immigration and Commission as i'imrnigretion Refugee Board of Canada at do statut tie refugie du Canada Refugee Protection Section the la protection Division des refugi?s RPD File No.: TBS-D2198 TB3-0221 2 NOTICE OF DECISION {Immigration and Refugee Protection Act, subsection 107(1)] [Refugee Protection Division Rates. section P. ROCHE Member In the claims for re?lgee protection of: Date of Birth Client ID DEHART. PAUL JOSEPH March 20. 1958 6580-5422 DEHART. LEANN CHRISTINA ebruary 21. 1957 6580-5428 (AKA. DEHART. June I l. [984 6580-5430 DEHART. MATTHEW PAUL The claims were heard on August 20m and August 2 2014. The Refugee Protection Division determines that the claimants are not Convention refugees and are not persons in need of protection. Therefore, the Refugee Protection Division rejects the claims. Reasons for the decision are attached. ,r at i 06 February 2015 Registrar I Under section 7'2 ot'the and Renter-3e Protection you may make an application to the Federal Court for judicial review. with leave oftliat Court. You may wish to get advice From counsel as soon as possible. since there are time limits for making the application. RPU.39.5 flame En. El? 3] I'Jispnnihlc cn [run-eats immigration and Refugee Board of Canada Commission cle I'Emmigration et du statut do refugi? du Canada Refugee Protection Division Section cle ta protection des r?fugi?s RPD File No. i de dossier de la SPR: TB3-02198 TB3-04574 Private Proceeding Huis dos Reasons and Decision Motifs et Decision Claimant(s} Paul Joseph DEI d?asile Leann Christina DEHART (aka. Leann DEI-IART) Matthew Paul DEHART Date(s) of Hearing August 2014 Date(s) de l?audience August 20. 2014 Place of Hearing Toronto. Ontario Lieu de l?audienee Date of Decision February 5. 2015 Date de lad?eision and reasons et des motifs Panel P. Roche Tribunal Counsel for the Larry Butkowsky Conseil(s) du (de lafdes) Claimant(s) Barrister Solicitor d?asile Designated WA Representative(s) Counsel for the Minister Matthew Beatty Conseil do (de la} ministre Iii-3 nPo.2s.1 {August31. 2012} RPD File No. i de dossier de la SPR: TEE-02198 TBS-02212 REASONS FOR DECISION Matthew DeHart (the principal claimant). Paul DeHart (the male claimant} and Leanne Christina DeHart (the female claimant) are claiming refugee protection in Canada pursuant to sections 96 and 97(1 of the Immigration and Re?igee Protection Act] DETERMINATION The panel ?nds that the claimants are not excluded from refugee protection pursuant to Article lFtb). The panel ?nds that the claimants are neither Convention refugees nor persons in need of protection. The determinative issue in this claim was that of state protection. ALLEGATIONS The claimants are citizens of the United States who entered Canada on April 3. 2013. All three claimed refugee protection upon their entry into Canada on the grounds that the principal claimant had been tortured by the authorities in the United States and that all three claimants feared persecution if they returned there. The principal claimant alleges that he was a member of the online hacker group ?Anonvmous? since its inception. As a result ofhis activities with Anonymous. he became aware of leaked government documents relating to the national security of the United States. On January 25. 2010. the principal claimant?s home was searched by the authorities and all the family?s electronic devices were seized. It was indicated at that time that he was suspected of being involved in child pornography. On August 6. 2010, the principal claimant was in the process of returning from Canada to the Calais. Maine. United States when he was stopped by American of?cials. He testi?ed that he was about to attend college in Canada and had returned to the United States. speci?cally Maine, to activate the student visa. When he crossed over into the United States. he showed his ID. to the US. official. 1 immigration and Refugee Protection/lei, 5.02001, c. 27.22.96. RFD File No. i? N0 de dossier de la SPR: TIE-02198 TBS-02212 The of?cial took the documents and returned with other agents who blocked all the doors. The principal claimant was told to take off his backpack and surrender his belongings. including his phone. He was told that this was normal procedure and that he would be questioned and then sent on his way. The principal claimant was held at that location until some agents from the Federal Bureau of Investigation (FBI) arrived from Bangor. Maine. No indication was given to the principal claimant as to why he was being held. The principal claimant was then transferred from that of?ce to a larger facility. He was not allowed to contact his lawyer or anyone else. The principal claimant testified that he was kept in a cell for approximately one hour and was then brought to a medical cell where he was given an IV by a doctor. The principal claimant indicated that at that time. he was yelling and that he was agitated. It was later determined that he was given Thorazine. a strong sedative. He was also told that it was part of the procedure. He was then returned to the detention cell. Not long after. the principal claimant was brought to a conference room where he was questioned about issues of national security. [10] The principal claimant stated that there were two FBI agents. one who sat on his right and one who sat on his left. He was asked whether he knew an individual named Diehl, as well as the World of Warcraft Guild. The principal claimant indicated that he did not know an individual named Diehl and did not have anything else to say and wanted to rely on the Fifth Amendment but he was told that in matters of national security he could not. [11] The principal claimant was told that the individual Diehl has information that was leaked to the principal claimant's server. classi?ed information that went on to Wikileaks. The of?cer focused on what had transpired when the principal claimant had earlier gone to speak to of?cials at the Russian and Venezuelan embassies. The principal claimant indicated that he sought asylum at both the Russian and Venezuelan embassies without success. He was asked what was said but he testi?ed that the questioning always came back to the individual Diehl. The principal claimant is not aware whether Diehl was charged with anything relating to national security. RPD File No. i N0 the dossier de la SPR: TB3-02198 TEE-02212 TBS-04574 [12] The principal claimant testi?ed that he was never charged with any crimes against national security but had been threatened that he could be in the future. The principal claimant believes that the national security investigation is still ongoing at the present time. [13] The principal claimant further testi?ed that he was shown by the FBI officer the same day the af?davit from Detective Kniss regarding the child pornography complaint. He testi?ed that when he saw it, he said to the FBI of?cers that he had nothing to do with that. One of the FBI of?cers said that he knew that and continued to ask national security questions. which the principal claimant started to answer. The principal claimant indicated that he felt groggy like he was drugged or drunk. [14] The principal claimant testi?ed that he collapsed and was taken to hospital where he was determined to be undergoing a drug induced He was placed in a suicide smock and put in a drunk tank and underwent further interrogation. He testified that he was placed in a dry cell. which meant no toilet and as a result. he had to relieve himself in the cell. He had no clothing. no bedding and had to sleep on a concrete floor. There were constant knocks on his door which kept him awake. Bleach was thrown on him. He was placed in a chair with restraints on a number of occasions. [15] The principal claimant testi?ed that the interrogation focused on issues of national security, Wikileaks and the group Anonymous. The principal claimant had been af?liated with Anonymous since 2006 and ran a ?le server called ?the Shell?, which was part ofa parallel Internet world. The Shell hosted files that were unable to be tracked. such as music. movies. as well as con?dential material. After 2009. only ?les were permitted; all others were deleted. which included pirated games. music. movies. personal pictures. anime and pornography. [16] The principal claimant testi?ed that after 2009. ?les dealing with national security began to be downloaded to the Shell. At that time. a ?le was downloaded to the Shell which was and not password protected. It was deleted but not before it was seen by the principal ciaimant and others connected to the Shell. He testi?ed that it contained information that demonstrated malfeasance and criminal activity on the part of a government agency. RPD File No. l' the dossier tie la SPR: TB3-02212 The principal claimant testi?ed that he believed that a copy of the ?le had been made by others on the list serve and that it had also been posted to another site. He testi?ed that when he was interrogated by the FBI, reference was made speci?cally to this ?le and he was asked whether he had downloaded it to the Shell or whether the individual Diehl had done so. He further testi?ed that a copy of the ?le was copied to a ?ash drive which was given to the principal claimant and that it is now in the possession of the Canada Border Services Agency. [18] The principal claimant testi?ed that he was cooperating with the FBI to a large extent but tried not to provide any names. He did not provide any information about the individual Diehl nor would he admit to viewing the ?le himself. He feared that the FBI would think that he had provided this information to the Russians. although he did not. [19] The principal claimant testified that he provided the Russian of?cials information regarding his skills, expertise and duties with the government. He also spoke with them about his work with Anonymous. He was asked speci?cally whether he worked against the US. government but he said no. [20] On October 6, 2010, the principal claimant was indicted in the State of Tennessee for production and transportation of child pornography. He was detained in the State ofTennessee until May 22. 201 2. when he was released on bond with conditions. [21] The claimants allege that the child pornography investigation and charges are a cover for the United States government to try to retrieve a document and to investigate the principal claimant for espionage. [22] On April 3. 2014. the principal claimant failed to appear for a status conference and detention review relating to his case. A bench warrant was issued for his arrest. On that same day. the three claimants crossed over into Canada where they all initiated a claim for refugee protection. RFD File No. i de dossier de la SPR: TB3-02198 TEE-02212 TB3-04574 [23] The principal claimant testi?ed that he had no faith in the U.S. justice system. He believed that the government was pursuing the national security issue under the guise of the child pornography charges. Based on the way he was treated while detained by the FBI. the lack of disclosure by the government. the fear of being re-arrested and the threats against him and his family. he believed that he would not receive a fair trial in the United States. The other two claimants stated that they feared for their sons safety ?rst and foremost. They also stated that they had no faith in the US. justice system. EXCLUSION UNDER ARTICLE 1F(b) [24] The Minister is alleging that the principal claimant must be excluded from refugee protection under Article lF(b) of the UN. Convention Relating to the States ofRe?igees (the Convention), which is incorporated into the Immigration and Refugee Protection Act by virtue of section 98 of the Act. [25] The Minister has disclosed documents regarding the charges for the production and transportation of child pornography which formed the foundation for the Minister?s argument that the claimant is a person referred to in Article 1F(b) of the Convention and. therefore. must be excluded.2 [26] Section 98 of the immigration and Refugee Protection Act provides that a person referred to in sections or of Article 1 of the Convention is not a Convention refugee or a person in need of protection. Article 1F which is reproduced in the schedule to the immigration and Re?tgee Protection Act. reads as follows: [27] The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that he has committed a serious non- political crime outside the country of refuge prior to his admission to that country as a refugee. [28] With respect to the burden of proof. it is recognized that the party that raises the issue of the exclusion clause must prove that it is justified. The onus. therefore, is on the Minister to demonstrate that the principal claimant must be excluded. 3 Exhibit 6. RPD File No. i de dossier de la SPR: TBS-02198 TBS-02212 [29] In this case. the question to be decided is whether there are serious reasons for considering that the principal claimant has committed a serious non-political crime prior to entering Canada on May 18, 2013. [30] The standard of proof is "serious reasons for considering" which is less than a balance of probabilities.3 This standard of proof is similar to ?reasonable grounds" or ?serious possibility.? The standard of proof applies to questions of fact. The evidentiary burden on the Minister under Article lFtb) is less than a balance of probabilities but more than mere suspicion. [31} In Lai v. CanmalafI the Court of Appeal stated at paragraphs 23 and 25: In the recent decision of this Court in Xie v. Canada (Minister and Immigration (2004). 243 D.L.R. (4th) 385. 2004 FCA 250 at paragraph 23. leak-?e to appeal to S.C.C. refused [2004] S.C.C.A. No. 418. S.C.C. Bulletin. 2005. 444. it was established that an 'exclusion' hearing under Article 1F(b) is not in the nature of a criminal trial where guilt or innocence must be proven by the Minister beyond a reasonable doubt. Rather. the onus upon the Minister to establish. based on the evidence presented to the Board. that there are "serious reasons for considering? that [the Applicant] committed serious non-political crimes. [32] In the case of Ann/tar? Justice Scott held, at paragraph 15. that under this standard there must be ?an objective basis for the ?nding that is based on compelling and credible information." RELVANT LEGISLATION AND ELEMENTS OF THE CRIME [331 Minister's counsel states that the principal claimant was charged and indicted on October 6, 2010 under the United States Federai Code. sections 2251(a). 2251(d), 2252A(a)(l) and 2252A(b)(l All the charges relate to inducing minors to engage in conduct for the purpose of producing child pornography. The relevant sections are as follows: 3 Sivakamar v. Canada (Minister afEmpir/rymen! and immigration). [1994] F.C. 433 4 Lai v. Canada ('rliinisrer of Citizenship and immigration). 2005 F.C.A. 125 at para 25. 5 Anmar v. Canada (Minister and immigration}. 2011 F.C. [094 at para 15. RPD File No. l" de dossier dc la SPR: TBS-02198 TBSFUZZIZ TBS-04574 Section 2251(a) Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in. or who has a minor assist any other person to engage in, or who transports any minor in or affecting interstate or foreign commerce. or in any Territory or Possession of the United States. with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct. shall be punished as provided under subsection if such person knows or has reason to know that such visual depiction will be transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed. if that visoal depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer. or if such visual depiction has actually been transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed. Section 2251(d) (1) Any person who, in a circumstance described in paragraph (2). knowingly makes, prints. or publishes. or causes to be made, printed, or published. any notice or advertisement seeking or offering-? to receive, exchange. buy. produce, display. distribute. or reproduce, any visual depiction, if the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct: or participation in any act of sexually explicit conduct by or with any minor for the purpose of producing a visual depiction of such conduct. Section 2252A(a)(l)(a) Any person who (1) knowingly mails. or transports or ships using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means, including by computer. any child pornography: Section 2252A(b) (1) Whoever violates, or attempts or conspires to violate. paragraph (1), (2). (3), (4), or (6) of subsection shall be fined under this title and imprisoned not less than 5 years and not more than 20 years, but, if such person has a prior conviction under this chapter, section chapter 7i section 1591. chapter 71. chapter 109A. or chapter 1 17, or under section 9% of title (article 120 of the Uniform Code ofrlr?r'ftary Justice). or under the laws of any State relating to aggravated sexual abuse, sexual abuse. or abusive sexual conduct involving a minor or ward. or the production, possession, receipt, mailing, sale. distribution. shipment, or transportation of child pornography. or sex trafficking of children, such person shall be fined under this title and imprisoned for not less than 15 years nor more than 40 years. [34] The Minister's counsel submits that these charges are equivalent to sections 163.1(3) and 172.1 (1) of the ("anode Criminal Code. which carry a 10 year maximum sentence. These sections are as follows: RPD File No. I N0 de dossier de la SPR: TEES-02198 TBS-02212 TBS-04574 163.1(2) Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of an indictable offence and iiable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year; or an offence punishable on summary conviction and is liable to imprisonment for a term not exceeding two years less a day and to a minimum punishment of imprisonment for a term of six months. 163.] (3) Every person who transmits. makes available. distributes, sells, advertises, imports, exports or possesses for the purpose of transmission, making available. distribution, sale, advertising or exportation any child pornography is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year; or (in) an offence punishable on summary conviction and is liable to imprisonment for a term not exceeding two years less a day and to a minimum punishment of imprisonment for a term of six months. 172.1 (1) Every person commits an offence who. by means of a computer system within the meaning of subsection communicates with a person who is. or who the accused believes is. under the age of eighteen years. for the purpose of facilitating the commission of an offence under subsection 153(1), section 155 or 163.1, subsection 212(1) or (4) or section 271. 272 or 273 with respect to that person; a person who is, or who the accused believes is. under the age of sixteen years, for the purpose of facilitating the commission of an offence under section 280 with respect to that person; or a person who is, or who the accused believes is. under the age of feurteen years. for the purpose of facilitating the commission ofan offence under section 151 or 152, subsection 160(3) or 173(2) or section 281 with respect to that person. (2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for a term of not more than ten years; or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months. RPD File No. I N0 de dossier de la SPR: TBS-02198 TBS-02212 TBS-04574 MODE OF PROSECUTION [35] The principal claimant continued that he is currently facing criminal charges in the Middle District of the State of Tennessee in the United States. He confirmed that they are Federal charges and consist of two court indictments; namely the production of child pornography and the transportation of child pornography. [36] The principal claimant con?rmed that he was indicted by a Grand Jury and was detained in the United States on these charges from August 2010 until May 2012. The principal claimant testi?ed that he was not present for the Grand Jury and was only advised that there had been one after he saw the indictment in October 2010. The principal claimant was released in May 2012 on a bond. The matter is to be ultimately heard by judge and jury in the State of Tennessee. [37] he principal claimant con?rmed that he is presently wanted on a bench warrant for violating that bond when he failed to appear for a court date set for April 2013 and that the criminal charges are still outstanding at the present moment. [38] The principal claimant was aware that several in camera motions had been filed by the lawyers representing him with respect to the criminal matters but he was unaware of the contents of the motions. He testi?ed that all motions made by the lawyers in the United States had been suspended and no rulings had been made on them to date. [39] The principal claimant testified that the US. of?cials are not seeking extradition for him nor has he been served with any documentation. FACTS REGARDING THE CHARGES FOR CHILD PORNOGRAPHY [40] The basis of investigation arose out of a toilet papering incident which occurred on December 2008 in Franklin. Tennessee. The principal claimant was residing at that time in Newburgh, Indiana. He had been visiting his friend in Tennessee at that time. [41] The principal claimant had come into contact with the two complainants (Complainants #1 and through his participation in the World of Warcrat't Guild. He testified that he had begun contact with them in 2007. RPD File No. i? de dossier de la SPR: [42] The principal claimant con?rmed that he met with Complainant #1 and as ajoke. he and Complainant #1 toilet papered the house of Complainant As a result of his involvement in the toilet papering incident, the principal claimant was contacted by the mother of Complainant #1 in January 2009. [43] During the conversation, nothing was mentioned regarding pornography. It was the last time that the principal claimant spoke with anyone from that family. The principal claimant discovered at the bond review in May 2012 that the call in January 2009 had been a controlled call that was being monitored by the then Detective Kniss. [44] The principal claimant testified that the toilet papering incident in December 2008 is when Detective Kniss became involved in the case and the subsequent child pornography indictment was filed on October 6. 2010. [45] The principal claimant testi?ed that the basis of the indictment was the allegation that he impersonated a teenage female to ask Complainant #1 to take nude pictures of himself. which he then induced Complainant #1 to send to him. The principal claimant was charged with respect to allegations relating to Complainant #1 and not Complainant [46] The claimant testi?ed that the indictment did not state what was actually transported or how. The principal claimant stated that he did not have the phone contact information for either complainant. [47] The principal claimant stated that the phone of Complainant #1 was not retained by the authorities and was in fact returned to the complainant. Complainant #l's computers were never analyzed and the principal claimant?s computers were never returned to him nor do they appear to have been analyzed. He testi?ed that the government was asked to provide all of this information and this was not done up until the time that the claimants left the United States. [48] Furthermore, the principal claimant testified that neither Detective Kniss nor the mother of Complainant #1 remembered seeing any pictures on the phone. The only child pornography that the police ultimately found was on Complainant #l ?5 computer which showed the complainant masturbating. RPD File No. i de dossier de la SPR: TBS-02198 TB3-02212 [49] The principal claimant testi?ed that he was ?nally able to review the af?davit of Detective Kniss. sworn on August 6, 2010 in December 2010. He stated that he was not able to examine the complainants' phones to disprove the allegation that he had asked them to send pictures of their privates to him nor was he provided with any of the investigatory interviews of the complainants. The principal claimant testi?ed that the authorities were relying on a chat log to support their allegations. Evidence Regarding Chat Log [50] A key issue in this claim is whether the principal claimant is to be excluded from refugee protection pursuant to Article 1F(b). In Minister?s counsel?s Notice to Intervene on this issue, he attaches the Af?davit of Detective Kniss. [51] In his written submissions. Minister?s counsel states that the af?davit of Detective Kniss is a key to the issue of exclusion. The af?davit incorporates a portion of a chat log where an individual is seen to entice another individual to send pictures of their genitalsf? [52] in his oral testimony during the refugee hearing. the principal claimant testi?ed that the chat log produced by Detective Kniss in his af?davit was not the original leg but one that had been reproduced as part of the af?davit with the principal claimant?s surname added in. Furthermore, the principal claimant testi?ed that the chat log was in relation to a chat involving an alleged victim and someone else. The principal claimant testi?ed that he had never been involved in sexually explicit chat logs with minors. He added that he would only text message people that he knew and would not do instant messaging. [53] There was a request by the claimants for the computer analysis. raw data and computer drives of Complainant #1 without success. The Detective indicated that he had tried to contact the Internet service provider America Online (AOL) to obtain the chat log from them without success. The principal claimant testi?ed that through the assistance of a private investigator. the real chat log was obtained from A01. in December 2012, prior to the claimants coming to Canada to claim refugee protection. The principal claimant believes that the real chat logs were 6* Exhibit-6. pp. 5 :0 ll. RPD File No. i? de dossier de la SPR: TBS-OZIQB TIE-02212 TBS-04574 forwarded to his American counsel in May 2014. The AOL chat log indicates that the Internet provider address is in New Jersey. a place that the principal claimant has never resided. [54] In his evidence at his admissibility hearing held on June 11. 2014,? the principal claimant con?rmed that the chat log he has since obtained from AOL contained the AOL authentication and time of the conversation. The other chat log produced by Detective Kniss is alleged not to have the AOL authentication and does not indicate the actual time of the conversation. {55] The principal claimant was questioned about both chat logs during the course of the refugee hearing and both counsel and Ministers coonsel had an opportunity to question and provide submissions in this regard. [56] Minister?s Counsel also provided transcripts of the principal claimant?s admissibility hearing held on June 11. 2014.3 I In that testimony, the principal claimant con?rmed that the chat log he has since obtained from AOL contained the AOL authentication and time of the conversation. The other chat log produced by Detective Kniss is alleged not to have the AOL authentication and does not indicate the actual time of the conversation. [58] It was clear to the panel that there are two chat logs purporting to describe the same conversation. In the preparation of this decision, the panel reviewed the exhibits provided and realised that it did not have a copy of the AOL chat log which it believed it had. [59] On Monday November 17, a. request was made for counsel for the principal claimant to provide all parties a copy of the AOL chat log. On Tuesday November 18. 2014. a fax was sent to both parties that counsel for the claimants provide a copy of the AOL chat log. The panel also provided both counsel for the claimant and Minister?s counsel an opportunity to provide submissions in this regard with a speci?ed time frame. [60] Subsequent to the sending of this request, the panel received a response from Minister's counsel in which he states that the document was not provided in compliance with the Refugee Exhibit 13. pp. 93 to ion. 3 Exhibit 13 pp.98to 100. 1 RPD File No. i N0 de dossier de la SPR: TBS-02198 TBS-02212 TBS-04574 Protection Division Rules, namely Rule 43. Minister?s counsel objects to the document. as he was not given an opportunity to comment or submit on this evidence or request or to cross examine regarding this evidence. [61] However, the panel notes that the AOL chat log was referred to in the disclosure provided by both counsel for the claimant and Minister?s counsel. [62] In counsel's disclosure (Exhibit 10. at page 172, in Exhibit 12 and in Exhibit 16) there is reference to the two chat logs. [63] In the Minister counsel?s disclosure, Exhibit 6 references the detectives? chat log, while in Exhibit 13 and Exhibit 14, there are references to both of the chat logs, in particular Exhibit 14 at pages 99 and 100. [64} The panel further notes that the principal claimant was questioned about the AOL chat log during the course of the hearing. Both counsel for the claimant and Minister's counsel had an opportunity to question on this issue at that time. [65] Furthermore, both counsel for the claimant and Minister?s counsel were provided an opportunity to provide written submissions on all aspects of the claim. in particular on the issue of exclusion under Article 1F(b). [66] The panel therefore requested that counsel provide the chat log that was obtained from AOL. Both counsel for the claimant and Minister?s counsel provided submissions and post- hearing documentation. RPD File No. i? de dossier de la SPR: TBS-02198 TEE-02212 [67] Minister?s counsel provided information which he stated undermined the credibility of the existence of the AOL chat log.9 The evidence suggested that AOL would not keep the logs of the content of communications between users. Counsel for the claimant in his reply provided countering information to this assertion. 10 Subsequently both Minister?s counsel and counsel for the claimant made further comments.H [68] These submissions were considered along with the post?hearing documents attached. As shall be discussed further. one of the main matters in this claim revolves around the issue of chat logs. Therefore. all evidence dealing with this issue is seen by the panel to be both relevant and probative. The panel accepted the post-hearing documentation and they were entered as exhibits and considered in this determination.12 Submissions of Minister's Counsel [69] Minister's counsel notes that the principal claimant does not deny these charges or the fact that they are outstanding and that the principal claimant fled the jurisdiction Canada while he was released on bail pending trial. [70] Minister's counsel states that the best evidence with respect to the issue of exclusion are the sworn affidavit and criminal complaint of Detective Kniss and the Grand Jury indictment dated October 6. 2010. In the affidavit and criminal complaint, it identi?es the principal claimant, posing as a female of the same age. as being engaged with two minors in an lnten?iet chat convincing them to send sexually explicit photos. 9 Exhibit 18. 1? Exhibit 19. Exhibits 20 and 21. 12 Exhibit 17.AOL chat log: Exhibit 18. Minister?s disclosure. dated November 25. 2014; and Exhibit 19. Counselis disclosure. dated December 5. 2014. RFD File No. i the dossier de la SPR: TBS-02198 TBS-02212 TB3-04574 [72] The Minister?s counsel submits that all the panel has from the claimants is self?serving. The main attack that they have put forth against the af?davit of Detective Kniss is that he was a scapegoat. has now retired to Wyoming and unavailable to testify at the trial. The Minister?s counsel states that there is no actual evidence that he was a scapegoat or that he is unable to testify. The only fact is that he is no longer working for the same agency when he ?led the complaint and affidavit. Minister's counsel also submits that there is little or no evidence which impeaches the fairness of the US. justice system. What has been submitted by the claimants relates only to foreign/terrorist suspects and minorities. Those documents filed which deal with the situation of computer hackers are only opinion pieces. [74] Minister's counsel submits that the main allegation made by the claimants that the prosecution in the US. has not been forthcoming in the discovery for trial is not supported by the evidence. The claimants allege that certain evidence had not been provided to the criminal defense lawyers which greatly impeded the ability to properly defend against the allegations made against them. [75] However, the claimants testified that their lawyer verbally withdrew their motion to compel additional evidence from the prosecutor indicating that they had everything they needed. The Minister?s counsel states that this undermines the credibility of the claimants in this regard. [76] Minister?s counsel stated that the claimants testi?ed that their previous counsel were not adequately representing their interests. but have not ?led any complaints of their former counsel to any professional organization, which also undermines their credibility. Minister's counsel further submits that there is a presumption of a fair trial and due process in the United States. The principal claimant testified that he felt that he would have been treated fairly by the judiciary regarding the charges he faced. He testi?ed that the judge assigned to the case was fair minded and when a complaint was made to the judge regarding the behavior of the prosecutor during the proceedings, the judge ordered an investigation. RPD File No. I N0 de dossier de la SPR: TBS-02198 TBS-02212 [78] Minister?s counsel submitted that the analysis is whether there are serious reasons for considering that the principal claimant committed these crimes. The panel has before it the criminal complaint and the attached affidavit of Detective Kniss in which he summarizes interviews with the complainants. as well as the fact that the principal claimant was picked out of a photo lineup by one of the complainants. The summaries as set out in the affidavit is that on separate occasions the principal claimant asked each boy to send pictures of his penis to an email account that belonged to some teenage girl in Indiana. This summary arises out of the chat log which formed part of the af?davit and which is discussed in further detail below. {79] The evidence from the examination of the complainants? computers and the principal claimant?s computer. namely the chat log showed that he posed as a minor female. requested photo of the complainant?s genitalia. The Minister?s counsel further submitted that there were references to the complainants within the digital media of the principal claimant?s computer. [80] Based on the evidence provided Minister's counsel submits that the principal claimant should be excluded under Article 1F(b) and section 98 of the Immigration and Re?rgee Protection Act. POST-HEARING APPLICATION BY MINISTER Decision by Immigration Division [81] On October 10, 2014. Minister?s counsel made an application for post?hearing evidence to be entered and considered by the panel. Minister's counsel requested that the panel consider the decision of the Immigration Division regarding the admissibility of the principal claimant. The decision was rendered on October 8. 2014. Minister?s counsel indicated that the principal claimant was found to be inadmissible in that decision. [82] The Minister?s counsel argued that the document was relevant and probative and spoke to an assessment of the principal claimant?s foreign criminal charges by another division of the IRB. The Minister's counsel further submitted that the analysis of the similar evidence by the Immigration Division should be considered in the interests of consistency between different divisions of the same Board. RFD File No. de dossier de la SPR: TBS-02198 TBS-02212 T33-04574 [83] Counsel for the claimants was given an opportunity to respond to the Minister?s post? hearing application. which he did by written submissions on October 21. 2014. In that response. he requested that the Application made by Minister?s counsel be denied. [84} Counsel for the claimants stated that the panel had before it all of the necessary evidence and information to enable it to make a fully informed decision on the respective claims for refugee protection. [85] In arriving at a decision with respect to exclusion, counsel for the claimants submitted that the panel had different evidence before it than that presented at the Immigration Division (ID) in terms of the AOL chat log and as such. there appeared to be limited or no utility in admitting the Immigration Division's admissibility decision into evidence. The panel considered all relevant factors, including those listed in Rule 43(3). The ID decision has limited relevance and probative value to the panel and the RPD is not bound by the ?ndings. Further, the ID is assessing inadmissibility for serious criminality. a different legal test than assessing exclusion under Article The panel accepts that the Minister could not have provided the document earlier; however. despite this. based on the analysis of the previous two factors. the tribunal declines to accept it into evidence. Submissions of Counsel [86] In his submissions. claimants? counsel acknowledged that a criminal warrant was usually seen as sufficient to satisfy the test that there are serious reasons for considering that a serious non-political crime had been committed under article 1F However. counsel submits that the situation is different ifa claimant asserts that the warrant/complaint or indictment is illegitimate. In these situations. the panel must engage in a full credibility analysis of the claimant?s allegations. [88] Counsel cites case law. which states that in such situations. a deeper analysis will be required with an in depth look at actual events that transpired and not just the result of the criminal proceedings. RFD File No. I de dossier de la SPR: TBS-02198 TBS-02212 TBS-04574 [89] Counsel submits that the principal claimant is being pursued by the .8. government for political purposes in order to extract evidence from him and to quell his activities. Counsel further submits that the present case is not one of child pornography but an attempt to crush dissent by a continuing threat of prosecution and incarceration. [90] Counsel submits that they have provided evidence in the form of country documentation that the U.S. government is targeting hackers, hactivists and members of the gr0up Anonymous. [91] Counsel submits that if this was a simple case of child pornography, why were the first notations in the documents regarding his detention by the US. authorities in August 2010 made with respect to espionage?? Counsel further submits that the principal claimant was medicated against his will and was tortured. [92] He further queries why the principal claimant was questioned regarding his visit to the Russian embassy. why his father was also served with a subpoena regarding these visits and why the principal claimant was also questioned about classi?ed ?les and not regarding child pornography. [93] Counsel further submits that the principal claimant was handed the criminal complaint regarding the child pornography as a threat that he would face these false charges unless he provides regarding national security. [94] Counsel submits that the chat log provided by the Minister?s counsel has been edited and the principal claimant?s name had been inserted and that there is no hard evidence linking the principal claimant to the individual who sought the nude photos. [95} Furthermore. Counsel submits that the judge during the bail hearing in May 201?. had the opportunity to review sealed government documentation in camera and found his allegations of being drugged and tortured by government agents to be credible. [96] Counsel submits that the principal claimant has put forth credible. trustworthy and persuasive evidence to show that the complaint and indictment are devoid of substance. RFD File No. I the dossier de la SPR: TEE-02198 TIE-02212 TBB-045T4 The Panel?s Findings Regarding Exclusion [97] The panel acknowledges that this particular claim is by no means a simple one. There are allegations ofchild pornography. espionage. over-reaction by government agents, improper procedures followed by the government, obstruction and withholding of evidence and the use of torture by government officials. [98] The claimants have all testified that the child pornography charges are false and are being used by the U.S. government as punishment and to pressure the principal claimant into providing information to them regarding his activities with Anonymous especially with respect to highly sensitive government infomration which had come to his attention. [99] In the case of the Federal Court of Appeal held that the interpretation of the exclusion clause in Article 1F of the Convention, as regards the seriousness of a crime, requires an evaluation of the elements of the crime, the mode of prosecution, the penalty prescribed. the facts and the mitigating and aggravating circumstances underlying the conviction. The presumption of seriousness may be rebutted by reference to the above factors. The factors only become relevant, however, if the Minister submits relevant and trustworthy evidence that a serious non-political crime had been committed outside of Canada [100] While there has been no conviction in this case. it is well established that there need not even be a charge or conviction for ?nding that there are serious reasons for considering that a serious non-political crime was committed outside of Canada. in the case of '4 the Federal Court found the RPD could reasonably rely on the warrant for the arrest and indictment of the Applicant issued in the .S., which has a properly functioning judicial system, and other evidence from the authorities identifying in detail the charges against him in deciding that there were serious grounds for considering that he had committed the crime of burglary of habitation. Because the U.S. has strong rule of law institutions, the Court found that police reports and court documents concerning the Applicant carried substantial weight. ?3 v. Canada 2008 RCA. 404. Gambon rid-?icoltn v. Canada 2013 F.C. 3E7. RFD File No. de dossier de la SPR: TIE-02198 TBSFOHIZ TB3-04574 [101] Where evidence ofa warrant is the sole evidence relied upon by the RFD. however, there is authority to suggest that the panel must ?go further? and determine whether the person is credible if, for example. they allege that the charges referred to in the warrant are fabricated. This is precisely what the principal claimant in the present case is claiming. [102] Given the nature of this particular claim. as well as the allegations of false charges and improper actions by the government, the panel ?nds that a full and complete assessment of all the facts in this claim is required. This is especially so given the allegations by the principal claimant that the charges of child pornography are directly linked to and ?ow from the national security issues arising out of the principal claimant's connection to the computer hacker group Anonymous. The Minister's counsel states that the best evidence with respect to the issue of exclusion are the sworn af?davit and criminal complaint of Detective Kniss and the grand jury indictment dated October 6. 2010. The panel notes that the evidence given by the principal claimant with regards to the Grand Jury was that he had never been called to give testimony and that the only evidence used by the Grand Jury to go ahead with the indictment of chiid pornography was the af?davit of Detective Kniss. [103] In the af?davit of Detective Brett Kniss, he states that the parents of Complainant #1 had recently discovered sexually explicit photographs in cell phone. It was later learned that pictures were sent to the principal claimant. Detective Kniss also stated that the principal claimant has sent several pornographic images to each of the complainants on separate occasions. The principal claimant drove to meet the complainants on several occasions to bring them gifts. Complainant #1 said that the principal claimant had provided him with beer and Adderal and brought him to a shooting range. [104] In the affidavit and criminal complaint. it identifies the principal claimant. posing as a female of the same age. as being engaged with two minors in an Internet chat convincing them to send sexually explicit photos. The panel has before it the criminai complaint and the affidavit of Detective Kniss. RPD File No. I de dossier de la SPR: T33-02198 TBS-02212 [105] The evidence from the examination of the complainants? computers and the principal claimant?s computer. namely the chat log showed that he posed as a minor female. requested photo of the complainant?s genitalia. The Minister?s counsel further submitted that there were references to the complainants within the digital media of the principal claimant's computer. Counsel submits that the chat log provided by the Minister?s counsel has been edited and the principal claimant?s name had been inserted and that there is no hard evidence linking the principal claimant to the individual who sought the nude photos. [106] Furthermore, counsel for the claimant submits that the judge during the bail hearing in May 2012 had the opportunity to review sealed government documentation in camera and found his allegations of being drugged and tortured by government agent to be credible. [107] The panel had an opportunity to review the transcript of the bail hearing, which was held in Tennessee on May 2012. During that bail hearing. Detective Kniss appeared as a witness. as well as the mother of Complainant [108] In his evidence. Detective Kniss provided the following information: There were no pornographic images retained as evidence for the charges of child pornography; the phones from which the alleged sexually explicit photos were taken and sent to the principal claimant had been given back to the complainants and any evidence was wiped clean. [109] There was no evidence that any pornographic images were found on the principal claimant's computers to support a charge that he received any child pornography from any source. Similarly. there was no evidence confirming that any photos of a pornographic nature were sent from either complainant to the principal claimant's computers. [110] The only evidence proffered was a chat log reportedly between the principal claimant and one of the complainants wherein the principal claimant allegedly posed as a female teen requesting that Complainant #1 forward sexually explicit videos to her. [111] Detective Kniss acknowledged that the chat log provided was not an original but one typed up at a later date. He testified that attempts to obtain the original chat log from the service provider AOL were unsuccessful up until that time. RPD File No. 1' Pl" tie dossier de la SPR: TBS-02198 TBS-02212 TBS-04574 [l 12] The claimants, through their US. counsel, also requested the original chat log from AOL. In their attempt they state that they were successful. The claimants obtained the chat log only after their arrival in to Canada. The principal claimant testi?ed that his present counsel in the United States also has the original chat log. [113] The principal claimant indicated the following discrepancies between the two versions of the chat logs. The ?rst is that in the AOL original version, the identity of the female chatter is not identified, whereas in Detective Kniss? version. the name of the principal claimant has been added. [114] From the AOL version of the chat log, an Internet service provider address is visible, which according to the claimants, is a New Jersey address, a location in which the claimants have never resided. [115] The panel finds that there are signi?cant differences between the two chat logs which ostensibly describe the same conversation. In the bail hearing, held on May 22. 2012. Judge Trauger indicated she has an opportunity to view the government ?les on the principal claimant. In her decision to grant bail, she con?rmed that an investigation had been done regarding the principal claimant's activities with Anonymous. In the judge's reasons. she states that the principal claimant believed that the child pornography charges were a ruse to obtain extra- curricular national security issues. The judge clearly stated that she found his evidence was suf?ciently credible to suggest that there was in fact a ruse on the part of the government. [1 16] With respect to the charges of child pornography, the judge stated that while the government has substantial proof in terms of the weight of evidence against the defendant with regards to the charges against him. it was now not as ?rm, especially in light of the fact that Detective Kniss could not really prove that there weren?t other little girls who might have been enticing these complainants to send pictures.1 5 This suggests to the panel that the judge was of the opinion that the entire case was not as ?rm as previously believed. The panel notes that this statement was previous to the claimants obtaining the original AOL chat log. '5 Exhibit 7. page 94. RPD File No. i N0 the dossier de la SPR: TBS-02212 [117] Minister?s counsel states that the best evidence with respect to the issue of exclusion are the sworn affidavit and criminal complaint of Detective Kniss and the Grand Jury indictment dated October 6. 2010. Counsel for the claimants? states that the AOL chat log presented clearly indicates that the principal claimant was not the person who contacted the complainants. Minister?s counsel provided further post-hearing information that suggested that AOL did not retain individual chats logs, while counsel for the claimants provided evidence which suggested that AOL does in fact retain chat logs.16 Given that the Grand Jury indictment relied solely on the affidavit of Detective Kniss and without the evidence of the con?icting AOL chat logs. the panel places little weight on its conclusions. [118] The panel is not making a finding of guilt or innocence on the part of the principal claimant. It ?nds however. that with such conflicting information regarding the chat log. its authenticity and the information contained within. it does not have credible and trustworthy evidence before it. [119] The affidavit of Detective Kniss purports to contain segments of the chat log between the principal claimant and the complainant. This is the key evidence from which the Grand Jury issued the indictment. However. the information of what purports to be the chat log has been typed into the body of the af?davit itself by Detective Kniss. No explanation has been provided as to why the original chat log as not attached as an exhibit. Furthermore. the name of the principal claimant has been added in and as such opens the possibility the chat log may have been altered in content and is thus not reliable. [120] The principal claimant has provided a completely different version ot'the same chat log. 0n the face of it, this chat log is a separate document and has not been incorporated into another document. It appears to be original and the conversation is complete with IP addresses. [121] Given these factors. the panel ?nds that the principal claimant?s evidence is probative enough to cast sufficient doubt on the credibility or probative value of the Minister?s evidence. As such, it cannot be said that there is credible and trustworthy evidence before it to determine that there are serious grounds to believe that the principal claimant should be excluded under ?6 Exhibits 19 to 21. RFD File No. i de dossier de la SPR: TBS-02198 TBS-02M: TIE-04574 Article 1F for the crime of inducing minors to engage in conduct for producing and transporting child pornography. The panel finds that the Minister has not met its burden and ?nds that the principal claimant is not excluded under Article lFtb). The panel will therefore go on to consider inclusion. The Panel?s Findings Regarding Inclusion [122] The principal claimant is alleging that he is being persecuted by the government of the United States. or agents of that government. for his perceived political beliefs as a hacker and whistle blower involved in leaking sensitive government information. He alleges that he has been falsely accused of crimes in order to keep him incarcerated and he alleges that he had been drugged and subjected to interrogations without his constitutional rights. The principal claimant submits that the claim should be assessed under section 96. [123] Regardless of whether a nexus to section 96 exists in the present case or not. the determinative issue is whether. in a country like the United States. the principal claimant can rely upon adequate state protection notwithstanding that he claims that the state itself is involved in the alleged persecution. As stated in the case of (fanatic: Hand.? the claim has to he considered against the unequivocal and unchallenged documentary evidence that the United States is a democratic country with a system of checks and balances among its three branches of government, including an independent judiciary and constitutional guarantees of due process. STATE PROTECTION [124] The state's ability to protect the claimant is a crucial element in detennining whether the fear of persecution is well founded. The issue of state protection goes to the objective portion of the test of fear of persecution and it is not enough to simply assert a subjective belief that protection is not available. [125] State protection must be considered in context. The contextual approach was explained by . i? the Court in Gonzalez Torres 3 as follows: Canada v. Hunt! 2009 F.C. 121. ?t (inmate: Torres, Ltiis Felipe v. liter. (ac. no. Zinn, March 1.201012010 FC 234. RFD File No. de dossier de la SPR: TBS-02198 TBS-02212 TBS-04574 [126] State protection cannot be determined in a vacuum. When undertaking a contextual approach in determining whether the refugee claimant has rebutted the presumption of state protection, many factors ought to be considered, including the following: the nature of the human rights violation; the pro?le of the alleged human rights abuser; the efforts that the victim took to seek protection from authorities; the response of the authorities to requests for their assistance. and the available documentary evidence. The presumption at play in refugee determination, except in situations where the state is in a state of complete breakdown, is that states must be presumed capable of protecting their citizens. This presumption can be rebutted by ?clear and convincing" evidence of the state's inability to protect. [128] In the Federal Court of Appeal held that the presumption of state protection described in Word applies equally to cases where the state is alleged to be the agent of persecution. However, where agents of the state are themselves the source of persecution, the presumption of state protection can be rebutted without exhausting all avenues of recourse in the country. The claimant's obligation of presenting "clear and convincing" proof of the state?s inability to protect should not be an impossible burden. [129] The Trial Division in Perches? stated that a claimant is not required to show that he or she has exhausted all avenues of protection. Rather. the claimant has to show that he or she has taken all steps reasonable in the circumstances. taking into accoont the context of the country of origin in general, the steps taken and the claimant's interactions with the authorities. [130] The onus of showing the absence of state protection is on the claimant. not the Board. This however. does not relieve the RPD of its obligation to provide clear and adequate reasons indicating why the onus was not met. [131] A claimant is required to approach his or her state for protection in situations in which protection might reasonably be forthcoming. in other words. the claimant must show that it was reasonable for him or her not to seek state protection. 19 Himman v. Canada 2010 F.C.A. 177. 3? Pernim v. MCI. 2002 F.C.T. 939. RPD File No. I N0 de dossier de la SPR: TBS-02198 TBS-02212 TBS-04574 [132] However. a claimant is not required to risk his or her life seeking ineffective protection of a state. merely to demonstrate that ineffectiveness. Absent an admission by the state that it is unable to protect (as was the case in Word), a claimant can establish. with "clear and convincing evidence."2l that state protection would not be reasonably forthcoming (thus rebutting the presumption) where: is a complete breakdown of state apparatus. such as that recognized in Lebanon in Z'rul'n'id'i;22 there is evidence situated individuals {were] let down by the state protection arrangements. . .there is evidence .of past personal incidents in which state protection did not materialize. [133] The Federal Court of Appeal decision in Satiricnt states that in the absence of exceptional circumstances established by the claimant. Canadian tribunals have to assume a fair and independent judicial process in the foreign country. In the case ofa non-democratic State. contrary evidence might be readily forthcoming, but in relation to a democracy like the United States contrary evidence might have to go to the extent of substantially impeaching. for example. the jury selection process in the relevant part of the country, or the independence or fair- mindedness of the judiciary itself. In Kna?erihzi.24 the Court of Appeal noted that the burden of proof to establish absence of state protection is ?directly proportional to the level of democracy in the state in question [134] In H."itermini.25 the Federal Court of Appeal noted that a claimant coming from a democratic country (like the US.) will have a heavy burden when attempting to show that he or she should not have been required to exhaust all of the recourses available domestically before claiming protection elsewhere. [135] In M. 1. v. Harvey. Denise H.536 the Court discussed the heavy burden on the respondent. and the exceptional nature of a claim for protection succeeding against a highly-developed first- world democratic nation such as the U.S. and the evidence of state protection there. 3? Word 1-: Canada 993] 2 sea. 569. 33 v. Canada 991] 3 ac. 605 (CA). 3? MCI. v. Sarina-am 99 HR in (F.C.A.). 34 M. or. v. Kadenko i43 DLR {41"}533 (son). 35 lbid. 3" V. Harvey, Denise H. 2013 F.C. 717. RPD File No.1? dc dossier dc la SPR: TIE-02198 1133-02212 TBS-D4574 [136] At paragraph 63 of the decision its Minister notes that the Federal Court of Appeal has held that the United States is ?a democratic country with a system of checks and balances among its three branches of government. including an independent judiciary and constitutional guarantees of due process." Refugee claimants ?bear a heavy burden in attempting to rebut the presumption that the United States is capable of protecting them." Claimants are therefore ?required to prove that they exhausted all the domestic avenues available to them without success.? However. as noted in Kntit-earn.27 democracy alone does not guarantee effective state protection. The Board is required to do more than determine whether a country has a democratic political system and must assess the quality of the institutions that provide state protection. In the case of the Court noted that the analysis must begin with an assessment of the personal circumstances of the claimant and the degree of the individual risk faced. Outstanding Legal Matters in the US. [137] The principal claimant testi?ed that the only legal proceedings going on in the United States are with respect to the child pornography charges brought in October 2010. There are at present no other charges with respect to any other matter. in particular matters of national security. In his oral testimony at the hearing the Principal claimant's Counsel Mr. Tor Ekeland also con?rmed that there was no indictment or prosecution with regards to the national security issues at the present time in the nitcd States. 37 Koran'm'u v. M. (.11.. 2007 351. 3" Looird v. area. 2007 ac. 351. RFD File No. 1' the dossier de la SPR: ?33-02198 TEE-02212 TEE-04574 [138] This is further con?rmed in the transcript of the bail bond hearing before Judge Trauger. held on May 22. 2012.29 It con?rmed that there was no indictment or prosecution with regards to national security issues within the past 21 months. This was again con?rmed where it stated that there has not been any kind of prosecution with regards to national security issues and no prosecution in any other jurisdiction.3n History of Legal Counsel [1 39] The principal claimant outlined the history of legal counsel providing hint with representation in regards to the child pornography charges. Initially the principal claimant was represented by Mr. Ron Small, 3 public defender. The principal claimant was not satis?ed with the quality of the representation and so in January 201 1 new counsel was obtained: Ms. Kimberly Hotte. Due to personal matters, she was unable to represent the principal claimant effectively and at the end of 201 1. new counsel was obtained; Mr. Scruggs. He represented the principal claimant until November 2012, when he withdrew as counsel. The principal claimant is presently represented by the law ?rm of Terry and Gore with respect to the child pornography charges. [140] The principal claimant is further represented by the law ?rm of Tor Ekeland. a New York based law firm which specializes in federal litigation and computer crimes. [141} The panel finds that the principal claimant has had the ability to access and retain counsel for the purposes of defending himself against the charges laid. Legal [142] The principal claimant outlined in his testimony the legal motions and applications which he and his counsel have ?led with the court in Tennessee with respect to the charges of child pornography. They include the following: A motion to compel the production of evidence; a motion for supplemental discovery; a motion to suppress evidence: and a motion to dismiss the indictment. 3" Exhibit page 40. 3? lbid.. page as. RPD File No. I N0 de dossier de la SPR: TBS-02198 TBS-02212 TBS-04574 [143] The principal claimant testi?ed that due to the fact that he had left the jurisdiction of the United States, the motions have been put on hold until such time that he returned there. [144] The principal claimant testified that he presently has lawyers assisting him in Tennessee with respect to the charges of child pornography. He further testified that he now also had the services of Attorney Mr. Tor Ekeland with respect to the potential national security issues. [145] The principal claimant testified that he felt that he would have been treated fairly by the judiciary regarding the charges he faced. He testified that the judge assigned to the case was fair minded and when a complaint was made to the judge regarding the behavior of the prosecutor during the proceedings. the judge ordered an investigation. Testimony from Mr. Tor Ekeland [146] The principal claimant's counsel Mr. Tor Ekeland testi?ed that he found this to be a highly unusual case and that it was very strange that the principal claimant was detained at the border. It was only after detention that an arrest warrant was issued on a matter that was two years old and a year after a search was done on his house. In counsel?s opinion, he should have been arrested when the search warrant was executed. [147] He found it unusual in that the principal claimant was given Thorazine. He found it unusual that the FBI flew up special agents to interrogate the principal claimant unrelated to the charges. 48] He feund it unusual that the principal claimant was detained and questioned on espionage matters but no charges were ever laid in this regard. Mr. Ekeland found it unusual in that the principal claimant was not allowed access to counsel and that he did not appear in front of a Federal magistrate judge until August 11, 2010. a full five days after he was detained. [149] Mr. Ekeland found it unusual that he never saw a case where the FBI interrogated someone and they ended up in hospital. In Mr. Ekeland's opinion, it looked like the FBI were ?freaking out and panicking" over something. RPD File No.1r No de dossier de la SPR: TBS-02212 TBS-04574 [150] Mr. Ekeland testi?ed that it was unconstitutional to administer Thorazine without consent and there is no consent form to show that the principal claimant agreed to have Thorazine administered. The FBI also continued to interrogate the principal claimant even after an attorney was appointed on August ll. 2010. The fomis that the FBI did have the principal claimant sign were not valid. Mr. Ekeland testified that he did not believe that the principal claimant will get a fair trial. The principal claimant will be punished for not pleading on the child pornography charges. He believes that the principal claimant will be ill-treated in prison due to these charges but also because he is seen as a hacker. [152} In examining the issue of state protection. the panel looked at the documentary evidence regarding the United States and in particular it judicial system. Documentary Evidence [153] Freedom House Report? states that the United States is an electoral democracy with a bicameral federal legislature. The Upper Chamber. the Senate. consists of 100 members. two from each of the 50 states. serving six-year terms. with one?third coming up for election every two years. The Lower Chamber. the House of Representatives. consists of 435 members. serving two-year terms. All national legislators are elected directly by voters in the districts or states they represent. [154] A great deal of government responsibility rests with the 50 states. Most criminal cases are dealt with at the state level. as are education. family matters. gun ownership policies. and many land-use decisions. In some states. citizens have a wide-ranging ability to in?uence legislation through referendums. Such direct-democracy mechanisms. often initiated by signature campaigns. have been hailed by some as a reflection of the openness of the U.S. system. However. they have also been criticized on the grounds that they can lead to incoherent l4 governance. undermine representative democracy. and weaken the party system." Exhibit?. item 2.1. *3 Exhibits. item 2.1. RPD File No. I the dossier de la SPR: TBS-02198 TBS-02212 TB3-04ST4 [155] American society has a tradition of intolerance toward corrupt acts by government officials. corporate executives. or labor leaders. In recent years. the most serious instances of political corruption have been uncovered among state?level officials. In New York State. a number of state legislators and municipal of?cials have been indicted on charges of bribery. theft. and other forms of graft. The media are aggressive in reporting on cases of corporate and official corruption; newspapers often publish investigative articles that delve into questions of private or public malfeasance. However. there are concerns that ?nancial dif?culties in the newspaper industry have reduced the press?s willingness to devote resources to investigative journalism. Moreover. the expanding in?uence of interest groups and lobbyists on the legislative and policymaking processes, combined with their crucial role in campaign fund-raising. has given rise to public perceptions of enhanced corruption in Washington.33 [156] The federal government has a high degree of transparency. A substantial number of auditing and investigative agencies function independently of political influence. Such bodies are often spurred to action by the investigative work of journalists. Federal agencies regularly place information relevant to their mandates on websites to broaden public access. In an action widely praised by scholars and civil libertarians. President Obama in 2009 ordered that millions of government documents from the Cold War era be declassi?ed and instructed federal agencies to adopt a cooperative attitude toward public information requests. But the administration has come under criticism for its lack of openness with the press and public and its determination to punish leaks by government officials.34 Congressional efforts in 2012 to adopt legislation to prevent copyright infringement on the internet were shelved in response to strong opposition from leading internet companies. websites. and ordinary users. The bills would have given the authorities sweeping powers to block entire sites containing allegedly unauthorized content. potentially affecting legal content and compelling host companies to police the activities of their users.? Judicial independence is respected. Although the courts have occasionally been accused of intervening in areas that are best left to the political branches. most observers regard the judiciary as a linchpin of the American democratic system. In recent years. much attention has been paid to the ideological composition of the Supreme Court. which has issued a number of major decisions Ibid. ff Ibid. lbid. RPD File No. i? de dossier de la SPR: TBS-02198 by a one-vote margin and is currently seen as having a conservative majority. Concern has also been raised about a trend toward the politicization of judicial elections in some [157] While the United States has a strong rule-of?law tradition. the criminal justice system?s treatment of minority groups has long been a problem. Black and Latino inmates account for a disproportionately large percentage of the prison population. Civil liberties organizations and other groups have also advanced a broader critique ofthe justice system. arguing that there are too many Americans in prison, that prison sentences are often excessive. that too many prisoners are relegated to solitary con?nement or other maxim um-security arrangements. and that too many people are incarcerated for minor drug offenses. Over two million Americans are behind bars in federal and state prisons and local jails at any given time, producing the highest national incarceration rate in the world. The number of incarcerated Americans has continued to increase even as the national rate of violent crime has declined. There are also a large number of juveniles serving prison terms in adult penitentiaries. Concerns have been raised about prison conditions, especially the incidence of violence and rape.? [158] In the Human Rights Watch38 Report, it states that the United States has a vibrant civil society and media that enjoy strong constitutional protections. [159] The documentary evidence indicates that judicial independence is respected. The principal claimant testified that the judge assigned to his case, a United States Federal Judge in the Middle District of Tennessee had treated his case fairly. He further believed that if his case has gone ahead the charges would have been dismissed. [160] The principal claimant is represented by counsel in the United States and has been actively engaged in the legal process. Both he and his counsel have been ?ling motions to compel evidence, suppress evidence and dismiss the indictment. The legal process has only been stalled because of the claimants leaving the jurisdiction. The panel ?nds that the evidence of Mr. Tor Ekeland indicates that while many aspects of treatment of the principal claimant upon his detention were highly unusual, his own evidence with Exhibit 5. item 2. l. j? Exhibit 5, item 2.1. is Exhibit 5. item 2.3. RPD File No. t' de dossier de la SPR: TBS-04574 regards to the two cases that he worked dealing with computer crime was that the system was engaged and eventually worked, even if it meant going on to the appeal level. [162] The panel further notes that at the bond bail hearing held on May 22. 2012, Judge Trauger stated that she found the principal claimant?s allegations of FBI misconduct to be credible. This formed one of the reasons for the decision to release him. [163] This indicates to the panel that the trial judge was fully aware of the underlying national security issues and as such her actions of setting bail indicated that she was not fettered by the government. The transcript of the bail hearing further indicates that the judge was prepared to hear the motions by counsel for the principal claimant to compel and dismiss the indictments. [164] Counsel for the claimants has put forth documentary evidence regarding the treatment of hackers in the US. justice system. These reports allege rampant prosecutorial misconduct. The panel notes that the evidence is in the form of media reports. which is consistent with the role of media as a watchdog in the Americanjustice system. [165] The principal claimant's faces charges in the United States with respect to child pornography. The panel finds that based on the testimony of the claimants that the trial judge was fair in treatment of the case. The principal claimant appears to be able to retain counsel and make motions during the process. The principal claimant was anticipating that the charges would in fact be dismissed. Indeed when concerns were raised by the claimants as to the behaviour of the prosecuting attorney. the judge commenced an investigation. It is clear to the panel that the legal system appears to be engaged and working. [166] The fear that the US. authorities would then charge him for issues of national security is speculative at this time. The evidence has been consistent that he has never been charged or indicted for any crimes against national security nor has there been any evidence that this may happen in the future. [167] The panel ?nds that the claimants' counsel has not put forth any evidence that effectively impeaches the US. justice system. As such. the panel finds that the United States has a fair and independent judicial process available to the principal claimant. RPD File No.1 N? de dossier de la SPR: TUJ-02198 TUJ-02212 TR3-04S74 regards to the two cases that he worked dealing with computer crime was that the system was engaged and event ua lly worked. even if it meant going on to the appeal level. [162] The panel fu rther notes that at the bond bail hearing held on May 22.201 2. Judge Trauger stated that she found the principal claimant's allegations of FBI misconduct to be credible. This fornled one of the reasons for the decision to rel ease him. [163] This ind icates to the panel that the trial judge was fully aware of the underl ying national security issues and as such her actions of setting bail indicated that she was not fette red by the government. The transcript of the bail hearing further indicates that the judge was prepared to hear the motions by counsel for the principa l claimant to compel and di smiss the indictments. [164] Counsel for the claimants has put forth documentary evidence regarding the treatment of hackers in the U.S. justice system. These reports allege rampant prosecutorial misconduct. The panel notes that the evidence is in the form of media reports. which is consistent with the role of media as a watchdog in the American justice system. [165] The principal claimant's faces charges in the United States with respect to chi ld pornography. The panel finds that based on the testimony of the claimants that the trial judge was fair in treatment of the case. The principal claimant appears to be able to retain counsel and make motions during the process. The principal claimant was anticipating that the charges would in fact be dismissed. Indeed when concerns were rai sed by the claimants as to the behaviour of the prosecuting attorney. the judge commenced an investigation. It is clear to the panel that the legal system appears to be engaged and working. (166] The fear that the U.S. authorities would then charge him fo r issues of nat ional security is specul at ive at this time. The evidence has been consistent that he has never been charged or indicted for any crimes against national security nor has there been any evidence that th is may happen in the future. [ 167] The panel finds that the claimants' counse l has not put forth any evidence that effect ive ly impeaches the U.S. justice system . As such, the panel finds that the Uni ted States has a fair and independent j udic ial process available to the principal claimant. RPO File NO. 1 N? de d ossier d e la SPR: T B3-02 J98 T BJ-02212 T B3-04574 [168] The principal claimant has not put forth clear and convincing evidence which wou ld rebut the presumpt ion of state protection. The panel therefore finds that state protection is available to the principal claimant. E"idenee of Paul DeHa rt [169] Paul DeHart (the ma le claimant) testified that he fears the Federal Government of the United States because of things that had happened to his son. The male claimant has neve r been charged with espionage or any other national security charges. There are no other outstanding charges against him and he confinned that at the time he left the U.S .. he was not wanted by the authorities. The male claimant testified that he doesn't know what would happen if he crossed back into the United States but that he fears for hi s son. [170] The panel has already detelTI1ined that state protection is available to the principal claimant in the United States. Gi ven that the claims of Paul Dehart and Leann DeHart rely on the principal claimant. their claims also fail. RPD File No. I N? de dossier de 13 SPR: TB3?02198 TB3-02212 TH3?04574 CONCLUSION [17 1] Considering the total ity of the ev idence. the panel finds that the principal claimant is not excl uded under Article 1F(b). The panel further finds that the claimants are neither Convention refugees nor persons in need of protection and therefore rejects their cla ims. (s igned) "P. Roche" P. H.oche "February 5, 2015" Date