Mugesera v. Canada (Minister of Citizenship and Immigration))

Mugesera v. Canada (Minister of Citizenship and Immigration))
Court (s) Database
Federal Court of Appeal Decisions
Date
2003-09-08
Neutral citation
2003 FCA 325
File numbers
A-316-01
Notes
Reported Decision
Decision Content
Date: 20030908
Dockets: A-316-01
A-317-01
Citation: 2003 FCA 325
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
PELLETIER J.A.
A-316-01
BETWEEN:
LÉON MUGESERA,
GEMMA UWAMARIYA,
IRENÉE RUTEMAN,
YVES RUSI,
CARMEN NONO,
MIREILLE URUMURI and
MARIE-GRÂCE HOHO
Appellants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
A-317-01
BETWEEN:
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Appellant
and
LÉON MUGESERA,
GEMMA UWAMARIYA,
IRENÉE RUTEMA,
YVES RUSI,
CARMEN NONO,
MIREILLE URUMURI and
MARIE-GRÂCE HOHO
Respondents
Hearing held at Québec, Quebec on April 28 and 29, 2003.
Judgment rendered at Ottawa, Ontario on September 8, 2003.
REASONS FOR JUDGMENT: DÉCARY J.A.
CONCURRED IN BY: PELLETIER J.A.
CONCURRING REASONS: LÉTOURNEAU J.A.
Date: 20030908
Dockets: A-316-01
A-317-01
Citation: 2003 FCA 325
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
PELLETIER J.A.
A-316-01
BETWEEN:
LÉON MUGESERA,
GEMMA UWAMARIYA,
IRENÉE RUTEMAN,
YVES RUSI,
CARMEN NONO,
MIREILLE URUMURI and
MARIE-GRÂCE HOHO
Appellants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
A-317-01
BETWEEN:
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Appellant
and
LÉON MUGESERA,
GEMMA UWAMARIYA,
IRENÉE RUTEMA,
YVES RUSI,
CARMEN NONO,
MIREILLE URUMURI and
MARIE-GRÂCE HOHO
Respondents
REASONS FOR JUDGMENT
DÉCARY J.A.
[1] In recent years this Court has had to rule many times on immigration cases in which crimes against humanity were alleged against refugee status claimants or permanent residents. So far as I recall, in each of these cases the fact that the act committed was a crime was not really in dispute _ they were generally acts of terrorism _ and the argument turned not on the existence of a crime but on the latter's nature or on the participation of the person concerned in its perpetration.
[2] In the case at bar, the alleged act is a speech. Making a speech is not a crime in itself. However, the Minister of Citizenship and Immigration ("the Minister") considers that there was a crime against humanity here and incitement to murder, hatred or genocide. The Court must decide whether this speech can be regarded as a crime, as the Minister maintained. The speech in question is a speech made by Léon Mugesera in Rwanda on November 22, 1992 at a partisan political meeting.
[3] In view of the length of the reasons, it will be helpful if I describe at the outset the plan I will follow:
Para.
I. Facts and certified questions 4 to 13
II. Applicable legislation 14
III. Text of speech of November 22, 1992 15 to 17
IV. Preliminary observations 18 to 55
(l) genocide 18
(2) standard of review 23
(3) burden of proof 26
(4) rules of evidence 31
(5) question 27-F in permanent
residence application form 32
(6) information relied on by Minister 37
(7) allegations of law 48
(8) crime against humanity 51
(9) Mr. Mugesera's credibility 53
V. Appeal by Minister (allegations C and D) 56 to 61
VI. Appeal by Mr. Mugesera (allegations A and B) 62 to 244
A. Overview of Rwandan history 63 to 71
B. Report by International Commission of Inquiry
(ICI), March 1993 72 to 125
(1) testimony of Ms. Des Forges 82
(2) testimony of Mr. Gillet 103
(3) conclusions regarding ICI report 110
C. Mr. Mugesera's past, before November 22, 1992 126 to 166
(1) birth, family, education, university career 126
(2) bureaucratic and political career 134
(3) writings 140
(4) speeches 153
(5) conclusion: Mr. Mugesera's outlook 163
D. Explanation, analysis and nature of speech
of November 22, 1992 167 to 210
(1) explanation 181
(2) analysis 184
(3) nature of speech 200
E. Events following speech 211 to 239
(1) open letter from Mr. Rumiya 214
(2) newspaper articles 220
(3) arrest warrant 227
(4) L'Afrique des Grands Lacs en crise 237
F. Conclusion as to Mr. Mugesera's appeal 240 to 245
VII. Costs 246
VIII. Reply to certified questions 247 to 248
IX. Motion to file new evidence 249 and 250
X. Disposition 251 to 253
I. Facts
[4] On November 22, 1992, at Kabaya, Rwanda, Léon Mugesera made a speech the content of which led to the issuing of the equivalent of an arrest warrant against him on November 25, 1992. He managed to flee Rwanda on December 12, 1992 and find temporary refuge in Spain, from where on March 31, 1993 he made an application for permanent residence in Canada for himself, his wife and his five minor children. The application was approved and landing in Canada granted on their arrival at Mirabel, on August 12, 1993.
[5] A permanent resident in Canada may be deported if it is established, among other things, that he committed criminal acts or offences before or after obtaining his permanent residence or if it is shown that his landing was obtained by misrepresentation of a material fact.
[6] A report submitted to the Minister on January 23, 1995 pursuant to s. 27 of the Immigration Act ("the Act") contained the following information:
[TRANSLATION]
Léon Mugesera is a member of the MRND political party, the Mouvement révolutionnaire national pour le développement, and since November 1992 prefectoral vice-president from that party.
On or about November 22, 1992, at Kabaya, in the sub-prefecture of Gisenyi, at a meeting organized by the MRND party, Léon Mugesera made a speech inciting violence, in which he asked militants of the party to kill Tutsis and political opponents, most of whom were Tutsis.
On the following day, several killings took place in the neighbourhood of Gisenyi, Kayave, Kibilira and other places.
The US Department of State published a list of persons considered to have taken part in the massacre of Tutsis in Rwanda. Léon Mugesera's name was on this list in his capacity as a member of the MRND _ member of a death squad.
In its final report published on November 29, 1994 the Commission of Experts on Rwanda said the following concerning the speech made by Léon Mugesera (p. 10, para. 63):
. . . the speech will likely prove to be of significant probative value to establish the presence of criminal intent to commit genocide . . .
[a.b. vol. 20, pp. 7434-7435]
[7] This information led the Minister to make the following allegations of law which, in his opinion, justified the deportation of Mr. Mugesera.
(A) The speech made on November 22, 1992 constituted an incitement to [TRANSLATION] "commit murder". This is an offence under ss. 91(4) and 311 of the Rwanda Penal Code and ss. 22, 235 and 464(a) of the Canada Criminal Code ("the Criminal Code"). Consequently, Mr. Mugesera became an inadmissible person within the meaning of s. 27(1)(a.1)(ii) of the Act [a.b. vol. 20, p. 7435].
(B) By inciting [TRANSLATION] "MRND members and Hutus to kill Tutsis" and inciting them [TRANSLATION] "to hatred against the Tutsis", the said speech constituted an incitement to genocide and an incitement to hatred within the meaning of s. 166 of the Rwanda Penal Code, decree-law 08/75 of February 12, 1975, by which Rwanda adhered to the international Convention for the Prevention and Punishment of the Crime of Genocide and of s. 393 of the Rwanda Penal Code, as well as ss. 318 and 319 of the Criminal Code; consequently, Mr. Mugesera became an inadmissible person within the meaning of s. 27(1)(a.3)(ii) of the Act [a.b. vol. 20, p. 7435].
(C) The said speech constituted a crime against humanity within the meaning of ss. 7(3.76), 21, 22, 235, 318 and 464 of the Criminal Code in that Mr. Mugesera advised [TRANSLATION] "MRND members and Hutus to kill Tutsis", he had [TRANSLATION] "taken part in Tutsi massacres" and he had [TRANSLATION] "promoted or encouraged genocide of the members of an identifiable group, namely members of the Tutsi tribe"; consequently, Mr. Mugesera became an inadmissible person within the meaning of ss. 19(1)(j) and 27(1)(g) of the Act [a.b. vol. 20, p. 7439].
(D) By answering [TRANSLATION] "no" in his permanent residence application form to question 27-F, which asked whether he had been involved in the commission of a crime against humanity, and question 27-B, which asked whether he had ever been convicted of a crime or was currently charged with a crime or offence, Mr. Mugesera made a misrepresentation of a material fact, contrary to s. 27(1)(e) of the Act [a.b. vol. 20, p. 7436]. At the hearing before the adjudicator, the Minister discontinued the allegation relating to question 27-B.
[8] The deportation of Mr. Mugesera's wife was justified only by allegation D [a.b. vol. 20, p. 7441]. Under s. 33 of the Act, allegation D could also be applied against Mr. Mugesera's children.
[9] On July 11, 1996 an adjudicator concluded, after 29 days of hearing, that all the allegations were valid and ordered that the seven members of the family be deported.
[10] On November 6, 1998 the Appeal Division of the Immigration and Refugee Board ("the Appeal Division"), after 24 days of hearing, dismissed the appeal. The principal reasons were written by Pierre Duquette and the concurring, and more censorious, reasons by Yves Bourbonnais and Paule Champoux Ohrt.
[11] On May 10, 2001, after 14 days of hearing, Nadon J. in his capacity as a member of the Federal Court Trial Division found that there was no basis for allegations C (crimes against humanity) and D (misrepresentation) and that allegations A (incitement to murder) and B (incitement to genocide and hatred) were valid. He accordingly dismissed the application for judicial review on allegations A and B and allowed it in respect of allegations C and D. He referred the case back to the Appeal Division for it to again rule on the latter points (Mugesera v. Canada (Minister of Employment and Immigration), [2001] 4 F.C. 421 (T.D.).)
[12] It was common ground that this disposition was improper, in that so far as Mr. Mugesera himself was concerned allowing only one of the allegations sufficed to justify the Minister's decision and result in dismissal of the application for judicial review. As to Mr. Mugesera's wife and his children, their application for judicial review should have been allowed since only allegation D, which Nadon J. did not accept, applied to them. This confusion led to the filing of two notices of appeal, one by Mr. Mugesera and his family and the other by the Minister. The two cases were joined and the reasons that follow will dispose of them both.
[13] Additionally, Nadon J. certified the following three questions pursuant to s. 83(1) of the Act:
[TRANSLATION]
Question 1:
Did the Trial Division judge err in law in concluding that question 27(f) required a legal determination?
Question 2:
Does incitement to murder, violence and genocide, in a context in which massacres are committed in a widespread or systematic way, but absent any evidence of a direct or indirect link between the incitement and the murders committed in a widespread or systematic way, constitute in itself a crime against humanity?
Question 3:
Is the characterization of an act or omission as constituting an offence described in paragraphs 27(1)(a.1) and 27(1)(a.3) of the Immigration Act a question of fact or a question of law and, accordingly, what is the standard of judicial review applicable to this question?
II. Applicable legislation
[14] I set out the following extracts from ss. 19 and 27 of the Immigration Act and ss. 7, 21, 22, 235, 318, 319 and 464 of the Canada Criminal Code in effect at the relevant time:
Immigration Act
PART III
EXCLUSION AND REMOVAL
Inadmissible Classes
19. (1) No person shall be granted admission who is a member of any of the following classes:
. . . . .
(j) persons who there are reasonable grounds to believe have committed an act or omission outside Canada that constituted a war crime or a crime against humanity within the meaning of subsection 7(3.76) of the Criminal Code and that, if it had been committed in Canada, would have constituted an offence against the laws of Canada in force at the time of the act or omission . . .
. . . . .
Removal after Admission
27. (1) An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who
(a) is a member of an inadmissible class described in paragraph 19(1)c.2), (d), (e), (f), (g), (k) or (l);
(a.1) outside Canada,
(i) has been convicted of an offence that, if committed in Canada, constitutes an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more, or
(ii) has committed, in the opinion of the immigration officer or peace officer, based on a balance of probabilities, an act or omission that would constitute an offence under the laws of the place where the act or omission occurred and that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more,
except a person who has satisfied the Governor in Council that the person has been rehabilitated and that at least five years have elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission, as the case may be . . .
. . . . .
(a.3) before being granted landing,
. . . . .
(ii) committed outside Canada, in the opinion of the immigration officer or peace officer, based on a balance of probabilities, an act or omission that constitutes an offence under the laws of the place where the act or omission occurred and that, if committed in Canada, would constitute an offence referred to in paragraph (a.2),
except a person who has satisfied the Minister that the person has been rehabilitated and that at least five years have elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission, as the case may be . . .
. . . . .
(e) was granted landing by reason of possession of a false or improperly obtained passport, visa or other document pertaining to his admission or by reason of any fraudulent or improper means or misrepresentation of any material fact, whether exercised or made by himself or by any other person . . .
. . . . .
(g) is a member of the inadmissible class described in paragraph 19(1)(j) who was granted landing subsequent to the coming into force of that paragraph . . .
. . . . .
Criminal Code
PART I
General
. . . . .
7. (3.76) For the purposes of this section,
. . . .
"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 . . .
(3.77) In the definitions "crime against humanity" and "war crime" in subsection (3.76), "act or omission" includes, for greater certainty, attempting or conspiring to commit, counselling any person to commit, aiding or abetting any person in the commission of, or being an accessory after the fact in relation to, an act or omission.
. . . . .
21. (1) Every one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.
(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.
22. (1) Where a person counsels another person to be a party to an offence and that other person is afterwards a party to that offence, the person who counselled is a party to that offence, notwithstanding that the offence was committed in a way different from that which was counselled.
(2) Every one who counsels another person to be a party to an offence is a party to every offence that the other commits in consequence of the counselling that the person who counselled knew or ought to have known was likely to be committed in consequence of the counselling.
(3) For the purposes of this Act, "counsel" includes procure, solicit or incite.
. . . . .
235. (1) Every one who commits first degree murder or second degree murder is guilty of an indictable offence and shall be sentenced to imprisonment for life.
(2) For the purposes of Part XXIII, the sentence of imprisonment for life prescribed by this section is a minimum punishment.
. . . . .
Hate Propaganda
318. (1) Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
(2) In this section, "genocide" means any of the following acts committed with intent to destroy in whole or in part any identifiable group, namely,
(a) killing members of the group; or
(b) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.
319. (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
. . . . .
464. Except where otherwise expressly provided by law, the following provisions apply in respect of persons who counsel other persons to commit offences, namely,
(a) every one who counsels another person to commit an indictable offence is, if the offence is not committed, guilty of an indictable offence and liable to the same punishment to which a person who attempts to commit that offence is liable;
(b) every one who counsels another person to commit an offence punishable on summary conviction is, if the offence is not committed, guilty of an offence punishable on summary conviction.
Loi sur l'immigration
PARTIE III
EXCLUSION ET RENVOI
Catégories non admissibles
19. (1) Les personnes suivantes appartiennent à une catégorie non admissible :
. . . . .
j) celles dont on peut penser, pour des motifs raisonnables, qu'elles ont commis, à l'étranger, un fait constituant un crime de guerre ou un crime contre l'humanité au sens du paragraphe 7(3.76) du Code criminel et qui aurait constitué, au Canada, une infraction au droit canadien en son état à l'époque de la perpétration . . .
. . . . .
Renvoi après admission
27. (1) L'agent d'immigration ou l'agent de la paix doit faire part au sous-ministre, dans un rapport écrit et circonstancié, de renseignements concernant un résident permanent et indiquant que celui-ci, selon le cas :
a) appartient à l'une des catégories non admissibles visées aux alinéas 19(1)c.2), d), e), f), g), k) ou l);
a.1) est une personne qui a, à l'étranger :
(i) soit été déclarée coupable d'une infraction qui, si elle était commise au Canada, constituerait une infraction qui pourrait être punissable aux termes d'une loi fédérale, par mise en accusation, d'un emprisonnement maximal égal ou supérieur à dix ans, sauf si la personne peut justifier auprès du gouverneur en conseil de sa réadaptation et du fait qu'au moins cinq ans se sont écoulés depuis l'expiration de toute peine lui ayant été infligée pour l'infraction,
(ii) soit commis, de l'avis, fondé sur la prépondérance des probabilités, de l'agent d'immigration ou de l'agent de la paix, un fait - acte ou omission - qui constitue une infraction dans le pays où il a été commis et qui, s'il était commis au Canada, constituerait une infraction qui pourrait être punissable, aux termes d'une loi fédérale, par mise en accusation, d'un emprisonnement maximal égal ou supérieur à dix ans, sauf si la personne peut justifier auprès du gouverneur en conseil de sa réadaptation et du fait qu'au moins cinq ans se sont écoulés depuis la commission du fait . . .
. . . . .
a.3) avant que le droit d'établissement ne lui ait été accordé, a, à l'étranger :
. . . . .
(ii) soit commis, de l'avis, fondé sur la prépondérance des probabilités, de l'agent d'immigration ou de l'agent de la paix, un fait - acte ou omission - qui constitue une infraction dans le pays ou il a été commis et qui, s'il était commis au Canada, constituerait une infraction visée à l'alinéa a.2), sauf s'il peut justifier auprès du ministre de sa réadaptation et du fait qu'au moins cinq ans se sont écoulés depuis la commission du fait . . .
. . . . .
e) a obtenu le droit d'établisse-ment soit sur la foi d'un passeport, visa - ou autre document relatif à son admission - faux ou obtenu irrégulièrement, soit par des moyens frauduleux ou irréguliers ou encore par suite d'une fausse indication sur un fait important, même si ces moyens ou déclarations sont le fait d'un tiers . . .
. . . . .
g) appartient à la catégorie non admissible visée à l'alinéa 19(1)j) et a obtenu le droit d'établissement après l'entrée en vigueur de cet alinéa . . .
Code criminel
PARTIE I
Dispositions générales
. . . . .
7. (3.76) Les définitions qui suivent s'appliquent au présent article.
« crime contre l'humanité » Assassinat, extermination, réduction en esclavage, déportation, persécution ou autre fait - acte ou omission - inhumain d'une part, commis contre une population civile ou un groupe identifiable de personnes - qu'il ait ou non constitué une transgression du droit en vigueur à l'époque et au lieu de la perpétration - et d'autre part, soit constituant, à l'époque et dans ce lieu, une transgression du droit international coutumier ou conventionnel, soit ayant un caractère criminel d'après les principes généraux de droit reconnus par l'ensemble des nations.
. . . . .
(3.77) Sont assimilés à un fait, aux définitions de « crime contre l'humanité » et « crime de guerre » , au paragraphe 3.76, la tentative, le complot, la complicité après le fait, le conseil, l'aide ou l'encouragement à l'égard du fait.
. . . . .
21. (1) Participent à une infraction :
a) quiconque la commet réellement;
b) quiconque accomplit ou omet d'accomplir quelque chose en vue d'aider quelqu'un à la commettre;
c) quiconque encourage quelqu'un à la commettre.
(2) Quand deux ou plusieurs personnes forment ensemble le projet de poursuivre une fin illégale et de s'y entraider et que l'une d'entre elles commet une infraction en réalisant cette fin commune, chacune d'elles qui savait ou devait savoir que la réalisation de l'intention commune aurait pour conséquence probable la perpétration de l'infraction, participe à cette infraction.
22. (1) Lorsqu'une personne conseille à une autre personne de participer à une infraction et que cette dernière y participe subséquemment, la personne qui a conseillé participe à cette infraction, même si l'infraction a été commise d'une manière différente de celle qui avait été conseillée.
(2) Quiconque conseille à une autre personne de participer à une infraction participe à chaque infraction que l'autre commet en conséquence du conseil et qui, d'après ce que savait ou aurait dû savoir celui qui a conseillé, était susceptible d'être commise en conséquence du conseil.
(3) Pour l'application de la présente loi, « conseiller » s'entend d'amener et d'inciter, et « conseil » s'entend de l'encouragement visant à amener ou à inciter.
. . . . .
235. (1) Quiconque commet un meurtre au premier degré ou un meurtre au deuxième degré est coupable d'un acte criminel et doit être condamné à l'emprisonnement à perpétuité.
(2) Pour l'application de la partie XXIII, la sentence d'emprisonnement à perpétuité prescrite par le présent article est une peine minimale.
. . . . .
Propagande haineuse
318. (1) Quiconque préconise ou fomente le génocide est coupable d'un acte criminel et passible d'un emprisonnement maximal de cinq ans.
(2) Au présent article, « génocide » s'entend de l'un ou l'autre des actes suivants commis avec l'intention de détruire totalement ou partiellement un groupe identifiable, à savoir :
a) le fait de tuer des membres du groupe;
b) le fait de soumettre délibérément le groupe à des conditions de vie propres à entraîner sa destruction physique.
319. (1) Quiconque, par la communication de déclarations en un endroit public, incite à la haine contre un groupe identifiable, lorsqu'une telle incitation est susceptible d'entraîner une violation de la paix, est coupable :
a) soit d'un acte criminel et passible d'un emprisonnement maximal de deux ans;
b) soit d'une infraction punissable sur déclaration de culpabilité par procédure sommaire.
(2) Quiconque, par la communication de déclarations autrement que dans une conversation privée, fomente volontairement la haine contre un groupe identifiable est coupable :
a) soit d'un acte criminel et passible d'un emprisonnement maximal de deux ans;
b) soit d'une infraction punissable sur déclaration de culpabilité par procédure sommaire.
. . . . .
464. Sauf disposition expressément contraire de la loi, les dispositions suivantes s'appliquent à l'égard des personnes qui conseillent à d'autres personnes de commettre des infractions :
a) quiconque conseille à une autre personne de commettre un acte criminel est, si l'infraction n'est pas commise, coupable d'un acte criminel et passible de la même peine que celui qui tente de commettre cette infraction;
b) quiconque conseille à une autre personne de commettre une infraction punissable sur déclaration de culpabilité par procédure sommaire est, si l'infraction n'est pas commise, coupable d'une infraction punissable sur déclaration de culpabilité par procédure sommaire.
III. Text of speech made by Mr. Mugesera on November 22, 1992
[15] For a full understanding of the issue, it seems necessary to set out in full the text of the speech made by Mr. Mugesera on November 22, 1992. The speech was made in the Kyniarwanda language. It was neither broadcast nor televised. A transcription was made from a cassette recording to which we listened. Various translations of greater or lesser quality have been made. The speech was improvised.
[16] The translation finally accepted in the Appeal Division by Guy Bertrand, counsel for Mr. Mugesera, was that made by Thomas Kamanzi. I reproduce it as such, without any improvement in the style or grammar, as several of the words used are central to the issue. I have only added numbering of the paragraphs for ease of reference, and I have indicated by double square brackets ([[ ]]) the text amended by Mr. Kamanzi himself in his cross-examination.
[17] It appears especially necessary to set out the entire text as Mr. Kamanzi's translation differs on essential points from that made, for example, in the [TRANSLATION] "Report by the International Commission of Inquiry on Human Rights Violations in Rwanda since October 1, 1990" (ICI report) published in March 1993 following an inquiry held from January 7 to 21, 1993 [a.b. vol. 20, p. 7747]. It appeared from the evidence in the record that it was the ICI's report which gave rise to the allegations against Mr. Mugesera.
[TRANSLATION]
SPEECH MADE BY LÉON MUGESERA AT A MEETING OF THE M.N.R.D. HELD IN KABAYA ON NOVEMBER 22, 1992
Long life to our movement . . .
Long life to President Habyarimana . . .
Long life to ourselves, the militants of the movement at this meeting.
[1] Militants of our movement, as we are all met here, I think you will understand the meaning of the word I will say to you. I will talk to you on only four points. Recently, I told you that we rejected contempt. We are still rejecting it. I will not go back over that.
[2] When I consider the huge crowd of us all met here, it is clear that I should omit speaking to you about the first point for discussion, as I was going to tell you to beware of kicks by the dying M.D.R. That is the first point. The second point on which I would like us to exchange ideas is that we should not allow ourselves to be invaded, whether here where we are or inside the country. That is the second point. The third point I would like to discuss with you is also an important point, namely the way we should act so as to protect ourselves against traitors and those who would like to harm us. I would like to end on the way in which we must act.
[3] The first point I would like to submit to you, therefore, is this important point I would like to draw to your attention. As M.D.R., P.L., F.P.R. and the famous party known as P.S.D. and even the P.D.C. are very busy nowadays, you should know what they are doing, and they are busy trying to injure the President of the Republic, namely, the President of our movement, but they will not succeed. They are working against us, the militants: you should know the reason why all this is happening: in fact, when someone is going to die, it is because he is already ill!
[4] The thief Twagiramungu appeared on the radio as party president, and he had asked to do so, so he could speak against the C.D.R. However, the latter struck him down. After he was struck down, in all taxis everywhere in Kigali, militants of the M.D.R., P.S.D. and accomplices of the Inyenzis were profoundly humiliated, so they were almost dead! Even Twagiramungu himself completely disappeared. He did not even show up at the office where he was working! I assure you that this man's party is covered with shame: everyone was afraid and they nearly died!
[5] So, since this party and those who share its views are accomplices of the Inyenzis, one of them named Murego on arrival in Kibungo stood up to say [TRANSLATION] "We are descended from Bahutus and are in fact Bahutus". The reply to him was [TRANSLATION] "Can you lose your brothers by death! Tell us, who do you get these statements about Bahutus from?" They were so angry they nearly died!
[6] That was when the Prime Minister named, they say, I don't know whether I should say Nsengashitani (I beg Satan) or (Nseng) Iyaremye (I beg the Creator), headed for Cyangugu to prevent the Bahutus defending themselves against the Batutsis who were laying mines against them. You heard this on the radio. Then we laughed at him, you heard him yourselves, and he lost his head, he and all the militants in his party, and those of the other parties who shared his views. This is when these people had just suffered such a reverse . . . you yourselves heard that the president of our party, His Excellency Major-General Habyarimana Juvénal, spoke when he arrived in Ruhengeri. The "Invincible" put himself solemnly forward, while the others disappeared underground! In their excitement, these people were nearly dead from excitement, as they learned that everyone, including even those who were claiming to be from other parties, were leaving them to come back to our party, as a result of our leader's speech.
[7] Their kicks would threaten the most sensible person. Nevertheless, in view of our numbers, I realize there are so many of us that they could not find where to give the kicks: they are wasting their time!
[8] That is the first point. The M.D.R. and the parties who share its views are collapsing. Avoid their kicks. As I noted, you will not even have a scratch!
[9] The second point I have decided to discuss with you is that you should not let yourselves be invaded. At all costs, you will leave here taking these words with you, that you should not let yourselves be invaded. Tell me, if you as a man, a mother or father, who are here, if someone comes one day to move into your yard and defecate there, will you really allow him to come again? It is out of the question. You should know that the first important thing . . . you have seen our brothers from Gitarama here. Their flags - I distributed them when I was working at our party's headquarters. People flew them everywhere in Gitarama. But when you come from Kigali, and you continue on into Kibilira, there are no more M.R.N.D. flags to be seen: they have been taken down! In any case, you understand yourselves, the priests have taught us good things: our movement is also a movement for peace. However, we have to know that, for our peace, there is no way to have it but to defend ourselves. Some have quoted the following saying: [TRANSLATION] "Those who seek peace always make ready for war". Thus, in our prefecture of Gisenyi, this is the fourth or fifth time I am speaking about it, there are those who have acted first. It says in the Gospel that if someone strikes you on one cheek, you should turn the other cheek. I tell you that the Gospel has changed in our movement: if someone strikes you on one cheek, you hit them twice on one cheek and they collapse on the ground and will never be able to recover! So here, never again will what they call their flag, what they call their cap, even what they call their militant, come to our soil to speak: I mean throughout Gisenyi, from one end to the other!
[10] (A proverb) says: [TRANSLATION] "Hyenas eat others, but when you go to eat them they are bitter"! They should know that one man is as good as another, our yard (party) will not let itself be invaded either. There is no question of allowing ourselves to be invaded, let me tell you. There is also something else I would like to talk to you about, concerning "not being invaded", and which you must reject, as these are dreadful things. Our elder Munyandamutsa has just told you what the situation is in the following words: [TRANSLATION] "Our inspectors, currently 59 throughout the country, have just been driven out. In our prefecture of Gisenyi there are eight. Tell me, dear parents gathered here, have you ever seen, I do not know if she is still a mother, have you ever seen this woman who heads the Ministry of Education, come herself to find out if your children have left the house to go and study or go back to school? Have you not heard that she said that from now on no one will go back to school? - and now she is attacking teachers! I wanted to draw to your attention that she called them to Kigali to tell them that she never wanted to hear anyone say again that an education inspector had joined a political party. They answered: "First leave your party, because you yourself are a Minister and you are in a political party, and then we will follow your example". She is still there! You have also heard on the radio that nowadays she is even insulting our President! Have you ever heard a mother insulting people in public? So what I would like to tell you here, and this is the truth, there is no doubt, to say it would be this or that, there might be among them people who have behaved flippantly. Have you heard that they are persecuted for membership in the M.R.N.D.? They are persecuted for membership in the M.R.N.D. Frankly, will you allow them to invade us to take the M.R.N.D. away from us and to take our men?
[11] I am asking you to take two very important actions. The first is to write to this shameless woman who is issuing insults publicly and on the airwaves of our radio to all Rwandans. I want you to write her to tell her that these teachers, who are ours, are irreproachable in their conduct and standards, and that they are looking after our children with care; these teachers must continue to educate our children and she must mend her ways. That is the first action I am asking you to take. Then, you would all sign together: paper will not be wanting. If you wait a few days and get no reply, only about seven days, as you will send the letter to someone who will take it to its destination, so he will know she has received it, if seven days go by without a reply, and she takes the liberty of arranging for someone else to replace the existing inspectors, you can be sure, if she thinks there is anyone who will come to replace them (the inspectors), for anyone who comes . . . the place where the Minister is from is the place known as Nyaruhengeri, at the border with Burundi, (exactly) at Butari, you will ask this man to get moving, with his travelling provisions on his head, and be inspector at Nyaruhengeri.
[12] Let everyone whom she has appointed be there, let them go to Nyaruhengeri to look after the education of her children. As for ours, they will continue to be educated by our own people. This is another important point on which we must take decisions: we cannot let ourselves be invaded: this is forbidden!
[13] Something else which may be called [TRANSLATION] "not allowing ourselves to be invaded" in the country, you know people they call "Inyenzis" (cockroaches), no longer call them "Inkotanyi" (tough fighters), as they are actually "Inyenzis". These people called Inyenzis are now on their way to attack us.
[14] Major-General Habyarimana Juvénal, helped by Colonel Serubuga, whom you have seen here, and who was his assistant in the army at the time we were attacked, have (both) got up and gone to work. They have driven back the "Inyenzis" at the border, where they had arrived. Here again, I will make you laugh! In the meantime these people had arrived who were seeking power. After getting it, they headed for Brussels. On arrival in Brussels, note that this was the M.D.R., P.L. and P.S.D., they agreed to deliver the Byumba prefectorate at any cost. That was the first thing. They planned together to discourage our soldiers at any cost. You have heard what the Prime Minister said in person. He said they (the soldiers) were going down to the marshes (to farm) when the war was at its height! It was at that point that people who had low morale abandoned their positions and the "Inyenzis" occupied them. The Inyenzis descended on Byumba and they (the government soldiers) ransacked the shops of our merchants in Byumba, Ruhengeri and Gisenyi. The government will have to compensate them as it had created this situation. It was not one of our merchants (who created it), as they were not even asking for credit! Why credit! So those are the people who pushed us into allowing ourselves to be invaded. The punishment for such people is nothing but: [TRANSLATION] "Any person who demoralizes the country's armed forces on the front will be liable to the death penalty". That is prescribed by law. Why would such a person not be killed? Nsengiyaremye must be taken to court and sentenced. The law is there and it is in writing. He must be sentenced to death, as it states. Do not be frightened by the fact that he is Prime Minister. You have recently heard it said on the radio that even French Ministers can sometimes be taken to court! Any person who gives up any part of the national territory, even the smallest piece, in wartime will be liable to death. Twagiramungu said it on the radio and the C.D.R. dealt with him on the radio. The militants in his (party) then lost their heads - can you believe that? I would draw to your attention the fact that this man who gave up Byumba on the radio while all of us Rwandans, and all foreign countries, were listening to him, this man will suffer death. It is in writing: ask the judges, they will show you where it is, I am not lying to you! Any person who gives up even the smallest piece of Rwanda will be liable to the death penalty; so what is this individual waiting for?
[15] You know what it is, dear friends, "not letting ourselves be invaded", or you know it. You know there are "Inyenzis" in the country who have taken the opportunity of sending their children to the front, to go and help the "Inkotanyis". That is something you intend to speak about yourselves. You know that yesterday I came back from Nshili in Gikongoro at the Burundi border, travelling through Butare. Everywhere people told me of the number of young people who had gone. They said to me [TRANSLATION] "Where they are going, and who is taking them . . . why are they are not arrested as well as their families?" So I will tell you now, it is written in the law, in the book of the Penal Code: [TRANSLATION] "Every person who recruits soldiers by seeking them in the population, seeking young persons everywhere whom they will give to the foreign armed forces attacking the Republic, shall be liable to death". It is in writing.
[16] Why do they not arrest these parents who have sent away their children and why do they not exterminate them? Why do they not arrest the people taking them away and why do they not exterminate all of them? Are we really waiting till they come to exterminate us?
[17] I should like to tell you that we are now asking that these people be placed on a list and be taken to court to be tried in our presence. If they (the judges) refuse, it is written in the Constitution that "ubutabera bubera abaturage". In English, this means that [TRANSLATION] "JUSTICE IS RENDERED IN THE PEOPLE'S NAME". If justice therefore is no longer serving the people, as written in our Constitution which we voted for ourselves, this means that at that point we who also make up the population whom it is supposed to serve, we must do something ourselves to exterminate this rabble. I tell you in all truth, as it says in the Gospel, "When you allow a serpent biting you to remain attached to you with your agreement, you are the one who will suffer".
[18] I have to tell you that a day and a night ago - I do not know if it is exactly in Kigali, a small group of men armed with pistols entered a cabaret and demanded that cards be shown. They separated the M.D.R. people. You will imagine, those from the P.L. they separated, and even the others who pass for Christians were placed on one side. When an M.R.N.D. member showed his card, he was immediately shot; I am not lying to you, they even tell you on the radio; they shot this man and disappeared into the Kigali marshes to escape, after saying they were "Inkotanyis". So tell me, these young people who acquire our identity cards, then they come back armed with guns on behalf of the "Inyenzis" or their accomplices to shoot us! - I do not think we are going to allow then to shoot us! Let no more local representatives of the M.D.R. live in this commune or in this prefecture, because they are accomplices! The representatives of those parties who collaborate with the "Inyenzis", those who represent them . . . I am telling you, and I am not lying, it is . . . they only want to exterminate us. They only want to exterminate us: they have no other aim. We must tell them the truth. I am not hiding anything at all from them. That is in fact the aim they are pursuing. I would tell you, therefore, that the representatives of those parties collaborating with the "Inyenzis", namely the M.D.R., P.L., P.S.D., P.D.C. and other splinter groups you run into here and there, who are connected and who are only wandering about, all these parties and their representatives must go to live in Kayanzi with Nsengiyaremye: in that way we will know where the people we are at war with are.
[19] My brothers, militants of our movement, what I am telling you is no joke, I am actually telling you the complete truth, so that if one day someone attacks you with a gun, you will not come to tell us that we who represent the party did not warn you of it! So now, I am telling you so you will know. If anyone sends a child to the "Inyenzis", let him go back with his family and his wife while there is still time, as the time has come when we will also be defending ourselves, so that . . . we will never agree to die because the law refuses to act!
[20] I am telling you that on the day the demonstrations were held, Thursday, they beat our men, who had to take refuge in the church at the bottom of the Rond-Point. These so-called Christians from the P.D.C. pursued them and went into the church to beat them. Others fled into the Centre Culturel Français. I should like to tell you that they began killing them. That is actually what happened! They attacked the homes and killed people. Now, anyone who they hear is a member of the M.R.N.D. is beaten and killed by them; that is how things are. Let these people who represent their parties in our prefecture go and live with the "Inyenzis", we will not allow people living among us to shoot us when they are at our sides!
[21] There is another important point I would like to talk to you about so that we do not go on allowing ourselves to be invaded: you will hear mention of the Arusha discussions. I will not speak about this at length as the representative of the (Movement's) Secretary General will speak about it in greater detail. However, what I will tell you is that the delegates you will hear are in Arusha do not represent Rwanda. They do not represent all of Rwanda, I tell you that as a fact. The delegates from Rwanda, who are said to be from Rwanda, are led by an "Inyenzi", who is there to discuss with "Inyenzis", as it says in a song you hear from time to time, where it states [TRANSLATION] "He is God born of God". In the same way, they are [TRANSLATION] "Inyenzis born of Inyenzis, who speak for Inyenzis". As to what they are going to say in Arusha, it is exactly what these "Inyenzi" accomplices living here went to Brussels to say. They are going to work in Arusha so everything would be attributed to Rwanda, while there was nothing not from Brussels that happened there! Even what came from Rwanda did not entirely come from our government: it was a Brussels affair which they put on their heads to take with them to Arusha! So it was one "Inyenzi" dealing with another! As for what they call "discussions", we are not against discussions. I have to tell you that they do not come from Rwanda: they are "Inyenzis" who conduct discussions with "Inyenzis", and you must know that once and for all! In any case, we will never accept these things which come from there!
[22] Another point I have talked to you about is that we must defend ourselves. I spoke about this briefly. However, I am telling you that we must wake up! Someone whispered in my ear a moment ago that it was not only the parents who must wake up as well as the teachers about the famous problem for inspectors. Even people who do not have children in school should also support them, as they will have one tomorrow or they had one yesterday. Let us all wake up and sign!
[23] The second point I wish to speak to you about is the following: we have nine Ministers in the present government. Just as they rose up to drive out our inspectors, relying on their Ministry, as they rose up to drive out teachers from secondary schools . . . a few days ago, you have heard that the famous woman was going around the schools. She had no other reason for going there but to drive out the inspectors and teachers who were there and who were not in her party. You have heard what happened in Minitrape: it was not just a diversion, they even went after our workers! You have heard what happened at the radio, and the Byumba program that was cancelled. You have heard how all this happened. I have to tell you that we must ask our Ministers that they too, there are people working for their parties and who are in our Ministries . . . For example, you have heard mention of the Militant-Minister Ngirabatware, who is not present here because the country has given him an important mission. I visited his Ministry on Thursday. There was a little handful of people there, I am not exaggerating because I am in the M.R.N.D., (a handful of) some people from the M.R.N.D., those who were there were exclusively "Inyenzis" belonging to the P.L. and the M.D.R.! Those are the ones who are in the Planning Ministry! You will understand that if this Minister said: [TRANSLATION] "If you touch our inspectors, I will also liquidate yours", what would happen? Our Ministers would also shake the bag so the vermin who were with them would disappear and go into their Ministries.
[24] One important thing which I am asking all those who are working and are in the M.R.N.D.: "Unite!" People in charge of finances, like the others working in that area, let them bring money so we can use it. The same applies to persons working on their own account. The M.N.R.D. have given them money to help them and support them so they can live as men. As they intend to cut our necks, let them bring (money) so [[we can defend ourselves by cutting their necks]]! Remember that the basis of our Movement is the cell, that the basis of our Movement is the sector and the Commune. He (the President) told you that a tree which has branches and leaves but no roots dies. Our roots are fundamentally there. Unite again, of course you are no longer paid, members of our cells, come together. If anyone penetrates a cell, watch him and crush him: if he is an accomplice do not let him get away! Yes, he must no longer get away!
[25] Recently, I told someone who came to brag to me that he belonged to the P.L. - I told him [TRANSLATION] "The mistake we made in 1959, when I was still a child, is to let you leave". I asked him if he had not heard of the story of the Falashas, who returned home to Israel from Ethiopia? He replied that he knew nothing about it! I told him [TRANSLATION] "So don't you know how to listen or read? I am telling you that your home is in Ethiopia, that we will send you by the Nyabarongo so you can get there quickly".
[26] What I am telling you is, we have to rise up, we must really rise up. I will end with an important thing. Yesterday I was in Nshili, you learned that the Barundis slandered us, I went to find out the truth. Before I went there, people told me that I would not come back. That I would die there. I replied [TRANSLATION] "If I die, I will not be the first victim to be sacrificed". In Nshili they fired the mayor who was there before, apparently on the pretext that he was old! - that he began working in 1960! I saw him yesterday, and he was still a young man! - but because he was in the M.N.R.D., he left! They wanted to put in a thief; that didn't work either. When they put in an honest man, they (the public) refused him! Now, this commune known as Nshili is administered by a consultant who also has no idea what to do! At this place called Nshili, we have armed forces of the country who are guarding the border. There are people known as the J.D.R. for the good reason that our national soldiers are disciplined and do not shoot anyone, especially they would not shoot a Rwandan, unless he was an "Inyenzi", these soldiers did not know that everyone in the M.D.R. had become "Inyenzis"! They did not know it! They surrounded them and arrested our police, so that a citizen who was not in our party personally told me [TRANSLATION] "What I want is for them to hold elections so we can elect a mayor. Otherwise, before he comes, let us provisionally put back the person who was there before because from the state things are in, he will not be able to put people on the right path again".
[27] Dear relations, dear brothers, I would like to say something important to you: elections must be held, we must all vote. As you are now all together here, has anyone scratched anyone else? They talk of security. They say we cannot vote. Are we not going to mass on Sunday? Did you not come here to the meeting? In the M.R.N.D., did you not elect the incumbents at all levels? Even those who say this, did they not do the same thing? Did they not vote? On the pretext they suggest, there is no reason preventing us from voting on security grounds, because those who are going about the country and the troubles which have occurred, it is those who provoke them. That is the word I would say to you: they are all misleading us: even here where we are, we can vote.
[28] Second, they are relying on the war refugees in Byumba. I should tell you that no one went to ask those people if they did not want to vote. They told me personally that they previously had lazy counsellors, that even some of their mayors were lazy. Since the Ministry which gives them what they live on is supervised by an "Inkotanyi", or rather by the "Inyenzi" Lando, he chose people known as "Inyenzis" and their accomplices who are in this country, and gave them the job of taking food supplies to those people. Instead of taking it to them there, they sold it so they could buy ammunition which they gave to the "Inyenzis" who have been shooting us! I should tell you that they said [TRANSLATION] "They shoot us from behind and you shoot us from in front by sending us this rabble to bring us food supplies". I had no answer to give them, and they went on [TRANSLATION] "What we want, they said, is that from ourselves, we can elect incumbents, advisors, cell leaders, a mayor; we can know he is with us here in the camp, he protects us, he gets us food supplies". You will understand that what I was told by these men and women who fled in such circumstances as you hear about from time to time, on all sides, was that they also wanted elections: the whole country wants elections so that they will be led by good people as was always the case. Believe me, what we should all do, that is what we should do, we should call for elections. So in order to conclude, I would remind you of all the important things I have just spoken to you about: the most essential is that we should not allow ourselves to be invaded, lest the very persons who are collapsing take away some of you. Do not be afraid, know that anyone whose neck you do not cut is the one who will cut your neck. Let me tell you, these people should begin leaving while there is still time and go and live with their people, or even go to the "Inyenzis", instead of living among us and keeping their guns, so that when we are asleep they can shoot us. Let them pack their bags, let them get going, so that no one will return here to talk and no one will bring scraps claiming to be flags!
[29] Another important point is that we must all rise, we must rise as one man . . . if anyone touches one of ours, he must find nowhere to go. Our inspectors are going nowhere. Those whom they have placed will set out for Nyaruhengeri, to Minister Agathe's home, to look after the education of her children! Let her keep them! I will end with one important thing: elections. Thank you for listening to me and I also thank you for your courage, in your arms and in your hearts. I know you are men, you are young women, fathers and mothers of families, who will not allow yourselves to be invaded, who will reject contempt. May your lives be long!
Long life to President Habyarimana . . .
Long life and prosperity to you . . .
Translation into French by
Prof. Thomas KAMANZI
Linguist
Director of the Centre Études Rwandaises
at the Institut de Recherche
Scientifique et Technologique (I.R.S.T.)
B U T A R E - R W A N D A
[a.b. vol. 22, p. 8051]
IV. Preliminary observations
(1) Genocide
[18] "Genocide" is mentioned frequently in this case. However, the word is not always used in the precise sense that it has in Canada and international criminal law. The period in question here - late November 1992 - is well outside that associated with the "great genocide" committed in Rwanda between April 7 and mid-July, 1994 (testimony by Des Forges, a.b. vol. 8, p. 2035), for which an international tribunal, the International Criminal Tribunal for Rwanda, was created by the United Nations Security Council on November 8, 1994 to deal with the perpetrators.
[19] Additionally, the ICI report, published in March 1993, gave the following caveat at p. 50:
[TRANSLATION]
The testimony proved that a large number of people were killed just because they were Tutsis. That leaves the question of whether describing the "Tutsi" tribe as a target for destruction constituted a real intention to destroy that group, or part of it, "as such" within the meaning of the Convention.
Some jurists feel that the number of persons killed is an important indicator if we are to speak of genocide. The figures we mentioned, undoubtedly large for Rwanda, might from the juristic standpoint be less than the level legally required.
[a.b. vol. 22, p. 7797]
[20] Mr. Duquette of the Appeal Division also made the distinction that must be made between the 1994 genocide and Mr. Mugesera's speech:
[TRANSLATION]
There is no doubt that the 1994 genocide in Rwanda was a crime against humanity but it occurred a year and a half after Mr. Mugesera's speech. I do not mean that there was no connection and no continuity between the events, but the horror of the 1994 events cannot justify the inhumanity of the speech of November 22, 1992.
[p. 113 of decision, a.b. vol. 2, p. 300]
[21] Accordingly, one must be sure to put the allegations made concerning Mr. Mugesera in their true context. The speech Mr. Mugesera was criticized for making should not be analysed in light of what we now know of the genocide that followed it eighteen months later. The Minister did not formally allege that Mr. Mugesera was an accomplice in the 1994 genocide, although his statements in this regard were so ambiguous as to lead to the following comments by Mr. Duquette towards the end of the hearings before the Appeal Division: [TRANSLATION] "the respondent maintained that the speech was an incitement to genocide and that the genocide in fact occurred later, and so the speech was to some extent followed" (a.b. vol 36, p. 13952).
[22] Finally, we should bear in mind that the purpose of the inquiry before the adjudicator and the appeal de novo to the Appeal Division was not to determine Mr. Mugesera's criminal responsibility. Rather, it was to determine whether the Minister had reasonable grounds for believing that Mr. Mugesera had committed a crime against humanity or whether the Minister could conclude on a balance of probabilities that Mr. Mugesera had incited murder, hatred or genocide. Whatever the outcome of this appeal, Mr. Mugesera, who is not an "accused" in this Court, will neither be acquitted nor convicted of a crime. The proceeding here is administrative in nature, it is not criminal, although as I will indicate the seriousness of the allegations requires exceptional care and caution in applying the rules of administrative law.
(2) Standard of review
[23] In a decision made by a trial judge on an application for judicial review, this Court may intervene for the same reasons as if the judge had had an ordinary action before him or her (Dr. Q. v. British Columbia College of Physicians and Surgeons, 2003 SCC 19, at para. 43). These reasons are stated in Housen v. Nikolaisen, 2002 SCC 33, (2002) 286 N.R. 1, 211 D.L.R. (4th) 577, and include palpable and overriding error.
[24] There is no need to dwell at length on the standard of review that was applicable at the trial level. Explanation and analysis of the speech are questions of fact. Deciding whether the speech is a crime, once the speech is understood and analysed, is a question of law.
[25] On questions of law, there is nothing in the Immigration Act to indicate that Parliament intended to leave the Appeal Division the slightest margin for error when it considers the commission of crimes. On questions of fact, the applicable standard is that defined in s. 18.1(4)(d) of the Federal Court Act: the Court can only intervene if it considers that the Appeal Division "based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it". This standard corresponds to that referred to in other courts as patent unreasonableness.
(3) Burden of proof
[26] The Minister has the burden of proof. This burden will vary with the allegations.
[27] On allegation A (incitement to murder) and allegation B (incitement to genocide of the Tutsi tribe and incitement to hatred against Tutsis), s. 27(1)(a.1)(ii) and (a.3)(ii) of the Immigration Act requires that the immigration officer's notice be "based on a balance of probabilities".
[28] On allegation C (crimes against humanity), s. 19(1)(j) of the Immigration Act applies to persons "who there are reasonable grounds to believe have committed an act or omission outside Canada that constituted a war crime or a crime against humanity within the meaning of sub-section 7(3.76) of the Criminal Code".
[29] According to this Court's judgment in Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.), at 312, the phrase "reasonable grounds" has the same meaning as the phrase "serious reasons" in Article 1F (a) of the United Nations Convention Relating to the Status of Refugees. Accordingly, the standard of proof is lower than the balance of probabilities (Ramirez, at 312; Zrig v. Minister of Citizenship and Immigration, 2003 FCA 178, para. 174), but this standard only applies to questions of fact (Gonzalez v. Minister of Employment and Immigration, [1994] 3 F.C. 646 (C.A.), at 659; Moreno v. Canada (Minister of Employment and Immigration, [1994] 1 F.C. 298 (C.A.)). The question of whether making the speech at issue can be regarded as a crime against humanity raises questions of fact and questions of law. Explanation of the speech and the intention the speaker had in making it are questions of fact, and accordingly subject to the standard of evidence defined above. Once these findings of fact have been made, their classification as an international crime against humanity is a question of law. The legal criteria laid down in the Criminal Code and international law must be met for the speech to be treated as a crime against humanity. Those criteria are not met if the evidence only shows that there were reasonable grounds to believe that the speech "could be classified as a crime against humanity" (Gonzalez, at 659); the evidence must show that it was in fact a crime against humanity in law.
[30] On allegation D (misrepresentation in the information form), s. 27(1)(e) of the Immigration Act imposes no particular standard, but the issue has been argued throughout on the basis of the balance of probabilities standard.
(4) Rules of evidence
[31] It is well settled, in accordance with the wording of s. 69.4(3)(c) of the Act, that the Appeal Division may receive "such additional evidence as it may consider credible or trustworthy". The effect of this provision is to free the Appeal Division from the constraints resulting from the application of technical rules on presentation of evidence, including those having to do with the best evidence and hearsay evidence (see Canada (Minister of Employment and Immigration) v. Taysir Dan-Ash (1988), 5 Imm. L.R. (2d) 78 (F.C.A.). I conclude from that case that for all practical purposes s. 69.4(3)(c) lays down for the Appeal Division the same rules of evidence as s. 68(3) lays down for the Refugee Division. The latter thus provides that the Refugee Division "is not bound by legal or technical rules of evidence". At the same time, though s. 69.4(3)(c) deals with the submission of additional evidence to the Appeal Division, needless to say the Division must, based on the evidence already accepted by the adjudicator and which the parties have agreed to file before it, form its own opinion on the relevance and credibility of the latter and reject it or give it less weight, or none at all, depending on the circumstances. It also goes without saying that the more indirect or unverifiable the evidence is, the more vigilant the Appeal Division must be when accepting and weighing that evidence.
(5) Question 27-F in the permanent residence application form
[32] Question 27-F of the permanent residence application form reads as follows:
In periods of either peace or war, have you ever been involved in the commission of a war crime or crime against humanity, such as: wilful killing, torture, attacks upon, enslavement, starvation or other inhumane acts committed against civilians or prisoners of war; or deportation of civilians?
[33] It must be read together with question 27-B,
Have you been convicted of, or are you currently charged with, a crime or offence in any country?
and the context of the form as a whole.
[34] The wording of question 27-F is taken with very few changes from that contained in s. 7(3.76) of the Criminal Code at that time. Accordingly, the Minister himself chose to place the issue in a specific legal context. The question would not really have been different if it had been:
[TRANSLATION]
Have you ever participated in the commission of a war crime or a crime against humanity within the meaning of s. 7(3.76) of the Canada Criminal Code?
[35] This close modelling on s. 7(3.76) of the Criminal Code probably explains the absence of any reference to genocide or incitement to genocide in question 27-F. Curiously, as well, the crime of genocide is not expressly defined by the Criminal Code of that time, but s. 319 of the Code made incitement to genocide a specific offence. Since 2000 Canadian criminal law has expressly recognized the crime of genocide in s. 4 of the Crimes Against Humanity and War Crimes Act (S.C. 2000, c. 24), but this crime is distinct from a war crime and a crime against humanity.
[36] Additionally, question 27-F does not adopt - except perhaps by use of the word "participated" - the important clarification made in s. 7(3.77) of the Criminal Code regarding "aiding or abetting". Having said that, it should be noted that the purpose of question 27-F is not to check an applicant's legal knowledge. The question is intended to induce him or her to disclose, in much the same way as an insurance risk, any act that could be a cause for investigation and rejection of an applicant for his involvement in a war crime or a crime against humanity. In view of the objective sought, the question is not worded in the best possible way, as can be seen from the first certified question and the arguments which took place before the motions judge.
(6) Information relied on by Minister
[37] At para. 6 of my reasons I set out the information on which the Minister relied in seeking the deportation of Mr. Mugesera and his family. I must return to that.
[38] The first piece of information concerned membership in the [TRANSLATION] "MRND political party, the Mouvement révolutionnaire national pour le développement". There was an error in the description of this party, the name of which on April 28, 1991 had become "Mouvement républicain national pour la démocratie et le développement" (my emphasis - a.b. vol. 2, p. 203; vol. 16, p. 5732). This information by itself is neutral. It is not as such a crime to
belong to a political party.
[39] The second piece of information concerned the speech of November 22, 1992, [TRANSLATION] "a speech inciting violence, in which he asked militants of the party to kill Tutsis and political opponents, most of whom were Tutsis". I note that in its report the ICI used the words [TRANSLATION] "a speech inciting violence, in which he asked the Interhamwe to kill Tutsis and political opponents" (a.b. vol. 21, p. 7828).
[40] The third piece of information was that [TRANSLATION] "On the following day, several killings took place in the neighbourhood of Gisenyi, Kayave, Kibilira and other places". In the ICI report it states [TRANSLATION] "the following day the surrounding communes of Giciye, Kayove, Kibilira and others were again aflame" (a.b. vol. 21, p. 7828). It has since been established that this information was incorrect.
[41] The fourth piece of information was that [TRANSLATION] "The US Department of State published a list of persons considered to have taken part in the massacre of Tutsis in Rwanda. Mr. Mugesera's name was on this list in his capacity as a member of the MRND - member of a death squad". This list was published on September 17, 1994 (a.b. vol. 21, p. 7659), and so after the genocide. Mr. Mugesera's name appears in the following form: [TRANSLATION] "Mugesera, Leon. MRND - Member Death Squad" (a.b. vol. 21, p. 7661). The press release accompanying this list indicated that the U.S. Government relied on the NGOs "for the bulk of its information" (a.b. vol. 21, p. 7659). The Court invited counsel after the
hearing to indicate where this list was mentioned in the record. According to the Minister, the only place was in the testimony of Ms. Des Forges (a.b. vol. 9, p. 2667), where she said that she only learned of the existence of the list "last week", that is, in mid-September 1995, and knew nothing about its preparation. This list proves nothing.
[42] The fifth piece of information refers to the [TRANSLATION] "final report published on November 29, 1994", in which [TRANSLATION] "the Commission of Experts on Rwanda said the following concerning the speech made by Léon Mugesera" (p. 10, para. 63):
. . . the speech will likely prove to be of significant probative value to establish the presence of criminal intent to commit genocide . . .
[a.b. vol. 21, p. 7740]
This Commission of Experts was set up by Resolution 935 (1994) of the United Nations Security Council on July 1, 1994.This Commission of Experts was "to examine and analyse information submitted pursuant to the present resolution, together with such further information as the Commission of Experts may obtain through its own investigations or the efforts of other persons or bodies, including the information made available by the Special Rapporteur for Rwanda, with a view to providing the Secretary-General with its conclusions on the evidence of grave violations of international humanitarian law committed in the territory of Rwanda, including the evidence of possible acts of genocide". The full text of the paragraph referred to by the Minister reads as follows:
63. In 1992, Leon Mugesera, an official in President Habyarimana's Movement [sic] révolutionnaire national pour le développement delivered a speech at a party conference at Gisenyi. In his speech, he explicitly called on Hutus to kill Tutsis and to dump their bodies in the rivers of Rwanda. The Commission of Experts has in its possession an audio cassette of this speech, which will likely prove to be of significant probative value to establish the presence of criminal intent to commit genocide when the perpetrators are brought to justice.
[43] I note that in its context the phrase cited by the Minister does not say that Mr. Mugesera was himself one of the "perpetrators" of the genocide. It simply says, as I understand it, that the speech could be very valuable in establishing the presence of a criminal intent when the perpetrators of the genocide were brought to justice.
[44] Additionally, I note that this paragraph wrongly states that "in his speech, he explicitly called on Hutus to kill Tutsis and to dump their bodies in the rivers of Rwanda". One thing is clear: Mr. Mugesera did not make an "explicit" call for the "killing" of Tutsis. If that were the case, the nature of this matter would have been decided long ago. Additionally, according to the translation which alone concerns this Court, Mr. Mugesera never advised throwing the bodies of Tutsis into the rivers. To further illustrate the looseness of this paragraph, it is clear that the only river mentioned by Mr. Mugesera was the Nyabarongo River.
[45] The evidence on this report by the Commission of Experts is almost non-existent. We know it exists, but little more than that. Ms. Des Forges (a.b. vol. 22, p. 8123), Mr. Philpot (a.b. vol. 12, p. 3933), Mr. Mailloux (a.b. vol. 15, pp. 5066 and 5067) and Mr. Gillet (a.b. vol. 31, p. 11706) only mentioned in their testimony that they learned of it. Mr. Bertrand indicated that the United Nations refused to give him the audio cassette on which the Commission of Experts' report allegedly was based (a.b. vol. 14, p. 4787). Mr. Chiniamungu said that in his opinion the paragraph of the Commission of Experts' report dealing with the speech [TRANSLATION] "does not reflect the thinking, does not reflect the wording . . . in Kinyarwanda" (a.b. vol. 14, p. 4787).
[46] The Minister, who has the burden of proof, did not show how the Commission of Experts' report arrived at its very brief conclusion regarding Mr. Mugesera's speech. It probably relied on the ICI's report, but there is no indication whether the Commission of Experts did its own research itself. This report by the Commission of Experts proves nothing.
[47] In short, four of the five pieces of information which led the Minister to make his decision are either incorrect, irrelevant or not conclusive. That only leaves the speech, and the interpretation given to it by the Minister in his allegations is evidently dictated by the ICI's report. As I will shortly conclude that the ICI's report is not credible as regards Mr. Mugesera's speech, the Minister will have difficulty justifying his decision, whether on the basis of "reasonable grounds" (allegation C) or a "balance of probabilities" (allegations A, B and D).
(7) Allegations of law
[48] The allegations against which Mr. Mugesera must defend himself are those set out in para. 7 of my reasons, and no others.
[49] Additionally, the argument in this Court does not turn on the merits of the allegations in Rwandan law. I assume, for the purposes of the case at bar and where the Immigration Act requires a crime committed abroad, that if I come to the conclusion there was a crime in Canadian criminal law there will also have been a crime in Rwandan criminal law.
[50] However, I note that according to the Rwandan proceedings entered in evidence the crimes alleged against Mr. Mugesera are incitement to hatred and genocide (ss. 166 and 393 of the Rwandan Penal Code) and planning genocide within the meaning of the International Convention for the Prevention of the Crime of Genocide (a.b. vol. 20, pp. 7565 and 7569. These crimes are covered by allegation B. They are not covered by allegation A (incitement to murder).
(8) Crime against humanity
[51] Persons "who there are reasonable grounds to believe have committed an act or omission outside Canada that constituted a war crime or crime against humanity within the meaning of subsection 7(3.76) of the Criminal Code" are not to be granted admission (Act, s. 19(1)(j)).
[52] For an act to be regarded as a crime against humanity, four essential factors must be present:
(i) the act, inhumane by definition and by nature, must occasion serious suffering or seriously impair physical integrity or mental or physical health;
(ii) the act must be part of a widespread or systematic attack;
(iii) the act must be against members of a civilian population;
(iv) the act must be committed for one or more discriminatory reasons, in particular for national, political, ethnic, racial or religious reasons.
(Le Procureur v. Jean-Paul Akayesu, International Criminal Tribunal for Rwanda, September 2, 1998, N. ICTR-96-4-T; R. v. Finta, [1994] 1 S.C.R. 701; Sivakumar v. Canada (M.E.I.), [1994] 1 F.C. 433 (C.A.); Figueroa v. Canada (M.C.I.) (2001), 212 F.T.R. 318 (C.A.)).
(9) Mr. Mugesera's credibility
[53] Like the three levels of jurisdiction which have dealt with this case, reading the testimony of Mr. Mugesera and his wife before the adjudicator and before the Appeal Division leads me to question their respective credibility, but only regarding the events that occurred between Mr. Mugesera's departure from the family home on November 25, 1992 and his arrival in Spain in January 1993. In the testimony of both these persons there were such inconsistencies, hesitations and mysteries that the truth of their account may be doubted.
[54] Having said that, the Minister's allegations and the argument in this Court have been directed essentially at the speech on November 22, 1992, and in this regard the documentary and oral evidence supports the version of events given by Mr. Mugesera. What Mr. Mugesera did after that is not really relevant, any more than the interpretation he himself gives to his speech. It is true that a conclusion that a witness lacks credibility in part of his or her testimony may discredit all of it, but reading the record convinced me of Mr. Mugesera's good faith and sincerity when he described the events leading up to the speech in question and when he set out his vision and understanding of Rwandan history (see Mohacsi v. Canada (Minister of Citizenship and Immigration), 2003 FCT 429, per Martineau J., para. 20); Takhar v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 240 (T.D.), per Evans J.).
[55] Mr. Mugesera's actions as an individual, teacher, government employee and, later, politician are consistent and coherent and supported by the evidence in the record. He has his ideas about the political evolution of his country, the causes and the persons responsible for what in the eyes of the international community would become genocide, the nature of the war raging in Rwanda (a war of aggression and invasion, rather than a civil war) and the identity of the people who in his opinion were invading his country and had to be expelled. These are ideas which he was entitled to have and to express, subject of course to the way in which he was proposing to put them into effect. Essentially, it is this latter point which is the real issue, a much more limited point than suggested by the breadth of the evidence on either side.
V. Minister's appeal (allegations C and D) (case A-317-01)
[56] The Minister's appeal can readily be disposed of forthwith.
[57] Allegation C is that the speech is a crime against humanity. Whether the speech was a crime under Canadian criminal law or not - and I will conclude below that this was not the case - it is clear that it does not prima facie meet the requirements that a crime against humanity must be part of a widespread or systematic attack against the members of a civilian population for (in this case) ethnic reasons.
[58] On November 22, 1992 there is no evidence that the speech was part of a widespread or systematic attack. There is nothing in the record to indicate that the massacres which had taken place up to then were coordinated and for a common purpose. In any case, there is no evidence in the record that Mr. Mugesera's speech was part of any strategy whatever. If extracts from the speech were later used without Mr. Mugesera's knowledge in preparing the genocide, the users should be blamed, not Mr. Mugesera. Further, as I will show, the Minister has not established that Mr. Mugesera was prompted by ethnic considerations.
[59] As the speech was not a crime against humanity and as the speech is the only act which the Minister can still lay to Mr. Mugesera's discredit, once the other information has been excluded, Mr. Mugesera made no misrepresentation when he gave a negative answer to question F-27.
[60] In these circumstances, the only conclusion which it is possible to draw from the evidence in the record is that the Minister did not discharge the burden upon him. The Minister could not, on the basis of this evidence, have reasonable grounds to believe that Mr. Mugesera had committed a crime against humanity. The Minister could not conclude, on the balance of probabilities standard, that Mr. Mugesera had obtained landing by misrepresentation of a material fact.
[61] Consequently, I would dismiss the Minister's appeal, I would affirm the part of the judgment of Nadon J. dealing with allegations C and D, I would set set aside the part of the Appeal Division's decision dealing with the said allegations and I would refer the matter back to the Appeal Division to be again disposed of in respect of allegations C and D on t