Federal Court Cour federale Date 20260205 Docket T-503-17 Citation 2026 FC 159 Ottawa Ontario February 5 2026 PRESENT The Honourable Mr Justice Lafrenière BETWEEN MINISTER OF CITIZENSHIP AND IMMIGRATION AND MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Plaintiffs and JORGE VINICIO SOSA ORANTES Defendant JUDGMENT AND REASONS I Introduction 1 By this action the Plaintiffs the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness together “the Ministers ” seek two declarations against the Defendant Jorge Vinicio Sosa Orantes Sosa under various provisions of the Citizenship Act RSC 1985 c C-29 Citizenship Act Page 2 2 The Ministers seek a declaration that Mr Sosa a former commissioned officer and member of the Kaibiles an elite special operations force of the Guatemalan Army obtained permanent residence and Canadian citizenship by “false representation or fraud or by knowingly concealing material circumstances ” They claim that Mr Sosa did not disclose his military past throughout the Canadian immigration process from the time he applied for permanent resident status in 1985 to entering Canada and becoming a landed immigrant in 1987 and to becoming a Canadian citizen in 1992 which had the effect of foreclosing or averting further inquiries 3 The Ministers also seek a declaration that Mr Sosa is inadmissible to Canada on grounds of violating human or international rights for committing an act outside Canada that constitutes a crime against humanity This is based primarily on Mr Sosa’s alleged involvement in the horrific murder of men women and children by the Kaibiles that took place in the village of Las Dos Erres Guatemala in December 1982 Las Dos Erres massacre 4 It should be noted here that although Mr Sosa defended the action and was involved in all pre-trial stages of the proceeding he elected not participate at the trial other than to provide brief written closing submissions 5 For reasons set out in detail below I conclude that the declarations sought by the Ministers should be granted Page 3 II Critical Findings 6 Given the length of these reasons I consider it useful to begin by summarizing my critical findings A There was a widespread and systematic attack perpetrated by the Guatemalan military against the civilian population in the early 1980s 7 It is widely accepted that an internal armed conflict took place in Guatemala from the early 1960s to 1996 between the Guatemalan army and guerilla and insurgent groups Compelling and undeniable evidence was adduced at trial establishes that the conflict devolved over time into a widespread and systematic attack by the Guatemalan military against civilian populations reaching a crescendo in the early 1980s The Las Dos Erres massacre described below is but one of many atrocities committed during this period B The Las Dos Erres Massacre 8 Late in the evening of December 6 1982 a special patrol unit of the Guatemalan army comprised of elite Kaibiles fighters and a platoon of 40 soldiers disguised as guerilla fighters were deployed to Las Dos Erres a small village in the municipality of La Libertad in the department of Petén for the purported purpose of recovering rifles that were lost during an ambush by guerillas a few weeks earlier 9 Mr Sosa was an instructor at the Kaibiles school and a sub-lieutenant of the unit Mr Sosa denies being involved in the military operation at Las Dos Erres because he was performing his Page 4 duty as a liaison officer of distributing sports equipment in village schools during that period As a witness testified this is absurd The uncontradicted documentary and oral evidence clearly proves that Mr Sosa was one of the officers in command of the operation at Las Dos Erres 10 When the patrol unit arrived at Las Dos Erres in the early morning of December 7 the villagers were asleep The soldiers kicked open the doors of the shanty houses and dragged the residents from their homes The women and children were taken to the village church while the men were segregated at the local school During their confinement men and women were interrogated and beaten 11 While the soldiers searched in vain for the missing rifles rumours circulated that some women and young girls had been raped At around 2 00 p m the soldiers were informed that the mission had changed and they were ordered by their superiors to kill everyone in the village The soldiers began to bring people to the village’s dry water well starting with infants followed by women and children 12 What followed was the methodical and horrendous murder of civilians The first victim was a two- or three-month-old baby who was thrown alive into the well Young children were held by their feet and bashed against walls or trees C Mr Sosa directly committed murder of villagers 13 When the well was almost full some people who were still alive tried to lift themselves up to get out while others called for help or prayed to God Mr Sosa who had been supervising Page 5 the killings fired his gun into the well to silence a man who was pleading for a quick death I find that by shooting in the direction of the man Mr Sosa caused and intended to cause the death of the man or at the very least to inflict grievous bodily harm that he knew was likely to result in his death 14 The uncontradicted evidence is that Mr Sosa threw a grenade into the well while persons were alive inside After the grenade exploded the screams of the persons in the well went silent I find that by throwing the grenade in the well Mr Sosa intended to inflict grievous bodily harm that he knew was likely to result in death of the persons who were still alive in the well I find that by this act Mr Sosa committed the act of murder of those persons D Mr Sosa abetted the murder of villagers by his subordinates 15 I find that as one of the officers in command of the operation Mr Sosa through his words and actions encouraged and provided moral support to his subordinates to commit the systemic murders of innocent civilians at Las Dos Erres At the beginning of the massacre Mr Sosa ordered a soldier who reported to him to throw a three-year-old boy into the well saying that it was “a job for men ” A woman in her thirties was shot in the back of her head while other women and the elderly were hit in the back of the head with a sledgehammer A girl around 16 years of age was taken away by a Kaibil officer who raped her and then killed her All the victims were thrown into the well All the while Mr Sosa ordered soldiers to bring more people to the well Page 6 E Mr Sosa’s acts were committed as part of the broader attack against civilians at or around Las Dos Erres 16 Later that day when the well was being covered up screams and cries of victims could still be heard They were left to die a horrible death Those who did not fit in the well were kept alive in the church and in the school Women were grabbed by the hair kicked and punched They were then taken outside to be shot and killed Men and teen boys were tortured and hanged from trees Members of the patrol unit laughed as if nothing had happened That night they celebrated having killed everyone 17 On the morning of December 8 as the patrol unit was preparing to leave some unsuspecting people arrived in the hamlet With the well already full they were taken to a location half an hour away and executed Two teenage girls who had been kept alive by the patrol unit were raped repeatedly and later strangled to death Only two young boys one with uncommon light-coloured eyes are believed to have survived When the patrol unit left Las Dos Erres the village was effectively wiped off the face of the earth F Mr Sosa’s Asylum Claims 18 In May 1985 Mr Sosa applied for asylum in the United States of America U S In his U S application form Mr Sosa disclosed his military past in some detail which was central to his asylum claim However he failed to disclose his participation at Las Dos Erres The U S asylum claim was rejected in 1985 and Mr Sosa was ordered to leave the country Two years Page 7 later in 1987 Mr Sosa and his family while still in the U S and facing deportation made a refugee claim to Canada 19 Mr Sosa claims that when he applied for permanent residence in Canada he answered all the questions contained in the application form truthfully and accurately He also claims that the subject of his military service was discussed during multiple interviews with Canadian immigration officials I find his claims which are not in evidence before me to be patently false 20 The evidence at trial clearly establishes that Mr Sosa used subterfuge to obtain permanent residence in Canada There is credible and reliable evidence that in his application form Mr Sosa fabricated his education and work history concealed his military past and manufactured an asylum claim out of whole cloth I find that he provided false information with the clear intent to mislead Canadian immigration officials and to foreclose and avert any further inquiries As a result officials were unable to make a fully informed decision as to Mr Sosa’s eligibility for refugee protection and admissibility to Canada 21 It is agreed by the parties that Mr Sosa obtained his Canadian citizenship on the basis of his Canadian permanent resident status Pursuant to section 10 2 of the Citizenship Act Mr Sosa is presumed to have obtained his citizenship by false representation Page 8 III Mr Sosa’s Participation in the Proceeding 22 At the time Mr Sosa was served with the Statement of Claim he was incarcerated in the U S serving a 10-year sentence for criminal immigration fraud Mr Sosa filed a Statement of Defence denying the Ministers’ allegations Both parties later filed amended pleadings 23 During the pleadings and discovery phases of the case Mr Sosa represented himself and at times was assisted by counsel 24 Several case management conferences were held with the parties over the years During pre-trial conferences held in the fall of 2023 Mr Sosa was represented by two different lawyers both of whom withdrew shortly thereafter 25 On January 22 2024 the parties were offered trial dates in September 2024 After a back-and-forth between the parties an Order was issued fixing the trial dates to commence on November 4 2024 26 On April 10 2024 Mr Sosa appointed a new lawyer Mr Sosa informally requested that the trial be postponed allowing his new counsel sufficient time to familiarize herself with the case His request was denied given that the parties had previously certified their trial readiness and the late retention of counsel was not considered to be an exceptional or unforeseen circumstance Page 9 27 On September 3 2024 Mr Sosa filed a Notice of Intention to Act in Person In an accompanying letter Mr Sosa requested once again that the trial be postponed He wrote that he had recently been diagnosed with diverticulitis and needed time to recover from the disease and to retain new counsel Mr Sosa was directed to bring a motion in writing to request the relief which he did on September 20 2024 28 By Order dated October 2 2024 Mr Sosa’s motion was dismissed as there was insufficient medical evidence to conclude that he was unable to appear at the trial No appeal was taken from the Order 29 On October 15 2024 Mr Sosa submitted a letter describing his current health status Attached to his letter was a note from mental health therapist dated July 16 2024 and two prescriptions written in Spanish Mr Sosa explained that he was seeking specialized treatment for his diverticulitis “outside of Alberta” and that he had been attending a mental health clinic since June due to a diagnosis of post-traumatic stress disorder As there was nothing to suggest that Mr Sosa’s medical condition could not be accommodated during the trial he was put on notice that the trial would proceed as scheduled 30 On October 23 2024 Mr Sosa submitted a further letter to the Court October 23 Letter which reads in part as follows Article 11 c of the Canadian Charter of Rights and Freedoms states that no person can be compelled to testify at their own trial which implies the right against self-incrimination This principle is fundamental to criminal justice in Canada Reasons for Not Having Witnesses Page 10 Right Not to Testify The defense may argue that presenting witnesses would expose the accused to the possibility of selfincrimination If the accused has to testify or if their witnesses do this could affect his right to remain silent … … In summary the decision not to present witnesses in federal court is based on respect for the accused’s right not to testify and the burden of proof resting with the Plaintiffs This is essential to ensure a fair and equitable trial thereby protecting individual rights within the framework of the Canadian legal system 31 On November 1 2024 Mr Sosa submitted a letter advising that further tests had been conducted which resulted in a diagnosis of prostatitis He wrote that the “unexpected situation has severely affected his health and prevents him from taking any actions that could worsen his condition ” 32 By direction dated November 1 2024 Mr Sosa was advised that the Court would not entertain his last-minute attempt to delay the trial He was put on notice once again that the trial would proceed as scheduled Later that day Mr Sosa submitted a second letter Pre-Hearing Letter in which he denies providing false information to Canadian immigration officials and disputes the probative value of the evidence the Ministers intends to present at trial 33 When the trial started at the appointed time on November 4 2024 Mr Sosa did not attend in person or attempt to join by videoconference The Registry was unable to reach him by phone Page 11 34 The presence of both parties is not an absolute requirement when adjudicating a matter As outlined in Laponder v Birkich 2017 BCSC 1888 the decision to proceed in the absence of a party depends on various factors including pre-existing delays the impact on the parties and the reason for the absence 35 In terms of the first factor I found that Mr Sosa had engaged in calculated and deliberate tactics to frustrate and delay the hearing of the action He went through two lawyers in a matter of months when the Court was canvassing the parties regarding their availability for trial Moreover it was only after Mr Sosa was denied a postponement based on his retention of a third lawyer that he came up with dubious medical excuses to try to force the Court’s hand As for the second factor I found that any further delay in this proceeding would work a serious prejudice to the Ministers The advanced age of some of the witnesses the substantial passage of time between the events at issue and the date of the trial and a strong public interest in the timely conclusion of this litigation militated strongly against postponing the trial Finally Mr Sosa provided in no uncertain terms the reason for his absence He made a wilful informed and deliberate decision not to attend the trial 36 There was no reason to expect that Mr Sosa would attend at another trial date if a short postponement were granted Given that all reasonable allowances had been made for Mr Sosa to represent himself I concluded that the trial should proceed without his participation Page 12 37 Over the course of the 13-day trial Mr Sosa was invited daily by the Registry to join the trial by videoconference but he never responded I also directed that Mr Sosa be provided with daily transcripts to ensure he was kept apprised of developments at the trial 38 Mr Sosa had a full opportunity to participate remotely at the trial to cross-examine the Ministers’ witnesses and to provide whatever evidence he wished to adduce but he chose not to That was of course his choice but he must accept the consequences of the decision he made Because Mr Sosa did not participate at the trial I did not have the benefit of observing the Ministers’ witnesses under cross-examination He left the Ministers’ evidence completely unchallenged I was also deprived of hearing Mr Sosa’s testimony and assessing his credibility in light of the full picture While nothing can be inferred from the fact that Mr Sosa did not testify when considered in isolation his failure to testify permitted me to draw inferences from the evidence before me if that evidence is unexplained or qualified by evidence adduced through the Ministers’ witnesses 39 I pause here to respond to Mr Sosa’s claim in his October 23 Letter that he has a right not to testify as it would violate his right against self-incrimination under subsection 11 c of the Canadian Charter of Rights and Freedoms being Part I of the Constitution Act 1982 Schedule B to the Canada Act 1982 UK 1982 c 11 Charter Section 11 of the Charter provides that a “person charged with an offence” cannot be compelled to be a witness “in proceedings against that person in respect of the offence ” However Mr Sosa in this case is not a “person charged with an offence” within the meaning of section 11 Page 13 40 A citizenship revocation trial is not a criminal proceeding but rather a civil one Canada Minister of Citizenship and Immigration v Dueck TD 1997 CanLII 6389 FC 1998 2 FC 614 As stated in Benner v Canada Secretary of State 1997 CanLII 376 SCC 1997 1 SCR 358 at para 72 Canadian citizenship is a “valuable privilege ” and the stakes are undoubtedly high for Mr Sosa Nevertheless it must be kept in mind that the Ministers only seek to deprive Mr Sosa of his citizenship through this proceeding and not his liberty Thus his interests do not weigh as heavily in the balance as they would in a criminal proceeding Canada Minister of Citizenship and Immigration v Tobiass 1997 3 SCR 391 at para 108 1997 CanLII 322 SCC Tobiass The question for the Court to determine for the revocation declaration is only whether he obtained citizenship by false representation fraud or knowingly concealing material circumstances 41 Similar considerations apply to the Inadmissibility Declaration the Ministers are seeking The standard of proof and evidentiary rules are more relaxed than those that apply to a revocation declaration Although an inadmissibility declaration is a removal order because of his Convention refugee status Mr Sosa is a protected person under the pursuant to subsection 10 5 1 of the Citizenship Act and paragraph 35 l a of the Immigration and Refugee Protection Act SC 2001 c 27 IRPA Therefore before removal of Mr Sosa from Canada could be enforced he would be the subject of administrative proceedings IV Agreed Statement of Facts 42 At the outset of the trial counsel for the Ministers submitted an Agreed Statement of Facts that provides a useful chronology of facts and key events It reads as follows Page 14 A Guatemalan internal armed conflict and Las Dos Erres 1 An internal armed conflict persisted in Guatemala between 1962 and 1996 As part of this conflict Guatemalan state forces conducted counter-insurgency operations against suspected guerrillas and their supporters 2 In the late 1970s and early 1980s there was a rise in social movements and new insurgent groups that increased their activity throughout the country As a result the armed conflict and the Guatemalan government’s counterinsurgency response intensified 3 On March 23 1982 there was a coup that led General Rios Montt to seize the position of president of the military junta and shortly after president of the republic and commander in chief of the armed forces General Rios Montt remained in power until August 1983 4 In the Amended Statement of Defence Mr Sosa admitted that military operations by the Guatemalan military took place in Las Dos Erres Guatemala in December 1982 Mr Sosa denies that he was involved in the operation or had any knowledge of it 5 Las Dos Erres was a rural settlement in the department of El Petén Guatemala B Defendant’s Guatemalan military training and career 6 Mr Sosa was born in Guatemala City Guatemala in 1958 7 Mr Sosa received military education in Guatemala graduating from the Politecnica military school in the 1970s 8 Following his military education Mr Sosa was a member of the Guatemalan military from the 1970s to 1985 9 The Kaibiles school was a military special operations training center in Guatemala operating between 1974 and the mid-1980s 10 The Kaibiles military training school also referred to as Kaibiles School or Kaibil school was located in La Pólvora Melchor de Mencos in the department of El Petén Guatemala 11 From 1981 Mr Sosa was an Instructor and Sub-Lieutenant in the Guatemalan military with the Kaibiles According to Mr Sosa he was promoted to Lieutenant in 1983 and in 1984 to commanding officer at the Politecnica military school Page 15 12 The Kaibiles military training school was focused on counterinsurgency training including but not limited to jungle combat survival methods anti-communist indoctrination and psychological warfare techniques The Kaibiles were considered to be Guatemala’s military elite mainly because the training was very difficult 13 Individuals who served as part of the Kaibiles School together with Mr Sosa in 1982 included but were not limited to Major Arevalo Lacs Lieutenant Rivera Martinez Lieutenant Ramírez Ramos Lieutenant Rosales Batres Manuel Pop Sun Reyes Collin Gualip Daniel Martinez Mendez Pedro Pimentel Rios Cesar Ibanez Gilberto Jordan Favio Pinzón Santos Lopez Alonzo 14 A copy of Mr Sosa’s military service curriculum vitae CV is attached as Appendix A and a translation is attached as Appendix B to this Agreed Statement of Facts In addition a copy of Mr Sosa’s Certification of Military Service is attached as Appendix C and a translation is attached as Appendix D C Defendant’s 1985 US asylum application 15 Mr Sosa left Guatemala in May 1985 16 In the spring of 1985 Mr Sosa was in San Francisco in the United States of America U S 17 Mr Sosa requested asylum from the U S His U S asylum request was denied in 1985 D Defendant’s Canadian permanent residence application and citizenship 18 At some time between May 10 1985 and May 11 1987 Mr Sosa appeared at the Canadian consulate in San Francisco to request refugee status and Canadian permanent residency Page 16 19 In connection with his Canadian Permanent Residence Application Mr Sosa was interviewed by a Canadian official at the Canadian Consulate in San Francisco 20 Subsequent to the interview by a Canadian official Mr Sosa was issued a Canadian permanent resident visa in May 1988 21 Mr Sosa entered Canada at Calgary International Airport in May 1988 and was subject to a landing interview 22 Mr Sosa was granted permanent resident status in Canada under the refugee class 23 On the basis of his Canadian permanent resident status Mr Sosa became a Canadian citizen on June 9 1992 E Guatemalan arrest warrants 24 Around 1999 to 2000 Guatemalan authorities laid criminal charges against military personnel alleged to be responsible for the Las Dos Erres massacre following which arrest warrants were issued 25 Mr Sosa was among those individuals for whom an arrest warrant was issued 26 The arrest warrant against Mr Sosa could not be executed because he was no longer in Guatemala F Defendant’s US citizenship and US conviction 27 After obtaining his Canadian citizenship Mr Sosa married a U S citizen and took steps to acquire U S citizenship 28 Mr Sosa was granted U S citizenship in September 2008 29 A copy of forms submitted by Mr Sosa to US immigration authorities are attached as Appendix E and Appendix F to this Agreed Statement of Facts 30 In 2010 the US government discovered that Mr Sosa had committed criminal immigration fraud 31 In 2010 Mr Sosa was charged with criminal immigration fraud by the U S 32 Further to the U S charges Mr Sosa was arrested in Alberta in 2011 and extradited to the U S to stand trial Page 17 33 The criminal immigration fraud trial was heard by a jury in 2013 before US District Court for the Central District of California and Mr Sosa was found guilty on all counts A copy of the Court’s verdict in Mr Sosa’s US trial is attached as Appendix G to this Agreed Statement of Facts 34 Mr Sosa was found guilty of making false statements to a Naturalization Examiner and was sentenced to 10 years in prison in a US federal correctional institution 35 The US Court of Appeals affirmed the conviction in the decision attached as Appendix H G Defendant’s Guatemalan birth and citizenship 36 Mr Sosa was born March 7 1958 in Guatemala 37 Mr Sosa is a Guatemalan citizen He obtained Guatemalan citizenship by virtue of his birth in Guatemala and remains a Guatemalan citizen to date Footnotes and appendices omitted V Historical and Ancient Documents 43 During a trial management conference the Ministers gave notice of their intention to bring a motion to be determined in advance of trial seeking an order pursuant to sections 10 1 and 10 5 of the Citizenship Act and sections 23 and 30 of the Canada Evidence Act RSC 1985 c C-5 CEA that copies of historical records and ancient documents they intended to rely on at trial Historical Records were admissible as evidence and could be filed as exhibits at trial without formal proof of authenticity 44 The Historical Records include Page 18 a The Guatemalan military’s plans and manuals including the Military Plan Victoria 1982 Guatemalan Plan for Security and Development and the Guatemalan military’s Manual of Counter-Subversive Warfare b General Orders of the Guatemalan military c Other official government records obtained from the Guatemalan Prosecutor’s Office including records of military service for Jorge Vinicio Sosa and other Kaibiles instructors and sub-instructors who are alleged to have participated in the Las Dos Erres massacre d The final reports of the Commission for Historical Clarification Comisión para el Esclarecimiento Histórico hereinafter referred to as the “Truth Commission ” including Volume I Memory of Silence Report of the Commission for Historical Clarification Conclusions and Recommendations and the Truth Commission’s case study on the Las Dos Erres massacre e An agreement entered into by the state of Guatemala before the Inter-American Commission on Human Rights in which the state of Guatemala accepted state responsibility for the Las Dos Erres massacre f U S government records including declassified secret intelligence documents from the 1980s provided by the Ministers’ expert archivist which were obtained from U S agencies g Other historical records of the Guatemalan government Page 19 45 All of the documents other than the U S government records are in Spanish Translations were obtained by the Ministers and there is no dispute as to the accuracy of the translated versions 46 The Ministers conceded that if admitted Mr Sosa would be able to make any arguments he chose to advance concerning the weight that should be afforded to the documents or to rebut the statements contained in the documents 47 Mr Sosa consented to the relief requested by the Ministers thereby obviating the need for the motion I have set out below my reasons for admitting the documents 48 The rationale underlying the admission of historical documents rests on two principles necessity and reliability Canada Minister of Citizenship and Immigration v Seifert 2006 FC 270 at para 7 Seifert 49 The requirement of necessity is satisfied here as the makers of the original Historical Records which date back decades are not known The documents are the only means for the Court to have important evidence and context for the Ministers’ claims They are critical in helping to establish the events that gave rise to what came to be known as the Las Dos Erres massacre and the role of the Kaibiles the modus operandi of the Guatemalan military during the 1980s Mr Sosa’s role in connection with the Kaibiles special patrol and Mr Sosa’s long career in the Guatemalan military Page 20 50 While Mr Sosa did not dispute the reliability of the Historical Records his lack of objection was not determinative The reliability of the information had to be assessed based on the totality of the circumstances 51 On the record before me I am satisfied that the original versions of the Historical Records are not available and the copies produced by the Ministers are reliable such that they are admissible under an exception to the hearsay rule as demonstrated by the following indicia of reliability First the Historical Records are government documents authored by government officials or departments and many of the documents bear official stamps attesting to their trustworthiness Second many of the Historical Records were provided to the Government of Canada directly by the Guatemalan Prosecutor’s office in response to an official request Third most of the Historical Records have been widely relied on and cited by experts and historians including in the Truth Commission’s report Fourth the Historical Records were produced from proper custody and free from circumstances arousing suspicion as evidenced by affidavits filed by the Ministers at trial Fifth no concerns of any forgery or suspicious circumstances regarding Historical Records has been raised 52 The Historical Records largely corroborate the live testimony of expert witnesses who were fluent in Spanish and who could verify that the information within represents a true record of what the documents purport to be In Canada Minister of Citizenship and Immigration v Fast 2003 FC 1139 at para 36 Justice Denis Pelletier stated that documents relied on by experts are prima facie reliable So as a general rule it is my view that proof of the reliability of the documents is supplied by the fact that professional historians Page 21 have relied upon them in coming to the conclusions which they have put before the Court This does not preclude a challenge to particular documents or classes of documents Furthermore the question of weight is always an issue Consequently I am prepared to receive archival documents in evidence in proof of their contents where the reliability of the documents for that purpose is asserted implicitly or explicitly by a professional historian or other witness whose familiarity with the documents permits them to make such an assertion 53 Several of the Historical Records also meet the statutory conditions for admissibility under section 30 of the CEA and are admissible as proof of the truth of their contents This category of documents was made in the usual and ordinary course of business of the government agency department or body that produced them The definition of “business” under the CEA includes documents produced in the usual and ordinary course of governmental activity or operations They also meet the requirements of the ancient documents rule at common law and are presumed to prove themselves Sopinka Lederman Bryant The Law of Evidence in Canada 4th ed Markham LexisNexis Canada Inc at para 18 102 Sawbridge Band v Canada 2004 FC 1721 at para 27 These records are more than 30 years old and as stated earlier are produced from proper custody in the absence of circumstances of suspicion The requirements of the ancient documents rule have been subsumed under the principled exception to the hearsay rule As a result these records meet the requirements of necessity and reliability under the principled exception to the hearsay rule These records do not need to be authenticated as there are no suspicious appearances on the face of the document by erasure interlineation or otherwise 54 The Historical Documents were admitted as prima facie truth of the contents This did not necessarily mean that I took any particular fact asserted therein as having been proved Page 22 Seifert at para 9 It was only at the end of the trial based on the whole of the evidence that I was able to make findings of fact relying on the contents of the documents VI The Witnesses 55 Ten witnesses testified at trial some in person some remotely and some with the aid of Spanish interpreters 56 Although there was no cross-examination the witnesses’ evidence was not accepted blindly given the serious nature of the allegations made against Mr Sosa To promote a balanced and thorough consideration of the evidence I intervened on occasion to ask questions of witnesses to seek clarification or further elaboration on some matters I also undertook a careful assessment of their credibility to satisfy myself that the evidence they presented was reliable and trustworthy based on the factors set out in Foomani c R 2023 QCCA 232 at para 73 A Experts 57 The Ministers called five experts The purpose of expert opinion evidence is to assist the trier of fact to understand the circumstances by providing specialized knowledge that an ordinary person would not know 58 At the pre-trial Mr Sosa did not raise any objection to the proposed expert witnesses that could disqualify them from testifying At trial the Ministers established that the opinion Page 23 evidence satisfied the four factors set out in R v Mohan 1994 CanLII 80 SCC 1994 2 SCR 9 1 relevance 2 necessity 3 absence of an exclusionary rule and 4 special expertise 1 59 Elizabeth Anne Oglesby The Ministers called Dr Elizabeth Anne Oglesby an academic and historian to provide opinion evidence pertaining to the internal armed conflict in Guatemala between the army and insurgents Dr Oglesby was qualified as an expert on the historical context of the Guatemalan armed conflict from the 1950s into the 1980s including the armed conflict itself and the patterns of the Guatemalan military’s abuses and human rights violations against the civilian population She was also qualified to opine on whether the Las Dos Erres massacre fits the broader pattern of military abuses and human rights violations on the civilian population Her expert report and testimony were focussed on the patterns of violence and human rights abuses by the Guatemalan military against civilians in the early 1980s 2 60 Rodolfo Robles Espinoza General Rodolfo Robles Espinoza Robles served for 37 years in the Peruvian Army and achieved the rank of Major General and is now retired General Robles described in his report and explained during his testimony the Guatemalan military countersubversive counterinsurgency strategy methods command structure and operations in the 1980s including the establishment command structure and operations of the Kaibiles Page 24 3 61 Kate Doyle Ms Kate Doyle a senior analyst of U S policy in Latin America was qualified as an expert on human rights and justice in Latin America based on U S declassified documents and Guatemalan historical records particularly concerning the Guatemalan internal armed conflict in the early 1980s including the event that took place in Las Dos Erres in December of 1982 and as an expert on access to and analysis of political records on the Guatemalan internal armed conflict Her expert report and testimony present her conclusions about the records under study 4 62 Dr Silvana Turner Dr Silvana Turner a forensic anthropologist from the Argentine Forensic Anthropology Team was qualified as an expert on the archaeological excavation and forensic anthropological analyses of the human remains and other evidence from the exhumation of three different sites in the Las Dos Erres area 5 63 Professor N Alexander Aizenstatd Professor N Alexander Aizenstatd a practicing lawyer in Guatemala and Professor of international law at Universidad Rafael Landivar was qualified as an expert on Guatemalan domestic law including the areas of nationality and citizenship law amnesty law international law and criminal law Page 25 B Lay Witnesses 64 Five lay witnesses were called by the Ministers 1 65 Favio Pinzón Jérez Mr Favio Pinzón Jérez Pinzón served in the Guatemalan miliary from 1972 to 1990 including as a cook at the Kaibil School In late 1982 he was part of the Kaibil special patrol involved in the military operations at Las Dos Erres Mr Pinzón provided firsthand evidence of the circumstances surrounding the Las Dos Erres massacre including direct evidence about Mr Sosa’s personal involvement in the killing of civilians 2 66 Ramiro Osorio Cristales Mr Ramiro Osorio Cristales Cristales was five and a half years old back in December 1982 and is one of only two known survivors of the Las Dos Erres massacre He testified about the events he and his family experienced when armed forces carried out an attack on his community 3 67 Richard Burke Thornton Mr Richard Burke Thornton worked as a Visa Officer at the Canadian Consulate General in San Francisco California from July 1984 to July 1988 He testified about the events surrounding Mr Sosa’s application for permanent residence in Canada Page 26 4 68 Mr Brian Casey Mr Casey held the position of Consul and Immigration Program Manager at the Canadian Consulate in San Francisco from August 1987 to the Summer of 1990 He was involved in the processing of Mr Sosa’s application for permanent residence and supervised Mr Thornton who was the junior Visa Officer at the time 5 69 Ryan Christie Mr Ryan Christie a functional specialist with the Immigration Refugees and Citizenship Canada IRCC Information Management team testified about the exhaustive efforts made to locate the paper version of Mr Sosa’s permanent residence application form commonly referred to by its document number “IMM8 ” C Gilberto Jordan 70 In addition to the trial testimony of Mr Pinzón and Mr Cristales the Ministers seek to rely on the sworn testimony of Mr Gilberto Jordan a former member of the Kaibiles who provided evidence in the criminal proceedings before the U S District Court against Mr Sosa in connection with the latter’s acquisition of U S citizenship Mr Jordan testified about his involvement in the Las Dos Erres massacre as well as that of Mr Sosa Jordan Testimony Page 27 71 The Ministers brought a motion in advance of trial pursuant to paragraph 220 1 b of Federal Courts Rules SOR 98-106 Rules seeking an order that the Jordan Testimony be admissible at trial for the truth of its contents 72 In an unreported decision Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness v Jorge Vinicio Sosa Orantes September 26 2024 Ottawa T-503-17 FC I granted the Ministers’ motion in part The transcript of the Jordan Testimony was held to be admissible at trial pursuant to section 23 of the CEA which allows evidence of any proceeding before any court of record in the U S to be tendered as an exhibit at trial by “an exemplification or certified copy of the proceeding or record” without any proof of its authenticity However the Ministers’ request to admit the transcript for the truth of its contents was dismissed as premature given that there is a general reluctance on the part of this Court to determine questions of the admissibility of evidence prior to trial As indicated in Ag v Ritvik Holdings Inc 1998 CanLII 7434 FC at para 18 1998 FCJ No 254 such orders should be “confined to general questions of admissibility rather than the admissibility of evidence where the context of the evidence is required to be assessed ” 73 The Ministers renewed their request to admit the Jordan Testimony for the truth of its contents relying on affidavit evidence and in the context of the entirety of the evidence at trial 74 There is no question that the Jordan Testimony is hearsay It is presumptively inadmissible because of the difficulties inherent in testing the reliability of the declarant’s statement In R v Khelawon 2006 SCC 57 at para 35 Khelawon the Supreme Court of Canada Page 28 explained the importance of live testimony given under oath or affirmation and the purpose behind the exclusionary rule The general exclusionary rule is a recognition of the difficulty for a trier of fact to assess what weight if any is to be given to a statement made by a person who has not been seen or heard and who has not been subject to the test of cross-examination The fear is that untested hearsay evidence may be afforded more weight than it deserves 75 Other concerns with hearsay evidence relate to the declarant’s perception memory narration and sincerity Khelawon at para 2 R v Starr 2000 SCC 40 at para 159 76 The Ministers submit that the Jordan Testimony should be admitted for the truth of its contents as an exception to the hearsay rule because it meets the twin requirements of necessity and reliability as articulated in the decisions of the Supreme Court of Canada in R v Khan 1990 CanLII 77 SCC 1990 2 SCR 531 and R v Smith 1992 CanLII 79 SCC 1992 2 SCR 915 Smith 77 The onus is on the person who seeks to adduce hearsay evidence to establish the two criteria on a balance of probabilities However necessity and reliability are not to be considered in isolation they may intersect and impact upon each other Khelawon at paras 46 and 86 1 78 The necessity requirement The Supreme Court of Canada in Smith citing John Henry Wigmore A Treatise on the Anglo-American System of Evidence in Trials at Common Law vol III 2nd ed Boston Little Brown Co 1923 at para 1421 confirmed that necessity may arise where “the person whose Page 29 assertion is offered may now be dead or out of the jurisdiction or insane or otherwise unavailable for the purpose of testing” or where “we cannot expect again or at this time to get evidence of the same value from the same or other sources ” 79 Circumstances that can give rise to necessity also include where the declarant is outside the compulsion of the court despite reasonable efforts to procure their attendance either because they cannot be found or are outside the jurisdiction of the court Another circumstance is where a witness refuses to testify R v Abdulkadir 2020 ABCA 214 at para 99 That is the case here 80 At the request of Justice Canada Mr Jordan agreed to cooperate and swore an affidavit in 2015 and a further affidavit in 2017 At the time he was incarcerated in a U S federal prison serving a sentence of 10 years after pleading guilty to a charge of “procurement of citizenship or naturalization unlawfully ” 81 Following his release from prison Mr Jordan was deported from the U S to Guatemala to stand trial in Guatemala for crimes including murder and “Delitos Contra los Deberes de Humanidad ” a Guatemalan Criminal Code section incorporating crimes against humanity into domestic law relating to the Las Dos Erres massacre 82 Prior to his deportation in 2020 Mr Jordan communicated through his lawyer that he was no longer willing to assist Justice Canada in this proceeding Despite repeated efforts by the Ministers’ legal team to secure his attendance at trial Mr Jordan refused to provide his contact details and made clear that he would not participate in this proceeding Page 30 83 Mr Jordan’s last known country of residence is Guatemala A witness in Guatemala cannot be compelled to testify in a Canadian proceeding through the issuance of a Canadian subpoena A subpoena has territorial limitations and can only be issued to compel the attendance of a Canadian resident Canadian courts therefore cannot require the attendance of foreign witnesses before them through a process that it cannot enforce 84 This Court’s inability to compel foreign witnesses could be cured by the existence of a valid international convention between Canada and another country which provides for the enforcement of domestic subpoenas by foreign courts However there are currently no international agreements between Canada and Guatemala in relation to the service abroad of judicial documents or the taking of evidence abroad in civil or commercial matters Thus in the absence of a valid treaty between the two countries Guatemala is under no obligation under international law to give effect to Canada’s request for assistance in obtaining the testimony of the Guatemalan witness 85 In Smith Chief Justice Antonio Lamer speaking for the Court referred to the Court’s earlier decision in Khan and discussed the principles of necessity and reliability in the following passages at pages 933–34 of his reasons This Court’s decision in Khan therefore signalled an end to the old categorical approach to the admission of hearsay evidence Hearsay evidence is now admissible on a principled basis the governing principles being the reliability of the evidence and its necessity A few words about these criteria are in order The criterion of “reliability” - or in Wigmore’s terminology the circumstantial guarantee of trustworthiness - is a function of the circumstances under which the statement in question was made If a statement sought to be adduced by way of hearsay evidence is made under circumstances which substantially negate the Page 31 possibility that the declarant was untruthful or mistaken the hearsay evidence may be said to be “reliable” i e a circumstantial guarantee of trustworthiness is established The evidence of the infant complainant in Khan was found to be reliable on this basis The companion criterion of “necessity” refers to the necessity of the hearsay evidence to prove a fact in issue Thus in Khan the infant complainant was found by the trial judge not to be competent to testify herself In this sense hearsay evidence of her statements was necessary in that what she said to her mother could not be adduced through her It was her inability to testify that governed the situation The criterion of necessity however does not have the sense of “necessary to the prosecution’s case” If this were the case uncorroborated hearsay evidence which satisfied the criterion of reliability would be admissible if uncorroborated but might no longer be “necessary” to the prosecution’s case if corroborated by other independent evidence Such an interpretation of the criterion of “necessity” would thus produce the illogical result that uncorroborated hearsay evidence would be admissible but could become inadmissible if corroborated This is not what was intended by this Court’s decision in Khan 86 As stated above the criterion of necessity must be given a flexible definition capable of encompassing diverse situations What these situations will have in common is that the relevant direct evidence is not for a variety of reasons available 87 Based on the concluding paragraphs of the passage to which I have just referred I find that the test of necessity is met here Hearsay evidence will be necessary in circumstances where the declarant is unavailable to testify at trial and where the party is unable to obtain evidence of a similar quality from another source The Ministers have established that Mr Jordan is unwilling to testify despite reasonable efforts to persuade him to attend the trial Even if Mr Jordan’s attendance could be compelled since he is unwilling to testify his presence would not be of assistance to the Court Page 32 88 The Ministers have also established that there are no other means of presenting evidence of a similar quality as that of Mr Jordan from another source Brash v Sims 2024 ONSC 6509 at para 54 All the inhabitants of the village who may have interacted with Mr Sosa the day of the massacre were killed Only three former Kaibiles including Mr Pinzón and Mr Jordan are known to have testified as to their presence and participation at the Las Dos Erres massacre and as to other Kaibiles members who were present and participated Mr Jordan’s prior testimony is the only available means of putting additional unique evidence before the Court 89 The necessity of Mr Jordan’s prior testimony has therefore been established However the more critical question is whether the evidence meets the test of reliability 2 90 The reliability criteria Reliability is concerned with the circumstances under which a hearsay statement is made “Threshold reliability” is met by showing 1 that there is no real concern about whether the statement is true or not because of the circumstances in which it came about substantive reliability or 2 that no real concern arises from the fact that the statement is presented in hearsay form because in the circumstances its truth and accuracy can be sufficiently tested by other means procedural reliability Khelawon at paras 51 63 91 In R v Hawkins 1996 CanLII 154 SCC 3 SCR 1043 Hawkins the Court held that testimony made during a preliminary inquiry will generally satisfy the threshold test of reliability since there are sufficient guarantees of trustworthiness particularly the presence of an oath and the opportunity for contemporaneous cross-examination I recognize that Hawkins involved a Page 33 specific exception to the hearsay rule for the treatment of prior statements made in a Canadian I court context as codified in section 715 of the Criminal Code RSC 1985 c C-46 While the Jordan Testimony was taken in a U S Court paragraph 10 5 5 c of the Citizenship Act provides that for purposes of a declaration of inadmissibility under section 10 5 the Court “is not bound by any legal or technical rules of evidence and may receive and base its decision on any evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances ” 92 I find that Mr Jordan’s testimony which was given under oath and transcribed verbatim has sufficient procedural reliability Mr Jordan was subject to contemporaneous crossexamination at trial where Mr Sosa was represented by counsel The cross-examination was conducted in the context of criminal proceedings where the stakes for Mr Sosa included not only the possibility of future revocation of his U S citizenship but also criminal conviction and consequent lengthy incarceration Although Mr Sosa argued in response to the Ministers’ motion that Mr Jordan “was not sufficiently cross-examined ” a careful reading of the transcripts reveals that there was not only cross-examination but that further cross-examination was permitted showing that Mr Sosa had a full opportunity to challenge Mr Jordan’s testimony 93 I find that Mr Jordan’s past sworn testimony also has sufficient substantive reliability Hearsay statements have been found to be reliable in circumstances where the declarant had no motive to lie where the statement is corroborated by other evidence where there is no reason to doubt the statement and where the traditional dangers associated with hearsay perception memory credibility are not present to any significant degree As explained later in these Page 34 reasons Mr Jordan’s prior testimony corroborates significant points of evidence provided by Mr Pinzón in this proceeding 94 In 2010 Mr Jordan pled guilty to illegal naturalization and served a sentence in the U S In 2013 he testified regarding his own participation in the Las Dos Erres massacre including that he shot and killed civilians and threw them into the village well Mr Sosa’s suggestion that Mr Jordan “may have had a deal … evidenced by his quick departure” and testified “under circumstances that directly led to his safe passage to Guatemala” is speculative and inconsistent with the evidence Mr Jordan received the same length of sentence in the U S as Mr Sosa did on similar charges despite having pled guilty and volunteering to testify against his own interests 95 All of the above indicia of reliability apply to Mr Jordan’s testimony 3 96 Probative value Mr Jordan’s prior testimony has a high probative value as it is directly relevant to proving that Mr Sosa has committed acts that would make him inadmissible to Canada pursuant to section 10 5 of the Citizenship Act It comes from an individual that Mr Sosa admits he served with and its self-incriminatory nature can be taken as a sign of credibility Moreover it is corroborated by the testimonies of Mr Pinzón and Mr Cristales Their evidence is consistent with each other’s accounts and corroborated by documentary evidence expert evidence and the Truth Commission’s findings Page 35 97 Any prejudicial effect on Mr Sosa is minimized in admitting Mr Jordan’s prior testimony given that his then counsel already had a full opportunity to cross-examine Mr Jordan at Mr Sosa’s U S trial on essentially the same allegations that are made against him in the present proceeding It was open to Mr Sosa to present evidence or arguments at this trial as to why Mr Jordan’s testimony ought not to be afforded any weight or should be found unreliable He has chosen not to do so 98 In the absence of any other articulated evidentiary rule that would render the hearsay evidence inadmissible I have concluded that the Jordan Testimony should be admitted for the prima facie truth of its contents VII Issues to be Determined 99 As stated earlier in the introduction the Ministers seek two declarations from the Court 1 a declaration pursuant to section 10 1 of the Citizenship Act that Mr Sosa obtained permanent residence in Canada and by operation of section 10 2 of the Citizenship Act Canadian citizenship by “false representation or fraud or by knowingly concealing material circumstances” Revocation Declaration and 2 a declaration that Mr Sosa is inadmissible to Canada on grounds of violating human or international rights for committing an act outside Canada that constitutes a crime against humanity pursuant to subsection 10 5 1 of the Citizenship Act and paragraph 35 l a of the IRPA Inadmissibility Declaration 100 The effect of a declaration that Mr Sosa obtained citizenship by false representation or fraud or by knowingly concealing material circumstances would be to revoke his Canadian citizenship Citizenship Act s 10 1 3 Page 36 101 A declaration of inadmissibility would be a removal order against Mr Sosa Citizenship Act s 10 5 3 102 With respect to the order of analysis subsections 10 5 4 and 5 of the Citizenship Act provide that the issue of a Revocation Declaration must first be heard and decided before turning to the Inadmissibility Declaration If the former is denied the latter must also be denied If the Revocation Declaration is granted the Court may then consider whether to grant the second declaration 103 Accordingly I will proceed to determine whether Mr Sosa obtained permanent residence by false representation or fraud or by knowingly concealing material circumstances If so the second issue to be answered is whether Mr Sosa is inadmissible to Canada on grounds of violating human or international rights because he committed directly or indirectly an act outside Canada that constitutes a crime against humanity pursuant to paragraph 35 1 a of the IRPA 104 Both declarations sought by the Ministers are to be disposed of in a single judgment s 10 5 6 of the Citizenship Act However as I explain further below each declaration requires the Ministers to prove different facts on two different standards of proof and with two distinct evidentiary standards Page 37 VIII Revocation Declaration A Legal Framework 105 In setting out the legal framework in this proceeding I have borrowed liberally from the Ministers’ written submissions which are detailed and which I accept as accurate 106 The Citizenship Act governs Canadian citizenship and the circumstances in which loss of citizenship may arise Those who obtained Canadian citizenship through false representation have long been subject to having their citizenship revoked Canadian Citizenship Act SC 1946 c 15 s 21 1 b Naturalization Act SC 1914 c 44 s 7 Yves Le Bouthillier Delphine Nakache Citizenship Law in Canada Acquisition and Loss of Citizenship and Citizens’ Rights and Obligations Toronto Ontario Thomson Reuters 2022 pp 3–6 107 In the case of citizenship revocation proceedings relating to war crimes the Supreme Court of Canada has emphasized that society has an interest “of the highest importance” in such proceedings and that such cases implicate “Canada’s reputation as a responsible member in the community of nations” Tobiass at para 109 The Federal Court of Appeal has noted Canada’s policy is to “not become a safe haven for those individuals who have committed war crimes crimes against humanity or any other reprehensible act during times of conflict” Oberlander v Canada Attorney General 2004 FCA 213 at para 28 Page 38 108 The present action was commenced by the Minister of Citizenship and Immigration on April 5 2017 when subsection 10 1 1 of the Citizenship Act Citizenship Act 2017 read as follows Revocation for fraud — declaration of Court Révocation pour fraude — déclaration de la Cour 10 1 1 If the Minister has reasonable grounds to believe that a person obtained retained renounced or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances with respect to a fact described in section 34 35 or 37 of the Immigration and Refugee Protection Act other than a fact that is also described in paragraph 36 1 a or b or 2 a or b of that Act the person’s citizenship or renunciation of citizenship may be revoked only if the Minister seeks a declaration in an action that the Minister commences that the person has obtained retained renounced or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances and the Court makes such a declaration 10 1 1 Si le ministre a des motifs raisonnables de croire que l’acquisition la conservation ou la répudiation de la citoyenneté d’une personne ou sa réintégration dans celle-ci est intervenue par fraude ou au moyen d’une fausse déclaration ou de la dissimulation intentionnelle de faits essentiels — concernant des faits visés à l’un des articles 34 35 et 37 de la Loi sur l’immigration et la protection des réfugiés autre qu’un fait également visé à l’un des alinéas 36 1 a et b et 2 a et b de cette loi — la citoyenneté ou sa répudiation ne peuvent être révoquées que si à la demande du ministre la Cour déclare dans une action intentée par celui-ci que l’acquisition la conservation ou la répudiation de la citoyenneté de la personne ou sa réintégration dans celle-ci est intervenue par fraude ou au moyen d’une fausse déclaration ou de la dissimulation intentionnelle de faits essentiels Page 39 109 After the action was commenced by the Minister of Citizenship and Immigration in 2017 the Citizenship Act including section 10 1 was amended However pursuant to the transition provisions for those amendments actions commenced prior to the amendments which includes the present action are to be “dealt with and disposed of” in accordance with the provision in force on 23 January 2018 which includes the same version of subsection 10 1 1 as set out above 1 No issue of retroactive application 110 Insofar as Mr Sosa’s acquisition of Canadian citizenship is concerned his substantive rights are governed by the citizenship legislation that was in force on June 9 1992 when he obtained his Canadian citizenship Insofar as his prior acquisition of permanent resident status is concerned his substantive rights are governed by the immigration legislation that was in force on May 12 1988 when he obtained his permanent resident status 111 However a declaration pursuant to section 10 1 of the Citizenship Act does not raise any issue of retroactive application which reaches into the past to change the law or its legal effects Rather a section 10 1 declaration applies prospectively since the effects of the declaration are forward-facing only Parliament has expressly legislated for the revocation of citizenship obtained through past false representation fraud or knowing concealment This is evident from the language of section 10 1 itself as well as the transitional provisions An Act to amend the Citizenship Act and to make consequential amendments to another Act SC 2017 c 14 s 19 1 2 Page 40 112 Regardless Mr Sosa has never had any substantive right to retain citizenship obtained by acquiring permanent resident status through false representation At all relevant times including when he applied for permanent residence in 1987 legislation provided for citizenship to be revoked if it was acquired by false representation fraud or knowing concealment or if citizenship was obtained through permanent residency based on false representation fraud or knowing concealment Citizenship Act SC 1974-75-76 c 108 ss 9 17 Citizenship Act ss 10 18 Strengthening Canadian Citizenship Act SC 2014 c 22 s 8 amending s 10 and adding ss 10 1–10 7 2 The Court does not need to find a section 35 fact to revoke citizenship 113 The Ministers submit that the question for the Court to determine for a declaration pursuant to subsection 10 1 of the Citizenship Act is only whether Mr Sosa obtained citizenship by false representation fraud or knowingly concealing material circumstances They maintain that in issuing a revocation declaration this Court does not need to find that “a fact described in section 34 35 or 37 of the IRPA other than a fact that is also described in paragraph 36 1 a or b or 2 a or b of that Act” Section Fact has been proven by the Ministers They say that this is evident from the plain meaning of the statutory language from the context and from the legislative history I agree 114 I am mindful that the Ministers’ position is at odds with the finding of the Court in Canada Citizenship and Immigration v Jozepović 2023 FC 1660 at para 116 Jozepović In that case the Court held that in order to revoke a person’s citizenship “a section 35 fact must be Page 41 proven on a balance of probabilities by the plaintiff at the revocation stage ” With respect I consider this finding to be wrong in law and conclude that it should not be followed 115 In Canada Citizenship and Immigration v Kljajic 2020 FC 570 at para 99 2020 3 FCR 317 Kljajic former Chief Justice Paul Crampton concluded that under subsection 10 1 1 the Minister need only demonstrate “that the person has obtained retained renounced or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances ” see also Canada Citizenship and Immigration v Rogan 2011 FC 1007 at paras 26 430 Rogan While the decision in Kljajic is not binding on me the reasoning is persuasive 116 The finding in Jozepović contradicts the statutory scheme set out in section 10 1 According to the opening language of subsection 10 1 1 it is a condition precedent to being allowed to commence an action before this Court that the Minister have reasonable grounds to believe that a person obtained citizenship by false representation or fraud or by knowingly concealing material circumstances “with respect to a Section Fact ” However this qualifying language is not repeated later in the subsection It instead uses the bare terms “material circumstances” TRANSLATION “de faits essentiels ” 117 If Parliament had intended for the definition of material circumstances to have the same meaning throughout subsection 10 1 1 it could have specified this however it did not do so Later provisions in section 10 1 suggest otherwise Page 42 118 As noted in Kljajic at para 99 “section 10 2 of the Citizenship Act which creates an important presumption for the purposes of subsections 10 1 and 10 1 1 does not refer to sections 34 35 or 36 of the IRPA ” Moreover subsection 10 1 4 as it appeared on April 5 2017 was similarly silent regarding a Section Fact and instead expressly provided that “the Minister need prove only that the person has obtained … citizenship by false representation fraud or by knowingly concealing material circumstances ” 119 The Citizenship Act provides different burdens of proof and evidentiary rules for determining inadmissibility on grounds of violating human or international rights and for revocation of citizenship I agree with the Ministers that it would be absurd to interpret subsection 10 1 1 as requiring the Minister to prove a Section Fact on a balance of probabilities under section 10 1 when subsection 10 5 5 only requires that such facts be proved on the lower standard of reasonable grounds to believe 120 For the above reasons I conclude that a finding by the Minister that there are “reasonable grounds to believe” simply acts as a precursor to seeking relief from the Court under subsection 10 1 1 and has no application to the Court’s decision on revocation 121 While it is not necessary for me to address the matter I would note that the Minister is under no statutory obligation to justify their decision to commence an action within the context of the action itself If a person wishes to challenge the decision their recourse lies elsewhere Page 43 3 Representations relevant to eligibility for refugee status and admissibility 122 In the case of a person acquiring Canadian permanent residence by claiming Convention refugee status any false representation relevant to assessing their eligibility as a Convention refugee or their admissibility would be grounds for citizenship revocation Similarly for the concealment of material circumstances circumstances would be material if they were relevant to the assessment of the applicant’s eligibility as a Convention refugee or their admissibility to Canada Canada Citizenship and Immigration v Rubuga 2015 FC 1073 at paras 22 108–109 123 In the citizenship revocation context this Court held in Rogan a To find that someone “knowingly conceal ed material circumstances” “the Court must find on evidence and or reasonable inference from the evidence that the person concerned concealed circumstances material to the decision whether he knew or did not know that they were material with the intent of misleading the decisionmaker ” para 32 b “A misrepresentation of a material fact includes an untruth the withholding of truthful information or a misleading answer which has the effect of foreclosing or averting further inquiries ” “This is so even if the answer to those inquiries might not turn up any independent ground of deportation ” para 33 c In assessing the materiality of the information concealed regard must be had to the significance of the undisclosed information to the decision in question However “more must be established than a technical transgression Innocent misrepresentations are not to result in the revocation of citizenship ” para 34 d Misrepresentations claimed to be “innocent” must be carefully examined and willful blindness will not be condoned If faced with a situation of doubt an applicant should invariably err on the side of full disclosure para 35 Page 44 4 False representation need only have effect of foreclosing or averting further inquiries 124 This Court’s jurisprudence provides that the Ministers do not have to demonstrate that had Mr Sosa been truthful during the immigration process his application for permanent residence would necessarily have been rejected Rather the Ministers need only show that Mr Sosa gained entry to Canada by false representation fraud or knowingly concealing material circumstances which had the effect of foreclosing or averting further inquiries 5 Mr Sosa’s duty of candour 125 Also relevant to the assessment of whether Mr Sosa obtained citizenship through false representation fraud or knowingly concealing material circumstances is his legal obligation pursuant to the Immigration Act in force at the time of his application to have “answer ed truthfully all questions put to that person by a visa officer ” Immigration Act 1976 1976-77 SC c 52 s 9 3 This duty of candour also arose from the Immigration Regulations of the time which required a permanent resident applicant to proactively disclose to an immigration officer at a port of entry any facts relevant to the issuance of the visa that were not disclosed at the time of the visa’s issue Immigration Regulations 1978 amendment SOR 83-540 s 12 Page 45 B The Evidence 1 Missing IMM8 Form 126 Some time after Mr Sosa’s application for permanent residence was approved in 1988 and when Canada first began searching for it in 2009 his IMM8 form was lost or destroyed Neither the Ministers nor Mr Sosa produced it in this litigation 127 Mr Christie was called to explain what efforts were taken to locate the missing form There is no credibility issue with respect to his evidence 128 Mr Christie testified about the record keeping practices of Canadian consulates in the late 1980s In general the record keeping policies were similar to those used today however their implementation and enforcement were not as strict The policy was for consulates to store all documents related to an approved permanent residence application for a period of about one year 129 Mr Christie noted that some consulates “thinned” the files they kept earlier than the policy contemplated at times retaining only an applicant’s IMM8 form photo and biometrics After one year consulates were to send the permanent residence file via diplomatic bag or secure carrier to the Information Management office in Ottawa which coordinated long-term storage in secured facilities Page 46 130 Mr Christie indicated that the Canadian Consulate in San Francisco would have initially held Mr Sosa’s IMM8 form When the San Francisco office closed in July 1990 all application records were transferred to the Consulate in Los Angeles including Mr Christie believes Mr Sosa’s IMM8 form 131 Mr Christie stated that multiple federal departments including the Canada Border Services Agency Citizenship and Immigration Canada and the Royal Canadian Mounted Police made efforts to locate Mr Sosa’s permanent residence application continuously since early 2009 including searching within IRCC’s archives and repositories making inquiries of the Los Angeles consulate making inquiries of other federal departments including the Canadian Security Intelligence Service and the U S Federal Bureau of Investigation physically searching through the boxes received by Ottawa from Los Angeles and digitizing all of those records so that they could be electronically searched as well “in hopes that we left no stone unturned ” Mr Christie asserted that all possible searches were exhausted 132 Mr Christie explained how despite the missing IMM8 form he was able to determine that Mr Sosa would have completed the 1985 English version of the form IMM8E He looked at applications processed by the San Francisco office in 1987 and was able to identify applications that were completed just before and after Mr Sosa made his application He noted that the applications were all part of the same file series that contained the 1985 version of the form Mr Christie therefore concluded that Mr Sosa would have completed the same form Page 47 2 Canadian immigration officials 133 Since Mr Sosa’s application – specifically the IMM8E form – was not retained the Ministers relied on the testimony of the two Canadian immigration officials at the Canadian Consulate in San Francisco who processed and approved Mr Sosa’s application for permanent residence some time between 1987 and 1988 134 Before summarizing their evidence I pause here to note important context about Mr Sosa’s immigration status prior to making his Canadian application 135 Mr Sosa admits that in May 1985 he made a request to the U S for asylum In that application he disclosed his military past in some detail Mr Sosa didn’t disclose his participation at Las Dos Erres but his military background was central to his U S asylum claim 136 Mr Sosa sought U S asylum on the basis that as a lieutenant of the Guatemalan army he had received death threats from guerilla groups He detailed his military education and employment and indicated his service as an instructor of “Kaibil” counterinsurgency courses He also listed several active combat operations against guerillas that he had participated in or led 137 It is an admitted fact that Mr Sosa’s U S asylum claim was rejected in 1985 He was ordered to leave the U S but he failed to do so Page 48 138 Mr Sosa commenced his application for permanent residence as a Convention refugee in San Francisco at some time before April 1987 He was interviewed by Mr Thornton on several occasions between April 1987 and May 1988 139 At the time Mr Thornton was new in his position In July 1984 he was given his first overseas posting as the Vice Consul for Immigration at the Consulate His main task was to assess permanent residence and temporary visa applications for Canada 140 Mr Thornton testified that refugee applications for permanent residence were uncommon in San Francisco The Consulate received less than three dozen refugee applications in the four years Mr Thornton was posted there 141 Mr Thornton was the sole officer with carriage of Mr Sosa’s application He outlined the standard procedures he undertook to process the application beginning with a paper screening of Mr Sosa’s IMM8E form Since the form signed by Mr Sosa could not be produced Mr Thornton relied on blank copies of the 1982 1985 and 1987 IMM8E form for the purpose of his testimony 142 Mr Thornton explained the standard lines of questioning he would have pursued based on the information provided in the form The form required applicants to provide information about their prior education employment and association with political social or vocational organizations The form also asked applicants to disclose if they have ever been refused a visa or admission to Canada or another country or ordered to leave the same It required applicants to Page 49 acknowledge that any “false statement or concealment of a material fact” may result in their permanent exclusion from Canada and that a “fraudulent entry” on the application could be grounds for prosecution and or deportation Finally the form required an applicant’s solemn declaration that the information provided is “truthful complete and correct ” 143 Upon reviewing Mr Sosa’s form and determining that it disclosed a possible refugee claim Mr Thornton invited him his spouse and their daughter for an interview Mr Thornton testified that during the interview Mr Sosa described himself as a forlorn factory worker who along with two to three of his colleagues in Guatemala challenged their employer on pay issues and work safety conditions Mr Sosa told Mr Thornton that after voicing their concerns some of his colleagues were taken away by authorities causing him to flee with his family from Guatemala to the U S out of fear of political persecution 144 Mr Thornton testified that Mr Sosa’s application was particularly memorable for three reasons First it was his first time processing a refugee claim in an overseas assignment Second Mr Sosa’s demeanour during the interview was particularly striking Mr Thornton remembers that while recounting his story Mr Sosa wept and broke down emotionally Third Mr Thornton stated that Mr Sosa’s story resonated with him He believed that Mr Sosa and his family had suffered significant trauma in Guatemala and required extra care and attention to transition into their new life in Canada He testified that he had multiple interviews with Mr Sosa to explain the sponsorship process and what would happen to him if the sponsorship failed As he explained THORNTON …I wouldn’t normally interview anyone three times or talk to anyone three times but I believe that that was a continuum from this interview that made an impression an indelible impression on me Page 50 145 Mr Thornton testified that he did not recall Mr Sosa disclosing any history of military training or involvement in his IMM8E form or during the interview He conceded that he could not remember specifically asking Mr Sosa about any prior military involvement but maintained that had this information been disclosed it would have become a main line of questioning He explained that prior service training military rank and involvement in armed combat were all factors that would have had a serious impact in his assessment of Mr Sosa’s application as he had a general awareness of the Guatemalan civil war and reports of alleged atrocities being committed by army officers police and other authorities 146 At trial Mr Thornton was shown a copy of Mr Sosa’s 1985 U S asylum application He testified that he was not made aware of the application until recently According to Mr Thornton had he seen the U S application or been aware of the information it contains at the time he processed Mr Sosa’s application he would have handled it differently In particular he would have referred the case to the Canadian Embassy in Guatemala for more information on the country conditions and questioned Mr Sosa extensively on his military background 147 Mr Thornton confirmed that the Consulate in San Francisco would have received an operations memorandum issued by Employment and Immigration Canada in January 1988 stating that as of October 1987 legislative amendments created a new inadmissibility category for persons who there are reasonable grounds to believe have committed a war crime or crime against humanity He added that even before these amendments had come into effect an applicant’s prior military involvement would have been not only relevant but central to his assessment of their permanent residence and refugee eligibility Page 51 148 After concluding his interview with Mr Sosa Mr Thornton determined that he had a wellfounded fear of persecution He directed Mr Sosa and his family to complete their medical examinations and security screenings which were the final steps to approving their applications 149 Once Mr Sosa and his family completed the screenings and made the required arrangements to travel to Lethbridge Alberta Mr Thornton issued an Immigrant Visa and Record of Landing document to Mr Sosa commonly referred to as an “IMM1000 ” He coded the IMM1000 form with the occupation of “Plastic Pack Machine Tender ” Mr Thornton stated that this was an unusually specific coding that corresponded to Mr Sosa’s claim to have been a factory worker THORNTON T his is quite a specific designation and supports my recollection that the account of his persecution that Mr Sosa related to me was related directly to his occupation as a factory worker Q Who decided to put “Plastic Pack Machine Tender” on the form Would that have been Mr Sosa Was that you THORNTON No that was my decision having gone through his employment details at the interview I would have correlated those to the specific occupation in – relevant occupation I would have found it decided it was a significant match and decided that would be the way I would code the visa that would have related to what he told me about his occupational background in Guatemala I cannot recall any other case in my career where I used that particular designation We had other generic designations available to us such as there was one we used quite often called “new worker” So the fact that I was that specific indicates to me that I had very solid and substantial information available to choose that particular coding Page 52 150 Mr Sosa was instructed to take the IMM1000 which Mr Thornton had signed and present it at a port of entry in Canada at which point Mr Sosa would become a permanent resident 151 Mr Thornton testified briefly about the file retention practices of the Canadian Consulate in San Francisco in the 1980s The policy was to keep an applicant’s file which included all submitted documents notes and copies of IMM1000s for two years from the date the application was approved or finalized After two years if there was no further update to a file the practice was to “thin” the file by taking the IMM8 form out to be sent to storage and destroying the rest of the documents in the file by burning them 152 Mr Casey testified that most of this work was performed by Mr Thornton who reported to him Immediately prior to his posting in San Francisco Mr Casey had an overseas assignment in Bogotá Colombia 153 Mr Casey had a high regional awareness of the events in South and Central America in the 1980s due to his recent posting in Bogotá He testified that he was aware of the civil war in Guatemala and the possible atrocities and war crimes being committed by actors in the conflict He said that had his office received an application which detailed an individual’s involvement in active combat as a member of the Guatemalan military it would have been a notable case and he would have expected to be made aware of it 154 Mr Sosa claims as follows in an “Affidavit of Facts” declared July 9 2017 Page 53 I declare and confirm that between 1986 to 1988 I had interviews with the Honorable Canadian Consul Mr Brian T Casey in San Francisco California in the United States The meetings focused in my application for permanent admission to Canada which are in the consulate letters dated Monday April 27 1987 Monday May 18 1987 Tuesday February 2 1988 All interviews were scheduled at 2 30 p m In order to apply for my political asylum I have to follow a procedure which was to write a statement of my political persecution from the guerrillas forces due to the fact that I was a member of the Guatemala military The first statement request was denied After a period of time I re-applied with another statement reinforcing it with the violence and risk of my life and my family because the civil war in Guatemala The second statement was approved then I had to follow several meetings with the Honorable Consul Mr Casey where I again confirmed my membership with the Guatemala army The Canadian Consul stated in a letter dated May 11 1987 that there was a private organization established in Edmonton Alberta that might be interested for helping my family and I to establish in such area but they refused because they were from the left-wing group established in Canada as refugees Then I had a second interview with the Canadian Consul where again I disclosed my military membership including that I was a Kaibil from the Guatemala Special Forces We discussed the situation of if the Kaibil was a ‘Killing machine’ I told him that it was not true We are human beings like any one else with a heart and mind but with a better military training our mission was to protect the sovereignty and freedom of Guatemala- I always respected Guatemalan people all the way because my martial arts training and military procedures At the end the Canadian Consul told me “Mr Sosa you will be a good citizen of Canada I guarantee ” 155 Mr Casey testified that he did not have a specific recollection of Mr Sosa’s application although many of the documents on file were signed by him Nor did he recall ever interviewing Mr Sosa although he conceded that it was possible he met him briefly at the office in San Francisco Page 54 156 Mr Casey testified he only became aware of Mr Sosa’s 1985 U S asylum application recently but was not surprised it was refused He stated that had the Canadian Consulate received an application which disclosed the same Guatemalan military background and involvement in active combat as set out in the U S application he would have expected anyone with responsibility for the file to refuse the application Mr Casey added that had he known about Mr Sosa’s military involvement he would not have signed the final visa approval letter on May 4 1988 C Factual and Legal Findings 157 Based on Mr Christie’s evidence which I accept I am satisfied that a meticulous and diligent search was conducted to locate Mr Sosa’s IMM8E It would appear that Mr Sosa’s IMM8E was discarded inadvertently when files were stripped down to core documents and moved for archival purposes in the late 80s There is no concern of spoliation of evidence and therefore nothing to support drawing a negative inference from the Ministers’ failure to produce the document 158 I find based on the evidence before me that the form used by Mr Sosa when he applied for permanent residence back in 1987 was more than likely the English version of the 1985 IMM8 form 159 While the absence of Mr Sosa’s immigration application form is certainly unfortunate it does not preclude a finding of false representation Canada Minister of Citizenship and Immigration v Oberlander 2000 CanLII 14968 at paras 126 211 In fact even where no notes Page 55 exist from an interview logical inferences can be drawn from the evidence Canada Minister of Citizenship and Immigration v Furman 2006 FC 993 at para 170 Reasonable inferences based on all the evidence of the circumstances even without direct evidence can be the basis for “crucial findings” as to whether an individual knowingly concealed material circumstances on the balance of probabilities Canada Citizenship and Immigration v Odynsky 2001 FCT 138 at para 189 160 In this case no inferences need be drawn The Ministers were able to locate and produce two extremely reliable and credible witnesses who could testify about the processing of Mr Sosa’s application almost 40 years ago Mr Thornton and Mr Casey came across as highly intelligent dedicated and unbiased public servants I find that they were at all times doing their best to provide the Court with an accurate recitation of the events as they recalled them 161 Mr Thornton had a clear recollection of the sequence of events surrounding Mr Sosa’s application for permanent residence and his interactions with him and for good reason As Mr Thornton explained the circumstances surrounding the application were quite memorable for him Refugee claims were very uncommon in San Francisco at the time and it was his first time processing a refugee claim in an overseas assignment He was particularly struck by Mr Sosa’s demeanour during an interview Mr Thornton recalled that Mr Sosa began to weep and broke down emotionally when telling his story of persecution as a factory worker The detailed story of persecution stood out to Mr Thornton He believed that Mr Sosa and his family had suffered significant trauma in Guatemala and required extra care and attention to transition into their new Page 56 life in Canada I find Mr Thornton’s evidence which is corroborated by contemporaneous documents to be highly credible and reliable 162 Mr Casey was less certain regarding his recollection of the events This is of course not surprising given that Mr Casey did not deal directly with Mr Sosa and he was required to oversee a high volume of immigration files over the course of his lengthy career His memory had to be refreshed on occasion by reviewing documents put to him Despite the frailties of his memory he was able to explain the circumstances surrounding documents he signed and other documents found on Mr Sosa’s immigration file He could speak clearly about the Canadian permanent residence application process and practices and his knowledge at the time of the conflict in Guatemala and the issue of suspected war criminals or perpetrators of crimes against humanity attempting to gain Canadian immigration status 163 The evidence at trial shows that the defence asserted by Mr Sosa in his Amended Statement of Defence – that he did not lie in his Canadian refugee application – and his claims asserted in his unsworn affidavit lack credibility 164 First there is no evidence to support Mr Sosa’s bare assertion made in the Amended Statement of Defence Secondly the allegation that there was a discussion with Mr Casey about the Kaibiles not being a “killing machine” was rejected by Mr Casey who denied any such interaction It defies common sense that Mr Casey would have learned such information and then not have seriously questioned Mr Sosa’s eligibility for asylum Moreover given that Mr Casey Page 57 was not yet stationed in San Francisco for the first alleged interactions Mr Sosa’s allegations are clearly false 165 I have no reason to doubt Mr Casey’s credibility or the reliability of his evidence 166 Based on the uncontroverted evidence of Mr Thornton and Mr Casey I am satisfied on a balance of probabilities that Mr Sosa knowingly concealed his military history in the Guatemalan army concocted a fake education and work history and made up a sham asylum claim when he applied for permanent residence at the Canadian Consulate in San Francisco in 1987 I find that the false information Mr Sosa provided had the effect of foreclosing and averting further inquiries that Mr Thornton and Mr Casey would have pursued had they known about his military background and that this had a material bearing on the assessment of his application Let me explain how I reached these conclusions 167 On the IMM8E form Mr Sosa was required to provide details of his education and his work history for the previous ten years He also had to solemnly declare before a visa officer that the information was truthful complete and correct and that he made the solemn declaration conscientiously believing it to be true 168 Mr Sosa has admitted in this proceeding to receiving a military education in Guatemala in the 1970s at the Politécnica military school and being employed as a member of the Guatemalan military from the 1970s to 1985 He did not have any other occupation during this period Page 58 169 While Mr Sosa’s completed IMM8E form is not in evidence both Mr Thornton and Mr Casey were consistent in their testimony that had Mr Sosa’s military background been reported on the form his permanent residence application would have been handled in a vastly different manner I find their evidence completely credible in this regard 170 The IMM8E form was the basis upon which Mr Thornton prepared his questions for his interview with Mr Sosa He stated that had Mr Sosa’s military history been disclosed it would have raised a red flag and caused for more extensive questions to be asked inquiries to be made with the Canadian Embassy in Guatemala and potentially a different decision rendered In the same vein Mr Casey testified that had he known about Mr Sosa’s military involvement he would not have signed the final visa approval letter on May 4 1988 This is simply common sense 171 Both officers were aware of the ongoing conflict in Guatemala and that there was a military dictator in power and that the state military was committing massive human rights abuses across the country They were also keenly aware of their responsibility to be attuned to potential war criminals applying for Canadian immigration status The evidence before me is that they did not abdicate their responsibilities and did not cut corners In the end the two of them were completely misled by the false information provided by Mr Sosa 172 The evidence at trial shows that Mr Thornton and Mr Casey had no idea of the information in Mr Sosa’s 1985 US asylum application when his Canadian application was being processed Since Mr Sosa was facing imminent deportation from the U S he was no doubt Page 59 highly motivated to come up with a different education and work history and different refugee claim story than the one that had failed in his U S asylum claim I am satisfied that this is exactly what he did to avert further inquiries 173 This is corroborated by the fact that Mr Thornton inserted the unusually specific intended occupation of “plastic pack machine tender” on Mr Sosa’s IMM1000 form The form in question was completed contemporaneously with the processing of Mr Sosa’s application The entry gives credence to Mr Thornton’s testimony that he was trying to find an occupation corresponding to the story Mr Sosa gave of being a politically persecuted factory worker in Guatemala It is inconceivable that a visa officer would confuse a military officer position with that of a factory worker I find that Mr Sosa did not disclose his military background in his IMM8E or at any time in his dealings with Mr Thornton This includes the fact that he was an officer of the Guatemalan army who had been engaged in active combat roles and had been part of a special forces patrol 174 The concealed facts at issue were material – Mr Thornton and Mr Casey’s evidence is that they would have handled Mr Sosa’s file very differently and with far more scrutiny had they been aware of his position as a sub-lieutenant in the Guatemalan army According to Mr Thornton this detail would have been “central” to his assessment of Mr Sosa’s application Ultimately knowledge of the concealed facts would have either led to Mr Sosa’s application being rejected as his U S application was or Canadian government officials would have conducted further inquiries Page 60 D Conclusion 175 Far from being a technical transgression or an innocent misrepresentation it has been clearly established that Mr Sosa by false representations and by knowingly concealing material circumstances deceived Canadian immigration officials throughout the permanent residence application process and obtained citizenship by fraud 176 Canada’s immigration system is built on trust At its core lies a simple but powerful principle tell the truth As a practical matter applicants are expected to know that providing false or misleading information whether intentional or accidental can lead to significant negative outcomes This is made clear by the explicit warning in the IMM8E form that Mr Sosa was required to complete and sign that states I understand that any false statements or concealment of a material fact may result in my permanent exclusion from Canada and even though I should be admitted to Canada for permanent residence a fraudulent entry on this application could be grounds for my prosecution and or deportation 177 For the reasons set out above the Revocation Declaration is granted under section 10 1 1 of the Citizenship Act 2017 with the effect of revoking Mr Sosa’s Canadian citizenship acquired through the permanent resident status he obtained in 1988 see Citizenship Act 2017 ss 10 1 3 10 2 Page 61 IX Inadmissibility Declaration 178 Having concluded that a declaration pursuant to section 10 1 of the Citizenship Act revoking Mr Sosa’s citizenship should be granted I now proceed to consider whether to make a declaration of inadmissibility pursuant to section 10 5 A Legislative framework and standard of proof 179 On October 25 2017 the Statement of Claim was amended to add the Minister of Public Safety and Emergency Preparedness as a Plaintiff and to request a declaration of inadmissibility pursuant to section 10 5 At that time section 10 5 of the Citizenship Act 2017 provided 10 5 1 On the request of the Minister of Public Safety and Emergency Preparedness the Minister shall in the originating document that commences an action under subsection 10 1 1 seek a declaration that the person who is the subject of the action is inadmissible on security grounds on grounds of violating human or international rights or on grounds of organized criminality under respectively subsection 34 1 paragraph 35 1 a or b or subsection 37 1 of the Immigration and Refugee Protection Act 10 5 1 À la requête du ministre de la Sécurité publique et de la Protection civile le ministre demande dans l’acte introductif d’instance de l’action intentée en vertu du paragraphe 10 1 1 que la personne soit déclarée interdite de territoire pour raison de sécurité pour atteinte aux droits humains ou internationaux ou pour criminalité organisée au titre respectivement du paragraphe 34 1 des alinéas 35 1 a ou b ou du paragraphe 37 1 de la Loi sur l’immigration et la protection des réfugiés 180 The Citizenship Act has since been amended but the amendments do not affect this action Page 62 181 An action seeking an inadmissibility declaration under paragraph 35 1 a of the IRPA pursuant to section 10 5 of the Citizenship Act requires the Ministers to establish that there are reasonable grounds to believe that Mr Sosa committed an act outside of Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act SC 2000 c 24 ss 4–7 CAHWC Act 182 Section 6 of the CAHWC Act in force since 2000 defines the offence of “crimes against humanity” when committed outside of Canada as follows crime against humanity crime contre l’humanité means murder extermination enslavement deportation imprisonment torture sexual violence persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group and that at the time and in the place of its commission constitutes a crime against humanity according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations whether or not it constitutes a contravention of the law in force at the time and in the place of its commission Meurtre extermination réduction en esclavage déportation emprisonnement torture violence sexuelle persécution ou autre fait — acte ou omission — inhumain d’une part commis contre une population civile ou un groupe identifiable de personnes et d’autre part qui constitue au moment et au lieu de la perpétration un crime contre l’humanité selon le droit international coutumier ou le droit international conventionnel ou en raison de son caractère criminel d’après les principes généraux de droit reconnus par l’ensemble des nations qu’il constitue ou non une transgression du droit en vigueur à ce moment et dans ce lieu Page 63 183 I agree with the Ministers that since a declaration of inadmissibility pursuant to section 10 5 is made following a revocation of citizenship pursuant to section 10 1 it is determined based on the law on inadmissibility at the time of the declaration If there are reasonable grounds to believe that Mr Sosa’s acts meet the definition of crimes against humanity in the CAHWC Act which encompasses that the act “constitutes a crime against humanity according to customary international law … at the time and in the place of its commission ” then Mr Sosa is to be declared inadmissible 184 Paragraph 10 5 5 a of the Citizenship Act stipulates that the standard of proof for this issue is the “reasonable grounds to believe” standard Specifically it states that the Court “shall assess the facts — whether acts or omissions — alleged in support of the declaration on the basis of reasonable grounds to believe that they have occurred ” The Supreme Court has confirmed that the “reasonable grounds to believe” standard requires “more than mere suspicion but less than … a balance of probabilities ” Mugesera v Canada Minister of Citizenship and Immigration 2005 SCC 40 at para 114 Mugesera 185 In addition paragraph 10 5 5 c provides that the Court “is not bound by any legal or technical rules of evidence and may receive and base its decision on any evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances ” B The Evidence 186 The Ministers rely on the expert evidence of Dr Oglesby General Robles and Ms Doyle to establish that Mr Sosa’s actions leading up to and during the military operation in Las Dos Page 64 Erres were part of a widespread and systematic attack by the Guatemalan military against civilian populations in the early 1980s Their expert reports are exceptionally thorough welldocumented and well-supported All three experts testified in an objective way to assist the Court in understanding interpreting and assessing historical documents in their context I have no reason to question the experts’ credibility nor any hesitation in accepting their opinion evidence 1 The Truth Commission Report 187 There is no dispute between the parties that an internal armed conflict took place in Guatemala from the early 1960s to 1996 The country was led by a series of military leaders who at first sought to quell the spread of communism and later devolved into violent counterinsurgency strategy against an “internal enemy” perceived to oppose the established order By 1994 the internal armed conflict in Guatemala began to wind down and in June of that year the first of the Peace Accords was signed creating the Truth Commission 188 The Truth Commission’s mandate was to clarify the history of what occurred during the Guatemalan armed conflict which it did through an official report in numerous volumes Truth Commission Report It was signed by the Guatemalan government and the leaders of the insurgency and was administered by the United Nations Office of Project Services UNOPS 189 Dr Oglesby participated in the investigation phase of the Truth Commission’s work and was involved in writing its report She considered the Truth Commission Report as authoritative and adopted it as part of her opinion Ms Doyle also worked with the Truth Commission She described the report as “not only a sort of a touchstone for … scholarly work Page 65 on the armed conflict ” but also as “an extraordinary document 12 volumes beautifully written deeply researched ” I conclude that the value the experts placed on the report is well-founded 190 The Truth Commission made extensive inquiries into the atrocities and human rights violations that occurred during the conflict and its report provided a detailed historical account and analysis of those atrocities The Truth Commission Report estimates that 160 000 people were killed and 40 000 were disappeared over the course of the armed conflict The vast majority of victims were civilians 191 The Truth Commission Report concludes that there were 12 massacres carried out in the department of Petén making it the eighth highest of Guatemala’s 22 departments in terms of number of known massacres Three of these massacres were extensively documented 1 the massacre in the village of Los Josefinos in April 1982 where government forces killed an estimated 28 adults and 14 children 2 the massacre in Las Dos Erres in December 1982 and 3 the massacre in the La Técnica cooperative occurring days after the Las Dos Erres massacre in which Kaibil forces kidnapped and killed seven people 2 Expert Evidence of Dr Oglesby 192 From 1986 to 1990 Dr Oglesby conducted substantive research in approximately 40 rural villages where massacres had taken place in 1981-1982 in the Guatemalan departments of El Quiché Alta Verapaz and Huehuetenango She conducted more than 350 interviews with survivors as well as 80 semi-structured interviews with Guatemalan civilian and military officials during this period in Guatemala City and various towns throughout the country She Page 66 also reviewed key Guatemalan military documents from the early 1980s The portions of the report she drafted were based on her review of declassified documents Guatemalan military campaign plans and the testimonies of hundreds of survivors 193 According to Dr Oglesby a salient characteristic of the conflict was the high level of civilian deaths perpetrated by agents of the Guatemalan state The attacks against civilians were carried out pursuant to a military doctrine of “annihilation of the internal enemy ” 194 The patterns of violence to which civilians were subjected included indiscriminate killings forced displacement the destruction of villages and ongoing attacks against civilians even after the massacres 195 Dr Oglesby explained that although the roots of the Guatemalan internal armed conflict began as early as the U S -sponsored military coup against President Jacobo Árbenz in 1954 attacks against civilians intensified in the 1980s In June 1981 in an escalation that lasted for the next 18 months the military embarked on a much more systematic attack to take control over entire rural regions particularly in northern Guatemala The Truth Commission referred to this as the start of the military’s “scorched earth” campaign whereby soldiers destroyed houses crops and entire villages in addition to committing indiscriminate massacres Troops were deployed in a pincer operation beginning in the central highlands and moving simultaneously northwest and northeast and then closing in to drive the guerrillas toward Mexico along with tens of thousands of civilian refugees Page 67 196 Land conflicts had been increasing in Petén since the 1960s By the early 1980s the presence of the Rebel Armed Forces Fuerzas Armadas Rebeldes FAR in the Petén region combined with the social context of land conflicts led the military in its “Victory ‘82” and “Firmness ‘83” military campaign plans to label Petén as a priority zone in the counterinsurgency war Along with the western highlands this meant that the military intended to pursue “total” war in the region of Petén that is not only against the armed insurgents but also against those it viewed as the insurgents’ civilian sympathizers 197 The Guatemalan government’s focus on developing consolidated and rational countersubversive operations began when General Ríos Montt came into power through a military coup on March 23 1982 As Dr Oglesby explained there was a surge of resources to military zones identified as priority in Victoria ‘82 The plan also created “rapid deployment forces” from different branches of the armed forces designed to go into conflict zones to carry out specific operations 198 Dr Oglesby testified at length about a Countersubversive Warfare Manual Manual de Guerra Contrasubversiva CW Manual which outlines the Guatemalan military’s general doctrine and strategy in its counterinsurgency countersubversive warfare 199 The CW Manual discusses an “internal enemy ” which it defines as individuals groups or organizations that seek to disrupt the established order through illegal actions including groups that may not be explicitly communist or identify themselves as communist The label of Page 68 “internal enemy” applied to any individual or organization that was in political opposition to the Guatemalan government but not necessarily engaged in armed combat 200 The definition of countersubversive warfare in the CW Manual states that “ i n short countersubversive warfare seeks to prevent the development of any subversive movement and to annihilate it ” This definition is but one example of the “annihilation” language used by the military in its doctrine and strategy 201 Dr Oglesby testified that the CW Manual sets out three distinct phases of the “countersubversive struggle” 1 the prevention period protection 2 the intervention period response and 3 the consolidation period pacification or return to normality 202 According to Dr Oglesby it is at the response stage that the military struggled for territory and initiated its scorched earth campaign throughout large areas of the country This is when the massacres forced displacements destruction of villages and permanent military occupations occurred The CW Manual explicitly states that … in the event of an abnormal situation a state of siege is declared in the affected area so that the use of force against the subversive movement can be authorized … declaring a state of siege removes many obstacles especially of a moral and psychological nature among the countersubversive forces since the more tangible the danger is in the area the more acceptable repressive measures will be 203 The CW Manual sets out three types of zones on a map of Guatemala red pink and white Red zones are where the most intensive countersubversive operations were to be conducted It states that Page 69 o nce a red zone has been selected … and a state of siege has been declared the intervention will consist of the following steps 1 Destruction or expulsion of the armed subversive elements 2 Establishment of territorial control forces 3 Establishment of contact with the population and monitoring of their movements in order to disrupt relations with the guerillas 4 Destruction of the local political-administrative organization 204 The term “guerillas” refers to armed subversive elements while “political-administrative organization” is a civilian population’s community organization 205 The military’s intervention in red zones included psychological operations to keep the population’s support and maintain the air of a threat 206 To demonstrate that the army considered the internal enemy to include at least some portions of the civilian population Dr Oglesby referred to a section of the CW Manual which states that operations against guerilla forces “must include appropriate action against clandestine support they receive from the population without which the guerilla forces cannot operate ” It further elaborates “ a ll actions aimed at eliminating the support of the population for guerilla forces must be carried out with determination Government forces must identify which elements of the civilian population are supporting the guerrilla forces ” 207 As reflected in the Victoria ‘82 campaign plan the military’s doctrine and strategy also targeted “local clandestine committees” comités clandestinos locales CCL These CCLs were comprised of non-combat civilians The plan also refers to “local irregular forces” fuerzas irregulars locales FIL a group the army believed were unarmed civilian supporters of the Page 70 guerillas who provided logistical support and resources to the insurgent forces Victoria ‘82 called for the destruction of both the CCL and the FIL 208 Dr Oglesby described the massacre at the village of San Francisco Nentón The army first surrounded the community then separated the population by gender into different buildings There was sexual violence against women and girls before all but one person in the village was eliminated She then proceeded to describe the events of April 3 1982 in the village of Chel Quiché Soldiers arrived early in the morning surrounded the village and separated the population by gender into different community buildings There was sexual violence against women and girls The population was brought to a bridge at the entrance to the village and the men were shot The women were attacked with machetes The soldiers killed the children by throwing them over the bridge and onto the boulders below Two children survived one with grave and permanent injuries Two weeks after the massacre soldiers returned to kill the villagers who had been hiding in the mountains and returned to bury their dead Dr Oglesby stated that another massacre took place in Los Encuentros where soldiers methodically killed 79 people in May 1982 209 Based on her analysis of the Truth Commission Report Dr Oglesby was of the opinion that there were over 600 documented rural massacres 95% of which were committed by Guatemalan government forces Page 71 210 Dr Oglesby analyzed the repetition of destructive actions carried out by the military against civilians In her opinion there was a pattern by which the massacres were carried out that demonstrated a meticulous planning and execution As she explained a Massacres typically began at times intended to surprise the population soldiers would arrive in the pre-dawn hours or on Sundays when the population would already be gathered b Soldiers surrounded the village and gathered the population together c The population was divided by gender into different buildings men separate from the women and children d Sexual violence usually occurred once the population was separated e The population was then “slaughtered ” with extreme cruelty against even the most vulnerable f After the massacre the village was burned and the livestock and animals killed and pillaged g Sometimes operations would occur over several days with soldiers taking breaks in between steps 211 According to Dr Oglesby these patterns demonstrate that the attacks against civilians between 1981 and 1983 were not excesses they were methodically planned and executed in accordance with a military doctrine and strategy Specifically their logic was laid out in the CW Manual Plan Victoria ‘82 and Plan Firmness ‘83 which gave instructions on how to implement strategies of control over territory and population Page 72 212 In Dr Oglesby’s opinion what occurred in Las Dos Erres on December 7 1982 is consistent with what occurred in massacres against civilian populations in other regions of Guatemala during the same time period 3 Expert Evidence of General Robles 213 General Robles provided an expert report dated November 14 2024 entitled “Military Expert Report ‘Structure and Counter-insurgent Operations of the Guatemala Army in the Internal Armed Conflict Participation of its Units in the Dos Erres Massacre in El Petén – Guatemala ’” 214 General Robles studied the Guatemalan military doctrine during the armed conflict including how operations were carried out and its planning at the political strategic and operational levels He has acted as a special witness for the Guatemalan Attorney General’s office concerning several massacres and assassinations in Guatemala and testified as an expert witness in Guatemalan courts 215 General Robles provided a chronology of the key events which led to the development and implementation of the Guatemalan military’s national strategy between 1982 and 1983 a March 23 1982 General Ríos Montt’s coup d’etat to become the President of a self-declared Military Government Junta JMG b April 1 1982 New military government issues its political-strategic plan the “National Security and Development Plan ” Page 73 c April 27 1982 New military government enacts the Fundamental Government Statute through which it assumes the executive and legislative functions of the state d June 9 1982 General Ríos Montt dissolves the JMG and declares himself President of the Republic and Commanding General of the Guatemalan Army attributing to himself the executive and legislative functions e June 16 1982 Launch of counterinsurgency campaign plan Victoria ‘82 f July 1 1982 State of siege is declared and General Ríos Montt orders an increase of armed forces and the partial mobilization of the army to annihilate subversive forces General Order 18-82 g Mid-July to Mid-August 1982 Implementation of plan Victoria ‘82 in the Quiché region via operations set out in Plan Sofía h 1983 Launch of counterinsurgency campaign plans Firmness ‘83 and Firmness 831 216 General Robles explained that the Guatemalan military’s counterinsurgency policy abided by the Doctrine of National Security a US-supported doctrine used to combat international communism and its entry to Latin America Pursuant to this doctrine the army in each country was to suppress “the enemy within ” Page 74 217 In 1956 the new Political Constitution of the Republic of Guatemala declared communism to be an “internal enemy ” and as stated by General Robles “the army’s mission was to destroy it ” This remained in effect in subsequent constitutions including in 1985 218 General Robles explained that the military’s definition of “internal enemy” became increasingly broad in the 1970s and 1980s Initially it was seen as including members of the Communist Party With time it encompassed any collaborators sympathizers or supporters of the ideology as well as any political adversaries seen as enemies of the state 219 General Robles noted that the definition of “internal enemy” in the CW Manual was not restricted to members of guerilla organizations but included people who for any reason were not in favour of the established regime It read as follows Internal enemy is constituted by all those individuals groups or organizations that through illegal actions try to break the established order The internal enemy is represented by the elements that following slogans of international communism develop the so-called “Revolutionary War” and subversion in the country It is important to keep in mind that those individuals groups and organizations that without being communists try to break the established order 220 He opined that in plan Victoria ‘82 the arbitrary concept of the internal enemy could have been used to classify trade unions associations cooperatives and even the Catholic church as “mass revolutionary organizations ” 221 General Robles explained that with the implementation of the U S Doctrine of National Security the Guatemalan military reached a “peak” in its operational forces and intelligence in Page 75 1982 As reflected in plan Victoria ‘82 the military relied on the Kaibil patrol Civil SelfDefence Patrols PAC and other “creative organizations ” 222 The Kaibil patrol comprised of officer instructors and sub-instructors from the Kaibil school were used as strategic sub-units in special operations authorized by orders of the Army General Staff These special operations required specifically trained personnel those who were “bold courageous strong ” and had the ability to endure 223 According to General Robles the Kaibiles operated in accordance with “normal operating procedures ” meaning the routine patterns of actions which did not need to be included in the general orders sent down to the patrol because they were already known as standard steps to be taken 224 The Kaibil special patrol fell under the “special command” category of the Guatemalan military’s hierarchical organization It was authorized to act reported to and received its orders from the General Army Staff In 1982 General Hector Mario Lopez Fuentes was the Chief of General Staff of the armed forces and together with General Ríos Montt who was both President and Minister of Defence comprised the “High Command ” 225 Prior to General Ríos Montt’s 1982 military coup counterinsurgency strategies were decentralized based in Guatemala’s various regions However after 1982 operational plans were developed by the High Command at the national level In this way plan Victoria ‘82 represented Page 76 a new centralized type of planning which made it possible for the military to succeed over the insurgent forces 226 General Robles testified that by declaring a state of siege in 1982 the Guatemalan government was able to suspend or curtail the constitutional rights of the entire population Furthermore the General Staff of the Guatemalan army was able to make key changes to the Kaibiles’ operations namely suspending courses and creating a strategic combat patrol 227 General Robles opined that the counterinsurgency power strategy applied a “systematic use of terror” far removed from international rules of war human values and legality The state responded to “terrorist or subversive acts” with its own acts of terror such as accusing anyone of being an “enemy within ” leading to fatal consequences for that individual Troops acted with “total violence ” with the knowledge that they would have state support Civilians were victims caught in the middle of subversive and state terrorism 228 The so called “state terrorism” was carried out in a unified and controlled manner by the military police paramilitary bodies security and intelligence services etc This was made possible by the combination of a centralized power in the High Command and the functional autonomy of individual forces in 1982-1983 229 Although campaign plan Victoria ‘82 never directed the army to terrorize civilians General Robles said that this is what occurred in practice – murder and the burning of villages The army did not comply with the code of conduct towards the civil population The code was in Page 77 fact ignored in Firmness ‘83 which specifically mentioned burning fields and the scorched earth strategy In General Robles’s view this progression between plans shows how things changed over the course of the year 230 General Robles testified that while Kaibiles would not have received or been directly familiar with plan Victoria ‘82 they would have been aware of the counterinsurgency strategy of annihilation and of the concept of an internal enemy because the operational plans under which they operated were pursuant to the dictates of Victoria ‘82 231 Victoria ‘82 stipulated that the “mission of all patrols” included “1 To annihilate capture and harass the enemy 2 To obtain information and report it on time and correctly 3 To prevent access by guerilla groups to the civilian population 4 To gain the people’s support for the Government and the Army ” These were part of the standing orders given to the various military zones which would cause their operational units to actualize the mission through aggressive actions to locate guerillas and destroy any connections they had to the civilians who were supporting them 232 The CW Manual specifies rigidly controlling and doling out severe administrative measures to populations that “collaborate with the guerilla forces ” It also employs strict control measures to sever the close relationship between civilians and the subversive forces such as where necessary “relocat ing the entire population from some sites ” The manual contemplates that operations against subversive units would be carried out by “small unit actions ” such as the Kaibil patrol Page 78 233 In General Robles’s opinion a Kaibil instructor and officer would have been informed of the strategy and instructions set out in the CW Manual both at the Politécnica and Kaibil schools The Kaibiles’ specialty was countersubversive warfare Therefore a Kaibil officer would have known about the CW Manual’s steps for conducting an incursion against subversives including where deemed necessary “police-type operations” and “repressive measures” against women children and the ill within the civilian population He testified that it was probable that a Kaibil officer would have known in 1982 that the army’s counterinsurgency strategy involved violence against civilians 234 When asked whether he found credible Mr Sosa’ claim that in December 1982 he was performing duties as a liaison officer in villages including providing schools with materials and sports equipment General Robles responded bluntly “it is absurd” and continued as follows A No it is not credible No Army in Latin America and in Guatemala as well would invest so much so that -- in their soldiers to have them just distribute or supply sport materials in a red zone Q Is it credible that a Kaibil Officer in 1982 would have had no involvement in counterinsurgency combat operations A Absolutely incredible It is not possible because they have been trained specifically for these kind of operations and no Army can waste budget or resources training for this type of use No Army can afford to have had this training for its soldiers and then use them for a different task They are all trained for this purpose 235 According to General Robles plan Victoria ‘82 permitted and facilitated the Kaibiles’ intervention in Las Dos Erres because it made provisions for the resources required for the operation such as vehicles and weapons He described the operation at Las Dos Erres as an “incursion ” which the CW Manual specifically defines as a surprise attack on an enemy unit Page 79 followed by withdrawal once the mission is complete Las Dos Erres would have been considered an “enemy unit” or a unit with subversive forces in it because it was categorized as a red zone 236 General Robles noted that the way that the Kaibil patrol organized itself into a command attack support and security group each led by a Kaibil officer fit within the typical structure dictated for military operations The nearby Las Cruces detachment had also set up roadblocks to prevent victims from escaping Las Dos Erres and prevent others from coming to their aid The use of roadblocks was also a common part of the military’s methods and systems at the time 237 Consistent with the system of orders and intelligence flow in 1982 the Kaibiles’ weapons recovery mission in Las Dos Erres would have been ordered by the Army General Staff When the incursion did not lead to the weapons’ recovery the army still engaged in actions of punishment and terror which ultimately came to be known as the Las Dos Erres Massacre 238 General Robles concluded that the Kaibiles’ operation in Las Dos Erres was planned ordered and from a military standpoint efficient due to its coordination However the mission could not ultimately be considered a military victory the rifles were never recovered and the operation caused increasing horror in the general population’s sentiment towards the state 4 Expert Evidence of Ms Doyle 239 Ms Doyle’s report analyzes several declassified Guatemalan and U S documents concerning the counterinsurgency campaign and conflict that took place in Guatemala with a Page 80 particular focus on the Las Dos Erres Massacre and the investigation of the massacre over time In addition to her Freedom of Information Act requests to obtain declassified U S documents Guatemalan records were obtained in limited circumstances by the Truth Commission and general orders were leaked to journalists and have since been affirmed as authentic by Guatemalan courts Between 1997-1999 Ms Doyle would directly receive leaked documents due to her work with the Truth Commission 240 According to Ms Doyle the U S helped engineer a coup of the democratically elected Guatemalan President Jacobo Árbenz in 1954 This was part of a broad U S anti-communism policy Over the following 30 years the U S provided millions of dollars of weapons equipment training intelligence and technological support to Guatemala This lasted into the late 1970s and early 1980s when the U S Congress and President Jimmy Carter prohibited direct military assistance but permitted continued intelligence support until the mid-1990s when the Guatemalan government and insurgent organizations signed the Peace Accords 241 Echoing General Robles Ms Doyle noted that the U S was the architect of the Guatemalan military’s anti-communist National Security Doctrine Guatemala was one of many Latin American countries to adopt such a doctrine 242 In 1994 Ms Doyle learned that the U S government was involved in some manner with the Guatemalan military in its counterinsurgency project Before the final Peace Accord was signed in 1996 she began to file Freedom of Information Act requests with U S federal agencies Page 81 243 By the time the Truth Commission was established Ms Doyle had collected a “critical mass” of declassified documents concerning the armed conflict the role of the armed forces and police and specific human rights concerns She offered to assist the Truth Commission in its investigation by providing it with a curated collection of documents 244 Ms Doyle explained that the existence of the Kaibiles and the nature of their activities is well-documented both in the Truth Commission Report which drew on interviews with former members and in declassified U S documents she obtained which describe them as a special operations strategic unit The Kaibiles also appear regularly in the Guatemalan military’s general orders which documented the movements of officers between different units around the country 245 A U S Military Intelligence Summary on Latin America issued in December 1980 describes the Guatemalan army as having no special forces-type units but notes that the armed forces “operate a kaibil ranger training center ” that “ e ach infantry battalion has a kaibil platoon which may be deployed as a separate small unit ” and that these platoons “are used as cadre for training other conscripts in insurgency and counterinsurgency techniques and tactics ” Ms Doyle confirmed that the Kaibiles would have been perceived as having special training in violent confrontations and counterinsurgency 246 Ms Doyle testified that the Las Dos Erres massacre came at the “tail end” of the most intensive phase of the army’s counterinsurgency strategy after hundreds of massacres had already occurred throughout Guatemala In her opinion the Las Dos Erres massacre fits into the military’s pattern of using mass murder as a counterinsurgency policy and instrument Page 82 247 Ms Doyle highlighted one possible reason that the Guatemalan army targeted Las Dos Erres its refusal to join a PAC According to Ms Doyle the villagers’ refusal to form a PAC angered the army commander in nearby Las Cruces Lieutenant Carlos Carias who began to spread a rumor that Las Dos Erres was a guerilla stronghold This may have been the reason why the village was blamed for the guerilla ambush in Palestina which caused the death of around 19 soldiers and theft of around 21 rifles The exact number of deceased soldiers and stolen rifles differ slightly between the Truth Commission Report and declassified U S documents that Ms Doyle obtained 248 The records obtained by Ms Doyle show that prior to the Las Dos Erres Massacre there were around 250-350 inhabitants There are only a handful of known survivors from the massacre including one of the Ministers’ fact witnesses Mr Cristales The documents reflect the U S investigation of a rumored massacre at Las Dos Erres and the information it obtained which led the investigators to conclude that the village had been “wiped out ” most likely by army forces 249 A declassified report authored by the U S State Department’s Bureau of Intelligence and Research dated March 3 1983 discusses the Guatemalan military’s counterinsurgency strategy as being guided by General Ríos Montt’s “Rifle and Beans Policy ” It describes the policy as rewarding those who support the government with good work and housing assistance and meeting those who oppose the government with force The report also discusses the classifications of various villages as white pink and red zones based on their level of allegiance Page 83 Residents of red villages “were warned to move to ‘strategic villages’ or face the consequences when army operations were conducted in the area ” 250 Another section of the report attempts to allocate blame for the devastating effects of the internal armed conflict on the population between the government and the insurgency groups Under the heading “Both Sides Have Engaged in Massacres ” it says “ a llegations that the army has regularly massacred every man woman and child in ‘red’ villages are countless ” It finds that many of these countless reports are fabricated but concedes that “government responsibility for at least two such incidents is well established ” The report references the army’s massacre of 70 civilians in September 1982 near La Estancia de la Virgen in Chimaltenango as well as the Las Dos Erres Massacre where “troops killed every one of the several hundred inhabitants of the region …” 251 Further portions of the report summarise the operations and threat levels of several guerilla groups in Guatemala one being the FAR who operated in the Petén region The FAR was described as the most dangerous group posing the greatest threat to the government 252 The report describes the FAR’s ambush of Guatemalan troops in October 1982 when it killed 19 troops and stole some Galil rifles It states that “ s hortly after the attack the army responded by burning the homes and crops of two nearby villages for their support of FAR activities The FAR retaliated with an attack on a neighboring village The army’s massacre of the people of Los Dos R’s came shortly thereafter ” Page 84 253 The report further states that An important aspect of the government’s recent program has been its emphasis on combatting the latent insurgency created by government and societal abuses of the population If similar progress is to be made in El Peten the army will have to prevent incidents like the one at Los Dos R’s In that instance even CDF members who had demonstrated their loyalty to the government were slaughtered Such incidents outrageous enough in the abstract are particularly unwise … 254 Ms Doyle analyzed a secret cable from the U S Embassy in Guatemala to the State Department dated December 28 1982 three weeks after the Las Dos Erres Massacre Its subject line is “Alleged Massacre of 200 at Village of Dos R’s ” The cable states that a reliable Embassy source relayed second- and third-hand information on a possible army massacre of 200 villagers in “Los Dos R’s ” Petén Department The people of Las Cruces told the Embassy source that on the evening of December 12 an army unit disguised as guerillas entered Las Dos Erres gathered the villagers and demanded food While the Embassy’s source was not clear on what occurred thereafter the people of Las Cruces told him that the army returned again after December 12 to take roofing and furniture back to the army base and that the village was completely deserted No one claimed to have seen any bodies 255 The cable further discusses three theories about the incident at Las Dos Erres 1 the army arrested all the villagers and took them to the jungle 2 the army took the men to the army base in Poptún and the women and children to the base in San Benito or 3 the army killed everyone in the village dumped them into the well and covered the well over The third theory was based on the word of people who went into Las Dos Erres and discovered the well was covered over The cable also notes the prevailing rumor that the army was suspicious of the Page 85 people of Las Dos Erres ever since guerillas attacked the army at Palestina six months prior The cable advises that given “the seriousness of the allegation that the army massacred 200 people and because of the reliability of this source’s information in the past ” an Embassy Officer would fly over the area on December 30 to investigate 256 The Embassy reported on the results of its investigation in another secret cable dated December 31 1982 The subject of the cable is “Possible Massacre in ‘Dos R’s’ El Peten ” It relays that on December 30 three mission members and a country diplomat visited Poptún and Las Cruces in Petén It describes Las Dos Erres as a group of scattered houses not even a village or a hamlet The cable report says that some 200-500 people had lived in Las Dos Erres although no one was sure about the exact number 257 Upon flying over Las Dos Erres the mission members found that it was deserted and many of the houses were “razed or destroyed by fire ” The helicopter pilot who was a reserve officer in the Guatemalan air force refused to touch down in Las Dos Erres but the mission members could tell there was no sign of life when they flew low over the area 258 Guatemalan army officials told them the area near Las Cruces was exceptionally dangerous because of recent guerilla activity including ambushes of army patrols and that guerillas had “taken the people away in early December ” The Mayor in Las Cruces called what happened at Las Dos Erres a “mystery ” However a civil defense member and confidant of the army in Las Cruces told a mission member that it was the army who was responsible for the disappearance of the villagers The source was apparently told to stay out of the area on a certain Page 86 day because the army “was going to sweep through and ‘clean out’ the area ” The source said that the army did indeed sweep through the area in civilian clothing carrying Galil rifles The cable notes that this information is consistent with rumors in the area 259 The cable further states that “ t here was a definite atmosphere of fear in Las Cruces The local army Commander a Lieutenant was no where to be found ” It opines that it “is somewhat difficult to believe that the disappearance and possible liquidation of hundreds of people so close to Las Cruces could remain a ‘mystery’ for weeks ” 260 The cable concludes that “the settlement called ‘Dos R’s’ in El Peten has been wiped out ” It states that based on the information reported and on-site observations made on December 30 “the Embassy must conclude that the party most likely responsible for this incident is the Guatemalan army ” 261 The findings of the U S Embassy’s December 31 secret cable are also reflected in a January 4 1983 confidential cable from the Canadian Embassy in Guatemala to Ottawa’s “External Affairs” department 262 Ms Doyle notes that in 1994 the Association of Family Members of the Detained and Disappeared of Guatemala Asociación de Familiares Detenidos-Desaparecidos de Guatemala FAMDEGUA began to investigate several major human rights crimes including the Las Dos Erres massacre and obtained a judge’s order to allow an Argentine forensic team to start an Page 87 exhumation This was the first step in what the organization hoped would be a full investigation A proper investigation would not begin until six or seven years later 263 When the Argentine forensic team began its work in 1994 it was only able to sustain its investigation for one year According to declassified U S documents this was due to the hostile environment created by the Guatemalan government which sent its military members dressed in civilian clothes to monitor photograph and harass the team Another reason it was difficult to sustain the exhumation work was a lack of finances While FAMDEGUA was able to obtain a court order it had no government funds to support the investigation 264 In April 2000 the offices of the Inter-American Commission facilitated a “friendly agreement” between the Archbishop’s Office for Human Rights and FAMDEGUA on the one hand and the government of Guatemala on the other Friendly Agreement In the Friendly Agreement the government accepted institutional responsibility “for the events that took place between December 6 and 8 1982 in the hamlet of Dos Erres village of Las Cruces situated in the municipality of La Libertad department of Petén … where members of the Guatemalan Army massacred approximately 300 persons … men children the elderly and women ” The government also took responsibility for the delay in investigating the massacre and agreed to among other things conduct “a serious and effective investigation culminating in a criminal trial to individually identify and punish those responsible for the massacre both direct perpetrators and masterminds ” Page 88 265 On March 29 2000 a Guatemalan judge issued arrest warrants for several Kaibiles members connected to the death of approximately 350 individuals in Las Dos Erres including Mr Sosa 266 On April 6 2000 the National Civil Police received an official telegram directing it to immediately proceed with the arrest or apprehension of named individuals linked to the Las Dos Erres Massacre including Mr Sosa 267 Guatemala’s Public Prosecutor’s Office Ministerio Público compiled a list in May 2002 naming persons implicated in the “crime” committed at Las Dos Erres According to Ms Doyle the list was sent to the Department of Justice in the U S to find and presumably arrest these individuals Once again the named individuals include Mr Sosa 268 Ms Doyle also referenced the Inter-American Court’s November 2009 judgment on the Las Dos Erres massacre The judgment was the result of petitioners’ efforts to have the Guatemalan government finally comply with the Friendly Agreement it had signed The judgment in effect ordered the government to uphold its commitments from the Friendly Agreement 269 The Inter-American Court’s judgment prompted the continuation of the exhumation work that was initially commenced by the Argentine forensic team this time by the Forensic Anthropology Foundation of Guatemala FAFG FAFG’s exhumation work in 2010 was in effect the third exhumation of the human remains which the Argentine forensic team had re- Page 89 interred in a mass grave at Las Cruces following their first two exhumations in 1994 and 1995 FAFG’s initial report catalogued the recovery of many fragments of human bones 270 During her testimony Ms Doyle reviewed a number of the death certificates that were issued in 1995 and 1998 to the victims of the Las Dos Erres Massacre The certificates note the date of death as December 7 1982 Some certificates name known residents of the village while others simply indicate “XX XX” as the name of the deceased The ages of the deceased range from 11 months to 50 years old The cause of death most commonly indicated is “firearm projectile injuries ” 271 Ms Doyle also reviewed a ballistics expert report dated September 19 1996 It lists findings of several types of fragmented and corroded projectiles and cartridges which can be fired by Galil M16 and AR-15 firearms Ms Doyle noted that the discovery of this ballistic material is not what one would expect from a village of agricultural workers who were not part of a PAC unless a violent episode involving weapons took place there 5 Expert Evidence of Dr Turner 272 Dr Turner provided an expert report dated September 2 2020 entitled “Forensic Anthropology Investigation on Las 2 RR Massacre Guatemala 1994–1995 ” The report is based on her original 1995 Spanish archaeological report following the exhumation she conducted at Las Dos Erres sections of the 1995 report were co-authored with colleagues The 1995 report has been referenced by international organizations such as the Untied Nations and the InterAmerican Commission Her report is well documented thorough objective and internally Page 90 consistent in every respect There are no issues as to Dr Turner’s credibility and I accept her evidence unconditionally 273 Dr Turner has been working for the FAFG since 1988 She was with the team when it received a request from FAMDEGUA in 1994 to visit Las Dos Erres and verify the existence of human remains She was part of the group that conducted an archaeological excavation at Las Dos Erres in 1994 and 1995 While she had around six years of experience prior to the excavation at Las Dos Erres it was the first instance in which she had to exhume children 274 The excavation was conducted in two parts First the team took a preliminary trip in 1994 to verify the information they were provided and plan for a bigger mission in 1995 275 Human remains from the Las Dos Erres Massacre were discovered in three different sites 1 the well at Las Dos Erres 2 Los Salazares 30-minute walk from the well and 3 La Aguada 1 hour and 30 minute walk from the well 276 The 1995 investigative team created the following map to show where the three sites were situated relative to one another Page 91 A i • 1 200 277 As reflected on the map the area where all three sites are located were indicated as the “2 RR” area According to Dr Turner this is because there was no longer a town or village that existed there when they arrived 278 A minimum of 162 skeletons were found at Site One Exhumation at this site was difficult due to environmental conditions and because by 1994 a tree was growing inside of the well as shown in a photo taken by Dr Turner 279 The well was two meters wide at surface level and 90 cm wide at its base When exhuming bodies from the well Dr Turner’s team started from the top of the well and worked towards the bottom assigning each of the remains a number The remains assigned greater numbers were found towards the bottom of the well Children under 12 years old tended to be found towards the bottom of the well while adult males were mainly located at the top On this Page 92 basis she determined that the women and children were thrown into the well first The following is her depiction of the structure and contents of the well as it was found DATUM R IHT - -------2 f5m - - - -- • 2 00 rn LE l L I 6 00ra 6 00m - - - - - - _ _ 8 20m LevEl m 280 The sketch shows that level one is comprised of soil while levels two and four are comprised of skeletal remains separated by little more than a meter of earth and soil at level three Dr Turner said the soil at level three was not “natural soil ” it was softer than normal In her opinion this would suggest that soil was added to the well in between the bodies that were thrown in Page 93 281 Given the technology available to the team in 1995 it was not possible to establish a date for the remains at the site Therefore the team examined the other evidence associated with the remains including clothing From the pockets of the clothing found they recovered coins dated 1977 and 1978 as well as a calendar dated 1982 From this it became apparent that the remains were buried sometime after 1978 and not before 1982 282 Dr Turner discovered bullets in the well which coincided with markings on skulls and long bones related to bullet trajectories A laboratory report reflects that green marks on skull fragments with circular fractures were associated with a projectile suggesting injury caused by gunshot wound 283 Certain remains typically those of male adults had ropes associated at the cervical neck level and the ankles When asked about any evidence of blunt force trauma to the head Dr Turner advised that in the majority of cases the skulls were fractured Although it was sometimes difficult the team tried to differentiate between premortem fractures during a person’s life perimortem fractures around the moment of death and postmortem fractures after death Dr Turner found that in most cases injuries or fractures may have occurred when people fell into the well or from other undetermined causes Analyzing the injuries was difficult owing to the poor preservation of the remains 284 Towards the top of the well the team located the remains and clothing of a skeleton identified as the remains of a child around nine years old Because it was located near the top of the well it was more complete than others The fractures found on the bones of this skeleton Page 94 were typical of postmortem damage Dr Turner explained that where there is a lot of postmortem damage it is difficult to identify perimortem injuries 285 Dr Turner concluded that the well was used to dispose of the bodies found inside and that this was not a cultural practice of any kind she was aware of She further determined the well was a mass common grave and the “primary site ” meaning that it was the first place that the bodies were deposited She was able to deduce that the well was a primary site due to the anatomical positions of the remains when they were discovered 286 Dr Turner’s report provides a chart with an age and sex distribution of all skeletons found at the well The total number of children under 12 years of age is 67 The remains of the youngest child found at the well is around two months old The sex of the skeletal remains could not be determined for the children because indicating features would not yet have developed 287 A minimum of three skeletons were found at Site Two La Aguada which is a strip of land covered with wild plants A minimum of four skeletons were found at Site Three Los Salazares which is a dry watering hole 288 These were “secondary superficial sites ” meaning the remains found were moved by the environment climate and animals and were therefore not in anatomical position Page 95 289 The team was able to identify “concentrations” of remains and associated evidence at the sites Eighteen concentrations or “sets of remains ” were found in Site Two and 14 were found in Site Three 290 The team found many long bones at Site Three While the remains were poorly preserved they recovered more long bones because they are stronger and better able to withstand environmental degradation Nevertheless they also discovered some skulls 291 In addition to disarticulated bones the team discovered another calendar in the pocket of some clothing found at Site Three Similar to the calendar found at Site One this calendar was for the years 1981 1982 292 Finally Dr Turner’s team recovered a spent shell at Site Three which was consistent with an Israeli-made Galil rifle 6 Mr Pinzón 293 Mr Pinzón was one of the Kaibiles present at the Las Dos Erres Massacre He testified about his years of experience working at the Kaibiles school as a cook and steward He explained that he had multiple interactions with Mr Sosa at the Kaibiles school and that he knew him well 294 The Kaibil school was a training school built to prepare students to be the best combatants against guerilla forces in Guatemala There were around 40-45 soldiers students at Page 96 any given time coming from different military zones throughout the country Typically Kaibil students wore a camouflage uniform and military boots 295 Not all students would graduate from the Kaibil course only around 10-15 Many were injured and others died in the course of the survival training Mr Pinzón testified that he enrolled in the course but was unable to complete more than 15 days Beyond his own experience in the course he would often hear from the instructors and sub-instructors about how the classes were being run He would also observe the classes as they were held 296 The Kaibil course was known to be the toughest The school’s creed or motto was “If I advance follow me If I stop urge me on If I retreat kill me Kaibil ” Mr Pinzón also recalled the school’s “decalog ” and although he could not recite its precise words he believed part of it included something along the lines of “I am a Kaibil I belong to the Attack or Strike Forces We have the strength of two tigers We are a killing machine ” When asked what was meant by the term “killing machine ” he explained that a Kaibil soldier could kill a member of their own family without a care Students were being trained to develop a willingness to kill 297 In addition to forced marches obstacle races and courses on navigation swimming and survival Kaibil students were taught to capture then torture and or kill the guerillas they encountered Students received specific training on torture techniques 298 Mr Pinzón testified that Mr Sosa was among the instructors who taught the class on torture The torture lessons took place in classrooms and in a practice area known as the “zombie Page 97 area ” where students learned to torture kill and bury prisoners When Mr Pinzón was invited to bring food to the zombie area one day in 1981 he observed the torture class himself – he saw a prisoner being injected with a formaldehyde substance He also observed people being suffocated with plastic bags shocked with car batteries and having their fingernails pulled He believed the torture methods being taught were intended to be used against the guerillas While Mr Pinzón observed the captives being tortured and suggested that they never left the school because they were killed he could not confirm that they killed on Mr Sosa’s orders 299 Mr Pinzón testified that he recalls a meeting in mid-1982 during which the Director of the Kaibiles school announced the closing of the school and the creation of a Kaibiles special combat patrol He understood that the purpose of the patrol was to form a mobile unit that could engage in combat against the guerillas At that time the Kaibiles school stopped operating as a school and was used as a military detachment Mr Pinzón testified that Mr Sosa was in charge of the school from around August through to at least September 1982 300 Mr Pinzón testified that after initially staying back at the school both he and Mr Sosa joined the Kaibiles special patrol in September-October 1982 In Mr Pinzón’s first two months with the patrol they were flown to areas where there was supposed guerilla activity although they would not find any guerillas upon arrival Nevertheless when the group would come across an individual while on patrol they would capture torture and kill them Those captured were threatened with death so that they would tell “the truth ” and those deemed untruthful would be hung among other things Page 98 301 When questioned about what “truth” the patrol was seeking from the individuals it captured tortured and killed Mr Pinzón said they were looking for information about the location of the guerillas’ weapons arms commanders or “mates ” He further stated that upon joining the patrol in mid-October of 1982 Mr Sosa “a l ways wanted to be there Anywhere the patrol went he wanted to be there Or more exactly he had to be there ” 302 In December 1982 the patrol including Mr Sosa was flown by military plane to the Santa Elena air base where at a meeting they were informed that they were being sent to Las Dos Erres to recover 21 rifles They were told to wear civilian clothing to confuse the villagers 303 Mr Pinzón testified that the whole patrol travelled together to Las Dos Erres with Mr Sosa being fourth in command of the group The Kaibiles were divided into four groups before they got to Las Dos Erres a command group a support group a strike group asalto and a security group each with an officer in charge He testified that Mr Sosa led the security group 304 The Kaibil patrol joined by a platoon of 40 other Kaibiles from the Poptún base left Santa Elena for Las Dos Erres at around 10 00 PM on December 6 1982 They travelled using two civilian trucks and arrived in Las Cruces at around 1 00 AM 305 The Kaibiles relied on a guide to get to Las Dos Erres and used mountain trails since they did not want the community to be aware of their presence The Kaibiles were armed with R-15s and Galil rifles and arrived at Las Dos Erres at 3 00 AM Page 99 306 Mr Pinzón stated that they dragged all the villagers from their homes Women and children were taken to the church and men were taken to a little school The villagers did not resist 307 At about midday the patrol officers informed the commanding officer Lieutenant Rivera Martínez that no weapons had been found following a search They were then instructed to eat Mr Pinzón recalled seeing a group of women making them tortillas and noticed they were crying He testified that he did not know why they would have been crying 308 After the group finished eating at around 1 30 PM Rivera Martínez was communicating with a radio operator Mr Pinzón did not know what they spoke about However he overheard the officers’ ensuing conversation and gathered that they did not agree with a “great error” an officer had committed namely raping a girl from the village 309 Mr Pinzón heard an order being delivered by the radio operator to Rivera Martínez but he could not say what the order was because operators spoke in coded language Rivera Martínez communicated the order to the group – “to execute ” meaning to start killing the villagers of Las Dos Erres 310 At around 2 00 PM Mr Pinzón observed Mr Jordan carrying a baby perhaps two months old who he threw into the village well It was unclear to him whether this occurred before or after the order from Rivera Martínez to begin executing the villagers Page 100 311 The Kaibiles began to drag blindfolded women and children to the well Mr Sosa was stationed at the well along with other officers Mr Pinzón dragged a girl about ten years old to the well He saw that she was crying and asked her why She asked him what the Kaibiles were going to do to her – he told her they were going to give her a vaccine Mr Pinzón witnessed another officer drag her behind some nearby bushes to rape her before bringing her back to the well to hit her over the head with a sledgehammer 312 The villagers were dragged to the well to be hit over the head with one sledgehammer that the Kaibiles passed around After being hit with the sledgehammer villagers were thrown into the well According to Mr Pinzón the officers were ordering the sub-instructors to do this 313 One man who was dragged to the well slipped upon arrival causing his blindfold to come loose When he saw what was going on the man asked them “why don’t you kill me all at once ” Mr Sosa responded “you motherfucker ” Mr Pinzón saw Mr Sosa take a rifle and shoot towards the man who was at this point already in the well He also saw Mr Sosa throw a grenade into the well where it exploded 314 After Mr Sosa threw the grenade inside the well the officers began to laugh at what he did Mr Pinzón heard Mr Sosa instruct soldiers to bring more people to the well and throw them in The process of dragging villagers to the well executing them and throwing them in lasted from 2 00 PM to 5 30 PM By the end all villagers who had been rounded up had been killed The bodies of the deceased reached the top of the well The Kaibiles covered the well with earth and dirt to hide the bodies Page 101 315 The next day December 8 the entire Kaibil patrol was mobilized to go elsewhere Again they took the foot trail through the mountain accompanied by the guide two boys aged around 3 to 4 years old and two girls aged 10 to 12 years old Mr Pinzón was put in charge of one of the girls However an officer took her from him stating “ i t is Lieutenant Rivera’s time ” Mr Pinzón said he did not know why the girl was taken but that both girls were later killed about 40-50 metres away from the group Mr Pinzón observed the girls’ bodies afterwards Their throats were slit but they were still breathing when he saw them He noticed they had on no undergarments He covered them with some branches and leaves and left them there 316 According to Mr Pinzón the group journeyed on walking for 15-20 days Those they encountered along their path were captured and tortured for information 317 The Kaibil patrol was eventually met by a helicopter which they boarded along with the two young boys they found in Las Dos Erres The helicopter transported them to the Santa Elena base 318 Mr Pinzón stated that he was motivated to testify and speak up about the events to prevent another atrocity like Las Dos Erres happening to his children and that he did not agree with the killing of so many innocent people Mr Pinzón stated that he did not intervene in the killings that took place because he would have been killed if he had done so He stated that he assisted with FAMDEGUA’s investigation and the criminal trials against the perpetrators of the Las Dos Erres massacre and that he did so voluntarily Page 102 319 I find Mr Pinzón to be credible in his testimony On the whole his account of his service with the Kaibiles working under Mr Sosa and of the events that took place during the Las Dos Erres massacre is consistent with the evidence of Mr Cristales Mr Jordan and the expert witnesses He struck me as a person still haunted by the brutal and appalling events that took place in Las Dos Erres This may explain why at times he professed ignorance of certain facts or downplayed his role in the crimes committed by the Kaibiles I do not find that this impacted his overall credibility 320 Mr Pinzón did not attempt to exonerate himself from acts of torture and killing he himself committed He testified as a witness voluntarily despite implicating himself in serious crimes Mr Pinzón provided deeply personal reasons for speaking out He testified that after he left the army he heard in the news in 1993 that there was an organization representing victims that was looking into the Las Dos Erres matter Mr Pinzón explained that he decided to meet with the FAMDEGUA out of concerns for his family’s future He went on to testify at several criminal trials before the Guatemalan courts against fellow soldiers 321 Mr Sosa submitted in his closing submissions that Mr Pinzón is a “false witness ” He claims that Mr Pinzón “collaborated” with FAMDEGUA and provided false evidence “to unjustly include him in this case a claim that is without merit ” He claims that Mr Pinzón’s testimony was dismissed as false by the Guatemalan Court in November 2023 He also claims that Mr Pinzón received $500 and free lodging for himself and his family for his testimony before the U S District Court insinuating without stating that Mr Pinzón was paid off to wrongly implicate him in various crimes None of these allegations stand up under scrutiny Page 103 322 First there is no evidence that Mr Pinzón was induced in any way by FAMDEGUA to provide false evidence against Mr Sosa Second Mr Sosa cannot point to any finding by the Guatemalan Court that Mr Pinzón provided false testimony Quite the opposite the evidence of Mr Pinzón has been accepted by the Guatemalan courts in several criminal trials arising from the Las Dos Erres massacre In 2018 his evidence was given probative value by the Guatemalan criminal court in the trial of Santos Lopez Alonzo who was found guilty on counts of murder and crimes against “the duties of mankind ” Mr Pinzón’s evidence was used to make several key findings of fact about the events leading up to and during the attack at Las Dos Erres Third the fact that Mr Pinzón was paid conduct money by the prosecution – a standard practice that consists of defraying travelling and living expenses of a witness as well as a witness fee for daily attendance – is immaterial and does not call into question his credibility or the reliability and trustworthiness of his evidence 7 323 Mr Cristales Mr Cristales testified that he was a young boy of five and half years in December 1982 He has light eyes which he describes as being “hazel ” He says they are remarkable among those of Guatemalan ethnicity who tend to have brown eyes 324 He remembers Las Dos Erres as a rural green landscape inhabited by a farming community Besides the small wood houses there was a church and school in the village He lived there with his mother Petrona his father Victor and his five siblings He recalled his youngest sibling a sister was around two months old at the time of the massacre While he could not say precisely he believes he was the fourth child in his family Page 104 325 Mr Cristales could not remember the month in which the Las Dos Erres massacre occurred but he knew his mother was already preparing for Christmas He guessed it would have been in December 326 He described how armed men entered his family’s home in the middle of the night and beat his father and tied his and his older brother’s hands behind them He described the men taking his family to the centre of the village and separating them – his father and older brother were taken to the school and he and his younger siblings were placed in the church with his mother 327 He described being surrounded by all the other women and children of the village in the church who were crying and scared He described what he could hear and see from the church which included men screaming nearby in the school He explained how the women were then dragged by armed men out of the church 328 The armed men dragged the women out of the church by their hair and although he did not know the word at the time Mr Cristales now understands that the women were raped 329 Eventually the armed men came for his mother He and his brothers grabbed onto her legs but the men dragged her outside of the church by her hair After the men returned him back to the church he ran to the back of the building – where he saw through either a window or the spaces between the wooden slats – that his mother was being taken to a tree He saw a man take Page 105 his youngest sister from his mother’s arms grab her by the legs and smash her against the tree He began to cry and could hear his mom begging for her children’s lives 330 His mother was then taken further back until she was beyond his line of sight He fell asleep under the bench of the church and when he woke up the church was empty except for himself and two other boys neither his siblings Two men took the three children out of the church and around the back of the building Mr Cristales walked past the tree where his twomonth-old sister was killed and all the way to the village well He could see that there were “bodies all over ” 331 The boys were then walked away from the well He saw bodies hanging from the trees The men asked the boys if they knew anyone who was hanging from the trees Mr Cristales saw his brother and father hanging there but answered “no ” because he was scared he would be killed if he admitted to recognizing them 332 Mr Cristales described what happened to him after the massacre including his “adoption” by one of the Kaibiles soldiers his difficult life and the abuse he experienced at his hands Mr Cristales then discussed how he joined the Guatemalan military to escape this man which occurred following the signing of the Guatemalan peace accords in 1996 Prompted by advocacy groups for families who had lost loved ones during Guatemala’s armed conflict investigations began by prosecutors with the Attorney General of Guatemala into the disappearances and massacres including the one at Las Dos Erres Mr Cristales was approached by FAMDEGUA and the prosecutor to ascertain whether he was one of the children who had survived the Page 106 massacre at Las Dos Erres He described the steps taken to ensure his safety and his eventual move to Canada where he received refugee status in 1999 333 I find Mr Cristales to be a credible witness His evidence while bearing certain frailties given his young age at the time of the massacre and the passage of time since remains largely consistent with Mr Pinzón’s account It is also consistent with the evidence of the Ministers’ expert witnesses 334 Mr Cristales testified that he was tired and fell asleep numerous times while being held captive in the village church with his mother By his own admission he only remembers snippets of the events Mr Cristales was nevertheless able to describe vividly and with great clarity the beating and brutal murders of his mother and baby sister an impactful event that was no doubt seared into his memory His account of his kidnapping at the hands of the Kaibiles and his “adoption” by one of the officers is also corroborated by Mr Pinzón 335 I am satisfied that Mr Cristales had no motive to lie about what happened and who was responsible but was instead determined to bear witness for his family members who could no longer speak for themselves 8 Jordan Testimony 336 The Jordan Testimony is largely consistent with the evidence of both Mr Pinzón and Mr Cristales their corroboration leads me to find it to be ultimately reliable Page 107 337 Mr Jordan joined the Guatemalan military in 1973 at the age of 16 After serving on the Guatemalan president’s security detail he joined the Kaibil school in 1982 He described the Kaibiles as “a group of special forces” which only the best Guatemalan soldiers had the capacity to join more than half of those who tried did not make the cut 338 When Mr Jordan arrived at the Kaibil school in 1982 he found it was already closed He then went to the department of Quetzaltenango to meet the Kaibil instructors and sub-instructors When asked about Mr Sosa in particular Mr Jordan said he first met him in Quetzaltenango and that he was known for his special skills in martial arts 339 In early December 1982 Mr Jordan was deployed with the Kaibil patrol to the Santa Elena airport in Petén Like Mr Pinzón Mr Jordan recalled that there were four officers in charge of the patrol at the time including Mr Sosa 340 After one week in Santa Elena the patrol left for the military base in Poptún where they met a platoon of 40 additional Kaibil soldiers From Poptún they boarded trucks to carry out a mission in Las Dos Erres 341 There are a few minor differences and inconsistencies in the testimony of Mr Jordan and Mr Pinzón’s regarding how the events subsequently unfolded While Mr Jordan did not recall the date of the mission he stated that they were dropped off at Las Dos Erres Mr Pinzón for his part testified they disembarked in Las Cruces and then travelled by foot into the village Mr Jordan said they arrived in Las Dos Erres late in the evening “almost night” whereas Mr Pinzón Page 108 testified they arrived in the early hours of the morning However I find that these discrepancies fall within the realm of the frailties of the imperfect human memory In my view they are minor and not material In the end there is no dispute between the two that they arrived late at the village and that some villagers were laying down when they were removed from the homes 342 The patrol was told their mission in Las Dos Erres was to search for and recover military weapons that had been stolen by guerilla soldiers Mr Jordan understood that if they encountered guerillas they were to combat them and kill them if needed 343 Upon entering the village Mr Jordan was armed with a high-powered rifle grenades and his machete among other things He and the other Kaibiles were ready for war that night However when they entered Las Dos Erres they encountered no resistance 344 Mr Jordan recalled knocking on doors taking people out of their homes and searching for weapons Villagers were taken to a school and a church the men were separated from the women and children 345 According to Mr Jordan part way through the operation in Las Dos Erres the Kaibiles’ mission changed He observed Rivera Martínez becoming angry about something that an officer had done and discussing it with several officers including Mr Sosa After this Mr Jordan said the mission became to “kill all the people ” Page 109 346 The first villager Mr Jordan grabbed was a child He remembered the child was a boy of around three years old because that was the age of his own son at the time Mr Jordan states that he cried as he took the boy to the well thinking about his son When they arrived at the well Mr Sosa saw Mr Jordan crying and said that this was a “job for men ” Mr Jordan then threw the boy into the well 347 The next person Mr Jordan took to the well was a woman around 30 years old He shot her in the back of the head and then pushed her body into the well 348 Mr Jordan testified that the officers including Mr Sosa ordered the Kaibiles to bring more people to the well Some of the villagers in the well were only “half-dead ” and Mr Jordan could hear their screams In response to the screams Mr Jordan observed Mr Sosa use a Galil rifle to shoot into the well and then throw a grenade into it Afterwards the well was silent for some time but only until more villagers were thrown in 349 Mr Jordan stated that the killing lasted the entire day and that all 20 Kaibil patrol soldiers participated Mr Jordan estimated the villagers killed that day to number over 100 He indicated that the Kaibiles never found the 21 stolen military rifles 350 When asked about the mission of the Guatemalan army Mr Jordan said it was to protect the civilian population However he did not believe the mission at Las Dos Erres was done “in compliance ” In his opinion what they did that day was not protecting the population He further Page 110 testified that the operation in Las Dos Erres was different than prior missions he participated in because instead of fighting guerillas they were killing civilians 351 In Mr Jordan’s view he could not have stopped the Las Dos Erres massacre because he was only a sergeant He believed that Mr Sosa was in a position to stop what happened because he was a higher rank an officer However Mr Jordan also acknowledged that there were at least three more senior officers to Mr Sosa and that he suspected the orders in Las Dos Erres came from higher up in the Ministry of Defence C Factual and Legal Findings 352 As the Supreme Court has articulated in Mugesera at paragraph 128 what distinguishes a crime against humanity from an ordinary crime is the context in which the crime takes place To constitute a crime against humanity the underlying act in question such as murder must be committed in the context of and as part of a widespread or systematic attack against a civilian population or an identifiable group Mugesera at para 130 Guénaël Mettraux International Crimes Law and Practice Oxford England Oxford University Press 2020 s 5 1 Mettraux 353 Drawing from Mugesera at paragraphs 119 128 and Extraordinary Chambers in the Courts of Cambodia 26 July 2010 Prosecutor v Kaing Guek Eav alias Duch Case File Dossier No 001 18-07-2007 ECCC TC Cambodia Kaing Guek Eav the elements of crimes against humanity may be divided follows 1 there was a widespread or systematic attack 2 the attack was directed against any civilian population Page 111 3 one of the acts proscribed in section 6 of the CAHWC Act was committed 4 the proscribed act was committed as part of the attack and 5 the person committing the proscribed act knew of the attack and knew or took the risk that his or her act comprised a part of that attack 354 At the risk of repeating myself all of these elements are met in the present case well beyond the requisite “reasonable grounds to believe” standard 355 The Ministers need only prove that there are reasonable grounds to believe that Mr Sosa committed a crime against humanity through his participation in the Las Dos Erres massacre as defined in the IRPA and CAHWC Act in order for him to be declared inadmissible per section 10 5 1 of the Citizenship Act 2017 356 The reasonable grounds to believe standard “requires more than ‘mere suspicion’ but less than proof on a balance of probabilities” Gebremedhin v Canada Citizenship and Immigration 2013 FC 380 at para 19 citing Mugesera at paras 114–115 357 Moreover evidence in support of the Inadmissibility Declaration which was not already relied upon for the Revocation Declaration is “not bound by any legal or technical rules of evidence ” and may be considered by the Court so long as it is “credible or trustworthy ” para 10 5 5 c of the Citizenship Act Page 112 1 There was a widespread and systematic attack in Guatemala 358 An “attack” is often defined as “a course of conduct involving the commission of acts of violence ” Mugesera at para 153 The attack must be widespread or systematic 359 A widespread attack is “a massive frequent large scale action carried out collectively with considerable seriousness and directed against a multiplicity of victims ” Mugesera at para 154 360 A systematic attack is one that is “thoroughly organized and follow s a regular pattern on the basis of a common policy involving substantial public or private resources” and is “carried out pursuant to a policy or plan ” although the policy need not be an official state policy ” Mugesera at para 155 “The adjective ‘systematic’ signifies the organized nature of the acts of violence and the improbability of their random occurrence Patterns of crimes – that is the non-accidental repetition of similar criminal conduct on a regular basis – are a common expression of such systematic occurrence ” Mugesera at para 155 citing Prosecutor v Kunarac Kovac and Vukovic ICTY Case Nos IT‑96‑23‑T‑II IT‑96‑23 1‑T‑II 22 February 2001 aff’d Case Nos IT‑96‑23‑A IT‑96‑23 1‑A 12 June 2002 361 The widespread or systematic nature of the attack is to be determined by examining the means methods resources and results of the attack upon a civilian population Importantly it is not the acts of Mr Sosa that must be widespread or systematic but rather the broader attack As the Supreme Court articulated “Even a single act may constitute a crime against humanity as Page 113 long as the attack it forms a part of is widespread or systematic and is directed against a civilian population ” Mugesera at para 156 362 While the Ministers were only required to show that the attack was widespread or systematic the evidence presented at trial makes clear that the attack perpetrated by the Guatemalan military in the early 1980s was both widespread and systematic Based on the expert evidence of Dr Oglesby General Robles and Ms Doyle as well as the analysis and conclusions reached by the Truth Commission I have no hesitation in finding that the Guatemalan military’s actions during this period constituted a large-scale and systemic attack directed against a multiplicity of civilian victims Indeed this is so widely accepted by experts as well as conceded by the Guatemalan government that I consider it to be a notorious fact 363 The violence against civilians covered a vast geographic scope and a broad range of human rights abuses As Dr Oglesby explained the period of most intense violence against civilians occurred in 1981 and 1982 when the Guatemalan military carried out a systematic campaign of annihilation against rural villages in numerous regions that it viewed as sympathetic to the insurgency This included mass killings torture and sexual violence in over 600 villages as well as the destruction of houses and infrastructure in those villages the killing of livestock and other animals The Truth Commission and human rights reports have referred to this as the military’s “scorched earth” campaign against civilians 364 The Ministers’ experts described the highly centralized military campaign – orchestrated by then President and Commander in Chief Ríos Montt – to annihilate the “internal enemy” Page 114 through coordinated counter-insurgency operations across the country As Dr Oglesby stated “the military’s attacks against civilians were not random isolated incidents or excesses” rather the attacks “constituted the military’s modus operandi…” 365 The massacres described by the Ministers’ experts followed a sequential logic that is laid out in the CW Manual specifically the section on “intervention” in combat zones and in the military campaign plans of 1982 and 1983 which give instructions on how to implement the overall strategies of control over territory and population General Robles and Dr Oglesby explained that the military deployed a large amount of resources into the “red zones” or “conflictive” areas and created new rapid deployment forces for these regions The Kaibil special patrol was created as part of this strategy to be a mobile tactical unit that could quickly be deployed to red zones 366 The experts’ opinion evidence is supported by contemporaneous military documents including the CW Manual and the military campaign plans that demonstrate the highly planned and coordinated nature of the military’s counter-insurgency campaign against anyone perceived to be an “internal enemy” of the state or supportive of the insurgency Certain regions were identified as conflictive zones in the military campaign plans themselves La Libertad in which Las Dos Erres was based was one of those regions 367 I agree with Dr Oglesby that the way in which the massacres were carried out shows that they were not isolated incidents but were instead planned and carefully executed Page 115 2 The attack was directed against a civilian population 368 To constitute a crime against humanity the attack must be directed against any civilian population The civilian population must be “the primary object of the attack ” and not merely a collateral victim of it Mugesera para 161 The reference to “any” civilian population means that membership in a particular group e g religion or ethnicity is not necessary for a crime against humanity to have been committed Mettraux s 5 3 3 ‘Any’ civilian population In addition the fact that non-civilians also form part of the group will not change the character of the population as long as it remains largely civilian in nature Mugesera para 162 369 It was well-established by Dr Oglesby that a salient feature of the Guatemalan internal armed conflict was the high number of civilian deaths and displacement More than 200 000 civilians were killed or disappeared in the conflict the vast majority approx 93% at the hands of the state Based on the evidence adduced by the experts I find that the Guatemalan military strategy was to target anyone seen to be against the established order including women children and the infirmed Dr Oglesby and General Robles opined that the military’s counterinsurgency doctrine and strategies in particular its definition of “internal enemies ” led to systematic acts of violence against civilians particularly in the period from 1981 to 1983 This included acts committed in the region of El Petén 370 As Dr Oglesby testified “Attacking civilians deemed to be subversive was at the core of the … military’s counterinsurgency strategy…” This included the period of most intense violence against civilians in 1981 and 1982 when the military carried out a campaign of Page 116 annihilation against rural villages Dr Oglesby described how this period was characterized by frequent and violent indiscriminate attacks against civilians including entire communities 371 I find that the violence against civilians at Las Dos Erres was part of this broader pattern 3 Mr Sosa committed murder at Las Dos Erres 372 The Ministers had the burden of proving that Mr Sosa committed directly or indirectly an underlying act proscribed in section 6 of the CAHWC Act They must show “that both the physical element and the mental element of the underlying act have been made out” Mugesera at para 130 The evidence of Mr Pinzón and Mr Jordan amply demonstrates that Mr Sosa committed the underlying act of murder in Las Dos Erres in December 1982 373 Mr Sosa denies that he was present at Las Dos Erres when the massacre took place however I place no credence in anything he says It begs credulity that an officer of Mr Sosa’s stature would have been relegated to menial tasks while his unit was embarking on an important and resource-intensive military operation 374 Indeed I consider Mr Sosa to be a consummate liar By way of example in response to written examination questions he stated that he could not remember any combat missions actions operations or other combat activity in which he participated He also feigned ignorance of the atrocities committed by the Kaibil unit In addition Mr Sosa’s credibility as a truthful participant in immigration processes is severely undermined by having lied when taking steps to acquire U S citizenship in 1997 One of the questions he was required to answer on the U S Page 117 application form was whether he had ever served in a foreign military to which Mr Sosa answered “None ” The answer was certified by Mr Sosa to be true and correct under penalty of perjury for which he was found guilty in 2013 375 Mr Sosa’s credibility is further undermined by the fact that various documents in evidence show him giving varying accounts of his occupation in Guatemala On his Guatemalan passport issued on April 23 1985 he described himself as a “student” despite the evidence before this Court demonstrating that he was a lieutenant in the Guatemalan army at the time On his marriage certificate issued on May 24 1985 14 days after he entered the U S on May 10 1985 he described his occupation as “teacher ” 376 Finally Mr Sosa’s credibility is undermined by his lack of respect for the Court’s process in the present proceeding including misrepresenting to the Court and swearing an affidavit that he was in Alberta when as it later came to light he was not in Canada at the time 377 I find that in December 1982 Mr Sosa participated in the horrific massacre as part of the Kaibil patrol operation at Las Dos Erres It has been clearly established that he was the fourth in command of the operation conducted by the Kaibil special patrol with the support of a 40-person platoon Mr Sosa was the officer in charge of one of the four groups formed to carry out the attack Page 118 378 As described by Mr Pinzón and corroborated by Dr Turner’s expert evidence virtually the entire village consisting of women men children and infants were massacred Most of them were thrown into a deep well pit a The legal elements of murder 379 The legal elements for the underlying criminal acts murder are to be based on customary international law as of the time that the crimes were committed Customary international law is the “common law of the international legal system ” arising from the practice of states and evolving over time Nevsun Resources Ltd v Araya 2020 SCC 5 at para 74 For the present case the judicial body with the jurisdiction most temporally proximate to the crimes at issue is the Extraordinary Chambers in the Courts of Cambodia ECCC It had a mandate to try serious crimes committed during the Khmer Rouge regime from 1975-1979 and therefore reflects the state of international customary law at the time 380 At the applicable time 1982 the legal elements for murder under customary international law were substantially the same as the definition established by the Supreme Court in Mugesera The defendant must have 1 caused the death of another person and 2 intended to cause the person’s death or to inflict grievous bodily harm that he or she knew was likely to result in death Page 119 b Direct murder of the villagers by Mr Sosa 381 The Ministers have adduced credible and uncontradicted evidence establishing that at Las Dos Erres Mr Sosa caused and intended to cause the death of persons or to inflict grievous bodily harm that he knew was likely to result in death 382 Mr Pinzón saw Mr Sosa fire a rifle at one of the villagers who had slipped into the well and shouted at Mr Sosa Mr Sosa then threw a grenade into the well 383 At the point when Mr Sosa was firing into the well at least one of the villagers was alive the shouting man and others in the well were more likely than not still alive Mr Sosa’s shooting into the well in these circumstances demonstrates that he intended to kill or inflict harm likely to result in death While Mr Pinzón did not see the bullet hit the man I find that the man’s death can be ascertained from the fact that his shouting ceased 384 In Mr Pinzón’s own words PINZÓN And the well was filled almost halfway and then a man came He was blindfolded but then he slipped and he could see because he lost the blindfold And as soon as he saw what was going on he said Why don’t you kill me all at once Just kill me all at once And Sosa Orantes was there so he took the rifle and he shot this man And he not only shot the man He took the rifle and shot inside the well and after that he not only was shooting into the well but he had a grenade with him and he threw the grenade into the well for it to explode there JUSTICE LAFRENIERE I am going to just ask a question of Mr Pinzon Mr Pinzon where on the man’s body was he shot by Mr Sosa Page 120 PINZÓN The thing is that the man had already slipped into the well so Sosa shot actually into the well COUNSEL When -- Mr Pinzon when the man was -- you said he was shouting Kill me now or words to that effect did Sosa say anything at that point PINZÓN Sosa was very rude in his words He said You motherfucker And then he just shot his rifle into the well And after that he used a grenade when it had finished I mean after Sosa shot with his rifle and threw the grenade into the well all Officers were laughing at what he did 385 Mr Pinzón’s account of Mr Sosa’s firing at the villagers in the well is corroborated by Mr Jordan’s testimony in which Mr Jordan also describes Mr Sosa shooting a rifle and throwing a grenade into the well Furthermore the firing of a rifle is supported by the physical evidence of ballistics remnants The fact of the killing of the villagers is confirmed by the human remains uncovered from the well site as testified to by Dr Turner 386 The Ministers submit that Mr Pinzón’s testimony also provides reasonable grounds to believe that Mr Sosa killed other villagers by attacking them with a sledgehammer and throwing them into the well On this point the evidence is very weak In the transcript the interpreter’s summary of Mr Pinzón’s lengthy account about sledgehammers being used by officers reads as follows THE WITNESS At that point everybody was being dragged We were dragging people and even children all these people and this was being done by Officers and Sergeants And they had sledgehammers and they were hitting people on their heads Not all at the same time They were like handing over the sledgehammer one to the other And we didn’t bring everybody at the same time to the well It was more like one by one And so they would hand the sledgehammer to one another and hit the person in the head and threw all those people into the well … Page 121 387 I am unable to conclude based on this summary that the term “they” included Mr Sosa In any case it is unnecessary to find that Mr Sosa participated in hitting villagers over the head in light of the evidence establishing his direct involvement in the murder of those in the well 388 I find that by shooting into the well and throwing a grenade into it Mr Sosa intended to kill or inflict harm likely to result in death of persons alive the well All of the villagers in the well were ultimately killed as demonstrated by the fact that the Kaibiles continued to throw bodies into the well until it was full and covered it over with dirt I find that those killings were done under the watch and orders of Mr Sosa c Murder of other villagers by Mr Sosa’s subordinates which Mr Sosa abetted 389 In addition to directly killing civilians at the well the evidence demonstrates that Mr Sosa abetted his subordinates to kill other villagers at the well including children 390 The evidence both from Mr Pinzón and Mr Jordan proves that Mr Sosa’s subordinates committed murder by hitting villagers on the head with a sledgehammer or shooting them and throwing them in the well In doing so they caused and intended to cause the deaths of the villagers or to inflict grievous bodily harm that they knew was likely to result in death 391 Mr Jordan admitted under oath in the U S proceedings that he killed civilians including a three-year-old boy and a woman and threw them into the well Mr Jordan testified that he took the woman to the well shot her in the back of the head with a 5 56 Galil rifle and pushed her into Page 122 the well This was consistent with Mr Pinzón’s testimony about the sequential manner in which the patrol including the sub-instructors killed civilians at the well 392 Based on the circumstances it is clear that the intention of Mr Jordan and the Kaibil subinstructors was to kill the villagers and that the villagers were in fact killed 393 The trial evidence demonstrates that Mr Sosa abetted these murders as set out below d The legal test for “aiding or abetting” a crime against humanity 394 A person can be found to have committed a crime against humanity if they “aided or abetted” the commission of the crime R c Jacques Mungwarere 2013 ONCS 4594 at paras 49– 51 Mungwarere The Ministers submit that the applicable definition for aiding and abetting in this case is the one arising from customary international law and not from domestic Canadian criminal law I agree 395 In Ezokola v Canada Citizenship and Immigration 2013 SCC 40 at paras 9 43 46–47 the Supreme Court indicated that when defining modes of commission applicable in refugee and immigration cases Canada must refrain from interpreting and applying international criminal law as if it were simply the mirror of our domestic criminal law In assessing the relevant test for the applicable mode of commission the Supreme Court stated that a change in the test for complicity was necessary to bring Canada in line with international criminal law which includes customary international law The same approach should apply to other modes of commission namely aiding and abetting Page 123 396 As held in Kaing Guek Eav at paragraphs 533–535 under customary international law in 1982 and today the elements for aiding or abetting a crime are that 1 the person practically assisted encouraged or provided moral support which has a substantial effect on the commission of the crime and 2 the person knew that a crime would probably be committed and that their conduct would assist the commission of that crime 397 The test applied in the context of a criminal prosecution does not reflect – and is higher than – the above test under customary international law Mungwarere at paras 62 and 1189 In particular aiding and abetting under the Criminal Code requires intent which is not a requirement under customary international law Specifically the criminal test requires 1 an act or omission that had a substantial effect on the crime 2 that the person had knowledge that the perpetrator intends to commit the crime although he or she need not know precisely how it will be committed and 3 the person intended to assist in the principal offence 398 I agree with the Ministers that it is the lower customary international law standard that should apply in this civil case e Mr Sosa abetted murders by his subordinates 399 I find that as one of the officers in command of the operation in Las Dos Erres Mr Sosa through his words and actions encouraged and provided moral support to his subordinates to commit murders and condoned the murders Page 124 400 The sworn testimony of Mr Jordan supports the finding that Mr Sosa encouraged an otherwise reluctant Mr Jordan to throw a three-year old boy to his death into the well Mr Jordan also testified that when he shot a young woman and threw her into the well Mr Sosa was at the well during that time ordering others to go bring more people to the well Similarly Mr Pinzón testified that Mr Sosa as one of the officers in charge ordered the sub-instructors to bring villagers to the well kill them and throw them into the well As Mr Pinzón testified PINZÓN The officers’ instructions were that we all had to do the same kill people They just passed the sledgehammer to one another and they kept passing it and like that this is what had to be done Q Did you hear Sosa telling soldiers to bring villagers to the well PINZÓN Yes He would say Bring more like that Q Did Sosa tell others to throw people in the well PINZÓN Yes He would say Bring more people or tell a sergeant for example Now you do it And the Sergeant had to do it because it was an order and orders are to be obeyed 401 The evidence of Mr Pinzón and Mr Jordan supports the finding that Mr Sosa’s presence at the well his actions and words encouraged others to commit murder and that he knew he was doing so Given his leadership role as fourth in command of the operation and his presence at the scene of the crimes I find that Mr Sosa’s actions had a substantial effect on the commission of the crimes by his subordinates 402 It is also evident that the knowledge elements of the test for aiding and abetting are met here Mr Sosa was an experienced officer leading a patrol that openly carried out a massacre Based on the evidence before me and in the absence of rebuttal evidence I find that Mr Sosa Page 125 knew that crimes were being committed and that his subordinates would carry out his orders To be clear I find that Mr Sosa was well aware that his words and actions would encourage them to kill villagers His own participation in murder is further evidence of this intent In the circumstances I find that the customary international law test is met and moreover that the Canadian criminal law test is also satisfied f Mr Sosa’s acts were committed as part of the attack 403 As explained below I find that Mr Sosa’s actions in Las Dos Erres were committed as part of the widespread and systematic attack occurring in Guatemala at the time 404 The requirement for a link between the proscribed acts and the attack is commonly expressed as “in the context of” or “forming a part of ” These phrases require that the defendant’s acts “be objectively part of the attack in that by their nature or consequences they are liable to have the effect of furthering the attack ” Mugesera para 165 As the Supreme Court has confirmed this nexus element between the act and the attack does not mean that no personal motive for the underlying act can exist The question is an objective one “is the act part of a pattern of abuse or does it further the attack ” Mugesera at para 166 405 Moreover “the proscribed act need not be undertaken as a particular element of a strategy of attack ” While the act must fit the pattern of the attack “it need not comprise an essential or officially sanctioned part of it ” Mugesera at para 167 Page 126 406 Based on the expert evidence before me I find that the murders and other violent acts committed by Mr Sosa at Las Dos Erres formed part of the broader attack against civilians across Guatemala at that time Mr Sosa’s acts fit the pattern of violence perpetrated at the time both in Petén and other regions of the country in particular the systematic murder of many civilians which are proscribed acts 407 This was well established by Dr Oglesby who opined that the methods and patterns of violence perpetrated in Las Dos Erres fit the pattern of other massacres committed preceding it She summarized the patterns of the massacres as including  Gathering the population at a specific point in the village  Grouping people by gender in different buildings men in the community hall and women and children in the church for example  Sexual violence against women and girls  The slaughter itself carried out with extreme cruelty including against vulnerable groups such as women children and the elderly  Burning the village after the massacre  Killing or pillaging livestock and other animals and destroying crops  Destroying or pillaging victims’ possessions  The use of radio communication among the soldiers committing the massacres  Attacks against people trying to flee including grenades thrown by soldiers or aerial attacks from helicopters 408 The fact witness testimony from Mr Pinzón Mr Cristales and Mr Jordan shows that the Las Dos Erres operation closely fit the pattern described above The villagers were rounded up Page 127 with men taken to the school and women and children to the church There was sexual violence against women and girls There was extreme cruelty including the killing of babies and children Children were abducted which Ms Doyle described as characteristic As Ms Doyle testified the massacre at Las Dos Erres “was not an anomaly ” but “part of a pattern ” 409 In addition there is reliable and credible evidence that orders for the operation were received from higher up in the military chain of command By November 1982 the command and control of the Kaibil patrol was placed directly under the Army General Staff Estado Mayor General del Ejército with operational command based in Quetzaltenango and in December the operational command shifted to the military brigade in Poptún Petén 410 Moreover the accounts of Mr Pinzón and Mr Jordan reveal that the military’s organizational powers and resources were integral to the operation The Kaibiles used radio communications to receive orders Military aircraft were provided both a military plane and helicopter to transport the patrol before and after Las Dos Erres Trucks were procured A platoon of 40 soldiers from Military Zone 23 was provided to support the Kaibil patrol 411 Furthermore the Las Dos Erres operation was implemented in accordance with military plans and the CW Manual Las Dos Erres was identified by military intelligence to be a “conflictive” or red zone The formation of soldiers into groups for command strike group security and support as described by Mr Pinzón matched the guidance in the manual for incursions The surprise element employed for the operation as shown through Mr Pinzón’s testimony including arriving at Las Dos Erres at night when villagers were sleeping wearing Page 128 civilian clothes approaching on foot through trails so as to avoid being seen all fit with the military’s strategy 412 Finally the fact that the Las Dos Erres operation was a result of orders and a plan rather than a random or rogue event is demonstrated by the fact that despite the contemporaneous “rumor” as to what had occurred after Las Dos Erres there was no negative outcome for the Kaibil patrol members There was no military discipline or sanction To the contrary Guatemalan military records show that key members of the Kaibil patrol including Mr Sosa were promoted afterwards and the other commanders of the patrol went on to have long military careers 413 As noted by the expert witnesses written orders of the Guatemalan military have not been seen that include written instructions to commit mass killings of civilians However that does not mean that the killings and other acts at Las Dos Erres or any of the hundreds of other massacres were not ordered As Ms Doyle testified We have never seen an order that said rape all the women but in every single massacre the women are raped We have never seen orders that said steal the children but in massacre after massacre still children are stolen We have never seen orders that said specifically separate men and women into two different buildings and then kill them in different ways but that is what happened in massacre after massacre So there are orders on paper and there are orders that happen in other ways g Mr Sosa’s knowledge of the attack 414 Finally the Ministers must show that Mr Sosa knew of the attack occurring in Guatemala and knew or took the risk that his acts comprised a part of the attack Page 129 415 Mr Sosa’s knowledge of events prior to Las Dos Erres supports the inference that he had knowledge of the attack i e the military’s campaign against insurgents and the targeting of civilians As General Robles testified it is probable that a Kaibil officer would have known in 1982 that the army’s counterinsurgency strategy involved violence against civilians I find that Mr Sosa would have at the very least known generally about military operations being conducted in the region against subversives and what was happening in other military zones 416 Indeed Mr Sosa’s knowledge of the military’s campaign against insurgents and the targeting of civilians prior to Las Dos Erres can be inferred from the specific factual evidence including 1 his own admitted participation in combat operations in 1981 2 his role as an Officer and Instructor at the Kaibil school from 1981-mid-1982 3 his role in charge of the school in August-September 1982 and 4 his role as part of the mobile Kaibil special patrol from October through November 1982 as further detailed below 417 Mr Sosa was an active combatant in the internal armed conflict in 1981 such that it can be inferred that he knew of the military’s campaign and the way it was being carried out Mr Sosa’s own answers on discovery admit an assumption of civilian casualties because there were “many guerillas fighting in civilian clothes” and “it would have been impossible to tell if they were truly civilians or not ” This demonstrates a failure to distinguish between civilians and combatants 418 Mr Sosa was also in a leadership role at the school an important institution for the Guatemalan military providing the toughest training to officers and soldiers so that they would Page 130 be “better combatants … against the guerilla or whoever there were fighting against or any enemy ” The Kaibiles specialty was countersubversive warfare and an instructor would have been informed of the military strategy of the time Mr Sosa obviously knew the purpose of the school’s training and the types of activities being carried out there 419 Based on Mr Pinzón’s testimony I find that Mr Sosa was present at the very significant meeting at the school in July 1982 where the Director Arevalo Lacs announced the state of siege the mobilization of forces and the creation of the Kaibil special patrol Mr Sosa would therefore have known the purpose of that patrol was as a mobile unit with orders to combat and to go wherever they were needed It can therefore be inferred that Mr Sosa knew the nature of the countersubversive operations the patrol was involved in in the months prior to Las Dos Erres operations which included capturing torturing and killing anyone in the patrol’s path 420 In addition to his knowledge prior to Las Dos Erres Mr Sosa’s knowledge of the attack can be inferred from his presence and role at the Las Dos Erres operation itself For instance prior to the killings at the well even Mr Pinzón the cook had been informed of the order to execute all of the villagers Mr Pinzón’s testimony that Mr Sosa ordered others to kill people supports a finding that Mr Sosa was aware of the order Indeed as one of the four officers in charge Mr Sosa likely had greater and possibly even advance information about the orders In any case I find that once the killings at the well commenced Mr Sosa who was participating in a leadership role and ordering the bringing of villagers including babies and small children to be slaughtered by sledgehammer and thrown into the well knew full well that civilians were being Page 131 targeted and killed He not only condoned the killings but encouraged it voluntarily with apparent purpose 421 In light of my conclusion that Mr Sosa knowingly committed murder in furtherance and as a part of two distinct systematic and or widespread attacks I need not deal with the Ministers’ alternative argument that the Las Dos Erres massacre was itself a systemic attack on a civilian population D Conclusion 422 For the above reasons I conclude that a declaration that Mr Sosa is inadmissible to Canada on grounds of violating human or international rights for committing an act outside Canada that constitutes a crime against humanity pursuant to section 10 5 1 of the Citizenship Act and section 35 l a of the IRPA should be granted X Mr Sosa’s Defences regarding Guatemalan Citizenship and Amnesty 423 Mr Sosa pled in his Statement of Defence that he no longer has Guatemalan nationality and that an amnesty applies in Guatemala to crimes committed during the internal armed conflict Neither of these points appeared in the Amended Statement of Defence 424 Mr Sosa admitted in the Agreed Statement of Facts that he obtained Guatemalan citizenship by virtue of his birth in Guatemala and remains a Guatemalan citizen to date Page 132 Moreover since he did not call any evidence at trial he failed to establish that an amnesty would apply to him or what relevance it would have to this proceeding 425 The Ministers pre-emptively called Professor Aizenstatd to rebut Mr Sosa’s claims He confirmed that Mr Sosa is a Guatemalan national by birth He testified that nationality and citizenship are different concepts in Guatemala Nationality is the legal link between a person and their country whereas citizenship arises from nationality when someone turns 18 years old and gives any Guatemalan national the right to vote amongst political rights 426 Professor Aizenstatd testified that the Guatemalan constitution guarantees the right to nationality to Guatemalan nationals of origin and that the only way to renounce nationality of origin is by mandatory renunciation Mandatory renunciation would occur when a Guatemalan national seeks to obtain nationality in another state where dual or multiple citizenship is not allowed In such a case any Guatemalan national would have a valid reason to renounce to his or her nationality Professor Aizenstatd indicated that the request needs to be approved by the Guatemalan government He testified that a Guatemalan of national origin someone born in Guatemala or of Guatemalan parents can request for their nationality to be restored after its renunciation In reviewing Mr Sosa’s birth certificate Professor Aizenstatd opined that Mr Sosa is a Guatemalan national of origin and that he would not become stateless as a result of being deprived of his Canadian citizenship 427 In analyzing a letter from Mr Sosa renouncing his citizenship Professor Aizenstatd testified that the expiry of a passport is not a basis to lose Guatemalan citizenship and that Page 133 spending three consecutive years outside of Guatemala has no impact on a Guatemalan’s nationality He also determined that Mr Sosa’s request to renounce his nationality was filed in the consulate and no further action was taken 428 Professor Aizenstatd testified that the laws of Guatemala do not as asserted by Mr Sosa grant amnesty from crimes against humanity committed during the internal armed conflict In his opinion any person who participated in the Las Dos Erres massacre would certainly face criminal charges in Guatemala He emphasized that Guatemala has an obligation to find the individuals specifically responsible for the massacre and to prosecute them XI Costs ---- 429 By letter dated December 19 2024 counsel for the Ministers submitted a revised bill of costs removing certain costs and items as directed by the Court The Ministers seeks costs calculated based on Column III of the Tariff for various services including preparation of pleadings discovery and examinations conferences and attendance of counsel at trial in the amount of $88 155 00 They also seek reimbursement of $146 725 19 for disbursements incurred over the course of the proceeding such as trial transcripts translation of documents travel expenses and the cost of experts 430 I see no reason to deviate from the general rule that costs follow the event The Ministers were put through great expense to prove their case Page 134 431 Given the nature of the file in my view it would reasonably necessitate such expenses being incurred and the total amount claimed appears to be within a reasonable range Therefore I will allow the total amount claimed of $234 889 19 Page 135 JUDGMENT IN T-503-17 THIS COURT’S JUDGMENT is that 1 The action is allowed 2 Pursuant to subsection 10 1 1 of the Citizenship Act the Court declares that the Defendant Jorge Vinicio Sosa Orantes obtained his Canadian citizenship by false representation or fraud 3 Pursuant to subsection 10 5 1 of the Citizenship Act the Court declares that the Defendant Jorge Vinicio Sosa Orantes is inadmissible to Canada under paragraph 35 1 a of the Immigration and Refugee Protection Act on the basis that there are reasonable grounds to believe that he committed acts outside of Canada that constitute crimes against humanity as referred to in section 6 of the Crimes Against Humanity and War Crimes Act 4 Costs are awarded to the Plaintiffs the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness in the amount of $234 889 19 “Roger R Lafrenière” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET T-503-17 STYLE OF CAUSE MINISTER OF CITIZENSHIP AND IMMIGRATION AND MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS v JORGE VINICIO SOSA ORANTES PLACE OF HEARING OTTAWA ONTARIO DATE OF HEARING NOVEMBER 4 5 6 12 13 15 18 19 20 21 22 2024 AND DECEMBER 11 12 2024 JUDGMENT AND REASONS LAFRENIÈRE J DATED FEBRUARY 5 2026 APPEARANCES Ms Zoe Oxaal Ms Samar Musallam Ms Sonja Pavic Mr Aman Owais Mr Alexandre Petterson No appearance FOR THE PLAINTIFFS FOR THE DEFENDANT ON HIS OWN BEHALF SOLICITORS OF RECORD Attorney General of Canada Ottawa Ontario FOR THE PLAINTIFFS