Mugesera V. Canada (Minister of Citizenship and Immigration)

Mugesera v. Canada (Minister of Citizenship and Immigration)

SUPREME COURT OF CANADA

44 Int’l Legal Mat’ls 1468 (2005)

. . . 57. … [T]he Minister asserts that the respondent committed the crime of incitement to genocide in violation of s. 166 of the Rwandan Penal Code and of executive enactment … by which Rwanda acceded to the International Convention on the Prevention and Punishment of the Crime of Genocide, U.N. G.A. Res. 260 (III) A, 78 U.N.T.S. 277, December 9, 1948 (“Genocide Convention”), and contrary to s. 318(1) of the [Canadian] Criminal Code. [The painstaking 2005 application of this convention by the International Court of Justice is available in the Bosnia v. Serbia Genocide Case, which is the principle case in textbook §10.1.B.). . . . 82. Genocide is a crime originating in international law. International law is thus called upon to play a crucial role as an aid in interpreting domestic law, particularly as regards the elements of the crime of incitement to genocide. Section 318(1) of the [Canadian] Criminal Code incorporates, almost word for word, the definition of genocide found in art. II of the Genocide Convention, and the Minister’s allegation B [above ¶57] makes specific reference to Rwanda's accession to the Genocide Convention. Canada is also bound by the Convention. In addition to treaty obligations, the legal principles underlying the Genocide Convention are recognized as part of customary international law: see International Court of Justice, Advisory Opinion of May 28, 1951: “Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide” [textbook §7.2.A.4. principle case]. The importance of interpreting domestic law in a manner that accords with the principles of customary international law and with Canada’s treaty obligations was emphasized in [citation omitted]. In this context, international sources like the recent jurisprudence of international criminal courts are highly relevant to the analysis. 83. Section 318(1) of the [Canadian] Criminal Code proscribes the offence of advocating genocide…. There is no Canadian jurisprudence dealing specifically with s. 318(1) of the Criminal Code. . . . 85. In the case of the allegation of incitement to genocide, the Minister does not need to establish a direct causal link between the speech and any acts of murder or violence. Because of its inchoate nature, incitement is punishable by virtue of the criminal act alone irrespective of the result. It remains a crime regardless of whether it has the effect it is intended to have … Prosecutor v. Nahimana, Barayagwiza and Ngeze, Case No. ICTR-99-52-T-I (“ Media Case”), 3 December 2003, at para. 1029. . . . 112. … [W]e must now move to the final issue raised on this appeal: whether ______Reprinted with permission of the American Society of International Law.

there are reasonable grounds to believe that Mr. Mugesera committed a crime against humanity and is therefore inadmissible to Canada by virtue of s. 19(1)( j) of the Immigra- tion Act. . . . 118. At the time relevant to this appeal, crimes against humanity were defined [as follows:] . . . “crime against humanity” means murder, extermination, enslavement, deportation, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group of persons, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission, and that, at that time and in that place, constitutes a contravention of customary international law or conventional international law or is criminal according to the general principles of law recognized by the community of nations.

. . . 128. It can be seen from s. 7(3.76) of the Criminal Code that the criminal act … of a crime against humanity consists in the commission of one of the enumerated proscribed acts which contravenes customary or conventional international law or is criminal according to the general principles of law recognized by the community of nations. . . . 133. This does not end our analysis, however. As we noted above, s. 7(3.76) expressly incorporates principles of customary international law into the domestic formulation of crimes against humanity [italics added].We must therefore go further and consider whether the prevailing principles of international law accord with our initial analysis. . . . 138. Both the ICTR and the ICTY have approached the question of speech inciting hatred as relating to the enumerated act of “persecution.” Persecution is expressly listed in s. 7(3.76) of the Criminal Code as one of the underlying acts which, in the appropriate circumstances, may constitute a crime against humanity. . . . 140. As a result, both the physical and mental elements (criminal act and guilty mind) of persecution have been considered at great length by the ICTY and the ICTR. In considering the criminal act of persecution in Prosecutor v. Tadic, 112 ILR 1 (Trial Chamber 1997 [principle case in above textbook §8.5.C.1.]), the ICTY, having reviewed the relevant jurisprudence and academic commentary, found that persecution “is some form of discrimination [on traditionally recognized grounds such as race, religion, or politics] that is intended to be and results in an infringement of an individual's fundamental rights.” . . . 151. We now turn to the second element of the criminal act requirement for a crime against humanity: that the proscribed act contravene international law. …

2 Customary international law tells us that the enumerated acts will become crimes against humanity if they are committed as part of a widespread or systematic attack directed against any civilian population or any identifiable group. . . . 178. In the face of certain unspeakable tragedies, the community of nations must provide a unified response [italics added]. Crimes against humanity fall within this category. The interpretation and application of Canadian provisions regarding crimes against humanity must therefore accord with international law. Our nation’s deeply held commitment to individual human dignity, freedom and fundamental rights requires nothing less. . . . 180. … The deportation order of July 11, 1996 in respect of Mr. Léon Mugesera is held to be valid on the grounds stated above. . . .