2014 QCCA 906, 2014 QCCA 906

Munyaneza c. R. 2014 QCCA 906 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004416-093 (500-73-002500-052) DATE: MAY 7, 2014 CORAM: THE HONOURABLE PIERRE J. DALPHOND, J.A ALLAN R. HILTON, J.A. FRANÇOIS DOYON, J.A. DÉSIRÉ MUNYANEZA APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix and THE CANADIAN CENTRE FOR INTERNATIONAL JUSTICE CANADIAN LAWYERS FOR INTERNATIONAL HUMAN RIGHTS INTERVENERS JUDGMENT* INTRODUCTION [ 1 ] From April to July of 1994, a domestic armed conflict led to the massacre of approximately 800,000 Rwandas (primarily members of the Tutsi ethnic group, as well as so-called moderate Hutus) and to numerous other acts of violence (rape, physical abuse, kidnappings, pillage, and others).

The horror of this period has forever scarred those who survived it, the country of Rwanda, and the collective memory of the world. [ 2 ] These tragic events have given rise to numerous prosecutions before the International Criminal Tribunal for Rwanda ("ICTR"), the special tribunal constituted under the authority of the United Nations that is based in Arusha, Tanzania, where several of the leaders have stood trial, as well as before national Rwandan courts.

Prosecutions have also been instituted in other countries, including two in Canada, which is a State signatory to the Rome Statute of the International Criminal Court , 17 July 1998 (amended 1999 and 2000), A/CONF.183/9 (" Rome Statute "). [ 3 ] This is appeal is born from a guilty verdict rendered in the first Canadian trial ( 2009 QCCS 2201 ), that of Désiré Munyaneza, a resident of this country, who was charged with participating in events that took place on the territory of the prefecture of Butare, one of Rwanda's territorial divisions. [1] BACKGROUND [ 4 ] When the Rwandan tragedy occurred, the appellant was living in the city of Butare, the country's second-largest city and part of the commune of Ngoma, which was one of the twenty communes making up the prefecture of Butare.

He was working at his father's store. In July of 1994, he fled Rwanda, settling in Canada in 1997. [ 5 ] After receiving information connecting him with the genocide, the Royal Canadian Mounted Police began a lengthy

investigation. In February and March of 2005, investigators travelled to Rwanda and met with 25 individuals who had been identified as potential witnesses in the Canadian trial. A series of photographs was shown to 20 of these potential witnesses.

Fifteen of them identified the appellant as the person to whom they referred in their statements. [ 6 ] On October 19, 2005, he was arrested and charged with the following seven counts under the Crimes Against Humanity and War Crimes Act , S.C. 2000, c. 24 (" Act "): [translation] First count: Between April 1, 1994 and July 31, 1994, in the Prefecture of Butare, in Rwanda, committed the intentional killing of members of an identifiable group of people, to wit: the Tutsi, with intent to destroy the Tutsi, in whole or in part, committing

an act of genocide, as defined in subsections 6(3) and 6(4) of the Crimes Against Humanity and War Crimes Act , S.C. 2000, c. 24, thereby committing the indictable offence of genocide, as provided for in subparagraph 6(1)(

a) of the said Act . Second count: Between April 1, 1994 and July 31, 1994, in the Prefecture of Butare, in Rwanda, caused serious bodily or mental harm to members of an identifiable group of people, to wit: the Tutsi, with intent to destroy the Tutsi, in whole or in part, committing

an act of genocide, as defined in subsections 6(3) and 6(4) of the Crimes Against Humanity and War Crimes Act , S.C. 2000, c. 24, thereby committing the indictable offence of genocide, as provided for in subparagraph 6(1)(

a) of the said Act . Third count Between April 1, 1994 and July 31, 1994, in the Prefecture of Butare, in Rwanda, committed the intentional killing of members of a civilian population or an identifiable group of people, to wit: the Tutsi, knowing that the said intentional killing was part of a widespread or systematic attack on the Tutsi, committing a crime against humanity, as defined in subsections 6(3) , 6(4) and 6(5) of the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, thereby committing the indictable offence of a crime against humanity, as provided for in subparagraph 6(1)(

b) of the said Act . Fourth count Between April 1, 1994 and July 31, 1994, in the Prefecture of Butare, in Rwanda, committed the act of sexual violence in regard to members of a civilian population or of an identifiable group of people, to wit: the Tutsi, knowing that the said act of sexual violence was part of a widespread or systematic attack on the Tutsi, committing a crime against humanity, as defined in subsections 6(3) , 6(4) and 6(5) of the Crimes Against Humanity and War Crimes Act , S.C. 2000, c. 24, thereby committing the indictable offence of a crime against humanity, as provided for in subparagraph 6(1)(

b) of the said Act . Fifth count Between April 1, 1994 and July 31, 1994, in the Prefecture of Butare, in Rwanda, during an armed conflict, to wit: hostilities between the Rwandan Armed Forces (RAF) and the Rwandan Patriotic Front (RPF), committed the intentional killing of people who were not taking a direct

part in the said conflict, committing a war crime, as defined in subsections 6(3) and 6(4) of the Crimes Against Humanity and War Crimes Ac t, S.C. 2000, c. 24, thereby committing the indictable offence of a war crime, as provided for in subparagraph 6(1)(

c) of the said Act . Sixth count Between April 1, 1994 and July 31, 1994, in the Prefecture of Butare, in Rwanda, during an armed conflict, to wit: hostilities between the Rwandan Armed Forces (RAF) and the Rwandan Patriotic Front (RPF), committed the act of sexual violence against people, committing a war crime, as defined in subsections 6(3) and 6(4) of the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, thereby committing the indictable offence of a war crime, as provided for in subparagraph 6(1)(

c) of the said Act . Seventh count Between April 1, 1994 and July 31, 1994, in the Prefecture of Butare, in Rwanda, during an armed conflict, to wit: hostilities between the Rwandan Armed Forces (RAF) and the Rwandan Patriotic Front (RPF), pillaged, committing a war crime, as defined in subparagraphs 6(3) and 6(4) of the Crimes Against Humanity and War Crimes Act , S.C. 2000, c. 24, thereby committing the indictable offence of a war crime, as provided for in subparagraph 6(1)(

c) of the said Act . [ 7 ] In brief, the seven counts refer to distinct offences committed by various means during a single time period (from April 1, 1994, to July 31, 1994) and in a single location (the prefecture of Butare): – two counts of genocide, one by murder and the other by causing serious bodily or mental harm; – two counts of crimes against humanity, one by intentional killings and the other by acts of sexual violence; – three counts of war crimes, the first by murders, the second by acts of sexual violence, and the third by pillage. [ 8 ] The appellant subsequently applied for release pending trial.

On April 27, 2006, this application was rejected by Denis, J. of the Superior Court of Quebec ( 2006 QCCS 8007 ). [ 9 ] On October 5, 2006, the appellant filed a motion under sections 601 et seq. of the Criminal Code , R.S.C. 1985, c. C-46 entitled [ translation ] "Motion to quash counts and, in the alternative, motion relating to the counts" in which he contested the validity of the

indictment on the following grounds: − The indictment fails to comply with

section 589 Cr. C. (no count that charges an indictable offence other than murder shall be joined in an indictment to a count that charges murder); − Counts 1 to 6 fail to comply with

section 581 Cr. C. and in particular counts 1 to 3 (because they do not refer to a single transaction and are not sufficiently detailed); − Count 7 alleges that the appellant committed an offence that is unknown and non-existent under Canadian law, namely, pillage. [ 10 ] Denis J. dismissed the motion in a judgment rendered on November 20, 2006, holding that the changes were for specific offences under the Act , which were based on international law ( 2006 QCCS 8010 ). [ 11 ] The trial was preceded by a rogatory commission in Rwanda in January and February of 2007.

It was held in Montreal beginning in March of 2007 and included rogatory commissions in 2008 in Paris, Kigali, and Dar es Salaam. In total, 66 witnesses were heard and 200 exhibits were filed over the eight months of trial. It should also be pointed out that the trial took place before Denis J. sitting alone, as the parties agreed and as permitted by the Act , and not before a judge and jury as is usually the case in prosecutions for murder under the Criminal Code . [ 12 ] On May 22, 2009, the appellant was convicted on all seven counts.

To safeguard the identity of several of the witnesses and thus protect them from any possible reprisals, the judgment of conviction consisted of two documents: one public judgment, which is 2095 paragraphs length, and a confidential

schedule of 1728 paragraphs that contains the judge's more detailed review and analysis of the testimony. [ 13 ] On October 29, 2009, the appellant was sentenced to life imprisonment ( 2009 QCCS 4865 ).

THE GROUNDS OF APPEAL [ 14 ] The appellant raises several grounds, which can be grouped into five categories, which the Court will address in the following order: – the acts alleged in counts 5, 6, and 7 do not constitute war crimes according to international law in force in 1994 or, in the alternative, according to Canadian law in 1994; – the invalidity of the seven counts on grounds of vagueness; – the commission of irregularities by the judge, rendering the trial unfair; – the judge's misinterpretation of the constituant elements of the alleged offences; and – the clear lack of credibility of the Crown's witnesses invalidating the verdict.

THE EXISTENCE IN 1994 OF THE WAR CRIMES ALLEGED AND THE VALIDITY OF PROSECUTION FOR SUCH CRIMES IN CANADA [ 15 ] The appellant maintains that the three war crimes with which he was charged did not exist according to international law because the underlying acts would have been committed during a non-international armed conflict as opposed to an international armed conflict. He argues that such acts only became crimes according to international law in 1998 with the adoption of the Rome Statute.

Moreover, pillage of a home and of businesses, which are the offences underlying the seventh count, still do not constitute crimes in international law. [ 16 ] In the alternative, if, in 1994, war crimes under international law did include acts committed during a non-international armed conflict, their prosecution could not take place in Canada because subsection 7(3.76) Cr. C., which was in force at the time, defined "war crimes" as acts committed during an international armed conflict. Therefore, unless the Act is retroactive in effect, which the appellant argues is prohibited under paragraph 11(

g) of the Canadian Charter of Rights and Freedoms , he could not be prosecuted in Canada for the war crimes alleged in counts 5, 6, and 7. [ 17 ] Finally, considering that

section 11 of the Act recognizes the right to raise any defence in existence in Canada in 1994, the appellant argues that he may raise the fact that the alleged acts were not offences in this country at the time because they were committed in the context of a non-international armed conflict. [ 18 ] On these grounds, the appellant asks the count to quash the fifth, sixth and seventh counts and to annul the verdicts arising therefrom. [ 19 ] In the Court's opinion, these arguments have no merit. (

i) Existence of the war crimes alleged according to international law in 1994

[ 20 ] Subsection 6(3) of the Act defines war crimes as follows: “war crime” means

an act or omission committed during an armed conflict that, at the time and in the place of its commission, constitutes a war crime according to customary international law or conventional international law applicable to armed conflicts, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission. « crime de guerre »

Fait — acte ou omission — commis au cours d’un conflit armé et constituant, au moment et au lieu de la perpétration, un crime de guerre selon le droit international coutumier ou le droit international conventionnel applicables à ces conflits, qu’il constitue ou non une transgression du droit en vigueur à ce moment et dans ce lieu. [ 21 ] Because this definition refers to international law, for there to be a crime, [ translation ] "international law must itself define the individual unlawful acts considered to be offences" (Patrick Dallier, Mathias Forteau and Alain Pellet, Droit international public , 8th ed. (Paris: LGDJ, 2009) at 780). [ 22 ] It must be noted that there are three sources of international law, which interact with each other: − conventions, treaties, and other international agreements (conventional international law); − international custom (customary international law); and − general principles of law recognized by the community of nations. [ 23 ] The Act , however, refers only to two of the three sources of international law: customary and conventional international law.

In other words, it excludes the third, the general principles of law recognized by the community of nations. [ 24 ] In the present case, it cannot be determined whether the acts alleged in the fifth, sixth, and seventh counts constituted war crimes in 1994 by referring to the Rome Statute because subsection 6(4) of the Act states that the Rome Statute codifies crimes according to customary international law as of July 17, 1998:

(4) For greater certainty, crimes described in articles 6 and 7 and paragraph 2 of

article 8 of the Rome Statute are, as of July 17, 1998, crimes according to customary international law, and may be crimes according to customary international law before that date. This does not limit or prejudice in any way the application of existing or developing rules of international law.

(4) Il est entendu que, pour l’application du présent article, les crimes visés aux articles 6 [crimes de génocide] et 7 [crimes contre l’humanité] et au paragraphe 2 de l’article 8 [crimes de guerre] du Statut de Rome sont, au 17 juillet 1998, des crimes selon le droit international coutumier, et qu’ils peuvent l’être avant cette date, sans que soit limitée ou entravée de quelque manière que ce soit l’application des règles de droit international existantes ou en formation. [ 25 ] With regard to crimes against humanity, however, subsection 6(5) of the Act provides that they existed before the coming into force of the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis , signed in London in August of 1945 (“ London Agreement ”), and of a proclamation by the Allied Forces in January of 1946, and thus, long before the Rome Statute and long before the events in Rwanda in 1994 . [ 26 ] As for genocide, this crime has been recognized under customary international law since long before 1994, as attested by the Convention on the Prevention and Punishment of the Crime of Genocide , 78 U.N.T.S. 277, 9 December 1948, coming into force: 12 January 1951, signed by Canada and Rwanda on September 3, 1952, and April 16, 1975, respectively.

It has also been recognized in international jurisprudence: Prosecutor v. Jean-Paul Akayesu (2 September 1998), Case No. ICTR-96-4-T (ICTR, Trial Chamber) at para. 495, aff'd by the Appeals Chamber (1 June 2001), Case No.

ICTR-96-4-A, and in commentary: Guénaël Mettraux, International Crimes and the ad hoc Tribunals (Oxford: Oxford UP, 2005) at 199 et seq. [ 27 ] With regard to the underlying acts alleged against the appellant in the fifth, sixth, and seventh counts – murder, sexual violence and pillage during a non-international armed conflict – the Act leaves it to the Court to determine whether they constituted war crimes before 1998, and specifically in 1994, according to customary or conventional international law.

Indeed, this is the only possible meaning of the words "This does not limit or prejudice in any way the application of existing or developing rules of international law" in subsection 6(4) of the Act (Fannie Lafontaine, Prosecuting Genocide, Crimes against Humanity and War Crimes in Canadian Courts (Scarborough, Ont.: Carswell, 2012) at 177). [ 28 ] The Crown and the interveners begin by pointing out that the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) 1125 U.N.T.S. 609, 8 June 1977, was incorporated into Canadian law through the Geneva Conventions Act , R.S.C. 1985, c.

G-3, s. 2(2). Protocol II , which, as its title indicates, applies to non-international armed conflicts, provides that murder, rape (sexual violence constituting serious outrage to a person’s dignity) and pillage are prohibited at all times:

Article 4 -- Fundamental guarantees 1. All persons who do not take a direct part or who have ceased to take

part in hostilities , whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction. It is prohibited to order that there shall be no survivors. 2. Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph 1 are and shall remain prohibited at any time and in any place whatsoever : (

a) violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; (

b) collective punishments; (

c) taking of hostages; (

d) acts of terrorism; (

e) outrages upon personal dignity, in particular humiliating and degrading treatment, rape , enforced prostitution and any form of indecent assault; (

f) slavery and the slave trade in all their forms; (

g) pillage ; (

h) threats to commit any of the foregoing acts. [Emphasis added.]

Article 4 -- Garanties fondamentales 1. Toutes les personnes qui ne participent pas directement ou ne participent plus aux hostilités , qu'elles soient ou non privées de liberté, ont droit au respect de leur personne, de leur honneur, de leurs convictions et de leurs pratiques religieuses. Elles seront en toutes circonstances traitées avec humanité, sans aucune distinction de caractère défavorable. Il est interdit d'ordonner qu'il n'y ait pas de survivants. 2. Sans préjudice du caractère général des dispositions qui précèdent, sont et demeurent prohibés en tout temps et en tout lieu à l'égard des personnes visées au paragraphe 1 :

a) les atteintes portées à la vie, à la santé et au bien-être physique ou mental des personnes, en particulier le meurtre , de même que les traitements cruels tels que la torture, les mutilations ou toutes formes de peines corporelles;

b) les punitions collectives;

c) la prise d'otages;

d) les actes de terrorisme;

e) les atteintes à la dignité de la personne, notamment les traitements humiliants et dégradants, le viol , la contrainte à la prostitution et tout attentat à la pudeur;

f) l'esclavage et la traite des esclaves sous toutes leurs formes;

g) le pillage ;

h) la menace de commettre les actes précités. [ 29 ] The appellant nevertheless responds that there was no clear consensus before 1994 as to whether all of the norms recognized in the Additional Protocols were customary, referring in particular to Robert J. Currie, International and Transnational Criminal Law (Toronto: Irwin Law, 2010) at 146. [ 30 ] To decide this issue, the Court may rely on international jurisprudence from the 1990s dealing with the content of customary law in war crimes cases, following the Supreme Court of Canada's suggestion in Mugusera v.

Canada (M.C.I.) , [2005] 2 S.C.R. 100, 2005 SCC 40 , at para. 126 . [ 31 ] Accordingly, the judgment in Prosecutor v. Tadic (2 October 1995) Case No. IT-94-1 (ICTY, Appeals Chamber) states that Protocol II crystallized customary law in 1977: 117. Attention must also be drawn to Additional Protocol II to the Geneva Conventions. Many provisions of this Protoco l can now be regarded as declaratory of existing rules or as having crystallised emerging rules of customary law or else as having been strongly instrumental in their evolution as general principles.

This proposition is confirmed by the views expressed by a number of States. Thus, for example, mention can be made of the stand taken in 1987 by El Salvador (a State party to Protocol II). After having been repeatedly invited by the General Assembly to comply with humanitarian law in the civil war raging on its territory (see, e.g., G.A.

Res. 41/157 (1986)), the Salvadorian Government declared that, strictly speaking, Protocol II did not apply to that civil war (although an objective evaluation prompted some Governments to conclude that all the conditions for such applications were met, (see, e.g., 43 Annuaire Suisse de Droit International , (1987) at 185-87). Nevertheless, the Salvadorian Government undertook to comply with the provisions of the Protocol, for it considered that such provisions "developed and supplemented" common

Article 3, "which in turn constitute[d] the minimum protection due to every human being at any time and place"(6) (See Informe de la Fuerza Armata de El Salvador sobre el respeto y la vigencia de las normas del Derecho Internacional Humanitario durante el periodo de Septiembre de 1986 a Agosto de 1987, at 3 (31 August 1987) (forwarded by Ministry of Defence and Security of El Salvador to Special Representative of the United Nations Human Rights Commission (2 October 1987),; (unofficial translation). Similarly, in 1987, Mr. M.J.

Matheson, speaking in his capacity as Deputy Legal Adviser of the United States State Department, stated that: [T]he basic core of Protocol II is, of course, reflected in common

article 3 of the 1949 Geneva Conventions and therefore is, and should be, a part of generally accepted customary law. This specifically includes its prohibitions on violence towards persons taking no active

part in hostilities, hostage taking, degrading treatment, and punishment without due process" (Humanitarian Law Conference, Remarks of Michael J. Matheson,

(2) American University Journal of International Law and Policy (1987) 419, at 430-31). [Emphasis added; formatting and citations omitted.]

[ 32 ] In Akayesu , supra , the Appeals Chamber of the ICTR concluded that Protocol II applied to the Rwandan genocide: 616. It should be noted, moreover, that

Article 4 of the ICTR Statute states that, " The International Tribunal for Rwanda shall have the power to prosecute persons committing or ordering to be committed serious violations of

Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977 " (emphasis added). The Chamber understands the phrase "serious violation" to mean "a breach of a rule protecting important values [which] must involve grave consequences for the victim", in line with the above-mentioned Appeals Chamber Decision in Tadic , paragraph 94. The list of serious violations which is provided in

Article 4 of the Statute is taken from Common

Article 3 - which contains fundamental prohibitions as a humanitarian minimum of protection for war victims – and

Article 4 of Additional Protocol II, which equally outlines "Fundamental Guarantees" . The list in

Article 4 of the Statute thus comprises serious violations of the fundamental humanitarian guarantees which, as has been stated above, are recognized as part of international customary law. In the opinion of the Chamber, it is clear that the authors of such egregious violations must incur individual criminal responsibility for their deeds. 617. The Chamber, therefore, concludes the violation of these norms entails, as a matter of customary international law, individual responsibility for the perpetrator. In addition to this argument from custom, there is the fact that the Geneva Conventions of 1949 (and thus Common

Article 3) were ratified by Rwanda on 5 May 1964 and Additional Protocol II on 19 November 1984, and were therefore in force on the territory of Rwanda at the time of the alleged offences . Moreover, all the offences enumerated under

Article 4 of the Statute constituted crimes under Rwandan law in 1994. Rwandan nationals were therefore aware, or should have been aware, in 1994 that they were amenable to the jurisdiction of Rwandan courts in case of commission of those offences falling under

Article 4 of the Statute. [Emphasis added.] [ 33 ] Therefore, there can be no doubt that, in 1994, war crimes comprised serious acts such as murder and rape,

an act of sexual violence constituting serious harm to the integrity and dignity of victims that were committed during a non-international armed conflict in Rwanda. [ 34 ] As for pillage, it has been a crime under customary and conventional law for a very long time. Indeed, pillage and its synonym, plunder, have been recognized in several international instruments and treaties. [ 35 ] For example,

Article 6(

b) of the Charter of the International Military Tribunal , which forms part of the London Agreement, 82 U.N.T.S. 285 and which created the Nuremberg Tribunal, includes “plunder of public and private property” in its definition of war crimes. [ 36 ] The Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land , The Hague, 18 October 1907, an earlier agreement considered to be part of customary law, prohibits, in

Article 28, “the pillage of a town or place, even when taken by assault”. [ 37 ] Similarly,

Article 3(

e) of the Statute of the International Criminal Tribunal for the former Yugoslavia (“ ICTY Statute ”, 25 May 1993, U.N. Doc. S/RES/827, implicitly recognizes pillage as a war crime, while

Article 4(

f) of the Statute of the International Criminal Tribunal for Rwanda (“ICTR Statute”) , U.N. Doc. S/RES/955, 8 November 1994 does so explicitly. Furthermore, the latter statute criminalizes pillage by recognizing the offences enumerated in the Geneva Conventions and Protocol II. [ 38 ] It is therefore not surprising that, in Akayesu , at para. 609, the Trial Chamber, recognized that the fundamental guarantees in

Article 4 of Protocol II , including that protecting against pillage, were customary in nature. [ 39 ] Moreover, pillage need not be carried out by an army. [ 40 ] In Prosecutor v. Delalic , Mucic, Delic and Landzo (Celebici Camp) (16 November 1998) Case No. IT-96-21-T (ICTY, Trial Chamber) at para. 590, the Tribunal recognized that the "prohibition against the unjustified appropriation of public and private enemy property is general in scope, and extends both to acts of looting committed by individual soldiers for their private gain, and to the organized seizure of property". [ 41 ] In Prosecutor v.

Jelisic (14 December 1999) Case No.

IT-95-10-T (ICTY, Trial Chamber) at para. 48, the same Tribunal states that plunder is "the fraudulent appropriation of public or private funds belonging to the enemy or the opposing party perpetrated during an armed conflict and related thereto" and that "individual acts of plunder perpetrated by people motivated by greed might entail individual criminal responsibility on the part of its perpetrator". [ 42 ] Recent commentary has adopted this position as well (Currie at 135, Mettraux, at 138 et seq.). [ 43 ] In the circumstances, the Court is of the view that, in 1994, pillage was a war crime according to customary international law when committed in the context of a non-international armed conflict. [ 44 ] The appellant also criticizes the parameters of the underlying offence of pillage, which the Court will discuss later on in its analysis of the requisite elements to find that a war crime by pillage has occurred. [ 45 ] For these reasons, the Court finds that, before 1994, the underlying offences alleged in the fifth, sixth and seventh counts committed during a non-international armed conflict were war crimes according to international law. (ii) The Act explicitly permits prosecution for these acts in Canada [ 46 ] Following the recommendations of the Deschênes Commission in its report filed in 1985, Parliament amended the Criminal Code to include crimes against humanity and war crimes committed outside Canada in subsections 7(3.71) to 7(3.77) (S.C. 1987, c. 37) (Lafontaine at 15–26) .

These amendments contemplated only war crimes committed during an international armed conflict.

[ 47 ] In 2000, to give full effect to Canada's adherence to the Rome Statute , Parliament adopted the Act , which criminalizes all acts that, according to international law, constitute genocide, crimes against humanity, or war crimes committed in Canada (section 4) or outside Canada (section 6). [ 48 ] Offences committed outside Canada may be prosecuted in Canada, regardless of when they were committed. 6.

(1) Every person who, either before or after the coming into force of this section, commits outside Canada (

a) genocide, (

b) a crime against humanity, or (

c) a war crime, is guilty of an indictable offence and may be prosecuted for that offence in accordance with

section 8. … 9.

(1) Proceedings for an offence under this Act alleged to have been committed outside Canada for which a person may be prosecuted under this Act may, whether or not the person is in Canada, be commenced in any territorial division in Canada and the person may be tried and punished in respect of that offence in the same manner as if the offence had been committed in that territorial division. … [Emphasis added.] 6.

(1) Quiconque commet à l’étranger une des infractions ci-après , avant ou après l’entrée en vigueur du présent

article , est coupable d’un acte criminel et peut être poursuivi pour cette infraction aux termes de l’article 8 :

a) génocide;

b) crime contre l'humanité;

c) crime de guerre. […] 9.

(1) Les poursuites à l'égard d'une infraction visée par la présente loi qui aurait été commise à l'étranger peuvent être engagées dans toute circonscription territoriale au Canada , que l'accusé se trouve ou non au Canada, et celui-ci peut subir son procès et être uni, à l'égard de cette infraction, comme si elle avait été commise dans cette circonscription territoriale. […] [ 49 ] Thus, the Act criminalizes in Canadian law all acts constituting crimes within the meaning of international law at the time they were committed.

As noted previously, these crimes include genocide, war crimes, and crimes against humanity during a non- international armed conflict. [ 50 ] It is true that the crimes alleged against the appellant were committed in 1994, whereas the Act was not enacted until 2000. This does not, however, result in the retroactive creation of an offence. [ 51 ] The Act does not attempt to create an offence ex post facto .

Rather, it seeks merely to allow the prosecution in Canada of persons who, before the Act entered into force, committed acts that, at the time of their commission, constituted genocide, crimes against humanity, or war crimes, according to the

definitions of those crimes under international law, as illustrated by subection 6(3) of the Act :

“crime against humanity” means murder,extermination, enslavement, deportation,imprisonment, torture, sexual violence,persecution or any other inhumane act oromission that is committed against any civilianpopulation or any identifiable group and that, atthe time and in the place of its commission,constitutes a crime against humanity according tocustomary international law or conventionalinternational law or by virtue of its beingcriminal according to the general principles oflaw recognized by the community of nations,whether or not it constitutes a contravention ofthe law in force at the time and in the place of itscommission. “war crime” means

an act or omission committedduring an armed conflict that, at the time and inthe place of its commission, constitutes a warcrime according to customary international lawor conventional international law applicable toarmed conflicts, whether or not it constitutes acontravention of the law in force at the time andin the place of its commission. “genocide” means

an act or omission committedwith intent to destroy, in whole or in part, anidentifiable group of persons, as such, that at thetime and in the place of its commission,constitutes genocide according to customaryinternational law or conventional internationallaw or by virtue of its being criminal according tothe general principles of law recognized by thecommunity of nations, whether or not itconstitutes a contravention of the law in force atthe time and in the place of its commission. [Emphasis added.] « crime contre l’humanité »

Meurtre,extermination, réduction en esclavage,déportation, emprisonnement, torture, violencesexuelle, persécution ou autre fait — acte ouomission — inhumain, d’une part, commiscontre une population civile ou un groupeidentifiable de personnes et, d’autre part, quiconstitue, au moment et au lieu de laperpétration, un crime contre l’humanité selon ledroit international coutumier ou le droitinternational conventionnel ou en raison de soncaractère criminel d’après les principes générauxde droit reconnus par l’ensemble des nations,qu’il constitue ou non une transgression du droiten vigueur à ce moment et dans ce lieu.

« crime de guerre » Fait — acte ou omission —commis au cours d’un conflit armé etconstituant, au moment et au lieu de laperpétration, un crime de guerre selon le droitinternational coutumier ou le droit internationalconventionnel applicables à ces conflits, qu’ilconstitue ou non une transgression du droit envigueur à ce moment et dans ce lieu. « génocide »

Fait — acte ou omission —commis dans l’intention de détruire, en tout ouen partie, un groupe identifiable de personnes etconstituant, au moment et au lieu de laperpétration, un génocide selon le droitinternational coutumier ou le droit internationalconventionnel, ou en raison de son caractèrecriminel d’après les principes généraux de droitreconnus par l’ensemble des nations, qu’ilconstitue ou non une transgression du droit envigueur à ce moment et dans ce lieu. [52] The Act is thus consistent with paragraph 11(

g) of the Charter, which recognizes that the criminal nature of

an act at themoment it is committed may be assessed under either domestic or international law: 11. Any person charged with an offence has theright (

g) not to be found guilty on account of any actor omission unless, at the time of the act oromission, it constituted an offence underCanadian or international law or was criminalaccording to the general principles of lawrecognized by the community of nations; [Emphasis added.] 11. Tout inculpé a le droit :

g) de ne pas être déclaré coupable en raison d'uneaction ou d'une omission qui, au moment où elleest survenue, ne constituait pas une infractiond'après le droit interne du Canada ou le droitinternational et n'avait pas de caractère crimineld'après les principes généraux de droit reconnuspar l'ensemble des nations; [53] Moreover, the law of this country does not prohibit an amendment to the rules governing the jurisdiction of courts to allow forprosecutions in Canada for acts that, at the time they were committed, were offences under Canadian or international law (R. v. Finta, (SCC), [1994] 1 S.C.R. 701). And in fact, that is what the Act did.[2] [54] In

summary, through the Act and the repeal of the 1987 amendments to the Criminal Code, Parliament did not create new legalconsequences for the past but only for the future.

At most, the Act is retrospective in effect but not retroactive, as defined in Benner v.Canada (Secretary of State), (SCC), [1997] 1 S.C.R. 358 at 381.[3] [55] Consequently, the Act validly permits the prosecution of an individual in Canada for a war crime committed before 2000. (iii) The end of impunity: a valid effect of the Act [56] Upon the enactment of the Act, the perpetrators of war crimes, crimes against humanity, and genocide could no longer come toCanada seeking immunity from prosecution.

During one of the Parliamentary debates, MP Raymond Chan made a statement on behalf ofthe Minister of Foreign Affairs, confirming this objective: The crimes against humanity and war crimes act has been amended to ensure that Canada will be able to fully prosecute individuals whocommit mass murder, rape, torture or any other similar heinous crimes against humanity. The customary international law

definitions ofgenocide, crimes against humanity and war crimes will now be recognized inside Canada.

Canada's ability to assert universal jurisdiction for these crimes has also been streamlined and simplified. Now, as long as the person accused of the crime is found in Canada, they will fall under our jurisdiction, regardless of when or where the crime took place.

This change ensures that those who have committed or who commit in the future the most egregious crimes will not find a safe haven in Canada . [4] [Emphasis added.] [ 57 ] Consequently, the appellant may be prosecuted in Canada for acts committed in 1994 in Rwanda if these acts constituted crimes according to international law at the time. [ 58 ] Although the appellant does not directly deny this principle, he submits that he is entitled to raise any defence that existed in 1994, including the fact that an offence committed during a non-international armed conflict was not an offence under Canadian criminal law at the time.

He invokes

section 11 of the Act : 11. In proceedings for an offence under any of sections 4 to 7, the accused may , subject to sections 12 to 14 and to subsection 607(6) of the Criminal Code , rely on any justification, excuse or defence available under the laws of Canada or under international law at the time of the alleged offence or at the time of the proceedings. [Emphasis added.]

Sous réserve du paragraphe 607(6) du Code criminel et des articles 12 à 14 , l 'accusé peut se prévaloir des justifications, excuses et moyens de défense reconnus, au moment de la prétendue perpétration ou au moment du procès, par le droit canadien ou le doit international. [ 59 ] In the Court's view, the fact that he knew that he could take refuge in a country where no prosecution was possible for an international crime cannot be raised as a justification, excuse, or defence available at the time of the offence. [ 60 ] In other words, the loss of immunity from prosecution for an international crime by a perpetrator who now resides in Canada is not a defence and cannot be raised under

section 11 of the Act . THE VALIDITY OF THE DRAFTING OF THE INDICTMENT [ 61 ] The appellant argues that the counts do not meet the degree of precision required by the international criminal tribunals, thus rendering his trial unfair. In his view, the location of the alleged offences, the identity of the victims, and the nature of the incidents at issue should have been precisely identified in each of the counts. In support of his position, he invokes judgments of the international criminal tribunals, including that of the Trial Chamber in Prosecutor v. Milosevic (13 December 2001) Cases No.

IT-99-37-AR73 and IT- 01-50-AR73 (ICTY, Trial Chamber) and that of the Appeals Chamber, (18 April 2002) No. IT-01-51-AR73, in which the indictment was over 65 pages long, including schedules listing the victims of each offence. [ 62 ] He also refers to the procedure of the ICTR, which involves a two-part indictment, with the first setting out the offence alleged by the prosecution and the second containing a detailed

summary of the facts surrounding the commission of the offence. He concludes that, contrary to what the trial judge wrote, the Crown can be required to describe the offences in more detail without depriving the Act of its effects. [ 63 ] He also argues that this degree of detail is also required under the Charter , particularly paragraph 11( a ) (the right to be informed without unreasonable delay of the specific offence), paragraph 11( h ) (the right not to be tried again for the same offence), and

section 7 (the right to a fair trial and to make full answer and defence), especially since the charges are complex, involve several events, and contemplate very harsh sentences. [ 64 ] In his opinion, the counts as drafted were too vague and thus prevented him from adequately preparing his defence, as he was kept in the dark about the Crown's theory until a document summarizing the facts giving rise to the alleged offences was filed after the Crown had closed its case.

He also faults the Crown for waiting too long to provide him with the document, without which he was unable to object to the filing of certain pieces of evidence that later turned out to be irrelevant. [ 65 ] The appellant also argues that the judge erred in law by taking into account the disclosure of the evidence in his determination of whether the drafting of the counts was sufficiently precise. An accused should not be required to analyze the content of the evidence disclosed to know precisely with what he is accused. Rather, this information should be included in the indictment.

This principle has been recognized by both Canadian courts and international tribunals, pertaining as it does to the right of all accused to a fair trial. [ 66 ] Citing subsection 581(1) Cr. C. , which provides that each count in an indictment shall in general apply to a single transaction, the appellant argues that the Crown unduly benefited from the indictment as drafted because all it had to prove was his participation in a single underlying act to obtain a conviction, while the appellant, to be acquitted, had to raise a reasonable doubt as to his participation in all of the underlying acts the Crown alleged.

This imbalance, he claims, rebuts the argument of the "single criminal transaction" accepted by the judge. In this case, each count contains multiple transactions (or in French, " affaires "), which should be alleged in an equal number of separate counts. [ 67 ] These arguments cannot succeed. [ 68 ] While indictments filed before the international criminal tribunals are admittedly highly detailed, this is because the procedural rules are different. In this case, however, the Canadian rules in sections 581 to 601 Cr. C . apply, and they are a complete codification of the procedure for indictments.

[ 69 ] Sections 9 and 10 of the Act specify that the trial is held in accordance with Canadian procedure: 9.

(1) Proceedings for an offence under this Act alleged to have been committed outside Canada for which a person may be prosecuted under this Act may, whether or not the person is in Canada, be commenced in any territorial division in Canada and the person may be tried and punished in respect of that offence in the same manner as if the offence had been committed in that territorial division.

(2) For greater certainty, in a proceeding commenced in any territorial division under subsection (1), the provisions of the Criminal Code relating to requirements that an accused appear at and be present during proceedings and any exceptions to those requirements apply. … 10. Proceedings for an offence alleged to have been committed before the coming into force of this

section shall be conducted in accordance with the laws of evidence and procedure in force at the time of the proceedings. 9.

(1) Les poursuites à l'égard d'une infraction visée par la présente loi qui aurait été commise à l'étranger peuvent être engagées dans toute circonscription territoriale au Canada, que l'accusé se trouve ou non au Canada, et celui-ci peut subir son procès et être puni, à l'égard de cette infraction, comme si elle avait été commise dans cette circonscription territoriale.

(2) Il est entendu que la procédure visée au paragraphe (1) est assujettie aux dispositions du code criminel concernant l'obligation pour un accusé d'être présent et de demeurer présent pour la durée de la procédure et les exceptions à cette obligation. […] 10. Les poursuites engagées à l'égard d'une infraction qui aurait été commise avant l'entrée en vigueur du présent

article [Note : 23 octobre 2000] sont menées conformément aux règles de preuve et de procédure en vigueur au moment du procès. [ 70 ] Thus, the trial must be conducted as though the offence was committed in Canada. Moreover, when Parliament chooses to introduce principles or rules drawn from international law, it states so explicitly. This is the case, for example, in the definition of genocide, war crimes, and crimes against humanity in subsection 6(3) of the Act and

section 11 dealing with defences. [ 71 ] There is nothing, however, to indicate that Parliament wished to incorporate the special rules adopted by the international criminal tribunals into the Act or to create a hybrid system of Canadian and international rules. [ 72 ] The validity of the indictment and its impact on the fairness of the trial must be analyzed under Canadian rules. Accordingly, it is sufficient for an indictment to comply with the requirements in

section 581 Cr. C. :

(1) Each count in an indictment shall ingeneral apply to a single transaction and shallcontain in substance a statement that the accusedor defendant committed an offence thereinspecified.

(2) The statement referred to in subsection (1)may be (

a) in popular language without technicalaverments or allegations of matters that are notessential to be proved; (

b) in the words of the enactment that describesthe offence or declares the matters charged to bean indictable offence; or (

c) in words that are sufficient to give to theaccused notice of the offence with which he ischarged.

(3) A count shall contain sufficient detail of thecircumstances of the alleged offence to give tothe accused reasonable information with respectto the act or omission to be proved against himand to identify the transaction referred to, butotherwise the absence or insufficiency of detailsdoes not vitiate the count.

(4) Where an accused is charged with an offenceunder

section 47 or sections 49 to 53, every overtact that is to be relied on shall be stated in theindictment.

(5) A count may refer to any section, subsection,paragraph or subparagraph of the enactment thatcreates the offence charged, and for the purposeof determining whether a count is sufficient,consideration shall be given to any suchreference.

(6) Nothing in this Part relating to matters that donot render a count insufficient shall be deemed torestrict or limit the application of this section. 581.

(1) Chaque chef dans un acted’accusation s’applique, en général, à une seuleaffaire; il doit contenir en substance unedéclaration portant que l’accusé ou le défendeura commis l’infraction qui y est mentionnée.

(2) La déclaration mentionnée au paragraphe (1)peut être faite :

a) en langage populaire sans expressionstechniques ni allégations de choses dont lapreuve n’est pas essentielle;

b) dans les termes mêmes de la disposition quidécrit l’infraction ou déclare que le fait imputéest un acte criminel;

c) en des termes suffisants pour notifier auprévenu l’infraction dont il est inculpé.

(3) Un chef d’accusation doit contenir, à l’égarddes circonstances de l’infraction présumée, desdétails suffisants pour renseignerraisonnablement le prévenu sur l’acte ouomission à prouver contre lui, et pour identifierl’affaire mentionnée, mais autrement l’absenceou insuffisance de détails ne vicie pas le chefd’accusation.

(4) Lorsqu’un prévenu est accusé d’uneinfraction visée à l’article 47 ou à l’un desarticles 49 à 53, tout acte manifeste devant êtreinvoqué doit être indiqué dans l’acted’accusation.

(5) Un chef d’accusation peut se référer à toutarticle, paragraphe, alinéa ou sous-alinéa de ladisposition qui crée l’infraction imputée et, pourdéterminer si un chef d’accusation est suffisant,il est tenu compte d’un tel renvoi.

(6) Les dispositions de la présente partieconcernant des matières qui ne rendent pas unchef d’accusation insuffisant n’ont pas pour effetde restreindre ou limiter l’application du présentarticle. [73] Subsection 1 sets out the "single transaction" rule (in French: "une seule affaire"). As the trial judge pointed out, it has longbeen established that this rule does not prohibit grouping together a series of incidents that relate to a similar activity or a similar courseof conduct, if they are part of a single operation (R. v. G.L.M., [1999] B.C.J. No. 1838 (QL) (B.C.C.A.); R. v.

Pomerleau, [1999] J.Q.No. 5210 (QL) (C.Q.); R. v. Selles, (ON CA), [1997] O.J. No. 2502 (QL) (ON C.A.); R. v. Adams and Waltz (1989) (ON CA), 49 C.C.C. (3d) 100 (ON C.A.); R. v. German (1989) (SK CA), 51 C.C.C. (3d) 175 (SKC.A.); Piquette v. R., [1976] C.A. 667 at 668). [74] In Philippe v. R., (QC CA), J.E. 2004-398, this Court noted that the formalism once required is no longermandatory, although it urged prudence when the trial is before a jury: [translation] [28] Subsection 581(1) Cr. C. requires that the count apply to a "single transaction" only.

It has long been established that the terms "asingle transaction" or "une seule affaire" do not preclude referring to several incidents in one count. Although the rules governing thedrafting of indictments were long formal and strict, there are nevertheless cases from rather far back in judicial history involvingindictments that group together several similar incidents. … [29] The statement in a count encompassing several events must receive particular attention in a trial before judge and jury, where therule of unanimity prevails.

For example, where two distinct transactions are contemplated in one count, care must be taken to prevent ajury from arriving at a unanimous verdict of guilt for an alleged offence if six of the jurors are convinced beyond any reasonable doubt ofthe accused's guilt with respect to the first transaction and the other six are equally persuaded although with respect to the secondtransaction. Where the transactions contemplated in the counts are not part of an ongoing series of events and are distinct as to the

manner in which they were perpetrated and the defences raised against them, the judge would be wise to order that the count be divided(subsection 590(3) Cr. C.). [75] Certainly, the latter concern is justified. For example, can a jury, unanimous as to the commission of genocide, convict anappellant on the first count, if six of the jurors based their finding of guilt on the murders committed near the Ngoma church and theother six based it on the murders committed after the kidnappings at the roadblocks?

However interesting this question may be, the Courtneed not decide it, since this trial took place before a judge alone. [76] In this case, the issue must instead be analyzed in light of the acts that are the subjects of each of the counts. [77] The appellant is not charged with murder, sexual violence, or pillage. He is charged with genocide, crimes against humanity,and war crimes, offences that were allegedly committed through murder, sexual violence, and pillage. The distinction is important. [78] Crimes against humanity, genocide, and war crimes are offences that can be described as "contextual".

In crimes againsthumanity, the underlying offence must be committed during a widespread or systematic attack directed against an identifiable group ofpersons (Mugesera at para. 151), which distinguishes a crime against humanity from an ordinary offence.

The same is true with respectto genocide, in which the underlying act must be committed with intent to destroy, in whole or in part, an identifiable group of persons.And with respect to war crimes, as the name indicates, they must be committed during an armed conflict, either domestic orinternational. [79] Given the applicable rules, which are outlined above, it is entirely possible for this type of count to encompass a series ofsimilar acts committed during a widespread or systematic attack directed against a civilian population, either in the context of thedestruction of an identifiable group of persons or during an armed conflict, and still not violate the single transaction rule.

The contextreveals a course of conduct that includes the commission of underlying acts, which may then be grouped together, according to theirnature, in a single count and constitute a single transaction. [80] Although the Crown could have drafted one count for every incident, it cannot be criticized for having grouped similarunderlying offences referring to the same course of conduct together in a single count. This manner of proceeding is not contrary to therequirements of subsection 581(1) Cr.

C. [81] The contextual nature of the offences is also important when the sufficiency of the counts under subsection 581(3) Cr. C. is atissue. [82] The sufficiency requirement has been analyzed on numerous occasions by the Supreme Court of Canada. The golden rule as setout in R. v.

Côté, (SCC), [1978] 1 S.C.R. 8 at 13, is for "the accused to be reasonably informed of the transaction allegedagainst him, thus giving the possibility of a full defence and a fair trial". [83] The Supreme Court has held that sufficiency is assessed on the basis of the facts of the case and the nature of the charge (R. v.B.(G.), (SCC), [1990] 2 S.C.R. 30 at 44–45; R. v.

Douglas, (SCC), [1991] 1 S.C.R. 301 at 314). [84] In this case, the appellant was aware of the context of the charges since he admitted that, on the dates specified in theindictment, Rwanda, including the prefecture of Butare, was in the grips of genocide and armed conflict and that the civilian Tutsipopulation was the target of a widespread or systematic attack. He also knew what underlying acts he was alleged to have committed:murder, sexual violence, pillage.

In short, he knew that he was being accused of committing murder, sexual violence and pillage in thecontext of the systematic or widespread attack against the Tutsi population and the armed conflict that was ravaging Rwanda, and moreprecisely in the prefecture of Butare, during a specific period of time, and for having thus committed genocide, a crime against humanity,and a war crime. [85] Moreover, before the trial, the Crown had disclosed to the appellant all of the evidence in its possession, including a 37-pagetable of contents, as well as, when his application for release was heard, a

summary of the evidence that it intended to adduce at trial,which was no less than 28 pages long. [86] These are all elements to be considered when determining whether the appellant had sufficient knowledge of the theory theCrown intended to present to be able to prepare an adequate defence against the charges, in accordance with the requirements noted bythe Court of Appeal for Ontario in R. v. Robinson, (ON CA), [2001] O.J. No. 1072 (QL): 23 Whether an indictment or a count in an indictment meets the sufficiency requirement in this subsection depends upon the factsand circumstances of each case.

In determining whether the transaction has been sufficiently identified the court will look not just at thewording of the indictment but also at the other material in the possession of the accused such as Crown disclosure and the evidencecalled at the preliminary inquiry, if there was one: Re Regina and R.I.C. (1986), (ON CA), 32 C.C.C. (3d) 399 (Ont.C.A.); R. v. Ryan (1985), (ON CA), 23 C.C.C. (3d) 1 (Ont. C.A.). … [Emphasis added.] [87] In the other case brought under the Act, R. v.

Mungwarere, supra, the trial judge opined that disclosure of evidence is similar tothe description of facts required by the international criminal tribunals and allows the accused to become familiar with the evidence forthe purpose of preparing the defence: [translation] [13] It is true that, at the ICTR, the facts are incorporated into the indictment itself. It is also true that the Court may draw inspirationfrom the procedure at the ICTR, given that tribunal's experience in such matters. Fundamentally, in this case, there is no real differencebetween the two ways of proceeding.

The statement of fact used by the ICTR and the obligation to disclose incumbent on the Crown inCanada serve the same purpose: to inform the accused. Our procedure has evolved significantly over the last three decades. There was a

time where the Crown needed only to submit an indictment listing the essential elements of the offence and nothing more. Now, the golden rule is to ensure that the accused has in hand all of the information that the Crown has in its possession and under its control. Consequently, the accused has detailed knowledge of all of the facts surrounding the allegation against him, including all of the evidence at the Crown's disposal, be it inculpatory or exculpatory. [ 88 ] In this case, the Court finds that the appellant was fully able to prepare his defence and concludes that the counts were sufficient within the meaning of subsection 581(3) Cr. C. [ 89 ] As for paragraph 11(

h) of the Charter , the appellant's argument is not convincing. Since an accused has the right not to be tried again for an offence of which he has been acquitted or convicted, the broader the drafting of the offence, the more paragraph 11 (

h) will work in favour of the accused later on by prohibiting new prosecutions concerning any of the events contemplated in the count. In other words, if the count is broadly worded, paragraph 11 (

h) cannot be used to counter it. [ 90 ] Before concluding this section, it should be pointed out that initially, the appellant argued that the first, third, and fifth counts, which allege murder, and the second, fourth, sixth, and seventh counts could not be joined in the same indictment in light of

section 589 Cr. C., which prohibits the inclusion of counts charging indictable offences other than murder when such a charge is brought, unless the other counts arise out of "the same transaction". The Court is of the view that he was right to abandon this ground at the hearing. The appellant is not charged with murder but with genocide, crimes against humanity, and war crimes. The murders are simply details included in the count to characterize the charge. This rules out the application of

section 589 Cr. C. In addition, given the context in which the acts underlying these offences were committed, it would be inappropriate to require that there be as many counts as there are murder allegations, when they all arise out of "the same transaction". THE ALLEGED IRREGULARITIES [ 91 ] The appellant criticizes the trial judge for visiting the city of Butare without the parties, for using sources not adduced into evidence, including a book written by one of the expert witnesses, Alison Des Forges, entitled Leave None to Tell the Story , the website of the International Committee of the Red Cross, and an exhibit, reproduced in a

schedule to his judgment, that was different from the one adduced. He submits that the unlawful consideration of this evidence by the judge irremediably compromised the fairness of the trial. (

i) The visit to Butare [ 92 ] During the portion of the trial held in Rwanda, the judge spent a weekend in and around the city of Butare. Afterwards, the following discussion between the judge and counsel took place: MR. PERRAS: I will be short. We did hear, naturally; it was not a hidden venture to go to Butare. But, as far as the Defence is concerned, we are preoccupied, let's say, that the Judge went to what is, practically speaking, a crime scene in this case, because eventually we will be hearing evidence of the topography of the place. Butare and its physical appearance is a factual issue in this case.

THE COURT: I understand your preoccupation, but we were not at the crime scene. I want it to be very clear. There are two major cities in Rwanda, Kigali and Butare. We work very hard during the week, and we went to, first of all, King's House, which is away from the City of Butare. It is half an hour. I will tell you exactly what we did. After that, we went to the museum, which is also outside Butare, we had lunch at the Ibis Hotel, and then we came back.

That is what we did, exactly, and it was very clear for me, as the leader of our group, that there was no intention to go on First, Second or – We didn't see anything in Butare, except for King's House, the museum, and the Ibis Hotel. And I think we saw the university. That's it, and it was very clear that I didn't want to see anything concerning the facts that have been put or will be put in front of this Court. MR. PERRAS: Thank you. MS LEDOUX: If I may add for Mr. Perras, the King's House, I believe, is in Nyanza. THE COURT: It is half an hour away. MS LEDOUX: Yes.

I believe it is in Nyanza, not even in Butare. THE COURT: The museum, I think, is about five minutes out of the city, but it's not in the city. MR. COHEN: It may be, Your Honour, that we might seek to visit that site as a group, given that you have seen some but not all of the site. That may be the way to rectify the situation. MS LEDOUX: Just for the record, the Crown doesn't share the preoccupation of the Defense on that point. THE COURT: I understand, and I wanted to tell you that we were there.

If we go somewhere else, we will also tell you. We want to see wild animals, and we will go there one of these days, if we can do that. l'm not sure. I still work during the weekends. But we were in Butare. MR. PERRAS: I won't be asking if the Ibis had a five star restaurant. --- Laughter [93] The discussion of the incident concluded on this humorous note, and did not result in any motion being filed by the appellant. [94] Nevertheless, now, in appeal, he believes that the judge could not, on his own initiative and away from the appellant and fromcounsel, visit the city of Butare, the location where many of the incidents alleged against him took place. According to him,

section 650Cr. C. was not respected and the appearance of justice has not been preserved, since it is impossible for the defence to know whether thejudge’s observations there might have influenced his conclusions and consequently to contest them. [95]

Section 650 Cr. C. enshrines the principle whereby the accused must be present in court during the whole of the trial. Thisprinciple is reiterated in subsection 9(2) of the Act.

Section 652 Cr. C. prescribes the procedure applicable during a "view" and enshrinesthe right of the accused to be present during such a visit. 652.

(1) The judge may, where it appears to be inthe interests of justice, at any time after the juryhas been sworn and before it gives its verdict,direct the jury to have a view of any place, thingor person, and shall give directions respectingthe manner in which, and the persons by whom,the place, thing or person shall be shown to thejury, and may for that purpose adjourn the trial.

(2) Where a view is ordered under subsection(1), the judge shall give any directions that heconsiders necessary for the purpose of preventingundue communication by any person withmembers of the jury, but failure to comply withany directions given under this subsection doesnot affect the validity of the proceedings.

(3) Where a view is ordered under subsection(1), the accused and the judge shall attend. 652.

(1) Lorsque la chose paraît être dansl’intérêt de la justice, le juge peut, à tout momentaprès que le jury a été assermenté et avant qu’ilrende son verdict, ordonner que le jury visite toutlieu, toute chose ou personne, et il donne desinstructions sur la manière dont ce lieu, cettechose ou cette personne doivent être montrés, etpar qui ils doivent l’être, et il peut à cette finajourner le procès. (2) Lorsqu’une visite des lieux est ordonnée envertu du paragraphe (1), le juge donne lesinstructions qu’il estime nécessaires pourempêcher toute communication indue parquelque personne avec les membres du jury; ledéfaut de se conformer aux instructions donnéessous le régime du présent paragraphe n’atteintpas la validité des procédures.

(3) Lorsqu’une visite des lieux est ordonnée envertu du paragraphe (1), l’accusé et le jugedoivent être présents. [96] In Tanguay v. R., [1971] J.Q. No. 61 (QL) at para. 24, this Court held that this provision applies to a trial before a judge sittingalone. In addition, in R. v. Boxembaum, [1980] J.Q. No. 22 (QL) at para. 19, this Court found that the attendance of the accused wasmandatory. Indeed, appellate courts generally consider the failure to follow the foregoing procedure to be a jurisdictional error vitiatingthe entire process, which cannot be saved by the curative proviso (R. v.

Boucher, (QC CA), [1987] R.J.Q. 1990 (QCC.A.); R. v. Predac, [1983] O.J. No. 149 (QL) (ON. C.A.); R. v. Gavin, [1983] B.C.J. No. 2454 (QL) at para. 3 (B.C.C.A.)). [97] A "view" in the absence of the accused, however, does not always constitute such an error. For the view to fall under sections650 and 652 Cr. C., it must take place with the objective of moving the trial forward, as this Court pointed out in Meunier v. R., [1965]J.Q. No. 26 (QL) at para. 8, confirmed by the Supreme Court of Canada ( (CSC), [1966] S.C.R. 399).

This principle wasbeen endorsed by the British Columbia Court of Appeal in Gavin at para. 3 and the Court of Appeal for Ontario in R. v. Sternig, [1975]O.J. No. 1442 (QL) at paras. 61–63. See also Fontaine v. R., 2014 QCCA 405 at para. 46. [98] In short, it is the fact that observations made in the absence of the accused are used for the purpose of adjudication that can beproblematic. [99] Let us now consider the situation here.

Did the judge's trip to Butare have the objective of moving the trial forward or, if not,did it have that consequence? [100] Of course, it would undoubtedly have been preferable if the judge had refrained from visiting this city without speaking tocounsel about it beforehand. Nevertheless, the record shows that the judge was there purely as a tourist and that his visit did not have theobjective of moving the trial forward within the meaning of the judgments cited above. In fact, nowhere in his judgment or in theschedule to it did the judge refer to his observations during this visit.

He never assessed the credibility of any of the witnesses on thebasis of these observations. Moreover, the judge did not see the locations where the appellant allegedly committed the crimes, namely,the Ngoma church, the prefectural office, or the roadblocks, for example. [101] In conclusion, the record shows that the judge's visit was essentially for the purposes of tourism and recreation, as counsel forthe appellant understood at the time, and who did not see fit to file any kind of motion in this regard. There is therefore no issue ofjurisdictional error. (ii) The use of sources not adduced in evidence

[ 102 ] First, the appellant faults the judge for relying on the book by Alison Des Forges, which had not been adduced into evidence. His counsel objects to such use because it contains four chapters on the events in Butare and mentions certain witnesses who were heard at trial. [ 103 ] It is true that, in paragraphs 155 et seq. of the judgment, the judge states that the portion concerning the history of Rwanda was inspired by Des Forges' work. This limited use had been announced during the trial, however: [ translation ] ...

Now, the overall content, Des Forges talks about it, that's what I want... what I want to hear you testify about. Obviously, Mr. Guyishawa [another author] connects the accused to some very specific facts. I don't believe that we can go that far, and the evidence that I hear is evidence that will be given specifically by the witnesses against Mr. Munyaneza and what he does is evidence that tends to exculpate him and where the line should lead everyone to the constituant elements of the offences, but if there is a reasonable doubt, he will be acquitted, that's clear, and if there is not, he will be convicted.

Anywhere Mr. Munyaneza is mentioned in Mr. Guyishawa's treatise, I think we set that aside. Now, there are plenty of other elements in this history, and Ms. Des Forges, I know, who is a historian, who sketches an outline of the situation as a whole. Even what happened in Kigali, which does not concern us, but which can have... which can give the judge a historical perspective. So, this is what I want to talk to you about, and I don't know if we have dozens of documents, I am not going to go through everything about the history. … [ 104 ] The appellant does not contest this point.

Nevertheless, he argues that the judgment reveals that the use of this book was not limited to the history of the genocide. In support of this claim, he refers to passages from the judgment concerning the speech made by Léon Mugesera in 1992, to the role of propagandist played by Radio-Télévision libre des mille collines , and to the judge's conclusion that he committed offences in the city of Butare and [ translation ] "the neighbouring communes", while the evidence concerned solely the offences committed in the commune of Ngoma, in which the city of Butare is located.

The appellant adds that if his counsel had known that the judge intended to make such extensive use of Des Forges' book, they would have cross-examined her differently. [ 105 ] As the respondent points out, the appellant is unable to refer to a conclusion of fact concerning him in the judgment that could have been drawn from Des Forges' book. The examples of the borrowings he provides – namely, Mugesera's speech and the propagandist role played by certain media outlets – are part of the history of the genocide and have no connection with the appellant. Furthermore, the speech is reproduced in a

schedule to the judgment in Mugesera , which was argued before Denis J. [ 106 ] As for the conclusion that the appellant [ translation ] "killed ten or so people in Butare and the surrounding communes", this sentence should not be taken in isolation from the rest of the judgment, much less provide a basis for inferring that the judge relied on external evidence in coming to this conclusion. In reality, throughout his very detailed judgment, the judge found that the appellant had participated in various acts committed in specific locations only in the commune of Ngoma.

Perhaps, for the sake of clarity, it might have been preferable if he had written that the appellant had committed murders [ translation ] "in the city of Butare and in the neighbouring areas in the commune of Ngoma", as the Crown suggests, but this in no way proves that he made inappropriate use of the book by Des Forges. [ 107 ] In addition, the judge’s comments reproduced above confirm that he was perfectly aware of the limited use he could make of Des Forges' book. It must therefore be assumed that he acted accordingly, as must be done with regard to any evidence that is declared inadmissible. ( R. v.

Vidal, [1997] J.Q. No. 2725 (QL) at para. 47 (QC C.A.) . [ 108 ] The appellant also faults the judge for basing his finding that Rwanda was a signatory to the Genocide Convention on his consultation of the Red Cross website. [ 109 ] In this respect, it is the Court’s view that the judge did not err by taking cognizance of the list of State parties to an international treaty to which Canada is also a party. Contrary to the appellant’s argument, the Supreme Court did not decide in Finta , at 867–868, that a State’s signing of a convention has to be established through expert evidence.

Rather, that judgment refers solely to the fact that expert evidence and commentary are often necessary in the

interpretation of international law, many principles of which remain uncodified. [ 110 ] Certainly, it would have been better for the judge to consult the official source, i.e., the United Nations Treaty Collection , [5] instead of the Red Cross site. Nevertheless, what the judge did was inconsequential. (iii)

Schedule to the judgment [ 111 ] Finally, the appellant attaches a great deal of importance to the fact that the exhibit in

schedule 3(

E) to the judgment differs from that adduced at trial, which is exhibit D-74. This exhibit concerns the possible perjury of Crown witness C-15, which will be discussed later on. The appellant uses this as a springboard to question the judge's entire approach and its impact on his right to a fair trial. [ 112 ] No one is able to say exactly how the judge found himself in possession of the incorrect version of exhibit D-74 and why he used this version instead of the one filed at trial.

The most plausible explanation was provided by the respondent, who believes that Mtre Dimitri, counsel for the appellant, might have accidentally submitted an earlier version of the document from her computer during the trial. [ 113 ] Did this gaffe necessarily vitiate the process to such a degree that the trial was rendered unfair? The Court does not believe so. [ 114 ] Before the judge, witness C-15 stated that she knew a certain Rose Burizihiza. In cross-examination, the witness was confronted

with her testimony before the ICTR in which she had stated that she did not know this woman. She justified this contradiction by explaining that she had denied knowing Rose Burizihiza at the request of counsel for the prosecution at the ICTR. This was the context in which exhibit D-74 was filed. This exhibit consists in an admission by the parties that this attorney, while preparing the testimony of C-15, never suggested that the witness deny knowing this woman.

From this, the appellant finds that C-15 perjured herself before the judge, in addition to having lied before the ICTR. [ 115 ] As the respondent rightly points out, exhibit D-74 concerns a strictly collateral fact.

It was filed solely to contradict C-15's statement that the ICTR attorney allegedly asked her to lie to the tribunal. [ 116 ] In Manual of Criminal Evidence (Toronto: Carswell, 2010) at 281–282, Justice David Watt writes about the rule applicable to collateral facts: The collateral facts or collateral issues rule prohibits the introduction of evidence for the sole purpose of contradicting a witness' testimony concerning a collateral fact. … In general, matters that relate wholly and exclusively to the credibility of a non-accused witness are collateral, hence beyond the reach of contradictory evidence.

A collateral fact is one that is not connected with the issue in the case. It is one that the party would not be entitled to prove as part of its case, because it lacks relevance or connection to it. A collateral fact, in other words, is one that is neither i material ; nor ii. relevant to a material fact If the answer of a witness that a party seeks to contradict, is a matter that the opponent could prove in evidence as part of its case, independent the contradiction, the matter is not collateral. Contradictory evidence may be elicited.

If the answer of a witness that a party seeks to contradict, is a matter that the opponent would not be entitled to prove in evidence, independent the contradiction, the matter is collateral. Contradictory proof is not permitted.

The several exceptions to collateral facts rule include and permit: i. proof of bias, interest or corruption denied by the witness; ii. proof of prior inconsistent statement not admitted by the witness; iii. proof of prior conviction not admitted by the witness; iv. disproof of a denial of a reputation for lying or untruthfulness; and v. disproof of a denial of a physical or mental defect relating to the capacity of likelihood of the witness telling the truth. [ 117 ] In this case, we may describe this evidence as relating to a collateral fact, in that it concerns the credibility of witness C-15 regarding her explanation of a contradiction with a prior statement before a different court. [ 118 ] C-15's credibility was thus undermined, and the reason for her lie was of little importance.

All things considered, exhibit D-74 might not have been adduced (as a matter of fact, it should not have been) and nothing would have changed with regard to the issues to be decided by the judge. In the circumstances, the judge's inclusion of the wrong version of exhibit D-74 in the

schedule to his judgment caused no prejudice to the appellant, who successfully undermined the credibility of witness C-15 during her cross-examination. [ 119 ] For these reasons, the Court is of the view that all of the grounds alleging irregularities raised by the appellant should be rejected. CONSTITUANT ELEMENTS OF THE OFFENCES [ 120 ] The appellant argues that the judge convicted him on the seventh count, war crimes by pillage, without considering the requirements of this offence, namely, pillaging "a town or a place".

In his view, whatever may have been the elements of a war crime by pillage in 1994, pillage could be punished after July of 1998 only according to the rules of international law as they existed at the time the indictment was filed, namely, those of the Rome Statute , which defines a war crime in the context of a non-international armed conflict as a specific list of acts, including "[p]illaging a town or place, even when taken by assault".

In this case, no evidence was tendered of pillage of a town or place, but only of a few businesses and a home, and the judge therefore convicted him of an offence that does not exist. [ 121 ] Moreover, during the hearing, in a manner that was at times rather vague, counsel for the appellants faulted the trial judge for his outline of the elements of the other crimes, particularly his definition of what constitutes murder, arguing that he selected a Canadian and not an international definition of this underlying offence. [ 122 ] In the circumstances, the Court believes that it is useful to outline the constituant elements of the offences with which the appellant is charged. [ 123 ] As we have seen, the Act confers on Canadian courts universal jurisdiction over genocide, crimes against humanity, and war crimes, and refers to international law for the elements thereof ( subsection 6(3) of the Act ). [ 124 ] Therefore, in interpreting and defining these offences, as well as their underlying offences or acts, a Canadian court may take

into account international law, including decisions of the international courts, as noted by the Supreme Court in Mugesera and in commentary (Lafontaine at 118 and 121–126, Robert J. Currie & Ion Stancu, " R. v. Munyaneza : Pondering Canada's First Core Crimes Conviction", (2010) 10 Int’l. Crim. L. R. 829; Madeleine J. Schwartz, "Prosecuting Crimes against Humanity in Canada: What Must be Proved", (2002) 46 Crim. L.Q. 40). [ 125 ] In reality, doing otherwise would likely create a dichotomy potentially leading to impunity in Canada for acts committed abroad that are crimes under international law but not under

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