Mugesera v. Canada

Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 SCR 100, 2005 SCC 40 (CanLII)

• s. 35 IRPA, which deals with inadmissibility for violations of human or international rights, refers to ss. 4-7 of the Crimes against Humanity and War Crimes Act
• Section 6 of War Crimes Act refers to “crimes outside Canada” This section defines “Crime against humanity” as being constituted of (1) one of the enumerated underlying acts and (2) being contrary to customary international law or general principles of law accepted by community of nations
• Then s. 6(4) tells you how to interpret customary international law You can look to Rome Statute, which tells you that a crime against humanity must be part of a widespread attack against civilians or an identifiable group.

1. Actus reus of a crime against humanity

• (1) accused has committed an underlying enumerated act (with physical and mental elements) that contravenes customary int’l law in context that (2) act occurs as part of a widespread or systematic attack (3) directed against any civilian population or identifiable group.
• Persecution is one of the enumerated crimes against humanity. But for persecution to be a crime against humanity, have to be very serious persecution rising to a gross or blatant denial of fundamental rights on discriminatory grounds equal in severity to the other enumerated crimes against humanity; hate speech, esp. when it advocates egregious acts of violence, may constitute persecution (as was the case here). Discriminatory intent is an important basis of persecution but not of the other underlying acts. This changes the law from Finta, which said that discriminatory intent was necessary for all crimes against humanity
• Sometimes there are interesting questions as to whether an underlying enumerated act has been committed. Murder is an enumerated act, and counseling murder is included. However, Court evaluates jurisprudence from ICTR and ICTY and finds that for counselling of murder to be considered a crime against humanity under int’l law, murders must actually have been committed
• So the (1) underlying act here is “persecution” (mental and physical elements), and it was as part of a (2) widespread attack against (3) Tutsis

2. Mens rea of a crime against humanity

• Accused must have knowledge of the attack and must know that his/her acts comprise part of it OR take the risk that he/her acts will comprise part of it

• Under s. 19(1)(j) of the Immigration Act, a person shall not be granted admission to Canada if there are “reasonable grounds to believe” that the person has committed a “crime against humanity” outside Canada. The “reasonable grounds to believe” standard requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities. Reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information. This standard of proof applies to questions of fact. Whether the facts meet the requirements of a crime against humanity is a question of law. The facts, as found on the “reasonable grounds to believe” standard, must show that the speech did constitute a crime against humanity in law. The evidence reviewed and relied upon by the panel member who wrote the main reasons for the IAD’s decision clearly meets the “reasonable grounds to believe” standard in that it consists of compelling and credible information that provides an objective basis for his findings of fact. [113 117]

• IRPA reflects this in s. 33: facts established on reasonable grounds to believe, but question of law to be established on balance of probabilities