Courts Send Mixed Messages To U.S. Deserters

Courts send mixed messages to U.S. deserters

Janice Tibbetts and Linda Nguyen
Canwest News Service
Published: Tuesday, July 15, 2008

OTTAWA — In their battle to secure asylum in Canada, U.S. military deserters are being sorted into winning and losing camps by the Federal Court, which some lawyers contend has been inconsistent and confusing in its treatment of war resisters.

In six court decisions in the last two years, there have been four losers and two winners among the first batch of former soldiers to challenge their defeats at the Immigration and Refugee Board.

“We've got a divided court,” said Toronto lawyer Geraldine Sadoway, whose client, Justin Colby, recently lost his refugee bid, after fleeing to Canada two years ago following a one-year stint as a medic in Iraq.

Ms. Sadoway says she cannot figure out why the Federal Court rejected Mr. Colby's claim on June 26, only one week before it handed the first ever victory to deserter Joshua Key, who also served in Iraq.

The court ordered the refugee board to reconsider Mr. Key's claim, on the grounds that the U.S. soldier witnessed enough human rights abuses during a stint in Iraq that he could be eligible to qualify for asylum.

Ms. Sadoway attributes the apparently conflicting rulings to the fact that different judges decided the cases and that the court is still trying to find its way in the emerging issue of how to deal with dozens of army deserters whom the refugee board has concluded do not fit the traditional mould for asylum.

Toronto lawyer Jeffry House, who represented Mr. Key, said that one clear difference between the Saskatchewan father and other claimants [except Colby] is that Key served in Iraq and says he witnessed severe human rights abuses during military-condoned home invasions of Iraqi civilians.

“I think that reopens the case for anybody who was in Iraq and whose case was based on that kind of analysis,” said House.

Three other military deserters who lost in the Federal Court — Brandon Huey, Jeremy Hinzman and Robin Long — were never deployed to the middle-Eastern country. Mr. Long was deported Tuesday, making him the first U.S. soldier to be kicked out of Canada.

“I can confirm that a removal has taken place,” said CBSA spokeswoman Shakila Manzoor. She would provide no further details about the deportation.

The 25-year-old filed a refugee claim with the Immigration and Refugee Board in 2005, arguing that he would suffer irreparable harm if he was sent back to the U.S. He also claimed that he would be forced to participate in “war crimes” if he was stationed in Iraq.

Mr. Long has been in CBSA custody since last October, when he was arrested on a Canada-wide warrant at his home in Nelson, B.C., after the board struck down his refugee claim and ordered him out of the country.

His last appeal for refugee status was denied Monday by the Federal Court.

Mr. Long is being transferred to Fort Carson in Colorado, where he will continue with his former unit until it's decided how his case will proceed, said Ryan Brus, a spokesman for Fort Knox, Ky., where Long was stationed before he deserted.

“The unit commander will look at the facts and make a decision about what disciplinary actions will ensue,” Mr. Brus said from Kentucky. “A recommendation will be made about what will happen to this soldier.”

Messrs. Huey, Hinzman and Long all argued their cases on the grounds that they would face imprisonment if they were returned to the U.S. after deserting the military, a prospect that the court has rejected.

Corey Glass, who deserted the National Guard after his first tour in Iraq, was given a last-minute reprieve by the Federal Court last week to stay in Canada until the court decides whether to hear his appeal of his defeat before the Immigration and Refugee Board.

The court did not give reasons for the stay, so it is unknown whether the decision was based on the Key ruling days earlier.

Alyssa Manning, a Toronto lawyer who represented Mr. Glass, said it is hard to conclude the Federal Court has been all over the map in its decisions thus far, given that each case has been argued on a separate set of facts.

“These cases seem to turn on the quality of the evidence that is being presented before the court,” she said.

Ms. Manning acknowledged that the two divergent rulings only eight days apart — in the Colby and Key cases — appear to be at odds “when they both raised similar issues.”

Less than 40 American soldiers have made refugee claims in Canada, said Karen Shadd, a spokeswoman for the federal Immigration Department. The Toronto-based War Resisters Support Campaign estimates there are about 200 Iraq war dodgers in Canada.

Most cases are still at the Immigration and Refugee Board, which has never accepted a war resister's claim.