Court NO. 30025
SUPREME COURT OF CANADA
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
and
LÉON MUGESERA
GEMMA UWAMARIYA,
IRENÉE RUTEMA,
YVES RUSI,
CARMEN NONO,
MIREILLE URUMURI and
MARIE-GRACE HOHO
Respondents
------------------------------------------------------------------------------------------------------------
FACTUM OF THE INTEVENERS CANADIAN CENTRE FOR INTERNATIONAL JUSTICE,
PAGE RWANDA, LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH CANADA
-----------------------------------------------------------------------------------------------------------David Matas
Barrister and Solicitor
602-225 Vaughan Street
Winnipeg, Manitoba, R3C 1T7
Tel: 204-944-1831
Fax: 204-942-1494
Table of Contents
Page
I. The facts
II. The issue
III. Argument
A. The standard of exceptional care
B. Failure to have regard to future events
C. Mental element
D. Causation
E. Focus
F. Self defence
G. Persecution
H. The obvious
IV. Costs
V. Order sought
1
Part I The facts
1. The interveners accept and adopt the statement of facts as set out by the appellant
in her counsel's factum.
Part II The issues
2. The interveners accept the statement of questions in issue in the factum of the
appellant.
Part III Argument
A. The standard of exceptional care
1. The Federal Court of Appeal stated:
"the seriousness of the allegations require exceptional care and caution in
applying the rules of administrative law".
This standard of exceptional care is perverse. The result, deportation, is the same,
whether the allegations are trivial or serious. In principle, the standard of care should
be the same no matter whether the allegations are trivial or serious.
Indeed, it is
chilling to suggest that a person who the Minister has determined to have committed
only trivial or minor or technical breaches of the Immigration and Refugee Protection
Act is entitled to a lesser standard of care when determining whether or not to receive
the same treatment, removal, than a person who the Minister has determined to have
committed major, serious violations.
Paragraph 22
2. We could understand a Court ruling that a person facing more serious consequences
is entitled to a higher standard of care than a person facing less serious consequences.
We could understand a Court ruling that a person in a criminal proceeding facing life
imprisonment is entitled to a higher standard of care than a person facing only a fine.
We find incomprehensible a Court ruling that when two people face the same
consequences, removal from Canada, the person being removed for the more serious
reason is entitled to a higher standard of care than the person being removed for the
less serious reason.
3. Mr. Justice La Forest, in dissent, has commented on this inverted form of reasoning
in the case of R v. Finta [1994] 1 S.C.R. 701.
"The approach taken in the courts below leads to the following incongruous
result. War crimes and crimes against humanity were viewed as so heinous as to
require a procedure so unmanageable as to make successful prosecution
unlikely. This is certainly not called for by the Charter. From R. v. Lyons, supra,
onwards, this Court has repeatedly reiterated that s. 7 requires a fair procedure,
not the procedure most favourable to the accused that can be imagined, and that
fairness requires a proper consideration of the public interest (at p. 362). And
here the public interest is no less than Canada's obligation as a responsible
member of the world community to bring to justice those in our midst who have
committed acts constituting war crimes and crimes against humanity -- an
obligation clearly contemplated by the Charter (s. 11(g)). This procedure,
devised by Parliament, is essential to underline the fundamental values shared
by Canadians with the world community. It must be workable not only to render
justice in relation to the horrors of the past. It must also respond to the ongoing
atrocities that daily assault our eyes whenever we turn on the television and
that, we all have reason to fear, will continue into the future. And, of course, the
procedure, as devised by Parliament, is fair. With appropriate modifications to
ensure that Canada is respectful of the jurisdictional limits under the law of
nations and the additional defences it provides, it is the same procedure we use
to prosecute Canadians for crimes committed in Canada. With one exception
required by international law, those accused of war crimes and crimes against
humanity are accorded no less. They deserve no more."
4. This equally can be said about the reasons of the Federal Court of Appeal. The Court
considers the offences of crimes against humanity through speech, incitement to
murder, hatred and genocide to be so heinous as to require a standard of care so
unmanageable as to make successful deportation proceedings unlikely.
5. Fairness requires a proper consideration of the public interest.
Here the public
interest is no less than Canada's obligation as a responsible member of the world
community to bring to justice, at the very least through deportation proceedings, those
who have committed acts constituting crimes against humanity and incitement to
genocide. The effective functioning of removal proceedings where these grave crimes
are at issue is essential to underline the fundamental values shared by Canadians with
the world community.
6. Those for whom the Minister has reasonable grounds to believe have committed
crimes against humanity and those whom the Minister has found to have committed
incitement to genocide should receive the same fair treatment as those who have
committed lesser violations of the Immigration and Refugee Protection Act.
They
deserve no more.
B. Failure to have regard to future events
7. The Federal Court of Appeal holds that the issue whether speech is incitement to
hatred or genocide can not be determined in light of subsequent killings, in light of
subsequent genocide. The Court said:
"The speech of 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."
Paragraph 21.
8. We submit that it is legitimate, indeed essential, to consider the consequences of
speech alleged to be incitement to hatred or genocide.
When speech is alleged to be
incitement to hatred or genocide and hatred or genocide follows, the hatred or genocide
that follows is surely relevant to charge of incitement to hatred or genocide. To hold
otherwise is to insulate incitement from its consequences.
9. Indeed, the effects of speech, though not the only way, seem to us to be an obvious
way to determine whether or not the speech amounts to criminal incitement or not.
The charge of incitement, by its very nature, looks to the future. It is an accusation
that the accused spurred others to do something in the future. To say, as the Federal
Court of Appeal does, that we can not look at what was, at the time of the speech, then
the future in determining whether or not the accusation is made out, means that an
obvious and simple line of inquiry is shut off.
10. Incitement is criminalized because of the harm that is feared from those acting on
the incitement. It is perverse to hold that the harm incited can not even be considered
in looking at whether or not there is incitement.
The approach is blinkered.
Decontextualizing incitement to hatred and genocide from the hatred and genocide it
may incite makes the speech seem far less harmful than it really is.
11. One of the most notorious, well known inflammatory speeches in modern history is
turned, by the Court, into anodyne babble. For the Court to paint such a distorted
picture of reality, it had to be blind to what was in front of it. It could not see because
it would not see. Averting its eyes from the Rwandan genocide, saying that the speech
"should not be analyzed in light of what we now know" is a flagrant form of wilful
blindness.
C. Mental element
12. In order for a person to have the necessary mental element for an offence, the
person must intend to cause, or must be reckless in causing, the event or state of
affairs which is forbidden by law. In the case of advocacy or promotion of genocide, it
is necessary to show that the person intended the speech which advocated or promoted
genocide. But there is no further intention than that.
See Smith and Hogan, Criminal Law (7th edition, 1992) at page 81.
13. It is not necessary to show that the inciter intended the genocide. It must be
shown that the inciter meant what he or she spoke and that is all.
14. Furthermore, there is a legal presumption that a person's mind goes with his or her
speech. While sometimes people say one thing and mean something else, that is not
the usual course of events.
15. Yet Mr. Justice Décary for the Court ruled the opposite. He stated:
"as I will show, the Minister has not established that Mr. Mugesera was prompted
by ethnic considerations".
Paragraph 58.
Later the Court says:
"What would make him guilty is violence in the message that indicated that the
speaker intended to lead the audience he was addressing to commit
reprehensible acts. The incitement might be direct or indirect, express or
implied, open or covert, but in the last analysis it is the speaker's intent that
must be determined"
Paragraph 210
16. Yet, what motivated or prompted Mugesera should be irrelevant to the crime of
advocating genocide found by the Minister against him. All the Minister had to establish
is that Mugesera said what he meant.
Furthermore, because there is a legal
presumption that people say what they mean, the Minister had established all he had to
establish just by showing that Mugesera spoke the relevant words, as long as those
words were reasonably read as incitement to genocide.
17. It is a standard principle of criminal law that awareness that the act is either legally
or morally wrong is immaterial. It would be an error to hold otherwise. The Court
commits a similar error here.
See Smith and Hogan at page 53.
18. What makes speech incitement to genocide is its foreseeable ethnic consequences
not its ethnic motivation. A speaker who incites genocide does not have to know that
genocide will result or intend genocide, as long as genocide is a reasonably foreseeable
consequence of the speech.
19.
The case of Keegstra made clear the significance of the insertion of the word
"wilfully" into the offence of incitement of hatred.
The Court said by the use of this
word, Parliament intended to limit the offence under to the intentional promotion of
hatred. However, as one can plainly see, the word "wilfully" is not to be found in the
offence of advocating or promoting genocide. Its presence for the offence of promoting
hatred and its absence for the offence of promoting genocide indicates clearly that
Parliament intended that the offence of promoting genocide be punishable whether
genocide was intentionally promoted or not.
R v. Keegstra [1990] 3 S.C.R. 697
D. Causation
20. The Court required a showing of causation, that there was a direct link between the
speech of Mugesera and subsequent killings. The Court said:
"If extracts from the speech [of Mugesera] were later used without Mr.
Mugesera's knowledge in preparing the genocide, the users should be blamed,
not Mr. Mugesera".
Paragraph 58.
21. One can see here that the Court is rejecting the very concept of a speech crime. If
someone uses a speech in preparing a genocide, they are committing an act which is
more than just or different from a speech crime.
There is a difference between
incitement to genocide and preparation of genocide. The Court is of the view that
unless incitement to genocide is used in aid of the planning, the organization of the
genocide, the crime of genocide can not be committed.
22. Because the Court rejects the very notion of a speech crime, the judgment has the
effect of gutting all hate speech crimes, not only in Canada, but, if the judgment is
followed, around the world. It is a matter of serious concern to us that the Federal
Court has voided the very concept of incitement to genocide or hatred of all legal
content.
23. The Court later states:
"Mr. Mugesera's speech on November 22, 1991 appears to have had a negligible
impact in Rwanda in the days and weeks that followed."
Paragraph 211.
24. This part of the reasoning is directly contrary to what the Supreme Court of Canada
has already decided in the case of Keegstra. In that case, the Court held that, for the
offence of incitement to hatred to be made out, it was not necessary that the Crown
show that hatred actually result from the prosecuted speech.
25. Chief Justice Dickson for the majority reasoned:
"it is clearly difficult to prove a causative link between a specific statement and
hatred of an identifiable group. In fact, to require direct proof of hatred in
listeners would severely debilitate the effectiveness of s. 319(2) [of the Criminal
Code] in achieving Parliament's aim. It is well accepted that Parliament can use
the criminal law to prevent the risk of serious harms, a leading example being
the drinking and driving provisions in the Criminal Code. The conclusions of the
Cohen Committee and subsequent study groups show that the risk of hatred
caused by hate propaganda is very real, and in view of the grievous harm to be
avoided in the context of this appeal, I conclude that proof of actual hatred is not
required in order to justify a limit under s. 1 [of the Canadian Charter of Rights
and Freedoms]."
26. Even though the Keegstra case had a dissent, there was no dissent on this issue.
Madam Justice McLachlin, in dissent, reasoned:
"it is simply not possible to assess with any precision the effects that expression
of a particular message will have on all those who are ultimately exposed to it.
The process of "proving" that listeners were moved to hatred has a fictitious air
about it. These considerations undermine the notion that we can draw a bright
line between provisions which are justifiable because they require proof that
hatred actually resulted, and provisions which are unjustifiable because they
require only an intent to promote hatred."
27. These statement of the Supreme Court of Canada underline the untenable nature of
the reasons in this case.
The Court in the Mugesera case has imposed on the Minister
a legal requirement of showing something that the Supreme Court of Canada has found
it is "simply not possible", "clearly difficult" to show, a requirement that "would severely
debilitate the effectiveness" of the law.
28. There is no more horrific crime on this planet than genocide. And genocide never
happens in a vacuum, but must be preceded by advocacy and promotion of genocide.
The Court has given a license to incitement to genocide by imposing on the crime of
promotion of genocide a requirement to prove an element of the offence that it "is
simply not possible" "clearly difficult" to prove, a requirement that "would severely
debilitate the effectiveness" of the law.
29. The Court posits a hypothetical
- "If extracts from the speech were later used
without Mr. Mugesera's knowledge in preparing the genocide" - without saying whether
this hypothetical is true or false.
It is assumed to be true for the purpose of the
judgment. But, if it is indeed true that extracts from the speech were later used in
preparing the genocide, those preparing the genocide must have thought that the
speech was incitement to genocide or they would not have used it.
30. While proof that genocidal planners used a particular speech to incite to genocide is
not itself proof that the speech led to the genocide, it is pretty close.
Given the
difficulty, if not impossibility of proving causation, in this context, it is unlikely that a
court would ever find better proof of causation than this Court assumed existed.
E. Focus
31. The Court says:
"where incitement to murder, hatred or genocide is concerned, the focus is on
the speaker rather than on the audience."
Paragraph 210
It is hard to imagine a more obtuse statement about incitement than this. Unless,
where incitement to murder, hatred or genocide is concerned, the focus is on the
audience, the whole point of criminalizing incitement is lost.
Words are not incitement
unless they are likely to have an impact on an audience.
32. That is not to say that there has to be an actual impact. But there has to be at least
a likelihood of incitement.
33. The Court judgment opts for two irrational extremes and forgets about the sensible
middle. On one extreme, the Court insists that murder or genocide actually occur and
that there be a proven linkage between the speech and the murder or genocide. But
this insistence ignores the whole point of criminalizing incitement which is prevention of
murder and genocide.
34. If we can stop the incitement, then maybe we can stop the genocide. The Court,
by insisting on proven linkage, is saying that incitement becomes punishable only if and
after the genocide occurs.
But penalizing incitement only after the genocide occurs is
far too late. It amounts to standing by, not preventing the preventable.
35.
At the other extreme, the Court insists on intent of the speaker. But what is
relevant to incitement is impact on the audience, not the intent of the speaker. The
issue must be whether or not, from the speech, genocide is likely to result.
36. In the case of Keegstra in the Supreme Court of Canada, the majority defines hate
propaganda
"to denote expression intended or likely to create or circulate extreme feelings of
opprobrium and enmity against a racial or religious group".
One can see that the Court says "intended or likely", not "intended and likely". If the
expression is likely to create or circulate extreme feelings of opprobrium and enmity
against a racial or religious group, even if not intended to do so, then there is hate
propaganda.
37. Similarly, incitement to genocide is expression either intended or likely to create
genocide. If the expression is likely to create genocide, even if not intended to do so,
then incitement to genocide is made out.
38. In a similar vein, the Canadian Human Rights Act prohibits telephone
communication of
"any matter that is likely to expose a person or persons to hatred or contempt by
reason of the fact that that person or those persons are identifiable on the basis
of a prohibited ground of discrimination."
Section 13(1)].
39. Canadian Human Rights Act proceedings are civil proceedings, not criminal
proceedings. But removal proceedings are also civil. As the Court here noted, the
standard of proof is balance of probabilities.
40. The standard of proof of balance of probabilities for incitement to genocide is not
just relevant to proving the offence in immigration proceedings. It is part and parcel of
the offence, civil or criminal. If genocide is likely to result from the words at issue, then
the speech is incitement to genocide.
41. For the preventive function of the offence of incitement to genocide to operate, the
intent of the speaker must not be the sole criterion. The Court would have it that there
are some legally permissible incitements to genocide, those where the speaker does not
intend genocide. But the law says that there are no legally permissible incitements to
genocide.
42.
By saying that there are some legally permissible incitements to genocide, the
Court is saying that there are some genocides that the law can do nothing to prevent.
But the law is designed to prevent every genocide, not just some genocides.
F. Self defence
43.
The Court came to the astounding conclusion that incitement to genocide is
excusable as self defence. The Court refers, with approval, to the position of counsel
for Mugesera that his speech was legitimate self defence at a number of points.
44. The Court noted, as if this were somehow favourable to Mugesera, that witness
Alison Des Forges "finally acknowledged that the speech might be regarded by some as
legitimate self defence" .
The Court returned to this point when considering the
transcript of the testimony of witness Cornelis Marinus Overdulve, stating: "He admitted
he did not think about self-defence."
Paragraph 91 and 176.
45. The Court quoted with approval excerpts from the report of witness Marc Angenot
analyzing the speech of Mugesera. Angenot at several points calls the speech one of
self defence. The Court quotes the Angenot analysis of the speech where it says: "If
the law refused to do its duty, however, he [Mugesera] commented, we would be
entitled to act in self defence."
"The speaker asked everyone to join with him in self-
defence." Angenot concludes: "The thesis of self defence is - wherever it appears presented as a last resort if legislation and institutions are powerless."
Analysis paragraphs 15 and 16 pages 3-4, analysis paragraph 29, Judgment paragraph
193.
46. Mr. Justice Décary for the Court states: "I adopt Prof. Angenot's conclusion because
it is one that I have arrived at myself". The Court then returned to the testimony of
Des Forges, reminded the reader that she had indicated that two people "expressed
before her the opinion that the speech was one of legitimate self defence..." One has
to keep in mind what this "self defence" was: an appeal to mass killings of others on
the basis that otherwise "they" would kill us.
Paragraphs 195 and 199.
47. The Mugesera speech at the centre of the case called human beings cockroaches.
Mugesera said: "Why should such a person not be killed?"
The persons he is referring
to are not only invaders, but those who discourage Rwandan soldiers, those who
demoralize the armed forces, those who had low morale and abandoned their positions,
those who pushed Rwandans into allowing themselves to be invaded, any person who
gives up any part of the national territory, even the smallest piece, those who recruit
soldiers for the invader, those who send their children to the front to help the invaders.
Speech paragraphs 13 and 14.
48. He then asks: "why do they not exterminate them?...Are we really waiting till they
come to exterminate us?" If those he considers disloyal are not prosecuted, then he
says "we must do something ourselves to exterminate this rabble".
Speech paragraphs 16 and 18.
49. He elaborates on this theme of kill them before they kill us by saying "They only
want to exterminate us. They only want to exterminate us. (The repetition is his, not
mine.)
They have no other aim."
The "they" to who he is referring are "the
cockroaches" and the representatives of those parties who collaborate with "the
cockroaches".
He specifically refers to the Mouvement démocratique républicain
(MDR), the Parti Libéral (PL), Parti Social Démocrat (PSD), Parti Démocrate Chrétien
(PDC), and other splinter groups as collaborating parties [speech paragraph 18]. Later
on he says "everyone in the MDR had become cockroaches". He concludes by saying
"Do not be afraid, know that anyone show neck you do not cut is the one who will cut
your neck. Let me tell, you these people [the cockroaches and their accomplices who
are in this country] should begin leaving while there is still time [i.e. before you kill
them]...".
Speech paragraph 26 and 28.
50. This line of reasoning, that incitement to mass killings and, indeed mass killings
themselves, are somehow legitimate as long as the person believes he or she was
acting in self defence, has been explicitly rejected by the Parliament of Canada. The
new Crimes against Humanity and War Crimes Act states that an accused cannot rely
on the defence of superior orders if their belief that an order was lawful "was based on
information about a civilian population or an identifiable group or person that
encouraged, was likely to encourage or attempted justify the commission of inhumane
acts or omissions against the population or group."
51. While Parliament expressed the principle in terms of the defence of superior orders,
the principle is a general one and applies also to a claim of self defence. It is a principle
of international law that existed before the Crimes against Humanity and War Crimes
Act was legislated. An accused cannot rely on a plea of self defence if the belief he or
she was acting in self defence "was based on information about a civilian population or
an identifiable group or person that encouraged, was likely to encourage or attempted
justify the commission of inhumane acts or omissions against the population or group."
That is surely the situation in the Mugesera case.
G. Persecution
52. Mr. Justice Nadon of the Federal Court of Canada did not require linkage between
incitement and specific killings for the crime of incitement to genocide. But he did
require that linkage for the crime against humanity of counselling murder. We submit
here too both that there was proof of linkage and that the crime does not require
linkage for the reasons expressed earlier about incitement to genocide.
53. As well, in addition to the crime against humanity of counselling murder, there are
reasonable ground to believe that Mugesera committed the crime against humanity of
persecution.
The crime against humanity of persecution can be committed by
incitement alone. So the issue of linkage does not even arise.
54. Julius Streicher was convicted at Nuremberg, sentenced to death and executed for a
crime against humanity.
The crime against humanity of which he was guilty was
persecution on political and racial grounds, not incitement to persecution, nor
counselling persecution, but rather just persecution.
55. The case of Streicher was followed in the case of Georges Ruggiu before the
International Criminal Tribunal for Rwanda (ICTR). Ruggiu pled guilty to the crime
against humanity of persecution for radio broadcasts "aimed at singling out and
attacking the Tutsi ethnic group and Belgians".
Prosecutor v. Georges Ruggiu, ICTR-97-32-I, June 1, 2000, paragraph 22.
56. Whether or not Mr. Justice Nadon was correct in requiring linkage and finding no
proof of linkage for the crime against humanity of counselling murder, he was surely
wrong in finding that there were no reasonable grounds for the Minister to believe that
Mugesera had committed a crime against humanity. There were reasonable grounds
for the Minister to believe that Mugesera had committed the crime against humanity of
persecution whether or not there were reasonable grounds for the Minister to believe
that Mugesera had committed the crime against humanity of counselling murder.
57. The Court of Appeal did not deal with this matter. So what the Trial Division judge
said on it remains the final word, unless overruled by the Supreme Court of Canada.
H. The obvious
58. It takes a judgment of two hundred and fifty seven paragraphs, many of which run
on for pages, to avoid the obvious. The judgment was filled with diversions, analysing
a report of inquiry on Rwanda as if the Court were sitting on judicial review of that
report instead of the Immigration and Refugee Board, going into Mugesera's personal
history, assessing the credibility of witnesses who testified at the hearing before the
Board as though the appeal to the Federal Court of Appeal were a trial de novo.
59. Labelling large groups of people cockroaches or cockroach collaborators and calling
for their extermination is pretty clear. The Court acknowledged that when Mugesera
used the word "cockroaches" he was referring to Tutsis "for the most part" , but the
Court decided that there was no crime because the word "cockroaches" rather than the
word "Tutsi" was used.
Paragraph 63.
60. There was also the strange manner in which the Court treated the component of
the Mugesera speech where he talked about the Nyabarongo River.
The speech
contained these words:
"Recently, I made these comments to someone who was not ashamed to
disclose that he had joined the PL. I told him that the fatal mistake we made in
'59, when I was still a boy, was that we let them leave. I asked him if he knew of
the Falachas, who had gone back to their home in Israel from Ethiopia, their
country of refuge. He told me he did not know about that affair. I replied that he
did not know how to listen or read. I went on to explain that his home was in
Ethiopia but we were going to find them a shortcut, namely the Nyabarongo
River. I would like to emphasize this point. We must react!"
Speech paragraph 25.
61. This portion had been widely interpreted as a call to kill Tutsis and throw them in
the river. The Nyabarongo River flows from Rwanda to Ethiopia.
There had been a
massacre of Tutsis in the past when that had happened; they had been killed and
thrown in this river in 1959. The Court, nonetheless, states that all that was being
suggested was a riverboat excursion. The Court reasons state:
"it would seem, more simply, that Mr. Mugesera wanted to put political enemies
on notice that if they did not leave the country by themselves Rwandans would
find a means of sending them home."
62. The trouble with this twist on the river passage is that it assumes that the
Nyabarongo River is navigable from Rwanda to Ethiopia, that, like the Mississippi River,
it is possible to go from one end to the other by paddlewheel.
But there was no
evidence before the Court that the river is navigable. I am told that it is not and that
locals who heard the speech would have known that it is not. The only way someone
could get from Rwanda to Ethiopia on that river is as a floating corpse.
63. What is relevant for incitement to genocide is not how the Court understands the
speech, but how the audience would have understood the speech.
What difference
does it make to its genocidal impact how the Court interprets the speech?
64. The Court, I would hope, is not trying to determine whether the judges, after
reading the speech, are likely to commit genocide. It is safe to assume that there is
nothing the judges, not just these judges, but all Canadian judges would read that
would lead them to participate in a genocide.
If the test for incitement to genocide
becomes the impact on the Court rather than the impact on the audience, no
expression would ever amount to incitement to genocide.
65. As well, of course, there were the massacres, not only the genocide of 1994 but
mass killings immediately after the speech was delivered. The speech was November
22, 1992.
Immediately afterwards, the Immigration and Refugee Board found that
"murders were being systematically and extensively committed". The Court of Appeal
seems to have forgotten or lost track of these immediately subsequent murders
because of a difference between the majority of the Board and Board member Duquette
over whether the speech of Mugesera could be directly linked to those murders. The
majority, panel members Bourbonnais and Champoux Ohrt, concluded there was
linkage; panel member Duquette concluded there was not. Federal Court Trial Division
judge Nadon sided with panel member Duquette and held that there was no evidence
to support this conclusion of the majority.
66. As submitted earlier, the issue of linkage is a legal red herring. But the Court of
Appeal, in addition to insisting on linkage, appears to have forgotten about the post
speech massacres altogether.
There was no dispute about the existence of these
massacres. But the Court of Appeal surprisingly does not even mention them in its
judgment.
67. The Court of Appeal may have decided that these post speech massacres were
irrelevant and did not deserve mention once there was a finding of no linkage. Or the
Court may have misread the dispute about linkage in the Board as a dispute about the
existence of the massacres. The Court of Appeal may have interpreted the finding of
Mr. Justice Nadon that there was no evidence of linkage as a finding that there was no
evidence of massacres. Though the Court says almost nothing on this issue, it does
write that "it has since been established that this information (about massacres on the
day following the speech) is incorrect." The Court gives no indication what it thought
was correct.
Paragraph 40.
68. As submitted earlier, actual genocide is unnecessary for the crime of promotion of
genocide to have been committed. Once genocide is committed, it is not necessary to
show a linkage between the promotion of genocide and the actual genocide.
Nonetheless, it makes Canada looks foolish when a speech calls for the extermination of
masses of people, they are exterminated, and Canadian courts say that there is no
promotion of genocide.
69. Res ipsa loquitur, the thing speaks for itself. Mugesera calls for extermination;
there is extermination. What more could possibly be needed to show that the offence
is made out?
Part IV Costs
70. The intervener does not ask for costs and asks that there be no costs awarded
against the intervener.
Part V Order requested
71. The intervener agrees with the order requested by the appellant.
Respectfully submitted,
David Matas
Counsel to the interveners
League for Human Rights of B'nai Brith Canada, PAGE RWANDA, Canadian Centre for
International Justice
17 October 2004
Authorities
R v. Finta [1994] 1 S.C.R. 701.
R v. Keegstra [1990] 3 S.C.R. 697
Prosecutor v. Georges Ruggiu, ICTR-97-32-I, June 1, 2000, paragraph 22.