Mugesera v. Can. (M.C.I.), (2003) 309 N.R. 14 (FCA)

JudgeDécary, Létourneau and Pelletier, JJ.A.
CourtFederal Court of Appeal (Canada)
Case DateSeptember 08, 2003
JurisdictionCanada (Federal)
Citations(2003), 309 N.R. 14 (FCA);2003 FCA 325

Mugesera v. Can. (M.C.I.) (2003), 309 N.R. 14 (FCA)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2003] N.R. TBEd. SE.005

Léon Mugesera, Gemma Uwamariya, Irenée Ruteman, Yves Rusi, Carmen Nono, Mireille Urumuri et Marie-Grâce Hoho (appelants) v. Le Ministre de la Citoyenneté et de l'Immigration (intimé) (A-316-01)

Le Ministre de la Citoyenneté et de l'Immigration (appelant) v. Léon Mugesera, Gemma Uwamariya, Irenée Rutema, Yves Rusi, Carmen Nono, Mireille Urumuri et Marie-Grâce Hoho (intimés)

(A-317-01; 2003 FCA 325; 2003 CAF 325)

Indexed As: Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration)

Federal Court of Appeal

Décary, Létourneau and Pelletier, JJ.A.

September 8, 2003.

Summary:

Mugesera, his wife and their five children from Rwanda obtained landing in Canada in 1993. The Minister of Citizenship and Immi­gration sought to have Mugesera and his family deported, alleging that: (A) a speech made by Mugesera on November 22, 1992, just before he fled Rwanda constituted an incitement to murder contrary to the Crimi­nal Codes of Rwanda and Canada thus ren­dering Mugesera an inadmissible person within the meaning of s. 27(1)(a.1)(ii) of the Immigration Act; (B) the speech constituted an incitement to genocide and hatred con­trary to the Criminal Codes of Canada and Rwanda thereby making him inadmissible under s. 27(1)(a.3)(ii) of the Immigration Act; (C) the speech constituted a crime against humanity contrary to the Criminal Code of Canada thus making him inadmis­sible under ss. 19(1)(j) and 27(1)(g) of the Immigration Act; and (D) by answering "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, Mugesera made a misrepresentation of a material fact, contrary to s. 27(1)(e) of the Immigration Act. An adjudicator accepted all the Minister's allega­tions and ordered that the seven members of the family be deported. Mugesera appealed. The Appeal Division of the Immigration and Refugee Board affirmed the decision. The couple applied for judicial review.

The Federal Court of Canada, Trial Divi­sion, in a decision reported 205 F.T.R. 29, dismissed the application for review respect­ing allegations A (incitement to murder) and B (incitement to genocide and hatred), but allowed the application respecting allegations C (crimes against humanity) and D (misrep­resentation). The matter was referred to the Appeal Division for reconsideration of alle­gations C and D. The Minister appealed the court's findings respecting allegations C (crimes against humanity) and D (misrepre­sentation). Mugesera and his family appealed the court's findings respecting allegations A (incitement to murder) and B (incitement to genocide and hatred).

The Federal Court of Appeal dismissed the Minister's appeal and affirmed the Trial Division's judgment dealing with allegations C and D. The court held with respect to allegation C, that the speech was not a crime against humanity, because it did not prima facie meet the requirement 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. Since the speech was deter­mined not to constitute a crime against humanity, Mugesera made no misrepresenta­tion (allegation D) when he gave a negative answer to question 27-F on his permanent residence form. The court allowed Mugesera's appeal regarding allegations A and B and reversed this part of the Trial Division's judgment. The court re-examined the speech in detail and held that the Appeal Division erred in concluding that the Minis­ter had established, on a balance of probabil­ities, that in Canada, the speech would have constituted the crime of incitement to mur­der, hatred or genocide within the meaning of the Criminal Code. The Appeal Division's decision was wrong in law with respect to the nature of the speech and patently unrea­sonable insofar as its explanation and analy­sis of the speech were concerned. The motions judge erred in failing to see that the Appeal Division had without reasons ignored important testimony and accepted testimony or evidence which was devoid of all credibil­ity. In the result, the court therefore set aside the Appeal Division's decision in its entirety and referred the matter to the Appeal Divi­sion to be disposed on the basis that the Minister did not discharge his burden of proof in respect of each and every one of the allegations.

Aliens - Topic 1217

Admission - Immigrants - Bars - Misrep­resentation of material facts - Mugesera, his wife and children, from Rwanda obtained landing in Canada - An adjudica­tor ordered that they be deported because, inter alia, the couple misrepresented a material fact on their permanent residence application contrary to s. 27(1)(e) of the Immigration Act when they answered negatively a question re­garding commis­sion of war crimes or crimes against hu­manity (Question 27-F) - The adjudicator found that a speech delivered by Mugesera before he fled Rwanda constituted a crime against humanity - The couple applied for judicial review, arguing that question 27-F referred to a legal concept (i.e., the inter­pretation of what constitutes a war crime or a crime against humanity), whereas to fall within s. 27(1)(e) the misrepresentation must pertain to a material fact - A motions judge agreed with this interpretation, hold­ing that here the mis­representation related to a determi­nation of law and not a material fact - The Minister of Citizenship and Immigration appealed - The Federal Court of Appeal dismissed the appeal holding that Mugesera's speech did not constitute a crime against humanity; there­fore, he made no misrepresentation when he gave a negative answer to Question 27-F - See para­graphs 56 to 61.

Aliens - Topic 1643

Exclusion and expulsion - Immigration - Deportation - Grounds for - Criminal conviction or activity which would consti­tute an offence - Mugesera and his family from Rwanda obtained landing in Canada -An adjudica­tor ordered their deportation because of a speech made by Mugesera before he fled Rwanda which allegedly incited others to participate in the murder and genocide of the Tutsi ethnic group which constituted crimes under the Crim­inal Codes of both Canada and Rwanda, rendering Mugesera inadmissible under the Immigration Act - The Appeal Division of the Refugee and Immigration Board af­firmed the decision - The couple applied for judicial review - A motions judge dis­missed the application - Mugesera appealed - The Federal Court of Appeal re-examined the speech in detail - The court held that the Appeal Division erred in concluding that the Minister of Citizenship and Immi­gration had established, on a balance of probabilities, that in Canada the speech would have constituted the crime of incite­ment to murder, hatred or genocide - The Appeal Division's decision was wrong in law respecting the nature of the speech and patently unreasonable insofar as the expla­nation and analysis of the speech were concerned - The motions judge erred in failing to see that the Appeal Division had without reasons ignored important testi­mony and accepted testimony or evi­dence which was devoid of all credibility -The court referred the matter to the Appeal Division to be disposed on the basis that the Minister did not discharge the burden of proof respecting any or the allegations against Mugesera - See para­graphs 62 to 253.

Aliens - Topic 1646

Exclusion and expulsion - Immigration - Deportation - Grounds for - Giving false or misleading information to enter Canada - [See Aliens - Topic 1217 ].

Aliens - Topic 1651

Exclusion and expulsion - Immigration - Deportation - Grounds for - War crimes or crimes against humanity - Mugesera, his wife and their five children from Rwanda obtained landing in Canada in 1993 - An adjudica­tor ordered their deportation because a speech made by Mugesera before he fled Rwanda allegedly incited others to participate in the murder and genocide of the Tutsi ethnic group, thereby constituting a crime against humanity under the Criminal Code of Canada render­ing Mugesera inadmissible under the Im­migra­tion Act - The Appeal Division of the Refugee and Immigration Board af­firmed the decision - The couple applied for judi­cial review - A motions judge held that the Appeal Division erred in holding that the speech constituted a crime against human­ity - The Minister of Citizenship and Im­migration appealed - The Federal Court of Appeal dismissed the Minister's appeal - The speech was not a crime against hu­manity, because it did not prima facie meet the requirement 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 - See paragraphs 56 to 61.

Aliens - Topic 1651

Exclusion and expulsion - Immigration - Deportation - Grounds for - War crimes or crimes against humanity - [See Aliens - Topic 1643 ].

Cases Noticed:

Dr. Q. v. College of Physicians and Sur­geons (B.C.) - see Dr. Q., Re.

Dr. Q., Re (2003), 302 N.R. 1; 179 B.C.A.C. 170; 295 W.A.C. 170 (S.C.C.), refd to. [para. 23].

Housen v. Nikolaisen et al. (2002), 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 211 D.L.R.(4th) 577 (S.C.C.), refd to. [para. 23].

Ramirez v. Minister of Employment and Immigration, [1992] 2 F.C. 306; 135 N.R. 390 (F.C.A.), refd to. [para. 29].

Zrig v. Canada (Ministre de la Citoyenneté et de l'Immigration) (2003), 307 N.R. 201 (F.C.A.), refd to. [para. 29].

Gonzalez v. Minister of Employment and Immigration, [1994] 3 F.C. 646; 170 N.R. 302 (F.C.A.), refd to. [para. 29].

Moreno and Sanchez v. Minister of Em­ployment and Immigration, [1994] 1 F.C. 298; 159 N.R. 210 (F.C.A.), refd to. [para. 29].

Dan-Ash v. Minister of Employment and Immigration (1988), 93 N.R. 33; 5 Imm. L.R.(2d) 78 (F.C.A.), refd to. [para. 31].

R. v. Finta, [1994] 1 S.C.R. 701; 165 N.R. 1; 70 O.A.C. 241, refd to. [para. 52].

Sivakumar v. Minister of Employment and Immigration, [1994] 1 F.C. 433; 163 N.R. 197 (F.C.A.), refd to. [para. 52].

Figueroa et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration) (2001), 212 F.T.R. 318 (F.C.A.), refd to. [para. 52].

Mohacsi v. Canada (Minister of Citizen­ship and Immigration) (2003), 231 F.T.R. 276 (T.D.), refd to. [para. 54].

Takhar v. Canada (Minister of Citizenship and Immigration), [1999] F.T.R. Uned. 262 (T.D.), refd to. [para. 54].

Prud'homme v. Prud'homme (2002), 297 N.R. 331 (S.C.C.), refd to. [para. 194].

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81, refd to. [para. 200].

Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569; 218 N.R. 241, refd to. [para. 201].

R. v. Kopyto (1987), 24 O.A.C. 81; 62 O.R.(2d) 449 (C.A.), refd to. [para. 202].

Hébert v. Québec (Procureur général), [1966] Q.B. 197, refd to. [para. 203].

R. v. Boucher, [1951] S.C.R. 265, refd to. [para. 204].

Hervieux-Payette v. Société Saint-Jean Baptiste de Montréal - see Bardier v. Gestion Hervieux-Payette Holding Cie Inc.

Bardier v. Gestion Hervieux-Payette Hold­ing Cie Inc., [2002] J.Q. No. 1607 (C.A.), leave to appeal refused (2002), 285 N.R. 199 (S.C.C.), refd to. [para. 205].

Punniamoorthy v. Minister of Employment and Immigration (1994), 166 N.R. 49 (F.C.A.), refd to. [para. 244].

Wihksne v. Canada (Attorney General) (2002), 299 N.R. 210 (F.C.A.), refd to. [para. 244].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 7, sect. 21, sect. 22, sect. 235, sect. 318, sect. 319, sect. 464 [para. 14].

Immigration Act, R.S.C. 1985, c. I-2, sect. 19(1)(j), sect. 27 [para. 14].

Authors and Works Noticed:

Bartlett's Familiar Quotations (16th Ed. 1992), p. 630 [para. 256].

Mearnes, Hughes, The Psychoed in Bart­lett's Familiar Quotations (16th Ed. 1992), p. 630 [para. 256].

Counsel:

Guy Bertrand, for Mugesera et al.;

Louise-Marie Courtemanche and François Joyal, for Minister of Citizenship and Immigration.

Solicitors of Record:

Guy Bertrand et Associés, Quebec, Que­bec, for Mugesera et al.;

Morris Rosenberg, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the Minister of Citizenship and Immigration.

These appeals were heard at Quebec, Quebec, on April 28-29, 2003, by Décary, Létourneau and Pelletier, JJ.A., of the Feder­al Court of Appeal. The decision of the court was rendered at Ottawa, Ontario, on Septem­ber 8, 2003, when the following opinions were filed:

Décary, J.A. (Pelletier, J.A., concurring) - see paragraphs 1 to 253;

Létourneau, J.A., concurring - see para­graphs 254 to 257.

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    ...January 1951 ) [ Genocide Convention ], of which Rwanda is a signatory. 86 Mugesera v Canada (Minister of Citizenship and Immigration) , 2003 FCA 325. The panel consisted of Justices Décary, Létourneau, and Pelletier. [ 514 ] Labour and Human Rights had indeed committed a crime against huma......
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