Mugesera v. Canada (Minister of Citizenship and Immigration)

Mugesera v. Canada (Minister of Citizenship and Immigration)
Collection
Supreme Court Judgments
Date
2005-06-28
Neutral citation
2005 SCC 40
Report
[2005] 2 SCR 100
Case number
30025
Judges
McLachlin, Beverley; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Charron, Louise
On appeal from
Federal Court of Appeal
Subjects
Administrative law
Criminal law
Immigration
Notes
SCC Case Information: 30025
Decision Content
SUPREME COURT OF CANADA
Citation: Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100, 2005 SCC 40
Date: 20050628
Docket: 30025
Between:
Minister of Citizenship and Immigration
Appellant
v.
Léon Mugesera, Gemma Uwamariya, Irenée Rutema,
Yves Rusi, Carmen Nono, Mireille Urumuri
and Marie‑Grâce Hoho
Respondents
‑ and ‑
League for Human Rights of B’nai Brith Canada,
PAGE RWANDA, Canadian Centre for International Justice,
Canadian Jewish Congress, University of Toronto, Faculty
of Law – International Human Rights Clinic,
and Human Rights Watch
Interveners
Coram: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish and Charron JJ.
Joint Reasons for Judgment:
(paras. 1 to 180)
McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish and Charron JJ.
______________________________
Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100, 2005 SCC 40
Minister of Citizenship and Immigration Appellant
v.
Léon Mugesera, Gemma Uwamariya, Irenée Rutema,
Yves Rusi, Carmen Nono, Mireille Urumuri
and Marie‑Grâce Hoho Respondents
and
League for Human Rights of B’nai Brith Canada,
PAGE RWANDA, Canadian Centre for International Justice,
Canadian Jewish Congress, University of Toronto, Faculty
of Law — International Human Rights Clinic,
and Human Rights Watch Interveners
Indexed as: Mugesera v. Canada (Minister of Citizenship and Immigration)
Neutral citation: 2005 SCC 40.
File No.: 30025.
2004: December 8; 2005: June 28.
Present: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish and Charron JJ.
on appeal from the federal court of appeal
Administrative law — Judicial review — Standard of review — Role of reviewing court of secondary level of appellate review — Federal Court of Appeal setting aside findings of fact of Immigration and Refugee Board (Appeal Division) and making its own evaluation of evidence — Whether Federal Court of Appeal exceeded scope of its judicial review function — Federal Court Act, R.S.C. 1985, c. F‑7, s. 18.1(4) .
Immigration — Removal after admission — Offences committed outside Canada — Permanent resident alleged to have incited murder, genocide and hatred in speech made in Rwanda before obtaining permanent residency in Canada — Whether Federal Court of Appeal erred in finding speech did not constitute incitement to murder, genocide, or hatred — Whether permanent resident should be deported — Immigration Act, R.S.C. 1985, c. I‑2, s. 27(1)(a.1)(ii), (a.3)(ii).
Immigration — Removal after admission — Crime against humanity committed outside Canada — Permanent resident alleged to have committed crime against humanity because of speech made in Rwanda before obtaining permanent residency in Canada — Whether Federal Court of Appeal erred in finding that there were no reasonable grounds to believe speech constituted crime against humanity — Whether permanent resident should be deported — Immigration Act, R.S.C. 1985, c. I‑2, ss. 19(1)(j), 27(1)(g).
Criminal law — Elements of offences — Incitement to murder — Incitement to genocide — Incitement to hatred — Permanent resident alleged to have incited murder, genocide and hatred in speech made in Rwanda before obtaining permanent residency in Canada — Deportation — Standard of proof set out in relevant sections of Immigration Act — Whether elements of offences made out — Criminal Code, R.S.C. 1985, c. C‑46, ss. 318(1) , 319 , 464 (a) — Immigration Act, R.S.C. 1985, c. I‑2, s. 27(1)(a.1)(ii), (a.3)(ii).
Criminal law — Elements of offence — Crimes against humanity — Permanent resident alleged to have committed crimes against humanity because of speech made in Rwanda before obtaining permanent residency in Canada — Provisions of Criminal Code to be interpreted and applied in accordance with international law — Deportation — Standard of proof set out in relevant sections of Immigration Act — Whether elements of offence made out — Criminal Code, R.S.C. 1985, c. C‑46, s. 7(3.76) , (3.77) — Immigration Act, R.S.C. 1985, c. I‑2, s. 19(1)(j), 27(1)(g).
On November 22, 1992, M, an active member of a hard‑line Hutu political party opposed to a negotiation process then under way to end the war, spoke to about 1,000 people at a meeting of the party in Rwanda. The content of the speech eventually led the Rwandan authorities to issue the equivalent of an arrest warrant against M, who fled the country shortly thereafter. In 1993, he successfully applied for permanent residence in Canada. In 1995, the Minister of Citizenship and Immigration commenced proceedings under ss. 27(1) and 19(1) of the Immigration Act to deport M on the basis that by delivering his speech, he had incited to murder, genocide and hatred, and had committed a crime against humanity. An adjudicator concluded that the allegations were valid and issued a deportation order against M. The Immigration and Refugee Board (Appeal Division) (“IAD”) upheld the decision. The Federal Court – Trial Division dismissed the application for judicial review on the allegations of incitement to commit murder, genocide or hatred, but allowed it on the allegation of crimes against humanity. The Federal Court of Appeal (“FCA”) reversed several findings of fact made by the IAD, found the Minister’s allegations against M to be unfounded and set aside the deportation order.
Held: The appeal should be allowed. The deportation order is valid and should be restored.
(1) Standard of Review
The FCA erred in its application of the standard of review. At the secondary level of appellate review, the court’s role is limited to determining, based on the correctness standard, whether the reviewing judge has chosen and applied the correct standard of review. In this case, the FCA exceeded the scope of its judicial review function when it engaged in a broad‑ranging review and reassessment of the IAD’s findings of fact, even though it had not been demonstrated that the IAD had made a reviewable error on the applicable standard of reasonableness. The FCA did not focus on the reasonableness of the findings, but reviewed their correctness on its own view of the evidence. The IAD’s findings of fact, as stated by the panel member who wrote the main reasons, were based on a careful review of all the evidence and were reasonable. The FCA should have proceeded with the review of the Minister’s allegations on the basis of the facts as found by the IAD, including the findings of fact in relation to the interpretation of the speech. On questions of law, however, the standard of review is correctness. The IAD is thus not entitled to deference when it comes to defining the elements of a crime or whether the Minister’s burden of proof has been discharged. [35‑36] [39‑43] [59]
(2) Incitement to Murder, Genocide and Hatred
For the purposes of this case, where the Minister relies on a crime committed abroad, a conclusion that the elements of the crime in Canadian criminal law have been made out will be deemed to be determinative in respect of the commission of crimes under Rwandan criminal law. With respect to the specific allegations made pursuant to s. 27(1)(a.1)(ii) and (a.3)(ii) of the Immigration Act, the evidence adduced by the Minister must meet the civil standard of the balance of probabilities. The Minister must prove that, on the facts of this case as found on a balance of probabilities, the speech constituted an incitement to murder, genocide or hatred. [58‑61]
In the case of the allegation of incitement to murder, the offence of counselling under s. 464 (a) of the Criminal Code requires that the statements, viewed objectively, actively promote, advocate, or encourage the commission of the offence. The criminal act will be made out where the statements are (1) likely to incite, and (2) are made with a view to inciting the commission of the offence. An intention to bring about the criminal result will satisfy the requisite mental element for the offence. Here, the allegation of incitement to murder that is not committed is well founded. The IAD’s findings of fact support the conclusion that viewed objectively, the message in M’s speech was likely to incite, and was made with a view to inciting murder even if no murders were committed. M conveyed to his listeners, in extremely violent language, the message that they faced a choice of either exterminating the Tutsi, the accomplices of the Tutsi, and their own political opponents, or being exterminated by them. M intentionally gave the speech, and he intended that it result in the commission of murders. Given the context of ethnic massacres taking place at that time, M knew his speech would be understood as an incitement to commit murder. [64] [77‑80]
As for the allegation of incitement to genocide (pursuant to s. 318 of the Code), the Minister does not need to establish a direct causal link between the speech and any acts of murder or violence. The criminal act requirement for incitement to genocide has two elements: the act of incitement must be direct and public. In order for a speech to constitute a direct incitement, the words used must be clear enough to be immediately understood by the intended audience. The guilty mind is an intent to directly prompt or provoke another to commit genocide. The person who incites must also have the specific intent to commit genocide. Intent can be inferred from the circumstances. In this case, the allegation of incitement to the crime of genocide is well founded. M’s message was delivered in a public place at a public meeting and would have been clearly understood by the audience. M also had the requisite mental intent. He was aware that ethnic massacres were taking place when he advocated the killing of members of an identifiable group distinguished by ethnic origin with intent to destroy it in part. [85‑89] [94‑98]
Under s. 319(1) of the Code, the offence of inciting hatred against an identifiable group is committed if such hatred is incited by the communication, in a public place, of statements likely to lead to a breach of the peace; under s. 319(2), the offence is committed only by wilfully promoting hatred against an identifiable group through the communication of statements other than in private conversation. To promote hatred, more than mere encouragement is required. Only the most intense forms of dislike fall within the ambit of s. 319 . The section does not require proof that the communication caused actual hatred. The guilty mind required by s. 319(1) is something less than intentional promotion of hatred. Under s. 319(2), the person committing the act must have had as a conscious purpose the promotion of hatred against the identifiable group or must have communicated the statements even though he or she foresaw that the promotion of hatred against that group was certain to result. In many instances, evidence of the mental element will flow from the establishment of the elements of the criminal act of the offence. The trier of fact must consider the speech objectively but with regard for the circumstances in which the speech was given, the manner and tone used, and the persons to whom the message was addressed. The court looks at the understanding of a reasonable person in the social and historical context. Here, the allegation of incitement to hatred was well founded. The IAD’s analysis of the speech supports the inference that M intended to target Tutsi and encourage hatred of and violence against that group. His use of violent language and clear references to past ethnic massacres exacerbated the already vulnerable position of Tutsi in Rwanda in the early 1990s. [100‑107]
The Minister has discharged his burden of proof. Based on the balance of probabilities, M committed the proscribed acts and is therefore inadmissible to Canada by virtue of s. 27(1) of the Immigration Act. [108]
(3) Crimes Against Humanity
Under s. 19(1)(j) of the Immigration Act, a person shall not be granted admission to Canada if there are “reasonable grounds to believe” that the person has committed a “crime against humanity” outside Canada. The “reasonable grounds to believe” standard requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities. Reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information. This standard of proof applies to questions of fact. Whether the facts meet the requirements of a crime against humanity is a question of law. The facts, as found on the “reasonable grounds to believe” standard, must show that the speech did constitute a crime against humanity in law. The evidence reviewed and relied upon by the panel member who wrote the main reasons for the IAD’s decision clearly meets the “reasonable grounds to believe” standard in that it consists of compelling and credible information that provides an objective basis for his findings of fact. [113‑117]
Crimes against humanity, like all crimes, consist of a criminal act and a guilty mind. Under s. 7(3.76) of the Criminal Code , the criminal act for such a crime is made up of three elements: (1) one of the enumerated proscribed acts is committed; (2) the act occurs as part of a widespread or systematic attack; and (3) the attack is directed against any civilian population or any identifiable group. Based on the IAD’s findings of fact, each of these elements has been made out. [127‑128] [170]
With respect to the first element, both the physical and mental elements of an underlying act must be made out. In the case at bar, there were two possible underlying acts: counselling of murder, and persecution by hate speech. For counselling of murder to be considered a crime against humanity under international law, murders must actually have been committed. The IAD’s finding that no murders were proven to have resulted from the speech therefore precludes a finding that M counselled murder within the meaning of s. 7(3.76), as interpreted in light of customary international law. The other possible underlying act, persecution, is a gross or blatant denial of fundamental rights on discriminatory grounds equal in severity to the other acts enumerated in s. 7(3.76). Hate speech, particularly when it advocates egregious acts of violence, may constitute persecution, even if it does not result in the commission of acts of violence. The requisite mental element for persecution is that the person committing the act must have intended to commit the persecutory act and must have committed the act with discriminatory intent. The requirement of discriminatory intent is unique to persecution. Here, M’s speech bears the hallmarks of a gross or blatant act of discrimination equivalent in severity to the other underlying acts listed in s. 7(3.76). Further, the IAD’s findings of fact amply support a finding that M committed the criminal act of persecution with the requisite discriminatory intent. [142] [147‑150]
As for the last two elements, they require that the proscribed act take place in a particular context: a widespread or systematic attack, usually violent, directed against any civilian population. The widespread or systematic nature of the attack will ultimately be determined by examining the means, methods, resources and results of the attack upon a civilian population. There is currently no requirement in customary international law that a policy underlie the attack. Furthermore, the attack must be directed against a relatively large group of people, mostly civilians, who share distinctive features which identify them as targets of the attack. A link must be demonstrated between the act and the attack. In essence, the act must further the attack or clearly fit the pattern of the attack, but it need not comprise an essential or officially sanctioned part of it. A persecutory speech which encourages hatred and violence against a targeted group furthers an attack against that group. In this case, in view of the IAD’s findings, M’s speech was a part of a systematic attack that was occurring in Rwanda at the time and was directed against Tutsi and moderate Hutu, two groups that were ethnically and politically identifiable and were a civilian population as this term is understood in customary international law. [153] [156‑158] [161‑170]
Section 7(3.76) requires, in addition to the mental element of the underlying act, that the person committing the act have knowledge of the attack and either know that his or her acts comprise part of it or take the risk that his or her acts will comprise part of it. Knowledge may be factually implied from the circumstances. The IAD’s findings clearly indicate that M possessed the required culpable mental state. M was a well‑educated man who was aware of his country’s history, of past massacres of Tutsi and of the ethnic tensions in his country, and who knew that civilians were being killed merely by reason of ethnicity or political affiliation. Moreover, the speech itself left no doubt that M knew of the violent and dangerous state of affairs in Rwanda in the early 1990s. Lastly, a man of his education, status and prominence on the local political scene would necessarily have known that a speech vilifying and encouraging acts of violence against the target group would have the effect of furthering the attack. [172‑177]
Since there are reasonable grounds to believe that M committed a crime against humanity, he is inadmissible to Canada by virtue of ss. 27(1)(g) and 19(1)(j) of the Immigration Act. [179]
Cases Cited
Applied: R. v. Dionne (1987), 38 C.C.C. (3d) 171; Prosecutor v. Akayesu, 9 IHRR 608 (1998), aff’d Case No. ICTR‑96‑4‑A, 1 June 2001; R. v. Keegstra, [1990] 3 S.C.R. 697; Prosecutor v. Ruggiu, 39 ILM 1338 (2000); 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; Prosecutor v. Blaskic, 122 ILR 1 (2000); overruled: R. v. Finta, [1994] 1 S.C.R. 701; referred to: Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19; Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315; R. v. Ford (2000), 145 C.C.C. (3d) 336; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Prosecutor v. Nahimana, Barayagwiza and Ngeze, Case No. ICTR‑99‑52‑T‑I, 3 December 2003; Canadian Jewish Congress v. North Shore Free Press Ltd. (No. 7) (1997), 30 C.H.R.R. D/5; R. v. Buzzanga and Durocher (1979), 49 C.C.C. (2d) 369; Prud’homme v. Prud’homme, [2002] 4 S.C.R. 663, 2002 SCC 85; Société St‑Jean‑Baptiste de Montréal v. Hervieux‑Payette, [2002] R.J.Q. 1669; Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433; Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297; Sabour v. Canada (Minister of Citizenship & Immigration) (2000), 9 Imm. L.R. (3d) 61; Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298; Prosecutor v. Rutaganda, Case No. ICTR‑96‑3‑T‑I, 6 December 1999; Prosecutor v. Kordic and Cerkez, ICTY, Case No. IT‑95‑14/2‑T‑III, 26 February 2001; Prosecutor v. Kupreskic, ICTY, Case No. IT‑95‑16‑T‑II, 14 January 2000; Prosecutor v. Kayishema, Case No. ICTR‑95‑1‑T‑II, 21 May 1999; Prosecutor v. Mrksic, Radic and Sljivancanin, 108 ILR 53 (1996); Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, I.C.J. Reports 1951, p. 15; Prosecutor v. Tadic, 112 ILR 1 (1997), aff’d in part 124 ILR 61 (1999).
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 2 (b).
Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, ss. 4 , 6 .
Criminal Code, R.S.C. 1985, c. C‑46, ss. 7(3.76) , (3.77) , 21 , 22 , 235 , 318(1) , (2) , (4) , 319 , 464 (a).
Federal Court Act, R.S.C. 1985, c. F‑7, s. 18.1(4) (c), (d).
Immigration Act, R.S.C. 1985, c. I‑2, ss. 19(1), (j), 27(1), (a.1)(ii), (a.3)(ii), (e), (g), 69.4(3).
Immigration and Refugee Protection Act, S.C. 2001, c. 27 .
Penal Code (Rwanda), ss. 91(4), 166, 311, 393.
Treaties and Other International Instruments
Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277, art. II, III(c).
Rome Statute of the International Criminal Court, A/CONF. 183/9, 17 July 1998, art. 7(2)(a).
Statute of the International Criminal Tribunal for Rwanda, U.N. Doc. S/RES/955, November 8, 1994.
Statute of the International Criminal Tribunal for the Former Yugoslavia, U.N. Doc. S/RES/827, May 25, 1993.
Authors Cited
Bassiouni, M. Cherif. Crimes Against Humanity in International Criminal Law, 2nd rev. ed. The Hague: Kluwer Law International, 1999.
Mettraux, Guénaël. “Crimes Against Humanity in the Jurisprudence of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda” (2002), 43 Harv. Int’l L.J. 237.
APPEAL from a judgment of the Federal Court of Appeal (Décary, Létourneau and Pelletier JJ.A.), [2004] 1 F.C.R. 3, 232 D.L.R. (4th) 75, 309 N.R. 14, 31 Imm. L.R. (3d) 159, [2003] F.C.J. No. 1292 (QL), 2003 FCA 325, with supplementary reasons (2004), 325 N.R. 134, 40 Imm. L.R. (3d) 1, [2004] F.C.J. No. 710 (QL), 2004 FCA 157, varying the decision of Nadon J. (2001), 205 F.T.R. 29, [2001] 4 F.C. 421, [2001] F.C.J. No. 724 (QL), 2001 FCT 460. Appeal allowed.
Michel F. Denis, Normand Lemyre and Louise‑Marie Courtemanche, Q.C., for the appellant.
Guy Bertrand and Josianne Landry‑Allard, for the respondents.
David Matas, for the interveners the League for Human Rights of B’nai Brith Canada, PAGE RWANDA and the Canadian Centre for International Justice.
Written submissions only by Benjamin Zarnett, Francy Kussner and Daniel Cohen, for the interveners the Canadian Jewish Congress, the University of Toronto, Faculty of Law — International Human Rights Clinic, and Human Rights Watch.
The following is the judgment delivered by
The Chief Justice and Major, Bastarache, Binnie, LeBel, Deschamps, Fish and Charron JJ. —
I. Introduction
1 In this appeal, this Court is required to determine whether the Federal Court of Appeal erred in overturning a decision of the Immigration and Refugee Board (Appeal Division) that had found the respondent inadmissible to Canada pursuant to ss. 27(1)(a.1)(ii), 27(1)(a.3)(ii), 27(1)(g) and 19(1)(j) of the Immigration Act, R.S.C. 1985, c. I‑2 (now replaced by the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ).
2 The outcome of the appeal hinges on the characterization of a speech delivered by the respondent Léon Mugesera in Rwanda in the Kinyarwandan language. The speech triggered a series of events that have brought the Government of Canada and Mr. Mugesera to this Court.
3 In short, the content of the speech led the Rwandan authorities to issue the equivalent of an arrest warrant against Mr. Mugesera, who fled the country shortly thereafter. He found temporary refuge in Spain. On March 31, 1993, he applied for permanent residence in Canada for himself, his wife, Gemma Uwamariya, and their five children, Irenée Rutema, Yves Rusi, Carmen Nono, Mireille Urumuri and Marie‑Grâce Hoho. After the application was approved, the Mugesera family landed in Canada in August 1993.
4 In 1995, the Minister of Citizenship and Immigration became aware of allegations against the respondent and commenced proceedings under s. 27 of the Immigration Act. A permanent resident of Canada may be deported if it is determined, inter alia, that before or after being granted permanent residency, the individual committed criminal acts or offences. In this case, the speech was alleged to constitute an incitement to murder, hatred and genocide, and a crime against humanity.
5 In July 1996, an adjudicator concluded that the allegations were valid and issued a deportation order against Mr. Mugesera and his family. The Immigration and Refugee Board (Appeal Division) (“IAD”) upheld the adjudicator’s decision and dismissed the respondents’ appeal ([1998] I.A.D.D. No. 1972 (QL)). The findings of fact and law were subject to judicial review in the Federal Court – Trial Division (“FCTD”) ((2001), 205 F.T.R. 29, 2001 FCT 460), and then in the Federal Court of Appeal (“FCA”). Décary J.A., writing for the FCA, reversed several findings of fact made by the IAD and reversed the deportation order, concluding that the Minister had not met his burden ([2004] 1 F.C.R. 3, 2003 FCA 325, with supplementary reasons (2004), 325 N.R. 134, 2004 FCA 157). The Minister has now appealed to this Court, and he asks that the IAD’s deportation order be confirmed.
6 This appeal raises a number of issues. First, we must consider the standard of review which a reviewing court should apply to findings of fact and conclusions of law. Second, we must apply the appropriate standard of review to determine the facts. This inquiry focuses on the interpretation of the contents of the speech which lies at the heart of these proceedings. Third, having determined the operative facts — what Mr. Mugesera said in the speech — we must apply the law to that speech to determine whether the legal requirements for a deportation order are met. This requires us to consider the provisions of the Immigration Act relating to the applicable standard of proof, and the provisions of the Criminal Code, R.S.C. 1985, c. C-46 , relating to incitement to murder, incitement to hatred, incitement to genocide, and crimes against humanity.
7 For the reasons that follow, we would allow the appeal. The decision of the FCA should be set aside and the decision of the IAD in favour of deportation should be restored.
II. Background and Judicial History
A. Overview of Rwandan History
8 There is no doubt that genocide and crimes against humanity were committed in Rwanda between April 7 and mid-July 1994. Although we do not suggest that there is absolutely no connection between the events, it is important to be mindful that one cannot use the horror of the events of 1994 to establish the inhumanity of the speech of November 22, 1992. The allegations made against Mr. Mugesera must be analysed in their context, at the time of his speech.
9 In order to fully understand the content of the speech of November 22, 1992, it is necessary to situate the speech in the historical context in which it was given. “What we have is a speech delivered in a political context, to an audience that is already aware of several facts, but for which we need explanations if we are to follow it clearly” (IAD judgment, at para. 133).
10 We will not examine Rwandan history at length but will highlight some key facts and events that are relevant to the disposition of the issues on this appeal.
(1) The Political and Ethnic Context
11 Rwanda is a small, extremely hilly country in the Great Lakes region of Central Africa. In 1992 there were three officially recognized ethnic groups living in Rwanda: the Hutu, the Tutsi, and the Twa. The Hutu and the Tutsi were the two major ethnic groups as the Twa represented only about 1 percent of the population.
12 Although there are different explanations regarding the origin of and distinction between the two major ethnic groups, the IAD found that in 1992 a large number of Rwandans apparently believed the theory propagated by the colonists that the Tutsi were a distinct race who originated in Ethiopia. It was also common lore that the Tutsi had invaded and conquered Rwanda and enslaved its inhabitants, the Hutu (IAD judgment, at para. 45). The distinction between the groups was permanently entrenched at the time of colonization and with the introduction of identification cards. The European colonial authorities, first German and then Belgian, favoured the Tutsi and used them to administer the colony.
13 In 1959, shortly before the country gained independence, its first political parties were formed. They had ethnic rather than ideological foundations. The major Hutu party, the Parmehutu, won the June 1960 election. With the establishment of the first Republic in 1961, the entire Tutsi political and administrative structure was eliminated. In Rwanda, violence and harassment caused a large number of Tutsi to flee the country, mainly to Uganda. The IAD referred to the 1959‑1961 revolution as the “crucial point of reference for three decades” (para. 49). A cycle of violence emerged. Tutsi in exile made incursions into Rwanda and each attack was followed by reprisals against Tutsi within the country. The IAD, at para. 26, described the situation as follows:
Some refugees began to attack Rwanda in 1961 and tried to invade the country about a dozen times. These were the Inyenzi. After each attack, the Tutsi remaining in Rwanda suffered reprisals that were either spontaneous or organized by the authorities. And each time waves of refugees left Rwanda. Some relatively extensive massacres occurred in 1963 (5,000 to 8,000 deaths alone in Gikongoro prefecture).
Further disturbances and massacres thrust more large groups into exile. An estimated 600,000 people, essentially Tutsi, left Rwanda between 1959 and 1973. [Footnotes omitted.]
14 In the wake of the massacres and of general discrimination in the period between 1963 and 1973, about one half of the Tutsi population left Rwanda (IAD judgment, at para. 49).
15 On July 5, 1973, General Juvénal Habyarimana seized power in “a coup d’état”. This was the advent of Rwanda’s second Republic. The Mouvement révolutionnaire national pour le développement (“MRND”), a hard-line Hutu political party, became the sole official party. In July 1986, the government declared that the return of refugees was conditional upon their ability to support themselves. Rwanda was not capable of settling the large numbers of refugees who had fled the country. Tutsi refugees were not able to return to Rwanda. This led to the creation of the Rwandan Patriotic Front (“RPF”) in Kampala, Uganda. The RPF consisted of Rwandan refugees and former members of the Ugandan army. The objective of the exiles was to return to Rwanda.
16 In 1988, at an international conference of Rwandan refugees held in Washington, the Rwandan government reversed its position and a full right of return was affirmed. A special committee was created to deal with the problem of Rwandan refugees living in Uganda. The committee met a number of times to develop a plan for the return. Although this process created a “dynamic of confrontation” the period was one of relative peace (IAD judgment, at para. 26).
(2) The Early 1990s
17 On July 5, 1990, President Habyarimana announced a [translation] “political aggiornamento” and his wish to create a multiparty government with a new constitution. In September, a [translation] “national synthesis commission” on political reform was established. It began its work in October 1990.
18 The RPF invaded northern Rwanda on October 1, 1990. Mass arrests and the detention of alleged RPF accomplices, 90 percent of whom were Tutsi, followed. The Minister of Justice considered Tutsi intellectuals to be RPF accomplices. Several massacres were perpetrated by the Rwandan army. By the end of October, the Rwandan army had pushed the insurgents back across the Ugandan border. This marked the end of conventional warfare and the beginning of a protracted semi-guerilla war. Between October 1990 and January 1993 approximately 2,000 Tutsi were massacred. There were also reports that hundreds of civilians had been attacked and killed by the RPF.
19 In late March 1991, a draft political charter was published along with a preliminary draft constitution. New political parties were created: the Mouvement démocratique républicain (“MDR”), the Parti social-démocrate (“PSD”), the Parti libéral (“PL”) and the Parti démocrate-chrétien (“PDC”). The PL was the only party that was more or less identified with the Tutsi. On April 28, 1991, President Habyarimana announced changes to the MRND: the party’s name was changed to Parti républicain national pour le développement et la démocratie, and members of its central committee would henceforth be elected. A new constitution introducing the multiparty system was adopted on June 10, 1991, and this was followed on June 18 by the promulgation of a new law on political parties.
20 In December 1991, Prime Minister Nsanzimana announced the creation of a new government made up entirely of MRND members with the exception of one minister of the PDC. Thousands of people protested against this decision. As a result, negotiations between the MRND and the opposition parties resumed in February 1992. These discussions led to the formation of a multiparty transitional government in April. In response, the MRND militia launched attacks in several parts of the country.
21 The RPF had not been included in the initial negotiations, but in May 1992 it occupied a small part of northern Rwanda, which forced the new government to negotiate with it. Three agreements between the government and the RPF were concluded in Arusha: a cease-fire agreement on July 12, a rule of law protocol on August 18, and the initial power-sharing agreement on October 30. The day after the signing of the protocol, there were massacres of Tutsi and moderate Hutu.
22 On November 15, 1992, President Habyarimana referred to the Arusha accords as a scrap of paper. Months of escalating violence followed. There were reports of massacres of Tutsi and of political opponents. Nevertheless, the Arusha talks were resumed in March of 1993, and on August 4, 1993 the Government and the RPF signed the final Arusha accords and ended the war that had begun on October 1, 1990.
23 It was in this context of internal political and ethnic conflict that Mr. Mugesera made his speech. At the time, Mr. Mugesera was a well-educated and well-connected man. After receiving part of his higher education and completing a graduate degree in Canada, he returned to Rwanda, where he held teaching and public service positions. He also got involved in local politics. He was an active member of the MRND, the hard-line Hutu party which opposed the Arusha process.
24 On November 22, 1992, Mr. Mugesera delivered the speech which lies at the heart of this case. (See Appendix III. Paragraph numbering has been added to the speech for easier reference.) He spoke to about 1,000 people at a meeting of the MRND, at Kabaya in Gisenyi prefecture, just a few days after the speech in which President Habyarimana had described the Arusha agreements as a scrap of paper. As mentioned above, the contents of this speech led to an attempt to arrest Mr. Mugesera and to his flight to Canada, where he found refuge in August 1993.
B. The Allegations Against Mr. Mugesera
25 After receiving further information about the activities of Mr. Mugesera in Rwanda, the Minister of Citizenship and Immigration moved to deport the respondent and his family under s. 27 of the Immigration Act. The Minister alleged that the speech constituted an incitement to commit murder (A), an incitement to genocide and to hatred (B), and a crime against humanity (C). The Minister also alleged that by answering “no” on his permanent resident application to the question of whether he had been involved in a crime against humanity, Mr. Mugesera had misrepresented a material fact, contrary to the Act (D). A summary of the Minister’s allegations is attached as Appendix I.
26 At the hearing before this Court, the Minister dropped the allegation of misrepresentation of a material fact. As this allegation would have been the sole basis for a deportation order against the members of Mr. Mugesera’s family, the Minister no longer seeks to deport them.
C. The Proceedings Below
27 The proceedings before the adjudicator, Pierre Turmel, went on for 29 days and involved 21 witnesses. In his decision of July 11, 1996, the adjudicator ordered the deportation from Canada of Mr. Mugesera, his wife, and their children, who appealed the decision to the IAD. Although a hearing before the IAD is in fact a hearing de novo and the IAD may consider new evidence, the parties agreed that all the evidence at first instance would be filed in full on the appeal. In addition, each of the parties called four witnesses. The hearing lasted 24 days. The IAD found that all the Minister’s allegations were justified and dismissed the family’s appeal.
28 Pierre Duquette wrote the main reasons for the IAD’s decision. Based on his interpretation of the speech, he held that the allegations of incitement to murder, genocide and hatred had been established. In his opinion, the allegation of crimes against humanity had also been made out. Mr. Duquette concluded that there was insufficient evidence to find, on a balance of probabilities, that Mr. Mugesera was a member of the death squads, that he participated in massacres, or that the killings committed in Rwanda following the speech were specifically tied to the speech. The other two members of the panel, Yves Bourbonnais and Paule Champoux Ohrt, concurred in part with these reasons, but disagreed with Mr. Duquette’s findings on the allegations that Mr. Mugesera incited others to commit murders and that one or more murders were committed as a result. They concluded, on a balance of probabilities, that murders were committed the day after the speech and that some of them were directly related to the speech. They also found that Mr. Mugesera was an Akazu and death squad member and that he participated in massacres. (The Akazu was a political and business network that was very close to President Habyarimana, and in particular to his wife’s family. The Akazu was also one element of the death squads.) These acts constituted offences under ss. 91(4) of Book I and 311 of Book II of the Rwandan Penal Code, and would also have been crimes under ss. 22 , 235 and 464 (a) of the Criminal Code .
29 Mr. Mugesera applied to the Federal Court for judicial review of the IAD’s decision. On May 10, 2001, after a hearing that lasted 14 days, Nadon J. found that there was no basis for allegations C (crimes against humanity) and D (misrepresentation), but that allegations A (incitement to murder) and B (incitement to genocide and hatred) were valid. With regard to the IAD’s analysis of the speech, Nadon J. found that Mr. Duquette’s reasons evinced a painstaking and careful analysis based on the evidence. It was therefore impossible for him to conclude that the interpretation of the speech and the resulting findings of fact were unreasonable. He acknowledged the applicant’s argument that an interpretation other than the one accepted by Mr. Duquette was possible and could have been accepted, but found that this was not a reason to intervene. The applicable principles of judicial review are clear: unless the impugned conclusions are patently unreasonable, the IAD’s findings of fact are entitled to great deference. Nadon J. dismissed the application for judicial review on allegations A and B and allowed it on allegations C and D. In respect of allegation C, he concluded that because Mr. Duquette could not link the speech to murders or massacres, it could not in the circumstances constitute a crime against humanity. He referred the matter back to the IAD for reconsideration on this point of law.
30 In the FCA, Décary J.A., who wrote the main reasons for the court, held regarding the allegations of incitement to murder and incitement to genocide and hatred, that the initial decision by the Mini