Munyaneza c. R. 2014 QCCA 906 COURT OF APPEAL CANADA PROVNCE O! Q"E#EC RE$%&R' O! (ON&REA) No*+ ,--./-.--00/1.-23 4,--.53.--6,--.-,67 DA&E+ (A' 58 6-/0 CORAM: THE HONOURABLE PERRE !. "ALPHON"# !.A ALLAN R. HLTON# !.A. FRAN$O% "O&ON# !.A. "'%R' MUN&ANE(A APPE))AN& 9 Accused v* HER MA!E%T& THE QUEEN RE%PONDEN& 9 Prosecutri: and THE CANA"AN CENTRE FOR NTERNATONAL !U%TCE CANA"AN LA)&ER% FOR NTERNATONAL HUMAN R*HT% N&ERVENER% ;"D$(EN& NTRO"UCTON ,--./-.--00/1.-23 PA$E+ 6 </= !rom April to ;ul> of /2208 a domestic armed conflict led to the massacre of appro:imatel> ?--8--- R@andas 4primaril> members of the &utsi ethnic group8 as @ell as so.called moderate Autus7 and to numerous other acts of violence 4rape8 ph>sical abuse8 Bidnappings8 pillage8 and others7* &he horror of this period has forever scarred those @ho survived it8 the countr> of R@anda8 and the collective memor> of the @orld* <6= &hese tragic events have given rise to numerous prosecutions before the nternational Criminal &ribunal for R@anda 4CC&RC78 the special tribunal constituted under the authorit> of the "nited Nations that is based in Arusha8 &anDania8 @here several of the leaders have stood trial8 as @ell as before national R@andan courts* Prosecutions have also been instituted in other countries8 including t@o in Canada8 @hich is a %tate signator> to the Rome Statute of the International Criminal Court8 /5 ;ul> /22? 4amended /222 and 6---78 AECON!*/?3E2 4CRome StatuteC7* <3= &his is appeal is born from a guilt> verdict rendered in the first Canadian trial 46--2 QCC% 66-/78 that of DFsirF (un>aneDa8 a resident of this countr>8 @ho @as charged @ith participating in events that tooB place on the territor> of the prefecture of #utare8 one of R@andaGs territorial divisions* /
BAC+*ROUN" <0= Hhen the R@andan traged> occurred8 the appellant @as living in the cit> of #utare8 the countr>Gs second.largest cit> and part of the commune of Ngoma8 @hich @as one of the t@ent> communes maBing up the prefecture of #utare* Ae @as @orBing at his fatherGs store* n ;ul> of /2208 he fled R@anda8 settling in Canada in /225* <,= After receiving information connecting him @ith the genocide8 the Ro>al Canadian (ounted Police began a length> investigation* n !ebruar> and (arch of 6--,8 investigators travelled to R@anda and met @ith 6, individuals @ho had been identified as potential @itnesses in the Canadian trial* A series of photographs @as sho@n to 6- of these potential @itnesses* !ifteen of them identified the appellant as the person to @hom the> referred in their statements* <1= On October /28 6--,8 he @as arrested and charged @ith the follo@ing seven counts under the Crimes Against Humanity and War Crimes Act8 %*C* 6---8 c* 60 4CActC7+ <&RAN%)A&ON= F,-./ c0un/: #et@een April /8 /220 and ;ul> 3/8 /2208 in the Prefecture of #utare8 in R@anda8 committed the intentional Billing of members of an identifiable group of people8 to @it+ the &utsi8 @ith intent to destro> the &utsi8 in @hole or in part8 committing an act of genocide8 as defined in subsections 1437 and 1407 of the Crimes Against Humanity and War Crimes Act8 %*C* 6---8 c* 608 thereb> committing the indictable offence of genocide8 as provided for in subparagraph 14/74a7 of the said Act* / A second prosecution8 @hich @as instituted in Ontario8 gave rise to a later judgment+ R. v. Jacques Mungarere! 6-/3 ONC% 0,20* ,--./-.--00/1.-23 PA$E+ 3 %ec0n1 c0un/: #et@een April /8 /220 and ;ul> 3/8 /2208 in the Prefecture of #utare8 in R@anda8 caused serious bodil> or mental harm to members of an identifiable group of people8 to @it+ the &utsi8 @ith intent to destro> the &utsi8 in @hole or in part8 committing an act of genocide8 as defined in subsections 1437 and 1407 of the Crimes Against Humanity and War Crimes Act8 %*C* 6---8 c* 608 thereb> committing the indictable offence of genocide8 as provided for in subparagraph 14/74a7 of the said Act* T2,-1 c0un/ #et@een April /8 /220 and ;ul> 3/8 /2208 in the Prefecture of #utare8 in R@anda8 committed the intentional Billing of members of a civilian population or an identifiable group of people8 to @it+ the &utsi8 Bno@ing that the said intentional Billing @as part of a @idespread or s>stematic attacB on the &utsi8 committing a crime against humanit>8 as defined in subsections 14378 1407 and 14,7 of the Crimes Against Humanity and War Crimes Act! %*C* 6---8 c* 608 thereb> committing the indictable offence of a crime against humanit>8 as provided for in subparagraph 14/74"7 of the said Act* F0u-/2 c0un/ #et@een April /8 /220 and ;ul> 3/8 /2208 in the Prefecture of #utare8 in R@anda8 committed the act of se:ual violence in regard to members of a civilian population or of an identifiable group of people8 to @it+ the &utsi8 Bno@ing that the said act of se:ual violence @as part of a @idespread or s>stematic attacB on the &utsi8 committing a crime against humanit>8 as defined in subsections 14378 1407 and 14,7 of the Crimes Against Humanity and War Crimes Act8 %*C* 6---8 c* 608 thereb> committing the indictable offence of a crime against humanit>8 as provided for in subparagraph 14/74"7 of the said Act* F,3/2 c0un/ #et@een April /8 /220 and ;ul> 3/8 /2208 in the Prefecture of #utare8 in R@anda8 during an armed conflict8 to @it+ hostilities bet@een the R@andan Armed !orces 4RA!7 and the R@andan Patriotic !ront 4RP!78 committed the intentional Billing of people @ho @ere not taBing a direct part in the said conflict8 committing a @ar crime8 as defined in subsections 1437 and 1407 of the Crimes Against Humanity and War Crimes Act8 %*C* 6---8 c* 608 thereb> committing the indictable offence of a @ar crime8 as provided for in subparagraph 14/74c7 of the said Act* %,4/2 c0un/ #et@een April /8 /220 and ;ul> 3/8 /2208 in the Prefecture of #utare8 in R@anda8 during an armed conflict8 to @it+ hostilities bet@een the R@andan Armed !orces 4RA!7 and the R@andan Patriotic !ront 4RP!78 committed the act of se:ual violence against people8 committing a @ar crime8 as defined in subsections 1437 and 1407 of the Crimes Against Humanity and War Crimes Act! %*C* 6---8 c* 608 thereb> committing the indictable offence of a @ar crime8 as provided for in subparagraph 14/74c7 of the said Act* ,--./-.--00/1.-23 PA$E+ 0 %e5en/2 c0un/ #et@een April /8 /220 and ;ul> 3/8 /2208 in the Prefecture of #utare8 in R@anda8 during an armed conflict8 to @it+ hostilities bet@een the R@andan Armed !orces 4RA!7 and the R@andan Patriotic !ront 4RP!78 pillaged8 committing a @ar crime8 as defined in subparagraphs 1437 and 1407 of the Crimes Against Humanity and War Crimes Act8 %*C* 6---8 c* 608 thereb> committing the indictable offence of a @ar crime8 as provided for in subparagraph 14/74c7 of the said Act* <5= n brief8 the seven counts refer to distinct offences committed b> various means during a single time period 4from April /8 /2208 to ;ul> 3/8 /2207 and in a single location 4the prefecture of #utare7+ 9 t@o counts of genocide8 one b> murder and the other b> causing serious bodil> or mental harmI 9 t@o counts of crimes against humanit>8 one b> intentional Billings and the other b> acts of se:ual violenceI 9 three counts of @ar crimes8 the first b> murders8 the second b> acts of se:ual violence8 and the third b> pillage* <?= &he appellant subseJuentl> applied for release pending trial* On April 658 6--18 this application @as rejected b> Denis8 ;* of the %uperior Court of Quebec 46--1 QCC% ?--57* <2= On October ,8 6--18 the appellant filed a motion under sections 1-/ et seJ* of the Criminal Code8 R*%*C* /2?,8 c* C.01 entitled <&RAN%)A&ON= C(otion to Juash counts and8 in the alternative8 motion relating to the countsC in @hich he contested the validit> of the indictment on the follo@ing grounds+ K &he indictment fails to compl> @ith section ,?2 Cr. C. 4no count that charges an indictable offence other than murder shall be joined in an indictment to a count that charges murder7I K Counts / to 1 fail to compl> @ith section ,?/ Cr. C. and in particular counts / to 3 4because the> do not refer to a single transaction and are not sufficientl> detailed7I K Count 5 alleges that the appellant committed an offence that is unBno@n and non.e:istent under Canadian la@8 namel>8 pillage* </-= Denis ;* dismissed the motion in a judgment rendered on November 6-8 6--18 holding that the changes @ere for specific offences under the Act8 @hich @ere based on international la@ 46--1 QCC% ?-/-7* <//= &he trial @as preceded b> a rogator> commission in R@anda in ;anuar> and !ebruar> of 6--5* t @as held in (ontreal beginning in (arch of 6--5 and included rogator> commissions in 6--? in Paris8 Ligali8 and Dar es %alaam* n total8 11 @itnesses @ere heard and 6-- e:hibits @ere filed over the eight months of trial* t should also be pointed out that the trial tooB place before Denis ;* sitting alone8 as the parties agreed ,--./-.--00/1.-23 PA$E+ , and as permitted b> the Act8 and not before a judge and jur> as is usuall> the case in prosecutions for murder under the Criminal Code* </6= On (a> 668 6--28 the appellant @as convicted on all seven counts* &o safeguard the identit> of several of the @itnesses and thus protect them from an> possible reprisals8 the judgment of conviction consisted of t@o documents+ one public judgment8 @hich is 6-2, paragraphs length8 and a confidential schedule of /56? paragraphs that contains the judgeGs more detailed revie@ and anal>sis of the testimon>* </3= On October 628 6--28 the appellant @as sentenced to life imprisonment 46--2 QCC% 0?1,7* THE *ROUN"% OF APPEAL </0= &he appellant raises several grounds8 @hich can be grouped into five categories8 @hich the Court @ill address in the follo@ing order+ 9 the acts alleged in counts ,8 18 and 5 do not constitute @ar crimes according to international la@ in force in /220 or8 in the alternative8 according to Canadian la@ in /220I 9 the invalidit> of the seven counts on grounds of vaguenessI 9 the commission of irregularities b> the judge8 rendering the trial unfairI 9 the judgeGs misinterpretation of the constituant elements of the alleged offencesI and 9 the clear lacB of credibilit> of the Cro@nGs @itnesses invalidating the verdict* THE E6%TENCE N 1994 OF THE )AR CRME% ALLE*E" AN" THE 7AL"T& OF PRO%ECUTON FOR %UCH CRME% N CANA"A </,= &he appellant maintains that the three @ar crimes @ith @hich he @as charged did not e:ist according to international la@ because the underl>ing acts @ould have been committed during a non.international armed conflict as opposed to an international armed conflict* Ae argues that such acts onl> became crimes according to international la@ in /22? @ith the adoption of the Rome Statute. (oreover8 pillage of a home and of businesses8 @hich are the offences underl>ing the seventh count8 still do not constitute crimes in international la@* </1= n the alternative8 if8 in /2208 @ar crimes under international la@ did include acts committed during a non.international armed conflict8 their prosecution could not taBe place in Canada because subsection 543*517 Cr. C.! @hich @as in force at the time8 defined C@ar crimesC as acts committed during an international armed conflict* &herefore8 unless the Act is retroactive in effect8 @hich the appellant argues is ,--./-.--00/1.-23 PA$E+ 1 prohibited under paragraph //4g7 of the Canadian Charter of Rights and #reedoms8 he could not be prosecuted in Canada for the @ar crimes alleged in counts ,8 18 and 5* </5= !inall>8 considering that section // of the Act recogniDes the right to raise an> defence in e:istence in Canada in /2208 the appellant argues that he ma> raise the fact that the alleged acts @ere not offences in this countr> at the time because the> @ere committed in the conte:t of a non.international armed conflict* </?= On these grounds8 the appellant asBs the count to Juash the fifth8 si:th and seventh counts and to annul the verdicts arising therefrom* </2= n the CourtGs opinion8 these arguments have no merit* (i) Existence of the war crimes alleged according to international law in 1994 <6-= %ubsection 1437 of the Act defines @ar crimes as follo@s+ M@ar crimeN means an act or omission committed during an armed conflict that8 at the time and in the place of its commission8 constitutes a @ar crime according to customar> international la@ or conventional international la@ applicable to armed conflicts8 @hether or not it constitutes a contravention of the la@ in force at the time and in the place of its commission* O crime de guerre P !ait Q acte ou omission Q commis au cours dRun conflit armF et constituant8 au moment et au lieu de la perpFtration8 un crime de guerre selon le droit international coutumier ou le droit international conventionnel applicables S ces conflits8 JuRil constitue ou non une transgression du droit en vigueur S ce moment et dans ce lieu* <6/= #ecause this definition refers to international la@8 for there to be a crime8 <&RAN%)A&ON= Cinternational la@ must itself define the individual unla@ful acts considered to be offencesC 4PatricB Dallier8 (athias !orteau and Alain Pellet8 $roit international %u"lic8 ?th ed* 4Paris+ )$D;8 6--27 at 5?-7* <66= t must be noted that there are three sources of international la@8 @hich interact @ith each other+ K conventions8 treaties8 and other international agreements 4conventional international la@7I K international custom 4customar> international la@7I and K general principles of la@ recogniDed b> the communit> of nations* <63= &he Act8 ho@ever8 refers onl> to t@o of the three sources of international la@+ customar> and conventional international la@* n other @ords8 it e:cludes the third8 the general principles of la@ recogniDed b> the communit> of nations* ,--./-.--00/1.-23 PA$E+ 5 <60= n the present case8 it cannot be determined @hether the acts alleged in the fifth8 si:th8 and seventh counts constituted @ar crimes in /220 b> referring to the Rome Statute because subsection 1407 of the Act states that the Rome Statute codifies crimes according to customar> international la@ as of ;ul> /58 /22?+ 407 !or greater certaint>8 crimes described in articles 1 and 5 and paragraph 6 of article ? of the Rome %tatute are8 as of ;ul> /58 /22?8 crimes according to customar> international la@8 and ma> be crimes according to customar> international la@ before that date* &his does not limit or prejudice in an> @a> the application of e:isting or developing rules of international la@* 407 l est entendu Jue8 pour lRapplication du prFsent article8 les crimes visFs au: articles 1 <crimes de gFnocide= et 5 <crimes contre lRhumanitF= et au paragraphe 6 de lRarticle ? <crimes de guerre= du %tatut de Rome sont8 au /5 juillet /22?8 des crimes selon le droit international coutumier8 et JuRils peuvent lRTtre avant cette date8 sans Jue soit limitFe ou entravFe de JuelJue maniUre Jue ce soit lRapplication des rUgles de droit international e:istantes ou en formation* <6,= Hith regard to crimes against humanit>8 ho@ever8 subsection 14,7 of the Act provides that the> e:isted before the coming into force of the Agreement for the &rosecution and &unishment of the Ma'or War Criminals of the (uro%ean A)is8 signed in )ondon in August of /20, 4M*ondon AgreementN78 and of a proclamation b> the Allied !orces in ;anuar> of /2018 and thus8 long before the Rome Statute and long before the events in R@anda in /220. <61= As for genocide8 this crime has been recogniDed under customar> international la@ since long before /2208 as attested b> the Convention on the &revention and &unishment of the Crime of +enocide8 5? "*N*&*%* 6558 2 December /20?8 coming into force+ /6 ;anuar> /2,/8 signed b> Canada and R@anda on %eptember 38 /2,68 and April /18 /25,8 respectivel>* t has also been recogniDed in international jurisprudence+ &rosecutor v. Jean,&aul A-ayesu 46 %eptember /22?78 Case No* C&R.21.0.& 4C&R8 &rial Chamber7 at para* 02,8 affGd b> the Appeals Chamber 4/ ;une 6--/78 Case No* C&R.21.0.A8 and in commentar>+ $uFnaVl (ettrau:8 International Crimes and the ad hoc .ri"unals 4O:ford+ O:ford "P8 6--,7 at /22 et seJ* <65= Hith regard to the underl>ing acts alleged against the appellant in the fifth8 si:th8 and seventh counts 9 murder8 se:ual violence and pillage during a non.international armed conflict 9 the Act leaves it to the Court to determine @hether the> constituted @ar crimes before /22?8 and specificall> in /2208 according to customar> or conventional international la@* ndeed8 this is the onl> possible meaning of the @ords C&his does not limit or prejudice in an> @a> the application of e:isting or developing rules of international la@C in subsection 1407 of the Act 4!annie )afontaine8 &rosecuting +enocide! Crimes against Humanity and War Crimes in Canadian Courts 4%carborough8 Ont*+ Cars@ell8 6-/67 at /557* ,--./-.--00/1.-23 PA$E+ ? <6?= &he Cro@n and the interveners begin b> pointing out that the &rotocol Additional to the +eneva Conventions of /0 August /121! and relating to the &rotection of 3ictims of 4on,International Armed Conflicts 5&rotocol II6//6, "*N*&*%* 1-28 ? ;une /2558 @as incorporated into Canadian la@ through the +eneva Conventions Act8 R*%*C* /2?,8 c* $.38 s* 6467* &rotocol II8 @hich8 as its title indicates8 applies to non.international armed conflicts8 provides that murder8 rape 4se:ual violence constituting serious outrage to a personRs dignit>7 and pillage are prohibited at all times+ Article 0 .. !undamental guarantees /* All persons @ho do not taBe a direct part or @ho have ceased to taBe part in hostilities8 @hether or not their libert> has been restricted8 are entitled to respect for their person8 honour and convictions and religious practices* &he> shall in all circumstances be treated humanel>8 @ithout an> adverse distinction* t is prohibited to order that there shall be no survivors* 6* Hithout prejudice to the generalit> of the foregoing8 the follo@ing acts against the persons referred to in paragraph / are and shall remain prohibited at an> time and in an> place @hatsoever+ 4a7 violence to the life8 health and ph>sical or mental @ell. being of persons8 in particular murder as @ell as cruel treatment such as torture8 mutilation or an> form of corporal punishmentI 4b7 collective punishmentsI 4c7 taBing of hostagesI 4d7 acts of terrorismI 4e7 outrages upon personal dignit>8 in particular humiliating and degrading treatment8 rape8 enforced prostitution and an> form of indecent assaultI Article 0 .. $aranties fondamentales /* &outes les personnes Jui ne participent pas directement ou ne participent plus au: hostilitFs8 JuGelles soient ou non privFes de libertF8 ont droit au respect de leur personne8 de leur honneur8 de leurs convictions et de leurs pratiJues religieuses* Elles seront en toutes circonstances traitFes avec humanitF8 sans aucune distinction de caractUre dFfavorable* l est interdit dGordonner JuGil nG> ait pas de survivants* 6* %ans prFjudice du caractUre gFnFral des dispositions Jui prFcUdent8 sont et demeurent prohibFs en tout temps et en tout lieu S lGFgard des personnes visFes au paragraphe / + a7 les atteintes portFes S la vie8 S la santF et au bien.Ttre ph>siJue ou mental des personnes8 en particulier le meurtre8 de mTme Jue les traitements cruels tels Jue la torture8 les mutilations ou toutes formes de peines corporellesI b7 les punitions collectivesI c7 la prise dGotagesI d7 les actes de terrorismeI e7 les atteintes S la dignitF de la ,--./-.--00/1.-23 PA$E+ 2 4f7 slaver> and the slave trade in all their formsI 4g7 pillage7 5h6 threats to commit any of the foregoing acts. 8(m%hasis added.9 personne8 notamment les traitements humiliants et dFgradants8 le viol8 la contrainte S la prostitution et tout attentat S la pudeurI f7 lGesclavage et la traite des esclaves sous toutes leurs formesI g7 le pillageI h7 la menace de commettre les actes prFcitFs* <62= &he appellant nevertheless responds that there @as no clear consensus before /220 as to @hether all of the norms recogniDed in the Additional Protocols @ere customar>8 referring in particular to Robert ;* Currie8 International and .ransnational Criminal *a 4&oronto+ r@in )a@8 6-/-7 at /01* <3-= &o decide this issue8 the Court ma> rel> on international jurisprudence from the /22-s dealing @ith the content of customar> la@ in @ar crimes cases8 follo@ing the %upreme Court of CanadaGs suggestion in Mugusera v. Canada 5M.C.I.68 <6--,= 6 %*C*R* /--8 6--, %CC 0-8 at para* /61* <3/= Accordingl>8 the judgment in &rosecutor v. .adic 46 October /22,7 Case No* &. 20./ 4C&'8 Appeals Chamber7 states that &rotocol II cr>stalliDed customar> la@ in /255+ //5* Attention must also be dra@n to Additional Protocol to the $eneva Conventions* (an> provisions of this Protocol can no@ be regarded as declarator> of e:isting rules or as having cr>stallised emerging rules of customar> la@ or else as having been strongl> instrumental in their evolution as general principles* &his proposition is confirmed b> the vie@s e:pressed b> a number of %tates* &hus8 for e:ample8 mention can be made of the stand taBen in /2?5 b> El %alvador 4a %tate part> to Protocol 7* After having been repeatedl> invited b> the $eneral Assembl> to compl> @ith humanitarian la@ in the civil @ar raging on its territor> 4see8 e*g*8 $*A* Res* 0/E/,5 4/2?1778 the %alvadorian $overnment declared that8 strictl> speaBing8 Protocol did not appl> to that civil @ar 4although an objective evaluation prompted some $overnments to conclude that all the conditions for such applications @ere met8 4see8 e*g*8 03 Annuaire Suisse de $roit International8 4/2?57 at /?,.?57* Nevertheless8 the %alvadorian $overnment undertooB to compl> @ith the provisions of the Protocol8 for it considered that such provisions Cdeveloped and supplementedC common Article 38 C@hich in turn constitute<d= the minimum protection due to ever> human being at an> time and placeC417 4%ee nforme de la !uerDa Armata de El %alvador sobre el respeto > la vigencia de las normas del Derecho nternacional Aumanitario durante el periodo de %eptiembre de /2?1 a Agosto de /2?58 at 3 43/ August /2?57 4for@arded b> (inistr> of Defence and %ecurit> of El %alvador to %pecial Representative of the "nited Nations Auman Rights Commission 46 October /2?578I 4unofficial translation7* %imilarl>8 in /2?58 (r* (*;* (atheson8 speaBing in ,--./-.--00/1.-23 PA$E+ /- his capacit> as Deput> )egal Adviser of the "nited %tates %tate Department8 stated that+ <&=he basic core of Protocol is8 of course8 reflected in common article 3 of the /202 $eneva Conventions and therefore is8 and should be8 a part of generall> accepted customar> la@* &his specificall> includes its prohibitions on violence to@ards persons taBing no active part in hostilities8 hostage taBing8 degrading treatment8 and punishment @ithout due processC 4Aumanitarian )a@ Conference8 RemarBs of (ichael ;* (atheson8 467 American "niversit> ;ournal of nternational )a@ and Polic> 4/2?57 0/28 at 03-.3/7* <Emphasis addedI formatting and citations omitted*= <36= n A-ayesu8 su%ra8 the Appeals Chamber of the C&R concluded that &rotocol II applied to the R@andan genocide+ 1/1* t should be noted8 moreover8 that Article 0 of the C&R %tatute states that8 C&he nternational &ribunal for R@anda shall have the po@er to prosecute persons committing or ordering to be committed serious violations of Article 3 common to the $eneva Conventions of /6 August /202 for the Protection of Har Victims8 and of Additional Protocol thereto of ? ;une /255C 4emphasis added7* &he Chamber understands the phrase Cserious violationC to mean Ca breach of a rule protecting important values <@hich= must involve grave conseJuences for the victimC8 in line @ith the above.mentioned Appeals Chamber Decision in &adic 8 paragraph 20* &he list of serious violations @hich is provided in Article 0 of the %tatute is taBen from Common Article 3 . @hich contains fundamental prohibitions as a humanitarian minimum of protection for @ar victims 9 and Article 0 of Additional Protocol 8 @hich eJuall> outlines C!undamental $uaranteesC* &he list in Article 0 of the %tatute thus comprises serious violations of the fundamental humanitarian guarantees @hich8 as has been stated above8 are recogniDed as part of international customar> la@* n the opinion of the Chamber8 it is clear that the authors of such egregious violations must incur individual criminal responsibilit> for their deeds* 1/5* &he Chamber8 therefore8 concludes the violation of these norms entails8 as a matter of customar> international la@8 individual responsibilit> for the perpetrator* n addition to this argument from custom8 there is the fact that the $eneva Conventions of /202 4and thus Common Article 37 @ere ratified b> R@anda on , (a> /210 and Additional Protocol on /2 November /2?08 and @ere therefore in force on the territor> of R@anda at the time of the alleged offences* (oreover8 all the offences enumerated under Article 0 of the %tatute constituted crimes under R@andan la@ in /220* R@andan nationals @ere therefore a@are8 or should have been a@are8 in /220 that the> @ere amenable to the jurisdiction of R@andan courts in case of commission of those offences falling under Article 0 of the %tatute* <Emphasis added*= ,--./-.--00/1.-23 PA$E+ // <33= &herefore8 there can be no doubt that8 in /2208 @ar crimes comprised serious acts such as murder and rape8 an act of se:ual violence constituting serious harm to the integrit> and dignit> of victims that @ere committed during a non.international armed conflict in R@anda* <30= As for pillage8 it has been a crime under customar> and conventional la@ for a ver> long time* ndeed8 pillage and its s>non>m8 plunder8 have been recogniDed in several international instruments and treaties* <3,= !or e:ample8 Article 14"7 of the Charter of the International Military .ri"unal8 @hich forms part of the )ondon Agreement8 ?6 "*N*&*%* 6?, and @hich created the Nuremberg &ribunal8 includes Mplunder of public and private propert>N in its definition of @ar crimes* <31= &he Convention 5I36 res%ecting the *as and Customs of War on *and and its anne): Regulations concerning the *as and Customs of War on *and8 &he Aague8 /? October /2-58 an earlier agreement considered to be part of customar> la@8 prohibits8 in Article 6?8 Mthe pillage of a to@n or place8 even @hen taBen b> assaultN* <35= %imilarl>8 Article 34e7 of the Statute of the International Criminal .ri"unal for the former ;ugoslavia 4MIC.; StatuteN8 6, (a> /2238 "*N* Doc* %ERE%E?658 implicitl> recogniDes pillage as a @ar crime8 @hile Article 04f7 of the Statute of the International Criminal .ri"unal for Randa 5<IC.R Statute=68 "*N* Doc* %ERE%E2,,8 ? November /220 does so e:plicitl>* !urthermore8 the latter statute criminaliDes pillage b> recogniDing the offences enumerated in the +eneva Conventions and &rotocol II. <3?= t is therefore not surprising that8 in A-ayesu8 at para* 1-28 the &rial Chamber8 recogniDed that the fundamental guarantees in Article 0 of &rotocol II8 including that protecting against pillage8 @ere customar> in nature* <32= (oreover8 pillage need not be carried out b> an arm>* <0-= n &rosecutor v. $elalic8 Mucic! $elic and *andzo 5Cele"ici Cam%6 4/1 November /22?7 Case No* &.21.6/.& 4C&'8 &rial Chamber7 at para* ,2-8 the &ribunal recogniDed that the Cprohibition against the unjustified appropriation of public and private enem> propert> is general in scope8 and e:tends both to acts of looting committed b> individual soldiers for their private gain8 and to the organiDed seiDure of propert>C* <0/= n &rosecutor v. Jelisic 4/0 December /2227 Case No* &.2,./-.& 4C&'8 &rial Chamber7 at para* 0?8 the same &ribunal states that plunder is Cthe fraudulent appropriation of public or private funds belonging to the enem> or the opposing part> perpetrated during an armed conflict and related theretoC and that Cindividual acts of plunder perpetrated b> people motivated b> greed might entail individual criminal responsibilit> on the part of its perpetratorC* <06= Recent commentar> has adopted this position as @ell 4Currie at /3,8 (ettrau:8 at /3? et seJ*7* <03= n the circumstances8 the Court is of the vie@ that8 in /2208 pillage @as a @ar crime according to customar> international la@ @hen committed in the conte:t of a non. international armed conflict* ,--./-.--00/1.-23 PA$E+ /6 <00= &he appellant also criticiDes the parameters of the underl>ing offence of pillage8 @hich the Court @ill discuss later on in its anal>sis of the reJuisite elements to find that a @ar crime b> pillage has occurred* <0,= !or these reasons8 the Court finds that8 before /2208 the underl>ing offences alleged in the fifth8 si:th and seventh counts committed during a non.international armed conflict @ere @ar crimes according to international la@* 8,,9 The Act explicitly permits prosecution for these acts in Canada <01= !ollo@ing the recommendations of the DeschTnes Commission in its report filed in /2?,8 Parliament amended the Criminal Code to include crimes against humanit> and @ar crimes committed outside Canada in subsections 543*5/7 to 543*557 4%*C* /2?58 c* 357 4)afontaine at /,9617* &hese amendments contemplated onl> @ar crimes committed during an international armed conflict* <05= n 6---8 to give full effect to CanadaGs adherence to the Rome Statute8 Parliament adopted the Act8 @hich criminaliDes all acts that8 according to international la@8 constitute genocide8 crimes against humanit>8 or @ar crimes committed in Canada 4section 07 or outside Canada 4section 17* <0?= Offences committed outside Canada ma> be prosecuted in Canada8 regardless of @hen the> @ere committed* 1* 4/7 Ever> person @ho8 either before or after the coming into force of this section8 commits outside Canada 4a7 genocide8 4b7 a crime against humanit>8 or 4c7 a @ar crime8 is guilt> of an indictable offence and ma> be prosecuted for that offence in accordance @ith section ?* W 2* 4/7 Proceedings for an offence under this Act alleged to have been committed outside Canada for @hich a person ma> be prosecuted under this Act ma>8 @hether or not the person is in Canada8 be commenced in an> territorial division in Canada and the 1* 4/7 QuiconJue commet S lRFtranger une des infractions ci.aprUs8 avant ou aprUs lRentrFe en vigueur du prFsent article8 est coupable dRun acte criminel et peut Ttre poursuivi pour cette infraction au: termes de lRarticle ? + a7 gFnocideI b7 crime contre lGhumanitFI c7 crime de guerre* [W] 2* 4/7 )es poursuites S lGFgard dGune infraction visFe par la prFsente loi Jui aurait FtF commise S lGFtranger peuvent Ttre engagFes dans toute circonscription territoriale au Canada8 Jue lGaccusF se trouve ou non au Canada8 et celui.ci peut subir son procUs et Ttre ,--./-.--00/1.-23 PA$E+ /3 person ma> be tried and punished in respect of that offence in the same manner as if the offence had been committed in that territorial division* W <Emphasis added*= uni8 S lGFgard de cette infraction8 comme si elle avait FtF commise dans cette circonscription territoriale* <W= <02= &hus8 the Act criminaliDes in Canadian la@ all acts constituting crimes @ithin the meaning of international la@ at the time the> @ere committed* As noted previousl>8 these crimes include genocide8 @ar crimes8 and crimes against humanit> during a non. international armed conflict* <,-= t is true that the crimes alleged against the appellant @ere committed in /2208 @hereas the Act @as not enacted until 6---* &his does not8 ho@ever8 result in the retroactive creation of an offence* <,/= &he Act does not attempt to create an offence e) %ost facto* Rather8 it seeBs merel> to allo@ the prosecution in Canada of persons @ho8 before the Act entered into force8 committed acts that8 at the time of their commission8 constituted genocide8 crimes against humanit>8 or @ar crimes8 according to the definitions of those crimes under international la@8 as illustrated b> subection 1437 of the Act+ Mcrime against humanit>N means murder8 e:termination8 enslavement8 deportation8 imprisonment8 torture8 se:ual violence8 persecution or an> other inhumane act or omission that is committed against an> civilian population or an> identifiable group and that8 at the time and in the place of its commission8 constitutes a crime against humanit> according to customar> international la@ or conventional international la@ or b> virtue of its being criminal O crime contre lRhumanitF P (eurtre8 e:termination8 rFduction en esclavage8 dFportation8 emprisonnement8 torture8 violence se:uelle8 persFcution ou autre fait Q acte ou omission Q inhumain8 dRune part8 commis contre une population civile ou un groupe identifiable de personnes et8 dRautre part8 Jui constitue8 au moment et au lieu de la perpFtration8 un crime contre lRhumanitF selon le droit international coutumier ou le droit international ,--./-.--00/1.-23 PA$E+ /0 according to the general principles of la@ recogniDed b> the communit> of nations8 @hether or not it constitutes a contravention of the la@ in force at the time and in the place of its commission* M@ar crimeN means an act or omission committed during an armed conflict that8 at the time and in the place of its commission8 constitutes a @ar crime according to customar> international la@ or conventional international la@ applicable to armed conflicts8 @hether or not it constitutes a contravention of the la@ in force at the time and in the place of its commission* MgenocideN means an act or omission committed @ith intent to destro>8 in @hole or in part8 an identifiable group of persons8 as such8 that at the time and in the place of its commission8 constitutes genocide according to customar> international la@ or conventional international la@ or b> virtue of its being criminal according to the general principles of la@ recogniDed b> the communit> of nations8 @hether or not it constitutes a contravention of the la@ in force at the time and in the place of its commission* conventionnel ou en raison de son caractUre criminel dRaprUs les principes gFnFrau: de droit reconnus par lRensemble des nations8 JuRil constitue ou non une transgression du droit en vigueur S ce moment et dans ce lieu* O crime de guerre P !ait Q acte ou omission Q commis au cours dRun conflit armF et constituant8 au moment et au lieu de la perpFtration8 un crime de guerre selon le droit international coutumier ou le droit international conventionnel applicables S ces conflits8 JuRil constitue ou non une transgression du droit en vigueur S ce moment et dans ce lieu* O gFnocide P !ait Q acte ou omission Q commis dans lRintention de dFtruire8 en tout ou en partie8 un groupe identifiable de personnes et constituant8 au moment et au lieu de la perpFtration8 un gFnocide selon le droit international coutumier ou le droit international conventionnel8 ou en raison de son caractUre criminel dRaprUs les principes gFnFrau: de droit reconnus par lRensemble des nations8 JuRil constitue ou non une transgression du droit en vigueur S ce moment et dans ,--./-.--00/1.-23 PA$E+ /, <Emphasis added*= ce lieu* <,6= &he Act is thus consistent @ith paragraph //4g7 of the Charter8 @hich recogniDes that the criminal nature of an act at the moment it is committed ma> be assessed under either domestic or international la@+ //* An> person charged @ith an offence has the right 4g7 not to be found guilt> on account of an> act or omission unless8 at the time of the act or omission8 it constituted an offence under Canadian or international la@ or @as criminal according to the general principles of la@ recogniDed b> the communit> of nationsI <Emphasis added*= //* &out inculpF a le droit + g7 de ne pas Ttre dFclarF coupable en raison dGune action ou dGune omission Jui8 au moment oX elle est survenue8 ne constituait pas une infraction dGaprUs le droit interne du Canada ou le droit international et nGavait pas de caractUre criminel dGaprUs les principes gFnFrau: de droit reconnus par lGensemble des nationsI <,3= (oreover8 the la@ of this countr> does not prohibit an amendment to the rules governing the jurisdiction of courts to allo@ for prosecutions in Canada for acts that8 at the time the> @ere committed8 @ere offences under Canadian or international la@ 4R. v. #inta8 </220= / %*C*R* 5-/7* And in fact8 that is @hat the Act did* 6 <,0= n summar>8 through the Act and the repeal of the /2?5 amendments to the Criminal Code8 Parliament did not create ne@ legal conseJuences for the past but onl> for the future* At most8 the Act is retrospective in effect but not retroactive8 as defined in >enner v. Canada 5Secretary of State68 </225= / %*C*R* 3,? at 3?/* 3
<,,= ConseJuentl>8 the Act validl> permits the prosecution of an individual in Canada for a @ar crime committed before 6---* (iii) The end of impunity: a alid effect of the Act <,1= "pon the enactment of the Act8 the perpetrators of @ar crimes8 crimes against humanit>8 and genocide could no longer come to Canada seeBing immunit> from prosecution* During one of the Parliamentar> debates8 (P Ra>mond Chan made a statement on behalf of the (inister of !oreign Affairs8 confirming this objective+ 6 David $oetD8 >ill C,/1: Crimes Against Humanity and War Crimes Act 4)%.31-E7 4Otta@a+ )ibrar> of Parliament8 Research department8 )a@ and $overnment Division8 , April 6---8 rev* /, ;une 6---78 online+ http+EE@@@*parl*gc*caEAboutEParliamentE)egislative%ummariesEbillsYls*aspZ lang[!\ls[C/2\Parl[31\%es[6\source[#illsYAouseY$overnment 3 %ee also Pierre.AndrF C]tF in collaboration @ith %tFphane #eaulac \ (athieu Devinat8 Inter%r?tation des lois8 0th ed* 4(ontreal+ &hFmis8 6--27 at para* ,-2I Aubert Reid8 $ictionnaire de droit qu?"?cois et canadien8 0th ed* 4(ontreal+ Hilson \ )afleur8 6-/-7 at ,32I Daphne A* DuBelo@8 .he Canadian $ictionary of *a8 0th ed* 4%carborough8 Ont*+ Cars@ell8 6-//7 at //3/* ,--./-.--00/1.-23 PA$E+ /1 &he crimes against humanit> and @ar crimes act has been amended to ensure that Canada @ill be able to full> prosecute individuals @ho commit mass murder8 rape8 torture or an> other similar heinous crimes against humanit>* &he customar> international la@ definitions of genocide8 crimes against humanit> and @ar crimes @ill no@ be recogniDed inside Canada* CanadaGs abilit> to assert universal jurisdiction for these crimes has also been streamlined and simplified* No@8 as long as the person accused of the crime is found in Canada8 the> @ill fall under our jurisdiction8 regardless of @hen or @here the crime tooB place* &his change ensures that those @ho have committed or @ho commit in the future the most egregious crimes @ill not find a safe haven in Canada* 0 <Emphasis added*= <,5= ConseJuentl>8 the appellant ma> be prosecuted in Canada for acts committed in /220 in R@anda if these acts constituted crimes according to international la@ at the time* <,?= Although the appellant does not directl> den> this principle8 he submits that he is entitled to raise an> defence that e:isted in /2208 including the fact that an offence committed during a non.international armed conflict @as not an offence under Canadian criminal la@ at the time* Ae invoBes section // of the Act+ //* n proceedings for an offence under an> of sections 0 to 58 the accused ma>8 subject to sections /6 to /0 and to subsection 1-5417 of the Criminal Code8 rel> on an> justification8 e:cuse or defence available under the la@s of Canada or under international la@ at the time of the alleged offence or at the time of the proceedings* <Emphasis added*= //* %ous rFserve du paragraphe 1-5417 du Code criminel et des articles /6 S /08 lGaccusF peut se prFvaloir des justifications8 e:cuses et mo>ens de dFfense reconnus8 au moment de la prFtendue perpFtration ou au moment du procUs8 par le droit canadien ou le doit international* <,2= n the CourtGs vie@8 the fact that he Bne@ that he could taBe refuge in a countr> @here no prosecution @as possible for an international crime cannot be raised as a justification8 e:cuse8 or defence available at the time of the offence* <1-= n other @ords8 the loss of immunit> from prosecution for an international crime b> a perpetrator @ho no@ resides in Canada is not a defence and cannot be raised under section // of the Act. THE 7AL"T& OF THE "RAFTN* OF THE N"CTMENT 0 Aouse of Commons Debates8 31th legislature8 6nd session8 No* //3 4/3 ;une 6---7 at ///-* ,--./-.--00/1.-23 PA$E+ /5 <1/= &he appellant argues that the counts do not meet the degree of precision reJuired b> the international criminal tribunals8 thus rendering his trial unfair* n his vie@8 the location of the alleged offences8 the identit> of the victims8 and the nature of the incidents at issue should have been precisel> identified in each of the counts* n support of his position8 he invoBes judgments of the international criminal tribunals8 including that of the &rial Chamber in &rosecutor v. Milosevic 4/3 December 6--/7 Cases No* &. 22.35.AR53 and &.-/.,-.AR53 4C&'8 &rial Chamber7 and that of the Appeals Chamber8 4/? April 6--67 No* &.-/.,/.AR538 in @hich the indictment @as over 1, pages long8 including schedules listing the victims of each offence* <16= Ae also refers to the procedure of the C&R8 @hich involves a t@o.part indictment8 @ith the first setting out the offence alleged b> the prosecution and the second containing a detailed summar> of the facts surrounding the commission of the offence* Ae concludes that8 contrar> to @hat the trial judge @rote8 the Cro@n can be reJuired to describe the offences in more detail @ithout depriving the Act of its effects* <13= Ae also argues that this degree of detail is also reJuired under the Charter8 particularl> paragraph //4a7 4the right to be informed @ithout unreasonable dela> of the specific offence78 paragraph //4h7 4the right not to be tried again for the same offence78 and section 5 4the right to a fair trial and to maBe full ans@er and defence78 especiall> since the charges are comple:8 involve several events8 and contemplate ver> harsh sentences* <10= n his opinion8 the counts as drafted @ere too vague and thus prevented him from adeJuatel> preparing his defence8 as he @as Bept in the darB about the Cro@nGs theor> until a document summariDing the facts giving rise to the alleged offences @as filed after the Cro@n had closed its case* Ae also faults the Cro@n for @aiting too long to provide him @ith the document8 @ithout @hich he @as unable to object to the filing of certain pieces of evidence that later turned out to be irrelevant* <1,= &he appellant also argues that the judge erred in la@ b> taBing into account the disclosure of the evidence in his determination of @hether the drafting of the counts @as sufficientl> precise* An accused should not be reJuired to anal>De the content of the evidence disclosed to Bno@ precisel> @ith @hat he is accused* Rather8 this information should be included in the indictment* &his principle has been recogniDed b> both Canadian courts and international tribunals8 pertaining as it does to the right of all accused to a fair trial* <11= Citing subsection ,?/4/7 Cr. C.8 @hich provides that each count in an indictment shall in general appl> to a single transaction8 the appellant argues that the Cro@n undul> benefited from the indictment as drafted because all it had to prove @as his participation in a single underl>ing act to obtain a conviction8 @hile the appellant8 to be acJuitted8 had to raise a reasonable doubt as to his participation in all of the underl>ing acts the Cro@n alleged* &his imbalance8 he claims8 rebuts the argument of the Csingle criminal transactionC accepted b> the judge* n this case8 each count contains multiple transactions 4or in !rench8 CaffairesC78 @hich should be alleged in an eJual number of separate counts* ,--./-.--00/1.-23 PA$E+ /? <15= &hese arguments cannot succeed* <1?= Hhile indictments filed before the international criminal tribunals are admittedl> highl> detailed8 this is because the procedural rules are different* n this case8 ho@ever8 the Canadian rules in sections ,?/ to 1-/ Cr. C* appl>8 and the> are a complete codification of the procedure for indictments* <12= %ections 2 and /- of the Act specif> that the trial is held in accordance @ith Canadian procedure+ 2* 4/7 Proceedings for an offence under this Act alleged to have been committed outside Canada for @hich a person ma> be prosecuted under this Act ma>8 @hether or not the person is in Canada8 be commenced in an> territorial division in Canada and the person ma> be tried and punished in respect of that offence in the same manner as if the offence had been committed in that territorial division* 467 !or greater certaint>8 in a proceeding commenced in an> territorial division under subsection 4/78 the provisions of the Criminal Code relating to reJuirements that an accused appear at and be present during proceedings and an> e:ceptions to those reJuirements appl>* W /-* Proceedings for an offence alleged to have been committed before the coming into force of this section shall be conducted in accordance @ith the la@s of evidence and procedure in force at the time of the proceedings* 2* 4/7 )es poursuites S lGFgard dGune infraction visFe par la prFsente loi Jui aurait FtF commise S lGFtranger peuvent Ttre engagFes dans toute circonscription territoriale au Canada8 Jue lGaccusF se trouve ou non au Canada8 et celui.ci peut subir son procUs et Ttre puni8 S lGFgard de cette infraction8 comme si elle avait FtF commise dans cette circonscription territoriale* 467 l est entendu Jue la procFdure visFe au paragraphe 4/7 est assujettie au: dispositions du code criminel concernant lGobligation pour un accusF dGTtre prFsent et de demeurer prFsent pour la durFe de la procFdure et les e:ceptions S cette obligation* <W= /-* )es poursuites engagFes S lGFgard dGune infraction Jui aurait FtF commise avant lGentrFe en vigueur du prFsent article <Note + 63 octobre 6---= sont menFes conformFment au: rUgles de preuve et de procFdure en vigueur au moment du procUs* <5-= &hus8 the trial must be conducted as though the offence @as committed in Canada* (oreover8 @hen Parliament chooses to introduce principles or rules dra@n from international la@8 it states so e:plicitl>* &his is the case8 for e:ample8 in the ,--./-.--00/1.-23 PA$E+ /2 definition of genocide8 @ar crimes8 and crimes against humanit> in subsection 1437 of the Act and section // dealing @ith defences* <5/= &here is nothing8 ho@ever8 to indicate that Parliament @ished to incorporate the special rules adopted b> the international criminal tribunals into the Act or to create a h>brid s>stem of Canadian and international rules* <56= &he validit> of the indictment and its impact on the fairness of the trial must be anal>Ded under Canadian rules* Accordingl>8 it is sufficient for an indictment to compl> @ith the reJuirements in section ,?/ Cr. C.+ ,?/* 4/7 Each count in an indictment shall in general appl> to a single transaction and shall contain in substance a statement that the accused or defendant committed an offence therein specified* 467 &he statement referred to in subsection 4/7 ma> be 4a7 in popular language @ithout technical averments or allegations of matters that are not essential to be provedI 4b7 in the @ords of the enactment that describes the offence or declares the matters charged to be an indictable offenceI or 4c7 in @ords that are sufficient to give to the accused notice of the offence @ith @hich he is charged* 437 A count shall contain sufficient detail of the circumstances of the alleged offence to give to the accused reasonable information @ith respect to the act or omission to be proved against him and to identif> the transaction referred ,?/* 4/7 ChaJue chef dans un acte dRaccusation sRappliJue8 en gFnFral8 S une seule affaireI il doit contenir en substance une dFclaration portant Jue lRaccusF ou le dFfendeur a commis lRinfraction Jui > est mentionnFe* 467 )a dFclaration mentionnFe au paragraphe 4/7 peut Ttre faite + a6 en langage populaire sans e:pressions techniJues ni allFgations de choses dont la preuve nRest pas essentielleI "6 dans les termes mTmes de la disposition Jui dFcrit lRinfraction ou dFclare Jue le fait imputF est un acte criminelI c6 en des termes suffisants pour notifier au prFvenu lRinfraction dont il est inculpF* 437 "n chef dRaccusation doit contenir8 S lRFgard des circonstances de lRinfraction prFsumFe8 des dFtails suffisants pour renseigner raisonnablement le prFvenu sur lRacte ou omission S prouver contre lui8 et pour identifier ,--./-.--00/1.-23 PA$E+ 6- to8 but other@ise the absence or insufficienc> of details does not vitiate the count* 407 Hhere an accused is charged @ith an offence under section 05 or sections 02 to ,38 ever> overt act that is to be relied on shall be stated in the indictment* 4,7 A count ma> refer to an> section8 subsection8 paragraph or subparagraph of the enactment that creates the offence charged8 and for the purpose of determining @hether a count is sufficient8 consideration shall be given to an> such reference* 417 Nothing in this Part relating to matters that do not render a count insufficient shall be deemed to restrict or limit the application of this section* lRaffaire mentionnFe8 mais autrement lRabsence ou insuffisance de dFtails ne vicie pas le chef dRaccusation* 407 )orsJuRun prFvenu est accusF dRune infraction visFe S lRarticle 05 ou S lRun des articles 02 S ,38 tout acte manifeste devant Ttre invoJuF doit Ttre indiJuF dans lRacte dRaccusation* 4,7 "n chef dRaccusation peut se rFfFrer S tout article8 paragraphe8 alinFa ou sous. alinFa de la disposition Jui crFe lRinfraction imputFe et8 pour dFterminer si un chef dRaccusation est suffisant8 il est tenu compte dRun tel renvoi* 417 )es dispositions de la prFsente partie concernant des matiUres Jui ne rendent pas un chef dRaccusation insuffisant nRont pas pour effet de restreindre ou limiter lRapplication du prFsent article* <53= %ubsection / sets out the Csingle transactionC rule 4in !rench+ Cune seule affaireC7* As the trial judge pointed out8 it has long been established that this rule does not prohibit grouping together a series of incidents that relate to a similar activit> or a similar course of conduct8 if the> are part of a single operation 4R. v. +.*.M.8 </222= #*C*;* No* /?3? 4Q)7 4#*C*C*A*7I R. v. &omerleau8 </222= ;*Q* No* ,6/- 4Q)7 4C*Q*7I R. v. Selles8 </225= O*;* No* 6,-6 4Q)7 4ON C*A*7I R. v. Adams and Waltz 4/2?27 02 C*C*C* 43d7 /-- 4ON C*A*7I R. v. +erman 4/2?27 ,/ C*C*C* 43d7 /5, 4%L C*A*7I &iquette v. R.8 </251= C*A* 115 at 11?7* <50= n &hili%%e v. R*8 ;*E* 6--0.32?8 this Court noted that the formalism once reJuired is no longer mandator>8 although it urged prudence @hen the trial is before a jur>+ <&RAN%)A&ON= <6?= %ubsection ,?/4/7 Cr. C* reJuires that the count appl> to a Csingle transactionC onl>* t has long been established that the terms Ca single transactionC or Cune seule affaireC do not preclude referring to several incidents in one count* Although the rules governing the drafting of indictments @ere long formal and strict8 there are nevertheless cases from rather far bacB in judicial histor> involving indictments that group together several similar incidents* W ,--./-.--00/1.-23 PA$E+ 6/ <62= &he statement in a count encompassing several events must receive particular attention in a trial before judge and jur>8 @here the rule of unanimit> prevails* !or e:ample8 @here t@o distinct transactions are contemplated in one count8 care must be taBen to prevent a jur> from arriving at a unanimous verdict of guilt for an alleged offence if si: of the jurors are convinced be>ond an> reasonable doubt of the accusedGs guilt @ith respect to the first transaction and the other si: are eJuall> persuaded although @ith respect to the second transaction* Hhere the transactions contemplated in the counts are not part of an ongoing series of events and are distinct as to the manner in @hich the> @ere perpetrated and the defences raised against them8 the judge @ould be @ise to order that the count be divided 4subsection ,2-437 Cr. C.7* <5,= Certainl>8 the latter concern is justified* !or e:ample8 can a jur>8 unanimous as to the commission of genocide8 convict an appellant on the first count8 if si: of the jurors based their finding of guilt on the murders committed near the Ngoma church and the other si: based it on the murders committed after the Bidnappings at the roadblocBsZ Ao@ever interesting this Juestion ma> be8 the Court need not decide it8 since this trial tooB place before a judge alone* <51= n this case8 the issue must instead be anal>Ded in light of the acts that are the subjects of each of the counts* <55= &he appellant is not charged @ith murder8 se:ual violence8 or pillage* Ae is charged @ith genocide8 crimes against humanit>8 and @ar crimes8 offences that @ere allegedl> committed through murder8 se:ual violence8 and pillage* &he distinction is important* <5?= Crimes against humanit>8 genocide8 and @ar crimes are offences that can be described as Cconte:tualC* n crimes against humanit>8 the underl>ing offence must be committed during a @idespread or s>stematic attacB directed against an identifiable group of persons 4Mugesera at para* /,/78 @hich distinguishes a crime against humanit> from an ordinar> offence* &he same is true @ith respect to genocide8 in @hich the underl>ing act must be committed @ith intent to destro>8 in @hole or in part8 an identifiable group of persons* And @ith respect to @ar crimes8 as the name indicates8 the> must be committed during an armed conflict8 either domestic or international* <52= $iven the applicable rules8 @hich are outlined above8 it is entirel> possible for this t>pe of count to encompass a series of similar acts committed during a @idespread or s>stematic attacB directed against a civilian population8 either in the conte:t of the destruction of an identifiable group of persons or during an armed conflict8 and still not violate the single transaction rule* &he conte:t reveals a course of conduct that includes the commission of underl>ing acts8 @hich ma> then be grouped together8 according to their nature8 in a single count and constitute a single transaction* <?-= Although the Cro@n could have drafted one count for ever> incident8 it cannot be criticiDed for having grouped similar underl>ing offences referring to the same course of conduct together in a single count* &his manner of proceeding is not contrar> to the reJuirements of subsection ,?/4/7 Cr. C. ,--./-.--00/1.-23 PA$E+ 66 <?/= &he conte:tual nature of the offences is also important @hen the sufficienc> of the counts under subsection ,?/437 Cr. C. is at issue* <?6= &he sufficienc> reJuirement has been anal>Ded on numerous occasions b> the %upreme Court of Canada* &he golden rule as set out in R. v. C@t?8 </25?= / %*C*R* ? at /38 is for Cthe accused to be reasonabl> informed of the transaction alleged against him8 thus giving the possibilit> of a full defence and a fair trialC* <?3= &he %upreme Court has held that sufficienc> is assessed on the basis of the facts of the case and the nature of the charge 4R. v. >.5+.68 </22-= 6 %*C*R* 3- at 0090,I R. v. $ouglas8 </22/= / %*C*R* 3-/ at 3/07* <?0= n this case8 the appellant @as a@are of the conte:t of the charges since he admitted that8 on the dates specified in the indictment8 R@anda8 including the prefecture of #utare8 @as in the grips of genocide and armed conflict and that the civilian &utsi population @as the target of a @idespread or s>stematic attacB* Ae also Bne@ @hat underl>ing acts he @as alleged to have committed+ murder8 se:ual violence8 pillage* n short8 he Bne@ that he @as being accused of committing murder8 se:ual violence and pillage in the conte:t of the s>stematic or @idespread attacB against the &utsi population and the armed conflict that @as ravaging R@anda8 and more precisel> in the prefecture of #utare8 during a specific period of time8 and for having thus committed genocide8 a crime against humanit>8 and a @ar crime* <?,= (oreover8 before the trial8 the Cro@n had disclosed to the appellant all of the evidence in its possession8 including a 35.page table of contents8 as @ell as8 @hen his application for release @as heard8 a summar> of the evidence that it intended to adduce at trial8 @hich @as no less than 6? pages long* <?1= &hese are all elements to be considered @hen determining @hether the appellant had sufficient Bno@ledge of the theor> the Cro@n intended to present to be able to prepare an adeJuate defence against the charges8 in accordance @ith the reJuirements noted b> the Court of Appeal for Ontario in R. v. Ro"inson8 <6--/= O*;* No* /-56 4Q)7+ 63 Hhether an indictment or a count in an indictment meets the sufficienc> reJuirement in this subsection depends upon the facts and circumstances of each case* n determining @hether the transaction has been sufficientl> identified the court @ill looB not just at the @ording of the indictment but also at the other material in the possession of the accused such as Cro@n disclosure and the evidence called at the preliminar> inJuir>8 if there @as one+ Re Regina and R.I.C. 4/2?178 36 C*C*C* 43d7 322 4Ont* C*A*7I R. v. Ryan 4/2?,78 63 C*C*C* 43d7 / 4Ont* C*A*7* W <Emphasis added*= <?5= n the other case brought under the Act8 R. v. Mungarere8 su%ra8 the trial judge opined that disclosure of evidence is similar to the description of facts reJuired b> the international criminal tribunals and allo@s the accused to become familiar @ith the evidence for the purpose of preparing the defence+ <&RAN%)A&ON= ,--./-.--00/1.-23 PA$E+ 63 </3= t is true that8 at the C&R8 the facts are incorporated into the indictment itself* t is also true that the Court ma> dra@ inspiration from the procedure at the C&R8 given that tribunalGs e:perience in such matters* !undamentall>8 in this case8 there is no real difference bet@een the t@o @a>s of proceeding* &he statement of fact used b> the C&R and the obligation to disclose incumbent on the Cro@n in Canada serve the same purpose+ to inform the accused* Our procedure has evolved significantl> over the last three decades* &here @as a time @here the Cro@n needed onl> to submit an indictment listing the essential elements of the offence and nothing more* No@8 the golden rule is to ensure that the accused has in hand all of the information that the Cro@n has in its possession and under its control* ConseJuentl>8 the accused has detailed Bno@ledge of all of the facts surrounding the allegation against him8 including all of the evidence at the Cro@nGs disposal8 be it inculpator> or e:culpator>* <??= n this case8 the Court finds that the appellant @as full> able to prepare his defence and concludes that the counts @ere sufficient @ithin the meaning of subsection ,?/437 Cr. C. <?2= As for paragraph //4h7 of the Charter8 the appellantGs argument is not convincing* %ince an accused has the right not to be tried again for an offence of @hich he has been acJuitted or convicted8 the broader the drafting of the offence8 the more paragraph //4h7 @ill @orB in favour of the accused later on b> prohibiting ne@ prosecutions concerning an> of the events contemplated in the count* n other @ords8 if the count is broadl> @orded8 paragraph //4h7 cannot be used to counter it* <2-= #efore concluding this section8 it should be pointed out that initiall>8 the appellant argued that the first8 third8 and fifth counts8 @hich allege murder8 and the second8 fourth8 si:th8 and seventh counts could not be joined in the same indictment in light of section ,?2 Cr. C.! @hich prohibits the inclusion of counts charging indictable offences other than murder @hen such a charge is brought8 unless the other counts arise out of Cthe same transactionC* &he Court is of the vie@ that he @as right to abandon this ground at the hearing* &he appellant is not charged @ith murder but @ith genocide8 crimes against humanit>8 and @ar crimes* &he murders are simpl> details included in the count to characteriDe the charge* &his rules out the application of section ,?2 Cr. C. n addition8 given the conte:t in @hich the acts underl>ing these offences @ere committed8 it @ould be inappropriate to reJuire that there be as man> counts as there are murder allegations8 @hen the> all arise out of Cthe same transactionC* THE ALLE*E" RRE*ULARTE% <2/= &he appellant criticiDes the trial judge for visiting the cit> of #utare @ithout the parties8 for using sources not adduced into evidence8 including a booB @ritten b> one of the e:pert @itnesses8 Alison Des !orges8 entitled *eave 4one to .ell the Story8 the @ebsite of the nternational Committee of the Red Cross8 and an e:hibit8 reproduced in a schedule to his judgment8 that @as different from the one adduced* Ae submits that the unla@ful consideration of this evidence b> the judge irremediabl> compromised the fairness of the trial* (i) The isit to !utare ,--./-.--00/1.-23 PA$E+ 60 <26= During the portion of the trial held in R@anda8 the judge spent a @eeBend in and around the cit> of #utare* After@ards8 the follo@ing discussion bet@een the judge and counsel tooB place+ (R* PERRA%+ @ill be short* He did hear8 naturall>I it @as not a hidden venture to go to #utare* #ut8 as far as the Defence is concerned8 @e are preoccupied8 letGs sa>8 that the ;udge @ent to @hat is8 practicall> speaBing8 a crime scene in this case8 because eventuall> @e @ill be hearing evidence of the topograph> of the place* #utare and its ph>sical appearance is a factual issue in this case* &AE CO"R&+ understand >our preoccupation8 but @e @ere not at the crime scene* @ant it to be ver> clear* &here are t@o major cities in R@anda8 Ligali and #utare* He @orB ver> hard during the @eeB8 and @e @ent to8 first of all8 LingGs Aouse8 @hich is a@a> from the Cit> of #utare* t is half an hour* @ill tell >ou e:actl> @hat @e did* After that8 @e @ent to the museum8 @hich is also outside #utare8 @e had lunch at the bis Aotel8 and then @e came bacB* &hat is @hat @e did8 e:actl>8 and it @as ver> clear for me8 as the leader of our group8 that there @as no intention to go on !irst8 %econd or 9 He didnGt see an>thing in #utare8 e:cept for LingGs Aouse8 the museum8 and the bis Aotel* And thinB @e sa@ the universit>* &hatGs it8 and it @as ver> clear that didnGt @ant to see an>thing concerning the facts that have been put or @ill be put in front of this Court* (R* PERRA%+ &hanB >ou* (% )EDO"^+ f ma> add for (r* Perras8 the LingGs Aouse8 believe8 is in N>anDa* &AE CO"R&+ t is half an hour a@a>* (% )EDO"^+ 'es* believe it is in N>anDa8 not even in #utare* &AE CO"R&+ &he museum8 thinB8 is about five minutes out of the cit>8 but itGs not in the cit>* (R* COAEN+ t ma> be8 'our Aonour8 that @e might seeB to visit that site as a group8 given that >ou have seen some but not all of the site* &hat ma> be the @a> to rectif> the situation* (% )EDO"^+ ;ust for the record8 the Cro@n doesnGt share the preoccupation of the Defense on that point* &AE CO"R&+ understand8 and @anted to tell >ou that @e @ere there* f @e go some@here else8 @e @ill also tell >ou* He @ant to see @ild animals8 and @e @ill go there one of these da>s8 if @e can do that* lGm not sure* still @orB during the @eeBends* ,--./-.--00/1.-23 PA$E+ 6, #ut @e @ere in #utare* (R* PERRA%+ @onGt be asBing if the bis had a five star restaurant* ... )aughter <23= &he discussion of the incident concluded on this humorous note8 and did not result in an> motion being filed b> the appellant* <20= Nevertheless8 no@8 in appeal8 he believes that the judge could not8 on his o@n initiative and a@a> from the appellant and from counsel8 visit the cit> of #utare8 the location @here man> of the incidents alleged against him tooB place* According to him8 section 1,- Cr. C. @as not respected and the appearance of justice has not been preserved8 since it is impossible for the defence to Bno@ @hether the judgeRs observations there might have influenced his conclusions and conseJuentl> to contest them* <2,= %ection 1,- Cr. C. enshrines the principle @hereb> the accused must be present in court during the @hole of the trial* &his principle is reiterated in subsection 2467 of the Act. %ection 1,6 Cr. C* prescribes the procedure applicable during a Cvie@C and enshrines the right of the accused to be present during such a visit* 1,6* 4/7 &he judge ma>8 @here it appears to be in the interests of justice8 at an> time after the jur> has been s@orn and before it gives its verdict8 direct the jur> to have a vie@ of an> place8 thing or person8 and shall give directions respecting the manner in @hich8 and the persons b> @hom8 the place8 thing or person shall be sho@n to the jur>8 and ma> for that purpose adjourn the trial* 467 Hhere a vie@ is ordered under subsection 4/78 the judge shall give an> directions that he considers necessar> for the purpose of preventing undue communication b> an> person @ith members of the jur>8 but failure to compl> @ith an> directions given under this subsection does not affect the validit> of the proceedings* 437 Hhere a vie@ is ordered under subsection 4/78 the accused and the judge shall attend* 1,6* 4/7 )orsJue la chose para_t Ttre dans lRintFrTt de la justice8 le juge peut8 S tout moment aprUs Jue le jur> a FtF assermentF et avant JuRil rende son verdict8 ordonner Jue le jur> visite tout lieu8 toute chose ou personne8 et il donne des instructions sur la maniUre dont ce lieu8 cette chose ou cette personne doivent Ttre montrFs8 et par Jui ils doivent lRTtre8 et il peut S cette fin ajourner le procUs* 467 )orsJuRune visite des lieu: est ordonnFe en vertu du paragraphe 4/78 le juge donne les instructions JuRil estime nFcessaires pour empTcher toute communication indue par JuelJue personne avec les membres du jur>I le dFfaut de se conformer au: instructions donnFes sous le rFgime du prFsent paragraphe nRatteint pas la validitF des procFdures* 437 )orsJuRune visite des lieu: est ordonnFe en vertu du ,--./-.--00/1.-23 PA$E+ 61 paragraphe 4/78 lRaccusF et le juge doivent Ttre prFsents* <21= n .anguay v. R.8 </25/= ;*Q* No* 1/ 4Q)7 at para* 608 this Court held that this provision applies to a trial before a judge sitting alone* n addition8 in R. v. >o)em"aum8 </2?-= ;*Q* No* 66 4Q)7 at para* /28 this Court found that the attendance of the accused @as mandator>* ndeed8 appellate courts generall> consider the failure to follo@ the foregoing procedure to be a jurisdictional error vitiating the entire process8 @hich cannot be saved b> the curative proviso 4R. v. >oucher8 </2?5= R*;*Q* /22- 4QC C*A*7I R. v. &redac8 </2?3= O*;* No* /02 4Q)7 4ON* C*A*7I R. v. +avin8 </2?3= #*C*;* No* 60,0 4Q)7 at para* 3 4#*C*C*A*77* <25= A Cvie@C in the absence of the accused8 ho@ever8 does not al@a>s constitute such an error* !or the vie@ to fall under sections 1,- and 1,6 Cr. C.8 it must taBe place @ith the objective of moving the trial for@ard8 as this Court pointed out in Meunier v. R*8 </21,= ;*Q* No* 61 4Q)7 at para* ?8 confirmed b> the %upreme Court of Canada 4</211= %*C*R* 3227* &his principle @as been endorsed b> the #ritish Columbia Court of Appeal in +avin at para* 3 and the Court of Appeal for Ontario in R. v. Sternig8 </25,= O*;* No* /006 4Q)7 at paras* 1/913* %ee also #ontaine v. R*8 6-/0 QCCA 0-, at para* 01* <2?= n short8 it is the fact that observations made in the absence of the accused are used for the purpose of adjudication that can be problematic* <22= )et us no@ consider the situation here* Did the judgeGs trip to #utare have the objective of moving the trial for@ard or8 if not8 did it have that conseJuenceZ </--= Of course8 it @ould undoubtedl> have been preferable if the judge had refrained from visiting this cit> @ithout speaBing to counsel about it beforehand* Nevertheless8 the record sho@s that the judge @as there purel> as a tourist and that his visit did not have the objective of moving the trial for@ard @ithin the meaning of the judgments cited above* n fact8 no@here in his judgment or in the schedule to it did the judge refer to his observations during this visit* Ae never assessed the credibilit> of an> of the @itnesses on the basis of these observations* (oreover8 the judge did not see the locations @here the appellant allegedl> committed the crimes8 namel>8 the Ngoma church8 the prefectural office8 or the roadblocBs8 for e:ample* </-/= n conclusion8 the record sho@s that the judgeGs visit @as essentiall> for the purposes of tourism and recreation8 as counsel for the appellant understood at the time8 and @ho did not see fit to file an> Bind of motion in this regard* &here is therefore no issue of jurisdictional error* (ii) The use of sources not adduced in eidence </-6= !irst8 the appellant faults the judge for rel>ing on the booB b> Alison Des !orges8 @hich had not been adduced into evidence* Ais counsel objects to such use because it contains four chapters on the events in #utare and mentions certain @itnesses @ho @ere heard at trial* ,--./-.--00/1.-23 PA$E+ 65 </-3= t is true that8 in paragraphs /,, et seJ* of the judgment8 the judge states that the portion concerning the histor> of R@anda @as inspired b> Des !orgesG @orB* &his limited use had been announced during the trial8 ho@ever+ <&RAN%)A&ON= *** No@8 the overall content8 Des !orges talBs about it8 thatGs @hat @ant*** @hat @ant to hear >ou testif> about* Obviousl>8 (r* $u>isha@a <another author= connects the accused to some ver> specific facts* donGt believe that @e can go that far8 and the evidence that hear is evidence that @ill be given specificall> b> the @itnesses against (r* (un>aneDa and @hat he does is evidence that tends to e:culpate him and @here the line should lead ever>one to the constituant elements of the offences8 but if there is a reasonable doubt8 he @ill be acJuitted8 thatGs clear8 and if there is not8 he @ill be convicted* An>@here (r* (un>aneDa is mentioned in (r* $u>isha@aGs treatise8 thinB @e set that aside* No@8 there are plent> of other elements in this histor>8 and (s* Des !orges8 Bno@8 @ho is a historian8 @ho sBetches an outline of the situation as a @hole* Even @hat happened in Ligali8 @hich does not concern us8 but @hich can have*** @hich can give the judge a historical perspective* %o8 this is @hat @ant to talB to >ou about8 and donGt Bno@ if @e have doDens of documents8 am not going to go through ever>thing about the histor>* W </-0= &he appellant does not contest this point* Nevertheless8 he argues that the judgment reveals that the use of this booB @as not limited to the histor> of the genocide* n support of this claim8 he refers to passages from the judgment concerning the speech made b> )Fon (ugesera in /2268 to the role of propagandist pla>ed b> Radio, .?l?vision li"re des mille collines8 and to the judgeGs conclusion that he committed offences in the cit> of #utare and <&RAN%)A&ON= Cthe neighbouring communesC8 @hile the evidence concerned solel> the offences committed in the commune of Ngoma8 in @hich the cit> of #utare is located* &he appellant adds that if his counsel had Bno@n that the judge intended to maBe such e:tensive use of Des !orgesG booB8 the> @ould have cross.e:amined her differentl>* </-,= As the respondent points out8 the appellant is unable to refer to a conclusion of fact concerning him in the judgment that could have been dra@n from Des !orgesG booB* &he e:amples of the borro@ings he provides 9 namel>8 (ugeseraGs speech and the propagandist role pla>ed b> certain media outlets 9 are part of the histor> of the genocide and have no connection @ith the appellant* !urthermore8 the speech is reproduced in a schedule to the judgment in Mugesera8 @hich @as argued before Denis ;* </-1= As for the conclusion that the appellant <&RAN%)A&ON= CBilled ten or so people in #utare and the surrounding communesC8 this sentence should not be taBen in isolation ,--./-.--00/1.-23 PA$E+ 6? from the rest of the judgment8 much less provide a basis for inferring that the judge relied on e:ternal evidence in coming to this conclusion* n realit>8 throughout his ver> detailed judgment8 the judge found that the appellant had participated in various acts committed in specific locations onl> in the commune of Ngoma* Perhaps8 for the saBe of clarit>8 it might have been preferable if he had @ritten that the appellant had committed murders <&RAN%)A&ON= Cin the cit> of #utare and in the neighbouring areas in the commune of NgomaC8 as the Cro@n suggests8 but this in no @a> proves that he made inappropriate use of the booB b> Des !orges* </-5= n addition8 the judgeRs comments reproduced above confirm that he @as perfectl> a@are of the limited use he could maBe of Des !orgesG booB* t must therefore be assumed that he acted accordingl>8 as must be done @ith regard to an> evidence that is declared inadmissible* 4R. v. 3idal! </225= ;*Q* No* 656, 4Q)7 at para* 05 4QC C*A*7* </-?= &he appellant also faults the judge for basing his finding that R@anda @as a signator> to the $enocide Convention on his consultation of the Red Cross @ebsite* </-2= n this respect8 it is the CourtRs vie@ that the judge did not err b> taBing cogniDance of the list of %tate parties to an international treat> to @hich Canada is also a part>* Contrar> to the appellantRs argument8 the %upreme Court did not decide in #inta8 at ?159?1?8 that a %tateRs signing of a convention has to be established through e:pert evidence* Rather8 that judgment refers solel> to the fact that e:pert evidence and commentar> are often necessar> in the interpretation of international la@8 man> principles of @hich remain uncodified* <//-= Certainl>8 it @ould have been better for the judge to consult the official source8 i*e*8 the Anited 4ations .reaty Collection8 , instead of the Red Cross site* Nevertheless8 @hat the judge did @as inconseJuential* (iii) "chedule to the #udgment <///= !inall>8 the appellant attaches a great deal of importance to the fact that the e:hibit in schedule 34E7 to the judgment differs from that adduced at trial8 @hich is e:hibit D.50* &his e:hibit concerns the possible perjur> of Cro@n @itness C./,8 @hich @ill be discussed later on* &he appellant uses this as a springboard to Juestion the judgeGs entire approach and its impact on his right to a fair trial* <//6= No one is able to sa> e:actl> ho@ the judge found himself in possession of the incorrect version of e:hibit D.50 and @h> he used this version instead of the one filed at trial* &he most plausible e:planation @as provided b> the respondent8 @ho believes that (tre Dimitri8 counsel for the appellant8 might have accidentall> submitted an earlier version of the document from her computer during the trial* <//3= Did this gaffe necessaril> vitiate the process to such a degree that the trial @as rendered unfairZ &he Court does not believe so* , &o consult the list of %tate signatories to the +eneva Convention8 see https+EEtreaties*un*orgEPagesEVie@Details*asp:Zsrc[&REA&'\mtdsgYno[V. /\chapter[0\lang[en\clang[Yen ,--./-.--00/1.-23 PA$E+ 62 <//0= #efore the judge8 @itness C./, stated that she Bne@ a certain Rose #uriDihiDa* n cross.e:amination8 the @itness @as confronted @ith her testimon> before the C&R in @hich she had stated that she did not Bno@ this @oman* %he justified this contradiction b> e:plaining that she had denied Bno@ing Rose #uriDihiDa at the reJuest of counsel for the prosecution at the C&R* &his @as the conte:t in @hich e:hibit D.50 @as filed* &his e:hibit consists in an admission b> the parties that this attorne>8 @hile preparing the testimon> of C./,8 never suggested that the @itness den> Bno@ing this @oman* !rom this8 the appellant finds that C./, perjured herself before the judge8 in addition to having lied before the C&R* <//,= As the respondent rightl> points out8 e:hibit D.50 concerns a strictl> collateral fact* t @as filed solel> to contradict C./,Gs statement that the C&R attorne> allegedl> asBed her to lie to the tribunal* <//1= n Manual of Criminal (vidence 4&oronto+ Cars@ell8 6-/-7 at 6?/96?68 ;ustice David Hatt @rites about the rule applicable to collateral facts+ &he collateral facts or collateral issues rule prohibits the introduction of evidence for the sole purpose of contradicting a @itnessG testimon> concerning a collateral fact* W n general8 matters that relate @holl> and e)clusively to the credibilit> of a non.accused @itness are collateral8 hence be>ond the reach of contradictor> evidence* A collateral fact is one that is not connected @ith the issue in the case* t is one that the part> @ould not be entitled to prove as part of its case8 because it lacBs relevance or connection to it* A collateral fact8 in other @ords8 is one that is neither i materialI nor ii* relevant to a material fact f the ans@er of a @itness that a part> seeBs to contradict8 is a matter that the opponent could prove in evidence as part of its case8 inde%endent the contradiction8 the matter is not collateral* Contradictor> evidence ma> be elicited* f the ans@er of a @itness that a part> seeBs to contradict8 is a matter that the opponent @ould not be entitled to prove in evidence8 inde%endent the contradiction8 the matter is collateral* Contradictor> proof is not permitted* &he several e:ceptions to collateral facts rule include and permit+ i* proof of bias8 interest or corruption denied b> the @itnessI ii* proof of prior inconsistent statement not admitted b> the @itnessI iii* proof of prior conviction not admitted b> the @itnessI iv* disproof of a denial of a reputation for l>ing or untruthfulnessI and v* disproof of a denial of a ph>sical or mental defect relating to the capacit> of liBelihood of the @itness telling the truth* ,--./-.--00/1.-23 PA$E+ 3- <//5= n this case8 @e ma> describe this evidence as relating to a collateral fact8 in that it concerns the credibilit> of @itness C./, regarding her e:planation of a contradiction @ith a prior statement before a different court* <//?= C./,Gs credibilit> @as thus undermined8 and the reason for her lie @as of little importance* All things considered8 e:hibit D.50 might not have been adduced 4as a matter of fact8 it should not have been7 and nothing @ould have changed @ith regard to the issues to be decided b> the judge* n the circumstances8 the judgeGs inclusion of the @rong version of e:hibit D.50 in the schedule to his judgment caused no prejudice to the appellant8 @ho successfull> undermined the credibilit> of @itness C./, during her cross.e:amination* <//2= !or these reasons8 the Court is of the vie@ that all of the grounds alleging irregularities raised b> the appellant should be rejected* CON%TTUANT ELEMENT% OF THE OFFENCE% </6-= &he appellant argues that the judge convicted him on the seventh count8 @ar crimes b> pillage8 @ithout considering the reJuirements of this offence8 namel>8 pillaging Ca to@n or a placeC* n his vie@8 @hatever ma> have been the elements of a @ar crime b> pillage in /2208 pillage could be punished after ;ul> of /22? onl> according to the rules of international la@ as the> e:isted at the time the indictment @as filed8 namel>8 those of the Rome Statute8 @hich defines a @ar crime in the conte:t of a non. international armed conflict as a specific list of acts8 including C<p=illaging a to@n or place8 even @hen taBen b> assaultC* n this case8 no evidence @as tendered of pillage of a to@n or place8 but onl> of a fe@ businesses and a home8 and the judge therefore convicted him of an offence that does not e:ist* </6/= (oreover8 during the hearing8 in a manner that @as at times rather vague8 counsel for the appellants faulted the trial judge for his outline of the elements of the other crimes8 particularl> his definition of @hat constitutes murder8 arguing that he selected a Canadian and not an international definition of this underl>ing offence* </66= n the circumstances8 the Court believes that it is useful to outline the constituant elements of the offences @ith @hich the appellant is charged* </63= As @e have seen8 the Act confers on Canadian courts universal jurisdiction over genocide8 crimes against humanit>8 and @ar crimes8 and refers to international la@ for the elements thereof 4subsection 1437 of the Act7* </60= &herefore8 in interpreting and defining these offences8 as @ell as their underl>ing offences or acts8 a Canadian court ma> taBe into account international la@8 including decisions of the international courts8 as noted b> the %upreme Court in Mugesera and in commentar> 4)afontaine at //? and /6/9/618 Robert ;* Currie \ on %tancu8 CR. v. Munyaneza+ Pondering CanadaGs !irst Core Crimes ConvictionC8 46-/-7 /- IntBl. Crim. *. R. ?62I (adeleine ;* %ch@artD8 CProsecuting Crimes against Aumanit> in Canada+ Hhat (ust be ProvedC8 46--67 01 Crim. *.C. 0-7* </6,= n realit>8 doing other@ise @ould liBel> create a dichotom> potentiall> leading to impunit> in Canada for acts committed abroad that are crimes under international la@ ,--./-.--00/1.-23 PA$E+ 3/ but not under Canadian la@* ParliamentGs intent @as to prevent such dichotomies8 as it abolished the reJuirement that had e:isted before the Act in subsections 543*/7 to 43*557 Cr. C* to demonstrate8 in the prosecution for a crime against humanit> or @ar crime8 that the underl>ing offences @ere offences according to both international la@ and Canadian la@* </61= n such cases8 ParliamentRs intent to refer to international la@ in such matters is also demonstrated b> the use of the concept Cintentional BillingC in subsections 1467 and /,4/7 of the Act for the purposes of sentence and eligibilit> for parole* &here is no concept of Cintentional BillingC in the Criminal Code! although it goes @ithout sa>ing that in Canadian la@8 murder reJuires proof of intent* &he use of this notion distinguishes the Act from the Criminal Code in regard to sentencing8 since an Cintentional BillingC committed in the circumstances described in the provision reJuires the offender to serve at least t@ent>.five >ears of the sentence8 @hile under the Criminal Code! such a fate is reserved onl> for those convicted of first degree murder* </65= Admittedl>8 a superficial reading of subsection 6467 of the Act could lead to the impression that the definition of the underl>ing offences must be that found in the Criminal Code. %uch8 ho@ever8 is not the case* Admittedl>8 Parliament provides a list of prohibited underl>ing acts onl> for crimes against humanit>8 but it is recogniDed that genocide and @ar crimes are also composed of underl>ing acts that are similar in nature* !or e:ample8 murder ma> constitute an offence underl>ing all three crimes8 but it is e:plicitl> mentioned onl> under crimes against humanit>* &herefore8 if murder is alleged as an underl>ing offence in a charge of genocide or @ar crimes8 it must be defined according to international la@8 since the Act does not do so directl>* n a case involving crimes against humanit>8 it @ould be illogical to assign it a different definition8 one corresponding to Canadian criminal la@8 under the prete:t that it is one of the underl>ing offences enumerated in the Act. A single underl>ing offence might therefore have t@o meanings depending on the crime alleged8 @hich can potentiall> result in a ne@ dichotom>8 @hereas coherence is @hat must be sought in the interpretation of the Act* </6?= &o put it simpl>8 save @here it refers specificall> to Canadian la@8 as in subsection 2467 discussed above8 the Act must be interpreted in a manner consistent @ith developments in international la@8 and to this end8 the international definitions of crimes and their underl>ing offences must be applied* </62= &he Rome Statute is a crucial tool in this respect* n /22?8 this instrument codified some material and intentional elements of genocide upon @hich there @as a concenssus8 crimes against humanit> and @ar crimes8 and thereafter jurisdiction over all of these crimes @as attributed to the nternational Criminal Court 4CC7* n addition8 as subsection 1407 of the Act indicates8 the Rome Statute is not an e:haustive codification of international la@ and does not rule out the e:istence of similar crimes under e:isting or developing rules of international la@* C-,:e. a;a,n./ 2u:an,/y: e<e:en/. 03 /2e 033ence ,--./-.--00/1.-23 PA$E+ 36 </3-= "nliBe the provisions defining genocide and @ar crimes8 subsection 1437 of the Act provides a precise definition of the underl>ing acts that ma> become crimes against humanit>* &he> are murder8 e:termination8 enslavement8 deportation8 imprisonment8 torture8 se:ual violence8 and persecution* &he list is not e:haustive8 since an> other act or omission that contravenes customar> international la@ or conventional international la@ or b> virtue of its being criminal according to the general principles of la@ recogniDed b> the communit> of nations ma> constitute a proscribed underl>ing act* (oreover8 genocide does not reJuire the e:istence of an armed conflict and thus ma> be committed during peace time* </3/= )iBe all crimes8 crimes against humanit> are composed of t@o elements+ a criminal act and a guilt> mind 4Mugesera at para* /657* </36= &he criminal act includes three material elements+ 4i7 one of the enumerated proscribed acts is committedI 4ii7 it is committed as part of a @idespread or s>stematic attacBI and 4iii7 the attacB is directed against an> civilian population or an> identifiable group 4Mugesera at para* /6?7* </33= A guilt> mind consists of t@o elements+ 4i7 the mental element reJuired for the underl>ing offence8 and 4ii7 evidence that the accused @as cogniDant of the ne:us bet@een his act and the attacB directed against a civilian population or identifiable group of persons 4Mugesera at para* /507* </30= t is appropriate here to consider each of these elements solel> @ith regard to the offences underl>ing the t@o crimes against humanit> for @hich the appellant has been convicted8 i.e*8 murder and se:ual violence* (a) The material elements or actus reus of the proscri$ed acts = Mu-1e- </3,= Rel>ing on Mugesera and &rosecutor v. >rdanin 4/ %eptember 6--078 Case No* &.22.31.& 4C&'8 &rial Chamber7 the trial judge found that under international la@8 it @as necessar> to demonstrate 4a7 that the person @as deceased8 4b7 that the accused caused the death through an act or omission or contributed significantl> to the death8 and 4c7 that the accused had the intent to cause the victimGs death or to inflict serious injur> that he Bne@ @as liBel> to cause death* </31= (urder under international la@ thus differs from murder under Canadian la@ in one respect8 since the latter reJuires a lo@er standard to establish a causal connection bet@een the accusedGs conduct and the death* As Professor )afontaine points out at page /65+ n Canadian la@8 all that is reJuired is that the conduct be a Ccontributing cause of death8 outside the de minimis rangeN or8 as rephrased in a later judgment b> the majorit> of the %upreme Court8 a Msignificant contributing causeN* &he %upreme Court e:plicitl> rejected the terminolog> of Msubstantial causeN to describe the reJuisite degree of causation for all homicide offenses and indicated that this involved a Mhigher degree of legal causationN* ,--./-.--00/1.-23 PA$E+ 33 </35= &o remain consistent @ith the applicable la@ 9 i*e*8 international la@ 9 the higher standard of causation must be met* t follo@s that8 @ith respect to causation8 the prosecution must establish be>ond an> doubt that the act committed @as a Msubstantial cause of deathN 4Ccause su"stantielle de la mortN7 and not merel> a Csignificant contributing cause of deathC 4Ccause ayant contri"u? de faDon a%%r?cia"le E la mortC7* = %e4ua< 5,0<ence > -a?e </3?= &he acts of se:ual violence that the trial judge found to have occurred 4paragraph /6/ of his judgment7 are the same as those he described in the section of the judgment on genocide+ <&RAN%)A&ON= <2,= nternational jurisprudence8 @hich does not differ from Canadian jurisprudence in this regard8 defines se:ual violence as Man> act of a se:ual nature @hich is committed on a person under circumstances @hich are coerciveN <21= &he follo@ing acts8 among others8 are considered se:ual violence+ 4a7 forcing a person to undress in publicI 4b7 se:ual penetrationI 4c7 rapeI 4d7 se:ual molestation* <Citations omitted= </32= As the judge emphasiDed8 se:ual violence has been defined b> the ad hoc tribunals as Can> act of a se:ual nature @hich is committed on a person under circumstances @hich are coerciveN 4A-ayesu at para* ,2?78 @hich are defined as follo@s+ 1?? W coercive circumstances need not be evidenced b> a sho@ of ph>sical force* &hreats8 intimidation8 e:tortion and other forms of duress @hich pre> on fear or desperation ma> constitute coercion8 and coercion ma> be inherent in certain circumstances8 such as armed conflict or the militar> presence of nteraham@e among refugee &utsi @omen at the bureau communal* W </0-= )ater8 in &rosecutor v. $ragol'u" Funarac 4/6 ;une 6--67 Case No* &.21. 63\63E/.A 4C&'8 &rial Chamber78 the victimRs lacB of consent @as found to be the determining element* t follo@s that8 @hile the use of force or the threat of force ma> be used to establish lacB of consent8 it is not an element of rape8 @hereas lacB of consent is* </0/= nternational jurisprudence8 and the judgment in ABa>esu in particular8 recogniDes that acts of se:ual violence are more broadl> defined than rape+ 1??* W &he &ribunal considers se:ual violence8 @hich includes rape8 as an> act of a se:ual nature @hich is committed on a person under circumstances @hich are coercive* %e:ual violence8 far from being limited to ph>sical invasion of the human bod>8 ma> include acts @hich do not involve penetration or even ph>sical contact* W ,--./-.--00/1.-23 PA$E+ 30 </06= As for the material elements of rape8 one of the components of se:ual violence8 international jurisprudence has defined them as penetration8 ho@ever slight8 of the vagina and anus b> the penis or an> other object or of the mouth b> the penis 4&rosecutor v. Anto #uirundziia 4/- December /22?7 Case No* &.2,./5E/.& 4&rial Chamber7 at para* /?,I Funarac at para* /657* </03= &hese principles @ere reiterated in the first CC decisions in such matters 4&rosecutor v. +ermain Fatanga and Mathieur 4gud'olo Chui 43- %eptember 6--?7 CC.-/E-0.-/E-58 Decision on the confirmation of charges8 at para* 00-I &rosecutor v* Jean,&ierre >em"a +om"o 4/, ;une 6--27 CC.-/E-,.-/E-?8 Decision on the confirmation of charges8 at para* /167* </00= &his constitutes the first element of the actus reus8 namel>8 the content of the proscribed acts alleged here* ($) Attac% directed against a population or group </0,= &he second material element is proof be>ond an> reasonable doubt of an attacB against a civilian population or identifiable group of people* </01= !or this to be established8 consideration must be given to a number of factors identified in international jurisprudence including8 inter alia8 the ethnic and political characteristics of a group* n Mugesera8 the %upreme Court states+ /1/ &he mere e:istence of a s>stematic attacB is not sufficient8 ho@ever8 to establish a crime against humanit>* &he attacB must also be directed against a civilian population* &his means that the civilian population must be Mthe primar> object of the attacBN8 and not merel> a collateral victim of it+ Funarac8 &rial Chamber8 at para* 06/* &he term MpopulationN suggests that the attacB is directed against a relativel> large group of people @ho share distinctive features @hich identif> them as targets of the attacB+ (ettrau:8 at p* 6,,* W /13 &he &utsi and moderate Autu8 t@o groups that @ere ethnicall> and politicall> identifiable8 @ere a civilian population as this term is understood in customar> international la@* (r* DuJuetteRs findings of fact leave no doubt that the ongoing s>stematic attacB @as directed against them* !or these reasons8 @e agree that at the time of (r* (ugeseraRs speech8 a s>stematic attacB directed against a civilian population @as taBing place in R@anda* </05= n this case8 it is established8 indeed even admitted8 that the &utsis @ere an identifiable group of persons targeted b> s>stematic attacBs* (c) The context in which acts were committed </0?= &he third element of the actus reus of a crime against humanit> is proof be>ond an> reasonable doubt that the alleged acts @ere committed as part of a @idespread or s>stematic attacB* ,--./-.--00/1.-23 PA$E+ 3, </02= &he Cro@n must therefore sho@ that the murders and se:ual violence @ere part of a @idespread or s>stematic attacB against the &utsis and that there @as a linB bet@een them and this attacB8 as noted b> the %upreme Court in Mugesera+ /10 As @e have seen8 the e:istence of a @idespread or s>stematic attacB helps to ensure that purel> personal crimes do not fall @ithin the scope of provisions regarding crimes against humanit>* Ao@ever8 because personal crimes are committed in all places and at all times8 the mere e:istence of a @idespread or s>stematic attacB @ill not be sufficient to e:clude them* &o ensure their e:clusion8 a linB must be demonstrated bet@een the act and the attacB @hich compels international scrutin>* !or this reason8 @e must e:plore @hat it means for an act to occur Mas part ofN a @idespread or s>stematic attacB W /1, &he reJuirement for a linB bet@een the act and the attacB ma> be e:pressed in man> @a>s* !or instance8 Min the conte:t ofN or Mforming a part ofN are common @ordings* &hese phrases reJuire that the accusedRs acts Mbe objectivel> part of the attacB in that8 b> their nature or conseJuences8 the> are liable to have the effect of furthering the attacBN+ (ettrau:8 at p* 6,/* n .adic8 the Appeals Chamber of the C&' found that the acts of the accused must Mcomprise part of a patternN of @idespread or s>stematic abuse of civilian populations or must objectivel> further the attacB 4para* 60?7* W /15 *** n essence8 the act must further the attacB or clearl> fit the pattern of the attacB8 but it need not comprise an essential or officiall> sanctioned part of it* &hus8 in Funarac8 @here the three accused tooB advantage of a @idespread and s>stematic attacB to rape and se:uall> torture (uslim @omen and girls8 the ne:us reJuirement @as made out+ &rial Chamber8 at para* ,26* &he accused Bne@ of the attacB8 their acts furthered the attacB directed against the (uslim population of !oca and the> contributed to a pattern of attacB against that population* <Emphasis added*= </,-= &his Juestion remains an objective one+ @as the act a part of the pattern of abuse or did it further the attacB8 @hether or not personal motives e:isted 4Mugesera at para* /117* (d) The mental element or mens rea of the underlying offence = Mu-1e- </,/= Article 3- of the Rome Statute describes the mental element of an act as follo@s+ 6* !or the purposes of this article8 a person has intent @here+ 4a7 n relation to conduct8 that person means to engage in the conductI 4b7 n relation to a conseJuence8 that person 6* l > a intention au sens du prFsent article lorsJue + a7 Relativement S un comportement8 une personne entend adopter ce comportement I b7 Relativement S une consFJuence8 une personne ,--./-.--00/1.-23 PA$E+ 31 means to cause that conseJuence or is a@are that it @ill occur in the ordinar> course of events* 3* !or the purposes of this article8 CBno@ledgeC means a@areness that a circumstance e:ists or a conseJuence @ill occur in the ordinar> course of events* CLno@C and CBno@ingl>C shall be construed accordingl>* entend causer cette consFJuence ou est consciente Jue celle.ci adviendra dans le cours normal des FvFnements* 3* l > a connaissance8 au sens du prFsent article8 lorsJuGune personne est consciente JuGune circonstance e:iste ou JuGune consFJuence adviendra dans le cours normal des FvFnements* O Conna_tre P et O en connaissance de cause P sGinterprUtent en consFJuence* </,6= %ince the Rome Statute is a codification of the customar> international la@ governing criminal la@ matters at the time of its adoption8 i*e*8 in ;ul> of /22?8 it @ould not be appropriate to appl> this criterion here* </,3= Rather8 the standard that e:isted at the time of the events in /220 is @hat must be applied* &he mens rea of murder according to international la@ at the time @as similar to that under Canadian )a@ in paragraph 6624a7 of the Criminal Code+ 662* Culpable homicide is murder 4a7 @here the person @ho causes the death of a human being 4i7 means to cause his death8 or 4ii7 means to cause him bodil> harm that he Bno@s is liBel> to cause his death8 and is recBless @hether death ensues or notI 662* )Rhomicide coupable est un meurtre dans lRun ou lRautre des cas suivants + a7 la personne Jui cause la mort dRun Ttre humain + 4i7 ou bien a lRintention de causer sa mort8 4ii7 ou bien a lRintention de lui causer des lFsions corporelles JuRelle sait Ttre de nature S causer sa mort8 et JuRil lui est indiffFrent Jue la mort sRensuive ou nonI = %e4ua< 5,0<ence </,0= n customar> international la@8 the mens rea for se:ual violence and even for rape is similar to that for se:ual assault under Canadian la@8 particularl> @ith respect to Bno@ledge of the victimRs lacB of consent* </,,= n Funarac at paragraph /658 the Appeals Chamber found that C<t=he mens rea is the intention to effect this se:ual penetration8 and the Bno@ledge that it occurs @ithout the consent of the victimC* </,1= n &rosecutor v. Semanza 4/, (a> 6--37 Case No* C&R.25.6-.& 4C&R8 &rial Chamber78 the C&R8 basing itself on the decisions in A-ayesu and Funarac8 found that ,--./-.--00/1.-23 PA$E+ 35 the mental element of rape as an underl>ing offence to crimes against humanit> Cis the intention to effect the prohibited se:ual penetration @ith the Bno@ledge that it occurs @ithout the consent of the victimC 4para* 3017* </,5= n 6--18 the judgment in &rosecutor v. +acum"itsi 45 ;ul> 6--17 Case No* C&R. -/.10.A 4C&R8 Appeals Chamber78 follo@ed the guidance in Funarac and stated+ /,5 As to the accusedRs Bno@ledge of the absence of consent of the victim8 @hich as Funarac establishes is also an element of the offence of rape8 similar reasoning applies* Lno@ledge of nonconsent ma> be proven8 for instance8 if the Prosecution establishes be>ond reasonable doubt that the accused @as a@are8 or had reason to be a@are8 of the coercive circumstances that undermined the possibilit> of genuine consent* <Emphasis added*= (e) The specific criminal intent of crimes against humanity </,?= n Mugesera8 the %upreme Court stated that evidence of discriminator> intent is not reJuired for all crimes against humanit>8 but that it must be sho@n that the accused not onl> had the intent to commit the underl>ing offence but also that he @as a@are of the attacB and Bne@ that his act @as part of it+ /53 &he Juestion of @hether a superadded mental element e:ists for crimes against humanit> @as a point of significant contention in #inta* Cor> ;*8 for the majorit>8 found that the accused must have an a@areness of the facts or circumstances @hich @ould bring the act @ithin the definition of a crime against humanit> 4p* ?/27* )a !orest ;* penned dissenting reasons suggesting that establishing the mental element for the underl>ing act @as sufficient in itself and thus no additional element of moral blame@orthiness @as reJuired 4p* 5,07* At the time8 there @as little international jurisprudence on the Juestion* t is no@ @ell settled that in addition to the mens rea for the underl>ing act8 the accused must have Bno@ledge of the attacB and must Bno@ that his or her acts comprise part of it or taBe the risB that his or her acts @ill comprise part of it+ see8 e*g*8 .adic8 Appeals Chamber8 at para* 60?I Ruggiu8 at para* 6-I Funarac8 &rial Chamber8 at para* 030I >las-ic8 at para* 6,/* <Emphasis added*= </,2= &his additional mental element is defined in Mugesera as follo@s+ /50 t is important to stress that the person committing the act need onl> be cogniDant of the linB bet@een his or her act and the attacB* &he person need not intend that the act be directed against the targeted population8 and motive is irrelevant once Bno@ledge of the attacB has been established together @ith Bno@ledge that the act forms a part of the attacB or @ith recBlessness in this regard+ Funarac8 Appeals at para* /-3* Even if the personRs motive is purel> personal8 the act ma> be a crime against humanit> if the relevant Bno@ledge is made out* /5, Lno@ledge ma> be factuall> implied from the circumstances+ .adic8 &rial Chamber8 at para* 1,5* n assessing @hether an accused possessed the reJuisite Bno@ledge8 the court ma> consider the accusedRs position in a militar> ,--./-.--00/1.-23 PA$E+ 3? or other government hierarch>8 public Bno@ledge about the e:istence of the attacB8 the scale of the violence and the general historical and political environment in @hich the acts occurred+ see8 e*g*8 >las-ic8 at para* 6,2* &he accused need not Bno@ the details of the attacB+ Funarac8 Appeals at para* /-6* <Emphasis added*= </1-= n conclusion8 in the assessment of the mental element of crimes against humanit>8 the conte:t in @hich the accused acted must be considered* Hhile the accused need not have the specific intent to attacB members of the targeted group8 his consciousness or Bno@ledge of the linB bet@een his act and the @idespread or s>stematic attacB must be determined* ` ` ` ` ` </1/= n short8 to paraphrase para* //2 of Mugesera8 under the Act and the principles of international la@8 a proscribed act rises to the level of a crime against humanit> @hen four elements are made out+ /* An enumerated proscribed act @as committed 4this involves sho@ing that the accused committed the underl>ing criminal act and had the reJuisite guilt> state of mind for the underl>ing act7I 6* &he act @as committed as part of a @idespread or s>stematic attacBI 3* &he attacB @as directed against a civilian population or an identifiable group of personsI and 0* &he perpetrator of the proscribed act Bne@ of the attacB and @as a@are that or recBless as to @hether there @as a linB bet@een his act and the attacB8 even if he @as not a@are of the details* *en0c,1e: e<e:en/. 03 /2e 033ence </16= .he +enocide Convention is the codification of customar> international la@ 4A-ayesu at para* 02,8 $uFnaVl (ettrau: at /22 et seJ*7* t defines the crime as follo@s+ Article / &he Contracting Parties confirm that genocide8 @hether committed in time of peace or in time of @ar8 is a crime under international la@ @hich the> undertaBe to prevent and to punish* Article 6 n the present Convention8 genocide means an> of the follo@ing acts committed @ith intent to destro>8 in @hole or in part8 a national8 ethnical8 racial Article %remier )es Parties contractantes confirment Jue le gFnocide8 JuGil soit commis en temps de pai: ou en temps de guerre8 est un crime du droit des gens8 JuGelles sGengagent S prFvenir et S punir* Article II Dans la prFsente Convention8 le gFnocide sGentend de lGun JuelconJue des actes ci.aprUs8 commis dans lGintention de dFtruire8 ou tout ou en partie8 ,--./-.--00/1.-23 PA$E+ 32 or religious group8 as such+ 4a7 Lilling members of the groupI 4b7 Causing serious bodil> or mental harm to members of the groupI 4c7 Deliberatel> inflicting on the group conditions of life calculated to bring about its ph>sical destruction in @hole or in partI 4d7 mposing measures intended to prevent births @ithin the groupI 4e7 !orcibl> transferring children of the group to another group* Article 3 &he follo@ing acts shall be punishable+ 4a7 $enocideI 4b7 Conspirac> to commit genocideI 4c7 Direct and public incitement to commit genocideI 4d7 Attempt to commit genocideI 4e7 Complicit> in genocide* <Emphasis added*= un groupe national8 ethniJue8 racial ou religieu:8 comme tel + a7 (eurtre de membres du groupeI b7 Atteinte grave S lGintFgritF ph>siJue ou mentale de membres du groupeI c7 %oumission intentionnelle du groupe S des conditions dGe:istence devant entra_ner sa destruction ph>siJue totale ou partielleI d7 (esures visant S entraver les naissances au sein du groupeI e7 &ransfert forcF dGenfants du groupe S un autre groupe* Article III %eront punis les actes suivants + a7 )e gFnocideI b7 )Gentente en vue de commettre le gFnocideI c7 )Gincitation directe et publiJue S commettre le gFnocideI d7 )a tentative de gFnocideI e7 )a complicitF dans le gFnocide* </13= &he +enocide Convention sets out t@o liabilit> regimes8 one for the %tates parties8 @hich is similar to a civil regime8 and the other for individuals8 @hich is a criminal regime+ Article 0 Persons committing genocide or an> of the other acts enumerated in article shall be punished8 @hether the> are constitutionall> responsible Article V )es personnes a>ant commis le gFnocide ou lGun JuelconJue des autres actes FnumFrFs S lGarticle seront punies8 JuGelles soient des ,--./-.--00/1.-23 PA$E+ 0- rulers8 public officials or private individuals* gouvernants8 des fonctionnaires ou des particuliers* </10= &he Act restates the element of intent to destro> an identifiable group8 then refers to its o@n subsection 1437 as @ell as to both customar> and conventional international la@+ MgenocideN means an act or omission committed @ith intent to destro>8 in @hole or in part8 an identifiable group of persons8 as such8 that at the time and in the place of its commission8 constitutes genocide according to customar> international la@ or conventional international la@ or b> virtue of its being criminal according to the general principles of la@ recogniDed b> the communit> of nations8 @hether or not it constitutes a contravention of the la@ in force at the time and in the place of its commission* O gFnocide P !ait Q acte ou omission Q commis dans lRintention de dFtruire8 en tout ou en partie8 un groupe identifiable de personnes et constituant8 au moment et au lieu de la perpFtration8 un gFnocide selon le droit international coutumier ou le droit international conventionnel8 ou en raison de son caractUre criminel dRaprUs les principes gFnFrau: de droit reconnus par lRensemble des nations8 JuRil constitue ou non une transgression du droit en vigueur S ce moment et dans ce lieu* </1,= &o identif> the underl>ing offences and their elements8 therefore8 @e must turn to conventional international la@8 essentiall> the +enocide Convention and international jurisprudence 4Mugesera at paras* ?69?37* </11= n this appeal8 the t@o offences alleged are murder and serious harm to the ph>sical or mental integrit> of the victims* (a) The underlying offences = Mu-1e- </15= &he actus reus and the mens rea of murder as an underl>ing offence of genocide do not differ from these elements as described above regarding crimes against humanit>* t should be added that the number of murders is not a determinative factor* = %e-,0u. 2a-: /0 ?2y.,ca< 0- :en/a< ,n/e;-,/y </1?= &he C&R has on numerous occasions considered the interpretation of serious ph>sical or mental harm to a member of an identifiable group 4A-ayesuI SemanzaI &rosecutor v. Fayishema and Ruzindana 46/ (a> /22278 Case No* C&R.2,./.& 4&rial Chamber 7I Funarac 4Appeals Chamber7* n those cases8 it concluded that such harm could be constituted b> ph>sical or mental torture8 inhumane or degrading treatment8 ,--./-.--00/1.-23 PA$E+ 0/ rape8 or se:ual violence* &he jurisprudence adds that the harm need not cause permanent and irremediable damage* </12= &o demonstrate that the proscribed act has been committed8 the prosecution must prove that one or more victims have suffered ph>sical or mental harm* As for the mens rea! the accused must have had the intent to cause this harm* </5-= n this case8 the Cro@n alleged the commission of rapes* &he actus reus and the mens rea of rape as an underl>ing offence to genocide do not differ from these elements as described above in connection @ith crimes against humanit>* ($) The additional elements specific to genocide </5/= &he specific elements of the offence of genocide are both material and mental* &he prosecution must establish first8 that the alleged acts @ere committed against an indentifiable group and second8 the intent to destro>8 in @hole or in part8 this group 4$abrielle Dion8 (aude (atin.Chantal \ (arlene 'ah>a Aaage8 M)a double attribution de la responsabilitF en matiUre de genocideN 46--5 6-*6 R*Q*D** /537* </56= An identifiable group ma> be characteriDed b> national8 ethnic8 racial8 or religious criteria* &he identification of the protected or identifiable group must be assessed on a case.b>.case basis b> reference to the objective particulars of a given social or historical conte:t8 and b> the subjective perceptions of the perpetrators 4Semanza at para* 3/57* </53= &he international jurisprudence has found on numerous occasions that the &utsi population constitutes an identifiable ethnic group @ithin the meaning of the definition of genocide 44iyitege-a at para* 0/2I A-ayesu at para* 5-67* %imilarl>8 in Mugesera at paras* // et seJ*8 the %upreme Court used the conte:tual approach to recogniDe the ethnic character of the &utsi population* </50= As for the mental element of genocide8 before anal>Ding the international jurisprudence8 it should be pointed out that the English and !rench versions of the Act differ* &he former includes the e:pression Mas suchN8 @hile the second does not use the eJuivalent Mcomme telN8 @hich is in contrast found in all of the genocide treaties+ MgenocideN means an act or omission committed @ith intent to destro>8 in @hole or in part8 an identifiable group of persons8 as such8 that at the time and in the place of its commission8 constitutes genocide according to customar> international la@ or conventional international la@ or b> virtue of its being criminal according to the general principles of la@ recogniDed b> the communit> of nations8 O gFnocide P !ait Q acte ou omission Q commis dans lRintention de dFtruire8 en tout ou en partie8 un groupe identifiable de personnes et constituant8 au moment et au lieu de la perpFtration8 un gFnocide selon le droit international coutumier ou le droit international conventionnel8 ou en raison de son caractUre criminel dRaprUs les principes gFnFrau: de droit reconnus par lRensemble des ,--./-.--00/1.-23 PA$E+ 06 @hether or not it constitutes a contravention of the la@ in force at the time and in the place of its commission* <Emphasis added*= nations8 JuRil constitue ou non une transgression du droit en vigueur S ce moment et dans ce lieu* </5,= n the vie@ of the Court8 ParliamentRs intent is to reflect international la@8 @hich places a great deal of emphasis on the descriptive term Mas suchN or the !rench Mcomme telN8 @hich is found in international treaties 4)afontaine at /169/137* t follo@s that the English version should prevail here8 and indeed8 the trial judge recogniDed that this e:pression @as an integral part of the mens rea of genocide* </51= &hus8 the act must have been committed @ith the specific intent to destro>8 in @hole or in part8 an identifiable group of people Mas suchN or Mper seN* n Aya-esu8 the C&R defined this specific intent as follo@s+ 02?* $enocide is distinct from other crimes inasmuch as it embodies a special intent or dolus s%ecialis* %pecial intent of a crime is the specific intention8 reJuired as a constitutive element of the crime8 @hich demands that the perpetrator clearl> seeBs to produce the act charged* &hus8 the special intent in the crime of genocide lies in Cthe intent to destro>8 in @hole or in part8 a national8 ethnical8 racial or religious group8 as such*C </55= t follo@s that the proscribed act must have been committed against a person precisel> because that person @as part of the identifiable group8 thus conflating the individual @ith that group 4A-ayesu at para* ,6/I &rosecutor v. Glizer 4iyitege-a 4/1 (a> 6--37 Case No* C&R.21./0.& 4C&R8 &rial Chamber7 at para 0/-7* </5?= #ecause specific intent is reJuired8 recBlessness and negligence cannot be considered part of the mental element of the crime of genocide 4Antonio Cassese at /-3I Robert ;* Currie at /-27* </52= !inall>8 @hile a genocidal polic> or specific plan to carr> it out ma> constitute a significant fact8 it need not be proved* (c) The differentiation $etween genocide and crimes against humanity </?-= %everal underl>ing offences can be identified as either crimes against humanit> or as genocide* Professor Cassese goes so far as to sa> that the t@o categories of crime overlap 4su%ra at /-17* </?/= Although it @as initiall> found that genocide could constitute part of a crime against humanit>8 it is no@ clearl> distinct unto itself* Objective and subjective factors differentiate the t@o8 although the> are similar8 to sa> the least* </?6= !irst8 both t>pes of crime ma> be based on the same proscribed act8 but crimes against humanit> are broader in scope* !or e:ample8 crimes against humanit> include torture or arbitrar> imprisonment8 but that is not necessaril> the case @ith genocide* </?3= %econd8 the mental elements are not the same* n the case of crimes against humanit>8 in addition to the elements of the underl>ing offence8 Bno@ledge of the ,--./-.--00/1.-23 PA$E+ 03 e:istence of a @idespread or s>stematic attacB and the linB bet@een the underl>ing offence and the attacB must be proved* n the case of genocide8 apart from the elements of the underl>ing offence8 it is also necessar> to prove the intent to destro>8 in @hole or in part8 an identifiable group of people* )a- c-,:e. = e<e:en/. 03 /2e 033ence </?0= ;ust as @ith crimes against humanit>8 there are fe@ observable differences bet@een the definition of @ar crimes in subsection 1437 of the Act and that in the former provision of the Criminal Code8 save for the nature of the conflict: Act+ M@ar crimeN means an act or omission committed during an armed conflict that8 at the time and in the place of its commission8 constitutes a @ar crime according to customar> international la@ or conventional international la@ applicable to armed conflicts8 @hether or not it constitutes a contravention of the la@ in force at the time and in the place of its commission* Criminal Code + M@ar crimeN means an act or omission that is committed during an international armed conflict8 @hether or not it constitutes a contravention of the la@ in force at the time and in the place of its commission8 and that8 at the time and in that place8 constitutes a contravention of the customar> international la@ or conventional international la@ applicable in international armed conflicts* <Emphasis added*= *oi + O crime de guerre P !ait Q acte ou omission Q commis au cours dRun conflit armF et constituant8 au moment et au lieu de la perpFtration8 un crime de guerre selon le droit international coutumier ou le droit international conventionnel applicables S ces conflits8 JuRil constitue ou non une transgression du droit en vigueur S ce moment et dans ce lieu* Code criminel + O crime de guerre P !ait .. acte ou omission .. commis au cours dGun conflit armF international .. JuGil ait ou non constituF une transgression du droit en vigueur S lGFpoJue et au lieu de la perpFtration .. et constituant8 S lGFpoJue et dans ce lieu8 une transgression du droit international coutumier ou conventionnel applicable S de tels conflits* </?,= "nder the Criminal Code and the +eneva Conventions Act8 R*%*C* /2?,8 c* $.38 onl> serious offences could be prosecuted before Canadian courts* %ection 08 @hich is common to the +eneva Conventions8 &rotection of civilian %ersons and %o%ulations in time of ar 4+C I38 /6 August8 /2028 article /057 provides a restrictive definition of these offences+ ,--./-.--00/1.-23 PA$E+ 00 $rave breaches to @hich the preceding Article relates shall be those involving an> of the follo@ing acts8 if committed against persons or propert> protected b> the present Convention+ @ilful Billing8 torture or inhuman treatment8 including biological e:periments8 @ilfull> causing great suffering or serious injur> to bod> or health8 unla@ful deportation or transfer or unla@ful confinement of a protected person8 compelling a protected person to serve in the forces of a hostile Po@er8 or @ilfull> depriving a protected person of the rights of fair and regular trial prescribed in the present Convention8 taBing of hostages and e:tensive destruction and appropriation of propert>8 not justified b> militar> necessit> and carried out unla@full> and @antonl>* <Emphasis added*= )es infractions graves visFes S lRarticle prFcFdent sont celles Jui comportent lRun ou lRautre des actes suivants8 sRils sont commis contre des personnes ou des biens protFgFs par la Convention + lRhomicide intentionnel8 la torture ou les traitements inhumains8 > compris les e:pFriences biologiJues8 le fait de causer intentionnellement de grandes souffrances ou de porter des atteintes graves S lRintFgritF ph>siJue ou S la santF8 la dFportation ou le transfert illFgau:8 la dFtention illFgale8 le fait de contraindre une personne protFgFe S servir dans les forces armFes de la Puissance ennemie8 ou celui de la priver de son droit dRTtre jugFe rFguliUrement et impartialement selon les prescriptions de la prFsente Convention8 la prise dRotages8 la destruction et lRappropriation de biens non justifiFes par des nFcessitFs militaires et e:FcutFes sur une grande Fchelle de faaon illicite et arbitraire* </?1= &he adoption of the Act had the effect of broadening the scope of @ar crimes so that offences committed during a non.international armed conflict could be prosecuted if it @as proved that8 at the time the> @ere committed8 the> @ere crimes under customar> or conventional international la@ 4)afontaine at /567* </?5= !or the reasons outlined above8 the Court finds that murder8 rape or se:ual violence8 and pillage @ere underl>ing offences that could give rise to @ar crimes in /220* </??= &o prove that a @ar crime has been committed8 in addition to the material and mental elements of the underl>ing offence8 the follo@ing conte:tual elements must be established+ . an armed conflict8 @hether international or notI . offences committed against persons @ho did not taBe part or @ho had ceased to taBe part in the armed conflict8 or in other @ords8 protected personsI ,--./-.--00/1.-23 PA$E+ 0, . a ne:us bet@een the offences committed and the armed conflictI and . the accusedRs Bno@ledge of this ne:us* (a) The elements of the underlying offences = Mu-1e- </?2= &he actus reus and the mens rea of murder as an underl>ing offence to @ar crimes do not differ from these elements as described above in connection @ith crimes against humanit>* = Ra?e an1 .e4ua< 5,0<ence </2-= &he actus reus and the mens rea of rape and se:ual violence as underl>ing offences to @ar crimes do not differ from these elements as described above in connection @ith crimes against humanit>* = P,<<a;e </2/= &he offence of pillage set out in paragraph 04674g7 of &rotocol II contemplates both organiDed and individual activities8 and applies to the pillage of an> t>pe of propert>8 either private or public* 1 Article 0 of &rotocol II is an integral part of the IC.R Statute8 "*N* Doc* %ERE%E2,,8 ? November /2208 criminaliDing pillage but @ithout defining it* Pursuant to paragraph 34e7 of the IC.; Statute8 "*N* Doc* %ERE%E?658 6, (a> /2238 the CplunderC 4a s>non>m of pillage8 as pointed out in FunaracI see belo@7 of public or private propert> is a violation of the la@s and customs of @ar* </26= n Jelisic at para* 0?8 the C&' found that plunder consists in Cthe fraudulent appropriation of public or private funds belonging to the enem> or the opposing part> perpetrated during an armed conflict and related theretoC* &hus8 Cindividual acts of plunder perpetrated b> people motivated b> greed might entail individual criminal responsibilit> on the part of its perpetratorsC* </23= n $elalic! the C&'8 at para* ,2-8 found that Cthe prohibition against the unjustified appropriation of public and private enem> propert> is general in scope8 and e:tends both to acts of looting committed b> individual soldiers for their private gain8 and to the organiDed seiDure of propert> WC* </20= n Funarac8 the C&'defined CplunderC8 @ith reference to CpillageC+ /,* &he @ord MplunderN in its ordinar> meaning suggests that more than the theft of propert> from one person or even from a fe@ persons in the one building is reJuired* Plunder is s>non>mous @ith MpillageN8 @hich more clearl> emphasises that there must be theft involving a more e:tensive group of persons or a pattern of thefts over some identifiable area such as8 for e:ample8 the (uslim section of a village or to@n or even a detention centre* &he Cele"ici Judgment held that 1 Diplomatic Conference on the Reaffirmation and Development of nternational Aumanitarian )a@ applicable in Armed Conflicts8 #inal Act of the $i%lomatic Conference of +eneva of /1H2,/1HH8 &rotocol Additional to the +eneva Conventions of /0 August /121! and relating to the &rotection of 3ictims of 4on,International Armed Conflicts 5&rotocol II68 ? ;une /2558 Commentar>8 /25?8 at para* 0,068 online+ http+EE@@@*icrc*orgEapplicEihlEihl*nsfECO(E05,.51---?ZOpenDocument\:pYarticle%elected[51---? ,--./-.--00/1.-23 PA$E+ 01 plunder included unjustified appropriations both b> individual soldiers for their private gain and b> the organised seiDures @ithin the frame@orB of a s>stematic e:ploitation of enem> propert>* n &rosecutor v >las-ic8 the accusedRs conviction for plunder @as based upon the large.scale activities of his subordinates over a @idespread geographical area* Neither judgment therefore found it necessar> to consider @hether plunder reJuires the thefts to be @idespread* /1* Nevertheless8 in the vie@ of the &rial Chamber8 the use of the @ord MplunderN in Article 34e7 of the %tatute refers to its ordinar> meaning of involving unjustified appropriations of propert> either from more than a small group of persons or from persons over an identifiable area such as alread> described* &his interpretation is more consistent @ith plunder being a violation of the la@s or customs of @ar* t is inappropriate to include @ithin that term a theft from onl> one person or from onl> a fe@ persons in the one building* &here is no evidence in the present case @hich satisfies the interpretation adopted* &here @ill therefore be a judgment of acJuittal in favour of Funarac on Count /3* <Emphasis addedI citations omitted*= </2,= &his approach @as also taBen in &rosecutor v. Hadzihsanovic 4/, (arch 6--17 Case No* &.05.-/.& 4C&'8 &rial Chamber78 @here the &ribunal defined the scope of plunder+ 02* &he Chamber considers that the elements of the offence of plunder e:ist @hen public or private propert> is acJuired illegall> and deliberatel>* &his crime covers Mall forms of unla@ful appropriation of propert> in armed conflict for @hich individual criminal responsibilit> attaches under international la@8 including those acts traditionall> described as MpillageN and e:tends to bbboth @idespread and s>stematised acts of dispossession and acJuisition of propert> in violation of the rights of the o@ners and isolated acts of theft or plunder b> individuals for their private gain*RR ,-* &he mens rea element of the offence of plunder of public or private propert> is established @hen the perpetrator of the offence acts @ith the Bno@ledge and intent to acJuire propert> unla@full>8 or @hen the conseJuences of his actions are foreseeable* W ,0* &he Chamber considers that to constitute an offence punishable b> Article 3 of the %tatute8 the plunder of public or private propert> need not be carried out in the conte:t of militar> action* t suffices for the offence stipulated in Article 34e7 of the %tatute to be closel> linBed to the hostilities* ,,* &he Chamber recalls that the crime of plunder of public or private propert> must satisf> the conditions for appl>ing Article 3 of the %tatute8 particularl> the condition regarding the gravit> of the offence* &hat last condition is met @hen the plundered propert> is of sufficient value that its unla@ful appropriation involves grave conseJuences for the victims* n .adiI8 the Appeals Chamber illustrated the concept of gravit> b> e:plaining that although the fact that a combatantRs appropriation of a loaf of bread in an occupied village might fall under the principle laid do@n in Article 01 of the Aague Regulations @hereb> private propert> must be respected b> an> arm> occup>ing an enem> territor>8 that act ,--./-.--00/1.-23 PA$E+ 05 @ould not amount to a serious violation of international humanitarian la@* &he Chamber agrees @ith the opinion e:pressed in 4aletiliI that the crime of plunder can result not onl> from the fact the Mvictim suffers severe economic conseJuences8N but also from Mthe reiteration of the acts and from their overall impactN* &he seriousness of the violation must be ascertained on a case.b>.case basis8 taBing into consideration the circumstances of the crime* <Emphasis addedI citations omitted*= </21= Hhat distinguishes ordinar> theft from plunder or pillage is the conte:t surrounding its commission* &herefore8 it must be demonstrated that the plunder or pillage of public or private propert> @as carried out in the conte:t of an armed conflict and that the accused had Bno@ledge of the e:istence of an armed conflict and the intent to acJuire the propert>* Hhile the e:tent of the pillage need not involve all of the buildings in a to@n or place8 its conte:t must nevertheless be proved to establish that it @as a serious violation of international la@* n the Rome Statute8 the use of the e:pression Mpillaging a to@n or place8 even @hen taBen b> assaultN does not mean that the pillage must affect the entire to@n or place8 since its list of serious violations is not e:haustive* (oreover8 Article 14"7 of the 4urem"erg Charter refers to the plunder of public or private propert>8 a notion that @as reiterated in the international jurisprudence cited in the preceding paragraphs* </25= !inall>8 the victim of the theft must be a protected person8 thus someone @ho did not taBe part or @ho had ceased to taBe part in the hostilities* 8$) The nexus $etween the underlying offences and the armed conflict </2?= &he C&R &rial Chamber and Appeals Chamber have both dealt @ith the ne:us reJuirement* </22= n Semanza8 the &rial Chamber confirmed that an> person ma> be found guilt> of @ar crimes8 @hether or not that person acted under orders or in the furtherance of official arm> activities+ 3,?* Article 0 of the %tatute provides that the &ribunal Cshall have the po@er to prosecute persons committing or ordering to be committed serious violations of <Common Article 3 and Additional Protocol =*C &he Appeals Chamber of this &ribunal recentl> pointed out that CArticle 0 maBes no mention of a possible delimitation of classes of persons liBel> to be prosecuted under this provision*C 3,2* Common Article 3 and Additional Protocol similarl> do not specif> classes of potential perpetrators8 rather the> indicate @ho is bound b> the obligations imposed thereb>* n the case of Common Article 38 that is Ceach Part> to the conflictC* &he CRC Commentar> on Additional Protocol simpl> sa>s that the field of application ratione %ersonae includes Cthose @ho must8 @ithin the meaning of the Protocol8 conform to certain rules of conduct @ith respect to the adversar> and the civilian populationC* 31-* ndeed8 further clarification in respect of the class of potential perpetrators is not necessar> in vie@ of the core purpose of Common Article 3 and Additional Protocol + the protection of victims* n the vie@ of the C&R Appeals Chamber8 the protections of Common Article 3 impl> effective punishment of perpetrators8 ,--./-.--00/1.-23 PA$E+ 0? @hoever the> ma> be* n its ;udgement in the A-ayesu case8 the Appeals Chamber held that the &rial Chamber erred on a point of la@ @hen it restricted the application of Common Article 3 to a certain categor> of perpetrators* %pecificall>8 the categor> of persons in Juestion in the &rial ChamberGs ;udgement consisted of members of the armed forces Cunder the militar> command of either of the belligerent parties8 <and= * * * individuals @ho @ere legitimatel> mandated and e:pected8 as public officials or agents or persons other@ise holding public authorit> or de facto representing the $overnment8 to support or fulfil the @ar efforts* <Emphasis added*= <6--= +eorges Anderson 4deru"ume Rutaganda v. &rosecutor 461 (a> 6--37 Case No* C&R.21.3.A 4C&R8 Appeals Chamber78 rendered onl> a fe@ da>s after Semanza8 confirms the position taBen b> the C&' and the C&R &rial Chambers+ ,12* &he Appeals Chamber of the C&R has not previousl> endorsed a particular definition of the ne:us reJuirement* &he Appeals Chamber of the C&' has done so t@ice* &he first time8 in the .adic ;urisdiction Decision8 the Appeals Chamber stated that the offences had to be Mclosel> relatedN to the armed conflict8 but it did not spell out the nature of the reJuired relation* n the Funarac Appeal ;udgement8 it endorsed the same standard* t then provided the follo@ing details8 @hich appear relevant to the Prosecution appeal in this case+ ,?* Hhat ultimatel> distinguishes a @ar crime from a purel> domestic offence is that a @ar crime is shaped b> or dependent upon the environment 9 the armed conflict 9 in @hich it is committed* t need not have been planned or supported b> some form of polic>* &he armed conflict need not have been causal to the commission of the crime8 but the e:istence of an armed conflict must8 at a minimum8 have pla>ed a substantial part in the perpetratorRs abilit> to commit it8 his decision to commit it8 the manner in @hich it @as committed or the purpose for @hich it @as committed* Aence8 if it can be established8 as in the present case8 that the perpetrator acted in furtherance of or under the guise of the armed conflict8 it @ould be sufficient to conclude that his acts @ere closel> related to the armed conflict* &he &rial ChamberRs finding on that point is unimpeachable* ,2* n determining @hether or not the act in Juestion is sufficientl> related to the armed conflict8 the &rial Chamber ma> taBe into account8 inter alia8 the follo@ing factors+ the fact that the perpetrator is a combatantI the fact that the victim is a non.combatantI the fact that the victim is a member of the opposing part>I the fact that the act ma> be said to serve the ultimate goal of a militar> campaignI and the fact that the crime is committed as part of or in the conte:t of the perpetratorRs official duties* ,--./-.--00/1.-23 PA$E+ 02 ,5-* &his Chamber agrees @ith the criteria highlighted and @ith the e:planation of the ne:us reJuirement given b> the C&' Appeals Chamber in the Funarac Appeal ;udgement* t is onl> necessar> to e:plain t@o matters* !irst8 the e:pression Munder the guise of the armed conflictN does not mean simpl> Mat the same time as an armed conflictN andEor Min an> circumstances created in part b> the armed conflictN* !or e:ample8 if a non.combatant taBes advantage of the lessened effectiveness of the police in conditions of disorder created b> an armed conflict to murder a neighbour he has hated for >ears8 that @ould not8 @ithout more8 constitute a @ar crime under Article 0 of the %tatute* #> contrast8 the accused in Funarac8 for e:ample8 @ere combatants @ho tooB advantage of their positions of militar> authorit> to rape individuals @hose displacement @as an e:press goal of the militar> campaign in @hich the> tooB part* %econd8 as paragraph ,2 of the Funarac Appeal ;udgement indicates8 the determination of a close relationship bet@een particular offences and an armed conflict @ill usuall> reJuire consideration of several factors8 not just one* Particular care is needed @hen the accused is a non.combatant* <Emphasis addedI citations omitted*= <6-/= &hus8 the ad hoc tribunals have accepted a certain number of conte:tual elements to determine @hether there is a ne:us* Accordingl>8 a demonstration of the ne:us does not reJuire the @ar crimes to have been committed in a determined geographical territor> or over a short or long period of timeI the crimes are not limited to offences of a purel> militar> natureI it is not a reJuirement that the accused be linBed to one of the parties to the conflict and his or her actions need not be interconnected @ith other crimes committed in the conte:t of that conflictI finall>8 the @ar crimes need not be pursuant to an officiall> sanctioned practice of one of the parties to the conflict* <6-6= &he elements identified b> the ad hoc tribunals to serve in the determination of a ne:us are summariDed b> (ettrau: at 01+ 4i7 the status of the perpetrator 4as soldier or combatant7I 4ii7 the status of the victim or victims 4as a non.combatant7I 4iii7 the circumstances in @hich the crime @as committedI 4iv7 the fact that the crime @as committed in the conte:t of an ongoing campaign to achieve particular militar> goalsI 4v7 the fact that the crime coincided @ith the ultimate purpose of the militar> campaignI 4vi7 the fact that the crime @as committed @ith the assistance or @ith the connivance of the @arring partiesI 4vii7 the fact that the crime @as committed as part of8 or in the conte:t of8 the perpetratorGs official dutiesI 4viii7 the fact that the victim @as a member of the forces of the opposing part>* <Citations omitted*= ,--./-.--00/1.-23 PA$E+ ,- <6-3= None of these criteria @hen taBen individuall> is conclusive evidence that a @ar crime has been committed* Ans@ering this Juestion reJuires that the> be considered as a @hole* <6-0= n Rutaganda8 the C&R Appeals Chamber found that the accused @as guilt> of @ar crimes because of t@o massacres committed as part of the armed conflict in R@anda8 given his general connection @ith armed groups8 including the Interahame+ ,10* W n support of this contention8 the Prosecution refers to conclusions reached b> the &rial Chamber in considering the issue as to @hether Rutaganda @as among the persons to @hom responsibilit> could be imputed under Article 04a7 of the %tatute 9 an issue @hich the Appeals Chamber subseJuentl> found to be unnecessar> to prove for establishing responsibilit> for such violations* &he relevant passages of the &rial ;udgement read as follo@s+ 032* &he Accused @as in a position of authorit> vis.S.vis the Interahame militia* &estimonies in this case have demonstrated that the Accused e:erted control over the Interahame8 that he distributed @eapons to them during the events alleged in this ndictment8 aiding and abetting in the commission of the crimes and directl> participating in the massacres @ith the Interahame* &he e:pert @itness8 (r* NsanDu@era8 testified that the Interahame militia served t@o roles during April8 (a> and ;une /2208 on the one hand8 the> supported the RA! @ar effort against the RP!8 and on the other hand8 the> Billed &utsi and Autu opponents* 00-* (oreover8 as testified b> (r* NsanDu@era8 there is merit in the submission of the Prosecutor that8 considering the position of authorit> of the Accused over the Interahame8 and the role that the Interahame served in supporting the RA! against the RP!8 there is a ne:us bet@een the crimes committed and the armed conflict* n support thereof8 the Prosecutor argues that the Interahame @ere the instrument of the militar> in e:tending the scope of the massacres* 00/* &hus8 the Chamber is also satisfied that the Accused8 as second vice.president of the >outh @ing of the (RND Bno@n as the Interahame za MR4$ and being the >outh @ing of the political majorit> in the government in April /2208 falls @ithin the categor> of persons @ho can be held responsible for serious violations of the provisions of Article 0 of the %tatute* ,1,* !inall>8 in t>ing these general claims to the specific crimes charged in Counts 0 and 1 of the ndictment8 the Prosecution recounts the evidence at trial sho@ing that the Interahame tooB a lead role in the Billings charged in those counts @ith the support of RA! soldiers and that Rutaganda tooB part as a leader of the Interahame* <6-,= &he Appeals Chamber8 at para* ,558 accepted the findings of the &rial Chamber in its anal>sis of the first massacre8 noting the follo@ing elements+ ,--./-.--00/1.-23 PA$E+ ,/ . Rutaganda participated in the attacB on &utsi refugees at the E&O schoolI . Ae e:ercised de facto influence and authorit> over the InterahameI . &he Interahame @ere armed @ith guns8 grenades8 and clubsI . &he Interahame8 alongside the soldiers of the Presidential $uard8 entered the E&O compound thro@ing grenades8 firing guns and Billing the refugees @ith machetes and clubsI and . &he victims of the Billings @ere persons protected under common Article 3 of the $eneva Conventions and Additional Protocol * <6-1= &hus8 it is not necessar> for the accused to be an official8 an armed combatant8 a police officer8 or a soldier to be convicted of a @ar crime* t is sufficient if the involvement in the abuses committed is more than accidental* <6-5= n this case8 the evidence reveals that the appellant is an educated man8 a member of the local elite8 that he @as clearl> a part of the campaign to destro> the &utsis8 in fact affiliating himself @ith the Interahame groups to such a degree that he e:ercised a certain influence over them* THE !U"*E@% A%%E%%MENT OF THE E7"ENCE <6-?= #efore addressing the appellantGs numerous complaints concerning the assessment of the evidence8 it is useful to note that the %upreme Court of Canada has consistentl> held that appellate revie@ of the assessment of evidence must be conducted @ithin t@o @ell.established boundaries 4see8 for e:ample8 R. v. W.H*8 6-/3 %CC 668 <6-/3= 6 %*C*R* /?-7* <6-2= !irst8 an appellate court must give due @eight to the advantages of the trier of fact8 @ho tooB part in the trial and sa@ and heard the testimon>* A revie@ing court should therefore refrain from interfering @ith the trial judgeGs findings of fact unless the appellant can demonstrate a palpable and overriding error in the judgeGs assessment of the evidence or a failure on the part of the judge to consider a significant part of the evidence* <6/-= %econd8 the revie@ing court must nevertheless @eigh the evidence and consider @hether8 through the lens of its o@n e:perience8 judicial fact.finding precludes the conclusion reached b> the trier of fact 9 or in other @ords8 @hether the verdict is reasonable in light of the evidence* <6//= f the judge has ignored legal rules in appl>ing his or her o@n anal>sis to the evidence8 ho@ever8 and this error might have influenced the verdict8 the appellate court must intervene* ` ` ` ` ` <6/6= &he appellantGs complaints ma> be grouped into t@o categories+ the general8 to @hich the appellant freJuentl> refers in his anal>sis of the evidence8 and those specificall> concerning certain Cro@n @itnesses* ,--./-.--00/1.-23 PA$E+ ,6 <6/3= &he first categor> encompasses+ 4i7 the failure to give a 3etrovec @arningI 4ii7 the failure to appl> the rules respecting the reliabilit> of identification evidenceI and 4iii7 the failure to taBe into account the risB of contamination of or collusion amongst the Cro@nGs @itnesses* (i) The &etroec warning <6/0= n 3etrovec v. R.8 </2?6= / %*C*R* ?//8 the %upreme Court noted that @here there are factors liBel> to seriousl> impair the credibilit> of a @itness8 @hoever it ma> be8 the judge must @arn the jurors regarding the dangers of rel>ing on this @itness alone* <6/,= Along the same lines8 in R. v. Fhela8 6--2 %CC 08 <6--2= / %*C*R* /-08 the %upreme Court states+ 6 &he evidence of a single @itness is nonetheless sufficient in Canada to support a conviction for an> offence other than treason8 perjur> or procuring a feigned marriage* (an> serious crimes might other@ise go unpunished* #ut @here the guilt of the accused is made to rest e:clusivel> or substantiall> on the testimon> of a single @itness of doubtful credit or veracit>8 the danger of a @rongful conviction is particularl> acute* 3 t is therefore of the utmost importance8 in a trial b> judge and jur>8 for the jur> to understand @hen and @h> it is unsafe to find an accused guilt> on the unsupported evidence of @itnesses @ho are Munsavour>N8 Muntrust@orth>N8 MunreliableN8 or MtaintedN* !or present purposes8 use these terms interchangeabl>* 0 hasten to add that a specific instruction is sometimes reJuired in this regard not because jurors are thought to be unintelligent8 but rather because the> might other@ise be uninformed* t is meant to bring home to la> jurors the accumulated @isdom of the la@Rs e:perience @ith unsavour> @itnesses* ;udges are alert to the concern that unsavour> @itnesses are prone to favour personal advantage over public dut>* And @e Bno@ from recent e:perience that unsavour> @itnesses8 especiall> but not onl> Mjailhouse informantsN8 can be convincing liars and can effectivel> conceal their true motives for testif>ing as the> have+ see R. v. Sauv? 46--078 /?6 C*C*C* 43d7 36/ 4Ont* C*A*78 at para* 51* W // &he central purpose of a 3etrovec @arning is to alert the jur> to the danger of rel>ing on the unsupported evidence of unsavour> @itnesses and to e:plain the reasons for special scrutin> of their testimon>* n appropriate cases8 the trial judge should also dra@ the attention of the jurors to evidence capable of confirming or supporting the material parts of the other@ise untrust@orth> evidence* <6/1= &he trial judge responded to the appellantGs concerns regarding the credibilit> of certain unsavour> @itnesses and the need for him to caution himself in the manner prescribed in 3etrovec* Ae @rote+ <&RAN%)A&ON= </266= &he Court8 sitting @ithout a jur>8 is a@are of the potential dangers of such testimon>* Aence8 it is after careful stud> of the evidence that the Court ,--./-.--00/1.-23 PA$E+ ,3 concludes there is no reason to objectivel> believe that those versions are not trust@orth> in terms of the specific facts related8 the evidence of @hich is damning for the accused* !urthermore8 as @e @ill see in the anal>sis that follo@s8 their testimon> is ampl> corroborated b> numerous credible and reliable @itnesses @ho testified for the prosecution and the defence* </263= "ltimatel>8 the Court sa@ and heard those @itnesses and believes elements of their testimon>8 as e:plained for each of them in the frame@orB of this judgment* </260= &he objective of an> judgment is to e:plain the decision to the parties8 to render account before societ> and to allo@ a true e:amination in appeal* &o that end8 the Court is compelled to strictl> respect the la@ and the jurisprudence8 and e:amines comprehensivel> the @itnessesR credibilit> problems and the importance of each testimon>* <6/5= &he appellant argues that8 @hile the judge ma> have @arned himself8 he nevertheless failed to appl> this @arning to the specific @eaBnesses in the evidence8 particularl> @ith respect to the testimon> of RCH.58 ?8 28 /-8 //8 /68 /3 and /0* <6/?= &his argument is unfounded* t cannot be assumed that the trial judge failed to consider the elements that led him8 rightl> or @rongl>8 to doubt the reliabilit> of some of the @itnesses* On the contrar>8 as @e shall see further on8 he tooB note of the @eaBnesses in the testimon> and e:plained his decision to accept them nevertheless8 either in @hole or in part* (iii) The identification eidence <6/2= t is recogniDed in case la@ that e>e@itness identification evidence has inherent risBs* Appellate courts have accordingl> developed a series of factors to aid in determining @hether it is appropriate to interfere @ith a verdict that relied on such evidence8 even @hen it @as rendered b> a judge sitting alone+ K Hhether the trial judge can be taBen to have instructed himself or herself regarding the frailties of e>e@itness testimon>I K Hhether the trial judge revie@ed the evidence @ith such an instruction in mindI K Hhether there is other evidence that can be considered to confirm this identificationI K &he nature of the e>e@itness observation8 the reliabilit> of the @itnesses8 and the degree to @hich the> Bno@ the person the> are identif>ingI K &he timing of the prior identification and in its conte:t8 including factors such as the strengthening of the identification b> inappropriate police remarBs or actions* 4%ee8 for e:ample *egault v. R8 6-/3 QCCA /610I R. v* >igs-y8 6--1 %LCA /0,7* <66-= &hose are the principles* Aere is ho@ the trial judge dealt @ith the identification evidence+ ,--./-.--00/1.-23 PA$E+ ,0 <&RAN%)A&ON= </231= After hearing all the evidence8 conclude be>ond a reasonable doubt that the accused8 DFsirF (un>aneDa8 @as indeed the person referred to b> the prosecution @itnesses* </235= &he @itnesses @ho testified outside Canada identified him in a photo line.up constituted and presented in accordance @ith Canadian la@+ independence and freedom of judgment of the @itness8 a series of photos presented one after the other8 no leading of the @itness8 and so on* </23?= &he @itnesses heard at the hearing identified the accused in the docB* Rm Juite @illing to @arn m>self against the danger of such a method of identification8 but sa@ and heard the @itnesses8 and @as convinced* !urthermore8 most of the @itnesses had recogniDed the accused previousl> in a police line.up* </232= &he accused @as a @ell.Bno@n man in #utare and had a major scar on his face8 to @hich most of the @itnesses referred* </20-= &he prosecutionRs evidence as a @hole8 to @hich refer more specificall> in the section entitled M&he factsN 4including the confidential appendi:78 convince me be>ond a reasonable doubt that the accused is the perpetrator of the alleged crimes* <66/= Hhile these comments are Juite general8 the anal>sis of the identification evidence reveals that the threshold of objective reliabilit> @as reached* <666= !irst8 as the judge points out8 a photo lineup @as presented out of court and in accordance @ith Canadian la@ to all of the Cro@n @itnesses* (ost of the @itnesses identified the appellant+ . %everal did so uneJuivocall> during the first lineup* RCH.68 RCH.38 RCH.08 RCH.,8 RCH.18 RCH.58 RCH.?8 RCH./-8 RCH.//8 RCH./68 RCH./38 C. /? and C.66I . Others8 after some hesitation during the first lineup8 positivel> identified him during the second+ C./, and C.6-I . !inall>8 some identified the correct photo8 sa>ing that he <&RAN%)A&ON= CresembledC the appellant+ RCH.2 4<&RAN%)A&ON= C thinB it must be this oneC7 C./2 4<&RAN%)A&ON=Cthis face looBs familiar to me8 itGs the onl> one thatGs familiarC8 C.63 4<&RAN%)A&ON= Cthis one looBs liBe (un>agasheBeGs son @ho has a scar on his cheeBC7 and C.60 4<&RAN%)A&ON= M thinB itGs that one*C7 <663= Hith regard to RCH./08 C./18 and C./58 the onl> three @itnesses for the Cro@n @ho @ere not able to identif> the appellant out of court from a lineup8 the> all affirmed8 as did the other Cro@nGs @itnesses8 that the appellant had a ver> prominent scar on his face* &his distinguishing marB @as not apparent on the photo used during the photo lineups* (oreover8 RCH./0 identified the appellantRs photo @hile testif>ing at the rogator> commission8 @hen the appellant @as not present* ,--./-.--00/1.-23 PA$E+ ,, <660= %econd8 the e:istence of an unusual distinguishing marB8 a scar on his face8 that @as mentioned b> practicall> all of the @itnesses renders the identification of the appellant objectivel> more reliable* &he scar even earned him the nicBname C+i-ovuC 4<&RAN%)A&ON= CscarfaceC78 @hich the @itnesses @ho had taBen refuge at the prefectural office used on several occasions* &his highl> distinguishing marB made it possible to distinguish the appellant from the other assailants and minimiDes the risB of the @itnesses having confused him @ith another person* <66,= !inall>8 it should be pointed out that man> @itnesses from different parts of the prefecture of #utare @ho related incidents @ith no relation to each other described the appellantGs manner of dress in relativel> the same @a>8 sa>ing that he @as generall> @earing a <&RAN%)A&ON= CcamouflageC pattern militar>.st>le s@eater or shirt and a <&RAN%)A&ON= CcivilianC or <&RAN%)A&ON= Cordinar>C pair of jeans 4testimonies of RCH.,8 RCH.18 RCH.28 RCH./-8 RCH.//8 RCH./68 RCH./38 RCH./08 C.63 and C.607* Although not conclusive 4it ma> be assumed that the appellant did not @ear the same clothes from April to ;ul> of /220 and that he @as not the onl> one @earing a militar> s@eater @ith civilian pants78 this evidence nevertheless supports the idea that the @itnesses @ere referring to the same individual* (iii) Contamination and collusion <661= &he appellantGs argument that the @itnesses @ere tainted due to collusion amongst them is based on three allegations+ . %ome of the @itnesses tooB part in +acaca meetings8 @hich are assemblies in @hich R@andans are called on to share their e:periences during the genocideI . !ive @itnesses detained in R@anda 4RCH.58 RCH.28 RCH.//8 RCH./6 and RCH./37 co.signed a letter addressed to Canadian authorities asBing them to intervene to improve their conditions of detention in e:change for testimon>I . Hitnesses C./28 C.668 C.63 and C.60 stated that the appellant Bidnapped and raped a >oung girl @ith the first name of Asumpta8 @ho8 @hen testif>ing for the defence under the pseudon>m DD(./58 denied Bno@ing or having dealt @ith him in an> @a> @hatsoever* <665= t is @ell established that collusion undermines the probative value of concurring testimon> 4R. v. Shearing8 <6--6= 3 %*C*R* 33 at para* 0-7* <66?= Although specific evidence of collusion is not necessar> 4R. v. >urnie8 6-/3 ONCA //6 at para* 3178 there must nevertheless be evidence that the @itnesses had the opportunit> to influence each other through their communication about the specific events at the basis of the charges* &hat is not the case here* ,--./-.--00/1.-23 PA$E+ ,1 <662= n this case8 none of the @itnesses for the Cro@n Juestioned about the +acaca meetings referred to an> discussions about the appellantGs participation in the abuses committed during the genocide* (oreover8 counsel for the appellant never asBed these @itnesses @hether their client had ever been mentioned during these meetings* n other @ords8 the allegation of possible collusion or contamination in the conte:t of the +acaca meetings is strictl> speculative and not based on sufficient evidence to reJuire a @arning* <63-= Hith regard to the letter from the detainees8 the @itnesses @ho @ere asBed b> the defence @hether the signatories had discussed the appellant 4RCH.2 and RCH./67 ans@ered in the negative* RCH.2 e:plained that each @itness prepared his or her o@n testimon> individuall> @ith Cro@n counsel* RCH./6 stated that the @itnesses did not Bno@ for @hich proceeding the> @ere there8 and the> did not talB about the appellant amongst themselves* &he subject of the letter @as brought up @ith RCH.//8 although the Juestion regarding discussions about the appellant @as not put to him* &he subject @as not even touched upon @ith RCH.5 and RCH./3* n short8 @hile the evidence ma> reveal some contact among the signatories of the letter to the Canadian authorities8 it contains no indication @hatsoever of collusion or contamination on the subject of the appellantRs actions* Once again8 the allegation is nothing more than speculation and is insufficient 4Shearing at para* 007* <63/= &he remaining Juestion concerns the testimon> given b> C./28 C.668 C.63 and C.60 regarding the Bidnapping and rape of DD(./5* <636= f the trial judge had concluded that the appellant raped DD(./5 even though she denied it8 @e @ould have to agree @ith the appellant that he should have e:plained @h> he believed C./28 C.668 C.63 and C.60 instead of DD(./58 and @h> he @as ruling out the possibilit> of collusion* <633= &he judge did not rel> on this incident8 ho@ever8 and does not discuss it in the portion of his decision dealing @ith his findings of fact relating to the offences committed b> the appellant 4paras* /20/ et seJ*7* <630= &herefore8 if there @as collusion8 on@hich the Court taBes no position8 its effect @as merel> collateral8 in that it had the potential to undermine onl> the general credibilit> of C./28 C.668 C.63 and C.60* &he testimon> of these @itnesses on the appellantGs presence at the prefectural office and his role in the abuses committed there @as not the onl> evidence presented on these subjects* &heir testimon> @as supported b> those given b> C./,8 C./18 C./5 and C.6-8 against @hom no allegation of collusion has been made* n other @ords8 the testimon> of C./28 C.668 C.63 and C.60 on the actions committed b> the appellant8 e:cluding the incident involving DD(./58 could reasonabl> be accepted b> the trial judge* <63,= n summar>8 none of the grounds of a general nature has an> merit* ` ` ` ` ` <631= &he Court @ill no@ move on to the complaints relating to the judgeGs individualiDed assessment of the si:t>.si: @itnesses he heard* ,--./-.--00/1.-23 PA$E+ ,5 <635= &he Cro@n sought to characteriDe the appellantGs actions in relation to four specific clusters of activit>+ at the Ngoma church8 at the prefectural office in #utare8 at the roadblocBs erected in this cit>8 and in various other locations* <63?= t also sought to demonstrate that the appellant pla>ed a Be> role as leader of a group of the Interahame8 the e:tremist Autu militia* t should be pointed out8 ho@ever8 that the appellant @as not charged under subsection 5467 of the Act regarding the criminal liabilit> of CsuperiorsC other than militar> commanders* (A) The church in 'goma <632= RCH.68 RCH.// and RCH./3 testified that hundreds of &utsis tooB refuge in a Catholic church in Ngoma and that8 on April 3-8 /2208 the> @ere Billed* &he e:istence of this massacre has not been contested* <60-= Hhat remained to be established @as @hether the appellant participated in this event8 and if so8 the nature of his participation* <60/= &he judge accepted the testimon> of RCH.// that he @as forced to follo@ a group of the Interahame to the Ngoma church8 that the appellant @as acting as one of the leaders of this group8 that he ordered the refugees to come out of the church8 and that8 once outside8 the &utsi refugees @ere led to a mass grave a short distance a@a> to be e:ecuted* !rom @here he @as posted8 RCH.// did not see the murders8 but he heard the cries of the victims* <606= As for RCH./38 the judge believed him @hen he stated that the appellant and his group came to get him at the roadblocB @here he @as @orBing so that he could go to the church @ith them8 that the appellant ordered him to open the doors to the building8 and that he sa@ him e:ecute a &utsi >outh @ho @as tr>ing to run a@a>* &he others @ere e:ecuted a short distance a@a> in a small @ooded area or on the adjacent soccer field* &he> @ere shot or clubbed to death* Ae states that the appellant Billed survivors @ith a handgun* <603= &he judge found that these t@o @itnesses corroborated each other8 @hich the appellant contests8 raising primaril> the follo@ing arguments+ . A contradiction bet@een the t@o @itnesses for the Cro@n as to @hether shots @ere firedI RCH.// states that he did not hear an> gunfire or see the appellant Bill an> &utsis @ho had sought refuge in the church8 @hile RCH./3 states that the appellant murdered the &utsis @ith a handgun* !or the defence8 DD(.0- also stated never having heard an> gunfireI . A second contradiction concerning the priest at the church 4bound or free to move around7I . A third contradiction regarding the e:it from the church b> the &utsis @ho had taBen refuge there 4b> the large red door or the small blacB doors* ,--./-.--00/1.-23 PA$E+ ,? . A fourth contradiction regarding the presence of the appellant at the scene after the church doors openedI RCH.68 @ho Bno@s the appellant8 stated that he did not see him at the scene8 and this is also @hat DD(.36 stated* <600= Aside from these specific contradictions8 the appellant argues more generall> that RCH.// and RCH./3 lacB credibilit>* Ae invoBes the failure to mention his participation to the R@andan authorities8 the risB of contamination and collusion resulting from their participation in the +acaca meetings8 and their signing8 along @ith other detainees 4RCH.58 RCH.2 and RCH./678 of the letters to Canadian authorities about their conditions of detention* <60,= Ae concludes that the evidence @as insufficient to convict him of the murders committed at the Ngoma church and that the verdict in this respect @as unreasonable* Analysis <601= &he issue of contamination and collusion has alread> been addressed* t is @orth adding8 ho@ever8 that it is Juite strange that the appellant argues on the one hand contamination and collusion8 @hile maintaining on the other that the versions given b> RCH.// and RCH./3 are so contradictor> that the judgeGs conclusion about his participation in this event is unreasonable* f these @itnesses had actuall> agreed on the content of their testimon>8 it seems more liBel> that their versions @ould have been similar* <605= n the CourtRs opinion8 despite certain discrepancies bet@een the testimon> of RCH.// and that of RCH./38 the judgeGs conclusion as to the appellantGs participation in the Ngoma church massacre is reasonable* <60?= !irst8 as the respondent points out in its submissions8 the atmosphere that prevailed during the massacre @as chaotic to sa> the least8 and hundreds of people 4soldiers8 Interahame8 &utsi refugees8 onlooBers7 @ere involved8 inside the church and @ithin a relativel> large perimeter outside it 4as the series of photographs filed as e:hibit RCE./ attests7* n this conte:t8 it seems normal that the @itnesses neither sa@ nor heard ever>thing that occurred and that their versions ma> differ @ith respect to some of the details* <602= As for the gunfire8 the evidence is neither determinative nor conclusive as to @hether the appellant @as at the church and @hether he participated in the attacB* <6,-= Admittedl>8 RCH.// testified that he did not hear an> gunfire at the church itself8 but he also said that shots could be heard an>@here that a massacre @as taBing place during that period* Ae also stated that some of the assailants @ere carr>ing guns* <6,/= n RCH./3Gs version8 there @as gunfire* Ae stated that the refugees @ere shot to death8 or more specificall> that the appellant Billed them @ith a handgun* Ae did not specif> the number of shots or the number of victims Billed in this @a>8 ho@ever* <6,6= !or his part8 RCH.6 heard at least one gunshot* DD(.36 heard soldiers shooting before the church doors opened8 and DD(.0-8 hidden in the rector>8 heard nothing* ,--./-.--00/1.-23 PA$E+ ,2 <6,3= All of these @itnesses8 ho@ever8 recounted the same event* &his is not in Juestion* n the circumstances8 ascertaining @hether guns @ere fired in no @a> helps in determining @hether the appellant @as present and participated in the massacre* At most8 the discrepancies in the testimonies on this subject demonstrate that8 ten >ears later8 the memor> of some of the victims failed @hen it came to certain details of the attacB* <6,0= n &rosecutor v. 4aletilic and Matinovic 43/ (arch 6--37 Case No* &.2?.30.& 4C&'8 &rial Chamber78 the &ribunal @rote+ /-* n evaluating the evidence given b> @itnesses8 the Chamber has taBen into account that the alleged events tooB place almost ten >ears before the @itnesses presented their testimonies in court* &he Chamber accepts that due to the long period elapsed bet@een the alleged commission of the crimes and the trial8 @itnesses cannot reasonabl> be e:pected to recall the precise minutiae8 such as e:act dates or times8 of events* &he Chamber further notes that man> Prosecution @itnesses @ere transferred through a number of different detention facilities8 in a seJuence that ma>8 for some8 have amounted to traumatic e:periences* &he Chamber finds that such @itnesses cannot be e:pected to recall each and ever> detail regarding the seJuence or details of the events* &he Chamber further shares the vie@ of &rial Chamber that in most instances the oral evidence of a @itness @ill not be identical @ith the evidence given in a prior statement* t lies in the nature of criminal proceedings that a @itness ma> be asBed different Juestions at trial than he @as asBed in prior intervie@s and that he ma> remember additional details @hen specificall> asBed in court* ConseJuentl>8 the Chamber has not attached particular significance to minor inconsistencies in the testimon> of a @itness or irrelevant discrepancies in peripheral matters in the testimonies of different @itnesses @ho testified to the same events* &he Chamber has8 ho@ever8 onl> attached probative @eight to evidence submitted b> @itnesses @ho @ere8 as a minimum8 able to recount the essence of the incident charged in sufficient detail* <6,,= (ore recentl>8 in &rosecutor v. 4yiramasuhu-o et al. 460 ;une 6-//7 Case No* C&R.2?.06.& 4C&R &rial Chamber78 a trial involving8 among others8 the appellantRs friend %halom and his mother8 (inister Pauline8 the &rial Chamber made similar remarBs+ /5?* (oreover8 the Chamber has discretion to determine @hether alleged inconsistencies bet@een prior statements and later testimon> render the testimon> unreliable8 and the Chamber ma> accept parts of a @itnessR testimon> @hile rejecting other parts* Hhere testimon> lacBs precision or is inconsistent about matters such as the e:act date8 time or seJuence of events8 the lacB of precision does not necessaril> discredit the evidence provided that the discrepancies relate to matters peripheral to the charges in the indictments* !or e:ample8 some inconsistencies in testimon> ma> be caused b> cultural factors and interpretation issues* %imilarl>8 it ma> be difficult to recall particular dates @ith respect to events that are repetitive or continuous* /52* (an> @itnesses lived through particularl> traumatic events and the Chamber recognises that the emotional and ps>chological reactions that ma> be provoBed b> reliving those events ma> have impaired the abilit> of some ,--./-.--00/1.-23 PA$E+ 1- @itnesses to clearl> and coherentl> articulate their stories* (oreover8 @here a significant period of time has elapsed bet@een the acts charged in the indictments and the trial8 it is not al@a>s reasonable to e:pect the @itness to recall ever> detail @ith precision* <6,1= As in the case of the gunfire8 the issue of @hether the priest8 Eulade8 @as bound @hen the church doors opened or at an> other time during the attacB is a peripheral detail that is of little value in determining @hether the appellant @as at the scene* t is @orth noting8 ho@ever8 that RCH.//8 RCH./3 and DD(.36 all confirm that the priest @as present at one point or another as the attacB began* <6,5= Hhich door the refugees used to e:it the church is also a peripheral detail* (oreover8 the <&RAN%)A&ON= CcontradictionsC alleged b> the appellant are in fact not reall> contradictions at all and can be e:plained b> the fact that the @itnesses @ere posted at different locations* t is also @orth noting that RCH./3 testified that the church @as surrounded and that he received the order to open all of the doors* <6,?= According to the appellant8 the fact remains that the versions given b> RCH.// 4the appellant left the scene after the doors @ere opened78 RCH./3 4the appellant @as present throughout the attacB and personall> tooB part in the Billings78 and DD(./6 4the appellant @as not on the scene7 are irreconcilable* 5
<6,2= &his submission must be rejected* <61-= !irst8 as the Cro@n argues8 the appellant has failed to consider that these @itnesses @ere not all at the same place during the attacB* !or e:ample8 @hile it is true that RCH.// stated that he sa@ the appellant leave the area after the doors @ere opened8 he nevertheless received a subseJuent order to station himself near the @ooded area8 at a spot @here he could not see the refugees being Billed* &hus8 RCH.// sa@ the appellant moving a@a> from the doors8 but he did not see him leave the large church>ard* <61/= n addition8 RCH.//Gs version is not inconsistent @ith that of RCH./3 because the latter testified that he sa@ the appellant @hen the doors opened and then later @here the refugees @ere e:ecuted8 a location that RCH.// could not see from @here he @as posted* <616= !inall>8 DD(.368 @hose testimon> the judge deemed to be less than credible8 stated that he arrived after the doors opened and therefore8 according to RCH.//Gs version8 after the appellant had left the front of the church* Ae then spent most of his time inside the church8 from @here he could not see the spot @here the refugees @ere Billed8 and he left before the end of the massacre* Ae said8 ho@ever8 that he sa@ RCH. /3 lead the refugees lo@er do@n to @here the> @ere Billed* &his is consistent @ith RCH. /3Gs statement that he sa@ the appellant at this location* 5 Contrar> to @hat the appellant submits8 the testimon> of RCH.6 and that of DD(.0- are of ver> little use in ans@ering this Juestion8 since both @itnesses have admitted that the> remained hidden during the attacB and that the> could not see ever>thing* ,--./-.--00/1.-23 PA$E+ 1/ <613= n short8 although there ma> at first glance appear to be discrepancies bet@een some of the facts related b> the various @itnesses8 such is not reall> the case* <610= n the circumstances8 the Court has no reason to interfere @ith the judgeGs findings of fact regarding the appellantGs participation in the massacre of the &utsis @ho had taBen refuge in the Ngoma church* (!) The prefectural office <61,= &he evidence establishes that man> people8 mostl> &utsis8 believing the> could find protection there8 tooB refuge in the prefectural office in the centre of the cit> of #utare8 @hich is @here murders8 rapes and other abuses @ere committed* 5i6 Murder of .utsis <611= C./5 stated that she sa@ the appellant Bill t@o men @ith a machete @hile he @as forcing &utsis into a small trucB @ith %halom and other members of the Interahame* &hose @ho resisted @ere beaten or Billed* <615= C./2 affirmed that she sa@ the appellant Bill t@o men near the prefectural office solel> because the> @ere &utsis* <61?= C.6- stated that she @itnessed t@o incidents* One involved the murder of children8 @hom the appellant and the members of his group put into bags and beat to death @ith sticBs* &he appellant supposedl> said that if >ou @anted to Bill a snaBe8 >ou had to hit it on the head* &he other involved an attacB on a famil> that @as arriving at the prefectural office* &he appellant and his group allegedl> beat the t@o men in the famil> to death* <612= &he appellant argues that the identification evidence given b> C./58 C./2 and C. 6- @as @eaB* n the case of C./58 he alleges that she learned his identit> through others and @as unable to identif> him in a photo lineup* Aer onl> positive identification of him tooB place at the trial8 and is therefore not reliable* &his @as also the case @ith C. /2* As for C.6-8 she @as not even able to positivel> identif> the appellant at trial even though he @as sitting in the prisonerRs docB* <65-= &he appellant adds that the trial judge ignored the fact that C./5 had taBen part in the +acaca meetings and failed to compare C./5Gs testimon> @ith @hat @as said before the C&R8 @here she stated that she Bne@ onl> %halom and not the other Interahame fighters @ho @ere besieging the prefectural office* %he never mentioned the appellantGs name before the C&R8 even though she affirmed at trial that he se:uall> assaulted her four times* <65/= As for C./28 it appears that she told the C&R that she sa@ %halom onl> once during the genocide8 @hereas she told the trial judge that he @as al@a>s @ith the appellant* %he also told the RC(P investigators that %halom and some members of the Interahame that she did not Bno@ @ere responsible for the Billings8 and then connected the appellant @ith the murders of several &utsis* &he appellant also argues that there is probable collusion @ith @itnesses C.668 C.638 and C.60* ,--./-.--00/1.-23 PA$E+ 16 <656= &he appellant submits that8 in a statement to the RC(P investigators8 C.6- said that the appellant did not oversee the incident involving the murder of the children in bags and that in fact he committed no murder* &he judge should not have ignored the accurac> of the statements made to the police officers8 since the> @ere the subject of an admission* Analysis <653= &he complaints concerning identification8 contamination and collusion @ere discussed above* <650= Hith regard to the identification evidence8 it is sufficient to add that8 after some hesitation8 C.6- positivel> identified the appellant in the photo lineup* C./2 @as less categorical+ she identified the correct photograph in the lineup8 sa>ing onl> that it resembled the appellant* Admittedl>8 C./5 @as not able to identif> the appellant in a photo* )iBe the other t@o @itnesses8 ho@ever8 she said that the appellant had a ver> large scar on his face 4C./2 and C.6- called him C+i-ovuC for this reason7* n our vie@8 this evidence allo@ed the judge to find that the identification evidence @as sufficient and objectivel> reliable* <65,= As for the rest8 it essentiall> concerns the assessment of the credibilit> of the @itnesses8 a tasB8 it should be recalled8 that lies at the heart of the trial judgeRs role* <651= Hith respect to C./5Gs failure to mention the appellantGs name to the C&R investigators and in her testimon> before that tribunal8 this fact @as dul> noted b> the judge* Ae accepted her e:planation that her memor> of the appellant returned to her graduall>* Hhile it ma> initiall> appear astonishing that the victim8 @ho testified that the appellant raped her four times8 had trouble remembering him8 it is important to recall she claims to have also been raped numerous times b> members of the Interahame* %he also e:plained that the Juestions before the C&R concerned primaril> %halom and not the appellant and that she therefore did not mention his name* <655= As the respondent points out8 the ad hoc tribunals have recogniDed that some @itnesses merel> ans@er the Juestions put to them and recount onl> the actions committed b> the people the> are asBed about* &hus8 in &rosecutor v. Faremera et al.8 4/, December 6--17 Case No* C&R.2?.00.&8 Decision on defence motions to prohibit @itness proofing 4C&R8 &rial Chamber7 at para* //8 the C&R &rial Chamber cites @ith approval the follo@ing passage from the decision of the same Chamber in >agosora et al* 4/? November 6-337 Case No* C&R.2?.0/.&8 Decision on admissibilit> of @itness D#Q 4C&R8 &rial Chamber7 at para* 62+ W @itness statements from @itnesses @ho sa@ and e:perienced events over man> months @hich ma> be of interest to this &ribunal8 ma> not be complete* %ome @itnesses onl> ans@ered Juestions put to them b> investigators @hose focus ma> have been on persons other than the accused rather than volunteering all the information of @hich the> are a@are* <65?= A certain amount of prudence is therefore reJuired @hen considering statements made b> a @itness in proceedings other than those involving the accused8 especiall> @hen the accused @as never mentioned* ,--./-.--00/1.-23 PA$E+ 13 <652= C./2 also e:plained that she did not refer to the murders committed b> the appellant at the prefectural office @hen she testified in Arusha because she @as not asBed an> Juestions about him* <6?-= C.6- e:plained that her statement to the RC(P investigators @as confused because she @as not feeling @ell that da> and @as pressed for time 4she @as on her @a> to vote7* %he also stated that she @as unnerved b> her first interaction @ith the legal s>stem8 adding that it @as impossible in a single meeting to describe ever>thing she had e:perienced during the genocide* <6?/= &he judge8 @ho had the advantage of hearing and observing the @itnesses8 could properl> consider these e:planations valid* A different judge might have arrived at a different conclusion8 ? but that is not the point* &here is nothing to justif> finding that the judgeGs conclusions regarding the murders committed at the prefectural office b> the appellant @ere not sufficientl> based on the evidence and @ere therefore unreasonable* 5ii6 Se)ual assault <6?6= C./5 stated that she @as raped b> the appellant four times* Ae @ould come to get her at the prefectural office during the night8 carr>ing a Bnife or an a:e8 taBe her inside old neighbouring buildings8 and se:uall> assault her* %he stated that she also sa@ the appellant assault other @omen at the same location8 t@o of @hom @ere named mmaculFe and Alphonsine* <6?3= Other @omen @ho @ere not personall> assaulted b> the appellant stated that he had participated in the rapes of numerous &utsi @omen+ C./,8 C./18 C./28 C.6-8 C.63 and C.60* <6?0= C./, stated that she and t@o other @omen 4Alphonsine and Caritas7 @ere taBen b> the appellant and other Interahame members to (ahengaRs8 located near CheD Venant8 and @ere se:uall> assaulted there* &he appellant allegedl> raped Alphonsine and other @omen* &he @itness referred to <&RAN%)A&ON= Cse:ual captivit>C8 characteriDed b> rapes8 often repeated8 @hich @ere committed at the prefectural office b> the appellant and members of the Interahame* %he stated that @hen ten or so men @ere raping her8 the> said that the> @anted to see if &utsis @ere better than the others* <6?,= C./1 sa@ the appellant and his group bring three girls into an abandoned building 4(ironBo PlastiJues7* &he appellant left @ith Alphonsine* Ae came bacB several times to get girls to bring to (ahengaRs* According to her8 he @as choosing and distributing girls to the Interahame members* C./1 @itnessed girls being raped and @as herself raped b> a member of the Interahame and a policeman @hen she had taBen refuge at the prefectural office* %he stated that almost all of the @omen @ho had taBen refuge there suffered the same fate* <6?1= C./58 @ho @as raped b> members of the Interahame8 affirmed that the appellant raped her several times8 as @ell as other @omen* (embers of the Interahame raped @omen from the prefectural office at random8 but eventuall> all of them @ere raped* %he stated that the appellant told her that he @as going to do ? %ee for e:ample R. v. Mungarere at para* /6,-* ,--./-.--00/1.-23 PA$E+ 10 @hatever he @anted @ith her because she @as going to be Billed* %he added that it @as not usual to speaB about the rapes in the prefectural office8 since all of the @omen @ere victims* <6?5= C./2 also testified that8 after nightfall8 the appellant and his group @ould come to the prefectural office to get the girls and rape them8 either on the spot or in old neighbouring houses* %he states that she sa@ him assault a girl b> the name of !ifi in front of several @itnesses* Ae also assaulted Alphonsine8 as @ell as t@o other girls b> the names of Asumpta 4@itness DD(./57 and cmFrance* %he adds that she @as raped b> members of the Interahame* <6??= C.6-Gs testimon> @as to the same effect* %he stated that the appellant @as the leader of the group @ho @ould taBe girls a@a> from the prefectural office after nightfall and se:uall> assault them* &he appellantGs group acted in this manner because its members believed the> had the right to be re@arded after the @orB the> had done* <6?2= C.63 gave a similar testimon>8 stating that the appellant allegedl> declared that the girl named Asumpta 4DD(./57 @as his propert>* &he assaults tooB place in old houses near the prefectural office or in (ahengaGs house* <62-= !inall>8 C.60 also stated that the appellant @as part of the group of rapists at the prefectural office and that he regularl> left @ith Asumpta 4DD(./57* %he allegedl> heard the appellant sa> to a member of the Interahame8 <&RAN%)A&ON= CRape the &utsis and Bill themC* <62/= C.668 C.638 and C.60 state that the Interahame tooB the @omen and girls from the prefectural office to rape them on the spot or a short distance @a>* %ometimes the> @ere held captive for several da>s* &he appellant also acted in this manner* <626= &he appellant argues that C./5 @as not able to identif> him in a lineup* Ae also impugns her credibilit> on the grounds that she tooB part in +acaca meetings and especiall> because she never mentioned his name during her testimon> before the C&R8 @hich lasted about ten da>s* On the contrar>8 she stated that8 other than %halom8 she did not Bno@ an> of the Interahame @ho @ere terroriDing the prefectural office* Ae adds that it is strange that a @itness @ho claims to have been raped several times b> the appellant failed to mention this fact prior to his trial and that she could not identif> him in a photograph* <623= &he appellantGs criticisms of the other @itnesses concern essentiall> gaps in the identification evidence and their lacB of credibilit>* Ae argues that+ K C./, lied to the judge to justif> or e:plain her perjur> before the C&R* (oreover8 her version of the facts is replete @ith contradictions and based on hearsa>* %he never spoBe about the appellant before meeting @ith the Canadian authorities and she @as unable to describe him* %he @as not able to recogniDe the Aotel (ahenga @here she @as allegedl> taBen and assaulted* K C./1 gave four different versions regarding %halomGs presence in the prefecture* &he contradictions in these versions @ere significant in that ,--./-.--00/1.-23 PA$E+ 1, %halom @as the appellantGs inseparable acol>te* (oreover8 her testimon> about the rapes @as based on hearsa>* %he @as not able to identif> the appellant in a photo lineup and learned his name from other people* K C./2 @as not able to identif> the appellant in a photo lineup and she never mentioned his name @hen she testified before the C&R* #efore the C&R8 she stated that she sa@ %halom onl> once during the genocide8 although before the judge she stated that he @as al@a>s @ith the appellant* %he also told the RC(P officers that %halom and some Interahame members that she did not Bno@ @ere responsible for the Billings8 and then connected the appellant @ith the murders of several &utsis* &he appellant also raises a risB of collusion among @itnesses C.668 C.638 and C.60 regarding the alleged rape of DD(./5* Aer testimon> about the rapes is based on hearsa>* K C.6- @as not able to identif> the appellant in a photo lineup and8 moreover8 she did not positivel> identif> him in the prisonerRs docB* Aer testimon> contains numerous contradictions and8 in a statement she gave to Canadian police officers8 she @as not able to affirm that the appellant Bidnapped girls from the prefectural office to rape them* K n a statement given to Canadian police officers8 C.66 stated that she did not Bno@ the name of the Interahame members @ho @ere Bidnapping girls from the prefectural office and that she did not @itness an> such Bidnappings b> the appellant* K C.63 did not positivel> identif> the appellant during her meeting @ith the Canadian police* %he tooB her time before implicating the appellant8 @hose name she never mentioned during her testimon> before the C&R* &here @as allegedl> collusion amongst @itnesses C./28 C.668 and C.60 regarding the rape of DD(./5* K C.60 did not positivel> identif> the appellant in a photo lineup* Hhen asBed to describe the appellant to Canadian police in 6--3 and 6--,8 she never mentioned a scar* %he learned his name from other people* Aer testimon> contained contradictions and she conspired @ith C./28 C.66 and C.63 regarding the rape of DD(./5* <620= !or all of these reasons8 the appellant argues8 it is unreasonable to rel> on their testimon> and find that he participated in the rapes that tooB place in the prefectural office and its surrounding area* Analysis <62,= &here is no dispute that the prefectural office @as the site of numerous incidents of se:ual abuse and8 in particular8 that soldiers and Interahame militia @ent there regularl> to Bidnap @omen in order to rape them* &his observation is based on evidence adduced b> both the Cro@n and the defence 4testimon> of DD(./57* <621= &he judgeGs tasB8 therefore8 @as solel> to determine @hether the evidence demonstrated be>ond an> reasonable doubt that the appellant had participated in these ,--./-.--00/1.-23 PA$E+ 11 rapes in one @a> or another8 either b> committing some of them himself or b> being and accomplice* <625= E:cept for the testimon> of C./58 @ho states that she @as personall> raped b> the appellant on a fe@ occasions8 the Cro@nGs evidence seeBs to establish that the appellant tooB part in the rapes b> choosing @omen and distributing them to the militia men and b> raping some himself* <62?= According to the appellantGs arguments8 all of the @itnesses from the prefectural office have no credibilit> @hatsoever and their testimon> as to his participation in the abuses that @ere committed there8 and more particularl> the rapes of the refugees8 @ere pure fabrication* Hith respect8 this conspirac> theor> is difficult to accept* Hhile it is true that the @itnessesG testimon> at the prefectural office are not perfect and disclose certain @eaBnesses8 there is nothing to justif> rejecting them @holesale8 as the appellant proposes* <622= &he issue of the sufficienc> of the identification evidence has alread> been addressed and treated8 as have those concerning the effect of the allegations of collusion amongst @itnesses C./28 C.668 C.638 and C.60 and the contamination resulting from the participation of some of the @itnesses in +acaca meetings* <3--= As for the rest8 the sole issue is the assessment of the credibilit> of the @itnesses* &he appellant insists above all on the fact that several @itnesses failed to implicate him immediatel>8 @hether to the C&R investigators8 to the RC(P officers8 or during their testimon> before the C&R* <3-/= Hhat the appellant is asBing the Court to do illustrates the delicac> of the tasB before appellate judges in such matters8 since that the> have not had the advantage of seeing or hearing the @itnesses* On numerous occasions8 the %upreme Court of Canada has noted that @hile an appellate court has the po@er to reject a verdict because it is unreasonable8 this ground must not become an e:cuse to ignore the findings of fact of the judge or jur>8 as the case ma> be8 @ith respect to credibilit>* n R. v. W.H.8 the %upreme Court states+ 33 R. v. >ur-e8 </221= / %*C*R* 0508 and R. v. R.&.! 6-/6 %CC 668 <6-/6= / %*C*R* 5018 @hile judge.alone cases8 further underline the great deference @hich must be sho@n b> the appellate court to the trial courtRs assessment of credibilit>* n the latter case8 Deschamps ;*8 for the majorit>8 reiterated the applicable principle as follo@s+ Hhereas the Juestion @hether a verdict is reasonable is one of la@8 @hether a @itness is credible is a Juestion of fact* A court of appeal that revie@s a trial courtRs assessments of credibilit> in order to determine8 for e:ample8 @hether the verdict is reasonable cannot interfere @ith those assessments unless it is established that the> Mcannot be supported on an> reasonable vie@ of the evidenceN 4R. v. >ur-e8 </221= / %*C*R* 0508 at para* 57* <Emphasis addedI para* /-*= /-* 30 Perhaps the most useful articulations of the test for present purposes are those found in >iniaris and >ur-e* n the former case8 Arbour ;* put it this @a>+ MW the unreasonableness W* of the verdict @ould be apparent to the legall> ,--./-.--00/1.-23 PA$E+ 15 trained revie@er @hen8 in all the circumstances of a given case8 judicial fact. finding precludes the conclusion reached b> the jur>N+ para* 32 4emphasis added7* n the latter8 %opinBa ;* concluded that a verdict based on credibilit> assessment is unreasonable if Mthe trial courtRs assessments of credibilit> cannot be supported on an> reasonable vie@ of the evidenceN+ para* 5 4emphasis added7* Hhile appellate revie@ for unreasonableness of guilt> verdicts is a po@erful safeguard against @rongful convictions8 it is also one that must be e:ercised @ith great deference to the fact.finding role of the jur>* &rial b> jur> must not become trial b> appellate court on the @ritten record* <3-6= n this case8 the judge dul> noted and considered the main contradictions and the fact that some of the @itnesses @ere slo@ to implicate the appellant 4especiall> in his reasons in the confidential schedule8 @hich is more detailed than the public judgment7* n particular8 as a general rule8 he outlined the @itnessesG e:planations and his reasons for accepting them* %ince the Court is not in a position to assess the sincerit> of the e:planations and justifications given b> the @itnesses because it did not see or hear them8 the judgeGs conclusions in this respect @arrant deference* <3-3= n short8 @hile some of the elements of the testimon>8 considered separatel>8 ma> appear Juestionable or create a vague sense of unease8 it is important to consider all of the evidence as a @hole @hen determining @hether the verdict is unreasonable* "nless all of the @itnessesG testimon> of the @itnesses from the prefecture can be rejected as a @hole8 it must be found that the judge had sufficient evidence to conclude be>ond an> reasonable doubt that the appellant @ent to the prefecture on several occasions and tooB part in the rapes of man> of the @omen @ho had taBen refuge there* (C) The road$loc%s <3-0= (an> of the @itnesses established that8 as of the second half of April of /2208 roadblocBs @ere erected at various locations throughout the prefecture of #utare @ith the aim of preventing the passage of &utsis b> driving them bacB8 stopping them and taBing them some@here else8 or Billing them* 5i6 .he %resence of the a%%ellant at the road"loc-s <3-,= %everal of the @itnesses testified about the appellantGs presence at the roadblocBs and hise role there+ . RCH.5+ the appellant drove from one roadblocB to another and spoBe @ith the guardsI . RCH.?+ the &utsis captured at the roadblocBs @ere handed over to the people in charge8 @ho included the appellant and %halomI . RCH.2+ the appellant and %halom @ere in charge of the roadblocBs near the universit>* &he appellant gave the order to stop an>one crossing the roadblocBs @ithout an identit> cardI . RCH./-+ the appellant and %halom @ere in charge of the roadblocB near the home of (inister PaulineI ,--./-.--00/1.-23 PA$E+ 1? . RCH./68 the appellant drove from one roadblocB to another8 checBing the status of the situation at each oneI . RCH./0+ the roadblocBs @ere run b> gun.carr>ing individuals8 one of @hom @as the appellantI . C./,+ the appellant @as in charge of the roadblocB near CheD VenantI . C.6-+ the appellant spent time at the roadblocB near CheD VenantI <3-1= n addition to the criticisms regarding the credibilit> of these @itnesses8 the @eaBness of the identification evidence given b> some of them8 and the need for the judge to @arn himself @ith regard to some of the testimon>8 the appellant submits that+ . Contrar> to @hat @as affirmed b> the trial judge8 RCH.5 testified that she never sa@ or heard the appellant give orders to the guards at the roadblocBsI . RCH./- said that the appellant @as in charge of the roadblocB erected near the home of (inister Pauline8 @hile DD(./68 @ho @as @orBing there8 said that he @as not one of the guardsI DD(.0, also testified that the appellant @as not in charge of this roadblocBI . RCH./6 never set foot in the cit> of #utare during the genocide and therefore his testimon> concerned onl> the roadblocB set up near his home in (at>aDo8 a commune north of NgomaI the judge therefore erred b> accepting his testimon> that the appellant @as in charge of the roadblocBs in the cit> of #utare* (oreover8 his testimon> as to the appellantGs presence in (at>aDo @as contradicted b> RCH./- and DD(.3?* Analysis <3-5= As the respondent argues8 the Cro@n did not tr> to establish that the appellant @as in charge of one roadblocB in particular8 but rather that he @ould drive from one roadblocB to another to give orders or instructions* &his evidence tended to demonstrate not the commission of a specific underl>ing offence but8 through the role he pla>ed as an Interahame leader in the prefecture of #utare8 his Bno@ledge of the situation* <3-?= t is indeed true that RCH.5 said that he never personall> received orders from the appellant and that he never sa@ him actuall> Bill an>one* Ae did8 ho@ever8 testif> that the appellant and %halom patrolled from one roadblocB to another and that the> recruited guards* &he @itness freJuentl> sa@ the appellant in the compan> of CBillersC8 @earing militar> clothing and carr>ing a rifle* <3-2= RCH./- testified that he sa@ the appellant at the roadblocB near the home of (inister Pauline* #ut he never stated that he @as <&RAN%)A&ON= Cin charge ofC the roadblocB or that he @as there permanentl>* On the contrar>8 his testimon> is consistent @ith the Cro@nGs submission that the appellant and %halom @ould drive from one roadblocB to another8 as the @itness also told the RC(P* <3/-= RCH./6 stated that8 at the roadblocB @here he @orBed8 the appellant behaved liBe an Interahame leader 4he drove around in a vehicle8 spoBe to the guards to find ,--./-.--00/1.-23 PA$E+ 12 out @hether the> had performed their @orB properl>8 @ore militar> clothing8 and carried a LalashniBov7* <3//= &he testimon> of RCH.?8 RCH.28 RCH./08 C./, and C./1 also support the Cro@nGs theor> as to the appellantGs role at the various roadblocBs* Ae @as seen at several of them and is consistentl> described as a person of importance8 a leader8 b> @itnesses @ho in most cases did not see each other during the genocide and @ho have no connection @ith each other* <3/6= n this conte:t8 the contradictions the appellant raises 9 often minor8 secondar>8 and concerned @ith details 9 are not sufficient to set aside the judgeGs conclusion that the appellant @as one of the leaders of the Interahame in #utare* 5ii6 .he murders committed at the road"loc- near Chez 3enant <3/3= &he trial judge concluded that the appellant had participated in the murders of four &utsi individuals at the roadblocB near CheD Venant8 @hich @as ver> near the prefectural office8 on the basis of the testimon> given b> C./,8 C./18 and C./2* <3/0= According to C./,8 the appellant @as one of the leaders8 and she sa@ him murder a >oung man b> beating him @ith a sticB @hen she @as just a fe@ metres a@a>* <3/,= C./1 testified that she sa@ the appellant and other members of the Interahame bring four &utsis near CheD Venant8 hang them b> their feet8 and beat them to death* &he appellant8 @ho @as carr>ing a gun8 allegedl> said that all &utsis must die* <3/1= As for C./28 from her vantage point at the prefectural office8 she sa@ the appellant and t@o of his associates beat a >oung &utsi named %ebuBaa@ire to death* <3/5= !irst8 the appellant challenges the identification evidence of the @itnesses+ . C./, did not clearl> identif> the appellant in a lineup in 6--,8 sa>ing onl> that he looBed liBe the individual in photograph number ?* %he @as also unable to describe the appellant to the RC(P officers* . C./1 did not Bno@ the appellant before /220 and she learned his name from other people* %he @as unable to identif> him in the photo lineup organiDed b> the RC(P officers8 although she @as able to do so in the photo lineup presented to her at trial because the appellant @as present* &his identification therefore is of no valueI . C./2 @as not able to identif> the appellant in the photo lineup* %he @as able to do so onl> at trial8 @hich is of no value* <3/?= Ae also impugns their credibilit> for the reasons alread> stated in the section on the rapes that tooB place at the prefectural office* Analysis <3/2= &he criticisms of @itnesses C./,8 C./1 and C./2 have alread> been discussed8 and the Court has found that there @as no reason to set aside the judgeGs findings as to their credibilit>* ConseJuentl>8 the judgeRs conclusions regarding the murders committed near the roadblocBs at CheD Venant are not unreasonable* ,--./-.--00/1.-23 PA$E+ 5- 5iii6 .he murders committed at the university la"oratory <36-= &he judge relied on the testimon> of RCH./- and RCH./0 to conclude that the appellant directl> participated in the murder of &utsis behind or ver> near the universit> laborator>* <36/= RCH./- stated that the appellant8 @ho @as at the roadblocB near the home of (inister Pauline8 forced about fort> &utsis into three small trucBs and carried them behind the universit> laborator>* &here the> @ere forced to undress and then e:ecuted b> the appellant8 %halom8 and another member of the Interahame* &he appellant used a Bnife* <366= RCH./0 testified that there @as a grave behind the laborator>* Ae @itnessed the appellant along @ith %halom and another member of the Interahame bring si: &utsis there to be e:ecuted* On another occasion he sa@ the appellant bring &utsis there but he did not @itness their e:ecution* Ae did hear the gunfire8 ho@ever* <363= &he appellant faults the judge for failing to consider that8 in 6---8 @hen RCH./- @as Juestioned b> the RC(P8 he stated that he never sa@ the appellant Bill an>one at all* Although he stated the contrar> in intervie@s in 6--3 and 6--08 these statements @ere not used b> the defence and could not be used in ree:amination b> the Cro@n8 as the> in fact @ere* Citing R. v. (llard8 6--2 %CC 658 <6--2= 6 %*C*R* /28 the appellant submits that the judge could not allo@ the Cro@n to enhance the credibilit> of the @itness b> adducing subseJuent statements in ree:amination* Ae argues that the judge should not have assigned an> credibilit> to this @itness because of his participation in the murder of &utsis8 his collusion @ith other detained @itnesses8 his participation in the +acaca meetings8 and contradictions @ith his o@n statements and those of other @itnesses* <360= Regarding RCH./08 the appellant points out that the @itness @as unable to identif> him in photo lineups in 6--3 and in (arch of 6--,8 but the judge relied onl> on a later identification at the rogator> commission* (oreover8 during his testimon>8 RCH./0 contradicted a prior statement in @hich he had stated that he did not see the appellant Bill an>one @hatsoever* !inall>8 he @as a detained @itness @ho @as convicted for his participation in the genocide8 @ho participated in the +acaca meetings8 and @ho @as tard> in implicating the appellant* As a result of all of these factors8 he is not credible* Analysis <36,= "pon reading the Cro@nGs ree:amination of RCH./-8 it is clear that the objective @as solel> to enhance the @itnessGs credibilit> follo@ing his cross.e:amination b> presenting other statements made to the RC(P* Aside from a fe@ e:ceptions not applicable here8 such evidence is inadmissible and should not have been considered b> the judge for the purposes of assessing the credibilit> of RCH./- 4(llard8 at paras* 3/ and 367* <361= As the follo@ing e:cerpt from his judgment sho@s8 the judge tooB these statements into consideration+ <&RAN%)A&ON= ,--./-.--00/1.-23 PA$E+ 5/ <,13= Comments+ Ae testified at length8 @ith precision and rigour* Ae remained credible despite contradictions bet@een his testimon> in court and some of his @ritten statements* Other @ritten statements @ere consistent @ith his testimon>* 4see also para* 6/1 of the Confidential %chedule7* <365= &he Court does not find that this @as a mere technical error @ith no negative conseJuences for the appellant* Rather8 it concludes that this @as a serious error of la@ 4see R. v. $.$.S.8 6--1 N%CA 30 at para* ?07* <36?= n the circumstances8 the Court must taBe no account of the testimon> of RCH. /- as it concerns the incident of the murders behind the universit> laborator>* <362= &he fact remains8 ho@ever8 that @itness RCH./0 testified as to the appellantGs participation in the murders of &utsis near the universit> laborator>* <33-= Despite his failure to identif> the appellant during the photo lineup in 6--,8 RCH. /0 positivel> identified the appellant @ithout an> hesitation @hen the lineup @as presented to him again during the rogator> commission8 @hen the appellant @as not present* At the time8 he also testified that there @as a ver> visible scar on the appellantGs face* <33/= n short8 although there admittedl> are discrepancies bet@een the RCH./0Gs testimon> before the judge and some of the statements he made to the RC(P officers8 the fact remains that each of his accounts attested to the presence and active participation of the appellant in the murder of &utsis behind the laborator>8 albeit to var>ing degrees* n one version8 the appellant @as giving orders8 @hile in the other8 he shot at some of the refugees* &o determine his guilt8 ho@ever8 it matters little @hether the appellant committed the underl>ing offence of ordering the murders or @hether he pulled the trigger himself* <336= !or these reasons8 the Court finds that the conclusions of the judge as to the appellantGs participation in the murder of the &utsis behind the universit> laborator> should not be set aside* (() The other incidents <333= &he Cro@nGs @itnesses also reported other murders8 rapes and pillage committed b> the appellant in various other locations @ithin the commune* 5i6 Murder of a girl in the yard "ehind the merchant #eliciJs home <330= According to RCH.//8 the appellant Billed a girl in the court>ard behind the house belonging to !elici8 a rich &utsi from the Ngoma commune8 @hile the house @as being pillaged* <33,= &he appellant submits that RCH.// @as contradicted b> DD(.368 a @itness for the defence8 regarding his presence at the scene* (oreover8 RCH.// is not corroborated b> an> other @itness* &he appellant argues that8 considering his poor credibilit>8 his participation in +acaca meetings8 and the fact that he signed the letter to the Canadian authorities8 there is no reliable evidence of his participation in the murder of a >oung girl at !eliciGs residence* ,--./-.--00/1.-23 PA$E+ 56 Analysis <331= %etting aside the judgeGs conclusion on this incident because he failed to e:plicitl> discuss the contradiction bet@een RCH.// and DD(.36 @ould be unjustified* n fact8 because the judge stated that he assigned no credibilit> to DD(.368 @ho also tended to minimiDe his o@n participation in the attacBs against the &utsis8 it follo@s that the apparent contradiction no longer e:ists* <335= As for the other grounds raised8 the> have alread> been rejected* 5ii6 .he re%eated ra%e of his .utsi cousin <33?= C.6/8 a &utsi8 is the appellantGs cousin* During the genocide8 she tooB refuge at the home of the appellantGs father to hide* %he states that she @as assaulted b> the appellant on five occasions in the room of an anne: of the residence @here she @as hiding out* <332= n addition to his arguments relating to the <&RAN%)A&ON= CprivateC or <&RAN%)A&ON= CpersonalC nature of the assaults committed against C.6/8 @hich do not merit our attention8 the appellant impugns the credibilit> of this @itness* Ae argues that she did not report the assaults until 6--, and that she @rote a letter in 6--/ to mmigration Canada in support of the appellant* (oreover8 her version of the facts is contradicted b> @itnesses for the defence8 and particularl> b> DD(./?8 @ho @as sta>ing in the same room as C.6/ and states that she never sa@ the appellant8 never heard C. 6/Rs cries8 and never observed the injuries that C.6/ claims she suffered* Analysis <30-= &he appellant is mistaBen @hen he states that DD(./?Gs testimon> should have raised a doubt in the mind of the judge because he deemed her to be generall> <&RAN%)A&ON= CcredibleC* Although the judge did indeed sa> this8 care must be taBen not to isolate this comment from the rest of his reasons* ndeed8 he also stated that DD(./? <&RAN%)A&ON= C@as not credible @hen she said she did not discuss her testimon> @ith her famil>8 particularl> her mother or Delphine8 @ho had alread> testifiedN* <30/= &he judge also said that Delphine8 the appellantGs sister8 had no credibilit> concerning C.6/ and the famil> discussions8 because she obviousl> @anted to help her brother* Ae came to the same conclusion @ith regard to the appellantGs mother 4<&RAN%)A&ON= CCertain of her sonRs innocence8 she @ould do an>thing to help himC7 and added that her ans@ers often seemed prepared to counter the Cro@nGs evidence* <306= (ore generall>8 the judge considered the testimon> of the famil> of the accused to have little credibilit>+ <&RAN%)A&ON= </23,= Although the> denied it8 the @itnesses from the accusedGs famil> prepared their testimon> together in order to help him* &hat might be a natural reaction8 but b> repeatedl> den>ing the obvious8 one loses much credibilit>* <303= (oreover8 on the basis of C.6/Gs testimon>8 the judge found that some members of the appellantGs famil> had asBed her to sa> nothing to Canadian police officers* DD(. ,--./-.--00/1.-23 PA$E+ 53 /? allegedl> contacted her so that the people living at the appellantGs fatherGs house could meet <&RAN%)A&ON= Cto see @hat @as said8 if itGs properl> transcribed or if there @as something @e forgot or that should be addedC* <300= n short8 it is erroneous to state that the judge attributed total credibilit> to DD(. /? for ever>thing she said and that he held t@o contradictor> beliefs b> accepting both her testimon> and that of C.6/* On the contrar>8 his reasons reveal that he did not accept the evidence of the appellantGs famil> about the incidents involving C.6/ and accepted the latterGs version instead* n this respect8 the appellant submits no valid argument that @ould justif> the Court in setting aside this conclusion* <30,= C.6/ also provided a plausible e:planation of @h> she dela>ed before reporting the assaults 4she felt guilt> and @as ashamed8 emotions that she overcame thanBs to the support of an organiDation helping genocide victims7 and of the conte:t of her signing of the letter recommending the appellant to mmigration Canada 4after constant pressure from one of the appellantGs cousins8 @ho dictated the contents of the letter7* 5iii6 &illage of the houses and "usinesses "elonging to .utsis <301= &he acts of pillage concern onl> the seventh count* &he Cfro@n tried to prove three distinct incidents+ pillage of RCH.3Gs home8 pillage of RCH.,Gs business8 and pillage of the shops on the commercial street of the cit> of #utare* <305= &he judge @as of the vie@ that the appellant tooB part in the pillage of RCH.3Gs house in Ngoma* Ais conclusion @as based on the testimon> of RCH.3 and RCH.//* <30?= RCH.3 stated that the appellant and his group @ent to her house three times 4in April8 earl> (a>8 and ;une7* On the first t@o occasions8 she @as hiding and heard the assailants looting the home* &he third time8 she states that she @as assaulted b> the appellant8 @ho then thre@ her out of her house* %he also spoBe of her television being stolen during this third attacB* <302= RCH.// stated that the assailants @ere unable to enter RCH.3Gs house* Ae acBno@ledged8 ho@ever8 that the appellant @ent to RCH.3Rs residence on t@o occasions and tried to attacB her* <3,-= Regarding RCH.38 the appellant faults the judge for failing to deal @ith the elements relating to the voice identification8 pointing out that no evidence established ho@ RCH.38 @ho @as hidden8 could have recogniDed the appellantGs voice since8 contrar> to @hat she claimed8 she did not Bno@ him* (oreover8 @hen she referred to the third visit8 she did not mention a scar on his face and8 @hen asBed @hether he had an> distinguishing marBs8 she even ans@ered in the negative* During a photo lineup8 she hesitated bet@een t@o photos and said that she <&RAN%)A&ON= MpreferredC the one of the appellant* !inall>8 she claimed that she Bne@ the appellantGs famil> members @ell8 but she @as unable to name them* &he famil> members said that the> Bne@ her* &here are also numerous contradictions @ith her prior statements* &he appellant submits that8 for all of these reasons8 the judge should not have accepted RCH.3Gs testimon>8 especiall> since there @ere flagrant contradictions bet@een it and that of RCH.//* ,--./-.--00/1.-23 PA$E+ 50 <3,/= n the vie@ of the Court8 the evidence establishes that the appellant @ent to RCH.3Gs house at least t@ice and8 because clearl> the judge decided that RCH.3 @as credible8 that a television had been stolen* <3,6= &he judge found8 on the basis of the testimon> of RCH., and his emplo>ee8 RCH.18 that the appellant participated in the looting of RCH.,Gs business* <3,3= &he business of RCH.,8 a #utare merchant8 @as located near the universit>* Ae stated that the appellant8 %halom8 and a group of members of the Interahame arrived carr>ing @eapons8 pillaged his store8 and stole some motorbiBes* <3,0= RCH.18 @ho lived at the store and @orBed there seven da>s a @eeB8 stated that he @itnessed three attacBs 4April 668 (a> /?8 and ;ul> 67 b> a group of members of the Interahame8 including the appellant* &he group allegedl> pillaged the store and stole eJuipment 4refrigerator8 television8 RCH.,Gs vehicle8 motorbiBes8 and other propert>7* <3,,= !irst8 the appellant argues that the identification evidence given b> these t@o @itnesses is @eaB* !or e:ample8 RCH., said that he identified the appellant during the first incident b> his voice8 even though he had not seen him in four >ears* As for the visual identification8 the @itness allegedl> sa@ the appellant in conditions that made it difficult to observe clearl> and reliabl> 4distance8 @eather8 stress8 fear7* As for RCH.18 he @as not able to positivel> identif> the appellant in a photo lineup8 sa>ing onl> that one of the photographs <&RAN%)A&ON= Cresembled himC* &he appellant also raises contradictions bet@een their testimon> and prior statements* <3,1= &he respondent recogniDes that there are contradictions and discrepancies bet@een the testimon> given b> RCH., and that of RCH.18 particularl> in respect of the seJuence of the attacBs8 the acts committed during each one8 and @hen it @as that the assailants stole the motorbiBes* According to the Cro@n8 these contradictions and discrepancies ma> be e:plained b> the passage of time and the difficult conditions the @itnesses @ere in at the time of the events* &herefore8 the contradictions raised b> the appellant are not sufficient to set aside the conclusions of the judge8 @ho in fact tooB into account the imprecision and considered the @eaBnesses of the testimon>* <3,5= &he Court shares the opinion of the respondent* <3,?= !irst8 several of the alleged contradictions concern facts that are peripheral to @hether the appellant participated in the attacB on RCH.,Gs business* !or e:ample8 this is the case @ith respect to the possible counterfeiting of RCH.,Gs identit> card8 his solvenc>8 and @hat happened once he @as forcibl> brought outside* <3,2= %econd8 @hile it is true that the seJuence of the attacBs as related b> RCH., and RCH.18 @ho did not necessaril> observe the same things from @here the> @ere at the time8 do not coincide in ever> respect8 the fact remains that the> provided relativel> similar details about at least one of the attacBs+ . &he appellant @as @earing a militar> shirt and civilian pantsI . Ae @as carr>ing a long rifle8 part of @hich @as @ooden 4RCH., added that it @as a LalashniBov7I ,--./-.--00/1.-23 PA$E+ 5, . Ae opened the doors of the business b> pulling on them @ith his gunI . Ae used a red &o>ota trucB into @hich he put the propert> taBen b> the assailantsI . (otorbiBes belonging to RCH., @ere taBen 4although the date on @hich this theft occurred differs bet@een the t@o versions7I . &here @ere bet@een /, and 6- assailants* <31-= Considering that RCH.,Gs business @as the target of the Interahame and the soldiers on a fe@ occasions8 as @ell as the length of the armed conflict and its intensit>8 the confusion as to the dates of the various incidents related b> the @itnesses is understandable8 especiall> @hen their traumatiDing nature is considered* t should also be noted that8 in cross.e:amination8 RCH.1 ultimatel> admitted that he @as confused and that he @as having trouble @ith his sense of time* <31/= n short8 despite a certain amount of confusion about dates and some differences in the details8 it @as open to the judge to accept the testimon> of RCH., and RCH.1 in support of his conclusion that the appellant participated in the attacBs on RCH.,Gs business8 its pillage8 and in the theft of the propert> in it* <316= !inall>8 the trial judge affirmed that the appellant <&RAN%)A&ON= Clooted stores belonging to &utsiC @ithout providing an> more detail* !rom his summar> of the evidence8 it is clear that he based this conclusion on the testimon> of RCH.28 @ho stated that he t@ice sa@ the appellant breaB into shops in the business district of the cit> of #utare8 loot them8 and steal eJuipment that he loaded into a small @hite trucB* <313= According to the appellant8 the procedure in @hich he @as identified b> RCH.2 @as invalid8 since the police had implied to him that he had a scar on his face* Hhile RCH.2 had ans@ered in the negative8 the description of the appellant that he gave in the rogator> commission @as different* (oreover8 he never positivel> identified the appellant in a photo lineup8 sa>ing onl> that he <&RAN%)A&ON= CbelievedC that one of the photographs @as of him* &he appellant adds that this @itness tooB part in the +acaca meetings8 co.signed the letters from the detainees8 and discussed the appellantGs trial @ith the said detainees* <310= &he argument of lacB of credibilit> due to participating in the +acaca meetings and signing the letter from the detainees has alread> been addressed and rejected* <31,= As for the identification evidence8 it @as sufficient* n 6--,8 @hen Canadian investigators carried out a lineup8 he positivel> identified the appellantGs photograph8 although @ith difficult>* n his testimon> before the rogator> commission8 he again identified the correct photograph8 @hile e:plaining in cross.e:amination that the initial identification @as difficult because of the passage of time and because he did not Bno@ @hen the photographs he @as given had been taBen* <311= &he fact that8 during an intervie@ in 6---8 the Canadian police officers asBed him @hether the appellant had scars on his face does not affect the probative value of this evidence8 since the scars are not apparent on the appellantGs photograph that @as used in the lineup* ,--./-.--00/1.-23 PA$E+ 51 <315= &herefore8 there is no justification to set aside the testimon> of RCH.28 @hich @as accepted b> the judge* ARE THE 7ER"CT% !U%TFE"A <31?= n this final section8 the Court @ill discuss the reasonabilit> of the verdicts rendered on each of the counts against the accused in light of the elements of each of the offences8 the evidence accepted b> the Court8 and the admissions* <312= &he appellant admitted that there @as a @idespread and s>stematic attacB directed against the civilian &utsi population in #utare prefecture* Ae also admitted that8 on April 3-8 /2208 the &utsis @ho had taBen refuge in the Ngoma church @ere massacred* <35-= Almost all of the Cro@n @itnesses8 @ho for the most part @ere in no @a> connected @ith each other8 stated that the appellant acted as a leader during the events that tooB place in the #utare prefecture bet@een April and ;ul> of /220* &hat is @h> the judge found that he @as <&RAN%)A&ON= Cat the forefront of the genocidal movementC8 nstead of refraining and refusing to taBe part in the genocide8 he chose to participate activel> as Interahame leader and as a member of the local elite* <35/= &he judge also concluded that the appellant had distributed @eapons and uniforms to the Interahame8 basing this finding on the testimon> of RCH.6 and RCH. ?8 @hich confirmed the important role he pla>ed* <356= &hus8 the evidence establishes that the appellant had the intent to attacB &utsis specificall> and that he @as at the forefront of the armed conflict in the #utare prefecture* F,-./ c0un/: ;en0c,1e By :u-1e- <353= &o succeed8 the Cro@n had to demonstrate be>ond an> reasonable doubt that8 bet@een April / and ;ul> 3/8 /2208 in the prefecture of #utare8 the appellant caused or contributed substantiall> to deaths8 and that he had the intent to cause the death of the victims or to inflict serious injur> that he Bne@ @as liBel> to cause death and @as recBless as to @hether death ensued8 @ith the intention of destro>ing the &utsis* <350= &he evidence summariDed in the previous section establishes each of these elements8 in particular the murders at the prefectural office8 at the Ngoma church8 and at the roadblocB near CheD Venant8 and the intent to cause death because the victims @ere members of the &utsi ethnic group* %ec0n1 c0un/: ;en0c,1e By .e-,0u. B01,<y 0- :en/a< 2a-: <35,= &o succeed8 the Cro@n had to demonstrate be>ond an> reasonable doubt that8 bet@een April / and ;ul> 3/8 /2208 in the prefecture of #utare8 the appellant committed or aided in committing serious acts such as se:ual violence and rape in particular8 and that he intended to commit such acts @ith the intent of destro>ing &utsis* <351= &he evidence establishes each of these elements8 in particular the rapes at the prefectural office and at his parentsG home8 @hich @ere committed because the victims @ere members of the &utsi ethnic group* ,--./-.--00/1.-23 PA$E+ 55 T2,-1 c0un/: c-,:e. a;a,n./ 2u:an,/y By :u-1e- <355= &o succeed8 the Cro@n had to demonstrate be>ond an> reasonable doubt that8 bet@een April / and ;ul> 3/8 /2208 in the prefecture of #utare8 the appellant caused or contributed substantiall> to deaths8 and that he intended to cause the death of the victims or to inflict serious injur> that he Bne@ @as liBel> to cause death and @as recBless as to @hether death ensued8 as part of a @idespread attacB directed against the &utsi of @hich the appellant had Bno@ledge and @ith the a@areness that his acts @ere part of it* <35?= &he evidence establishes each of these elements8 in particular the murders at the prefectural office8 at the Ngoma church8 and at the roadblocB at CheD Venant8 the intent to cause death as part of a @idespread attacB against the &utsi of @hich he had Bno@ledge8 and that he @as a@are that the murders he @as committing @ere a part of this attacB* F0u-/2 c0un/: c-,:e a;a,n./ 2u:an,/y By .e4ua< 5,0<ence <352= &o succeed8 the Cro@n had to demonstrate be>ond an> reasonable doubt that8 bet@een April / and ;ul> 3/8 /2208 in the prefecture of #utare8 the appellant committed se:ual violence or aided in the commission thereof8 as part of a @idespread attacB directed against the &utsi of @hich the appellant had Bno@ledge and @ith the a@areness that his acts @ere part of it* <3?-= &he evidence establishes each of these elements8 in particular the rapes at the prefectural office and his parentsG home8 @ithout the consent of the victims because the> @ere committed b> force or under threat as part of a @idespread attacB against the &utsis of @hich he @as a@are8 and that he @as a@are that the acts of se:ual violence he @as committing @ere a part of this attacB because he @as one of its leaders* F,3/2 c0un/: Ca- c-,:e. By :u-1e- <3?/= &o succeed8 the Cro@n had to demonstrate be>ond an> reasonable doubt that8 bet@een April / and ;ul> 3/8 /2208 in the prefecture of #utare8 there @as an armed conflict8 that the appellant caused the death or contributed substantiall> to the death of persons @ho @ere not parties to the armed conflict8 that intended to cause the death of the victims or to inflict serious injur> on them that @as liBel> to cause their death and he @as recBless as to @hether death ensued8 and finall>8 that there @as a ne:us bet@een the Billings and the conflict* <3?6= &he e:istence of an armed conflict bet@een the Ra@ndan Armed !orces and the Ra@andan Patriotic !ront8 @hich tooB place in R@anda8 including the prefecture of #utare8 has on numerous occasions been characteriDed as a non.international armed conflict* ts e:istence and its characteriDation are admitted b> the appellant and reJuire no further discussion* <3?3= (oreover8 the evidence establishes that the appellant had Bno@ledge of the conflict8 that he murdered civilian &utsis not involved in the conflict at the prefectural office in the cit> of #utare8 at the church8 and at the roadblocB near CheD Venant8 his intent to cause death8 and a ne:us bet@een this conflict and the murders8 the latter ,--./-.--00/1.-23 PA$E+ 5? having been committed to eliminate civilian &utsis believed to be members of an enem> ethnic group* %,4/2 c0un/: Ca- c-,:e. By .e4ua< 5,0<ence <3?0= &o succeed8 the Cro@n had to demonstrate be>ond an> reasonable doubt that8 bet@een April / and ;ul> 3/8 /2208 in the prefecture of #utare8 there @as an armed conflict8 that the appellant committed se:ual violence or contributed substantiall> to its commission against persons @ho @ere not parties to the armed conflict8 and8 finall>8 that there @as a ne:us bet@een the acts of se:ual violence and the conflict* <3?,= &he evidence and the admissions establish each of these elements8 in particular an armed conflict in all of R@anda8 including in the prefecture of #utare8 of @hich the appellant had Bno@ledge8 the repeated rapes of civilian &utsi @omen not involved in the conflict8 at the prefectural office in the cit> of #utare and at his parentsG home8 the lacB of consent but especiall> the use of force and threats8 and a ne:us bet@een the conflict and the rapes8 the rapes having been committed to crush and destro> the &utsi civilians8 to maBe them lose their dignit>8 and to @ipe them out on the grounds that the> belonged to an enem> group* %e5en/2 c0un/: Ca- c-,:e By ?,<<a;e <3?1= &o succeed8 the Cro@n had to demonstrate be>ond an> reasonable doubt that8 bet@een April / and ;ul> 3/8 /2208 in the prefecture of #utare8 there @as an armed conflict8 that the appellant committed pillage or aided in committing pillage against persons @ho @ere not parties to the armed conflict8 that he intended to commit such acts8 and finall>8 that there @as a ne:us bet@een the conflict and the pillage* <3?5= &he evidence and the admissions establish each of these elements8 in particular an armed conflict in all of R@anda8 of @hich the appellant had Bno@ledge8 theft of private propert>8 of propert> belonging to &utsi merchants @ho @ere not parties to the armed conflict8 to @it+ RCH.,Gs business and the stores on the commercial street of the cit> of #utare8 led b> the appellant as the head of an organiDed group8 and a ne:us bet@een the conflict and the pillage8 the pillage having been committed to allo@ the appellant and the members of his Autu group to appropriate the propert> of &utsi merchants* As for the acts alleged to have been committed at RCH.3Rs home8 the evidence does not justif> concluding be>ond an> reasonable doubt that acts of pillage occurred there* ,--./-.--00/1.-23 PA$E+ 52 CONCLU%ON <3??= !or these reasons8 the Court dismisses the appeal*
PERRE ;* DA)PAOND8 ;*A A))AN R* A)&ON8 ;*A* !RANdO% DO'ON8 ;*A* (tre Richard Perras CORDEA" PARc (E"NER et A%%OCc% (tre (>lUne Dimitri #O")c D(&R AVOCA&% (tre (arie.Pier #arbeau !or the appellant (tre (ichel !* Denis (tre Pascale )edou: Director of Criminal and Penal Prosecution !or the respondent (tre David $rossman (tre Audre> #octor (tre DaphnF Hermenlinger RVN$ (&CAE)) LA)CA(AN !or the interveners Date of hearing+ April 66 to 6,8 6-/3
An Act To Enact The Act To Promote Access To Family Medicine and Specialized Medicine Services and To Amend Various Legislative Provisions Relating To Assisted Procreation