U.S. Deserter Could Qualify as Refugee in Canada

Canadian Broadcasting Corporation
http://www.cbc.ca/canada/story/2008/07/04/refugee-ruling.html?ref=rss
July 4, 2008

An American war deserter could have a valid claim for
refugee status in Canada, the Federal Court ruled on
Friday.

In a decision that may have an impact on dozens of
refugee claimants in Canada, Federal Court Justice
Robert Barnes said Canada's refugee board erred by
rejecting the asylum bid of Joshua Key. He ordered that
a new panel reconsider the application.

Key was sent to Iraq in 2003 as a combat engineer for
eight months where he said he was responsible for
nighttime raids on private Iraqi homes, which included
searching for weapons.

He alleged that during his time in Iraq he witnessed
several cases of abuse, humiliation, and looting by the
U.S. army.

When Key was back in the U.S on a two-week leave, he
said he was suffering from debilitating nightmares and
that he couldn't return. A military lawyer told him
that he could either return to Iraq or face prison.

Instead, Key took his family to Canada and applied for
refugee status.

While the immigration board concluded that some of the
alleged conduct by the U.S military included a
"disturbing level of brutality," it said the conduct
did not meet the definition of a war crime or a crime
against humanity.

Barnes said the board erred "by concluding that refugee
protection for military deserters and evaders is only
available where the conduct objected to amounts to a
war crime, a crime against peace or a crime against
humanity."

Citing a case from the U.S. Federal Court of Appeal,
Barnes said officially condoned military misconduct
could still support a refugee claim, even if it falls
short of a war crime.

"The authorities indicate that military action which
systematically degrades, abuses or humiliates either
combatants or non-combatants is capable of supporting a
refugee claim where that is the proven reason for
refusing to serve," Barnes wrote.

Barnes said the board imposed a legal standard that was
"too restrictive" on Key, who lives in Saskatchewan.

Key's lawyer, Jeffry House, said the ruling expands a
soldier's right to refuse military service.

"It's a huge victory for numerous soldiers who are here
and maybe others who are thinking of coming here,"
House said.

A spokeswoman for Immigration Minister Diane Finley
said they were reviewing the court decision.

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