolfagharkhani, above, was certainly cast in terms of conscientious objection. Justice MacGuigan even started his reasons by writing that “[t]his case concerns the status of conscientious objectors in relation to the definition of “Convention refugee” found in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.” Nevertheless, the substance of the Court’s reasoning appears to have revolved around a different exception in the UNHCR Handbook – participating in military activity that breaches international standards. After finding chemical warfare was contrary to customary international law, and referring to paragraph 171 of the UNHCR Handbook, Justice MacGuigan wrote the following:
[30] In my view, that is precisely the situation in the case at bar. The probable use of chemical weapons, which the Board accepts as a fact, is clearly judged by the international community to be contrary to basic rules of human conduct, and consequently the ordinary Iranian conscription law of general application, as applied to a conflict in which Iran intended to use chemical weapons, amounts to persecution for political opinion.
[42] There is therefore some ambiguity as to the precise ground on which Zolfagharkhani, above, was actually decided. I would personally be inclined to think that, as a matter of principle and of precedent, conscientious objection can only be global and with respect to participation in all armed conflicts. When a claimant objects to a specific war, it is not because he rejects war on philosophical, ethical or religious grounds. Rather, he is objecting to the military’s goals or strategies in a particular conflict. As we shall see, his objection is not driven by his conscience, but in an objective assessment about whether military action in a particular situation is valid. That is not the same thing as conscientious objection.
[43] The facts underlying the Zolfagharkhani decision bear witness to that dichotomy. In that case, the claimant’s objection to the war against the Kurds had nothing to do with his dislike of war but stemmed from his belief that the use of chemical weapons was contrary to the most fundamental rules of human conduct. And yet, in many cases on this issue, the Court has blended the subjective inquiry into an applicant’s beliefs with the objective inquiry into the nature of a specific war. This blending of subjective and objective elements is nowhere more evident than in the following passage from Bakir v. Canada (Minister of Citizenship and Immigration), 2004 FC 70:
[30] The Federal Court of Appeal in Zolfagharkhani, supra, established that an individual need not be an absolute pacifist or express opposition to all armed services in order to warrant recognition as a conscientious objector to military service. Where the military action at issue has been condemned by the international legal community as contrary to basic human rights, the Court has reasoned that selective objection to military service in a particular conflict or military operation, for reasons of conscience or profound conviction, should be recognized as conscientious objection.
[44] In my view, the phrase “partial conscientious objection” implies a nonexistent link between two different exceptions from Hathaway and the UNHCR Handbook. As I see it, conscientious objection applies to those who are totally opposed to war because of their politics, ethics or religion. Selective objection really refers to cases in which an applicant opposes a war he feels violates international standards of law and human rights.
[45] The first type of claim, conscientious objection, raises subjective issues. Decision-makers must evaluate the applicant’s personal beliefs and conduct to see if his claim is genuine. The second type of claim requires both a subjective and objective assessment of the facts. Along with evaluating the sincerity of an applicant’s beliefs, a decision-maker must look at whether the conflict objectively violates international standards. The two types of objections should be treated as distinct categories – just as they are distinguished in paragraphs 171 and 172 of the UNHCR Handbook.
[46] What, then shall we make of the foregoing discussion? First, I think it is better to restrict the notion of conscientious objection to those cases where a claimant refuses to take part in any military action because of his genuine convictions grounded in religious beliefs, philosophical tenets or ethical considerations. I am mindful of the fact that paragraph 172 of the UNHCR Handbook speaks of “religious” convictions. But it seems to me this notion should be expanded, to recognize that moral principles may also be, for a number of people, sufficiently compelling to ground and organize their lives. This is also consistent with the interpretation that has been given to the right to freedom of religion by the Supreme Court of Canada: see, for example, Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 and R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713. The U.S. Supreme Court captured this idea admirably in Welsh v. United States, 398 U.S. 333 at 339-340:
What is necessary…for a registrant’s conscientious objection to all war to be “religious”…is that this opposition to war stems from the registrant’s moral, ethical, or religious beliefs about what is right and wrong and that these beliefs be held with the strength of traditional religious convictions…If an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time, those beliefs certainly occupy in the life of that individual “a place parallel to that filled by …God” in traditionally religious persons.
International Approaches to Conscientious Objection
[47] In this case, the issue of conscientious objection was more academic than real, as the Board was not persuaded that Mr. Lebedev fled from military service because of deeply held beliefs. Because this was a finding of fact, I must defer to the Board’s conclusion unless patently unreasonable. After carefully reviewing the record, I am of the view the Board could reasonably come to that conclusion. It is true that when Mr. Lebedev was conscripted in 1990, he could not make a formal claim for alternative service. Russia’s Federal Bill on Alternative Civilian Service, which governs the procedure for requesting alternative service, only entered into force on January 1, 2004. However, in my view, Mr. Lebedev’s behaviour was not consistent with that of a conscientious objector. Not only did he only object to military service when informed he would be sent to Chechnya, but he returned to the army on the mere promise that he would not be posted to Chechnya. The military had made the same promise, and broken it, before. Mr. Lebedev’s counsel was therefore well advised to build his case on the exception from paragraph 171 of the UNHCR Handbook, to which I shall turn shortly. Nevertheless, the question of whether to recognize a right of conscientious objection is gathering attention both in Canada and internationally. Given its importance, there is a surprising lack of jurisprudence on the issue. For that reason, I offer the following observations.
[48] Justice Mactavish was most certainly correct when she wrote that, “at the present time, there is no internationally recognized right to conscientious objection” (Hinzman, above, at paragraph 207). This holding is consistent with the recent House of Lords decision Sepet v. Secretary of State for the Home Department, [2003] UKHL 15, [2003] 3 All ER 304 [Sepet]. These decisions are sending the message that punishing people who refuse military service on conscientious grounds does not amount to persecution. Courts are obviously reluctant to meddle with one of the state’s most sacred prerogatives: raising an army for the defence of the realm and to participate in military operations considered crucial by the government of the day.
[49] Yet equally clearly, countries are starting to give voice to conscientious objectors in different ways. For example, some countries exempt genuine conscientious objectors from conscription. This gives weight to their freedom of thought, conscience and religion in a balancing act between individual rights and the interests of their state governments. As previously noted, paragraph 172 of the UNHCR Handbook explicitly refers to conscientious objection, and the UN Commission on Human Rights and the Council of Europe have encouraged member states to recognize such a right. Some of the most respected authorities on refugee law also believe the international community is moving towards accepting a right of conscientious objection (see Hathaway, above, at page 182 and Goodwin-Gill, above, at page 55). But maybe more importantly for our immediate purposes, a number of recent cases from this Court have given credence to that claim and have explicitly or implicitly accepted the premise that fear of reprisal for objecting to military service on principled grounds could amount to persecution: see, for example, Bakir, above; Atagun v. Canada (Minister of Citizenship and Immigration), 2005 FC 612; Ozunal v. Canada (Minister of Citizenship and Immigration), 2006 FC 560.
[50] Until the Federal Court of Appeal provides further clarification, I feel bound to follow its most recent decision on the subject in Ates, above. However, in my view, the issue of conscientious objection still raises a host of outstanding questions, begging for resolution. For Mr. Lebedev, however, the most relevant exception is the one I will discuss below: refusing to serve in wars condemned by the international community.
Condemnation by the International Community
[51] The case law and academic scholars recognize that a person who refuses to undertake compulsory military service can be considered a refugee if such service would involve acts contrary to the basis rules of human conduct, as defined by international law. There is, however, a lack of consensus on some of the key aspects of this exception to the general principle that says those who refuse to perform military service do not have a nexus to a Convention refugee ground under s. 96 of the IRPA.
[52] Relying once more on Hathaway, the PRRA officer acknowledged this exception, but nevertheless found that Mr. Lebedev did not meet its requirements. She wrote, at page 4 of her decision:
The applicant vaguely suggests that at least part of his motivation for avoiding military service was because the conflict in Chechnya violates international standards. He makes reference in his submissions that he would be forced into being part of crimes against humanity. While I acknowledge that there are credible reports that some members of the state’s forces have committed human rights violations in the course of this conflict, I find the applicant’s evidence insufficient to establish that it is the Russian military’s intention to engage in planned and systemic human rights abuses or that the international community has deemed the military action in Chechnya contrary to the basic rules of human conduct.
[53] Mr. Lebedev disputes this finding, and claims the documentary evidence does establish continuous human rights violations contrary to international norms and standards. He submits the PRRA officer should have found that the Russian military intends to and has engaged in systematic human rights abuses in Chechnya.
[54] Those submissions raise both legal and factual questions. First, the Court must address whether the officer applied the proper test to determine if Mr. Lebedev would be forced to violate international law by serving in the Russian army. To answer this question, the Court must turn its mind to a number of questions, like: is the applicant’s state of mind relevant? What sorts of military acts would the applicant be involved in? Must those acts be sufficient to exclude the applicant from refugee status under Article 1F of the Convention? What is the applicant’s required degree of participation in those reprehensible actions? All of these are questions of law, reviewable on the standard of correctness: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at paragraph 37.
[55] On the other hand, evidence about the conflict in Chechnya, the gravity and seriousness of the Russian army’s alleged human rights abuses there and the international community’s reaction raise issues of a factual nature. The PRRA officer’s findings on these grounds must be reviewed against the standard of patent unreasonableness: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 at paragraph 40; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 at paragraph 34.
[56] Paragraph 171 of the UNHCR Handbook provides a useful starting point for a better understanding of this exception. It states:
Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft-evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requiremen