Mugesera v. Canada (Ministre de la citoyenneté et de l'immigration), 2003 CAF 325 (2003)

Extract

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Mugesera v. Canada (Ministre de la citoyenneté et de l'immigration), 2003 CAF 325 (2003)

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:

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