On Thu, 21 Mar 2002 03:07:09 GMT, hkhenson@cogeco.ca (Keith Henson) wrote:
>
>HCO PL 4 Jan 1966, "LRH Relationships to Orgs"
>
>"Somebody some day will say 'this is illegal'. By then be sure the
>orgs say what is legal or not."
>
>L. Ron Hubbard
>
>********88********
>
>It seems to have fallen to me to test how far along scientology is to
>achieving LRH's goal.
snip
INTERVENTION OF THE MINISTER IN THE CONVENTION REFUGEE CLAIM OF KEITH HENSONTABLE OF CONTENTS
1. Legal opinion from Martin Anderson, Department of Justice.2. Print-outs of various screens of claimant's immigration history from CIC database.
3. Documents from Superior Court of California criminal proceedings.
4. Documents of complainants in California criminal proceedings.
5. Communications from Church of Scientology Members in Canada.
6. E-mail communications. [There is not one email, all are Usenet postings-hkh]
7. Internet articles on Keith Henson.
8. Detention Review Hearing Transcript, June 6, 2001 & release documents.
9. Canadian Police & Immigration arrest documents.
10. USA Passport & credit card copies.
Department of Justice Ministere de la Justice Canada Canada
'Ontario Regional Office Bureau r6gional de I'Ontario Telephone: (416) 952-2856 The Exchange Tower la tour Exchange Facsimile: (416) 954-8982 130 King St. West 130 rue King ouest Suite 3400, Box 36 Piece 3400, CP 36 Internet: Toronto, Ontario Toronto (Ontario) M5X 1 K6 M5X 1 K6
Our File: 14_486858 Notre dossierYour File: Votre dossier.
January 23, 2002Naima Karimullah Toronto Hearings and Appeals 74 Victoria Street Suite 301 RECIEVED JAN 23 2002 Toronto, Ontario M5C 3C7
Dear Madam:
Re: Legal Opinion - Article 1 F(b) Court File No.: ORO-486858Please find attached the legal opinion that I prepared regarding Keith Henson. I am returning your file to you.
Kindly advise me if I can offer any other assistance in this matter.
Yours truly,[signed D (Dorothy?) Philips
per Martin Anderson Counsel Immigration Law Section
Department of Justice Ministere de la Justice Security classification - We de s6curit6 Canada Canada Solicitor-Client Privileged
File number - Num6ro de dossier 14-486858 MEMORANDUM / NOTE DE SERVICE Date January 24 2002 Telephone/FAX -- T6lephone/T616copieur
(416) 962-2856/ (416) 954-8982
TO / DEST: Naima Karimullah, Hearings Officer Toronto Hearings and Appeals
FROM / ORIG: Martin Anderson, Counsel Department of Justice
SUBJECT / OBJET: Keith Henson (FOSS: 4460-0022)
Comments/Remarques
FACTSKeith Henson has had a long running dispute with the Church of Scientology in the U.S.A. On April 26 2001, he was convicted of an offence under s. 422.6 of the California Penal code - intimidate, threaten or oppress because of race, religion or colour. The offence carries 'a maximum term of one year in prison and a fine of up to $5,000 (U.S.).
Before sentencing, Henson fled California and made a Convention Refugee claim in Canada. The California Court sentenced Henson in absentia and imposed a term of 365 days incarceration. I
You asked me to provide an analysis of whether the offence for which Henson was convicted could lead to his exclusion from Convention Refugee status pursuant to Article 1(F)(b) of the Geneva Convention. You have also asked me for a legal definition of terrorism.
ARTICLE 1(F)(B) EXCLUSIONThe law
When Article 1(F)(b) applies
Article 1(F)(b) of the Geneva Convention excludes those individuals who have committed serious nonpolitical crimes outside the country of refuge: ------ footnote 1 Henson was eligible to have his term of incarceration reduced to 180 days if he agrees to a probation order on certain terms.
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(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.
There is obiter from the Supreme Court of Canada in Ward' and Pushpanathan2 that the Article 1(F)(b) exclusion clause only applies to those who evade prosecution or the service of a sentence. In Chan3, the Court of Appeal held that Article 1(F)(b) does not apply to those who have already served their sentence for the crime giving rise to the Article 1(F)(b) allegation:
Article 1F(b) cannot be invoked in cases where a refugee claimant has been convicted of a crime and served his or her sentence outside Canada prior to his or her arrival in this country.
The weight of the authorities indicates that Article 1(F)(b) only applies to fugitives from justice and should not prohibit those who have served their sentence from making a Convention Refugee claim.
The test for exclusion under Article 1(F)(b)To be excluded from claiming Convention Refugee status pursuant to Article 1(F)(b), a person must commit a crime that is (i) non-political and (ii) serious
(i) "non-political " crime
In Gil4, the Court of Appeal adopted a formulation of the incidence test to determine if a crime is political. The formulation adopted by the Court was as follows:
Also, while the Board does not mention it, I think it is clear enough from the evidence that the appellant meets the first branch of the incidence test as enunciated in the authorities. The materials in the record show that, in the years in question, Iran was a turbulent society in which a number of armed groups were in conflict with the Khomeini regime. [See Note 28 below] The Board found the appellant to be generally credible and his assertion that he was a member of such a group appears consistent with this material.
[para40] Where the appellant's claim fails the incidence test, however, is in the second branch thereof. There is, in my view, simply no objective rational connection between injuring the commercial ------------- footnotes
1 Ward v. Canada (M.E.I.) (1993), 103 D.L.R. (4th) 1 (S.C.C.) 2 Pushpanathan v. Canada (M.C.I.), [1998] 1 S.C.R. 982 3 Chan v. Canada (M.C.I.) [2000] 4 F.C. 390 (F.C.A.) 4 Gil v. Canada (M.E.I.) (1994), 25 Irnm.L.R. (2d) 209 (F.C.A.)
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interests of certain wealthy supporters of the regime and any realistic goal of forcing the regime itself to fall or to change its ways or its policies. This, I think, is what the Board was attempting to convey when it talked of the appellant's crimes failing "to go beyond personal vindictiveness towards something which would alter the political organisations that existed at the time." Even if we accept (which the Board appears not to have done) that some of the businesses targeted were owned by highly placed members of local revolutionary committees, the nexus between such businesses and the general structure of the Government of Iran at the time appears far too tenuous to support or justify the kind of indiscriminate violence which the appellant admitted to.
It is generally accepted that, under the incidence test, that for a crime to be considered political, it must be aimed to achieve a political objective - i.e. changing a government or influencing government policy. There must also be some rational connection between the crime committed and the political goal to be achieved by committing the crime.(ii) "serious" crime
The jurisprudence outlines when a crime will be considered serious for Article 1(F)(b) purposes. In Talebl, the Court considered the penalty imposed for the crime under the Criminal Code to determine if it is "'serious". In Chant, the Court of Appeal found that the seriousness of the crime could be determined by whether it would be punishable by ten years or more had it been committed in Canada. In Shamlou3, the Court determined that the seriousness can be determined from the quality of the offence itself. In Brezinski4, Lutfy J. traced the history of the wording of Article 1(F)(b) in the Traveaux Preparatoires to emphasize that Article 1(F)(b) was only designed to cover crimes of a higher gravity. Lutfy J. explained that how the crime is prosecuted in the jurisdiction where it was committed is also an indicia of its seriousness. Lutfy J. explained that is the gravity of the crime, and not its repetition, which determines if the crime is serious.
Is Henson excludable under Article 1(f(b)?
Henson is a fugitive from justice. Upon conviction in the U.S.A., Henson fled the jurisdiction. Henson faces a term of imprisonment in the U.S.A. As per Chan, Henson is prima facie eligible for the application of Article 1(F)(b). --------- footnotes
1 Taleb v. Canada (M.C.I.) (M.C.I.), [1999] F.C.J. No. 743 (F.C.T.D.) 2 Chan v. Canada (M.C.I.) [2000] 4 F.C. 390 (F.C.A.) 3 Shamlou v. Canada (M.C.I.) (1995), 32 Inlln.L.R. (2d) 135 (F.C.T.D.)
4 Brzezinski v. Canada (M.C.I.) (1998), 148 F.T.R. 296 (F.C.T.D.)
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Henson's offence can be considered non-political. Henson's actions against the Church of Scientology are not connected to any efforts to change the government or government policy. Furthermore, there is no way that Henson's actions can be seen as having the required nexus to such actions. Finally, as explained in Gill, even if Henson's actions should be considered as having a political motivation, they could not be considered political as they were directed towards a non-governmental population.
The activities giving rise to Henson's conviction in California, had they been committed in Canada, could have constituted offences under s. 264 (criminal harassment), s. 264.1 (uttering threats), and s. 318 (advocating genocide) of the Criminal Code. As explained in the Probation Officer's Report, Henson made statements on an Internet site as to how a missile could be used to hit the Church of Scientology site. This can be seen as the uttering a threat and advocating genocide. Henson also stated that "killing off the organization entirely is the best way to change the future of Scientology". This could also be seen as advocating genocide. Henson also undertook the surveillance of the employees of the Church-of- -Scientology. He took pictures of Church employees and picketed their offices. He engaged in this conduct for 43 days. He followed Church buses on their outings and followed Church employees home. Henson's conduct could be seen as constituting criminal harassment.
An argument can be made that Henson's conviction can be considered a serious crime under Article 1(F)(b). Although Henson was prosecuted for a misdemeanor, the California Court found his offence serious enough to sentence him to 365 days in jail, and not just a fine. The California Court's decision to impose the maximum sentence indicates that it considered the crime serious. Furthermore, the Canadian offences that may arise from Henson's actions leading to the California conviction carry a heavy sentence. S, 264 (criminal harassment), s. 264.1 (uttering death threats) and s. 318 of the Criminal Code (promoting genocide) are all punishable by five years incarceration. The fact that lengthy periods of incarceration can be imposed for the Canadian offences suggests that Henson's crime could be considered a serious crime. Finally, the nature of the offence that Henson was convicted of intimidate, threaten or oppress because of race, religion or colour - by its nature, suggests that the offence is serious. Intimidating, threatening or oppressing someone because of a personal characteristic such as their race, religion or colour can be characterized as a hate crime. A hate crime could arguably, by its nature, be considered a serious crime.
A case could be made on the above basis that Henson should he excluded from the Convention Refugee definition for having committed a serious non-political crime.
LEGAL DEFINITION OF TERRORISMIn the recent judgment of Suresh3, the Supreme Court of Canada adopted, for the purposes of s. 19(1)(f) of the Immigration Act, the definition of terrorism expounded in the International Convention for the Suppression of the Financing of Terrorism:
1 Gil v. Canada (M.E.I.) (1994), 25 Imm.L.R. (2d) 209 (F.C.A.) 2 Criminal Code, R.S.C. 1985, c. C-46 (as am.) 3 Suresh v. Canada (M.C.I.) [2002] S.C.J. No. 3 (S.C.C.)
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In our view, it may safely be concluded, following the International Convention for the Suppression of the Financing of Terrorism, 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".
Henson's activities may not fall under the Suresh definition of terrorism. Henson, from the evidence before me, did not commit any act intended to cause injury or serious bodily harm. His threats to commit acts that would produce death of serious bodily harm may not be seen as sufficient to satisfy the definition. However, should the jurisprudence recognize a threat to commit serious injury or bodily harm as terrorism, Henson's actions could be considered terrorist under the Suresh definition.
In C-36, the Anti-terrorism ActI, terrorist activity is defined, in part as:
(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
(ii) that intentionally
(A) causes death or serious bodily harm to a person by the use of violence,
(B) endangers a persons 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 ------- footnote 1. S.C. 2001 c. 41
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(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 counseling 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.'
Under this definition, Henson's actions can be seen to be for a religious or ideological purpose. The actions could also be seen to be intentionally committed for the purpose of intimidating a segment of the public - the Church of Scientology. The threat to blow up the Church of Scientology and to kill the organization may be seen as a serious threat to cause death, bodily harm, and a risk to health or safety, property damage and/or a serious interference with an essential service so as to constitute terrorist activity. ----- footnote 1 S. 83.2001(1) of the Anti-terrorism Act, which defines "terrorist activity" came into force on December 18 2001.