Source: Ottawa Citizen
By Janice Tibbetts
OTTAWA — A lesbian soldier who deserted the U.S. army won a key court victory Friday when a judge ordered the refugee board to reconsider her failed asylum claim and take into account compelling evidence that she was persecuted and that her sexual orientation could mean stiffer punishment for going AWOL.
Federal Court Justice Yves de Montigny's order for the board to consider a gay U.S. soldier as a credible refugee candidate is believed to be a first, said a spokesman for the U.S. military.
"I have never heard of anybody attempting to do that before," said army spokesman Lt.-Col. Christopher Garver.
Pte. Bethany Smith, 21, will have another chance to argue her case for staying in Canada, rather than face deportation and a possible court martial in the U.S. for fleeing the military base at Fort Campbell, Ky., two years ago.
"I did a happy dance when I heard," said the deserter, now an Ottawa call centre worker who has adopted the name Skyler James.
Smith, who says she was outed by another soldier who spotted her walking hand-in-hand with a woman at a shopping mall, contends in court documents that she was badgered daily, saddled with extra work by her superiors and received more than 100 threatening notes on her dormitory door, including a death threat.
Smith says that she sought a discharge from the army — under the U.S. "Don't Ask, Don't Tell" policy that permits openly gay soldiers to leave — but that she was told the paperwork would not be done until after she returned from a scheduled deployment to Afghanistan.
She said she considers herself among the hundreds of U.S. war resisters who have fled to Canada as "conscientious objectors."
Most have had no success in securing refugee status, but de Montigny concluded that Smith's sexual orientation puts her in a more sympathetic category.
"She could be punished not only on AWOL (absent without leave) and desertion charges, but also for simply being gay," he wrote.
Garver, who is based at the Pentagon, said that it is not military policy to punish gay deserters more harshly than heterosexuals who desert the forces.
De Montigny also ruled the refugee board did not properly consider the fact that Smith served at the same base as Pte. Barry Winchell, a gay American soldier who was beaten to death with a baseball bat almost a decade ago.
"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," de Montigny wrote. "She fears that she could be punished for leaving an environment where her life is in danger."
The government does not have the right to appeal the ruling at the Federal Court of Appeal, said Justice Department spokesman Brian Harvey. However, if the refugee board rules in Smith's favour, the government could return to the Federal Court to challenge that decision.
Harvey urged the court during the September hearing to reject Smith's claim, saying that it is not the job of the Canadian courts to interfere with U.S. military justice and its treatment of deserters.
"There's no evidence that she faces tougher sentencing treatment because of her sexual orientation," Harvey told the judge, adding that Smith joined the army voluntarily.
Harvey argued that refugee status should not be granted lightly, simply because Smith faces prosecution in her home country.
Smith's lawyer, Jamie Liew, said the government tried to begin deportation proceedings against Smith this fall.
While Canada has granted refugee status to gays and lesbians who face persecution abroad, Liew said she knows of no cases involving U.S. soldiers.
De Montigny also ordered the board to reconsider expert evidence that the U.S. army brass is "too often complacent and sometimes even actively participate in the harassment and abuse directed at gays and lesbians in the military."
He said Smith offered evidence the military is not discharging as many gay and lesbian soldiers as it did in the past, providing a chart showing a steady decline since 2001, due to the need for more soldiers to serve in Afghanistan and Iraq.