Bill C-19: Crimes Against Humanity Act (LS-360E)

This document was prepared by the staff of the Parliamentary Research Branch to provide Canadian Parliamentarians with plain language background and analysis of proposed government legislation. Legislative summaries are not government documents. They have no official legal status and do not constitute legal advice or opinion. Please note, the Legislative Summary describes the bill as of the date shown at the beginning of the document. For the latest published version of the bill, please consult the parliamentary internet site at www.parl.gc.ca.

HOUSE OF COMMONS		SENATE
Bill Stage	Date	Bill Stage	Date
First Reading:	10 December 1999	First Reading:	14 June 2000
Second Reading:	8 May 2000	Second Reading:	22 June 2000
Committee Report:	7 June 2000	Committee Report:
Report Stage:	9 June 2000	Report Stage:
Third Reading:	13 June 2000	Third Reading:

Royal Assent: Statutes of Canada N.B. Any substantive changes in this Legislative Summary which have been made since the preceding issue are indicated in bold print.

Bill C-19, the proposed Crimes Against Humanity Act, was introduced in the House of Commons and given First Reading on 10 December 1999. The bill has two main purposes: 1) to implement Canada’s obligations under the Rome Statute of the International Criminal Court (the Rome Statute) to ensure its ability to cooperate fully with investigations and prosecutions by the International Criminal Court (ICC); and 2) to retain and enhance Canada’s capacity to prosecute and punish persons accused of crimes against humanity and war crimes.

The ICC will have complementary jurisdiction with national legal systems over the following international crimes: genocide, crimes against humanity, war crimes, and aggression. In the case of aggression, the Court will be able to exercise its jurisdiction only once a definition of this crime has been agreed upon by States Parties and included in the Rome Statute through an amendment. The other three offences are defined in the Statute.

Originally developed in response to the unprecedented atrocities perpetrated under the Nazi regime during World War II, the concept of crimes against humanity, including genocide, was originally conceived as a branch of war crimes in international criminal law. International law soon dropped the notion that there was any necessary link between such crimes and armed conflict, however, and recognized crimes against humanity as a basis of international criminal liability distinct from war crimes. Nonetheless, it is still common for the term "war crimes" to be used in reference to acts of genocide or other crimes against humanity, as well as violations of the laws of armed conflict per se.

The ICC would be able to impose a variety of sanctions, up to and including life imprisonment, on persons convicted by it for crimes under the Statute.

The ICC will come into existence after 60 states have ratified the Rome Statute. While only eight states ratified it to date, the Rome Statute enjoys wide support among nations. The Statute was adopted at a diplomatic conference in Rome on 17 July 1998 by a margin of 120 to seven, with 21 abstentions; to date, some 90 countries have signed it. The Minister of Foreign Affairs and International Trade signed the Statute on behalf of Canada on 18 December 1998. The Rome Statute is the product of several years work in which Canadian officials played a key role; however, the idea of a permanent international criminal court goes back a number of decades.(1)

As indicated, the Court’s jurisdiction will be complementary to that of national criminal justice systems, which will retain primary responsibility for the prosecution of these international crimes.(2) The Court’s purpose will be to close the gaps in the current system by acting where states that would otherwise exercise prosecutorial jurisdiction are either unwilling or unable to do so. Also, as a permanent court, the ICC will help to address the problem of selective enforcement, which has been a major limitation of the ad hoc efforts at international criminal prosecution to date.

Even in cases where the ICC decides to act itself, the success of its efforts will be dependent on the cooperation of national governments. National governments will be required to assist the Court in such ways as: arresting and surrendering persons sought by the Court; gathering evidence requested by the Court; preserving the integrity of the Court’s processes; and enforcing orders of the Court (see Part 9 of the Rome Statute). Article 88 of the Statute specifically obliges states to ensure that their national law can accommodate "all of the forms of cooperation which are specified…"

Canada has already made a number of changes to its extradition and mutual legal assistance laws which enhance its ability to cooperate with the ICC. In 1999, a new Extradition Act, S.C. 1999, c. 18, (Bill C-40 of the previous Session) was enacted which, among other things, extended the law to cover extradition requests from "entities" such as international criminal tribunals, as well as from other states. That Act also streamlined the extradition process in favour of requesting jurisdictions and generally updated Canada’s extradition law and the Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4^th Supp.),(3) by expanding the forms of cooperation available to requesting jurisdictions.

Bill C-19 would expand upon these recent measures and would make a number of additional changes to provide further support and cooperation to the ICC.

The bill would create new offences under Canadian domestic law of genocide, crimes against humanity, war crimes, and breach of command responsibility by military commanders or other superiors and these would be identical to crimes within the ICC’s jurisdiction. This would facilitate extradition by eliminating any argument under the dual criminality rule of extradition law that the offence for which an accused’s surrender was sought by the ICC did not exactly correspond to an offence under Canadian law.

Bill C-19 would also amend the Extradition Act and the Mutual Legal Assistance in Criminal Matters Act to make special and more favourable provision for the treatment of ICC requests for extradition or mutual legal assistance. At the same time, the bill would take the opportunity to make amendments to the Mutual Legal Assistance in Criminal Matters Act aimed at facilitating cooperation with requests generally.

The bill would also create new offences against the administration of justice (e.g., bribery, corrupting or intimidating a witness, perjury, filing false affidavits, etc.) which would apply specifically to ICC proceedings.

Finally, the bill would create a Crimes Against Humanities Fund into which would be paid proceeds from fines and forfeitures imposed in respect of offences under the proposed Act, as well as proceeds from the enforcement in Canada of ICC orders for the forfeiture of assets and for the payment of fines and reparations. Payments from this fund would then be made either to the ICC’s Trust Fund, or directly to victims.

Following World War II, Canada, like other Allied countries, conducted a series of military trials of enemy personnel alleged to have committed war crimes against its soldiers. By 1948, however, Canadian forces had been repatriated from Europe and Canadian and Allied interest in continuing with further prosecutions was waning.(4) For Canada, the issue of war criminals lay dormant until the early 1980s.(5) In 1983, Canada extradited Helmut Rauca to the Federal Republic of Germany to face trial for war crimes. In 1985, the federal government appointed a public inquiry, headed by Justice Jules Deschênes of the Quebec Superior Court, to look into the question of World War II era war criminals who might be resident in Canada and to make recommendations on possible measures that could be taken to bring such persons to justice.

In December 1986, Justice Deschênes submitted his report. He concluded that there were 20 cases of suspected war criminals living in Canada that the government should definitely pursue, and a further 127 cases that required additional information or investigation before a final decision could be taken.(6) In terms of the legal remedies that should be pursued in these cases, Justice Deschênes recommended the following measures, in order of preference: extradition; criminal prosecution in Canada; and denaturalization and deportation.(7) To accommodate criminal prosecution of such persons in Canada, it was recommended that the Criminal Code be amended to give Canada jurisdiction to prosecute persons guilty of acts committed outside Canada that amounted to war crimes or crimes against humanity. As a result of the Deschênes Commission’s recommendation, amendments to the Criminal Code were adopted in 1987 in the form of sections 7(3.71) to 7(3.77).

The first and only case prosecuted under these provisions was that of Imre Finta. Finta was acquitted and the case was appealed. In 1994, the Supreme Court of Canada upheld the constitutionality of the Criminal Code war crimes/crimes against humanity provisions, but refused to overturn the acquittal. The majority judgment of the Court interpreted the relevant law in a way that made such prosecutions more difficult than expected. As a result of the Finta case, the government shifted its emphasis to the citizenship revocation and deportation process.

Bill C-19 seeks to retain and enhance Canada’s ability to conduct domestic prosecutions for such crimes. The bill would replace the jurisdictional provisions in sections 7(3.71) to 7(3.77) of the Criminal Code with actual offences of genocide, crimes against humanity, and war crimes committed outside Canada. The bill would also codify the defence of superior orders as it applies to such offences; and would essentially preclude an accused’s reliance on propaganda against a civilian population or identifiable group of persons as the basis for a reasonably held belief in the lawfulness of an order to commit acts amounting to genocide, crimes against humanity, or war crimes.

Clause 4(1) of the bill would specifically make it an offence to commit genocide, a crime against humanity, or a war crime in Canada. Currently, these international crimes are not specifically incorporated into Canadian domestic criminal law. While grave breaches of the 1949 Geneva Conventions for the Protection of War Victims and Protocol I of 1977 are indictable offences under the Geneva Conventions Act, R.S.C. 1985, c. G-3, persons who commit other war crimes, acts of genocide, or crimes against humanity can be prosecuted in Canada only for associated domestic Criminal Code offences, such as murder, manslaughter, kidnapping, forcible confinement, etc. Section 7(3.71) of the Criminal Code provides a statutory basis for the domestic prosecution of persons accused of having committed war crimes and crimes against humanity outside of Canada in certain circumstances.(8) However, section 7(3.71) is jurisdictional only; it does not create new offences.

While the new offences in clause 4(1) of the bill would be available to deal with any such acts that might be committed in Canada in the future, the more immediate goal of this provision is to facilitate the extradition of persons sought by the International Criminal Court. Under extradition law, the "dual criminality" rule requires that the conduct for which extradition is sought be an offence in the jurisdiction from which extradition is requested, as well as in the jurisdiction seeking extradition. By enacting these three international crimes per se as domestic criminal offences, and by adopting the Rome Statute’s definitions of the crimes, clause 4 would preclude any argument that a crime in the jurisdiction of the International Criminal Court did not correspond with an offence under Canadian law.

Clause 4(2) would provide for a mandatory sentence of life imprisonment where an intentional killing formed the basis of the offence, and a possible life sentence in all other cases. With respect to the former scenario, clause 15 of the bill would provide for the application of the Criminal Code provisions on parole ineligibility for persons convicted of murder (sections 745 and following). Consequential amendments to the Corrections and Conditional Release Act, S.C. 1992, c. C-20, in clauses 38 to 41 of the bill would add genocide, crimes against humanity and war crimes to the list of offences in respect of which a sentencing court could order that parole eligibility be delayed beyond the normal period pursuant to section 743.6 of the Criminal Code.

With respect to the offences of genocide, crimes against humanity and war crimes committed within Canada, clause 4(3) would adopt the same definitions for these crimes as are used in the Rome Statute. The relevant provisions of the Statute – Articles 6, 7 and 8(2) – are set out in the Schedule to the bill.

Article 6 of the Rome Statute defines "genocide" as "any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:"

Article 7 of the Rome Statute defines "crimes against humanity" as "any of the following acts" knowingly committed "as part of a widespread or systematic attack directed against any civilian population;"

Article 8(2) of the Rome Statute provides an extensive list of violations of the laws and customs of armed conflict which constitute "war crimes." The list includes "grave breaches" of the 1949 Geneva Conventions, which include prohibited acts committed against protected persons or property, such as willful killing, torture, wanton destruction and appropriation of property not justified by military necessity, compelling service by prisoners of war in the forces of a hostile Power, and taking hostages, as well as other serious violations of the laws and customs applicable to armed conflicts. These would include intentionally directing attacks against the civilian population or non-military targets; employing prohibited weapons, materials or devices; pillaging; or conscripting or enlisting children under the age of 15.

Clause 6 would create new domestic criminal offences similar to those in clause 4 for acts of genocide, crimes against humanity, or war crimes that occurred outside Canada. Clause 8 sets out the circumstances under which Canada could assert jurisdiction over such cases. These conditions would be essentially the same as those currently set out in section 7(3.71) of the Criminal Code. Under clause 8, Canada could assert prosecutorial jurisdiction for acts of genocide, crimes against humanity, or war crimes committed outside Canada where, at the time of the alleged offence:

Clauses 6 and 8 would replace sections 7(3.71) to (3.77) of the Criminal Code (these provisions would be repealed by clause 42 of the bill). However, unlike section 7(3.71) of the Criminal Code, clause 6 would provide Canada with jurisdiction to prosecute persons directly for the international crimes of genocide, crimes against humanity, and war crimes, rather than for corresponding domestic crimes, such as murder, assault and forcible confinement. Even though the courts have held that a conviction for crimes against humanity or war crimes requires proof of additional elements of intent beyond those required in respect of any ordinary crimes subsumed therein,(10) the approach proposed in clause 6 of the bill would simplify the prosecution of such cases by eliminating the need also to prove the elements of an included Criminal Code offence.

Pursuant to clauses 6(2), 15 and 38 to 41 of the bill, the clause 6(1) offences of genocide, crimes against humanity, and war crimes committed outside Canada would be punishable in the same manner as the offences committed in Canada under clause 4 (above).

The definitions in clause 6(3) of "genocide," "crime against humanity," and "war crime," which would be applicable to out-of-Canada offences, while similar to the Rome Statute definitions adopted in clause 4 in respect of in-Canada offences, would be circumscribed by the state of international law at the time and place of the offence. The current definitions of "crime against humanity" and "war crime" in section 7(3.76) of the Criminal Code contain a similar qualification. This difference between the definition in clause 4 of in-Canada offences and the definition in clause 6 of out-of-Canada offences arises because the latter would apply to past offences as well as those in the present and future, while the former would apply only prospectively. The clause 4 in-Canada offences are aimed at ensuring Canada’s ability to cooperate with the International Criminal Court, which will have jurisdiction only over offences occurring after its establishment (see Article 24(1) of the Rome Statute). However, since some of the acts to which the clause 6 offences could be applied took place over 50 years ago, it is necessary to ensure that the content of these offences is sufficiently flexible to reflect the state of development of international law at various points in time. While Canada may retrospectively assert jurisdiction over offences, it cannot create offences retroactively. Section 11(g) of the Canadian Charter of Rights and Freedoms provides that no one may be convicted of an offence in respect of an act or omission, unless, at the time of the act or omission, it constituted an offence "under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations."

Clauses 6(4) and 6(5) would provide guidance to Canadian courts on the state of international law in this area at particular points in time.

Clause 6(4) would clarify that the definitions of "genocide," "crimes against humanity," and "war crimes" in Articles 6, 7 and 8(2) of the Rome Statute reflect the state of customary international law as of the date of the adoption of the Rome Statute (17 July 1998), and may also reflect customary international law before that date. In other words, clause 6(4) would indicate that at some point on or before 17 July 1998, the content of the clause 4 in-Canada offences and the clause 6 out-of-Canada offences would have merged. Clause 6(4) would further clarify that, notwithstanding the foregoing, other acts or omissions not covered by the Rome Statute provisions on genocide, crimes against humanity, and war crimes could also constitute crimes under applicable international conventions or customary international law that Canada could prosecute.

Clause 6(5) would clarify that offences constituting "crimes against humanity" were part of customary international law, or were criminal according to the general principles of law recognized by the community of nations, even before the Allied Powers made provision for the prosecution and punishment of major war criminals of the European Axis Powers and Japan at the conclusion of World War II. The clause seeks to address the confusion created by statements in the majority judgment in the Finta case which suggested that the offence of crimes against humanity used at the Nuremberg and Tokyo war crimes trials was a justified exception to the rule against retroactive criminal law.(11) This clause would effectively assert that such acts were crimes under international law at the time they were committed, and there is, therefore, no issue of retroactive criminality in the subsequent prosecution of those who committed them.

Under traditional rules of criminal responsibility, military commanders and other persons in authority have always been liable for any illegal acts that they order their subordinates to perform. In fact, under the law, these commanders and superiors become parties to offences resulting from the implementation of their orders and are liable to the same punishment as if they had done the acts themselves.(12) However, in the war crimes trials following World War II, principles of command responsibility were elaborated whereby commanders’ criminal liability was extended to situations where the subordinates’ illegal actions had not actually been ordered by the commander, and where the latter might not even have had knowledge of them.(13) This negligence-based approach to command responsibility has since been adopted in Protocol I of 1977 to the 1949 Geneva Conventions, the Statutes of the ad hoc UN war crimes tribunals for the former Yugoslavia and Rwanda, and the Rome Statute of the International Criminal Court. The Rome Statute also extends command responsibility to civilian superiors.

Clauses 5 and 7 are based on Article 28 of the Rome Statute and would extend the liability of military and civilian superiors to cover negligence in the command and control of subordinates that resulted in failure to prevent acts of genocide, crimes against humanity or war crimes. Currently, negligent exercise of command by Canadian military commanders could result in a charge of negligent performance of duty under section 124 of the National Defence Act, R.S.C. 1985, c. N-5. The maximum punishment for that offence is dismissal with disgrace from the Canadian Forces. The offence applies only to Canadian military personnel, however. The offences in clauses 5 and 7 of the bill, on the other hand, would carry a maximum punishment of life imprisonment and would extend to the conduct of foreign commanders as well as to that of civilians in positions of authority.

The approach under international law, reflected in Article 28 of the Rome Statute, is to make negligent commanders and superiors directly liable for the offences committed by their subordinates. However, Bill C-19 would instead create distinct offences of breach of responsibility by commanders and superiors. This approach reflects a concern, based on Charter of Rights jurisprudence, that negligence, even criminal negligence, may not constitute a sufficient level of intent in relation to the extreme stigma attaching to a conviction for genocide, crimes against humanity, or war crimes.

Under clauses 5 and 7, a military commander or superior would be guilty of an offence if he or she either:

Clauses 5 and 7 would define "military commander" to include a person in effective command as well as a person in command of police with a comparable degree of authority and control. "Superior" would be defined as any person in authority other than a military commander. This definition would include civilians in positions of authority.

An offence under clauses 5 or 7 would be punishable by imprisonment for life. Consequential amendments to the Corrections and Conditional Release Act in clauses 38 to 41 of the bill would also add these offences to the list of offences in respect of which a sentencing court could, under section 743.6 of the Criminal Code, order that parole eligibility be delayed beyond the normal period.

The clause 5 offence would apply to breaches of responsibility by commanders and other superiors in Canada, while the clause 7 offence would apply to those which take place outside of Canada. As with the clause 4 in-Canada offences, the main purpose of the clause 5 offence would be to facilitate the extradition of persons by Canada to the International Criminal Court; thus, that offence, like the Court’s jurisdiction, would apply only prospectively. The out-of-Canada offence in clause 7, on the other hand, would be aimed at cases that Canada might have an interest in prosecuting and thus would also be applicable to past acts or omissions. Therefore, as with the clause 6 offences, an act or omission that arose before the coming into force of the proposed Act could be an offence under clause 7 only if it had also been contrary to international law at the time and place where it occurred. The conditions in clause 8 for the exercise of Canadian prosecutorial jurisdiction over out-of-Canada offences in clause 6 would also apply to breaches of responsibility by commanders and superiors outside of Canada contrary to clause 7.

Article 70(4) of the Rome Statute obliges each State Party to extend its criminal laws that seek to protect the integrity of its own investigative and judicial processes to like offences committed in relation to the ICC, its personnel, and processes. Clauses 16 to 23 of the bill seek to fulfil this obligation.

Clauses 16 to 23 would enact new offences in respect of ICC proceedings and personnel which correspond to the following Criminal Code offences against the administration of justice:

These new offences would generally carry the same penalties as the corresponding Criminal Code offences.

In addition to creating offences under Canadian criminal law to deal with persons who in Canada commit offences that undermine the integrity of the investigative and judicial processes of the ICC, the bill, in clauses 24 through 26, would assert Canadian prosecutorial jurisdiction over offences against the administration of justice in relation to the Court in certain circumstances. Clause 25 would permit Canada to prosecute Canadian citizens for any of the offences set out in clauses 16 to 23 committed anywhere in the world, as well as for any acts or omissions in relation to the ICC that would constitute contempt of court in Canada.

Clause 24 would make it clear that judges and officials of the International Criminal Court would be "internationally protected persons," within the meaning of section 2 of the Criminal Code. This would ensure that, pursuant to section 7(3) of the Criminal Code, Canada could prosecute violent offences or threats against such persons, committed anywhere in the world, where: the perpetrator was a Canadian citizen; the offence involved an attack on a Canadian ship or aircraft used by an internationally protected person; the perpetrator was subsequently present in Canada; or the victim or target of the offence in question was an internationally protected person by virtue of functions performed on behalf of Canada.

Clause 26 would enable Canada to exercise prosecutorial jurisdiction over acts of retaliation committed by Canadian citizens against ICC witnesses or their families. Canadian jurisdiction under this provision would extend to acts which, if committed in Canada, would constitute any of the following Criminal Code offences: murder; manslaughter; uttering threats; assault; assault with a weapon or causing bodily harm; sexual assault; sexual assault with a weapon, with threats to a third person, or causing bodily harm; aggravated sexual assault; kidnapping; child abduction; or arson.

Clause 9(1) would provide that proceedings for an offence under the proposed Act committed outside Canada could be brought in any territorial division in Canada. Similar provision is currently made in section 7(5) of the Criminal Code for other offences where Canada asserts extra-territorial jurisdiction to prosecute under section 7 of the Criminal Code.

Clause 9(3) would provide that the personal written consent of the Attorney General or Deputy Attorney of Canada would be required for prosecution of the following offences under the proposed Act: genocide, crimes against humanity, war crimes (clauses 4 and 6); breach of responsibility by commander or superior (clauses 5 and 7); possession of proceeds from offences under the proposed Act (clause 27); and laundering proceeds from offences under the proposed Act (clause 28). Clause 9(3) would also provide that these offences could be prosecuted only by federal Crown prosecutors. The same conditions currently apply to prosecutions for crimes against humanity and war crimes under section 7(3.71) of the Criminal Code. The proposed offences against the administration of justice in respect of the ICC in clauses 16 to 23 could, however, be prosecuted by counsel on behalf of either the federal or provincial Crown, although a prosecution for bribery in respect of an ICC judge, contrary to clause 18, would require the consent of the Attorney General of Canada.

Where an offence under the proposed Act was allegedly committed before the coming into force of clause 10, that clause would provide for the application of the laws of criminal procedure and evidence in force at the time of the proceedings. The general rule in criminal proceedings is that a person is tried under the law in place at the time of the alleged offence; however, clause 10 would ensure that persons tried for offences in the past would receive the benefits of contemporary safeguards, such as those guaranteed in the Canadian Charter of Rights and Freedoms. Clause 10 is essentially the same as section 7(3.72) of the Criminal Code, which would be repealed by the bill.

Clause 44 would amend section 469 of the Criminal Code to add offences under clauses 4 to 7 of the bill (i.e., genocide, crimes against humanity, war crimes, breach of command/superior responsibility) to those that must be tried in the superior courts. By virtue of section 522 of the Criminal Code, this amendment would also have the effect of giving the superior courts exclusive jurisdiction over judicial interim release (bail) and would place the onus on the accused to apply for this.

The general rule for criminal proceedings is that they are governed by the law which prevailed at the time of the offence. However, clause 11 would ensure that persons charged with certain offences under the proposed Act received the benefit of any developments in the applicable law that would be favourable to the accused. Clause 11 would provide that, subject to clauses 12 to 14 (below) and section 607(6) of the Criminal Code, a person charged with the offences of genocide, crimes against humanity, war crimes, or breach of responsibility by commander or superior (see clauses 4 through 7, above), could rely on any justification, excuse or defence available under Canadian or international law at the time of the proceedings. Clauses 12 to 14 are discussed below. Section 607(6) of the Criminal Code provides that the special plea of "previously convicted" (autrefois convict) (see below) is not available in respect of international offences tried outside of Canada, where the accused has been tried in absentia and not punished in accordance with the sentence imposed.

Clause 12 would deal with the application of the rule against double jeopardy (known in civil law jurisdictions and in international law parlance as the principle of ne bis in idem) to proceedings in respect of offences under the proposed Act. Under section 607 of the Criminal Code, an accused asserts the protection of the rule against double jeopardy in Canadian criminal proceedings by making a special plea of "autrefois acquit" (previously acquitted), "autrefois convict" (previously convicted), or "pardon." Section 7(6) of the Criminal Code extends the availability of these special pleas to international offences over which Canada asserts jurisdiction under section 7 of the Code, and in respect of which the accused has previously been tried by a foreign court, so long as the foreign proceedings would satisfy Canadian legal requirements for asserting double jeopardy. Clause 12(1) would simply reproduce the double jeopardy protection in section 7(6) of the Criminal Code in the proposed new Act.

Clause 12(2), however, would remove the protection of double jeopardy for offences under clauses 4 through 7, (i.e., genocide, crimes against humanity, war crimes, breach of commander/superior responsibility), where the previous foreign proceedings had not been genuine. Pursuant to clause 12(2), the special pleas described above would not be available in respect of a previous foreign trial where the proceedings had been essentially a sham conducted for the purpose of shielding the accused from criminal responsibility; or had not been conducted independently or impartially according to international norms of due process or had been conducted in a manner "inconsistent with an intent to bring the person to justice." Clause 12(2) is based on Article 20(3) of the Rome Statute, which provides for a similar exception to the principle of ne bis in idem (double jeopardy) in proceedings before the ICC.

The decision to recognize – for double jeopardy purposes – pardons by national governments in respect of the crimes under the jurisdiction of the ICC seems to have been a necessary concession to gain support for the Rome Statute. While clause 12(2) of the bill proposes to follow suit with respect to Canadian prosecutions, this is not required by the Rome Statute. However, it should be remembered that recognition of a foreign pardon in respect of such an offence – either by the ICC under Article 20(3) of the Rome Statute, or by a Canadian court under clause 12(2) of the bill – would be predicated upon there having been an independent and impartial trial of the accused in accordance with international norms of due process conducted in a manner consistent with a genuine intent to bring the accused to justice. These conditions would preclude, among other things, the recognition of a pre-emptive pardon (i.e., a pardon which is issued before any trial or conviction).

Section 15 of the Criminal Code provides that no one shall be convicted of an offence in respect of conduct that was in obedience to laws made by authorities in de facto possession of the sovereign power over the place where the conduct occurred. Clause 13 would preclude the use of this defence with respect to an offence under clauses 4 to 7 of the bill (i.e., genocide, crimes against humanity, war crimes, and breach of commander/superior responsibility). Exclusion of this defence for these crimes is in accordance with long-standing international law in this area. Similar provision is currently made in section 7(3.74) of the Criminal Code in respect of crimes against humanity and war crimes prosecutions under section 7(3.71) of the Code; however, the wording of that provision allows for a possible interpretation that judicial discretion exists as to whether to permit this defence.(14) Clause 13 would make it clear that the defence of obedience to de facto law was simply not available in respect of these offences.

The importance and necessity of obedience to superior orders in the military has led to the development of criminal law principles exonerating individuals who carry out acts in obedience to military orders and assigning responsibility only to those who give such orders.(15) However, as criminal law has developed, at both the national and international levels, it has been recognized that there are limits in the extent to which superior orders can displace the individual criminal responsibility of those who carry them out.(16) For instance, it is accepted that superior orders alone will not displace the responsibility of those who participate in the international crimes of genocide and crimes against humanity. Indeed, the 1945 Charter creating the International Military Tribunal at Nuremberg stipulated that superior orders would not be available as a defence, but would be considered only in mitigation of punishment. Similar provision was made in the Statutes for the ad hoc war crimes tribunals established by the UN for the former Yugoslavia and Rwanda. However, the national military and criminal laws of a number of nations (including Canada) permit the defence of superior orders for any criminal charge; but only where such an order is not "manifestly unlawful."

Article 33 of the Rome Statute seeks to merge these two approaches to some extent. Article 33(1) provides that a person who commits a crime within the Court’s jurisdiction pursuant to an order by a government or of a military or civilian superior will not be relieved of criminal responsibility unless:

However, Article 33(2) goes on to specify that any order to commit genocide or crimes against humanity is manifestly unlawful.

Clauses 14(1) and 14(2) of the bill would effectively incorporate the above provisions of Article 33 of the Rome Statute with respect to offences under clauses 4 to 7 of the bill (i.e., genocide, crimes against humanity, war crimes, and breach of commander/superior responsibility).

Clause 14(3) would add that persons asserting a defence of superior orders under clause 14(1) could not base their defence on a belief that the order was lawful if that belief was based on information that encouraged, was likely to encourage, or attempted to justify inhumane acts against a civilian population or identifiable group of persons. This provision is intended to prevent reliance on the dissemination of information that could itself amount to hate propaganda as a foundation for a defence of mistaken belief of facts which might otherwise excuse obedience to an unlawful order. The majority judgment of the Supreme Court in the Finta case was that evidence such as newspaper reports and other propaganda suggesting that the Jewish population of the country was disloyal to Hungary’s war effort and was supportive of the Allied cause could provide the basis for a defence of honest but mistaken belief in the lawfulness of orders calling for the round-up and deportation of Jewish civilians.(17)

Clauses 27 to 29 of the bill would seek to deny any economic gain resulting from the commission of an offence under the proposed Act by incorporating proceeds of crime and anti-money laundering provisions from the Criminal Code and other federal legislation.

Clause 27 would make it an offence (punishable by up to ten years’ imprisonment) to possess property or proceeds known to have been obtained or derived, directly or indirectly, from the commission of an offence under the proposed Act, or an offence against a judge or official of the ICC under sections 7(3) and 431 of the Criminal Code (crimes against internationally protected persons), as amended by the bill. Similar provision is made in sections 354(1), 355 and 354(4) of the Criminal Code with respect to possession of proceeds of other criminal offences. In fact, section 354(1) of the Code is arguably broad enough to encompass proceeds derived from offences under the proposed Act.

Clause 28 would do likewise with respect to the laundering of such criminal proceeds. "Laundering" would include the use, transfer, delivery, transport, alteration, disposition, or other dealings with the property or proceeds with a view to their concealment or conversion. Similar provision to clause 28 is made in section 462.31 of the Criminal Code with respect to "enterprise crime offences" listed in section 462.3 of the Code.

Clause 29 would extend the provisions of the Criminal Code on the seizure, restraint, and forfeiture of proceeds of crime (Part XII.2) to the proceeds of offences under the proposed Act.

In addition to bringing perpetrators of the most serious international crimes to justice, the Rome Statute also seeks to address the needs of victims. Toward that end, Article 75 of the Statute allows the International Criminal Court to order that reparations be paid to, or in respect of, victims. Such reparations could be made directly from persons convicted by the Court, or through the Trust Fund created under Article 79, which would be funded through the proceeds from fines and forfeitures ordered by the Court.

Clauses 30 to 32 of the bill would provide for the establishment of a Canadian "Crimes Against Humanity Fund," which would both emulate and support the ICC Trust Fund. Clause 30(1) would create the fund and provide for the payment into it of: all money obtained through the enforcement in Canada of ICC orders imposing fines, reparations or forfeitures; all money obtained through fines and forfeitures imposed by Canadian courts in respect of offences under the proposed Act; and any donations to the fund. Clause 30(2) would authorize the Attorney General of Canada to make payments out of the fund to the ICC, the ICC Trust Fund, victims and families of victims of offences under the proposed Act or the Rome Statute, or otherwise as the Attorney General saw fit. Clause 30(3) would confer on the Governor in Council the authority to make regulations respecting the administration and management of the fund. Finally, clause 32 would exclude the application of certain provisions of the Seized Property Management Act, S.C. 1993, c. 37, to proceeds from fines and forfeitures imposed by Canadian courts in respect of offences under the proposed Act and transferred to the fund under clause 31. The excluded provisions deal with the sharing of forfeiture proceeds with law enforcement agencies and the deduction of certain indirect costs.

Clauses 47 to 53 and 56 to 69 of the bill would amend the Extradition Act and the Mutual Legal Assistance in Criminal Matters Act in order to implement Canada’s obligations under Part 9 of the Rome Statute to cooperate with the International Criminal Court and its officials in the investigation and prosecution of offences under the Court’s jurisdiction. These provisions of the bill would ensure that the various forms of law enforcement cooperation provided to other countries under these Acts would extend to the International Criminal Court. In fact, to some extent, requests by the ICC for the arrest and surrender of suspects, and for various forms of mutual legal assistance, would be accorded preferential treatment under the proposed amendments. Bill C-40 of the previous Session (now S.C. 1999, c. 18) made a series of legislative changes to enable Canada to cooperate with such requests from the existing international criminal tribunals, namely, the ad hoc tribunals established by the UN in respect of the former Yugoslavia and Rwanda.

Clause 48 would amend the Extradition Act by creating a new section 6.1 to prevent any person whose surrender was sought by the ICC, or by an ad hoc tribunal created by the UN Security Council, from claiming immunity from arrest or extradition under Canadian law. Generally, in Canada, as in other countries, foreign government officials and accredited diplomats are accorded immunity from arrest or judicial proceedings. However, with respect to serious international crimes – particularly those that are the subject of the Rome Statute and the bill – these immunities have been restricted under international law. The London and Tokyo Charters, wherein the Allies provided for the trial and punishment of Axis war crimes, aggression, and crimes against humanity, specifically excluded any immunity based on an accused’s "official position." This principle was subsequently endorsed by the UN General Assembly and the International Law Commission. Similar provisions have since been included in the 1948 Genocide Convention and in the Statutes of the international tribunals for the former Yugoslavia and Rwanda.(18) Article 27 of the Rome Statute provides that

Clause 48 would thus ensure that Canada was in a position to arrest and extradite anyone in respect of crimes within the jurisdiction of the international criminal tribunals, regardless of their current or former position in a foreign government.(19)

Clause 49 would amend section 14(2) of the Extradition Act in order to provide additional time for the ICC to make a formal request for extradition and to forward the necessary supporting documents after the provisional arrest of a suspect. Effectively, clause 49 would require a judge to grant an extension of the usual deadline in such cases; in cases not involving the ICC, such an extension would be discretionary.

Clause 50 would amend section 18 of the Extradition Act, which deals with judicial interim release and detention pending extradition, in order to make special provision for International Criminal Court cases. Basically, the amendments proposed in clause 50 would tend to tip the balance in favour of the interim detention of the accused in such cases. The clause would place the onus on persons arrested at the request of the ICC to show that their detention pending extradition would not be necessary to ensure their attendance at the proceedings or for the protection of the public. Similar provision is already made for the most serious offences. However, clause 50 would further require that, before releasing a person sought by the ICC, a judge would have to be satisfied that, "given the gravity of the alleged offences, there are urgent and exceptional circumstances that justify release." This test is mandated by Article 59(4) of the Rome Statute. Clause 50 would also provide for the receipt of recommendations from the Pre-Trial Chamber of the ICC concerning judicial interim release of persons sought by the Court. A judge hearing an application for judicial interim release by a person sought by the ICC would have to grant an adjournment of the hearing for up to six days, at the request of the Attorney General, to await such recommendations. The judge would be required to consider any such recommendations before rendering a decision. Article 59(5) of the Rome Statute requires the Pre-Trial Chamber of the Court to make recommendations to the appropriate national authority on the interim release of a person sought by the Court. It also requires those authorities to give full consideration to such recommendations.

Challenges to the jurisdiction of the ICC or the admissibility of a case could be made before a person has been surrendered to the Court. Clause 51 would permit the Minister of Justice to delay his or her surrender decision in such cases, in order to await the ICC’s decision on those issues. Currently, the Extradition Act provides that the Minister must make a surrender order within 90 days of the accused’s committal for surrender by the judge following the extradition hearing, with a possible one-time extension of 60 days where the Minister considers that further time is needed to address any submissions made by or on behalf of the accused.

Clause 52 would preclude the application of the various grounds for refusing surrender of a person by the Minister of Justice under the Extradition Act. Article 89(1) of the Rome Statute obliges States Parties to comply with requests from the Court for arrest and surrender of persons in accordance with Part 9 of the Statute. This obligation is subject only to national legal requirements of a procedural nature, which, under Articles 86 and 88 of the Statute, must still permit the state to cooperate fully with requests for cooperation from the ICC, including the surrender of accused persons.

The various grounds for mandatory or discretionary refusal of surrender under sections 44, 46 and 47 of the Extradition Act, which would be excluded in ICC cases by clause 52, are either inapplicable to the ICC or have been judged to be unnecessary in such cases. Examples of the former would include: possibility of the death penalty (the maximum penalty under the Rome Statute is life imprisonment); the limitation period in the requesting jurisdiction has expired (there is no limitation period under international law for the offences with the jurisdiction of the ICC); the accused has been convicted in absentia and, if surrendered, could not have the case reviewed (there is no provision for in absentia trials in the Rome Statue); the accused was under 18 years of age at the time of the offence and the applicable law of the requesting jurisdiction is not consistent with the principles of Canada’s youth criminal justice legislation (the ICC would have no jurisdiction over persons who were under 18 at the time of the offence). Examples of grounds for refusing surrender which are deemed to be unnecessary in relation to the ICC would include: surrender would be unjust or oppressive, or the accused would face discrimination in the requesting jurisdiction; the accused is already the subject of criminal proceedings in Canada for the same matters (where a state is undertaking a genuine investigation or prosecution of the crime, the case will be inadmissible with respect to the ICC; moreover, challenges to the admissibility of a case can be addressed at the ICC); the requesting jurisdiction has no territorial jurisdiction over any of the conduct which forms the basis of the extradition request (the ICC’s jurisdiction will extend to the territory of all States Parties, to all vessels and aircraft registered with those states, and to any case where the accused is a national of such a state; moreover, challenges to the ICC’s jurisdiction over an offence can be addressed by that Court).

The Minister’s decision to surrender a person to the ICC would, however, still be subject to the Canadian Charter of Rights and Freedoms.

In order to facilitate the surrender of persons between other jurisdictions, the Extradition Act makes provision for their transit through Canada with the consent of the Minister of Justice on appropriate terms and conditions. Section 76 deals with situations where a person being extradited between two other jurisdictions makes an unscheduled landing in Canada. In such a case, that section authorizes a peace officer to hold the person in custody for up to 24 hours while a request from the requesting jurisdiction for consent to transit is transmitted to the Minister of Justice. Where the person was being surrendered to the ICC, clause 53 would allow Canadian police to hold them for up to 96 hours.

Clause 57 would amend the Mutual Legal Assistance in Criminal Matters Act (Mutual Legal Assistance Act) by providing a specific process for the registration and enforcement in Canada of ICC orders for the seizure or restraint of proceeds of crime, as well as orders imposing fines, reparation, or forfeiture. These orders would be enforced by counsel for the Attorney General of Canada on the authorization of the Minister of Justice. Once filed and registered with the appropriate superior court by the Attorney General, such orders would be enforceable as if made by a Canadian court under the relevant provisions of the Criminal Code. Subject to the rights of any bona fide third parties with an interest in property subject to such an order, the proceeds from their enforcement would be paid into the Crimes Against Humanities Fund, to be established under clause 30 of the bill (see above). These provisions would help to fulfill Canada’s obligations under the Rome Statute to comply with ICC requests for assistance (in particular, Article 93(1)(k)).

Clause 58 would amend section 10 of the Mutual Legal Assistance Act in order to make telewarrants under section 487.1 of the Criminal Code available in mutual legal assistance cases. This would be a general change applicable to mutual legal assistance requests from all sources.

Clause 60 would amend section 12(1)(a) of the Mutual Legal Assistance Act, which deals with the requirements for the issuance of search warrants by Canadian judges in mutual legal assistance cases. Section 12(1)(a) currently requires that the judge be satisfied that there are reasonable grounds to believe that an offence has been committed over which the requesting state or entity has jurisdiction. The new section 12(1)(a) proposed in clause 60 would no longer require the judge to consider the jurisdiction of the requesting state or entity. In the case of ICC requests, the jurisdiction of the Court is carefully prescribed in the Rome Statute and may be challenged at various stages of an investigation or prosecution. Moreover, the Act already requires the Minister of Justice to consider the jurisdiction of the requesting state or entity before approving a request for a search or seizure in Canada (see section 11(1)).

Similar changes are proposed in clauses 62 and 63(1), with respect to orders for the production and gathering of evidence in Canada under sections 17 and 18 of the Act; and in clauses 67 and 68, with respect to orders requiring persons to give evidence via video link under sections 22.1 to 22.4 of the Act.

These would be general changes applicable to requests for mutual legal assistance from all sources.

Clause 61 would amend the Mutual Legal Assistance Act to clarify that, in addition to search warrants, other warrants for the use of other investigative techniques and devices authorized under the Criminal Code would be available, on the same basis, in mutual legal assistance cases.

Section 18 of the Mutual Legal Assistance Act makes provision for the taking of evidence from persons in Canada for use in foreign and international criminal investigations and court proceedings. Subsections 18(7) through (9) of the Act deal with refusals to answer questions or to produce evidence as requested. Subsection 18(7) sets out the grounds for validly refusing such requests. Subsections 18(8) and (9) provide that, notwithstanding such a refusal, the examination continues, but the person examined must thereafter provide the person designated to conduct the examination with detailed written reasons for his or her refusal. This statement and other pertinent information and records relating to the examination will then form part of a report to the judge who ordered the examination. Ultimately, the validity of the refusal will be adjudicated upon and the person may subsequently be required to furnish the missing information on pain of contempt.

Clause 63(2) would amend subsections 18(7) to (9) of the Act by making three changes to this process. First, the law of the requesting jurisdiction would be made more clearly applicable to the person’s obligation to answer or produce evidence and to the validity of any objections thereto. Second, the existing ground for refusing to provide the information sought on the basis of Canadian law would be narrowed to include only Canadian law relating to non-disclosure of information (e.g., laws re privacy, official secrets, etc.) or privilege (e.g., solicitor-client privilege). Third, provision would be made for an immediate ruling on the validity of any refusals where the designated person before whom the examination took place was a Canadian or foreign judge (i.e., a judge of the requesting jurisdiction), depending on the law on which the refusal was based.

Clause 69 would amend the Mutual Legal Assistance Act to make specific provision for orders for the examination sites, including the exhumation and examination of gravesites, in response to a request for mutual legal assistance.

Clause 43 of the bill would amend section 183 of the Criminal Code by adding the offences which the bill would create to those in respect of which police could obtain authorization to intercept private communications under Part VI of the Code.

Articles 48(1) and (2) of the Rome Statute require States Parties to confer certain privileges and immunities on the ICC and its senior officials. Other Court staff, counsel, experts, witnesses, and other persons whose presence at the Court is required would be accorded the privileges, immunities and treatment provided for in an agreement to be negotiated among the States Parties. Clause 54 would amend section 5(1) of the Foreign Missions and International Organizations Act, S.C. 1991, c. 41, to enable the Governor in Council to extend, by order, the necessary privileges, immunities and treatment to be accorded to the Court, its personnel and others, in accordance with the Statute and the future agreement on privileges and immunities of the Court.

Clauses 71 to 75 would amend the Witness Protection Program Act, S.C. 1996, c. 15, in order to provide for the admission of witnesses in ICC proceedings to the program.

Inasmuch as Bill C-19 would implement Canada’s obligations under the Rome Statute to ensure its ability to cooperate with the work of the new International Criminal Court, the bill is likely to be uncontroversial. Canada has been a strong supporter of efforts to establish a permanent international criminal tribunal.

Persons and groups who have emphasized the need for maximum cooperation with and deference to international criminal tribunals will want to ensure that all national legal impediments to compliance with ICC requests for the surrender of persons and other forms of assistance are being removed. During House of Commons and Senate Committee hearings on the current Extradition Act (Bill C-40 of the previous Session), Amnesty International strongly objected to international criminal tribunal requests for the surrender of persons accused of crimes against humanity, etc., being subjected to the regular extradition process. In particular, it was argued that the dual criminality requirement (which requires that the foreign offence for which extradition is sought must also be a crime in the country being asked to extradite the person) may be problematic as a result of the Supreme Court’s decision in the Finta case; and that other traditional "defences" to extradition (i.e., grounds for refusing extradition) should not apply to international tribunal cases.

However, the bill’s proposed creation of domestic offences that precisely match those under the jurisdiction of the ICC, and the proposed exemption of ICC cases from the usual grounds for refusing surrender of persons under the Extradition Act, should address much of these concerns.

For its part, the Canadian Jewish Congress has indicated its support for the bill, and hopes that further efforts to prosecute suspected World War II era war criminals living in Canada will be made under the new legislation.(20) Other groups and individuals are likely to oppose renewing such prosecutions, however.