report on kim rivera federal court hearing, part one

For those of you who would like a view into the federal court hearing I attended yesterday, here are some details.

Alyssa Manning argued the case before Justice James Russell; Stephen Gold was the attorney for the crown. This was the exact configuration in Jeremy Hinzman's most recent federal court appeal - which is why I find it difficult to be optimistic.

The day of the Hinzmans' hearing, I left court feeling so hopeful. All the facts and proof were on our side. Alyssa performed brilliantly, and the Crown had nothing. In addition, we thought Justice Russell was sympathetic to the war resisters' cases, as he had granted temporary stays and leaves to appeal.

Yet the Hinzman appeal was denied.

To many of us, this speaks to a basic injustice and a bias against the war resisters percolating through the whole system. What can we expect when the Minister himself publicly calls the war resisters "bogus refugees"?

* * * *

Yesterday's hearing was an appeal of the negative decision in Kim Rivera's Pre-Removal Risk Assessment (PRA).

The hearing began a little oddly. The Crown was trying to exclude some evidence Alyssa had put forward (I don't know what it was). Justice Russell denied the request, saying that Justice Zinn's decision granting leave to appeal was not restricted in any way. The Crown withdrew its objection but called the evidence "quite unprecedented".

Justice Russell then told Alyssa he had "already seen a great deal of this file", and that she didn't need to needlessly repeat herself. He emphasized that she was free to say whatever she wanted and use her time however she thought best, but that she didn't need to re-argue the entire case. He specifically asked for clarification on what he called her "linchpin argument".

Alyssa is arguing that the officer who assessed Kim's PRA did not properly analyze the risk to Kim and her family, because he looked at the wrong part of the process and skipped over the most important part. Not properly analyzing the risk "is fatal" (in legal parlance) to everything that follows - the key issues of state protection and differential punishment. Meaning, if you don't properly analyze the risk, you can't properly analyze the protection offered from that risk.

Justice Russell said he was having trouble seeing the PRA officer's "non-responsiveness" to the risk, and requested Alyssa direct him to it.

Alyssa's central point was that the differential treatment received by war resisters who speak out against the war in Iraq is not adquately measured in the length of the jail sentences some war resisters have received. The differential treatment is seen much earlier, in who is selected for court martial. Most soldiers who go AWOL from the US military are given administrative discharges. Only a handful are chosen for court martial. The deserters selected for court martial are the ones who have been outspoken in their opposition to the US war in Iraq.

This means that a "law of general application," as they say, is being used in a persecutorial manner. It means the war resisters are being punished for their political and/or religious beliefs.

Alyssa showed Justice Russell how the PRA officer failed to address this issue of differential treatment at the selection for court martial stage. Among other evidence, she showed how, in the court martials of war resisters Robin Long and James Burmeister, their speaking out publicly against the war was used as an "aggravating factor" - not only in their sentencing, but in the military choosing to prosecute them in the first place.

The entire risk analysis was conducted on what happens after court martial and conviction - not why the solder is selected for court martial in the first place, which is entirely based upon the soldier's political opinions and beliefs.

There was a lengthy exchange between the judge and the lawyer, and the judge had some trouble understanding Alyssa's point. We observers were bursting! We were all dying to yell out the answer. Alyssa rephrased and repeated herself over and over, and finally Justice Russell understood: an administrative discharge means a soldier is not being court martialed. Ah-ha! We all smiled and breathed a sigh of relief as Alyssa could move on.

* * * *

Remember, a Refugee officer cannot simply render a negative decision. He or she must state the reasons for the decision, referencing and refuting the claimant's evidence. So a large portion of Alyssa's case is demonstrating how the PRA officer erred in not examining the evidence or holding the evidence to the proper tests.

For example, the PRA officer didn't look at evidence of what has happened to other former soldiers sent back from Canada - the "similarly situated persons" which are so important to refugee claims.

Alyssa said that considering this was the main point of Kim's argument, it was a "glaring omission" on the part of the PRA officer.

My notes on this are copious. If I wrote them out here, it would be numbingly repetitively to read. But in court, demonstrating the same idea multiple times with all different evidence and examples is making your case as thoroughly, methodically and rigorously as possible. I imagine Alyssa beginning with a cube full of interlocking parts, like an architecture building set. From the cube, she unpacks each piece, attaching it to the previous piece, fitting them together with slots and pegs, building higher and wider and stronger, until there's an elegant structure in front of us - vast and solid and indisputable. It's wonderful to observe.

* * * *

Alyssa demonstrated how the PRA officer didn't address new evidence of deserters being persecuted through selective prosecution, evidence from the cases of resisters who came to Canada and who were outspoken (Robin Long, James Burmeister, Ivan Brobeck), other resisters who were outspoken and then cherry-picked for prosecution (Stephen Funk, Camilo Mejia, Augustin Aguayo, Kevin Benderman), and in fact ignored much of the evidence that is central to Kim's case. Alyssa argued that a blanket statement - something like, "we find there will be adequate state protection" - is not adequate when there exists so much contradictory evidence.

The PRA officer also misconstrued and misinterpreted one of the laws pertaining to court martial. You may recall from an earlier case that the Crown characterized Article 15 of the UCMJ as a "dispute resolution mechanism," which brought gales of guffaws and "WTF?"s from wmtc readers who have military experience. Article 15 is non-judicial punishment; it means (roughly speaking) you will receive a sentence without a court martial.

Similarly, the PRA officer in Kim's case said Kim would be afforded an Article 38 investigation. First of all, Alyssa said, it's not Article 38 - they must mean Article 32. Secondly, the PRA officer completely misconstrued Article 32. It is a preliminary hearing to decide which type of court martial will be used, depending on the evidence. In terms of who is selected for prosecution and punishment, it's completely irrelevant.

One eye-opening moment came when Alyssa showed that some of the wording in Kim's PRA decision was identical - word-for-word! - to some paragraphs in Dean Walcott's and Jeremy Hinzman's decisions. So the Refugee Board is using cut-and-paste templates for decisions that profoundly and permanently effect the course of a family's life?

Alyssa invited Justice Russell to review the wording in several paragraphs - and not just incidental paragraphs, but wording relating to crucial aspects of the case.

So, Alyssa proved, not only did the PRA officer misconstrue the meaning of the process Kim would be subjected to, not only did he fail to analyze the risk at the proper step, not only did he not adequately provide his reasons for the negative decision, and not only did he fail to address new evidence in the claim, his reasons were provided by way of boilerplate language that demonstrates his inattention to the details of this case.

Finally, Alyssa addressed the PRA officer's finding that Kim Rivera did not file a conscientious objector application. She produced a letter from Amnesty International showing that CO applications have had absolutely no bearing on similar cases. War resisters who filed CO applications were re-deployed to Iraq while their applications were pending. (This is one of many reasons conscientious objector applications are a farce.)

* * * *

Next, the Crown's response and Alyssa's rebuttal.

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