Court orders refugee board to reconsider case of lesbian deserter from U.S. army

OTTAWA — A lesbian who deserted from the U.S. army and fled to Canada must have another chance to plead her case for refugee status, the Federal Court ruled Friday.

OTTAWA — A lesbian who deserted from the U.S. army and fled to Canada must have another chance to plead her case for refugee status, the Federal Court ruled Friday.

Judge Yves de Montigny says the board erred last February when it rejected Bethany Smith’s bid for refugee status.

Smith says she fled the army because she was harassed and threatened by fellow soldiers over her sexual orientation. She told of hundreds of threatening notes pinned to her barracks door, including a death threat.

She testified she was stationed at the same base where, in 1999, a gay male soldier been beaten to death as he slept. The note threatened her with the same fate.

Smith fled in September 2007 and filed her refugee claim the next month.

She says she couldn’t seek help from her superiors because she feared they might have been part of the harassment.

She said she tried to get out of the army by revealing her sexual orientation. Under the “don’t ask, don’t tell” policy of the U.S. military, homosexuals can serve as long as they forgo sexual acts and keep their orientation to themselves. Those who speak up are normally discharged.

But Smith said the army shrugged off her confession, saying the paperwork to discharge her wouldn’t be ready until after her next rotation to Afghanistan.

The judge said the board must reconsider her case because it unfairly dismissed evidence suggesting gays face harassment and brutality in the American military. The board was also wrong to dismiss outright her argument that gays face harsher treatment in the American military justice system than heterosexuals.

“I am of the view that the board’s failure to explain why this evidence was rejected was material to its decision,” the judgment said.

“It is true that the board member summarized at some length the evidence offered by the applicant, but he has by no means considered it, let alone analyzed it and provided reasons for dismissing it.”

He said the board had an obligation to assess whether American military law was discriminatory against gays or would be applied in a discriminatory fashion.

Smith said she would fear for her life if she were deported and returned to the army.

The judge accepted that.

“At the heart of the applicant’s claim is that she is a lesbian member of the U.S. army, who was harassed and threatened at the same base where a gay member of the army was beaten to death and who feels she could not rely on her superiors to secure protection.

“She fears that she could be punished for leaving an environment where her life is in danger.”

New Democrat MP Olivia Chow, welcomed the decision, but said such court cases shouldn’t be needed.

“The taxpayers can save a lot of money if Stephen Harper would just follow the will of Parliament and allow war resisters to stay in Canada,” she said.

“There’s a small number of them, they’re winning in court. It’s costly. It’s a lot cleaner if there’s special program that allows the ones who have filed claims to stay in Canada.”

In June 2008, the House of Commons passed a resolution urging the government to allow American military deserters to stay in Canada. The government has ignored the motion, which was passed by the combined opposition against the Conservative minority.

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