Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration), (2005) 335 N.R. 229 (SCC)

• Judge: McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish and Charron, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 08, 2004
• Jurisdiction: Canada (Federal)
• Citations: (2005), 335 N.R. 229 (SCC);2005 SCC 40;47 Imm LR (3d) 16;28 Admin LR (4th) 161;30 CR (6th) 39;JE 2005-1242;197 CCC (3d) 233;[2005] ACS no 39;[2005] SCJ No 39 (QL);140 ACWS (3d) 710;335 NR 229;[2005] 2 SCR 100;254 DLR (4th) 200;[2005] CarswellNat 1740

Mugesera v. Can. (M.C.I.) (2005), 335 N.R. 229 (SCC)

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: [2005] N.R. TBEd. JN.035

Minister of Citizenship and Immigration (appellant) v. Léon Mugesera, Gemma Uwamariya, Irenée Rutema, Yves Rusi, Carmen Nono, Mireille Urumuri and Marie-Grâce Hoho (respondents) and League for Human Rights of B'nai Brith Canada, PAGE RWANDA, Canadian Centre for International Justice, Canadian Jewish Congress, University of Toronto, Faculty of Law - International Human Rights Clinic, and Human Rights Watch (intervenors)

(30025; 2005 SCC 40; 2005 CSC 40)

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

Supreme Court of Canada

McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish and Charron, JJ.

June 28, 2005.

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 and a deportation order was issued on July 11, 1996. Mugesera appealed. The Appeal Division of the Immi­gration and Refugee Board (IAD) affirmed the decision. Mugesera 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 IAD 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, in a decision reported 309 N.R. 14, 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 IAD 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 court held that the IAD's decision was wrong in law with respect to the nature of the speech and patently unreas­onable in so far as its explanation and analy­sis of the speech were concerned. The motions judge erred in failing to see that the IAD 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 IAD's deci­sion in its entirety and referred the matter to the IAD to be disposed of on the basis that the Minister did not discharge his burden of proof in respect of each and every one of the allegations. The Minister appealed.

The Supreme Court of Canada, in the decision reported below, allowed the appeal, quashed the decision of the Court of Appeal, and restored the decision of the IAD (i.e., restored the deportation order of July 11, 1996). The court stated that the Federal Court of Appeal erred in law in overturning the IAD's find­ings respecting incitement to murder, geno­cide or hatred. The court erred in find­ing that the speech did not constitute an incite­ment to murder, genocide, or hatred. With respect to whether the speech gave rise to a crime against humanity, the Supreme Court held that counselling a murder did not consti­tute a crime against humanity where the murder was not committed; how­ever, the persecutory speech constituted a crime against humanity within the meaning of the Criminal Code, thus giving rise to reasonable grounds to believe that Mugesera committed a crime against humanity and was therefore inadmissible under the Immigration Act.

Aliens - Topic 1643

Exclusion and expulsion - Immigration - De­portation - Grounds for - Criminal con­vic­tion or activity which would consti­tute an offence - Incitement to murder, geno­cide or hatred - Mugesera fled Rwanda and obtained landing in Canada - The Appeal Division of the Refugee and Immigration Board (IAD) affirmed a de­portation order against Mugesera because of a speech made by him before he fled Rwanda which resulted in the crimes of incitement to murder, hatred and genocide contrary to the Rwandan Penal Code and the Canadian Criminal Code - On appeal, the Federal Court of Appeal (FCA) re-examined the speech in detail and over­turned the IAD's findings regarding incit­ing murder, hatred and genocide - The Minister of Citizenship and Immigration appealed - The Supreme Court of Canada allowed the appeal, hold­ing that the FCA erred in law in overturn­ing the IAD's findings respecting incite­ment to murder, genocide or hatred - The FCA improperly substituted its own find­ings of fact for those of the IAD and failed to consider the appropriate legal test in characterizing Mugesera's speech - The FCA erred in find­ing that the speech did not constitute an incitement to murder, genocide, or hatred - See paragraphs 57 to 111.

Aliens - Topic 1651

Exclusion and expulsion - Immigration - Deportation - Grounds for - War crimes or crimes against humanity - Section 19(1)(j) of the Immigration Act provided that a person was inadmissible if there were "rea­sonable grounds to believe" that the person committed a crime against human­ity within the meaning of s. 7(3.76) of the Criminal Code - The Supreme Court of Canada dis­cussed the standard of proof required by s. 19(1)(j) (i.e., the "reasonable grounds to believe" standard) - The court stated that the "reasonable grounds to believe" stan­dard required something more than mere sus­picion, but less than the standard applic­able in civil matters of proof on a balance of probabilities - The court stated that in essence, reasonable grounds would exist where there was an objective basis for the belief which was based on compelling and credible informa­tion - The court noted that this standard applied only to questions of fact - See paragraphs 114 to 117.

Aliens - Topic 1651

Exclusion and expulsion - Immigration - Deportation - Grounds for - War crimes or crimes against humanity - Mugesera fled Rwanda and obtained landing in Canada - The Appeal Division of the Refugee and Im­migration Board (IAD) affirmed a de­portation order against Mugesera for hav­ing committed crimes against humanity with­in the meaning of s. 19(1)(j) of the Immigration Act, because a speech made by him before he fled Rwanda allegedly inciting murder, genocide and hatred of members of an ethnic group in Rwanda - The Federal Court of Appeal (FCA) held that the speech did not give rise to a crime against humanity - The Minister of Citi­zenship and Immigration appealed - The Supreme Court of Canada allowed the ap­peal - The court held that Mugesera's counselling of murder did not constitute a hate crime because the murder must ac­tually have been committed (i.e., the actus reus requirement was not met) - However, Muge­sera's persecutory speech, which en­couraged hatred and violence against a tar­geted group and took place as part of a wide­spread or systematic attack directed against a civilian population, constituted a crime against humanity under s. 7(3.76) of the Criminal Code and, therefore, reason­able grounds existed to believe that Muge­sera committed a crime against hu­manity and was therefore inadmissible to Canada by virtue of ss. 27(1)(g) and 19(1)(j) of the Immigration Act - See para­graphs 112 to 180.

Aliens - Topic 4062

Practice - Judicial review and appeals - Pow­ers of review or appellate court (incl. standard of review) - Mugesera and his family fled Rwanda and obtained landing in Canada in 1993 - The Appeal Division of the Refugee and Immigration Board (IAD) held that Mugesera should be de­ported based on a speech he made before he fled Rwanda, allegedly inciting 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 - Mugesera applied for judicial review and was successful on two grounds - On a­ppeal, the Federal Court of Appeal (FCA) re-examined the speech in detail and as a result set aside the IAD's decision in its entirety - The Minister of Citizenship and Immigration appealed - The Supreme Court of Canada allowed the appeal and restored the decision of the IAD, holding that the FCA erred in its application of the standard of review - The FCA had no rea­son to revisit and reconsider the evi­dence or the IAD's find­ings of fact in relation to the interpretation of the speech - See para­graphs 34 to 44.

Aliens - Topic 4062

Practice - Judicial review and appeals - Powers of review or appellate court (incl. standard of review) - The Supreme Court of Canada discussed the role of the Federal Court of Appeal on an appeal from the Fed­eral Court in an immigration inadmissi­bility matter that originated in the Appeal Division of the Refugee and Immigration Board (IAD) - The court stated that "at the secondary level of appellate review, the court's [i.e., the Federal Court of Appeal's] role is limited to determining whether the reviewing judge has chosen and applied the correct standard of review. The question of what standard to select and apply is one of law and is subject to a correctness standard ..." - See paragraph 35.

Aliens - Topic 4062

Practice - Judicial review and appeals - Powers of review or appellate court (incl. standard of review) - The Supreme Court of Canada stated that "ap­plications for ju­di­cial review of administra­tive decisions rendered pursuant to the Immigration Act are subject to s. 18.1 of the Federal Court Act. Paragraphs (c) and (d) of s. 18.1(4), in particular, allow the Court to grant relief if the feder­al commis­sion erred in law or based its decision on an erroneous finding of fact. Under these provisions, questions of law are reviewable on a standard of cor­rect­ness." - See para­graph 38.

Aliens - Topic 4062

Practice - Judicial review and appeals - Powers of review or appellate court (incl. standard of review) - The Supreme Court of Canada stated that "on questions of fact, the reviewing court [i.e., the Federal Court of Appeal] can intervene only if it con­sid­ers that the IAD [i.e., Appeal Division of the Refugee and Immigration Board] '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' (Federal Court Act, s. 18.1(4)(d)). The IAD is en­titled to base its decision on evidence adduced in the proceedings which it con­siders credible and trustworthy in the cir­cumstances: s. 69.4(3) of the Immigra­tion Act. Its findings are entitled to great defer­ence by the reviewing court. Indeed, the FCA itself has held that the standard of review as regards issues of credibility and relevance of evidence is patent unreason­ableness ..." - See paragraph 38.

Criminal Law - Topic 271

War crimes and crimes against humanity - Gen­eral (incl. elements) - The Supreme Court of Canada discussed in detail the elements of a crime against humanity as originally proscribed by the Criminal Code and now the Crimes Against Humanity and War Crimes Act in the context of a case where a landed immigrant was being de­ported for making a speech which al­leged­ly incited the murder, genocide and hatred of members of an ethnic group in Rwanda - See paragraphs 118 to 127.

Criminal Law - Topic 273

War crimes and crimes against humanity - Intention - The Supreme Court of Canada discussed the mental element of a crime against humanity as proscribed by ss. 7(3.76) and 7(3.77) of the Criminal Code in the context of a case where a landed immigrant was being deported for making a speech which allegedly incited the mur­der, genocide and hatred of members of an ethnic group in Rwanda - See paragraphs 172 to 176.

Criminal Law - Topic 273.1

War crimes and crimes against humanity - Actus reus - The Supreme Court of Canada discussed the actus reus of a crime against humanity as proscribed by ss. 7(3.76) and 7(3.77) of the Criminal Code in the con­text of a case where a landed immigrant was being deported for making a speech which allegedly incited the murder, geno­cide and hatred of members of an ethnic group in Rwanda - The court stated that the "... criminal act requirement for crimes against humanity in ss. 7(3.76) and 7(3.77) is made up of three essential elements: (1) a proscribed act is carried out; (2) the act occurs as part of a widespread or system­atic attack; and (3) the attack is directed against any civilian population. The first element means that all the elements of an enumerated act - both physical and moral - must be made out. The second and third elements require that the act take place in a particular context: a widespread or sys­tematic attack directed against any civilian population" - See paragraphs 128 to 171.

Criminal Law - Topic 1545

Offences against person and reputation - Hate propaganda - Advocating genocide - The Supreme Court of Canada discussed the offence of incitement to genocide un­der international law and s. 318(1) of the Criminal Code in a case where a landed immigrant was being deported for making a speech which allegedly incited genocide involving members of an ethnic group in Rwanda - See paragraphs 81 to 98.

Criminal Law - Topic 1549

Offences against person and reputation - Hate propaganda - Public incitement of hatred - The Supreme Court of Canada dis­cussed the offence of incitement to hatred under s. 319 of the Criminal Code in a case where a landed immigrant was being deported for making a speech which alleg­edly incited hatred of members of an eth­nic group in Rwanda - See paragraphs 99 to 111.

Criminal Law - Topic 2761

Attempts, conspiracies, accessories and parties - Counselling another to commit offence (murder) - General - The Supreme Court of Canada discussed the offence of incitement to murder under ss. 22, 235 and 464(a) of the Criminal Code in a case where a landed immigrant was being de­ported for making a speech which al­leged­ly incited the murder of members of an ethnic group in Rwanda - See para­graphs 60 to 80.

Cases Noticed:

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 35].

Aguebor v. Ministre de l'Emploi et de l'Immigration (1993), 160 N.R. 315 (F.C.A.), refd to. [para. 38].

R. v. Ford (H.) (2000), 179 O.A.C. 82; 145 C.C.C.(3d) 336 (C.A.), refd to. [para. 63].

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161; 2001 SCC 2, refd to. [para. 64].

R. v. Dionne (1987), 79 N.B.R.(2d) 297; 201 A.P.R. 297; 38 C.C.C.(3d) 171 (C.A.), refd to. [para. 64].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, refd to. [para. 82].

Prosecutor v. Akayesu (1998), 9 I.H.R.R. 608 (I.C.T.R.), refd to. [para. 84].

Prosecutor v. Nahimana, Barayagwiza and Ngeze, Case No. ICTR-99-52-T-1, refd to. [para. 85].

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81, refd to. [para. 101].

Canadian Jewish Congress v. North Shore Free Press Ltd. (1997), 30 C.H.R.R. D/5 (B.C.H.R.T.), refd to. [para. 103].

R. v. Buzzanga and Durocher (1979), 49 C.C.C.(2d) 369 (Ont. C.A.), refd to. [para. 104].

Prud'homme v. Prud'homme, [2002] 4 S.C.R. 663; 297 N.R. 331; 2002 SCC 85, refd to. [para. 109].

Société Saint-Jean-Baptiste de Montréal v. Hervieux-Payette, [2002] R.J.Q. 1669 (C.A.), refd to. [para. 109].

Sivakumar v. Minister of Employment and Immigration, [1994] 1 F.C. 433; 163 N.R. 197 (F.C.A.), refd to. [para. 114].

Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297; 265 N.R. 121 (F.C.A.), refd to. [para. 114].

Sabour v. Canada (Minister of Citizenship and Immigration) (2000), 195 F.T.R. 69; 9 Imm. L.R.(3d) 61 (T.D.), refd to. [para. 114].

Moreno and Sanchez v. Minister of Em­ploy­ment and Immigration, [1994] 1 F.C. 298; 159 N.R. 210 (F.C.A.), refd to. [para. 116].

R. v. Finta, [1994] 1 S.C.R. 701; 165 N.R. 1; 70 O.A.C. 241, overruled [para. 121].

Prosecutor v. Rutaganda, Case No. ICTR-96-3-T-I, refd to. [para. 135].

Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2-T-III, refd to. [para. 125].

Prosecutor v. Tadic (1997), 112 I.L.R. 1, refd to. [para. 140].

Prosecutor v. Kupreskic, Case No. IT-95-16-T-II, refd to. [para. 141].

Prosecutor v. Ruggiu (2000), 39 I.L.M. 1338, refd to. [para. 147].

Prosecutor v. Kunarac, Kovac and Vuko­vic, Case No. IT-96-23-T and IT-96-23/1-T, refd to. [para. 153].

Prosecutor v. Kayishema, Case No. ICTR-95-1-T-11, refd to. [para. 154].

Prosecutor v. Blaskic (2000), 122 I.L.R. 1 (I.C.T.Y. Trial Chamber), refd to. [para. 162].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 7(3.76), sect. 7(3.77) [para. 118]; sect. 22(3) [para. 63]; sect. 318(1) [para. 82]; sect. 319 [para. 99]; sect. 464(a) [para. 62].

Immigration Act, R.S.C. 1985, c. I-2, sect. 19(1)(j) [para. 113]; sect. 27 [para. 58].

Authors and Works Noticed:

Bassiouni, M. Cherif, Crimes Against Hu­man­ity in International Criminal Law (Rev. 2nd Ed. 1999), p. 327 [para. 139].

Mettraux, Guénaël, Crimes Against Hu­man­ity in the Jurisprudence of the Inter­national Criminal Tribunals for the For­mer Yugoslavia and for Rwanda (2002), 43 Harv. Int'l L.J. 237, pp. 244 [para. 151]; 251 [para. 165].

Counsel:

Michel F. Denis, Normand Lemyre and Louise-Marie Courtemanche, Q.C., for the appellant;

Guy Bertrand and Josianne Landry-Allard, for the respondents;

David Matas, for the interveners the League for Human Rights of B'nai Brith Canada, PAGE RWANDA and the Cana­dian Centre for International Justice;

Written submissions only by Benjamin Zarnett, Francy Kussner and Daniel Cohen, for the interveners the Canadian Jewish Congress, the University of Toronto, Faculty of Law - International Human Rights Clinic and Human Rights Watch.

Solicitors of Record:

The Deputy Attorney General of Canada, Montréal, Quebec, for the appellant;

Guy Bertrand & Associés, Québec, Que­bec, for the respondents;

David Matas, Winnipeg, Manitoba, for the interveners the League for Human Rights of B'nai Brith Canada, PAGE RWANDA and the Canadian Centre for International Justice;

Goodmans, Toronto, Ontario, for the interveners the Canadian Jewish Con­gress, the University of Toronto, Faculty of Law - International Human Rights Clinic and Human Rights Watch.

This appeal was heard on December 8, 2004, by McLachlin, C.J.C., Major, Bas­tarache, Binnie, LeBel, Deschamps, Fish and Charron, JJ., of the Supreme Court of Can­ada. The following joint reasons for judg­ment by all presiding judges was delivered in both official lan­guages on June 28, 2005.