kim rivera: nervous, hopeful, moral, resolute

Canadian Press story on Kim Rivera.

American war resister Kimberly Rivera says she's nervous but hasn't given up hope she'll be allowed to remain in Canada.

The 27-year-old mother of three, who now lives in Toronto, made what might have been her final appearance Wednesday morning in Federal Court.

Rivera, from Texas, deserted the U.S. army in 2007 because of her opposition to the war in Iraq.

She had been facing deportation and a likely court martial until a judge granted her an 11th-hour reprieve in March.

Now, the court is probing whether a Ministry of Citizenship and Immigration report from December 2007 adequately measured the potential risks Rivera could face if she were returned to the U.S.

"I'm more optimistic (than pessimistic)," said Rivera, flanked by dozens of anti-war supporters, as she cradled her seven-month-old daughter Katie in her arms outside the downtown Toronto courthouse.

Lawyers for Rivera and the ministry delivered their final arguments on the merits of the report Wednesday morning in front of Judge James Russell.

Rivera's lawyer Alyssa Manning argued her client would more likely face a court martial and jail time - instead of a simple administrative discharge - because of her political opposition to the war. The report, Manning said, failed to account for this risk of "differential prosecution."

But that wasn't the only flaw, Manning said. The report also contained sections that were copied "word for word" from assessments carried out on two other war deserters four months earlier, she said.

"It's almost that the conclusion was reached before the evidence was even looked at," Manning said outside court.

In her arguments, Manning cited the cases of a number of U.S. war resisters, including Robin Long, the first resister to be successfully deported from Canada.

Long was given a dishonourable discharge in 2008 and sentenced to 15 months in a military prison after pleading guilty to charges of desertion.

Manning told court that 94 per cent of all army deserters are given administrative discharges, but not those who air their beliefs in public.

"People who speak out about their political opinions get prosecuted," she said afterward. "People who don't, don't."

Ministry lawyer Stephen Gold told court that the conclusions in Rivera's risk assessment were "perfectly reasonable." The report fully considered whether Rivera would be at greater risk if she were returned to the U.S., Gold said.

Rivera enlisted in March 2006 and was deployed to Iraq, where one of her main duties was to search suspicious vehicles at checkpoints.

She became disillusioned with the mission, however, and in February 2007, while on a two-week leave in the U.S., she crossed the border into Canada.

Manning said that unless the court orders a new risk assessment, Rivera will probably be out of options.

"There are very limited avenues," she said. "I would say that today is essentially the last chance."

Rivera said even if she is deported and court-martialled, her opposition to the war will continue.

"It doesn't matter whether I get to stay in Canada or I have to leave Canada," she said. "I'll be the same as I am now."

It's not known when the court will deliver its final decision.