Mungwarere v. Canada (Public Safety and Emergency Preparedness)

Mungwarere v. Canada (Public Safety and Emergency Preparedness)
Court (s) Database
Federal Court Decisions
Date
2017-07-21
Neutral citation
2017 FC 708
File numbers
IMM-2575-16
Notes
A correction was made on June 11, 2021.
Decision Content
Date: 20170721
Docket: IMM-2575-16
Citation: 2017 FC 708
[ENGLISH TRANSLATION]
Ottawa, Ontario, July 21, 2017
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
JACQUES MUNGWARERE
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
PUBLIC JUDGMENT AND REASONS
(Public version released on October 11, 2017)
[1] On June 2, 2016, the Immigration and Refugee Board of Canada’s [IRB] Immigration Division [ID] issued a deportation order against the applicant, Mr. Jacques Mungwarere, on the grounds that he was inadmissible for violating human or international rights [impugned decision].
[2] On June 17, 2016, the applicant filed this application for judicial review to declare invalid or unlawful, or quash, set aside or refer back for determination, in accordance with such directions as the Court considers to be appropriate, the impugned decision.
[3] On October 4, 2016, this Court ordered the redacting and sealing of the parties’ main files, as well as the reply memorandum in accordance with Appendix “A” attached to the respondent’s motion record, as well as the sealing of the applicant’s motion record and the respondent’s reply record for obtaining the confidentiality order. On December 16, 2016, this Court received a certified copy of the court record under confidential seal, as the ID, on November 2, 2015, ordered that the entire admissibility hearing be held in camera. On February 16 and April 24, 2017, the Court heard counsels’ oral submissions.
[4] For the reasons that follow, this application for judicial review should be allowed in part. A complete version of the Court’s judgment and confidential reasons were released on July 21, 2017. The Court is satisfied that paragraphs 49, 50, 56, 58, 79, 86 to 91 and 97 of the reasons for judgment should remain confidential in whole or in part. The following is a public version of said reasons, as amended by the Court on October 11, 2017, according to the parties’ proposed redactions. An order partly maintaining the confidentiality of various sealed exhibits and parts of the certified court record and the parties’ records was issued concurrently by the Court after submissions were received from counsel.
I. Applicable law
[5] As we will see further on, the applicant is first claiming that the ID’s admissibility hearing with respect to his involvement in the Rwandan genocide constitutes an abuse of process on the basis that he was acquitted by the Ontario Superior Court of Justice [OSCJ] of criminal charges of genocide and crimes against humanity that had been laid against him. Alternatively, the applicant submits that the OSCJ’s findings have force of res judicata and, therefore, the impugned decision is unreasonable. We will in turn examine the law that applies to genocide and crimes against humanity from the perspective of the three possible scenarios (criminal charges, refugee status exclusions, and inadmissibility).
A. Criminal charges
[6] First, in international law, crimes against humanity can be committed both in times of war and peace. Various international instruments, including article 7 of the Rome Statute of the International Criminal Court, which was signed on July 17, 1998, and came into force on July 1, 2012 [2187 UNTC I-38544] [Rome Statute], provide definitions of crimes against humanity. Generally speaking, they involve criminal acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of this attack, for national, political, racial, or religious reasons. Think of a whole series of inhuman acts, such as murder, extermination, enslavement, and deportation. Similarly, crimes including torture, rape, and persecution are also included. It goes without saying that genocide is a crime against humanity.
[7] Recognizing that the most serious crimes that affect the international community as a whole should not go unpunished and that they must be effectively suppressed through action within a national framework and greater international cooperation, the Parliament of Canada adopted the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24 [CAHWCA], which criminalizes genocide, crimes against humanity, and war crimes, whether they are committed in Canada (sections 4 and 5) or outside Canada (section 6). Specifically, anyone who commits genocide or crime against humanity abroad—before or after section 6 of the CAHWCA came into effect—is guilty of an indictable offence (paragraphs 6(1)(a) et (b) of the CAHWCA). A person who conspires or attempts to commit one of these offences is also guilty of an indictable offence and is complicit after the fact or counselled to commit it (subsection 6(1.1) of the CAHWCA). In fact, the perpetrator of such an act may be charged and be prosecuted under sections 8 and 9 of the CAHWCA, as well as the relevant provisions of the Criminal Code, R.S.C. 1985, c. C-46.
[8] In this regard, although the Supreme Court of Canada has considered issues of genocide and crimes against humanity on the basis of the former provisions of the Criminal Code and the former Immigration Act, R.S.C. 1985, c. I-2, what was written in 2005 in Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 S.C.R 40, [2005] SCJ No 39 [Mugesera] is still relevant today. Having noted that subsections 7(3.76) and (3.77) of the Criminal Code have since been repealed, that crimes against humanity are now defined in and proscribed by sections 4 and 6 of the CAHWCA, and that the current definition “differs slightly” from the definition in the Criminal Code and the principles of international law, an indictable offence—such as murder, which is an “underlying offence”—must meet four conditions to be considered a crime against humanity (Mugesera at paras 118 and 119).
[9] Those conditions are:
a) An enumerated proscribed act was committed (this involves showing that the accused committed the criminal act and had the requisite guilty state of mind for the underlying act);
b) The act was committed as part of a widespread or systematic attack;
c) The attack was directed against any civilian population or any identifiable group of persons; and
d) 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.
[10] However, subsection 2(2) of the CAHWCA states that “[u]nless otherwise provided, words and expressions used in this Act have the same meaning as in the Criminal Code.” Consequently, the conviction of a person accused of genocide or crimes against humanity is determined in Canada based on the “beyond a reasonable doubt” standard.
B. Refugee status exclusion
[11] Second, on the margins of criminal process, various international instruments establish not only the criteria for recognizing refugee status, but also the criteria under which persons who have committed crimes against humanity may be excluded from international protection. The exclusion clauses serve to uphold the integrity of the institution of asylum. Specifically, paragraph 1Fa) of the United Nations’ Convention relating to the Status of Refugees, signed in Geneva on July 28, 1951, [Convention] provides for the exclusion of “any person with respect to whom there are serious reasons for considering that […] he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes.”
[12] In Canadian law, section 98 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA] specifically states that a person referred to in section E or F of the Convention is not a Convention “refugee” (section 97 of the IRPA). As the Supreme Court of Canada noted at para 38 of Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, [2013] FCJ No 40 [Ezokola], contrary to international criminal tribunals, the RPD does not determine guilt or innocence, but to exclude ab initio those who are not bona fide refugees at the time of their claim for refugee status. Another difference is that asylum may be denied if there are serious reasons for considering that the applicant has committed a crime against peace, a war crime, or a crime against humanity (article 1Fa)). This standard of proof is less strict than that applied at a criminal trial, but it requires more than mere suspicion.
[13] On the other hand, according to Ezokola, although the various modes of commission recognized in international criminal law articulate a broad concept of complicity, individuals will not be held liable for crimes committed by a group simply because they are associated with that group or because they passively acquiesced to the group’s criminal purpose (Ezokola at para 68). Common purpose liability, the broad residual mode of commission recognized in the Rome Statute, appears to require a significant contribution to a crime committed or attempted by a group acting with a common purpose. And while joint criminal enterprise, as recognized by the ad hoc tribunals, encompasses recklessness with respect to the crime or criminal purpose, even it does not capture individuals merely based on rank or association. Furthermore, the Supreme Court notes that other state parties to the Convention have approached article 1Fa) in a manner that concentrates on the actual role played by the particular person. Thus, a person may be complicit without being present at or physically contributing to the crime, but to be denied asylum, there must be evidence that the individual knowingly made a significant contribution to the group’s crime or criminal purpose. In other words, complicity that leaves any room for guilt by association or passive acquiescence violates the fundamental principles of criminal law.
[14] In addition, the Supreme Court held in Ezokola that excluding protection based on the criminal activities of the group and not on the individual’s contribution to that criminal activity must be firmly foreclosed in Canadian law. Whether an individual’s conduct meets the actus reus and mens rea for complicity will depend on the facts of each case, including (i) the size and nature of the organization; (ii) the part of the organization with which the claimant was most directly concerned; (iii) the claimant’s duties and activities within the organization; (iv) the claimant’s position or rank in the organization; (v) the length of time the claimant was in the organization, particularly after acquiring knowledge of the group’s crime or criminal purpose; and (vi) the method by which the claimant was recruited and claimant’s opportunity to leave the organization. These factors are not necessarily exhaustive, nor will each of them be significant in every case. Their assessment will necessarily be highly contextual, the focus must always remain on the individual’s contribution to the crime or criminal purpose, and any viable defences should be taken into account.
C. Inadmissibility
[15] Third, subsection 35(1) of the IRPA separately creates inadmissibility for violation of human or international rights for:
a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act;
b) being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act;
c) being a person, other than a permanent resident, whose entry into or stay in Canada is restricted pursuant to a decision, resolution or measure of an international organization of states or association of states, of which Canada is a member, that imposes sanctions on a country against which Canada has imposed or has agreed to impose sanctions in concert with that organization or association.
[16] Section 33 of the IRPA states the following: “The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur.” What distinguishes a criminal charge under the CAHWCA from the inadmissibility or exclusion proceedings under section 35 or section 98 of the IRPA is essentially the applicable burden of proof, which is much more onerous for criminal charges. In passing, there does not appear to be any significant differences between the “serious reasons for considering” in the refugee status exclusion clause (article 1F of the Convention) and the “reasonable grounds to believe” with respect to inadmissibility (Moreno v. Canada (Minister of Employment and Immigration), (CA), [1994] 1 FC 298).
[17] For determining inadmissibility, some decisions (“findings of fact set out in that decision”) have “conclusive findings of fact.” With respect of the application of paragraph 35(1)(a) of the IRPA, section 15 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR] stipulates the following:
For the purpose of determining whether a foreign national or permanent resident is inadmissible under paragraph 35(1)(a) of the Act, if any of the following decisions or the following determination has been rendered, the findings of fact set out in that decision or determination shall be considered as conclusive findings of fact:
Les décisions ci-après ont, quant aux faits, force de chose jugée pour le constat de l’interdiction de territoire d’un étranger ou d’un résident permanent au titre de l’alinéa 35(1)a) de la Loi :
(a) a decision concerning the foreign national or permanent resident that is made by any international criminal tribunal that is established by resolution of the Security Council of the United Nations, or the International Criminal Court as defined in the Crimes Against Humanity and War Crimes Act;
a) toute décision rendue à l’égard de l’intéressé par tout tribunal pénal international établi par résolution du Conseil de sécurité des Nations Unies ou par la Cour pénale internationale au sens de la Loi sur les crimes contre l’humanité et les crimes de guerre;
(b) a determination by the Board, based on findings that the foreign national or permanent resident has committed a war crime or a crime against humanity, that the foreign national or permanent resident is a person referred to in section F of Article 1 of the Refugee Convention; or
b) toute décision de la Commission, fondée sur les conclusions que l’intéressé a commis un crime de guerre ou un crime contre l’humanité, qu’il est visé par la section F de l’article premier de la Convention sur les réfugiés;
(c) a decision by a Canadian court under the Criminal Code or the Crimes Against Humanity and War Crimes Act concerning the foreign national or permanent resident and a war crime or crime against humanity committed outside Canada.
c) toute décision rendue en vertu du Code criminel ou de la Loi sur les crimes contre l’humanité et les crimes de guerre par un tribunal canadien à l’égard de l’intéressé concernant un crime de guerre ou un crime contre l’humanité commis à l’extérieur du Canada.
[18] Under subsection 44(1) of the IRPA, an officer of the Minister who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts [inadmissibility report]. From that moment, the Minister—the respondent in this case—may, if it is of the opinion that it is well-founded, refer the report to the ID for an admissibility hearing (section 44(2) de la IRPA).
[19] In the case at hand, the impugned decision was made under paragraph 45(1)(d) of the IRPA, which authorizes the ID to make the removal order against a foreign national or a permanent resident after the Minister has referred the case to it and if it is satisfied, following the hearing, that the foreign national or permanent resident referred to in the report prepared under subsection 44(1) of the IRPA is inadmissible.
II. Chronology of events
[20] Currently, the applicant is neither a Canadian citizen nor a permanent resident. The chronology of events leading up to the criminal charges against the applicant, the loss of his refugee status and his admissibility despite being acquitted, is not being challenged.
A. Background
[21] Genocide and crimes against humanity were committed in Rwanda in 1994. It should be noted that since the 1960s, Rwanda and Burundi had been the scene of bloody internal conflicts between the members of two opposing ethnic groups, the Hutus and Tutsis, who fought hard to maintain or seize power since the decolonization and independence of these two neighbouring countries in East Africa. Following a coup d’état in 1973, the head of the army, Juvénal Habyarimana, took power in Rwanda and in 1975 founded the National Republican Movement for Democracy and Development [NRMDD]. In 1986, Tutsi refugees in Uganda founded the Rwandan Patriotic Front [RPF], whose goal was to take power in Rwanda. On October 1, 1990, the RPF invaded northern Rwanda, triggering a civil war. This attack was supported by the majority of Tutsis abroad. Moreover, in Burundi in October 1992, Tutsi soldiers kidnapped and killed the new Hutu president, who had been democratically elected several months before. The Arusha Accords on Rwanda took place from June 1992 to August 1993 between the Rwandan Government and Paul Kagame’s RPF to end the civil war. However, the accords remained a dead letter.
[22] In 1993, Hutu extremists formed a group called “Hutu Power.” In opposition to the Arusha Accords and transcending partisan rivalries, it embodied the ethnic solidarity advocated by President Habyarima for three years. In fact, Hutu Power organized meetings in many communities, and several influential individuals met to develop genocide plans. Militias were created within the youth wings of political parties and received military training. The militia members from the youth wing of President Habyarimana’s party (the NRMDD) were called the Interahamwe, while those from the youth wing of the Coalition for the Defence of the Republic [CDR], a new Rwandan party, were known as the Impuzamugambi. Machetes were distributed to the militia, while the RPF, aware of the risks that any resumption of fighting would pose to Tutsis, recruited new supporters and fighters, in violation of the peace agreements. In late 1993, the hate speeches of the CDR broadcast on Radio Télévision Libre des Mille Collines [RTLM] labelled moderate Tutsis and Hutus as RPF collaborators and encouraged the militias to target Tutsis.
[23] On April 6, 1994, President Habyarimana and the new president of Burundi, Cyprien Ntaryamira, as well as several senior officials from Rwanda and Burundi were killed aboard the plane that was bringing them back from Tanzania, where they had been at a summit on the Burundi and Rwanda crises. Responsibility for this crime has never been established. Nevertheless, a small group close to President Habyarimana decided to take action. The Presidential Guard and other members of the Rwandan army commanded by Colonel Bagosora and supported by the militias took advantage of this incident to kill government officials and leaders of the opposition parties, thereby creating a vacuum that allowed Colonel Bagosora and his supporters to take power and to establish in the days that followed an interim government consisting mainly of members of Hutu Power.
[24] Indeed, between April 7 and mid-July 1994, a genocide occurred in Rwanda, and crimes against humanity were committed by various individuals and groups, including the army, the interim government, the gendarmerie and the militias, acting in concert and targeting the civilian Tutsi population in a widespread or systematic attack that lasted approximately 100 days. Although the initial organizers of the genocide were military and administrative officials in Colonel Bagosora’s immediate circle, they still had to obtain not only the collaboration of politicians, prefects, and mayors affiliated with the NRMDD, but also that of local officials and administrators from other parties that were dominant in central and southern Rwanda. This became possible as the extermination campaign progressed and moderate Hutus were killed.
[25] The perpetrators of the genocide had a common goal: to exterminate the Tutsi population. Yet, the perpetration of genocide requires concerted actions of several components of the civilian population and planning of actions to exterminate the individuals who are targeted. Because, in order to carry out a genocidal plan, it is first necessary to gather Tutsis in central areas. Furthermore, in many communities, Hutu Power militias attacked and burned Tutsi dwellings to force Tutsis to flee. Authorities then encouraged them to take refuge in churches, schools, and other public buildings so they were supposedly better protected. Once the Tutsis were together, militia members and civilians, many of whom were recruited under the command of soldiers, gendarmes and municipal police, attacked. Those with weapons opened fire and threw grenades into the middle of the area. Sometimes the buildings were also set on fire. The attackers then entered the buildings with machetes, hatchets, and knives to finish off the survivors. Once the massacres were finished in their own community, the militias would travel to surrounding communities to continue the exterminations or to trigger violent protests against Tutsis, if this was not already done. During these events, Tutsi women were often raped, tortured, and mutilated before being killed by the Hutu attackers.
[26] The applicant is a Rwandan national of Hutu ethnicity and was 22 years old at the time of the genocide. He was living with the rest of his family in Kibuye prefecture—one of the country’s eleven administrative regions. His father was a well-known figure in the area. The first major massacres in Kibuye Prefecture began around April 12, 1994. In fact, on April 16, 1994, a large-scale attack was launched against Tutsis who had sought refuge in the Mugonero hospital complex. Located in Ngoma, a sector in the Gishyta Commune, the complex is run by the Association of Seventh-Day Adventist Nurses. There is a nursing school, chapel, and hospital. Numerous militia members from the region or other regions were involved in the attack. A large majority of Tutsis died, and the survivors sought refuge in the hills surrounding Gitwe, Murambi, and Bisesero. From May to June 1994, brigades of armed individuals carried out almost daily attacks in the hills. Hundreds of Tutsis were kills or seriously injured. The attackers included members of the Rwandan army, militia members, and Hutu men from the civilian population.
[27] The RPF, with help from French troops, eventually ended the Rwandan genocide by routing the interim government and the army. However, in the months that followed, RPF soldiers were quick to kill individuals who were taken for Interahamwe or suspected of involvement in the genocide, and numerous summary executions occurred in the weeks and months following the takeover of Rwandan territory by the forces of General Kagame. In July 1994, approximately two million Rwandans, mostly Hutus, fled their country and ended up in refugee camps in Zaire, Tanzania, and Burundi.
[28] The applicant left Rwanda in July or August 1994, prior to the arrival of the RPF. For her part, Marie Claire Kubwiman, the applicant’s future wife, left Rwanda in July 1994. The couple lived in a refugee camp in Zaire for a while, where they met. In 1998, the settled in Belgium, where their minor child, Jerry Benson Simbi, was born. The three arrived in Canada in the fall of 2001 and immediately filed refugee claims. One year before, they had been denied protection by Belgian authorities due to a lack of credibility, an important material fact that was not disclosed to the IRB’s Refugee Protection Division [RPD].
B. Refugee status
[29] On April 11, 2002, the applicant, his wife, and minor child obtained refugee status in Canada. However, the applicant lied about his actual age and falsely stated that he had left Rwanda in February 1995, while his wife also lied about her actual age and falsely stated that she had left Rwanda in October 1994. Moreover, in her Belgian claim, the applicant’s spouse stated that her father’s name was Charles Sikubwabo and not Ferdinand Seburikoko, as noted in her Canadian Personal Information Form (PIF). Charles Sikubwabo was the mayor of Gishyita at the time of the genocide and is still wanted by the International Criminal Tribunal for Rwanda.
C. Charges of genocide and crimes against humanity
[30] On November 9, 2009, following an investigation by the Royal Canadian Mounted Police [RCMP], the applicant was arrested and accused of genocide and crimes against humanity due to his involvement and complicity in massacres that occurred in the Kibuye Region in 1994. The original indictment contained four charges: two charges of genocide and two charges of crimes against humanity. On April 16, 2012, the Crown decided to reduce the indictment to two counts, namely:
[TRANSLATION]
THAT SAID JACQUES MUNGWARERE, between April 1, 1994, and July 31, 1994, in the Prefecture of Kibuye, Rwanda, committed the intentional murder of an identifiable group of persons, namely Tutsis, with the intent to destroy, in whole or in part, Tutsis and committing genocide, as defined in subsections 6(3) and 6(4) of the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, thereby committing the indictable offence of genocide, as provided for in said Crimes Against Humanity and War Crimes Act; and
THAT SAID JACQUES MUNGWARERE, between April 1, 1994, and July 31, 1994, in the Prefecture of Kibuye, Rwanda, committed the intentional murder of a civilian population and an identifiable group of persons, namely Tutsis, knowing that said intentional murder was part of a widespread or systematic attack against Tutsis, committing a crime against humanity, as defined in subsections 6(3), 6(4) and 6(5) of the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, thereby committing an indictable offence of crimes against humanity as defined in paragraph 6(1)(b) of said Crimes Against Humanity and War Crimes Act.
[Emphasis in original.]
[31] The applicant’s criminal trial took place before Justice Charbonneau of the OSCJ from May 2012 to March 2013. On July 5, 2013, the applicant was found not guilty of both remaining counts (R c Jacques Mungwarere, 2013 ONCS 4594 [judgment of acquittal]). For the purpose of these proceedings, it is not necessary to summarize the 202-page judgment of acquittal, except to mention the following.
[32] At the outset, the parties agreed on the facts surrounding the genocide and massacres committed in the Kibuye Region, including the major attack of April 16, 1994, at the Mugonero hospital complex, during which the vast majority of Tutsis were exterminated, and the subsequent pursuit of survivors in the hills of Bisesero in the months that followed this attack. The following was also admitted:
[TRANSLATION]
Thousands of Tutsis were killed by attackers in all these places. The group of attackers was composed of members of the Rwandan army, members of militias, members of the Interahamwe, and members of the civilian population grouped and led by military and local authorities. During May and June, practically all of the Hutu men in the Kibuye Prefecture took part in the attacks.
(Judgment of acquittal, at para 1187, section 10).
[33] As a matter of fact, did the applicant participate in the major attack of April 16, 1994, and the attacks in the subsequent months in the hills of Bisesero?
[34] Not only did the applicant attack the many witnesses during the proceedings, but his testimony also included an alibi. He denied that he was at the scene of the crimes for which he was charged. Moreover, in the weeks that followed the attack of April 16, 1994, he claimed that he was still teaching in Esapan, which was then corroborated by several of the defence’s witnesses, meaning that he could not have been part of the groups of attackers who left the village in the morning to go to the hills of Bisesero.
[35] In his decision, Justice Charbonneau emphasized the distinction between criminal responsibility of a person who is the perpetrator or co-perpetrator of crimes against humanity or genocide and that of an accomplice (judgment of acquittal at paras 46 to 62). From a legal perspective, reiterating that the principles of criminal law in this area are based on international criminal law, Justice Charbonneau established three scenarios in which the applicant’s guilt may or may not be accepted (judgment of acquittal at para 66):
[TRANSLATION]
In the case at hand, the central question is whether the accused participated actively and with the necessary criminal intent in the murderous attacks against the Tutsis that occurred in the Kibuye sector from April to July 1994. Mr. Mungwarere testified and denied any involvement in these attacks. If his testimony is believed, he must be acquitted. The presumption of innocence applies. Consequently, even if his testimony is not believed, if his testimony raises a reasonable doubt with respect to his involvement, he must be acquitted. Similarly, if Mr. Mungwarere’s testimony is dismissed, he cannot be convicted unless, in light of all the remaining evidence, the court is satisfied beyond a reasonable doubt that he is guilty.
[Emphasis added.]
[36] Justice Charbonneau made it clear that to establish the applicant’s guilt, he first needed to weigh each piece of evidence to determine whether it was more probable that he believes its content. This first analysis was carried out based on a balance of probabilities, not on the burden of beyond a reasonable doubt, which intervenes only when the judge is required to examine all the evidence to reach a verdict.
[37] During the trial, the Crown called several Rwandan witnesses to testify, most of whom testified remotely via Skype. They testified about the terrible events in the Kibuye Prefecture, and some identified the applicant as a member of the group of attackers. The problem, however, was that several witnesses fabricated evidence, which the Crown acknowledged for the testimony of TIP 111, TIP 117 and TIP 112, while “[Translation] [t]here is every reason to believe that Alphonse Nsemgi-Yumba and François Ndaduma orchestrated false testimony against the accused” (judgment of acquittal at para 1169). In fact, several of the survivors from the Kibuye Region deliberately lied to Canadian investigators. Justice Charbonneau even found that these false statements constituted a substantial part of the Crown’s case when the applicant was arrested in November 2009 (judgment of acquittal at para 1222).
[38] On the other hand, Justice Charbonneau rejected the applicant’s defence alibi that he allegedly hid or stayed at home during the attack of April 16, 1994, and in the weeks that followed was not involved in the attacks against Tutsis in the hills of Bisesero because he was teaching in Esapan. Justice Charbonneau clearly indicated that he did not believe the applicant’s testimony in the sense that all the evidence established that the Esapan school was not reopened after President Habyarimana’s assassination (judgment of acquittal at paras1195 to 1210).
[39] Ultimately, Justice Charbonneau found that the Crown failed to prove beyond a reasonable doubt the essential elements of the applicant’s alleged crimes. But before reaching this conclusion, Justice Charbonneau took care to revisit, one by one, each of the witnesses and to explain for each whether he gave any credibility or a certain probative value of their testimony (judgment of acquittal from pp. 29 to 83 for the Crown witnesses, and from pp. 84 to 142 for the defence witnesses). Justice Charbonneau ultimately found the applicant not guilty of the criminal charges for genocide and crimes against humanity. The applicant, who had been incarcerated since his arrest, was therefore released. The Crown decided not to appeal the judgment of acquittal.
D. Revocation of refugee status
[40] On June 25, 2013, ten days before the OSCJ delivered the judgment of acquittal, the Minister submitted an application to the RPD under section 109 of the IRPA to set aside the decision granting the applicant his refugee status under the Convention. On September 10, 2014, the applicant’s refugee status was revoked on the basis that he had made misrepresentations in his refugee claim, with respect to, among other things, what he was doing during the genocide.
[41] Relying on the revelations made by the applicant during his testimony before the OSCJ, the RPD found that he had misrepresented the facts surrounding his departure from Rwanda. Moreover, the RPD found that if the additional facts uncovered during the applicant’s trial had been brought to the RPD’s attention in 2002, it would not have granted him asylum given that there were serious reasons for considering that he was complicit in crimes against humanity due to his significant, wilful, and conscious contribution to the attacks against Tutsis in 1994, thereby excluding him under paragraph 1Fa) of the Convention. In fact, even if the RPD had not been bound by the findings of the OSCJ, it is required to assess the probative value of the Crown’s and defence’s evidence from the criminal trial. According to the judgment of acquittal, “[Translation] Although he was probably guilty of complicity, there was reasonable doubt because none of the credible witnesses saw what he was doing when he was with these groups [of attackers]. In particular, nobody saw him attack anyone […] However, he was likely armed at least once with a gun and once with a grenade in a group that was pursuing Tutsis and moderate Hutus to kill them […] there are serious reasons for considering that Mr. Mungwarere wilfully participated in pursuing Tutsis and moderate Hutus to kill them as part of a widespread and systematic attack against a civilian population or an identifiable group of persons. He therefore consciously contributed to the genocidal plan […].” Nevertheless, the RPD does not have jurisdiction to exclude the applicant under section 109 of the IRPA because it is an application to quash a refugee status for misrepresentation.
[42] The applicant appealed this decision for judicial review, but lawful permission was denied by this Court on January 10, 2015.
E. Inadmissibility
[43] On February 3, 2015, the applicant was the subject of an inadmissibility report by an immigration officer. The officer relied exclusively on the fact that on September 18, 2014, the RPD found that there were serious reasons for considering that the applicant had committed a crime against humanity within the meaning of article 1Fa) of the Convention—being of the view that under subsection 15(b) of the IRPR, the RPD’s decision is res judicata for the finding of inadmissibility of a foreign national or permanent resident under paragraph 35(1)(a) of the IRPA.
[44] The Minister referred the case to the ID for an admissibility hearing.
[45] On August 26, 2015, member Stéphane Morin [member] held a first hearing during which several preliminary issues were argued. On the Minister’s side, the hearing officer, Daniel Morse, as he indicated in his correspondence from May 7, 2015, argued that “[Translation] the Minister’s case is prima facie” and that he is “ready to submit the Minister’s submissions based on the findings of the RPD’s decision on September 18, 2014.” However, “[Translation] depending on Mr. Mungwarere’s disclosures, the Minister may disclose evidence in reply.” Not only did the applicant’s counsel, Annick Legault, object to this approach—because it is “[Translation] up to the Tribunal to decide the genuine issue”—but, furthermore, she invited the ID to grant the motion for abuse of process made by the applicant on the basis that he was found not guilty by the OSCJ of criminal charges for genocide and crimes against humanity that were brought against him under the CAHWCA.
[46] An interlocutory decision was made the same day. First, the member dismissed the motion for a stay of proceedings on the basis that the inadmissibility proceedings undertaken by the Minister under the IRPA before the ID were different in nature than the criminal proceedings initiated by Her Majesty the Queen under the auspices of the CAHWCA and the Criminal Code before the Ontario Superior Court of Justice. The member also refused to suspend the hearing until the Federal Court had the chance to decide on the issue of abuse of process. Second, the member rejected the Minister’s recommendation that the ID apply paragraph 15b) of the IRPR to deal with this case, so that it will be for the “[Translation] Minister to prove that Mr. Mungwarere, as marked on his report [under section] 44 [of the IRPA] that was referred to us […] committed under paragraph 35(1)(a) [of the IRPA] a war crime or a crime against humanity as defined in sections 4 to 7 [of the CAHWCA].”
[47] Having tried unsuccessfully in the meantime to have this interlocutory decision reviewed by the Federal Court, because the application for judicial review was premature, the hearing before the member continued on February 16 and 17, 2016. For his part, the Minister voluntarily accepted the member’s determination that the RPD’s decision is not considered a conclusive finding of fact under paragraph 15b) of the IRPR. Furthermore, in support of the inadmissibility allegations, counsel for the Minister filed voluminous documentary evidence (M‑1 to M-29). In addition to filing various exculpatory documents (D-1 to D-37), the applicant testified at the hearing. After the hearing closed, the parties entered written pleadings. In their respective written submissions, counsel examined in great detail all the evidence in the record, including the applicant’s statements and the testimony of several witnesses heard during the applicant’s criminal trial.
[48] In short, the Minister submitted to the member that the inadmissibility report had merit because there were reasonable grounds to believe that the applicant committed a crime against humanity during the genocide due to his association with known perpetrators of genocide, namely Charles Sikwabwabo, Dr. Gérard Ntakirutimana, Pastor Eliezer Ntakirutimana and Obed Ruzindana, and his wilful participation in the genocide; the applicant did not have a credible alibi, despite that fact that he categorically denied that he was involved whatsoever in attacks against the civilian population. Yet, according to the evidence in the criminal record, the applicant was part of a group of individuals armed with clubs that chased a civilian Tutsi, Eliézer Nasbmana, on April 14, 1994, who in fact managed to escape (judgment of acquittal at para 1253). The applicant testified that on April 15, 1994, the day before the major attack against the Mugonero complex, there were 27 people in his residence and that on April 16, 1994, there were only six, including himself and his brothers. The applicant testified that his house was 700 metres from the hospital and that he could see the mob of attackers, made up of shirtless civilians brandishing stakes, as it was heading towards the hospital to kill the Tutsis who had sought refuge inside. The applicant also testified that on the morning of April 16, 1994,