2012 QCCA 1829, 2012 QCCA 1829

Munyaneza c. R. 2012 QCCA 1829 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-004416-093 (500-73-002500-052) DATE: October 11, 2012 CORAM: THE HONOURABLE PIERRE J. DALPHOND, J.A. ALLAN R. HILTON, J.A. JACQUES A. LÉGER, J.A. DÉSIRÉ MUNYANEZA APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix and CANADIAN LAWYERS FOR INTERNATIONAL HUMAN RIGHTS CANADIAN CENTRE FOR INTERNATIONAL JUSTICE APPLICANTS JUDGMENT [ 1 ] The appellant Désiré Munyaneza was prosecuted under the Crimes Against Humanity and War Crimes Act [1] and convicted by a judgment of the Superior Court (the Honourable Mr. Justice André Denis) rendered on May 22, 2009 of two counts of genocide, two counts of crimes against humanity and three counts of war crimes. His convictions and the sentence of life imprisonment that the trial judge imposed have been appealed to this Court.

The appeals will be heard between April 22 and 26, 2013 by Dalphond, Hilton and Doyon, JJ.A. [ 2 ] The applicants Canadian Lawyers for International Human Rights and Canadian Centre for International Justice have applied for leave to intervene in the appeal pursuant to

article 211 C.C.P. As their names suggest, these organizations are particularly interested in criminal law in the international sphere.

They state in their materials that they have "significant knowledge of the international law which provides the foundation for the provisions bring applied in this case and how that body of law has been applied by tribunals elsewhere." The allegations in their amended motion fully support that assertion, which in any event is not contested by the appellant or the respondent. [ 3 ] If leave is granted, counsel on their behalf will propose an interpretative methodology to resolve two of the issues on the convictions appeal: • the differing perspectives of the parties as to the effect of subsection 6(4) of the Act , which reads as follows:

(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. • whether the appellant can be convicted for conduct that occurred prior to the coming into force of the Act . [ 4 ] In doing so, the applicants will not take a position as to the disposition of the appeal.

They have also assured the Court that its adoption of their proposed interpretative methodology will not inevitably lead to a particular result. [ 5 ] Finally, as far as issues of confidentiality are concerned that may arise during the conduct of the case, they have undertaken to respect any orders relating to confidentiality. [2] [ 6 ] In effect, their proposed intervention is in the nature of an amicus curiae brief, much like those that the Supreme Court of Canada frequently authorizes pursuant to sections 55 – 59 of the Rules of the Supreme Court of Canada . [3]

Article 211 C.C.P ., which came into force as part of the partial reform of civil procedure in 2003, together with

article 509 C.C.P ., contemplates such interventions in this Court, although not in express words.

[ 7 ] Judges of this Court have granted intervener status to parties not intending to take a position on an appeal but instead offering assistance to the Court, [4] and refused leave to appeal a judgment of a trial court that granted a party intervener status in similar circumstances. [5] Similarly, judges of this Court have deferred such motions to the panel of the Court designated to hear the appeal, [6] as is the case with this application save for the current unavailability of Doyon, J.A.

On the other hand, the tardiness in the presentation of a motion to intervene will inevitably result in its dismissal, irrespective of the merits of the motion or the consent of one of the parties. [7] [ 8 ] These principles apply in criminal matters as well pursuant to

section 97 of the Rules of Practice of the Court of Appeal in Criminal Matters , subject however to an important caveat. An accused person who is an appellant in this Court must in principle face only one prosecutor, who represents the public interest. [8] The preservation of the fairness of the appellate process is critical to the exercise of the Court's discretion in deciding whether or not to grant intervener status to an applicant. [ 9 ] As Sopinka, J. observed in R. v.

Morgentaler , [9] referring to his earlier judgment as a rota judge in Reference re Worker's Compensation Act, 1983 (Nfld.) , [10] "The purpose of an intervention is to present the court with submissions which are useful and different from the perspective of a non-party who has a special interest or particular expertise in the subject matter of the appeal." [ 10 ] McLachlin, J., as she then was, also sitting as a rota judge, came to the same conclusion in R. v.

Finta , [11] when she was called upon to consider the intervention of three public interest groups and a private individual in the appeal of someone who had been acquitted of war crimes under the Criminal Code arising out of the deportation of Jews from Hungary during World War II. [12] She granted status to the three public interest groups but denied the request of the private individual.

In reaching this conclusion, she emphasized the importance of an applicant to intervene having an interest and the presentation of "submissions which will be useful and different from those of the other parties." [ 11 ] The allegations in the applicants' amended motion amply satisfy the necessary criteria for leave being granted, especially as they affirm they will take no position as to the outcome of the appeal.

As previously mentioned, it is particularly important in a case such as this one that the public interest be represented exclusively by the Crown's prosecution service, and that an intervener not be seen as "piling on" to buttress the Crown's case, or, as in R. v. Rhodes , [13] take the extraordinary position that a conviction should be maintained despite the Crown's concession that a new trial should be ordered. [ 12 ] There remains the issue of the modalities of the applicants' intervention that are set out in the Court's formal order below.

FOR THESE REASONS, THE COURT : [ 13 ] GRANTS the applicants intervener status with respect to the two issues mentioned in paragraph [3]; [ 14 ] AUTHORIZES the applicants to serve and file one factum of a maximum of 20 pages, to be divided equally between the two issues mentioned in paragraph [3], on or before Friday, December 28, 2012; [ 15 ] AUTHORIZES the appellant and the respondent to each serve and file a responsive factum to that of the interveners of a maximum of 10 pages, on or before Friday, February 1, 2013; [ 16 ] DEFERS a decision by the panel hearing the appeal as to whether applicants' counsel will be authorized to present oral argument at the hearing of the appeal, and if so, on what terms, until after the receipt of the applicants' factum and any reply factums thereto.

PIERRE J. DALPHOND, J.A. ALLAN R. HILTON, J.A. JACQUES A. LÉGER, J.A. Mtre Richard Perras CORDEAU PARÉ MEUNIER ASSOCIÉS Mtre Mylène Dimitri BOULÉ, DIMITRI AVOCATS Mtre Marie-Pier Barbeau For the appellant Mtre Michel F. Denis Mtre Pascale Ledoux PUBLIC PROSECUTION SERVICE OF CANADA Mtre Frederick William Headon AIR CANADA For the applicants Date of hearing: September 13, 2012