Léon Mugesera: A Lesson in Trying Judicial Deference
As earlier reported in TheCourt.ca’s Amici Curiae, infamous alleged war criminal Léon Mugesera was extradited back to Rwanda and charged with genocide planning, genocide incitement, and distribution of arms earlier this year. This was not, however, before Mr. Mugesera made final attempts to throttle his deportation order from Canada before the Federal Court and the Québec Superior Court. Both Justice Shore of the Federal Court in Mugesera v Canada (Citizenship and Immigration), 2012 FC 32 (the “Federal Court decision”), and Justice Delorme of the Québec Superior Court in Mugesera c Kenney, 2012 QCCS 116 (French only) (the “QCSC decision”), at last soundly rejected Mr. Mugesera’s applications.
Mr. Mugesera’s long and intertwined legal saga, during which he spent nearly seventeen years fighting to remain in Canada, may be a comment on the inefficient structure of our country’s deportation process or the tiring human rights game of catch-up between the executive and judicial branches of the state (as pointed out in the Huffington Post here). However, I would suggest that it is also a testament to Canadian judicial deference and the high respect that we accord to our courts. If you’ve run the gamut of judicial recourse, think twice before testing the court’s limits again.
The Mugesera Saga
In November 1992, as the vice-president of the ruling Hutu MRND party for the Gisenyi Prefecture, Mr. Mugesera gave a speech to an audience of around 1,000 people calling for the extermination of individuals of Tutsi origin. This was mere months after groups of Tutsis had been massacred in the district.
In August 1993, Mr. Mugesera fled the country as a refugee and was granted permanent residence in Canada. However, in 1995, the Minister of Citizenship and Immigration (the “Minister”) received information that Mr. Mugesera’s 1992 speech could have been considered an incitement to commit murder, genocide or hate (ss. 318, 319 and 464(a) of the Canadian Criminal Code) and a crime against humanity (formerly s. 7(3.76) of the Criminal Code) and by 1996, an adjudicator with the Immigration and Refugee Board (the “Board”) had ordered Mr. Mugesera’s deportation. This was affirmed by the Appeal Division of the Board in 1998.
Mr. Mugesera then applied to the Federal Court for judicial review to determine whether a mere speech could constitute a crime against humanity or an incitement to commit murder, genocide or hate. The Federal Court agreed with the latter charge but found the speech was not a crime against humanity. The Federal Court of Appeal held that all the Minister’s allegations against Mr. Mugesera were unfounded and set aside the deportation order entirely, finding that Mr. Mugesera’s speech had had, at most, a “negligible impact” on the “daily life” of Rwandan citizens.
The Supreme Court of Canada resolutely reversed these decisions in 2005. The judgment of Mugesera v Canada (Minister of Citizenship and Immigration),  2 SCR 100, restored the deportation order, concluding that Mr. Mugesera had given a speech that he had intended to result in the commission of murders and had, furthermore, known his speech would be understood as an incitement to commit murder and genocide. His speech had also encouraged hatred and violence against the Tutsi group. Finally, the Court found that Mr. Mugesera had committed a crime against humanity through persecution by hate speech.
It is also worth noting that Mr. Mugesera had made several brazen allegations throughout these proceedings, including claims of abuse of power by the Minister, an allegation of corruption against a member of the Appeal Division of the Board, and an apprehension of bias against the Supreme Court as a whole. The Supreme Court flatly rejected that latter allegation as “flagrantly without basis in fact or in law” and “an unqualified and abusive attack on the integrity of the Judges of this Court.” The Court contended that any abuse of process “lay at the feet” of Mr. Mugesera and his lawyer, Guy Bertrand.
Following the Supreme Court decision, the Canada Border Services Agency solicited an opinion from the Minister to study all the circumstances surrounding Mr. Mugesera’s removal, including the gravity of his acts and the risks of persecution and torture he might face should he be sent back to Rwanda. By November 2011, the Minister had decided that Mr. Mugesera’s deportation would not violate his s. 7 Charter right and ordered his removal. Mr. Mugesera, in a final rally, applied for an injunction against the Minister’s decision at the Federal Court and, subsequent to its dismissal of his application, at the Québec Superior Court.
The Federal Court Decision: “All Nations Must Speak With One Voice.”
On January 11, Justice Shore easily dismissed Mr. Mugesera’s application, ruling that an “inherent logic” was apparent throughout the Minister’s decision. He found that Canadian authorities had diligently applied for and scrutinized assurances from the Rwandan government concerning Mr. Mugesera’s safety, well-being, and guarantee of a fair trial, particularly given the high profile of his case. Safeguards provided by Rwandan authorities included that:
- Mr. Mugesera would be treated as a transferee from a foreign court or jurisdiction and tried by the High Court of Rwanda, with full rights to procure witnesses and solicit a free and independent lawyer.
- The most severe penalty that Mr. Mugesera could receive would be life in prison.
- Mr. Mugesera would be held at a prison with conditions that adhered to international standards and were approved by the Red Cross.
- The Rwandan government made diplomatic guarantees to the Canadian government.
Justice Shore also found that a deportation order would fall in line with recent decisions by the UN International Criminal Tribunal for Rwanda (ICTR) and the European Court of Human Rights to transfer to Rwandan authorities others accused of having participated in the genocide. Finally, Justice Shore wrote that Rwanda had issued an arrest warrant for Mr. Mugesera and that, in light of the gravity of Mr. Mugesera’s acts, the absence of any sign of “remorse of his behaviour in Rwanda,” and his ongoing denial of a Tutsi genocide planned and organized by the Rwandan government, Mr. Mugesera could no longer remain in Canada. He had committed “serious crimes” that “go against Canadian values.”
The QCSC Decision: “This Is a Decision That Belongs to the Executive, Not to the Judiciary.”
On January 23, Justice Delorme declined jurisdiction to review the Minister’s decision. He found that the decision to extradite Mr. Mugesera was made pursuant to two federal laws, the Immigration and Refugee Protection Act and the Canada Border Services Agency Act, which were under the exclusive jurisdiction of the Federal Court. Justice Delorme also wrote that accepting jurisdiction could easily lead to “forum shopping” and a lack of uniformity between court decisions. With regards to the January 11 letter sent by the UN Committee Against Torture, which asked the Canadian government to stay Mr. Mugesera’s deportation while it examined his request, Justice Delorme found that the Committee’s inquiry was not binding on the Minister and that any response to it ought to be considered by the government, not the courts.
A Warning Against Retrying the Court
Mr. Mugesera’s legal run-around has, besides been a sore spot to immigration authorities, effectively tested the integrity of due process in Canada. The result is that, at some point after an applicant has exhausted all legal avenues available to him, deference will – and should – stay the case.
The ringing theme of the Mugesera decisions is judicial deference, or the respect that courts accord to each other. Both recent Federal Court and QCSC decisions in particular showed hints of fatigue with Mr. Mugesera’s opportunist spirit. Although the QCSC judgment concerned a jurisdiction issue, the Court still emphasized the need for uniformity in judicial decisions and for deterrence from multiplications of proceedings and “forum shopping.” The main issue of the Federal Court decision was a judicial review of the Minister’s decision. Yet, the Court went out of its way to affirm the decision by the Supreme Court. It wrote,
To change or diminish the words of the defendant [the Minister] would go against the spirit of the judgment of the Supreme Court of Canada, given that the defendant continues to adhere to the spirit of the Supreme Court judgment in Mugesera. [Author’s translation]
The Federal Court also emphasized the like-mindedness of other foreign courts, such as the ICTR and the European Court of Human Rights, in reaching its conclusion. The discomfort of contradicting other domestic and international courts flowed throughout both judgments. One is also reminded of the strong language employed by the Supreme Court of Canada when it reprimanded Mr. Mugesera’s motion on apprehension of bias, reiterating the respect that courts pay to the integrity of Canadian judges and the judicial system as a whole.
The Mugesera decisions also illustrate the deference courts will show to administrative decisions. By hearing Mr. Mugesera’s case on a full scale up to the Supreme Court level, Canadian courts ensured that the Minister had acted properly within his power in concluding that Mr. Mugesera ought to be extradited. Once due process was made out, however, the Federal Court and QSC were both willing to give significant deference to the Minister’s final decision and were hesitant to intervene. They reinforced the integrity of the fundamental relationship – and distinction – between the executive and judicial branches.
Léon Mugesera took advantage of every opportunity to set aside his deportation order, and he was entitled to do so. In accordance with basic Canadian values of due process, every individual is free to seek whatever legal remedy might be available to him. However, each individual is also subject to equal legal constraints to prevent an abuse of that freedom. At some point down the line, trying judicial deference means trying judicial patience.
Postscript: To Prosecute or Proscribe?
When Mr. Mugesera was deported to Rwanda, questions arose as to whether or not he should have been prosecuted in Canada. Mr. Mugesera had long requested this. Canada, of course, has had the Crimes Against Humanity and War Crimes Act in place since 2000. In fact, Désiré Munyaneza, a leader of a Rwandan militia who was also accused of participating in the Rwandan genocide, was the first person to be convicted under the Act in 2009. He was sentenced to life imprisonment in Canada with no chance of parole for 25 years.
Nonetheless, traditionally states have preferred to have war crime fugitives tried in the country where the crimes occurred. During the time surrounding Munyaneza’s trial, there were greater concerns about the limits of the ICTR and the capacity of the Rwandan judicial system to fairly prosecute accused war criminals. Furthermore, the Rwandan government had vocally supported Munyaneza’s trial in Canada. In the Mugesera case, Rwanda proactively issued a warrant for his arrest. In addition, in response to perceived improvements in the Rwandan prosecution system for extradited war criminals, Canada chose to follow suit with other jurisdictions who were also transferring accused genocide participants back to Rwanda to be tried.
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