Hughey v. Canada (Minister of Citizenship and Immigration)

Hughey v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2006-03-31
Neutral citation
2006 FC 421
File numbers
IMM-5571-05
Decision Content
Date: 20060331
Docket: IMM-5571-05
Citation: 2006 FC 421
Ottawa, Ontario, March 31, 2006
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
BRANDON DAVID HUGHEY
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
TABLE OF CONTENTS
PARA.
I. Introduction.................................................................................................................................1
II. Factual Background................................................................................................................6
III. Evidence With Respect to the Legality of the War in Iraq..................................................30
IV. The Board's Board's Evidentiary Ruling in the Hinzman Case......................................33
V. The Board's Decision with Respect to the Merits of Mr. Hughey's Claim.....................46
i) State Protection..............................................................................47
ii) Did Mr. Hughey Have a Well-founded Fear of Persecution in the
United States?..............................................................................................................61
iii) Section 171 of the UNHCR Handbook....................................................66
iv) Punishment for Desertion: Prosecution or Persecution?...........................................75
VI. Issues............................................................................................................................88
VII. Did the Board Err in Finding that Evidence as to the Alleged Illegality of the
American Military Action in Iraq was Irrelevant to the Determination That Had
to Be Made in Accordance with Paragraph 171 of the UNHCR Handbook?........................90
i) Mr. Hughey's Position.......................................................................92
ii) Standard of Review................................................................................99
iii) The Status and Purpose of the UNHCR Handbook.....................................102
iv) Individual Culpability for Crimes Against Peace.......................................139
v) Other Potential Relevance of the Disputed Evidence...................................148
vi) Conclusion..................................................................................151
VIII. Did the Board Err in Finding That Mr. Hughey had Failed to Establish That the Violations of International Humanitarian Law Committed by the American Military
in Iraq Rise to the Level of Being Systematic or Condoned by the State?...........................155
PARA.
IX. Did the Board Err in Imposing Too Heavy a Burden on Mr. Hughey to Demonstrate
That he Would Have Been Involved in Unlawful Acts, Had He Gone to Iraq?..................166
X. Conclusion to this Point........................................................................................................175
XI. Did the Board Err in its Analysis of the State Protection and Persecution Issues?
i) Mr. Hughey's Position.....................................................................178
ii) Standard of Review.........................................................................185
iii) Analysis......................................................................................188
iv) Conclusion....................................................................................214
XII. Summary of Conclusions....................................................................................................220
XIII. Certification..........................................................................................................................222
Judgment................................................................................................................226
I. Introduction
[1] Brandon Hughey was a Private in the United States Army who deserted after his unit was deployed to fight in Iraq. Mr. Hughey says that he deserted because of his strong moral objections to the war in Iraq, and his belief that the American-led military action in that country is illegal.
[2] After deserting the military, Mr. Hughey came to Canada, and claimed refugee protection, asserting that he had a well-founded fear of persecution in the United States, based upon his political opinion. Mr. Hughey's claim was rejected by the Refugee Protection Division of the Immigration and Refugee Board, which found that he was neither a Convention refugee nor a person in need of protection.
[3] Mr. Hughey now seeks judicial review of the Board's decision, asserting that the Board erred in refusing to allow him to lead evidence with respect to the alleged illegality of the American military action in Iraq. The Board further erred, he says, in ignoring evidence with respect to the alleged condonation of ongoing human rights violations perpetrated by the American military in Iraq, and with respect to the systemic nature of those violations.
[4] In addition, Mr. Hughey says that the Board imposed too heavy a burden on him to demonstrate that he would himself have been involved in unlawful acts had he gone to Iraq. Finally, Mr. Hughey argues that the Board erred in failing to properly consider the fact that an objection to a particular war is not recognized as a legitimate basis on which to grant conscientious objector status in the United States. Given that his sincere conscientious objections to the war in Iraq were not taken into account by the United States Army, Mr. Hughey says that any punishment that he may receive for having deserted automatically amounts to persecution.
[5] For the reasons that follow, I have concluded that this application for judicial review must be dismissed. It should be noted that the question of whether the American-led military intervention in Iraq is in fact illegal is not before the Court, and no finding has been made in this regard.
II. Factual Background
[6] As the Federal Court of Appeal observed in Zolfagharkhani v. Canada(Minister of Employment and Immigration), [1993] 3 F.C. 540, conscientious objector cases are often fact-specific. It is therefore necessary to review the facts underlying Mr. Hughey's refugee claim in some detail, particularly as they relate to the nature of his objection to military service generally, and to serving in the war in Iraq in particular.
[7] Mr. Hughey enlisted in the United States Army when he was 17 years old, reporting for service on July 9th, 2003, when he was 18. Mr. Hughey testified that he had two reasons for joining the Army. The first was the financial assistance provided by the military, which would have allowed him to attend university upon completion of his term of enlistment. Mr. Hughey's second reason for enlisting was his belief that "some things are worth fighting for". Mr. Hughey testified that he "was not a total pacifist", stating that he believed in defending home and family.
[8] Mr. Hughey could have signed up for a term of two, four or six years. He chose a four year term of service, explaining that a term of this duration would allow him "to get a good balance of benefits but not be in the military forever ...". For his trade, Mr. Hughey chose to be trained as a tank driver.
[9] Mr. Hughey was sent to Fort Knox, Kentucky, for his basic training. Although Mr. Hughey testified as to his belief that the American government had declared the Geneva Convention Relative to the Treatment of Prisoners of War, 75 U.N.T.S. 135, entered into force Oct. 21, 1950, to be obsolete, he also acknowledged having attended a class dealing with the provisions of the Geneva Convention during basic training.
[10] Mr. Hughey also acknowledged that recruits were never told or encouraged to fire on individuals who they knew were civilians.
[11] Mr. Hughey testified that he disliked basic training, and began having second thoughts about having enlisted in the Army. He felt that the values that he was being taught in basic training went against all of the values that his father had instilled in him, including the need to think for himself and to question authority.
[12] Mr. Hughey figured that his concerns were normal, and would have been shared by his fellow recruits. He did nothing about them, as he saw no way of addressing them.
[13] At the time that Mr. Hughey enlisted in the Army, he did not have any concerns with respect to the American involvement in the war in Iraq, explaining that if the President of the United States had correct information, and Iraq did in fact pose an imminent threat to America, then, in his view, the war was justified.
[14] However, as he went through basic training, Mr. Hughey says that he became aware that no weapons of mass destruction were being found in Iraq. He also learned that no ties between the Iraqi regime and al-Qaeda were being established, al-Qaeda being the terrorist organization responsible for the September 11, 2001 attacks on the United States. By the time that he completed his basic training, Mr. Hughey says that he had formed the belief that the war in Iraq was being waged upon false pretenses.
[15] Mr. Hughey did not tell anyone about his concerns, fearing that expressing his reservations about the war in Iraq would turn his fellow recruits against him and "make [him] a target".
[16] After he completed his basic training, Mr. Hughey took a one-month leave. During his leave, he repeatedly heard comments about the "shock and awe" campaign being waged in Iraq, and the killing of innocent civilians by the American military. This further entrenched his reservations about participating in the war in Iraq. He testified that his concern was with "being sent over to a foreign country where I would be put in a position to either lose my life or take somebody else's life for false pretenses and causes that ...at the time my government was struggling to justify".
[17] Mr. Hughey also did his own research over the Internet, which led him to believe that the war in Iraq was contrary to the Charter of the United Nations, and had not been approved by the international community.
[18] When Mr. Hughey returned to his base, he discussed his opposition to the war with a non-commissioned officer. He told the officer that he was aware that he would likely soon be deployed to Iraq, explained his concerns with respect to the war, and asked to be discharged from the Army. The officer told Mr. Hughey that nothing could be done because Mr. Hughey had signed a contract. Mr. Hughey says that he was not aware of the option of seeking conscientious objector status at this time.
[19] In January of 2004, Mr. Hughey went Absent Without Leave. He returned home and spoke to his father about his concerns. Mr. Hughey testified that his father suggested that he return to the Army, and try speaking with a different officer. At no point did his father suggest that he apply to be a conscientious objector.
[20] Mr. Hughey returned to his base, and was immediately summoned to see the Sergeant-Major. Mr. Hughey says that he again explained his belief that the war in Iraq was morally wrong, and suggested to the Sergeant-Major that it would be better for all concerned if he could be processed out of the military.
[21] Mr. Hughey says that he was again told that there was no method of leaving the military once a contract had been signed, and that no mention was made of the possibility of applying for conscientious objector status.
[22] Mr. Hughey testified that by February of 2004, he was aware that his unit would be deployed to Iraq the following month. He says that he was distraught, and began contemplating suicide. He did not seek out the assistance of a military chaplain or psychiatrist to help him sort out his feelings. Nor did he consider refusing to go to Iraq, testifying that he did not think that it would be fair for him to be sent to jail for refusing to fight in a war that he believed was wrong.
[23] Mr. Hughey also stated in a television interview granted shortly after he arrived in Canada that he was not prepared to go to jail at the age of 18.
[24] Mr. Hughey testified that even if Iraq had been found to have been in possession of weapons of mass destruction, or to have had ties to al-Qaeda, he would still have been of the view that the war was wrong, because, in his opinion, the people of Iraq posed no imminent threat to the United States.
[25] During this time, Mr. Hughey came across the name of an anti-war activist named Carl Rising Moore while he was surfing the Internet. Mr. Rising Moore was offering to help American soldiers escape the military.
[26] Mr. Hughey contacted Mr. Rising Moore, who offered to help him get to Canada to apply for refugee status. Mr. Hughey arrived in Canada on March 5, 2004 and claimed refugee protection approximately one month later, asserting that he had a well-founded fear of persecution in the United States based upon his political opinion.
[27] Mr. Hughey says that he claimed refugee protection in order to ensure that he was not incarcerated or put to death as a result of his decision to resist participation in the Iraqi war.
[28] If he were returned to the United States, Mr. Hughey says that he would likely be imprisoned for anywhere from one to five years in a military prison. Mr. Hughey is of the view that as a result of his having come to Canada and sought refugee protection, he could well face harsher treatment than other deserters because the Army might want to make an example of him. He concedes, however, that he has no evidence to support this concern.
[29] While Mr. Hughey acknowledges that he would receive a fair trial in the United States, before an independent judiciary, he nonetheless asserts that any form of punishment that he would incur for merely following his conscience would amount to persecution.
III. Evidence with Respect to the Legality of the War in Iraq
[30] Mr. Hughey's refugee claim was heard by the same Board member who had previously heard and decided the refugee claim of Jeremy Hinzman. Mr. Hinzman is another American soldier who deserted the American military because of his objections to serving in the war in Iraq. Mr. Hughey was also represented by the same counsel who represented Mr. Hinzman before the Board.
[31] In the Hinzman case, counsel endeavoured to lead evidence as to the alleged illegality of the American military action in Iraq. In a preliminary ruling in that case, the Board found this evidence to be irrelevant to Mr. Hinzman's claim, and refused to admit the evidence.
[32] In Mr. Hughey's case the Board summarily refused to allow the admission of evidence with respect to the legality of the war in Iraq, effectively adopting its reasons for excluding the evidence in the Hinzman case. The alleged errors in this ruling form a principle ground for this application for judicial review, and as a consequence, it is necessary to provide a summary of the Board's reasons for excluding the disputed evidence.
IV. The Board's Evidentiary Ruling in the Hinzman Case
[33] In the pre-hearing process leading up to the hearing of the refugee claims of Mr. Hinzman and his family, counsel for the applicants indicated that he intended to lead evidence at the hearing as to the alleged illegality of the American military action in Iraq.
[34] This evidence primarily took the form of affidavits from two professors of international law, both of whom focused on the lack of United Nations Security Council approval for the American government's use of force in Iraq. Both professors observed that the Charter of the United Nations, 26 June 1945, Can T.S. 1945 No. 7 [UN Charter], permits the use of force by one country against another in only two situations: in cases of self-defense, and where there is Security Council approval.
[35] Both professors observed that the United States did not invoke self-defense as a legal justification for its military intervention in Iraq. They further argued that none of the Security Council resolutions relied upon by the United Statesto justify its conduct condoned military action against Iraq in the present circumstances. The professors specifically referred to Security Council Resolution 1441, which recognizes further breaches by Iraq of its disarmament obligations, and requires that any further non-compliance be reported to the Security Council for reassessment. Although this Resolution does not expressly contemplate the need for an additional resolution authorizing force, the professors argued that, given the deep disagreements that led to the adoption of this compromise Resolution, it is impossible to read the Resolution as either an express or implied authority for the use of force.
[36] One of the professors also discussed a developing view of humanitarian intervention as a third possible justification for one State to use armed force against another. However, the professor observed that President Bush made no attempt to justify the American invasion of Iraq as a humanitarian intervention.
[37] Both professors concluded that, in the absence of either Security Council approval or a sound case for self-defense, no legal justification existed for the war in Iraq. As a consequence, each concluded that the American invasion of Iraq was carried out in violation of the prohibition on the use of force enshrined in Article 2(4) of the UN Charter, and was thus illegal.
[38] The other evidence which the applicants sought to adduce was to a similar effect.
[39] The Board decided to address the admissibility of this evidence in advance of the hearing, receiving submissions on the following question:
... [W]hether the allegation that the United States' military action in Iraq was not authorized by the UN Charter and UN Resolution is relevant to the question of whether it is the type of military action which is condemned by the international community, as contrary to basic rules of human conduct. If it is relevant, how so?
[40] In a lengthy and detailed ruling, the Board answered this question in the negative, determining that the legality of the American military action in Iraq was not relevant to the question of whether it was "the type of military action" which is "condemned by the international community, as contrary to basic rules of human conduct", within the meaning of paragraph 171 of the United Nations High Commission for Refugees Handbook on Procedures and Criteria for Determining Refugee Status: United Nations, Office of the United Nations High Commissioner for Refugees; Geneva, 1988.
[41] Paragraph 171 of the Handbook provides that:
171. 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 the basic rules of human conduct, punishment for desertion or draft evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution. [emphasis added]
[42] The Board found that when Canadian and international courts have considered this provision in order to determine whether an individual meets the definition of "Convention refugee", it has almost invariably been the nature of the acts that the evading or deserting soldier would be expected to perform or be complicit in, rather than the legality of the conflict as a whole, that have dictated the result.
[43] Based upon this understanding of the relevant test, the Board found that evidence as to the alleged illegality of the war in Iraq was not relevant to the analysis to be carried out in accordance with paragraph 171 of the Handbook.
[44] The Board also rejected Mr. Hinzman's submission that the alleged illegality of the war in Iraq was relevant to his claim because it made it more likely that there would be widespread and systematic violations of international humanitarian law going on in Iraq, in which Mr. Hinzman himself would be required to participate. In the Board's view, this argument was purely speculative.
[45] As a consequence, the Board in Hinzman refused to admit the evidence regarding the legality of the American military action in Iraq, ruling that this evidence was irrelevant to the applicants' refugee claims. For the same reasons, the Board also refused to admit the evidence in Mr. Hughey's case.
V. The Board's Decision with Respect to the Merits of Mr. Hughey's Claim
[46] The Board identified four substantive issues raised by Mr. Hughey's refugee claim. These were:
1. Had Mr. Hughey rebutted the legal presumption that the government of the United States would be willing and able to protect him?
2. Was Mr. Hughey a Convention refugee? That is, did he have a well-founded fear of persecution by the American government and its military because of his political opinion, religion, or membership in a particular social group, namely conscientious objectors to military service in the United States Army?
3. Is the type of military action with which Mr. Hughey does not wish to be associated condemned by the international community as contrary to basic rules of human conduct within the meaning of Section 171 of the UNHCR Handbook?
4. Is Mr. Hughey a person in need of protection, in that his removal to the United States would subject him personally to a risk of cruel and unusual treatment or punishment by the American government and its military? In this regard, the Board also considered whether the risk of punishment for desertion faced by Mr. Hughey was inherent or incidental to lawful sanctions imposed in conformity with accepted international standards.
i) State Protection
[47] With respect to the issue of State protection, the Board noted that the facts of Mr. Hughey's claim were very similar to those in the Hinzman matter, with the exception of the fact that Mr. Hinzman had endeavoured to obtain conscientious objector status while still in the United States Army, whereas Mr. Hughey had made no such attempt.
[48] With that difference noted, the Board went on to adopt its reasoning from the Hinzman matter with respect to the issue of State protection.
[49] In Hinzman, the Board observed that the responsibility to provide international protection is only engaged when State protection is not available to a claimant in his or her home country. The Board further observed that there is a rebuttable presumption in refugee law that, in the absence of a complete breakdown of the State apparatus, a State will be able to protect its own nationals. Moreover, the more democratic the State, the greater the obligation on a claimant to exhaust all courses of action available in the claimant's country of origin, prior to seeking refugee protection abroad.
[50] Citing the decision of the Federal Court of Appeal in Canada (Minister of Citizenship and Immigration) v. Satiacum (1989), 99 N.R. 171, the Board found that refugee claimants from the United States must establish the existence of 'exceptional circumstances', such that the claimant would not have access to a fair and independent judicial process.
[51] That is, an applicant would have to establish that he would not have full access to due process, or that the law would be applied against him in a discriminatory manner, if he were to return to the United States and face court-martial proceedings. The Board found that the Universal Code of Military Justice (UCMJ) and the Manual for Courts-martial of the United States reveal a sophisticated military justice system that respects the rights of service personnel, and guarantees appellate review, including limited access to the United States Supreme Court.
[52] Noting that the UCMJ is a law of general application, the Board then reviewed the approach set out by the Federal Court of Appeal in Zolfagharkhani, previously cited, to determine whether the prosecution of Mr. Hinzman under an ordinary law of general application would amount to persecution.
[53] The Board thus found that the onus was on Mr. Hinzman to show that the American law was either inherently persecutory, or for some other reason was persecutory in relation to a Convention ground. In the Board's view, he had failed to satisfy this onus.
[54] In coming to this conclusion, the Board found that Mr. Hinzman had not brought forward any evidence to support his allegation that he would not be accorded the full protection of the law in the court-martial process.
[55] The Board also observed that the United States has military regulations in place that allow for exemption from military service, as well as for alternative, non-combatant service for persons who can invoke genuine reasons of conscience. The regulations also recognize that conscientious objections can be long-standing, or can result from an evolution in a person's belief system resulting from their military experiences.
[56] The Board recognized that American military regulations do not permit a conscientious objection to be founded on an individual's objection to a particular war, noting that this limitation had been upheld by the Supreme Court of the United States in the Vietnam-war era decision in Gillette v. United States, 401 US 437 (1971).
[57] The Board concluded that Mr. Hinzman had failed to offer sufficient evidence to establish that he was denied due process with respect to his application for non-combatant status, or that he would be denied due process or be treated differentially, were he to return to the United States and be court-martialled.
[58] Having failed to rebut the presumption that State protection would be available to him in the United States, the Board held that it followed that Mr. Hinzman's claim under both sections 96 and 97 of the Immigration and Refugee Protection Act had to be dismissed.
[59] As was noted above, the Board applied its reasoning from the Hinzman case to Mr. Hughey's claim. The Board further found that the presumption of State protection does not displace the burden of proof. According to the Board, even if a claimant succeeds in rebutting the presumption that a State will be able to protect its nationals, the burden remains on the applicant to establish the elements of his or her claim.
[60] The Board also found that the presumption of State protection should be applied, even when the State itself is the alleged agent of persecution.
ii) Did Mr. Hughey Have a Well-founded Fear of Persecution in the United States?
[61] Even though the Board found the issue of State protection to be dispositive of Mr. Hughey's claim, it nonetheless went on to consider the other issues raised by the claim, starting with the question of whether any punishment that would be imposed upon Mr. Hughey as a consequence of his refusal to serve in Iraq would be inherently persecutory, given his political and moral views.
[62] The Board found that Mr. Hughey decided to desert because he was opposed to the American military incursion into Iraq, and not because he was opposed to war generally. The Board noted that Army Regulation 600-43, which governs conscientious objector procedures, does not recognize an objection to a particular war, as opposed to an objection to war in general.
[63] The Board also noted that Mr. Hughey did not oppose the war in Iraq because of any atrocities or crimes against humanity that may allegedly have been committed there. Rather, in the Board's words "he believed the war was immoral and illegal under international law".
[64] Citing the decision of this Court in Ciric v. Canada(Minister of Employment and Immigration), [1994] 2 F.C. 65, the Board held that one cannot be a selective conscientious objector.
[65] As a consequence, while the Board implicitly accepted the sincerity of Mr. Hughey's opposition to the war in Iraq, it nevertheless found that he was not a conscientious objector, because he was not opposed to war in all forms or to the bearing of arms in all circumstances due to his political, religious or moral convictions, and that, as a result, any punishment that he might suffer for his desertion would not be inherently persecutory.
iii) Section 171 of the UNHCR Handbook
[66] Mr. Hughey feared that if he went to Iraq, he could have been called upon to kill innocent civilians. However, the Board rejected his assertion that the type of military action with which he did not wish to be associated in Iraq - that is, the specific acts that he would personally have been called upon to perform - were ones that were "condemned by the international community as contrary to basic rules of human conduct", as that phrase is used in section 171 of the UNHCR Handbook, and that, as a result, any punishment that he might receive for deserting would be persecutory.
[67] In support of his contention that he could well have been called upon to commit human rights violations had he gone to Iraq, Mr. Hughey pointed to evidence which he says established that the United States had committed numerous serious violations of international humanitarian law in Iraq. According to Mr. Hughey, this evidence demonstrated that he would have been involved in atrocities, had he agreed to be deployed to Iraq. He further contended that this evidence demonstrates that the United States had conducted itself with relative impunity, and had evidenced a complete disregard for international norms in its conduct on the various fronts of its "War Against Terror".
[68] Before the Board, Mr. Hughey contended that if he were required to participate in offensive action in Iraq, potentially killing innocent civilians, he would be excluding himself as a Convention refugee or person in need of protection by virtue of s. 98 of the Immigration and Refugee Protection Act. In such circumstances, Mr. Hughey submitted that any punishment that he might receive for deserting would be persecutory per se.
[69] The evidence adduced by Mr. Hughey included reports prepared by Human Rights Watch, Amnesty International, and the International Committee of the Red Cross regarding the conduct of American soldiers in Iraq. In addition, Mr. Hughey put evidence before the Board regarding conditions at the Guantanamo prison facility in Cuba, incidents of torture at the Abu Ghraib prison in Iraq, as well as two legal opinions prepared by the American Department of Justice (the "Gonzales opinions"), suggesting that the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, UN Doc. A/39/51, 1984, entered into force June 26, 1987, might not apply to the interrogation of 'enemy combatants' held by the United States.
[70] After reviewing the evidence adduced by Mr. Hughey, the Board found that the evidence fell short of establishing that the United States is engaged in military actions that are condemned by the international community as contrary to the rules of human conduct.
[71] While accepting that there had been instances where members of the American military in Iraq had engaged in serious violations of international humanitarian law, the Board observed that the military had investigated instances of alleged recklessness or indiscriminate use of force, and had taken disciplinary action, where appropriate.
[72] Referring to Mr. Hughey's testimony that had he gone to Iraq, he would likely have been employed driving a Humvee, patrolling and manning checkpoints, the Board accepted that these activities may have resulted in him killing Iraqi civilians who failed to stop at checkpoints, or who were believed to have been firing on checkpoint personnel. However, the Board also went on to find that the loss of innocent life was an unfortunate consequence of war.
[73] The Board thus concluded that Mr. Hughey had failed to adduce sufficient evidence to establish that, if he had been deployed to Iraq, he would have personally been engaged in, been associated with, or been complicit in acts condemned by the international community as contrary to basic rules of human conduct. The Board further found that Mr. Hughey had failed to demonstrate that, as a matter of policy or practice, the United Stateswas indifferent to alleged violations of international human rights law in Iraq.
[74] As a consequence, the Board found that any punishment that Mr. Hughey might receive for having deserted would not be inherently persecutory.
iv) Punishment for Desertion: Prosecution or Persecution?
[75] After finding that Mr. Hughey was not a conscientious objector, and that any punishment that he would face would not automatically be persecutory in nature, the Board went on to hold that, in order to establish that he faced a risk of persecution, Mr. Hughey had to demonstrate either that the punishment that he feared he would receive for desertion, if he were returned to the United States, would result from a discriminatory application of the UCMJ, or would amount to cruel or unusual treatment or punishment.
[76] In this regard, the Board noted that Mr. Hughey had testified that he would likely face between one and five years in a military prison, and he might be treated more harshly than other deserters by the American authorities, in order to discourage other soldiers from deserting and fleeing to Canada.
[77] In addressing this issue, the Board again adopted its reasoning in Hinzman, where Mr. Hinzman had also testified that he would likely face between one and five years in a military prison, and that because he had "probably offended ... military sensibilities", he would likely be treated more harshly than other deserters.
[78] In Hinzman, the Board commenced its analysis by reviewing the relevant provisions of the UNHCR Handbook, the full text of which are appended to this decision. The Board noted that the Handbook recognizes that desertion is invariably considered to be a criminal offence. The Board also noted that penalties for desertion will not ordinarily be considered to be persecutory.
[79] However, the Board also observed that paragraph 169 of the Handbook provides that a deserter may be considered to be a refugee if it can be shown that he or she would suffer disproportionately severe punishment for the military offence on account of his or her race, religion, nationality, membership in a particular social group or political opinion. A deserter may also be considered to be a refugee where it can be shown that he or she has a well-founded fear of persecution on the enumerated grounds, above and beyond the punishment for desertion.
[80] On the totality of the evidence before it, the Board concluded that the treatment or punishment that Mr. Hinzman feared in the United States would be punishment for nothing more than a breach of a neutral law that does not violate human rights, and does not adversely differentiate on a Convention ground, either on its face, or in its application.
[81] The Board did not accept Mr. Hinzman's argument that he would be punished more severely because of the publicity that has surrounded his case, finding that there was insufficient evidence to justify this assertion.
[82] Moreover, the Board concluded that the punitive articles in the UCMJ were not grossly disproportionate to the inherent seriousness of the offence of desertion. Although the UCMJ allows for the theoretical possibility of a sentence of death for desertion, the Board noted that, in practice, the last time a deserter was sentenced to death was during the Second World War.
[83] After reviewing the evidence, including sentences handed down to other American deserters, the Board found that there was less than a mere possibility that Mr. Hinzman would be sentenced to death. Indeed, counsel for Mr. Hinzman admitted that he would not face the death penalty.
[84] Accepting that Mr. Hinzman would likely be sentenced to a prison term of somewhere between one to five years for his desertion, in addition to having to forfeit his pay and be dishonourably discharged, the Board held that Mr. Hinzman had not established that treatment would be persecutory.
[85] Finally, the Board found that while Mr. Hinzman could ultimately face some employment and societal discrimination as a result of his dishonourable discharge, this also did not amount to persecution.
[86] Applying this reasoning in Mr. Hughey's case, and accepting that Mr. Hughey would also likely receive a sentence of one to five years for his desertion, the Board found that the treatment or punishment that Mr. Hughey feared he would receive in the United States under the UCMJ would be punishment for the breach of a law of general application that did not violate his human rights, and did not differentiate on a Convention ground, either on its face or in its application.
[87] According to the Board, Mr. Hughey failed to establish that he would be treated more harshly because of his political opinions, or that the penal provisions of the UCMJ were disproportionate, or amounted to cruel or unusual punishment.
VI. Issues
[88] The issues raised by Mr. Hughey before this Court can be addressed under the following headings:
1. Did the Board err in finding that evidence with respect to the alleged illegality of the American military action in Iraq was irrelevant to the determination that had to be made by the Refugee Protection Division in accordance with paragraph 171 of the UNHCR Handbook?
2. Did the Board err in finding that Mr. Hughey had failed to establish that the violations of international humanitarian law committed by the American military in Iraq rise to the level of being systematic or condoned by the State?
3. Did the Board err in imposing too heavy a burden on Mr. Hughey to demonstrate that he would himself have been involved in unlawful acts, had he gone to Iraq? and
4. Did the Board err in its analysis of the State protection and persecution issues?
[89] In addition, the question of the appropriate standard of review will have to be addressed in relation to each of these issues.
VII. Did the Board Err in Finding that Evidence as to the Alleged Illegality of the American Military Action in Iraq was Irrelevant to the Determination That Had to Be Made in Accordance with Paragraph 171 of the UNHCR Handbook?
[90] Before addressing Mr. Hughey's submissions on this issue, it is important to observe that paragraph 171 of the Handbook cannot be considered in a vacuum, and must be read in conjunction with the other provisions of the Handbook dealing with "Deserters and Persons avoiding military service".
[91] In particular, for the purposes of this analysis, paragraph 171 has to be read in conjunction with paragraph 170. For ease of reference, the two paragraphs are reproduced here:
170. There are, however, also cases where the necessity to perform military service may be the sole ground for a claim to refugee status, i.e. when a person can show that the performance of military service would have required his participation in military action contrary to his genuine political, religious or moral convictions, or to valid reasons of conscience.
171. 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 the basic rules of human conduct, punishment for desertion or draft evasion